Pharmaceuticals interdict Gov’t over ARVs

17 Jun 2019

Scores of HIV patients’ may find themselves without ARV drugs following a court application that may disrupt supply of the life saving drugs.

A number of companies that supply the government with Anti-Retroviral Drugs (ARVs) have approached the High Court seeking an interdict against the Central Medical Stores (CMS).

Records before the High Court show that at least two companies that supply ARVs want CMS to be interdicted from carrying out a tender to supply the drugs.

The companies in question have also approached the High Court separately seeking a review of the award of the tender to some of the competitors that had been granted the tender. 

They also want to the decision by the Public Procurement Disposal and Asset Disposal Board (PPADB) to award the multi million tender be set aside.

The applications for review by Africure Pharmaceuticals Botswana and Portfolio Pharmaceuticals Botswana arise from the evaluation of a tender worth millions of Pula for supplies of ARVs to CMS.

It emerges from Court papers that PPADB unbundled and split the government tender identified as “Framework Contract the Procurement of Anti-Retroviral Drugs” and awarded it to five companies. The aggrieved companies’ bone of contention is that the tender should not have been split among them.

In his founding affidavit, Africure Pharmaceuticals Botswana Soumit Ghosh wants the Court to review and set aside the decision of PPADB’s decision to award the tender.

“In particular, the aim of the application is to set aside and correct the percentage splits for the total supply of certain drugs, the supply of which is to be exclusive shared by the Applicant (Africure Pharmaceuticals Botswana)and the Third Respondent (Yellow Birch (Property) Limited T/A Pyramid Pharmaceuticals.”

He said with respect to the supply of the particular drugs complained of, Yellow Birch was the second lowest priced bidder compared to all other bidders with Africure Pharmaceuticals Botswana being the lowest bidder on all percentage allocations of the drugs as awarded by PPADB.

“As per the tender procedures, the lowest priced bidder is entitled to an eighty percentage (80%) split of the total percentage supply of the drugs, but this may be reduced where there is good reason to do so in an effort to manage the risk to the supply of these very important drugs which are purchased by the government as part of its continued efforts to battle the effects of HIV and AIDS on the people of Botswana.”

Ghosh contend that the decision by PPADB to award his company a percentage split of less than 80% of the total supply of the drugs even though it was the lowest priced bidder for the drugs was guided and based on facts and information which were false and incorrect.

“This false information, which concerned the prior performance of the Applicant as a previous supplier to the government on a similar tender was provided to the Second Respondent (PPADB) by CMS as part of the evaluation and adjudication process,” said Ghosh. He said the decision of PPADB was thus influenced by material errors of facts. He said his company was not given any opportunity at any point in time to view, review or in any comment on “this false and detrimental information supplied by CMS to the Second Respondent.

Information detrimental to the Applicant’s interests, which had a material bearing on the Second Respondent’s adjudication of the tender was delivered by CMS to the Second Respondent’s adjudication of the tender was delivered by CMS to the Second Respondent without according the Applicant any opportunity to view let alone rebut such information.

He accused CMS of failing to without any proper reasons to place other relevant material before PPADB, which demonstrates Africure Pharmaceuticals Botswana’s immaculate capacity to supply various medicines to CMS even under circumstances where medicines were ordered from it on an emergency basis after the due suppliers failed to deliver.

For his part, the Managing Director of Portfolio Pharmaceuticals Botswana, Bathusi Kgosietsile said certain of his company’s products were excluded from consideration on the basis that those products or the brands were not registered in terms of Medicines and Related Substances Act.

He said in so excluding the products, the Ministry of Health and PPADB, misunderstood the effect of then pending applications to alter the branding of these products without affecting their place of manufacture or chemical composition.

Kgosietsile said secondly in making awards under the tender, the Ministry and PPADB split the award of the tender in respect of the certain products between his company and Aurobindo Pharma Limited and Yellow Birch Propriety Limited, on the one hand and his company and Birch Propriety Limited, on the other hand.

“in splitting the award of the relevant products in this manner, the First and Third Respondents (Ministry of Health and PPADB) respectively, failed to recognise that the Fifth Respondent (Aurobindo Pharma) is not a locally based manufacture but instead an importer of ARVs and as such was precluded under Presidential Directive 34B of 2014 on economic empowerment which was made expressly by the tender document from sharing in the tender award,” said Kgosietsile.

He said the Ministry and PPADB also failed on allegation an allegation about his company’s supposed historical poor performance when there is no basis in fact for the Ministry and PPADB to have done so.

Court records also show that Kgosietsile appealed PPADB’s decision to the Complaints Review Committee (CRC) which upheld the decision of PPADB. Delivering a judgement, the Committee stated that this was an international bidding method of procurement and as such both local and international bidders were eligible to submit bids.

“In addition it was also stated in the Invitation to Tender (ITT) that the Procuring Entity (CMS) reserves the right to split the award at 80:20 or at 50/50, taking into account the extent of risk exposure to the strategy adopted by the Procuring Entity,” reads the judgment of CRC.

The Committee further stated that “It is further noted that the risk mitigation strategy adopted by the Procuring Entity was based on poor performance with respect to timely delivery on previous tenders by all bidders including the complainant.”