The Zambia Public Procurement Authority (ZPPA) says it gave a “No Objection” to ZAMMSA’s request to deviate from Section 39 of the procurement Act and allow non-citizen companies to take part in the tender for supply of drugs because there was lack of citizen bidders who were capable of satisfying the need to deliver emergency drugs.
And ZPPA says ZAMMSA informed them that there were almost nil drugs in all the hospitals in the country, hence the decision to allow them to shorten the tender process for the supply of emergency drugs.
Meanwhile, ZPPA says following appeals made by P and G pharmaceuticals and Mbanyane Pharmaceuticals Ltd against the Zambia Medicines and Medical Supplies Agency (ZAMMSA), the tender process for the supply of emergency drugs has been suspended to pave way for hearing into the concerns.
Responding to a series of News Diggers editorial comments published last week, ZPPA Director General Idah Chella outlined the reasons why the Authority allowed ZAMMSA to deviate from the provisions of Section 39 of the Public Procurement Act on conditions, stressing that the grounds given by ZAMMSA were sufficient.
“On 27th October, 2021, the Zambia Medicines and Medical Supplies Agency (ZAMMSA) wrote to ZPPA requesting to deviate from citizen bidder participation requirement and to reduce the floatation period from four (4) weeks to seven (7) days citing low stock of key health commodities resulting in service disruption throughout the health facilities in the country. ZAMMSA stated that the status of commonly procured medicines and medical supplies was at an alarming low level with almost nil stock in all health institutions in the country, which had negatively impacted the delivery of health care in the country.
ZAMMSA explained that it deemed it necessary to procure emergency essential medicines and medical supplies as there was a critical stock situation of health commodities which called for wide supply availability with quick and resolute action,” Chella stated.
“The aforementioned request for a deviation which was regarding Section 39 of the Public Procurement Act No.8 of 2020 (PPA), was to allow for local bidders in addition to citizen bidders, to compete in the tender for supply of drugs. Further, ZAMMSA explained that the request was warranted by the lack of citizen bidders who were capable of satisfying the need.”
She said ZPPA objected to the initial request from ZAMMSA to reduce the best bidder notification period from 10 days to 24 hours.
“On 14th December, 2021, ZAMMSA requested for a ‘No Objection’ to reduce the best evaluated bidder notification period to 24 hours from ten (10) working days. The justification that ZAMMSA provided was the emergency tender, limited time and critical stock situation of health commodities. Further, on 17th December 2021 ZPPA rejected the request from ZAMMSA to waiver the notice of the best evaluated bidder period from 10 (ten) days to 24 hours. ZAMMSA was advised to ensure effective procurement planning and selection of effective procurement methods to meet requirements. On 20th December, 2021, ZAMMSA wrote to ZPPA justifying why they needed the waiver for the notice of the best evaluated bidder from 10 working days to 24 hours based,” she said.
She said ZAMMSA told ZPPA that to ensure commodity security, the Agency conducted a due diligence to ascertain physical availability of the commodities and the findings indicated availability of ex-stock, although bidders were quick to indicate that available stocks would quickly surge downwards as they had continued selling since no formal orders were made.
“ZPPA responded to ZAMMSA by granting five (5) working days instead of one (1) in order to uphold the fundamental principles of public procurement as well as respond to the emergency situation in accordance with section 79 of the PPA and Regulation 152 of the Public Procurement Regulation (PPR) which provides for waiving of provisions of the PPA where circumstances justify. Section 79 (a) of the Public Procurement Act No. 8 of 2020 states that: ‘The Authority may, in a prescribed manner and form permit a procuring entity, to deviate from the use of a public procurement method, rule, process, or document’,” she stated.
Chella further disclosed that at least two citizen bidders appealed against the decision by ZAMMSA.
“On 31st December, 2021, P and G Pharmaceuticals appealed against ZAMMSA’s decision to reduce the floatation period and change the procurement method from open bidding to limited bidding. On 5th January 2022, P and G pharmaceuticals further appealed to ZPPA against the decision by ZAMMSA to award the tender for supply of drugs to a local bidder contrary to Section 39 (3) of the PPA. The Authority observed that the requirement in section 39 (3) of the PPA for local bidders who are awarded the contract to partner with citizen bidders was not stated in the Solicitation Document. Appeal ground No. 2 was therefore, upheld in part in respect of the omission of the requirement for local bidders who are awarded the contract, to partner with citizen bidders in the Solicitation Document issued for the tender. The Authority was unable to grant the remedy sought for the cancellation of the tender as the requirement for partnering of local bidders with citizen bidders applies to a local bidder who is awarded a contract. Therefore, ZAMMSA was advised to ensure that the award of the tender was in line with section 39 (3) of the PPA,” she stated.
Further, following the receipt of two appeals from P and G pharmaceuticals and Mbanyane Pharmaceuticals Ltd ( which raised the same issues in its appeal to ZPPA), the tender process, had to be suspended until the conclusion of the Appeal in line with section 84(4) (a) of the PPA,” stated Chella.
“Section 39 of the PPA provides for a two-tier procurement process, where the tender is first limited to citizen bidders and in the absence of successful citizen bids to local bidders. Following a review of the application by ZAMMSA, it was the considered view of the Authority that the application met the criteria in section 79 (a) of the PPA warranting a deviation, as it would have been impractical and impossible to meet the emergency need disclosed by ZAMMSA within the shortest possible time in the event that the first tier of the tender process with citizen bidders failed thereby requiring a retender to local bidders. It was therefore considered justifiable to run one tender process allowing participation of both citizen and local bidders in order to increase the chances of responsive bids at the earliest possible time to achieve the objective of urgently procuring critical medical supplies to address the emergency situation disclosed by ZAMMSA.”