Incentives and Benefits in the Context of Public Healthcare Tenders
The Federal Agency for Medicinal and Health Products ("FAMHP") recently published a circular (Circular No 646) in which it reminds hospitals that in the context of public procurement, they are bound by the rules governing the offering of financial incentives and other benefits to institutions that prescribe, supply or administer medicinal products (Art. 10 of the Medicines Act).
In the circular, the FAMHP explains that it learned that an increasing number of hospitals are requesting additional benefits and incentives when issuing public tenders for the supply of medicinal products and medical devices and that the grant of such additional benefits is often an important criterion for award of the tender. The benefits extend beyond volume discounts to educational materials, patient monitoring software, training on the use of medicinal products and medical devices and support for outreach activities (uitstralingsactiviteiten/activités de rayonnement).
Questions surrounding the legality of this practice were raised when the federal public health minister asked the Public Procurement Commission (the "Commission") whether such behaviour complies with the public procurement legislation. The Commission published its response on 5 March 2019, stating that it lacks authority to answer the question and simply recalling the applicable rules. The question was then forwarded to the FAMHP which provided an answer in Circular No 646 of 21 June 2019.
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