FS Treasury ‘displayed reckless disregard’ when procuring surgical gowns

The Special Tribunal has found that the Free State treasury department displayed reckless disregard when procuring surgical gowns for the province’s Department of Health.

The Special Investigating Unit (SIU) found that at least 27 out of 30 contractors had supplied inferior quality surgical gowns for the province’s front line staff during the pandemic.

The Special Tribunal ruled on Monday that those contractors were unlawfully and irregularly appointed, in relation to the surgical gowns, and their appointment be declared invalid.

During the investigation phase, the SIU visited a medical depot at Universitas Hospital and found that some of the boxes in which the gowns were delivered were not from any reputable medical supplies manufacturer.

Several of the surgical gowns were damaged and no longer sterile. They were not reinforced in the check and forearm area and some of them were packaged in normal household bags with handwritten labels.

FS Treasury had committed more than R39 million for the procurement of surgical gowns, of which R9.5 million has already been paid to contractors.

The department is now sitting with several unpaid invoices totalling R23.2 million.

Some contractors still haven’t submitted their invoices, but the value of goods supplied is approximately R6.4 million.

Now Judge LT Modiba has ruled the contractors who were found to have delivered poor quality surgical gowns pay back the profits made on the tenders.

The SIU also has to appoint an independent expert to assess the fair value of the gowns supplied, and what they can be used for, and compensated for that amount.

Surgical gowns were never tested for compliance

The report has revealed that while contractors were required to provide samples of the surgical gowns, the department had failed to have the samples independently tested for quality.

According to the investigations, the contractors were appointed under a special provision in the National Instruction which regulates the emergency procurement of PPE.

Therefore none of the contractors who supplied Request For Quotations (RFQ) was registered with the South African Health Products Regulatory Authority or the Medical and Related Substances Act.

The SIU’s report says that none of the bidders submitted a SANS 53795 certificate, which is required to accompany the RFQ. But some of the contractors insist they supplied “individually lodged compliance certificates.”

The individually lodged compliance certificate argument failed to hold up at the Special Tribunal.

“It is not for these respondents to test and approve their samples,” said Judge LT Modiba.

Modiba also found that had the surgical gown samples been properly assessed during the bidding phase, the health department would have found them to be “completely untenable”.

“At the very least, these samples ought to have been presented to the SIU as evidence that the samples complied with the technical specification. This was not done,” said Modiba.

FS Health Department Medical Depot in shambles

Only three of the 30 suppliers contracted delivered surgical gowns that were of acceptable quality.

But the department said it cannot return the supplies because it couldn’t identify who delivered what from large volumes that were delivered at various depots.

Most of the boxes were not marked, making it impossible to identify the bidders. Compounding the problem, most of the bidders had used the same wholesaler.

Modiba said in light of this, making the contractors pay back the full amount would be unfair.

“In light of the Departments’ inability to return the surgical gowns to the respondent entities, the respondent entities should not unduly be prejudiced from the declaration of the invalidity of their appointment.”

The departments of health, finance and contractors were also ordered to pay the cost of the application and two counsel.

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