Firm seeks court’s help to save Sh1b drug tender

A pharmaceutical company has gone to court to defend a government tender award worth USD10 million for HIV/AIDs antiretroviral drugs, Tuberculosis and Malaria.

Simba Pharmaceuticals Limited on Tuesday sued the Public Procurement Administrative Review Board, the Kenya Medical Supplies Authority (Kemsa) and Questa Care limited.

According to Simba, it had been initially awarded by Kemsa the disputed tender which amounts to Sh1 billion but on April 3, PPRB cancelled the award and ordered a re-evaluation of bids by the two firms within two weeks.

Questa had challenged the award to Simba claiming that they had been wrongfully denied the tender yet it is a local manufacturer of antiretroviral medicines.

Questa had insisted before the Review Board that it was entitled to be awarded against its tender price of USD10, 500,007 which is a maximum margin of 15 per cent and not the 10 per cent one awarded by the procuring entity, Kemsa.

But Simba now argues that Questa is not a manufacturer of the drugs because its business only involves packaging, storage as well as labelling of finished HIV/AIDs, TB and Malaria drugs from another company which is based in India called Mylan Lab limited.

In their case documents, Simba argues that during the hearing before the review Board, a witness who testified on behalf of Quest had clearly specified what the firm is engaged in as packaging while actual manufacturing is conducted overseas.

Through lawyer Waweru Gatonye, Simba has faulted the Review board of failing to consider the constitutional requirement of promoting local industries and instead gave undue consideration to the technical term of manufacturer.

He claimed that Simba was awarded since it was the lowest bidder at Sh1 billion hence the cancellation of the award is unreasonable on their part.

He further claimed that the total difference between what the two disputing firms quoted was USD375,000.25 (about Sh38, 625,000 at the exchange rate of Sh103 to the dollar).

“Going by the PPRB’s decision, it is now likely that the tender will have to be awarded to Questa and that would mean that Kemsa as well as taxpayers will suffer a loss of Sh38, 625,000, unless stopped Kemsa will be left with no option but to comply with that impugned decision,” Mr Gitonye said.

The company now wants the decision by the review board to cancel its award quashed and that Kemsa be stopped from carrying out re-evaluation of the two firms’ financial bids.

Simba also wants Kemsa stopped from applying the rule of 15 percent margin of preference against the price tendered by them in the disputed tender.

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