Thousands of HIV patients’ lives may be at risk as Botswana faces a possible freeze in the manufacturing and supply of Anti Retroviral Drugs (ARVs).
One of the companies took the government to court and has successfully interdicted the Central Medical Stores from issuing a tender to supply the life saving drugs.
Portfolio Pharmaceuticals Botswana Propriety Limited sought, among other things, to interdict the Ministry of Health (1st Respondent) from taking any further action in implementing all the procurement process under Tender No.SUP 613/10 Framework Contract for the Procurement of Anti-Retroviral Drugs.
Handing down judgment, acting Gaborone High Court Judge, Justice Rahim Abdool Khan said it was important to note in principle that if substantive part of the tender was execute(d), the review court will not set aside the tender even if it finds for the applicants(Pharmaceuticals Botswana Propriety Limited), which would render the review academic.
“The applicant would have no alternative remedy in damages because its quantum of its claim be difficult to complete,” said the judge.
He said: “In paragraph 20 the deponent states the respondent will not because substantial loss and it denies that the award of the tender will affect the 1st respondent (Ministry of Health) by causing it financial loss, without detailing how this would not occur.”
“The deponent also further states that the applicant had a questionable record in successful deliveries and in the instance drugs are invariably required on an emergency basis without any room for late delivery or incomplete delivery,” said the judge. Justice Khan said these issues can be dealt with in the review process adding that “The Court is in agreement with the applicant’s contention.”
He found that Pharmaceuticals Botswana Propriety Limited states in its founding affidavit that it attempted to engage with the 4th respondent (The Independent complaints Review Committee) to seek suspension of the tender process pending the determination of the complaint.
“The 4th respondent has however failed to confirm or agree to the suspension of the procurement process pending the determination of the complaint. The 4th respondent has failed to confirm or agree to the suspension of the procurement process and therefore necessitated the seeking of urgent relief as …the 4th respondent dismissed it application and authorised the award of the tender the other bidders the applicant would be too late in objecting to the award,” said the judge. He added that “It will result in a irregular and unlawful award to the other bidders.”
Justice Khan said in addition, in terms of section 105(1) of the PPADB Act any contract issued by the Ministry of Health would have commenced following the letter of instruction to this effect by the Ministry such contract is irrevocable.
“Finally, it argues that it is unable to substantial redress if the tender awards are implemented what the applicant therefore seeks is to be suspended pending the finalisation of the review application brought by it in terms of section 104(b) of the PPADB Act,” he said.
According to the judge, with regard to the ostensible lack of authority, the law is quite clear. “The applicant has the requisite authority to represents itself in this court and accordingly the 4th respondent’s objections to its locus standi must fail,” he said.
Justice Khan found that: “The applicant has shown it has been expeditious in asserting its rights and was timeous in filling its application. In my respectful view, the applicant’s reasons for the urgent interdict are valid and there is merit in its argument.”
He said: “This application does not dispose of the matter as the merits will be dealt with in the review application” adding that “Having dismissed the relevant respondents’ points in limine, this Court finds that a prima facie case has been made out for the grant relief and accordingly grants the applicant their relief.”
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.