EMERGENCY PROCUREMENT OF MEDICAL DRUGS CHALLENGED

MBABANE – Government’s efforts to procure emergency drugs and medical supplies is meeting intense resistance from a supplier, who holds a valid tender for two years.

The decision to take the emergency route was conceived after Cabinet appointed a sub-committee to work out a strategy to alleviate the acute shortage of drugs and medical supplies in public hospitals. Cerium Scientific, whose Managing Director is businesswoman Zinhle Matsebula, has threatened to take legal action, if government continues to ignore its contractual obligation to procure the medical supplies through her company.

Warning

Matsebula has since written two letters to government, warning that her company does not take kindly to the issuance of a new order for emergency medical supplies. The letter addressed to the Principal Secretary (PS) in the Ministry of Health Khanya Mabuza, states that government, through the Ministry of Health and an Eswatini-based company – Asavela Investments (Pty) Ltd t/a Cerium Scientific, had a valid tender for the supply of the pharmaceuticals and medical supplies.

Matsebula said her company was awarded the tender for the supply and delivery of medical supplies, surgical dressings and sutures under Tender Reference No.10 of 2023/24. “It has come to the attention of the company (Cerium) that an ‘emergency procurement of pharmaceuticals and medical supplies’ process was initiated on November 23, 2023, at the instance of the ministry, and a ‘distribution list’ of members was appointed on December 5, 2023 to evaluate the appointment of suppliers for ‘emergency orders’.”

She said the emergency order was initiated, allegedly because of failure by those awarded the tender for the supply and delivery of pharmaceuticals and vaccines, which is Tender No.9 as well as those awarded Tender No.10 for the supply and delivery of medical supplies, surgical dressings and sutures. She said her company had received neither verbal nor written instruction to deliver the products and supplies subject to its bid. Similarly, at no point, did government or the ministry issue any purchase order for delivery by her company, she said.

Communication

“At this stage, the company requires copies of the communication from government and the ministry, including the relevant purchase orders, in terms of which the company was instructed, or by which it was required, to deliver the products and supplies – pursuant to which it either failed, or expressed its inability to perform,” she said.

Cerium further stated that while the procurement of ‘emergency orders’ was the prerogative of government, the company believed that there ought to be compliance with contractual stipulations, as the products and supplies earmarked under the ‘emergency procurement’ comprised of products and supplies, which the company was contractually required to deliver.

Matsebula affirmed that the company had the capacity to deliver the order. She said the company had complied with a provision in the contract with government, which prohibited price variation, including price increment from the quoted amounts in the bid response, for the duration of the tender validity period.

“In the circumstances, any ‘emergency procurement’ appointment, which will be made contrary to the contract, and which will be in excess of the approved pricing by which the company secured appointment – will be impeachable and actionable at the instance of the company. It may be prudent for government and the ministry to exercise caution against further processes, which may potentially undermine the interests of existing suppliers, pending an inquiry of what is raised herein,” Matsebula said.

On December 21, Matsebula wrote a follow-up letter to government, asking for further clarity. She said though she noted the seriousness of the shortage, as stated by the PS in a letter dated December 19, her company was concerned with the ongoing process of ‘emergency procurement’,  being conducted without its participation and involvement, as an entity appointed in terms of the country’s procurement laws. “Crisply put, Cerium is being excluded from supplying items within its scope of delivery, in circumstances where it has capacity to do so,” she said.

Instance

She said it was clear that the ‘emergency procurement’ process was initiated at the instance of the Procurement Unit on November 23, 2023. “In other words, government could only engage with potential suppliers of ‘emergency orders’ after November 23, 2023, when the emergency procurement process was initiated, not before. There is no record of any communication from government to Cerium on any date from November 23, 2023, where an instruction or request to procure was issued. Likewise, Cerium has no record of communication, where it expressed its inability to deliver the ‘emergency orders,” Matsebula wrote to government.

She asked the PS to confirm whether or not the appointment of suppliers had been made under the ‘emergency procurement’ process, in order that Cerium may consider its options and possible remedies. “Cerium has passed a resolution to challenge the ‘emergency procurement’ process, if the requested information is not produced conditional on any appointment made – if this has not already occurred.” She said Cerium was awaiting receipt of the relevant purchase order(s) for urgent delivery, because the company was able to deliver the products earmarked under the ‘emergency order’.

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