What is the Community Right to Challenge and who can submit an Expression of Interest?
The Localism Act became law in November 2011 and includes a new ‘Community Right to Challenge’ that allows “relevant bodies”, such as:
- voluntary and community bodies
- parish councils
- groups of two or more local authority staff
To submit an Expression of Interest (EOI) to run a service that West Lindsey District Council (“the council”) currently provides. If your EOI is accepted, an open procurement exercise for the service in question will be triggered during which your organisation (and any other that wishes to compete in the procurement exercise) will be required to provide information. The information provided by potential providers during the procurement exercise will be the basis on which the council awards the contract. The council is required to consider and respond to an EOI in accordance with statutory guidance, which you are advised to look at.
It can be accessed at the Department for Communities and Local Government (DCLG) website.
Why do I need to complete a form?
The purpose of the EOI form is to assist you in submitting an EOI. You don’t have to, but we recommend that you use this form to submit your EOI as it will ensure sufficient information is provided to allow the council to evaluate your proposal. You may attach or include any supporting documents as well.
Community Right to Challenge Expression of Interest form.
Who can submit an EOI?
Section 81 of the Localism Act (2011) specifies the kind of organisations/bodies who are eligible to use the Community Right to Challenge. These are known as relevant bodies. Information about relevant bodies and definitions of different types of relevant bodies are provided in the statutory guidance.
A voluntary body means a body, other than a public or local authority, the activities of which are not carried on for profit. However, the making of a surplus does not in itself preclude a body from applying, so long as that surplus is used for the purpose of those activities or invested in the community. This therefore includes organisations such as industrial and provident societies (co-operatives and community benefit companies) and community interest companies.
A community body means a body, other than a public or local authority, that carries out activities primarily for the benefit of the community.
Two or more employees of the council are also eligible to use the Right and will be expected to form an employee-led structure to take on running services under the Right. Employees using the Right are not expected to have finalised all of their arrangements before submitting an EOI but will probably need to form a separate legal entity in order to bid in a procurement exercise.
You are asked in the EOI to prove that your organisation meets the definition of a relevant body. This could include your Charity Number, articles of association, registration with Companies House or registration with the Financial Services Authority, etc.
The statutory guidance states that organisations that provide contracts for local authorities will be incorporated, with limited liability. However, it is not essential for the relevant body to be incorporated at the time the EOI is submitted. If your EOI is accepted, the Government suggests that the time between acceptance and the start of the procurement exercise will allow time to arrange incorporation.
Similarly, EOIs submitted by groups of West Lindsey District Council staff are not required to have formal arrangements in place for forming an employee-led structure to run the service at the time the EOI is submitted, but must have these in place by the time any procurement exercise begins.
Relevant bodies are allowed to submit an EOI in partnership with one or more other organisations, which are not required to meet the definition of a relevant body. If you are submitting the expression of interest as a consortium, you are required to provide information about all members of the consortium or partnership.
You may be proposing to use sub-contractors to provide or assist in providing the service that the expression of interest relates to. It is not necessary for any sub-contractors you propose to use to meet the definition of a relevant body.
Relevant bodies may submit an EOI in partnership with other relevant bodies and non-relevant bodies. Incorporated joint ventures (the joint venture is a body in its own right) will need to meet the definition of a relevant body to submit an EOI. In the case of a contractual joint venture (co-operative arrangements between two parties that keep their separate identities), one or more bodies must meet the definition of a relevant body. There is no requirement for a relevant body to have a local connection.
What council services does the Right to Challenge apply to?
The council will consider a request to run or help run any ‘relevant service’ that it currently delivers (or is delivered by another party on its behalf) alone or in partnership with other relevant authorities. A relevant service is a service provided by or on behalf of the council in the exercise of any of its functions, other than a service of a kind specified in regulations made by the Secretary of State.
The community right to challenge applies to all relevant services provided by or on behalf of the council in the exercise of its functions in relation to England, except services which are excluded from the right in secondary legislation. It does not provide for delegation of the functions and the responsibility for the function itself remains with the relevant authority. Please refer to the statutory guidance for more information about this.
What will happen to your EOI once it is submitted?
Once we have received your EOI we will carry out an initial compliance check to ensure you have completed all the sections of the form. If the EOI does not satisfy the initial compliance check you will be asked to provide the missing information. If you do not provide the missing information, your EOI will be rejected.
If the council considers that your EOI is frivolous or vexatious you will be informed at this point that it has been rejected on these grounds.
Providing you have completed the form fully, your EOI will be sent to the decision-making panel who can receive and adjudicate on Expressions of Interest. This will be two members and two senior officers:
- The Leader of the Council (or Deputy)
- The Chairman of Policy and Resources Committee (or equivalent)
- Chief Executive (or Deputy)
- Section 151 officer (or relevant Service Manager)
How will your EOI be assessed?
The panel will assess the EOI against a number of criteria, based on those set out in the statutory guidance and regulations and the Council’s Policy Statement below. You are advised, therefore, to ensure that your EOI addresses these criteria directly and in sufficient detail.
The council will notify the applicant of its decision within 30 days.
The council will state the period between acceptance of an EOI and starting the procurement exercise. This will be decided on a case by case basis and have regard to giving a fair opportunity to bid, the complexity of the bid and the commissioning cycle. The procurement exercise will follow the law applying to the award of contracts.
Grounds for rejection of an EOI include:
- The EOI does not comply with the requirements of the Localism Act
- We consider that the EOI is frivolous or vexatious
- The EOI contains inadequate or incorrect information
- The expression of interest does not, in our opinion, sufficiently demonstrate how it will improve the service and how any proposed changes could better meet the needs of users and benefit the wider community
- We consider that you or one of your consortium members or sub-contractors is not suitable to provide or assist in providing this service
- We have taken a decision not to continue providing that service
- The EOI relates to a service that is currently the subject of a procurement exercise
- We are already in negotiations with a third party for provision of the service
- We have already published our intention to consider the provision of the service by a proposed body of two or more employees
- We consider that acceptance of the EOI is likely to lead to contravention of an enactment or other rule of law or a breach of a statutory duty, such as to provide Best Value
When can EOI’s be submitted?
The council will accept EOIs at any time.