Med supplier sues gov’t over cancelled LFT order

| 12/11/2021 | 132 Comments
Cayman News Service
Blue Water sales rep Mick Killeen with lateral flow tests

(CNS): Blue Water Medical Supplies is suing the Cayman Islands Government, claiming that an order that was confirmed last month for half a million COVID-19 Flowflex Rapid Antigen Tests, at a cost of CI$1.275 million, had been cancelled in breach of the contract. In a very brief statement of claim filed with the Grand Court on Friday by Ogier, who is acting for them, the local medical supply company asked for government to either honour the deal or pay damages.

“The Plaintiff and the Defendant entered into a contract by which the Plaintiff agreed to sell the Defendant 500,000 Covid-19 Flowflex Rapid Antigen Tests for a purchase price of CI$1,275,000, as confirmed by way of a purchase order issued by the Defendant to the Plaintiff on 27 October 2021,” the claim states. “The Defendant has subsequently purported to recall or cancel the Purchase Order in breach of the contract. Accordingly, the Plaintiff seeks the remedy of specific performance or, alternatively, damages arising from the Defendant’s breach of contract.”

There are no other details over why the government has pulled the order. CNS has contact the health ministry and the HSA about the suit and we are awaiting a response. However, CNS understands that there may have been an irregularity in the internal procurement process.

Government has committed to supplying all schools and civil servants with lateral flow tests (LFTs) but there has been a significant shortage. UCCI closed its doors this week and shifted to online learning for the entire college, citing a shortage of tests for staff and students to be able to manage the cases they have.

Meanwhile, the Cayman representative of ACON, the official supplier of these tests in the Caribbean region, has complained that the tests were being imported willy-nilly through unofficial sources and that they had the exclusive rights to import and supply the tests here. ACON claimed that government had delayed making any orders through them, despite previous indications that they would be using the official agent to import the tests.

It is understood that the first orders were sourced by government in the UK via Crown Agents, which officials recently said is the current supplier. But it is not entirely clear how tests are now being sourced, imported and then distributed by government or the private sector.

These lateral flow tests, or rapid home test kits, are intrinsic to government’s plans to navigate its way through the current community surge to allow students to go to school and workers to their jobs if they test negative with these kits, even when their family members test positive.

But from the very beginning the kits have been in short supply and are also being sold at far more than the wholesale price, even though they are duty free, as noted by Premier Wayne Panton this week.

Blue Water Medical Supplies, a local company based in George Town, was established around three years ago, according to its Facebook page. The company is understood to be owned by Randy Merren. They were charging government just CI$2.55 per kit, which is considerably cheaper than the current retail price of at best $6:50 and at worst around $15 per kit.

See the suit on the judicial register here.

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Category: Health, Medical Health, Politics

Comments (132)

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  1. Anonymous says:

    Anybody who has watched any of the press briefings with this PACT Government, especially when Saunders is there, can clearly see he is the one calling the shots. He constantly overrides Wayne, cuts him off and tells him straight up, I’ll answer that. This move has Christ “ARROGANT” Saunders written all over it. I used to think Chris was so smart but as it turns out… all catch my drift.

    • Anonymous says:

      Mek mi tink. Do di maths.

    • Anonymous says:

      Lower the price of the LFT for the community and raise the price for the tourists. $25 CI for a LFT. I just bought 2 LFT tests today for $21 US. And that was for the total for both.

  2. Anonymous says:

    Chris Saunders too arrogant for his own good. Not his contract to cancel, right procedure not followed, doesn’t understand law/contract situation and now Govt in a right mess.
    Irony being that correct process with contract was followed and it’s a good deal.
    Totally daft and a needless waste of public money in defending this debacle.

    • Anonymous says:

      Saunders trying to be big man on campus, without the education and intellect to back it up.

      • Anonymous says:

        Saunders ‘trying to be big man on campus’, but he is educated and intelligent.

        Don’t underestimate Saunders’s intellect, which he can back up, but Panton can’t back up.

        However, they must not know di I and I! Do di maths calculations!

        Simple ting dat, yah si meh! Zane!

    • Anonymous says:

      Reputation risks. Politically detrimental.

      • Anonymous says:

        That particular politician does not have a stellar reputation to risk . He is there because 300 or more of his like minded followers voted for him.

        • Anonymous says:

          True. Bodden Town does not have greatest track record for electing MPs.

          That said, Saunders and Panton were far better choices than the alternatives, who ran in those constituencies.

          Seymour was the most surprising successful candidate in BT. I thought Ossie had that one.

    • Anonymous says:

      Real irony is that selecting Crown Agents in the same manner falls foul of the procurement issues that he pretended mattered for this purchase order to Blue Water.

  3. Anonymous says:

    It sounds like gov wanted a secure direct purchasing route to procure these tests. In a pandemic I hope this was part of their planning.
    It’s my understanding that Bluewater is having difficulty filling orders and many are hearing – your tests will be here tomorrow, days later. If the tests ever get here there is no reason why they wouldn’t sell out in less than a week – private schools, corporations, those of us who like to panic shop.

    Given that the government is Bluewater’s largest client it’s going to be interesting how this plays out in the long term. I’ve seen purchase orders cancelled in my many decades of business. Right or wrong there is a long term business relationship that neither party considered.

  4. Anonymous says:

    Who needs a bunch of stupid $2.50 LFT’s for $2.50 when we can get tens of thousands of $0.10 masks for $4.50 each? World class !

    • Anonymous says:

      Can the government stop adding things to the list of travel reopening! Newly added the LFT for travelers last week and now added is the travel insurance. All this adds $$$ for the traveling family that has already budgeted their trip.

      • Anonymous says:

        Probably best you stay at home and save your money.

        Go somewhere cheaper. 2022 isn’t going to be fun

      • Anonymous says:

        Have one list. Very hard to navigate site

      • Anonymous says:

        Are you insane? Who travels to the US/Caribbean without health insurance? I’m going to guess that if you can’t afford a few hundred bucks for travel insurance then you can’t afford a month on oxygen in intensive care or medivac back home either. Who did you imagine would pay for your treatment if one of your family does get sick or injured whilst traveling abroad?

        • Anonymous says:

          Good point. COVID-type considerations. We’re in a different world now.

        • Anonymous says:

          My insurance is excellent and covers international care. You missed the point. Point is things keep getting added. Should have been said from day 1 reopening plan. It’s not the cost, it’s the aggravation of having to keep changing, keep adding, keep figuring out… when other jurisdictions had it all spelled out on day 1.

      • Anonymous says:

        Why be surprised that Government requires visitors to have health insurance. I cannot imagine anyone being thoughtless or reckless enough to take the risk of traveling without health insurance at this time.

  5. Chris Johnson says:

    Several year ago Hurlstone Contruction was awarded a contract to build a new hospital. Then came a change of government. Lo and behold the contract was cancelled and the company went into liquidation. As liquidator of the company I sued the Government who wrote a big fat cheque.
    Governments usually learn from their mistakes.

    • Orrie Merren says:

      Great example, Chris. I recall that matter, which occurred (I believe) in the 1990s, when I was a kid.

      I think the legal issues are now further strengthen with our new Cayman Islands Constitution Order 2009 (the previous matter you noted was under the Cayman Islands (Constitution) Order 1972 as amended), especially our (first ever) Bill of Rights, as well as the constitutional powers and functions functions of the independent Auditor General and, inter alia, the Public Management and Finance Act.

    • Anonymous says:

      It was a Mac against the outgoing Ezzard thing .
      There was then a commission of enquiry because ego got in the way of rational thinking.
      The enquiry found that there was absolutely no basis for the accusations , which were meted out by political jealousies.
      Egg on Macface, loss of modern hospital to Cayman, as well as another cost of settlement to the wrongly accused.

      • Chris Johnson says:

        Around that time I sat on the board of directors of the Housing Develpment Corporation . Ezzard was the chairman. Bush comes in with new government and bang I get fired. No letter of thanks. I read about it in the Gazette.

        This still goes on today. People get appointed, served many years to help the government and then learnt of their exit. No letter of thanks , no nothing. That is arrogant and a disgrace.

        I forgot to add, our board members got $75 a year. We donated it to charity. The managing was Angela Miller. She did a fantastic job. The corporation never had a bad debt and always was the first to get its accounts audited.

  6. Orrie Merren says:

    All decisions and acts (including failures to act: see definitions of “act” and “contravene”: s.28, Constitution) must be lawful, rational, proportionate and procedurally fair (s.19(1), Constitution).

    This is (under s.19, Constitution) the fundamental right to law administration action, “which demands, at the very least, a high level of protective oversight be the courts”: Re Hutchinson-Green [2015] 2 CILR 75 at 87 per Smellie CJ (in this case, Hon. Chief Justice also recognized this in line with “heightened” or “anxious” scrutiny or, as it is further described, the “super-Wednesbury treatment”: ibid at 85-89).

    Anyone whose interests have been adversely affected by such a decision or act has the right to request and be given written reasons for that decision or act (s.19(2), Constitution).

    It is unlawful for a public official to make a decision or act in a way that is incompatible with the Bill of Rights (s.24, Constitution).

    Parliament and the Cabinet shall “uphold the rule of law” (s.107, Constitution). And, our Bill of Rights, “which affirms the rule of law and democratic values of human dignity, equality and freedom” (s.1(2)(a), Constitution), “is a cornerstone of democracy in the Cayman Islands” (s.1(1), Constitution).

    Assets pursuant to commercial transactions, which are protected as property rights in our Bill of Rights (s,15, Constitution).

    If it is found that, in conjunction with a fundamental right or freedom being infringed, there is unjustifiable discriminatory treatment (pursuant to s.16, Constitution), then there may room for constitutional proceedings (pursuant to s.26, Constitution).

    If so, then there may be a relief or remedy (pursuant to s.27(1), Constitution) and, moreover, damages recoverable (pursuant to s27(2), Constitution).

    Also, depending whether value for money is in issue, which it appears it is, then there are provisions under the Public Management and Finance Act that come into play too.

    Just food for thought for Randy and Blue Water Medical Supplies to consider. Hope it might help.

    • Anonymous says:

      Thanks Orrie. Perhaps someone should tell the Ombudsman? Are these things secret?

      • Orrie Merren says:

        Requests for disclosures of information/documentation can by made under the Freedom of Information Act.

        I believe that certain disclosure requests have been made by Ms. Sandra Catron. Interested in what her requests might turn up.

        Given that legal proceedings have been issued (at least an endorsed Writ of Summons), this might have already bypassed making a report the Complaints Commissioner.

        However, the Auditor General is completely independent and, if she deems appropriate (whether on her own discretion or after being notified) may exercise her constitutional functions (s.114(6), Constitution).

        “The Auditor General shall have the power and responsibility to audit the public accounts of the Cayman Islands and the accounts and financial dealings of all authorities, offices and departments of Government and of all courts, and the power to undertake VALUE FOR MONEY INVESTIGATIONS in respect of the activities of such authorities, offices and departments” (s.114(3), Constitution).

        I hope my cousin, Randy, can get this issue remedied satisfactorily.

        • Anonymous says:

          Agreed Orrie. The issue is that the Ombudsman appears lethargic in any overt response to ongoing failures by government to abide by some basic legal principles. Does anyone know who her legal advisors are? Is she even allowed to step on toes?

          • Anonymous says:

            Not sure who legal advisors are or what her budget is for legal and other advisors.

            She’s independent, so have room to “step on toes” with her authorized functions as auditor general.

  7. Anonymous says:

    I’d represent them in this mess. Purchase orders cannot be cancelled, they are exactly that. An order to purchase that allows the buyer to commit to purchase knowing they will get paid. Otherwise, it’s cash up front. And it’s not like we do not need them. And good value at $2.50 a kit.

    • Anonymous says:

      Absolutely correct.

      • Anonymous says:

        We don’t have to be able to add 2 plus 2 to figure out who did this. As much as I realise there is not much competency among the entire lot I really do not think it was ordered by Wayne.- especially knowing that he and Randy are business partners.- albeit not in this particularly company. What would be his motive- can’t think of one!! This is just the beginning!. The Opposition and the public should ensure that the Ombudsman and Attorney General leave no stone unturned to get to the bottom of this by investigating all ties and connections.until the facts are laid bare.

    • Anonymous says:

      Except if the purchase order or purchase agreement is ultra vires, such as for exceeding the scope of legislation or being incompatible with the Constitution or Bill of Rights. Doubt that is the issue here.

  8. Anonymous says:

    My favorite part of this fiasco is that in the recent minutes from the Cabinet meeting they note approving the expenditure of $3M for 1,000,000 test kits.

    Great value for money – cancel the purchase order with a local company for a lower rate per kit and then approve a larger purchase of kits at an even higher rate.

    Top work DP. Can’t imagine for the life of me why HSBC ever went out of business here when you managed their finances.

  9. Anonymous says:

    If the Government were to only know how unpopular this makes them, perhaps this foolishness would not persist.

    However, since we’re dealing with idiots, who sought a lot of help from others, when they were on the other side of the aisle, it’s understandable and understood.

    Good luck next election, which is only in 2015, I am sure you all will loose your seats. Enjoy them while it lasts. Idiots.

    • Anonymous says:

      Meant to say “2025”, not “2015”.

    • Anonymous says:

      Cayman needs an alternative to PACT and PPM.

      • Anonymous says:

        Pact isn’t a party. It’s the “alternative” all the anti-PPMers claimed they wanted. A group of independents they thought would put the country first.

        Congratulations. This is what it looks like. This is what politics always looks like. Hope you’re enjoying.

  10. Anonymous says:

    It’s obvious what caused this and nobody should be surprised: civil service incompetence.

    • Anon. says:

      WRONG! Political interference, ignorance and arrogance is what caused this and politicians are not considered part of the Civil Service so you can stop dragging the Civil Service through the mud.

      • Anonymous says:

        Then someone should override the politician. If they do not then is the Civil Service not ultimately responsible? Their duty is to lawful administration, not to ministers.

      • Anonymous says:

        Exactly! This time we cannot blame the civil servants. I understand they are being bullied left right and centre.

  11. Anonymous says:

    Cayman govt is such an joke and so clear with Wayne never been able to keep job or run a business. we are all in loserville

    • Anonymous says:

      Wayne is a good man and is doing the best he can for the country and it’s people.

      • Anonymous says:

        If what we’re witnessing as the Premier’s best, it’s not good enough.

        Running Cayman as Premier is not the same as the management-style as Walkers’ global managing partner.

        Whatever happened to PACT core values (people-driven, accountable, competent and transparent)? So far lacking this.

        • Anonymous says:

          If the Civil Service had levels of competence, accountability and professionalism approaching that of Walker’s management, running Cayman with the same management style as Walker’s Managing Partner would be highly effective.

        • Anonymous says:

          Don’t leave out ” taking care of my people” bla, bla,bla,……………. my granny wit is telling me that there is. an ulterior motive here.- as bad as it looks it goes much further than what appears. Perhaps this can make the Premier look so weak that someone else could use it to try to usurp his position. Is there anyone else out there whose imagination can stretch so far, or whose common sense runs so deep? All I can say is GOD HELP US!!

      • Anonymous says:

        Obviously his best is not good enough but he is wearing himself out trying to keep this PACK of Wolves together. Obviously he can’t.

      • Anonymous says:

        Regrettably he is working with less than stellar characters.

    • Anonymous says:

      “Wayne never being able to keep a job”. Where do you get your information.

  12. Anonymous says:

    There’s not enough on the Writ of Summons to flesh out your he issue.

    Bets are that this public officials are passing this hot potato around.

  13. Anonymous says:

    This is what happens when you make idiotic policies before applying logic.

    • Anonymous says:

      This is what happens when you fill up your cabinet with incompetence. Sad thing is it adversely effects every man woman and child who abide on the Rock called Cayman . Apparently hundred of thousand of dollars were spent – just take a look st what we got. Definitely not value for money. Can we endure this for three and a half years? Just wondering!

    • Anonymous says:

      Logic? Whats that?

  14. Anonymous says:

    Whose fault is it. Premier Panton? Deputy Premier Saunders? Minister Turner? Dr. Lee? Attorney General?

  15. Anonymous says:

    If this is what Premier Panton and the PACT do to their friends and business partner, I wonder what might happen to those that the Premier and PACT dislike.

  16. Richard Wadd says:

    1). At that price, Blue Water should have no problem selling the kits Wholesale locally. I know just one retailer who has sold over 100k in the last month alone.
    2). IF it is that a Govt. PO can be revoked without fault of the supplier, then ALL local businesses should now refuse to accept them as there is no guarantee that Govt. will pay.

  17. Anonymous says:

    To tell you the truth, I wish they don’t purchase them. I don’t believe in constantly sticking these things in children’s nose. We don’t have to follow what the world do.

  18. Junior says:

    Like i mentioned last week. This administration has no idea of behaviour or procedures.
    They just proved. My point right here

  19. Anonymous says:

    $5 each Randy!

  20. Anonymous says:

    One needs to realize that his damages are simply his markup on the deal.

    • Anonymous says:

      Not if there was discriminatory treatment together with breach of fundamental rights or freedoms, which calls for constitutional damages (both compensatory and vindicatory damages).

    • Anonymous says:

      What about legal costs? Indemnity basis?

  21. Anonymous says:

    What bull

  22. Anonymous says:

    Kirkconnell’s on the Brac has them under $6.

  23. Anonymous says:

    World Class – cancelled order for 500,000 then…..

    “Government has committed to supplying all schools and civil servants with lateral flow tests (LFTs) but there has been a significant shortage. “

  24. Anonymous says:

    Isn’t Randy in business with Wayne ?

  25. Anonymous says:

    Was the premier a big shot lawyer? Did he not learn about contract law at the Cayman Islands Law School?

  26. Anonymous says:

    Sunset came with a wonderful headline for PACT ‘Revenue rolls into public purse despite pandemic’ and by dusk it looks like it might be rolling right back out again. Wayne, PACT, Dr Lee, what in the name of fish finder frequencies are you people doing ? – you’re a disaster !

  27. Beaumont Zodecloun says:

    Sounds like a fair price. If they have a contract, it should be honoured.

  28. Anonymous says:

    Business partner with who in c3 and CleanGas again? Do remind us.

  29. Anonymous says:

    i will buy a few randy

  30. Anonymous says:

    Get um Randy.

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