Clifford Chance Badea has secured a favorable decision for Pfizer in relation with the claim of a pharmaceutical company concerning the Romanian Ministry of Health's public acquisition procedure of 13-valent pneumococcal conjugate vaccine.
According to Clifford Chance Badea, in August last year, the Ministry of Health finalized the awarding procedure for the 13-valent pneumococcal conjugate vaccine, subsequently signing a four-year framework agreement with Pfizer Romania. The unidentified plaintiff then challenged both the legality of the public acquisition procedure and the validity of the agreement signed with Pfizer Romania. After a first procedural cycle, in October, 2017, the Bucharest Court of Appeal annulled the awarding procedure, and, according to Clifford Chance Badea, “Pfizer Romania was not granted the right to present its point of view. The company's petition to intervene in favor of the Ministry of Health was rejected as inadmissible and the court did not analyze whether Pfizer had an effective possibility of acknowledging the existence of the challenge lodged with the National Council for Solving Complaints in order to intervene in due time.”
Following the annulment of the awarding procedure, in November, 2017, the Bucharest Tribunal annulled the framework agreement, thus reducing its performance term to December 31,2018 and limiting the previsioned purchases by 75%.
Clifford Chance Badea reports that its team "obtained an overhaul of the Court of Appeals' decision, thus leading to the resuming of the entire process, this time with the participation of Pfizer Romania.
After taking into consideration arguments from both pharmaceutical companies, Clifford Chance Badea reports, "the Court eventually decided that the public acquisition process had been legal. After acknowledging the legality of the awarding procedure ... the Bucharest Court of Appeal upheld Pfizer Romania's appeal, quashed the Bucharest Tribunal's ruling, and rejected the applicant's claim as lacking in interest, thus maintaining the framework agreement."
"Procedurally, the Court's solution is important because it is one of the few situations when a Court reversed its initial decision on grounds of violation of the European Union Law Priority principle,” Clifford Chance Badea Counsel Simona Neagu said. “This is special grounds for reversing a decision as stipulated at art. 21 paragraph (2) of the Law on administrative litigation. Rejecting Pfizer's intervention as inadmissible without any prior verification of Pfizer's effective possibility to acknowledge the existence of the challenge lodged with NCSC infringes the right to an effective review procedure available to any person having or having had an interest in obtaining a particular public procurement contract, as this right is enshrined in the Directive 89/665/EEC. Maintaining the framework agreement was the natural consequence of the fact that the legality of the awarding procedure was subsequently established with the force of res judicata between the two pharmaceutical companies and the Ministry of Health."
The Clifford Chance Badea team was led by Counsel Simona Neagu and included Lawyers Sorin Toma and Calin Dragoman.