Court Ends HIV-Test Kit Procurement Saga

A judge at the Federal High Court dismissed the court case over the procurement of HIV-test kits following the failure of the representative of the plaintiff, Medica Pharma Enterprise Ethiopia, to appear.

The two-year court battle was first filed by Medica Pharma, which accused the Ministry of Health and Pharmaceutical Fund Supply Agency of allegedly excluding it from the procurement process in favour of another company.

The procurement process, the cause of the dispute, began in 2012 when the Pharmaceutical Fund attempted to procure 11 million HIV-test kits thatwere meant to be distributed across the country. According to UNAIDS, the UN Agency focused on HIV AIDS, the prevalence rate of the virus among Ethiopia adults in 2017 was 0.9pc.

The procurement process went through various back-and-forth iterations with disputes and a series of tenders and re-tenders.

The cause of the delay was the attempt at revising the algorithm, a method employed to determine the precision of the kits, which had not been calibrated for almost a decade when Medica Pharma was the sole supplier of the kit. The Ministry had dropped its own endorsed field-tested algorithm three years prior. Yet it went ahead with the procurement process through an international agent, Global Fund.  Meanwhile, the national procurement agency entered the dispute and ordered the cancellation of the procurement process.

Tests conducted to evaluate local conformity of the kits submitted by Medica Pharma showed 91.3pc sensitivity results, short of the World Health Organisation’s requirement of 99pc. Subsequently, Medica Pharma was disqualified from the tender process with an additional remark from the ministry that their offer was at a higher price. When the dispute flared up the Federal Ethics & Anti-Corruption Commission got involved to ensure corrective measures were taken.

By the end of June 2016, Medica Pharma had taken the case to court charging the defendants for allegedly excluding the company from the procurement process. In its charge, the company claimed that the defendants caused damage to the company by awarding the project to another company that supplied ‘‘substandard and unreliable’’ products,” according to the filing records submitted to the court.

“To give the award to another company, they allegedly amended the term of reference twice,” reads Medical Pharma’s charge.

In its civil suit, the plaintiff requested that the court issue an injunction against the procurement and to order the defendants to cease distributing the products. It also requested the court to order the defendants to compensate for losses it incurred. On May 10, 2017 the plaintiff amended its complaints to include Ethiopian Public Health Institute as a co-defendant.

In defence of the charges against them, the defendants argued that the procurement was submitted by Global Fund, not under the ministry or the supply agency. Citing this, the defendants called for the dismissal of the case. During a May 26, 2018 hearing, however, the judge rejected the defence arguments and adjourned the case to July 19, 2018.

During the July 19 session, a lawyer of the defendant, Mekonnen Semu, failed to appear in court, marking a second consecutive absence. This led lawyers of the defendant to call for the dismissal of the case, which was subsequently accepted by the judge and the file was closed.

“I am not totally informed about the case, as our lawyer was following the case,” Dawit G. Egziabher, general manager of Medica Pharma told Fortune. “We will search for a way to revive the case.”

The plaintiff can reinstate the case within a month of time of the closure by presenting a convincing reason for their absence in court, according to Liku Worku, a legal practitioner and founder of Abyssinia Law, a website that consolidates Ethiopia’s various legal codes in one platform

“If the court finds the reasoning convincing, the case could be revived,” Liku said, “if not, the case will remain dead forever.”

Medica Pharma had been supplying the test kits for close to a decade until it lost the procurement bids to other suppliers including Beijing Wantai and Premier Medica in the last three years.

Medica Pharma Ethiopia, the sister company of Medica Pharma Enterprises Corp of the United Arab Emirates, was established in January 2003. It has 39 staff comprised of management, administration, diagnostics and other staff in its pharmaceutical and medical division. At the end of last year, the company got back on track by winning the bid to supply 31.5 million HIV test kits to be used over the next three years.

Mekonnen Semu, lawyer of Medica Pharma, did not respond to a phone call and text message inquiries from Fortunebefore the paper went to print.


Published on Aug 18,2018 [ Vol 19 ,No 955]



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