Question: Aside from possibly delaying the limitation period, what are the consequences/risks if an authority does not publish any of the mandatory notices? Many authorities will struggle with the resource implications.
Question: What is likely to happen if a pipeline notice is not served in time?
Question: Given the additional focus on prelim market engagement, do the remedy provisions also cover this period of the procurement?
Answer to the above questions:
If an authority fails to publish a notice within the required time frame, or indeed at all, it will have breached its obligations under the Act.
Section 99 makes it clear that the authority’s duty to publish these notices (where these are notices are mandatory) is enforceable in the courts under the remedies provisions in Part 9 of the Act.
Therefore, any delay in publishing or failure to publish could in principle be the basis for a challenge by a supplier, although it is perhaps hard to see what loss a supplier could allege had arisen out of a breach of this kind. It is perhaps more likely that a technical breach of section 93 might form one part of a wider challenge (with challenges usually arising mainly out of the evaluation phase).
The Act does create a new institution – the Procurement Review Unit – which will have the power to investigate complaints and “name and shame” authorities that are incompliant, and perhaps this would be the most likely consequence of a failure to publish in time.