Medipark drags CPB to court over ARV-tender

Medipark is seeking an interim interdict to stop dead the further implementation of a decision to supply and deliver Anti-Retroviral Drugs by way of open international bidding.

The company employs only 13 permanent staff members and is based at the coast.

The firm is in the business of delivering medical and pharmaceutical goods to all medical healthcare facilities within the Erongo Region.

The decision to implement an open international bidding process was made by the CPB on the 28th of September 2020.

According to court papers seen by Eagle FM, the supply and delivery are to be made to the ministry of health and social services in terms of Section 30 of the Act.

Medipark has cited Patrick Swartz, chairperson of the CPB, the CPB as a juristic persona and the minister of health, Kalumbi Shangula as the third respondent.

Meanwhile, the Anti-Retroviral drugs are critically and urgently needed to save the lives of over 200 000 Namibians living with HIV and AIDS and whose lives have been saved by the continuous delivery and administering of ARVs by government.

The invitation for bids in this matter was advertised publicly on the 28th of September 2020.

Medipark has argued that the decision to procure the ARVs by international bids was contrary to Section 30 of the Procurement Act.

Medipark’s lawyers have submitted that the Act requires that before an open international bid is utilized, certain requirements and prerequisites must be complied with.

They have also argued that the ministry of health failed to advertise the tender locally to gauge if there were multiple suppliers who could supply the ARVs at competitive prices as required by law.

Medipark is calling for the ministry of health and the CPB to cancel the bid process and readvertise.

The firm relies on Article 18 of the Namibian constitution, submitting that the bidding process is unfair and unreasonable to local entities.

Medipark argues that the bid document, particularly section IV, a special condition of contract on page 63 requires local Namibian suppliers to include Value Added Tax in their quoted prices whereas foreign suppliers are exempted.

In their court papers, Medipark argues that “The object of the Public Procurement Act is to build procurement capacity in Namibia, to promote, facilitate and strengthen measures to implement the empowerment and industrialization policies of the government which includes job creation for Namibian citizens, empowerment of women and youth by creating economic opportunities for them and enhancing their participation in the mainstream economy and to carter for the preferential treatment in the allocation of procurement contracts to Namibian registered entities.”

Swartz has told the court that Medipark brought the application on extremely short notice notwithstanding that the founding affidavit was deposed to on the 9th of November 2020.

CPB has admitted that a majority of those in need of these drugs are poor with no means to privately procure them other than from the government.

However, in their defence against the application brought by Medipark, CPB said they were served with the application on the 9th of December of which the next day, the 10th of December was a public holiday.

The Board said they were given a day’s notice and being a government functionary, it was extremely difficult to get everyone together in order to consult CPB members as well as the ministry of health.

The board said a number of people had also travelled for the holiday.

CPBN says in their papers, they were, therefore, “deprived of an opportunity of giving full and comprehensive instructions to counsel and put up a meaningful defence. Furthermore, it was difficult to have meaningful consultation with counsel in the circumstances.”

Swartz has told the court that as per the advice he got, state-owned enterprises should be given more time than ordinary and private persons because a number of agencies may be involved.

The CPBN has thus pleaded with the court that given these circumstances, they have been denied from the onset, the right to a fair trial as envisaged by Article 12 of the Namibian constitution.

This also includes the right to have all the facilities, including enough time to take instructions and consult lawyers before putting up one’s defence.

CPBN has told the court that any failure by government to timeously make available ARVs would be an unpardonable failure on the part of the government and may result in the loss of lives.

The board has said this international bid for the procurement of ARVs is an indication that supplies are running out.

The CPBN has argued that the international bid was clear for all including Medipark that while international bidders were invited, it by no means excluded local bidders.

After the advert was published, Swartz said that they received a letter from Medipark’s lawyers as well as the ministry of finance only on the 13th of November 2020, a period of more than a month and two weeks from the date that the bid was advertised.

Swartz has told the court that there is no explanation as to why Medipark with its board of directors and management did not take steps already at the end of September 2020 or at least early October.

Swartz said by the time lawyers wrote them a letter challenging the bid, they did not disclose that they were representing Medipark.

He added that the lawyers did not make it plain to them that they would lodge an urgent court application if the bid process was not cancelled and advertised.

When Medipark’s lawyers made it known to CPB that they would challenge the bidding process via an urgent court application, Swartz said they offered to postpone the deadline from 30 November 2020 to the 14th of December.

This, he said was so that concerns could be ironed out and to allow for internal consultation.

Swartz said they told Medipark’s lawyers to lay out their concerns in writing by Tuesday, December the 8th 2020.

He said they wanted to consult with the health ministry first based on these written concerns.

Swartz said, “Regrettably, instead of fully setting out the applicant’s concerns in a comprehensive and articulate manner, the applicant’s legal representatives authored another letter on 3 December 2020 in which they effectively refused to make such representations and instead, and yet unreasonably, sought an undertaking that the second respondent shall not proceed and open the bids on 14 December 2020 pending the provision of proof to our client that indeed section 30 of the Public Procurement Act was complied with before a decision was made to proceed by way of an international bidding process.”

Failure to do this, Medipark threatened to sue the health ministry and the CPB via an urgent court application.

Swartz has indicated that they interpreted this to be a threat from Medipark.

He said they were not under obligation to engage the lawyers since they had not said who they were representing.

As far Swartz is concerned, the application by Medipark was not urgent as they should have approached the court way back in October given the importance of ARVs.

He also lays out that Medipark did not explain this delay of a month.