The Ministry of Health has been ordered to restart the evaluation of a critical E400 million tender for the supply of surgical dressings and sutures after the Independent Review Committee (IRC) ruled in favour of Top EMS Healthcare, a local supplier that challenged its exclusion.
The IRC is a body established by the Eswatini Public Procurement Regulatory Agency (ESPPRA) to resolve disputes arising from public procurement processes.
| Eswatini Observer WhatsApp Channel
According to Section 50 of the Public Procurement Act No. 7 of 2011, the agency is required to constitute a Standing Review Panel comprising individuals with high integrity and experience in public procurement or related fields.
When a dispute arises, ESPPRA appoints three members from this panel to form the IRC, which then investigates and makes binding decisions on the matter. This process is to ensure fairness, transparency and accountability in public procurement.
Sitting in Mbabane last week, the IRC set aside the ministry’s decision to disqualify the company from Tender No. 1 of 2025/2026, which covers a 22-month supply of critical medical consumables used daily in surgical theatres across the country.
The ruling, described by procurement insiders as “unprecedented”, comes amid a crippling shortage of medicines and hospital supplies in the country.
The E400 million tender had already gone through evaluation, with the ministry notifying suppliers of its intention to award contracts earlier this year.
However, the process was frozen by ESPPRA after Top EMS lodged a formal complaint, arguing that its disqualification was both unfair and inconsistent with the treatment of other bidders.
Contended
The Matsapha-based company contended that it was penalised for listing more than one manufacturer for certain products, while other firms that had done the same were allowed to proceed.
Following an unsuccessful attempt to resolve the matter with the ministry’s controlling officer, Khanya Mabuza, Top EMS escalated the complaint under the Public Procurement Act No. 7 of 2011, which permits aggrieved bidders to seek review before the IRC.
Top EMS said the ministry had shifted the goalposts. It explained that in previous tenders, including one in 2023 for blood transfusion and laboratory supplies, it had submitted bids naming multiple manufacturers and was awarded contracts.
To suddenly treat the same practice as disqualifying, it argued, was arbitrary.
The company also produced examples from the very tender in question, where rival bidders had listed more than one manufacturer and yet were advanced.
If those bids were accepted, it contended, its own should not have been rejected on identical grounds.
Top EMS further complained of unequal treatment in relation to mandatory documents. It alleged that while some bidders were allowed to supply missing tender security forms after the deadline, it was denied the same opportunity.
Such inconsistency, it argued, amounted to discrimination and a breach of fair process.
To strengthen its case, the supplier cited the Interpretation Act of 1970, which provides that singular terms in law include the plural unless expressly excluded. On that basis, it argued, the word “manufacturer” in the tender should not be read as barring more than one.
It went further, suggesting that listing several manufacturers was not a defect, but a safeguard. Multiple sources, it said, ensured continuity of supply if one manufacturer experienced shortages. This, Top EMS argued, promoted value for money and supported national health security.
“Deviation from fair process amounts to corruption,” the company submitted, insisting its exclusion undermined fairness and accountability.
Pointed
In response, the ministry dismissed the claims, insisting that the procurement process had been competitive, fair and compliant with the law.
The ministry pointed to the Tender Data Sheet and Article 1(b), which it said made clear that bidders were required to nominate one manufacturer per line item.
This, the ministry contended, was essential for transparency, allowing evaluators to compare like with like. Permitting multiple manufacturers, it said, created uncertainty about which products would ultimately be delivered and complicated both price and quality assessments.
The ministry also reminded the Committee that Top EMS had previously been cautioned, during Re-Tender No. 10 of 2023/2024, against submitting bids with multiple manufacturers. By persisting, it said, the company was “the architect of its own misfortune.”
It added that procurement law gave the procuring entity discretion to reject non-compliant bids, and since Top EMS had failed to meet a mandatory requirement, its exclusion was justified.
IRC ruling
After weeks of hearings and a detailed review of documents, the IRC issued a 50-page ruling that dissected the competing arguments.
The Committee was clear that the ministry had not applied its rules consistently. It noted that Top EMS had been excluded for listing multiple manufacturers, yet other bidders who did the same were advanced.
Similarly, while tender documents stated that failure to submit a tender security would result in automatic rejection, some firms were allowed to provide the security after the deadline.
“It is, therefore, not logical that the procuring entity may now turn around and say the tender security was not a material requirement,” the committee observed.
The IRC further highlighted that the supposed prohibition on multiple manufacturers was absent from the “Important Advisory Notes” attached to the tender.
If it were truly a material condition, the committee reasoned, it should have been stated clearly and prominently.
Turning to procurement laws, the committee explained the distinction between material and non-material deviations.
A material deviation, it said, is one that alters a contract’s scope, quality or cost, or gives a bidder an unfair advantage. Non-material deviations, by contrast, are minor variances that do not affect the outcome.
Listing more than one manufacturer, the committee concluded, did not constitute a material deviation on the reason that it neither affected prices nor altered quality, and in fact provided the ministry with more flexibility to secure reliable supply.
The committee also accepted Top EMS’s reliance on the Interpretation Act, highlighting that in Eswatini law the singular generally includes the plural unless expressly excluded.
The use of “manufacturer” in the tender, it ruled, could legitimately encompass more than one.
Evidence that Top EMS had previously been awarded contracts despite submitting multiple manufacturers was also persuasive, the committee added.
Citing Section 38 of the Public Procurement Act, the IRC said public procurement must uphold fairness, accountability and value for money and on that account said the ministry failed to meet this standard by selectively enforcing its rules.
“The tender evaluation process was inconsistent, hence the decision based on this evaluation report does not meet the test of fairness as required by the Procurement Act No. 7 of 2011 read together with the Public Procurement Regulations of 2020,” the ruling stated.
The committee, therefore, set aside the ministry’s rejection of Top EMS, ordered a re-evaluation of all bids in Tender No. 1 of 2025/2026, and directed that the exercise be conducted by an independent procurement and supply chain specialist rather than the original evaluation team.
Eswatini Observer Press Reader | View Here
