Smithkline Beecham Biologic... - Human Rights Commission of Sri ...

Smithkline Beecham Biologicals, S.A. And Another V. State Pharmaceu... file:///C:/Documents and Settings/kapilan/My Documents/Google Talk ...
Admittedly, where the specifications or conditions offered conform substantially to those in the tender documents and
vary in only minor details, a Tender Board is not precluded from accepting a Tender: See F. R. 697 (6) (b).
Considering the broad policy of the condition and the critical and substantial nature of the mischief to which it is
directed. namely, assurance of the quality of the product, I am of the
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view that the requirement of registration was mandatory and could not be treated as a mere formality or technicality,
or minor detail that could have been waived or ignored either by the Technical Evaluation Committee or by the
Tender Board. The necessary consequence of a failure to comply with the condition relating to registration is the
rejection of the tender. (See F.R. 697 (6) and Guidelines, Part 1, clause 134).
If a Tender Board recommends a deviation of a non-critical nature from the tender conditions, the reasons for such
deviation should be recorded clearly on the minutes of the proceedings. (Guidelines, Part 1, clause 133.) There is
no record of the Tender Board having regarded registration as being a matter of a non-critical nature. The Tender
Board does not recommend a deviation at all: On the other hand, it proceeds on the basis that registration is
essential.
In paragraph 14 (i) of his affidavit, the Chairman of the Board states that the decision was made "... in accordance
with the relevant tender conditions and regulations taking into consideration all relevant matters including the price
quoted, the past performance, quality of samples, delivery offered and product registration." He was repeating the
criteria set out in clause 29 (1) of the tender document which we have set out above. Whatever the alleged "past
practice" may have been, there is no doubt that as far as this tender was concerned, registration was necessary,
and therefore, the Tender Board, quite properly took that into account.
The Chairman of the Tender Board states in paragraph 14 (i) of his affidavit dated the 5th of March 1997 that the
Tender Board took past performance and quality of samples into account in arriving at its decision to award the
contract for the supply of Rubella vaccine to Biocine S.P.A. The Technical Evaluation Committee does not in its
report that samples were received from all the tenderers, but it states nothing with regard to their quality. Whereas
SmithKline Beecham Biologicals S.A. had supplied that vaccine in the previous year, and had their product registered
at the date of the opening of the tenders, viz. 3rd July 1996, Biocine S.P.A.had neither supplied
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Rubella vaccine earlier, nor was its product registered at the relevant time. The Technical Evaluation Committee in its
report said that the product of SmithKline Beecham Biologicals S.A., were registered, but stated that none of the
other tenderers had registered their products. The Technical Evaluation Committee in its report stated that
SmithKline Beecham Biologicals S.A., had been a previous supplier and in the column "Past Complaints" stated "No
complaints". With regard to the other tenderers, including Biocine S.p.A., the Committee states that they were not
previous suppliers and in the column "Past Complaints" states "Not applicable". The Managing Director of the State
Pharmaceutical Corporation in his note dated the 9th of December 1996, which eventually persuaded the Tender
Board to change its mind, states that "none of the items of Biocine, Italy have been purchased in the past", and
"therefore" suggests that 25% (i.e. 1,125 million doses) be awarded to Biocine, Italy, as "a sample order". The
Cabinet Appointed Tender Board decided to award a contract for supply restricted to 2 million doses to Biocine,
Italy, for the stated reason that it was a "new supplier". In the circumstances, how could the Chairman of the Tender
Board truthfully say that the Tender Board took account either of the past performance and the quality of the product
of Biocine S.P.A.to whom the contract was awarded? The Tender Board was unable to recommend the acceptance
of the Biocine S.P.A. bid. with confidence, and therefore recommends acceptance "on the basis that each
consignment would be suitably tested before despatch to hospitals." The balance quantity of supplies are to be
awarded to Biocine S.P.A." If the supplies of this vaccine are timely and in order and complied with quality assurance
tests.
In his letter dated the 1st of November 1996, the Managing Director refers to the fact that "two companies have
submitted their samples for testing and. reports are awaited." The Cabinet Tender Board at its meeting on 10th
December 1997 found itself, as it says in its minutes, "confronted with the matters mentioned in the note by MD/SPC
to the CATB dated 9.12.1996." Although in his letter dated November 1 1996, the Managing Director of the
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State Pharmaceutical Corporation acknowledged the fact that the three other companies which had quoted were
"unfortunately ... not registered", in his note dated the 9th of December 1996 he stated that "Now the following two
companies have registered: (1) Biocine S.p.A., Italy (2) Serum Institute India," The emphasis is mine.
Although the Managing Director had recommended that 25% (i.e. 1, 125 million doses) be awarded as a sample
order" to Biocine from whom no products had been previously ordered, and that 75% (i.e. 3,375 million does) be
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