Friday, September 30, 2022

Putting HIV babies in the line of fire

Thousands of babies’ lives born by HIV positive mothers hang in the balance as some companies supplying the Ministry of Health with infant formula milk have been interdicted from carrying out a tender to supply the feeding. 

A local company, Creative Business Solutions, has brought an application before the High Court for review and to set aside the award of the tender to some of the companies that had been granted the tender. 

In his founding affidavit, Creative Business Solutions Director Mosupi Masomosomo states that the award for the tender was made on or about September 25, 2015 and cites that its execution, save for a company called Extra Vision, has been interdicted pending the finalisation of the application.

The application for review arises from the evaluation of a tender worth millions of Pula for a supplies contract for procurement of 3 400 00 units of infant formula for the Department of HIV/AIDS Prevention and Care.

Court records show that Extra Vision (4th Respondent) was awarded the tender to supply 1 700 000 cans of infant formula (mmelegi) in the years 2015-2017 for the financial year 2015/16 at a total cost of more than P24 million.  Bonanza Equipment (5th Respondent) also won the tender to supply 1 132 200 cans of infant formula milk for the same financial year at a total price P16 million. Another company Rebels Fruit and Vegetables (6th Respondent) is to supply 567 800 cans of formula milk for a total of P8 million for the same financial year. 

In her replying affidavit, Permanent Secretary in the Ministry of Health, Shenaaz El-Halabi, said that that the infants were likely to be left in the lurch as a result of the ongoing case. 

“…There is no prejudice that the applicant (Creative Business Solutions) will suffer. In fact, the beneficiaries of the programme stand to suffer greater prejudice than the one contemplated by the applicant,” she said. 

Masomosomo argued that the decision by the Evaluation Committee and the Department of HIV/AIDS Prevention and Care which was adjudicated and accepted by the Public Procurement and Asset Disposal Board (PPADB), was arbitrary, unreasonable, irregular and improper. He said his company’s efforts to bring to the attention of the evaluation committee, PPADB and Department of HIV/AIDS Prevention and Care, who are cited as the respondents, had not been heeded and appear to have set in motion the process in preparation for the implementation of the unlawful and biased tender award and execution therefore prejudicing his company. Court records show that the Evaluation Committee and the Department of HIV/AIDS Prevention and Care rejected to award Masomosomo’s company the tender on the basis that it did not meet the requirements of the tender among others a free sales certificate for infant formula milk. 

But Masomosomo further argued that on October 7, 2015 his company, through its legal practitioners, addressed a letter to PPADB to reconsider the acceptance of the recommendation and to reject the tender to the three companies. Pending the review, he said it was necessary to obtain an interdict which Creative Business Solutions did. Masomosomo said the decision of the Department of HIV/AIDS Prevention and Care and its evaluation committee which was accepted by PPADB should be reviewed and set aside and corrected. Creative Business Solution said the certificates of its three competitors did not comply with the said requirement and ought to have also been disqualified.

The aggrieved company noted that it complained that Extra Vision’s certificate was not from a commercial authority but from a municipal environment unit. Court records also show that Creative Business Solutions argued that Bonanza Equipment and Rebels Fruit and Vegetables’ certificates were flawed because they did not comply with the template provided. The company said the companies in question did not certify that the product was freely sold for infant feeding in the country of origin and that Rebels Fruit and Vegetables did not certify that the Durban Chamber of Commerce was an official commercial authority in South Africa. 

But PPADB in turn contends that Creative Business Solutions’ certificate did not comply with the requirements as well because it was not issued by a commercial authority in the country. According to court documents, Business Solutions contended that its free sale certificate was substantially compliant in that it certified that the product was freely sold and used for infant feeding in France as indicated in the certificate which is endorsed by both the manufacturer and the commercial authority in France being the Chamber of Commerce in Paris. 

El-Halabi said Creative Business Solutions’ certificate was not issued by a commercial authority as contemplated by the conditions of the Invitation to Tender (ITT). 

“Careful consideration of the Applicant’s purported Free Sale Certificate will reveal that it was in fact issued by Nutribio to certify that they are the manufacturer’s of the infant formula, Lobebe,” she said.  

She explained that the purpose of a free sale certificate is to seek assurance from a commercial authority that goods are legally sold and distributed in the open market; freely without any restrictions and approved by the regulatory authority in the country of origin. 

“It follows therefore that the manufacturer cannot operate as both a service provider and regulatory and competence authority to authenticate its own product.  The certificate produced by the applicant is therefore non-complaint with the requirement of the tender,” she said. 

PPADB was represented by Tshiamo Rantao while Odirile Itumeleng stood for Creative Business Solutions. 


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