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

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Smithkline Beecham Biologicals, S.A. And Another V. State Pharmaceu... file:///C:/Documents and Settings/kapilan/My Documents/Google Talk ... 6. Srilekha Vidyarthi v. State of U. P. AIR (1991) S.C. 537, 550. 7. F. C .I. v Kamdhenu Cattlefield Industries (1993) 1 S.C.C. 71. 8. Mahabir Auto Stores v. Indian Oil Corporation AIR (1990) S.C. 1031. 9 (a) Vitarelli v Seaton (1959) 359 US 535, 79 S. Ct 968 3 L. Ed. 2d 1012 (1959). 9 (b).Kiriwanthe and Another v Navaratne and Another 1990 3 SLR 11 at 15. 10. Roman Dayaran Shetty v. The International Authority of India and Others AIR (1979) S.C. 1628 11. Barbier v. Connolly 113 U.S. 27 (1885). APPLICATION for relief for infringement of fundamental rights. Shibly Aziz, PC. with Nigel Hatch for the petitioner. Saleem Marsoof, D.S.G. with Shavindra Fernando, acting. S.S.C. for the ?respondent. May 20, 1997. DR. AMERASINGHE, J. Cur. adv. vult. Offers were invited worldwide by the State Pharmaceutical Corporation, on behalf of the Director of Health Services, on the 14th of May 1996, inter alia, for the supply of Rubella Viral Vaccine. The Tender (DHS/27/6/97) closed on 3rd July 1996. The bids were opened on the 3rd of July 1996. Offers were received from (1) Hubut Pharmaceuticals Ltd. of China; (2) Institute of Immunology Croatia; (3) Serum Institute of India; (4) SmithKline Beecham Biologicals S.A. Belgium; (5) Biocine S.p.A. Italy. The offers of (1) Institute of Immunology Croatia; (2) Biocine S.p.A. Italy; (3) Serum Institute of India; and (4) SmithKline Beecham Biologicals S.A., were scheduled and evaluated on the 12th of August 1996 by the Technical Evaluation Committee appointed by the Secretary to the Treasury. The Technical Evaluation Committee reported and recommended that each of the following, namely, The Institute of Immunology Croatia, Biocine S.p.A. Italy and the Serum Institute of India was "not registered, not a past supplier, not acceptable." The Committee stated that SmithKline and Beecham Belgium, was "Acceptable subject to supplying with cold chain monitors and renewal of registration in 1997." It was noted by the Committee that SmithKline Beecham Biologicals S.A. Belgium was (1) a registered (2) previous supplier, and (3) that there were no past complaints with regard to that tenderer. On the matter of specifications, the Committee made the following entry in respect of three of the suppliers, including SmithKline Beecham Biologicals S.A.: "Specs conform except details of cold chain monitors." The State Pharmaceutical Corporation on the 27th of August 1996 sought confirmation that the product Would be supplied with cold chain monitors. Confirmation was made on the 29th of August 1996 by SmithKline Beecham Biologicals S.A. that cold chain monitors would accompany each shipping box. Since it was required of suppliers that the product should be registered under the Cosmetic Devices and Drugs Act, and the registration of the product of SmithKline Beecham Biologicals S.A. was valid only up to the 22nd of March 1996, whereas the product was required to be supplied in January and in May 1977, SmithKline Beecham Biologicals S.A. were required to renew the registration of? 23 their product. Accordingly, the registration was extended for five years from the 23rd of March 1997. The Cabinet Appointed Tender Board (CATB) on the 2nd. of September 1996 recorded the following: 2 of 17 4/19/2011 3:19 PM 22
Smithkline Beecham Biologicals, S.A. And Another V. State Pharmaceu... file:///C:/Documents and Settings/kapilan/My Documents/Google Talk ... "The Tender Board. after considering the T.E.C. recommendation decided to award the tender to SmithKline Beecham - Belgium the fourth lowest tendered for U.S. $ 990,000. The three parties that were lower viz - Messieurs Institute of Immunology Croatia, Biocine Italy and Serum Institute of India are not registered parties. The T.B. noted that SmithKline Beecham is registered up to March 1997." On November 1st 1996, the Managing Director of the State Pharmaceuticals Corporation wrote to Dr. Dudley Dissanayake, Secretary Ministry of Health, Highways & Social Services, the third respondent, with a copy to the Chairman of the State Pharmaceuticals Corporation and Advisor to the Cabinet Appointed Tender Board, the fifth respondent, as follows: "I would like to make the following suggestions with regard to two items due to be taken up at the Cabinet Appointed Tender Board. meeting, today.? , PARACETAMOL TABLETS ....................................... II. RUBELLA VACCINE - This refers to my letter dated 18.9.96 on Rubella Vaccine.. The earlier decision was to award to a particular Company to the value of approximately Rs. 54 Million. However, according to the schedule there were three other companies who had quoted much less, but unfortunately they are not registered. If one of them are (sic.) registered there will be a substantial amount of saving. 24 Therefore we have written to the CDDA asking for the registration status of these three companies. We have been informed that two companies have submitted their samples for testing and reports are awaited. Therefore Tender Board may consider to take this matter up at the next meeting within (sic.) next 2/3 weeks. I spoke to Dr. Samaranayaka - Director - Medical Supplies Division on the above two suggestions. These suggestions are acceptable to him" The Cabinet Appointed Tender Board recorded its decision as follows: "The T.B. recommends the tender of M/S SmithKline Beecham Belgium for 2.5 million doses to be delivered in January 1997 at U.S. $ (illegible) by the lowest acceptable tenderer and registered party. The T.B. considered the letter of M.D. S.P.C. dated 1/11/96. In the course of discussion it became apparent that a delay in placing orders could lead to stocks running out. Therefore M/S Smith Kline Beecham's offer is recommended. The T.B. also noted that there are 2 million more doses to be ordered in 1997. By that time it is hoped that more parties would be registered."????? ' The offers for the supply of the Rubella vaccine, lapsed on 3rd November 1996 upon the expiry of the 120-day period of validity stipulated in Tender Condition (6). In response to a request from the State Pharmaceutical Corporation dated the 12th of November 1996, SmithKline Beecham Biologicals S.A., the Serum Institute of India, and Biocine S.p.A. (the 7th respondent) confirmed the extensions of their offers and bid-bonds on November 14th, November 13th and November 21st 1996, respectively. The State Pharmaceutical Corporation published the "World wide tender results of High Value items from 1.1.96 to 30.9.96" in the Daily News of the 25th of November 1996. Among the 23 items listed, there is the following: Tender No.?? ?Item??? ?? ?Quantity? ?Supplier??? ?Value DHS/26/9/96? ?Rubella ??1.2??????? ? ?SmithKline?? ?USD 256,250 ? ?Vaccine ?million?? ? ? Beecham???? ?SLR 13.43 ?Live ?????? ?vials ???? ?????Biologicals ? million ? ? SA Belgium On the 3rd of December 1996, the Managing Director of the State Pharmaceutical Corporation sent the following "note" to the Cabinet Appointed Tender Board, with a copy to the Chairman of the Corporation: "Further to my letter to the Secretary dated December 2, 1996 and our submission to the Cabinet Appointed Tender Board dated December 5, 1996. Now the following two companies have registered: 3 of 17 4/19/2011 3:19 PM 25
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