Pharmaceutical products supplier, Afripharm Investment (Pty) Ltd has lodged an urgent application with the High Court to seek urgent relief attacking and challenging certain conditions in bid documents in relation to a public procurement bid recently advertised by the Central Procurement Board of Namibia (CPBN) for the supply and delivery of pharmaceutical products under procurement reference number G/OIB/CPBN-01/2022.
Afripharm director and sole shareholder, Sara Katiti highlighted in her founding affidavit directed at CPBN, the government, Namibia Medicines Regulatory Council and the Registrar of Medicines as first, second, third and fourth respondents respectively that some conditions in the tender, quite apart from being anti-competitive, are highly unreasonable, unfair, and downright irrational.
They are also inconsistent with the objects of section 2 of the Procurement Act, Katiti further states in her affidavit.
“The conditions were introduced, I submit, simply because the decision-maker (in particular the 3rd Respondent) misconstrued its powers and certain provisions of the Act, i.e., section 18, 19 and 27 of the Medicines Act. On that basis the conditions inhibit and makes it absolutely difficult for the Applicant, a Namibian fast-growing company in the pharmaceutical industry to submit its bids,” Katiti highlights further stating that such conditions provide that the products that may be tendered for in the bid by prospective bidders must be registered with the 3rd Respondent, and if not registered a letter of authorisation by the 3rd Respondent to supply unregistered products at the time of bidding in respect of each product must be obtained.
Business Express understands that the bid to the procurement of supply and delivery of certain pharmaceutical products in favour of the Ministry of Health and Social Services. The bid contract is for a period of two (2) years with an option to extend for 12 months.
In furthering her argument, Katiti notes that Afripharm intends to tender for about 200 pharmaceutical products…..The application that the Afripharm is being forced to submit in cases where there is no existing dossier would cost the it N$16,250-00 per product and as Afripharm intends to bid for 200 items the whole application process will cost the Applicant an amount of N$3,250,000-00, further notes Katiti adding that this is deeply unreasonably and inhibitive.
“These conditions were also never spelled out in the advertisement for the bids. It is in any event; given the number of products and the complex nature of the application and dossier, humanly impossible to submit such application within the stated time available without offending and breaching the deadline for submission of bids.
“The conditions referred to are also unlawful on the basis that the guidelines introduced by the first Respondent during June 2021, which as far as timing is concerned, made it a requirement for bidders bidding for products that are not registered to seek and obtain such authorisation already at the bidding process and at which time-the bidder is not undertaking the actual sale of products.
“For context I need to clarify the following: Submitting a bid does not result in any procurement contract at all. The procurement contract will follow after notification in terms of section 55 of the Procurement Act, read with the bid documents from page 45 to 59. In other words, unless and until a bidder is selected there would not be any procurement contractual relationship between the 1si Respondent and such a bidder. And such a bidder, in context, is not a seller or is it a contractor as referred to in the bid documents,” further read the Affidavit in part.
In response, CPBN in their Heads of Argument highlight that the application should be dismissed and further lacks urgency.
“The application was served on the first respondent on Tuesday, 14 June 2022 and it was set down for hearing on Wednesday 22 June 2022. The applicant attacks and challenges issues which are importance to the respondents and the public at large, namely medicine, therefore the applicant should not be allowed to jump the queue without complying with the requirements of urgency,” read part of the argument adding that the requirements to be complied by an applicant who approaches the Court on urgent basis are set out in Rule 73(4) of the Rules of the High Court.
“It is submitted that the applicant failed to meet the requirements set out in Rule 73(4) of the Rules of the High Court. In the circumstances the application stands to be dismissed with cost.
“It is submitted that no single explanation is given why the application is brought on less than 14 days before the closing date for the bids, nor is there any explanation why applicant had to wait for more than one month from the date it was furnished with the tender documents to bring the application on less than three days’ notice to the respondents. The first respondent is a body, therefore it must meet, consider the application, take advice from Counsel, put up papers to be in time to adequately prepare its defence. These circumstances cannot justify depriving the first respondent from being afforded a fair and adequate opportunity to respond. These concerns are reasons why the applicant has to comply with Rule 73(4),” further notes the argument.
Conclusively, CPBN notes that relying on what is set out in the first respondent’s Answering Affidavit and the heads of argument, the application stands to be struck from the roll for lack of urgency. The reason is that the applicant failed to explicitly satisfy the requirements of urgency set out in Rule 73(4).
“In the event that the Honourable Court does not strike the application as prayed for hereinbefore, we pray that the application be dismissed on the bases of the issues raised on the merits. We further pray that the applicant be ordered to pay the costs of this application, including the cost of one instructing and one instructed counsel.”