Exemptions from Acquisitions Law a ‘Serious Concern’

The pharmaceutical industry in Mexico has always collaborated actively in every initiative aimed at improving the access of people, families and communities to health, which is why there is serious concern about public decisions that go against ensuring availability of therapeutic goods, such as exempting the purchase of medicines and health supplies from the Law the of Acquisitions, Leases and Services of the Public Sector (LASSP).

In addition, the exception of these goods and services of public procurement, as established by the reform to Article 1 of the LASSP, would generate violations to Article 134 of the Constitution.

This condition deviates the aforementioned procurement from the national legal order by giving rise to acquisition processes through intergovernmental international organizations, to be carried out under rules and procedures that are unknown in our country and, thus, nullify the controls integrated in this law itself, which ensure transparency in the contract assignment and accountability processes.

The decree that modifies Article 1 of the LASSP is contrary to the procedure established as a general rule in Article 134 of the Constitution, which is the public tender, that guarantees the best conditions of price, quality, financing, timeliness and other available conditions to the Mexican state.

This reform also violates the requirements established in Chapter 13 of USMCA, since for example, it would make it impossible for suppliers from the US to participate, as it is a government purchase that depends on an external entity and not on the Mexican state.

CANIFARMA, on behalf and in representation of the pharmaceutical industry established in Mexico, seeks to defend the constitutional and legal order as the fundamental element of coexistence of all sectors of society. It was, therefore, decided to file an appeal for protection with the objective of bringing the public tender of health supplies back to the constitutional order, and thus give legal certainty to all agents involved in the procurement process of these goods and services, paramount to the well-being of the population, including authorities themselves.
So far, two facts are known about the effects of the reform:

i.    The announcement of the signing of an agreement between the Mexican government and the United Nations Office for Project Services (UNOPS) for the procurement of medicines and health supplies on July 31, 2020

ii.    The publication on Aug. 25, 2020, of an invite to carry out requests for information (RFI) for the procurement of medicines and health supplies in Mexico.

Both events give no information on the procedures and actions through which UNOPS would purchase the therapeutic goods that the National Health System requires.

One of the main concerns for the industry is the mechanism through which the quality, safety and efficacy of the products that Mexicans would be consuming under this scheme is to be guaranteed, quite independently from their country of origin, since there is no information on whether the new process will enforce the acquisition only of health supplies that have previously been registered in Mexico. Otherwise, there is substantial risk of non-compliance with these indispensable characteristics of the products.

Furthermore, in the legislative debate that took place in the Senate when the reform was discussed, the nonconformity of an important fraction of senators was evident, to the point of expressing the intention of presenting an Action of Unconstitutionality.
It is well-known that the senators, exercising their powers, went to the Supreme Court of Justice of the Nation to raise awareness of the probable contradiction between the Constitution and this change to the LASSP with the intention, in our view, to return the LASSP to the constitutional order and enforce the rule of law.

In this sense, it is important to highlight the coincidence between the Action of Unconstitutionality presented by the senators and the appeal for protection filed by the industry, as in both cases notable signs of unconstitutionality are denoted.
In any case, the objective is to protect the sector with this legal resource but this will depend on the resolution of the judge or competent court of the Judicial Power of the Federation.

To sum up, the appeal for protection intends to suspend the reform to Article 1 of the LASSP, so as to return to constitutional order the procurement of medicines and health supplies, and, thus, ensure the sourcing of these in a planned and operationally effective manner, which would be immediate if the presently prevailing Law of Acquisitions is enforced.