The European Commission (EC) has published a contract with AstraZeneca amid controversy over transparency in public procurement.
The EC took action following a dispute with the pharmaceutical firm over a shortfall in supplies of its Covid-19 vaccine, which has been blamed on “production problems” at plants in the Netherlands and Belgium.
The contract was published as legal experts criticised the decision not to publish the AstraZeneca contract in the first place.
Commission chief Ursula von der Leyen put pressure on the firm to publish the agreement, telling a German radio station the contract contained “binding orders”.
The contract, signed in August last year, was for 300m doses for the EU following regulatory approval, with an option for 100m more. However, EU officials reported they now expect to get only about a quarter of the 100m vaccines they were expecting to receive by March.
The EU published the partially redacted contract with the agreement of AstraZeneca in order to back its argument that the company is reneging on its commitments. There has been a dispute over the contract’s use of the phrase "best reasonable effort" to supply the EU with vaccines.
EU officials called on AstraZeneca to send some doses manufactured in the UK to the continent to make up the shortfall.
Stella Kyriakides, European Commissioner for Health and Food Safety, said: "We reject the logic of 'first come, first served' - that may work at the neighbourhood butchers but not in contracts," she said on Wednesday.
"There is no hierarchy of the factories. You are aware in the contracts there are four factories listed but it does not differentiate between the UK and Europe."
UK Cabinet secretary Michael Gove told the BBC Today programme "there will be no interruption" to UK AstraZeneca vaccine supplies. "It is the case that the supplies that have been planned, paid for and scheduled should continue," he said.
David Greene, president of the Law Society and a senior partner at Edwin Coe, told the Guardian: “If they [AstraZeneca] gave assurances that they made reasonable best efforts to supply the EU but were in fact diverting material from one place to another, that would on the face of it be a potential breach of obligations to use reasonable best efforts.”
In a blog post, David Allen Green, a legal writer, said there was “no good reason” why public contracts are not in the public domain.
“There are (supposed) reasons – the cant phrase ‘commercially sensitive’ is often the excuse – but no good reasons,” he said.
“This is not about prices – as the European Commission showed in publication of the redacted vaccine supply contract, it is perfectly possible to publish the substance of how a contract manages risk without publishing (real or imagined) ‘commercially sensitive’ material.”
Green said the bulk of the contract deals with “what happens when things do not turn out as agreed”, such as how the contract deals with foreseeable risks and allocates the burden of risks between the parties, and what happens if a provider is unable to provide the agreed goods, services or works.
“The ‘commercially sensitive’ cloak of invisibility serves no one other than the public officials and suppliers who are shielded from any meaningful scrutiny,” he continued.
“A public official can sign a bad deal (and then sign amendment after amendment to that deal), and no one will find out because it is all ‘commercially sensitive’. A supplier can get away with either bad contracts or terms not being enforced against them, again because it would be ‘commercially sensitive’ for the terms of the contract to be published.”
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