Kanyama gets his way with N$1,3b pharma tender

A high Court judge has set aside the Central Procurement Board of Namibia’s (CPBN) choice of the company Cospharm Investments to supply pharmaceutical products to the Ministry of Health and Social Services at a cost of about N$1,3 billion.

This was a victory for businessman Shapwa Kanyama since he filed a review application to have the tender award set aside.

Judge Shafimana Ueitele reviewed and set aside the CPBN’s decision, after it selected Cospharm Investments in August last year to supply pharmaceutical products to the health ministry, in a judgement delivered in the Windhoek High Court on Friday.

Cospharm has been reported to have a minor child as a majority shareholder.

Ueitele reviewed and set aside decisions of the CPBN in May last year to reconsider its previous decision on a N$1,4 billion tender for the supply of pharmaceutical products to the health ministry. The judge also reviewed and set aside a decision of the CPBN in August last year, when it chose to award the tender to other bidders than those initially selected.

The company, Africure Pharmaceuticals Namibia, owned by Kanyama, filed a review application in the High Court after its initial tender award was changed and substantially reduced by the board when it reconsidered its earlier decision.

In the board’s first decision on the tender, Africure 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 asked the CPBN to reconsider its decision.

In August last year, the board 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.

After Africure filed an urgent application against the CPBN and other bidders involved in the tender process, the High Court ordered in October last year that the board should not proceed with the implementation of the tender award until Africure’s application to have the board’s decisions reviewed has been decided.

Ueitele noted in his judgement that the Public Procurement Act states that an unsuccessful bidder in a tender process may, within seven days after receiving a notice of the CPBN’s decision on a tender award, apply to the board to reconsider its selection of a successful bid.

The act also states that the CPBN must, within seven days after receiving an application to reconsider a tender award, notify the objecting bidder of its decision.

Cospharm’s reconsideration application to the CPBN was dated 2 May 2023. More than three weeks passed before the CPBN informed Cospharm and other bidders on 26 May that its application succeeded.

In August, the CPBN announced its new selection of successful bidders in respect of the tender.

Ueitele said in his judgement: “If one has regard to the legislative framework there is one thread that runs through it and the thread is that time is of the essence.”

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.

Ueitele also found that the CPBN should have informed all bidders about the reconsideration applications it received, so that they could have an opportunity to be heard before a decision that would affect their rights was taken by the board.

Africure asked the court to also make an order directing the CPBN to award the pharmaceutical supply contracts to the successful bidders first selected in April last year.

However, Ueitele found that Africure did not place before him exceptional circumstances that would require the court to make a decision on a tender award that should be the CPBN’s responsibility to make.

Africure was represented by legal counsel Natasha Bassingthwaighte, assisted by Ronald Ketjijere.

Senior counsel Andrew Corbett, assisted by Lovisa Ihalwa, represented Cospharm, while Thabang Phatela represented the CPBN and minister of health and social services.