The Western Cape Department of Health has began a court-mandated fresh tender process to procure a surgical microscope for Tygerberg Hospital after a court declared the previous purchase as unlawful. Picture: David Ritchie
THE provincial Department of Health has reissued a tender to buy a neurosurgical microscope after the Western Cape High Court rapped it over the knuckles for paying R9.9 million to purchase one in an uncompetitive bid.
A decision by the department to buy a microscope for Tygerberg Hospital from Carl Zeiss in 2020 was taken on judicial review by Intamarket Medical Technologies.
Intamarket claimed bias on the part of the department for buying the microscope in an uncompetitive bidding process after Tygerberg used their device, on loan for two months, in early 2020. The hospital requested a quote for a new microscope a month later, only to be informed in July that one had already been purchased from Zeiss at a more expensive price than theirs.
This procurement process was flagged in the recently released Special Investigation Unit’s (SIU) personal protection equipment procurement report. While the report said they found no evidence that buying the microscope was not-cost-efficient, they submitted their own recommendations to the department to guard against exposing their supply chain management process to being hauled before the courts for reviews.
Judge Patricia Goliath ruled in Intamarket’s favour in May when she found that the reasons the department listed for buying Zeiss microscopes without exploring what else was on the market were flawed and unlawful.
The department in its defence had claimed that Tygerberg used, in the exception of two donated microscopes, ones that were manufactured by Zeiss and that being a teaching hospital, this served in ensuring continuity.
But Goliath shot down this explanation and other explanations brought forward by the department as to why it failed to open the bidding process.
“(Intamarket) correctly pointed out that the only plausible basis offered by the department that could potentially fall within the sole-supplier exception to competitive bidding is the assertion that there are no directly comparable microscopes available on the market,” read the judgement.
Goliath conceded that setting aside the Zeiss contract pending the outcome of the new tender process would compromise patient care as declared by the department. Goliath then ordered the department to conduct a new competitive bidding process within two months of her fulling, a process that must be concluded five months after it began. However this process was delayed by Zeiss launching a leave to appeal application which was denied in October, which leaves the department until May to choose a new service provider.
The department’s spokesperson Mark van der Heever said it was in compliance with the court order and that there were existing internal processes to ensure compliance and quality control.
Intermarket chief executive Garry Wachsberger told Weekend Argus that they intended to bid in this new tender process.
body.copy...: Goliath’s ruling further stated that if the department decides to buy the microscope elsewhere, the earlier contract would be set aside and Zeiss’ machine returned. Zeiss would have to refund a portion of the R9.9m. But if Zeiss is awarded the contract, it would remain intact.
body.copy...: Attempts to reach Zeiss for comment were unsuccessful by time of print.