#BTColumn – The curious case of radically inane vs bad vibrations
The views and opinions expressed by the authors do not represent the official position of Barbados TODAY.
through Garth Patterson QC
The first attachment to the complaint filed with the United States District Court in Radical Investments Ltd. v Good Vibrations Entertainment LLC, is a Letter of Intent dated April 6, 2021, which has been prepared on Department of Health and Welfare letterhead and signed by the Permanent Secretary of that Department.
The letter was addressed to AstraZeneca and stated that its objective was “to expose our government’s urgent and imminent interest in the country of Barbados, to contract and to license Radical Investments Limited … for the exclusive use of vaccination of our population against COVID-19, and that this product will not be resold under any circumstances. “
The letter asks AstraZeneca to provide Radical with a full offer as well as the information required to enable the department to perform due diligence. If satisfied with the documentation, the ministry said it will proceed promptly with placing the order, signing the sale and purchase contract and paying.
He concludes that upon receipt of the required commercial documents, including the certificate of authentication, test reports and bill of lading, “Radical Investments undertakes to make all payments directly to the allowance holder”.
There is no mention of Saint Lucia or the Bahamas, and the government of Barbados presumably conducted the transaction on their behalf. From a legal standpoint, this letter raises several concerns, questions and issues, including issues regarding the potential financial exposure of the Government of Barbados resulting from this ill-fated venture. To begin with, what exactly did Monsieur de la Santé know and when did he find out? As the letter came from his ministry, it is curious that he publicly proclaimed his ignorance on the matter.
Further, the letter appears to confirm that Radical was acting as an agent for the Government of Barbados for the purposes of the transaction. Under the principles of the common law of agencies, an agent, as a representative of his principal, is entitled to reimbursement of all costs and compensation for the liabilities incurred and the losses suffered as they were envisaged at the time of the contract. the creation of the agency, or as stipulated by the agency contract. It is the principal, and not the agent, who bears the risk of loss in a transaction carried out by the agent on behalf of the principal.
Given that Barbados was the main one, it can reasonably be assumed that Radical’s lawsuit against Good Vibrations is brought on behalf of the government of Barbados; and if Radical ultimately fails in its attempt to recover the monies it paid to Good Vibrations and others, will Radical seek recourse against the government of Barbados for compensation and / or reimbursement of the near of $ 6.7 million that would have been defrauded?
Why did Radical interfere in the transaction in the first place? Why did the government not go straight to the source, AstraZeneca? What special skills or connections did Radical have, or pretend to have, to convey to the government that he was the right middleman for the job?
The genesis of the deal, as explained by Radical in its complaint, and once distilled to its essence, was that Radical director Mark Maloney was basically told by his contact, “Hey, I know a guy, who knows another guy, who knows another guy, who can get the shot. (not the real words) This is hardly the material of a good procurement policy for the purchase of sensitive, life-saving and life-saving drugs intended for public consumption.
Referring to the letter of intent in its complaint, Radical confirms that it has been “authorized by the Government of Barbados’ Department of Health and Welfare to purchase vaccines on its behalf.” This is the typical language of the agency.
If Radical was the agent of the government, then what were the terms and conditions of this agency? How much did Radical have to earn?
The government allegedly claimed that the transaction between Radical and Good Vibrations was a private business transaction between private parties, from which it distanced itself, at least commercially. But if the transaction was conducted on his behalf, then Radical was the agent of the government; and, in law, the transaction was the government transaction. What does the agency contract between the Government and Radical provide in terms of compensation or recourse?
In addition, if the press information is correct, the government of Barbados never intended to retain 300,000 doses of the target vaccine and therefore purchased 700,000 doses as an agent for and on behalf of. Saint Lucia and the Bahamas.
Why then, did the ministry falsely state in an official communication to AstraZeneca that the vaccines “will not be resold under any circumstances”? Should we expect a greater level of probity, candor and truthfulness from our officials when engaged in official business on our behalf? Sources say Saint Lucia has advanced millions of dollars to Radical and faces real potential for loss if these funds are not recovered.
Will the governments of Saint Lucia and the Bahamas look to Barbados to restore them if they suffer losses from this failed deal? Will Radical indemnify Barbados against such claims, since normally an agent is liable to his principal for any loss occasioned by his lack of care, skill or diligence in carrying out his business?
As to the sequence of events which precipitated the trial, the undeniable truth that emerges from the narration of the story in the complaint is that Mr. Maloney and his team were neither trained nor experienced in the policies and modes of public health supply and were completely unqualified. and unsuited to the solemn task of procuring the critically needed COVID-19 vaccines.
The events recounted in the complaint reveal Radical’s utter failure (acting on behalf of the Government of Barbados) to adhere to due diligence practices and naivety of unprecedented levels. The evidence in the complaint shows that on April 27, 2021, Radical inexplicably released payment for the vaccines without any or no proper verification that the promised vaccines had in fact been obtained from AstraZeneca, were genuine, and were being shipped.
These were the preconditions for payment stipulated by the government, which Radical apparently ignored. These preconditions were also set out in the contract between Radical and Good Vibrations, which provided that the US $ 10.2 million would be paid into AstraZeneca’s account upon receipt of an invoice from AstraZeneca.
No valid AstraZeneca invoice has ever been produced, and no credible explanation has been advanced; but the funds nonetheless went to Good Vibrations and its cronies, not to AstraZeneca. This, despite the obvious red flags and alarms triggered by the alleged summary behavior of Alex Moore, who was the director of Good Vibrations, and his alleged accomplices. This represented nonsense on a large scale, and inevitably Radical was the gullible victim of an alleged fraud in circumstances where, had there been greater diligence, it would have been avoided.
To complicate matters, when Radical finally determined that Good Vibrations was bad news, Radical canceled the sales transaction, alleging fraud; but then, inexplicably, agreed to enter into a new contract with Serum Pharma Ltd., which Moore had presented to Radical, for the purchase of the vaccines, and to pay Good Vibrations / Moore a commission upon termination of that agreement.
When business finally stalled with Serum Pharma, Radical eventually contacted UK authorities to verify the provenance of the AstraZeneca vaccines it was seeking to procure on behalf of the Government of Barbados and the authenticity of the parties it was dealing with. In an email dated July 11, 2021, Radical wrote to the British High Commission in Barbados, stating: “We are authorized by the Government of Barbados to represent them in the purchase of AstraZeneca vaccines. . . . We have not been able to be certain as to… whether Astra Zeneca has in fact allocated the 1,000,000 doses (sic) of AstraZeneca COVID vaccine to Barbados. “
By letter dated July 14, 2021, the High Commissioner responded: “Thank you for your July 11 email regarding the potential purchase of Astra Zeneca vaccine by the Government of Barbados. Unfortunately, Astra Zeneca has confirmed that it has no relationship with Serum Pharma Limited. It must therefore be assumed that this is not a legitimate survey or opportunity.
In line with its commitment to provide COVID-19 vaccine in a broad and equitable manner without profit during the pandemic, AstraZeneca is focused on providing supply agreements through governments and COVAX and is not currently working with distributors or intermediaries. from the private sector. Therefore, any similar private offer like this would also likely be a counterfeit. “
This raises several additional questions:
(i) In the exercise of due diligence, why was this not the very first step taken by Radical / Government of Barbados? It certainly would have saved a lot of angst and put an end to this whole convoluted business from the start. Instead, they put the cart before the horse, and the result was predictable.
(ii) Why did Radical contact the British High Commission rather than the government of Barbados? On a sensitive and important issue of this nature, we have bureaucrats whose job it is to deal with foreign governments. Why hand over this responsibility to a private company?
(iii) Undoubtedly, the government was aware that, as confirmed by the High Commissioner, AstraZeneca was committed to providing the COVID-19 vaccine in a broad and equitable manner without profit and was only doing so through the government intermediary and COVAX. So why did she seek to circumvent this process by intervening civilian intermediaries? Why was he committed to paying Radical $ 24 per dose of vaccine, when AstraZeneca was providing it to governments between $ 3 and $ 5?
There is certainly more to this mortar than the pestle. We look forward to the answers to these pressing questions and the next installment in this fascinating saga.
Garth Patterson QC is the Regional Managing Partner of Lex Caribbean. He was admitted to the Bars of Jamaica and Barbados in 1987 and to the Bars of New York and Saint Lucia in 1990 and 2011 respectively.