Africa-Press – Namibia. A pharmaceutical company of businessman Shapwa Kanyama has lost a Supreme Court appeal about a disputed tender for the provision of medicines to the Ministry of Health and Social Services at a cost of about N$1.4 billion.
An appeal of Kanyama’s company, Africure Pharmaceuticals Namibia, against a High Court judgement delivered in May last year was dismissed in the Supreme Court on Wednesday.
Acting judge of appeal Dave Smuts, who wrote the Supreme Court’s judgement, ruled in favour of a cross-appeal by the company Cospharm Investments, with the effect that the Central Procurement Board of Namibia’s choice of successful bidders for the supply of pharmaceutical products to the health ministry in August 2023 has now been confirmed as valid.
High Court judge Shafimana Ueitele in May last year reviewed and set aside the board’s decision to select Cospharm Investments to supply pharmaceutical products costing about N$1.3 billion to the health ministry.
Cospharm has been reported to have a minor child as a majority shareholder.
In the board’s first decision on the tender, Africure Pharmaceuticals Namibia was selected to provide pharmaceutical products worth about N$123 million to the health ministry over a two-year contract period.
Cospharm Investments, whose tender bid was disqualified, thereafter successfully asked the Central Procurement Board of Namibia (CPBN) to reconsider its decision.
In August 2023, the CPBN issued a new notice stating it had decided to select Cospharm to supply the ministry with pharmaceutical products costing about N$1.3 billion, while Africure was chosen to supply products valued at about N$45 million.
This was followed by Africure Pharmaceuticals Namibia filing a review application in the High Court against the CPBN’s decision.
In his judgement, Ueitele said the Public Procurement Act states that an unsuccessful bidder in a tender process may apply within seven days after receiving a notice of the CPBN’s decision on a tender award to the board to reconsider its selection of a successful bid.
The act also states that the CPBN must within seven days after it received an application to reconsider a tender award notify the objecting bidder of its decision.
Although the CPBN made a decision on Cospharm’s reconsideration application within seven days, more than three weeks passed before it informed Cospharm that its application succeeded.
Ueitele found that the CPBN’s failure to notify Africure and also other bidders within seven days of its decision on the reconsideration applications it received was fatal and resulted in the CPBN’s subsequent selection of successful bidders being a nullity.
Africure appealed against Ueitele’s judgement, arguing that he should have directed the CPBN to award the tender as was initially decided by the board, before Cospharm asked for its decision to be reconsidered.
In the Supreme Court’s judgement, Smuts noted that the pharmaceutical products removed from Africure’s initial tender award when the CPBN’s first decision was reconsidered were priced about N$4.8 million lower in Cospharm’s bid.
The Public Procurement Act sets out integrity, accountability, transparency and also the principle of accepting the lowest responsive bid, ensuring that state resources are best employed in the public interest, as fundamental objectives of the act, Smuts said.
The CPBN’s failure to inform Cospharm within seven days that its application for the tender award to be reconsidered was successful, did not result in the board’s decision being a nullity, Smuts said.
He stated: “In the process of reconsideration, the board had corrected a disqualification and a considerable saving was achieved by selecting Cospharm’s bid instead of the higher-priced bid by Africure of those items. The statutory objective of selecting the lowest responsive price for those items was in the process achieved as well as the objects of fair dealing with Cospharm’s timeous and justified complaint having been addressed.”
Smuts also remarked: “It would counter the objects of the act for Africure’s more expensive bid to be selected on such technical grounds.”
Appeal judge Hosea Angula and acting judge of appeal Theo Frank agreed with Smuts’ decision.
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