You may or not be aware that the The Public Services (Social Value) Act 2012 requires public bodies to consider how the services they commission and procure might improve the economic, social and environmental well-being of the area. Commissioners are required to factor social value in at the pre-procurement phase, allowing them to embed social value in the design of the service from the outset.

What’s this got to do with consultation you may ask?  Well in section 1, subsection 7 of the Act, it states that “the authority must consider whether to undertake any consultation as to the matters that fall to be considered under subsection 3″ ( FYI subsection 3 states that the authority must consider (a) how what is proposed to be procured might improve the economic, social and environmental well-being of the relevant area, and (b) how, in conducting the process of procurement, it might act with a view to securing that improvement).

Now ‘must consider’ appears to give people plenty of wriggle room not to consult if the authority considers it to be an inconvenience.  However,  according to the Social Value Hub, Chris White (MP) has said he hopes commissioners will think of the requirement to consider consultation, which is set out in section 1, subsection 7 of the Act, as a ‘duty to consult’. The Hub do add that that this may be the spirit of the legislation, but there is no legal duty.

So is there is a Duty to Consult? Well if we take the Hub’s word for it no. But,  if we unpick the Act’s requirement to consider consultation for pre-procurement the legal implications may not be so clear.  Firstly, if the decision is made to consult then surely the Gunning Principles will kick in.  Then the authority in question will need to do the consultation properly, according to best practice, or they will open the door to a successful argument for a Judicial Review.  Secondly, if the decision is made not to consult this will come up against considerable scrutiny.  And in addition, if an authority chooses not to consult, it won’t be long before wily campaigners are using FoI requests to find out why not.  Then the doctrine of legitimate expectations could intervene as successful arguments are put together to convince a judge that the authority should have indeed consulted. Commissioning organisations will have to be very careful when considering their arguments whether to consult or not.

Who needs to be consulted and when? The Act does not set out who should be consulted in the pre-procurement period. But guidance refers to the requirements of the Act being complimentary to the existing principles of consulting before procurements start to develop ‘robust and intelligent specifications’. The guidance does add that potential service users and organisations that represent them in the community could be consulted as well as other agencies that provide or commission services.

There is further guidance which states that, “Consultation will be particularly relevant when considering procurements for services which are delivered directly to citizens. The voluntary and community sector, along with other providers and interested groups, should be engaged from the earliest stage to help shape policies, programmes and services. Central Government contracting authorities should be mindful of the principles of The Compact between government and that sector. Other authorities may have local compacts with the voluntary and community sector and should be mindful of those arrangements.” There is an additional reference to consultation being less relevant in procurements for “back office” services.

There’s no detail in terms of how to consult, but there are guidance notes regarding the form of consultation being appropriate to the needs of the people and organisations being consulted, as well as it being proportionate to the likely impact of the procurement.  The guidance also refers to the Cabinet Office’s Consultation Principles and states that the consultation should be digital by default, with the usual caveat that they should also consider, “the best way of getting the views of potential users who may not be familiar with modern IT.”

I don’t know about you but this all sounds a lot like traditional advice and guidance for doing best practice consultation.  So it looks like it could be argued that although there may not be an explicit new statutory duty to consult, there may be an implicit one.  Plus,  the MP’s statement that the Act should be considered as a duty to consult will certainly add weight to any applications for JR of commissioning decisions where there is a noticeable, arbitrary, absence of pre-procurement consultation.