A local pharmaceutical company yesterday lodged an urgent application in the Windhoek High Court, where it is challenging certain bid conditions in a lucrative tender to supply medicine to government.
Afripharm Investment director Sara Katiti, who is the sole director of the company, said the impugned conditions would make it practically impossible for her company to submit a worthwhile bid.
The conditions she challenged are that the medicines to be provided must be registered with the Namibia Medicines Regulatory Council (NMRC) –and if not, an authorisation letter for the supply of unregistered medicine must be obtained in respect of each product bidding at the time of bidding.
According to Katiti, the conditions, quite apart from being anti-competitive, are highly unreasonable, unfair and downright irrational.
They are also inconsistent with the Procurement Act, she argued, adding that they were simply introduced because the decision-maker (NMRC) misconstrued its powers and certain provisions of the Medicines Act.
On that basis, she said, it will make it difficult for her as a fast-growing Namibian company in the pharmaceutical field to compete.
“The Namibian pharmaceutical industry and capacity have not grown over the years due to anti-competitive practices and various inhibitive tendering procedures and conditions,” she said.
Katiti said she intends to bid for about 200 of the products listed in the tender document and if the conditions are allowed to remain, her company will incur costs of about N$3.25 million to register all the products she wishes to tender for.
This, she said, is deeply unreasonable and inhibitive.
According to her, the medicines she wishes to provide are of high quality and sourced from countries like the United Kingdom, Germany, Netherlands and Hungary.
In any case, Katiti argued, in case there is a successful bidder, such a bidder has 12 working weeks to supply the medicine, which would be sufficient to either register the medicines or apply for authorisation to supply such unregistered medicine.
Also, Katiti said, there is an even more serious problem with the conditions in that they contradict another part of the bid documents, including a section dealing with general conditions of the contract, which states: “If required under the applicable law, goods supplied under the contract shall be registered for use in Namibia. The purchaser (government) undertakes to cooperate with the supplier to facilitate the registration of the goods for use in Namibia. The impugned condition would thus negate government as the end-user of the products to cooperate with the successful bidder to facilitate registration of the goods in Namibia”.
“Given the afore-stated, there is thus a material contradiction in material and important parts of the bid documents – and on that basis, the two conditions should be declared unlawful and invalid,” Katiti stated.
She asked the court to grant her costs.
She is represented by Sisa Namandje.
Acting Judge Doris Hans-Kaumbi reserved judgement until this Friday.
The Central Procurement Board of Namibia, the government of Namibia, the Namibia Medicines Regulatory Council and the Registrar of Medicines were cited as respondents, and they all opposed the application.
According to NMRC, who deposed an affidavit, the application is not urgent and should not be considered at all.
According to them, the applicant can be afforded due redress in a formal application in due course.
The NMRC was represented by Elias Nekwaya on instructions from the government attorney, and the government and the registrar by Sackey Akweenda also on instructions from the government attorney.