In an urgent application, businessman Shapwa Kanyama has challenged the decision of the Ministry of Finance and Public Enterprises’ review panel to award a N$1,3-billion pharmaceutical supply contract to Cospharm Investments, who has a five-year-old as a 51% shareholder.
The application was submitted to the High Court on Friday.
Cospharm is 51% owned by a five-year-old, and the child’s Zimbabwean-born father, Cosmas Mukaratirwa, holds 49% of the shares.
Last week, the High Court temporarily halted the tender-awarding process, pending the outcome of the review panel’s decision.
Kanyama, through his company Africure Pharmaceutical Namibia and another entity Erongomed Health Distributors, owned by Dr Vikramkumar Naik, had previously appealed to the review panel, claiming irregularities in the awarding of the tender.
However, the review panel dismissed his application on 28 August.
By the time the court revealed its decision on 15 September, the panel had already ruled in favour of awarding the tender to Cospharm.
The court found that the Central Procurement Board of Namibia (CPBN) had acted unlawfully by awarding tenders while a review was pending.
Cospharm was disqualified from the tender on 23 April for failing to initial next to an overwritten mistake in its bid, and for not responding to the CPBN’s queries.
After applying for reconsideration, the CPBN found merit in Cospharm’s bid, as it was the lowest-cost option.
This decision affected other bidders who had initially been allocated the same products, but had offered higher prices than Cospharm.
Kanyama argues that the CPBN acted unlawfully by issuing letters of issuance to other bidders on 16 August, while a review application was pending.
He claims the affected bidders were not given an opportunity for representation during Cospharm’s reconsideration.
According to his application, the CPBN has acted unlawfully because it distributed a letter of issuance to other bidders on 16 August.
The letter calls for bidders to provisionally agree to performance guarantees and sign procurement contracts within 30 days.
Kanyama argues that the affected bidders were not given an opportunity for representation when Cospharm was reconsidered for the tender.
He claims the reconsideration took place in secrecy without notifying the other bidders affected by this decision.
In his second ground for review, Kanyama requests the nullification of the seven-day standstill period communicated to bidders in the first round.
He argues that the CPBN’s decision occurred outside the prescribed seven-day standstill period because Cospharm had filed a review application after the period had elapsed, but received a favourable determination from the CPBN.
Kanyama’s third ground for review highlights the CPBN’s apparent disregard for its own order regarding a review application by Supremo Pharmaceutical Pty Ltd.
This review application challenged the initial notice of selection for the award.
Kanyama contends that the CPBN’s order should remain in force until reviewed and set aside by a competent court or tribunal, as confirmed by the review panel.
In a previous interview, Mukaratirwa’s lawyer, Matilda Jankie-Shakwa, asked whether there was any limitation on the age of a shareholder in terms of the Companies Act.
“The shareholder is just an investor who invests in a company which does business. It’s not the person who runs the business or even makes the decisions.
“Any company will have a board of directors which makes decisions,” she said at the time.
In a previous interview, CPBN spokesperson Johanna Kambala confirmed that the company was initially not selected for the tender, as the bidder was disqualified from the evaluation process for failing to initial a correction.
She said the bidder applied for reconsideration and the board found that the reconsideration application had merits, as the bidding document makes provision for bidders to either type or write their bids and any other document included in the bid.
“As a result of these findings, the board directed the bid evaluation committee to re-evaluate Cospharm’s bid by taking into consideration the typed bid form, which was included in their bid.
“It transpired that Cospharm bid the cheapest in certain line items, and thus a reallocation of awarded products had to take place, affecting the bidders who were initially allocated those products, but who had offered more expensive prices than those of Cospharm,” said Kambala.
