The Supreme Court will next Wednesday begin hearing the case brought by the International Pharmaceutical Agency Guyana Ltd (IPA) challenging the prequalification process to supply drugs for the health sector as unconstitutional and seeking to have the decision to select the New GPC as the lone supplier set aside.
The company, through its attorney, recently filed a motion in the High Court against the Attorney General, saying the decision or recommendation made by the National Procurement and Tender Administration Board (NPTAB) that it does not meet the criteria to supply drugs to government for 2014 to 2016 is unfair, unreasonable, unconstitutional, unlawful, and null, void and of no legal effect.
Among the orders it is seeking is a declaration that the revised evaluation criteria for prequalification for the supply and delivery of pharmaceutical drugs and medical supplies for the period 2014 to 2016 are so heavily and obviously weighted in favour of a particular local supplier that it renders the prequalification process unfair and unreasonable and deprives the IPA of equality before the law or equal protection and benefit of the law and of the full and equal enjoyments of all rights and freedoms, in contravention of Article 149 (D) of the Constitution and is therefore null, void and of no legal effect.
According to the company’s filings, it wants the Supreme Court to declare the revised evaluation criteria unlawful as they are inconsistent with Articles 149 and 149D of the constitution and also violates Article 8.
The company is also asking that an order be made setting aside the recommendation by NPTAB that only the New GPC was prequalified. It is also asking that a conservatory order be made suspending or staying the recommendation of NPTAB.
To support its challenge, the IPA argues that in response to a tender procurement notification it responded on February 18th last and complied with all the requirements and conditions of the advertisement.
IPA states that while Section 6 (6) of the Procurement Act states that companies should be notified on the status of their bid, this was never done and it learned on July 22nd that the New GPC was the lone selectee through an announcement made by the Head of the Presidential Secretariat.
The company says it wrote to the Ministry of Health (MoH) on July 25th and three days later received a reply which informed that the matter was with NPTAB.
Subsequently on July 30th, a letter of protest was dispatched to the MoH protesting the decision that IPA had not met the required criteria. However “the applicant did not receive the courtesy of an acknowledgement of the said letter,” it states.
Prior to the announcement that the New GPC was identified as the sole supplier to pre-qualify, critics had argued that the revised criteria were tailored to favour the company.
The requirements that the supplier must have more than seven years’ experience in supplying the Ministry without any adverse reports and a proven track record in handling contracts over $500 million, it is argued, were clearly intended to benefit the company, while also posing an entry barrier for new suppliers.
Former Auditor General Anand Goolsarran has suggested that the way forward is for the entire prequalification exercise to be set aside and a fresh start made. “Any new proposal developed should result in the creation of a level playing field so as to enjoy the full confidence of all stakeholders and to allay fears of bias,” he wrote in a recent Stabroek News column.
“Transparency, fairness, equity and competitiveness should be the watchwords. Every effort should also be made to avoid the outcome of any prequalification exercise resulting in a monopoly situation. We are all aware of the dangers posed by monopolies,” he added.
