What does the ruling change about the award and continuity of South Africa’s health-sector ARV contract?
Awards set aside after procurement challenge
The Gauteng Division of the High Court in Pretoria has set aside parts of the Department of Health’s antiretroviral tender, finding the awards unlawful and unconstitutional. Acting Judge Graham Girdwood ordered the department to redo the split and award of the one-month and three-month fixed-dose packs within 120 days. The tender took effect in December 2025 and is worth R15.5-billion in total, including R12.6-billion for those packs. Cipla Medpro Manufacturing and Hetero Drugs South Africa brought the challenge after Cipla received only three smaller awards worth R215-million and Hetero’s bid was not reconsidered.
A tender award has several decision points
The judgment illustrates how a public tender can be challenged at more than the final allocation stage. A Bid Evaluation Committee assesses submissions and recommends awards, while a Bid Adjudication Committee makes the final recommendation based on that work. The court found that Innovata Pharmaceuticals and Viatris Healthcare did not have valid licences for their Isando-based manufacturing site when bids closed, so they should not have passed the first stage. It also found that Innovata and Barrs Pharmaceuticals received historically disadvantaged individual points without proving the ownership claimed, requiring their scores to be adjusted.
Performance risk is separate from debarment
The court also examined how the department handled a bidder’s previous supply performance. Innovata had been unable to perform under an earlier contract and had asked the department to cancel it. The evaluation committee treated that history as materially relevant, but the adjudication committee allowed Innovata to remain in the process, with reduced volumes and an 11.38% allocation, because there was no evidence that it had been prohibited or restricted from state business. Judge Girdwood said formal debarment is reserved for the most serious established wrongdoing and is not a substitute for assessing ordinary supply-performance risk.
Continuity measures limit the immediate effect
The ruling does not immediately remove current suppliers. They must continue deliveries while the department reconsiders the awards, because tenofovir, lamivudine and dolutegravir form the first-choice adult ARV regimen in South Africa’s treatment guidelines and stockouts could be life-threatening. The setting-aside takes effect only 90 days after the new awards are finalised, allowing replacement suppliers time to prepare. The department must also investigate whether Innovata and Barrs colluded in their bids. The judge found a basis for further investigation, but no collusion has been conclusively established.
IN NUMBERS
For health-contract bidders, the ruling underlines that eligibility, licensing, ownership claims, past performance and the consistency of scoring can all affect the legality of an award. For the department, the remedy is a new allocation process alongside safeguards intended to protect medicine availability.
Reported from dailymaverick.co.za, 2026-10-22. The Tender Wire is published by Otnox.
