Three and a half years after the CEO of Bionext Lab, Jean-Luc Dourson, called on four lawyers to defend his laboratory's interests in relation to large-scale testing (LST), the special report from the Cour des Comptes, published on Monday, has reinforced his position.

In September 2021, Sébastien Engelen, Jean-Louis Dupont, Nicolas Thieltgen and Bernard de Cocquéau filed an application for interim measures to ensure that the large-scale testing market was no longer awarded so easily to Laboratoires Réunis. “If we're talking about the loss of opportunity associated with large-scale testing, we're talking about several tens of millions of euros", Dourson at the time. The cumulative budget for the three phases of the programme was €149m.

In its special report, the Court of Auditors reduced the budget outlay to €134m, but the subject remains the same.

According to the Court of Auditors, the three phases of the LST were oversized: 600,000 tests for the first phase, which was designed for up to three times as many, 1.12m for the second phase, which was designed for 1.43m tests, and 740,000 for 1.33m possible tests. "Barely 41.64% of the people invited to be tested during LST 1 responded favourably to the invitation. For LST 2 and LST 3, the participation rate was 29.30% and 31.28% respectively", said the report.

Was it useful? Difficult to answer, said the Court of Auditors. "There was no database for determining the number of covid-19 positive cases detected under the LST in combination with the contact tracing carried out. To assess the number of positive covid-19 cases detected in combination with contact tracing, a correction factor needs to be applied."

Donation that required a special law

With 486,000 PCR tests costing €3.66m excluding VAT, the state exceeded the limit of €40m, the threshold that would have required a special law. Through three amendments to the original agreement, the transaction was reduced to €34.5m, but according to the final financial report, the expenditure amounted to €31.28m.

When the Ministry of Health took over phases 2 and 3, expenditure remained within the planned envelopes at €55.15m and €47.62m, but, noted the Court of Auditors, "the final accounts submitted to the court did not take account of all the expenditure and revenue relating to the various phases of the LST. Notably missing were the costs of acquiring PCR tests, expert fees, the costs of analysing serological tests carried out by the National Health Laboratory and certain revenues."

Finally, with regard to the control of expenditure and financial monitoring, the court seems to admit that the first phase was settled by means of a "gentlemen's agreement", as it put it. But it pointed out that afterwards, despite a procedure put in place by an external consultant, the reliability of the reports was ensured by the Laboratoires Réunis themselves, without any of the additional controls mentioned being implemented.

Unverifiable performance indicators

As for the key performance indicators, the two-day communication of results was not always respected during the first phase, and the LIH made "a symbolic adjustment to the financial contribution for non-compliance with the key performance indicators". However, the Court of Auditors was unable to verify compliance with the key performance indicators for phases 2 and 3, as "the Health Department did not provide the court with all the figures relating to the daily evolution of the various key performance indicators", stated the report.

During the second phase, "the rate of transmission of 100% of results within 36 hours was almost never respected. Following negotiations between the Health Department and the LRLs, the penalties for late delivery were significantly reduced from €1.96m to €0.27m".

Finally, "for the third phase of the LST, the deadlines for the transmission of PCR test results were expressed in terms of prevalence and the number of diagnostic tests. The court found that this key performance indicator was much less restrictive for LST 3 than for LST 2, except in the case of low prevalence. Although several key performance indicators were not met during LST 3, no penalties were applied."

Public procurement law circumvented

With regard to public procurement legislation, the state was unable to submit an individual report justifying its choice of service provider.

For the next phase, "the court found that, due to a lack of expertise, the Health Department confused the selection criteria with the criteria for awarding public contracts. As a result, the Health Department was obliged to publish a corrected call for tenders extending the submission deadline. But as the only bid submitted did not meet the prescribed conditions, the minister for health, Paulette Lenerts (LSAP), cancelled the contract in order to negotiate by mutual agreement with the bidder. "The fundamental difference between the specifications and the negotiation protocol lies in the LRL remuneration system. Initially, LRLs were to be paid according to the number of samples taken and PCR tests performed. However, according to the negotiation protocol, LRL remuneration was based on three pillars: fixed costs for PCR tests and blood sampling, semi-variable costs for infrastructure and variable costs per PCR test performed.”

In 2021, when the Department of Health would have had time to launch a European procedure, it was content to use the same service providers as for the second phase.

During the three phases, the Court of Audit concluded, "various public contract award notices were not published or were published in a period exceeding the 30 days provided for in the amended Grand Ducal regulation of 8 April 2018 implementing the law of 8 April 2018 on public contracts."

Read the original French-language version of this news report /