Taking tests

The least-bad potential explanation for what the government is up to, in its rushed legislation that would give it the power to expropriate Rako Science's testing setup, runs as follows.

Suppose that, as Director General of Health, or the Minister of Health (who knows where this came from), you finally FINALLY figured out that most of your advisors on saliva-based testing are, in fact, utter idiots. They have led you astray for almost a year. All that stuff about saliva PCR testing not being that reliable was wrong, even if DG Health announced it as truth from the podium of truth. It's just that your idiot advisors couldn't figure out how to make it work themselves so spent the past year trash-talking it. And suppose you also figured out that there really only is one game in town if you want to scale up to a ton of testing that meets international ISO standards. And you've finally FINALLY figured out that you actually need a metric shit-ton of testing capacity. Because you only decide to do anything about an outbreak when there is an outbreak. Not before.

When you finally realise that you need to contract for tons and tons of testing capacity, and the only possible reliable supplier of an international-standard validated test in New Zealand is the company you have been utterly screwing over for the past year, well, you might just be a bit worried that prices could be higher than you'd like. 

In that case, having backstop ability to requisition testing from them at a price that you deem fair is a bit like the public works act, but worse. But you hope not to have to use it and that some negotiated contract could work. 

That would be the least-evil explanation for the powers the government is giving itself. 

There are, of course, more evil explanations. But I don't think there are less-evil ones. 

They brought the legislation 29 September, without telling Rako. Rako found out about it on 5 October. Submissions close Monday. The government is giving itself the power to steal all of Rako's kit: requisition their materials, requisition tests. 

I wrote it up as this week's Insights column.

There’s an old saying that makes the rounds now and again, with various attributions. “First they ignore you, then they laugh at you, then they fight you, then you win.”

I wonder how this one is going to end for Rako Science. I desperately hope it ends well. If it does not, it will be an utter travesty of justice.

The Initiative has long been keen on better Covid testing methods. They featured again in my report, released this week.

The University of Illinois’s SHIELD protocol saliva-based PCR testing rolled out very successfully in August 2020.

By late 2020, Rako Science had brought it here, under licence. By January, Rako was providing accurate and rapid PCR testing for private clients under contract, with a test validated to ISO15189 standard.

Rako had offered its testing services to the Ministry of Health in December 2020.

First they ignored Rako.

When Rako’s deployment spread through early 2021, the Director General of Health made erroneous statements, perhaps through simple mistake, at 1pm briefings about the accuracy of saliva-based PCR testing.

Then they laughed at Rako.

When it became increasingly obvious that it was impossible to scale up nasal swab-based testing in any practicable way, the Ministry of Health set a procurement process for saliva-based PCR testing. That process is the subject of a complaint by Winston Peters to the Auditor General.

And, for months, according to Rako, the Ministry ignored or denied requests from Rako to link Rako’s test results into the nationally integrated reporting system.

Then they fought Rako.

Last week, on 29 September, the Government introduced the COVID-19 Public Health Response Amendment Bill (No 2) into Parliament.

Rako found out about it on 5 October. Submissions close Monday 11 October.

Section 11 of the Bill provides the Government with the ability to requisition Rako’s materials and services, compensating the company at a deemed “market price”. Existing contracts with private hospitals for testing might need to be voided, come the requisition order.

On a charitable and optimistic interpretation, the Government has finally realised that it needs to contract for a massive amount of testing and does not want to have to negotiate with the provider of the only test validated to the appropriate ISO standard.

On a more frightening one, the Government is preparing to quasi-nationalise the provider they fought for so long.

Let’s hope Rako wins this one. If they don’t, we all lose.

BusinessDesk also has it, because Pattrick there has been the single best journalist in the country in following this file. Here is a snippet, you should subscribe. 

How else to explain parts of the COVID-19 Public Health Response Amendment Bill (No 2), tabled in Parliament last week, which would give the health ministry remarkable new powers to commandeer the use of private laboratories’ testing capacity? 

The bill proposes that the director general of health have power to make an order – and provide compensation – to a private laboratory to “undertake testing solely for the purposes of the public health response to covid-19 while subject to the order ... whether or not the laboratory is contracted by the Crown for that purpose”.  

It proposes the ministry be able to demand that any and all private test results be available for its national database.  

This sort of draconian drafting doesn't happen by accident and has the potential to produce results that could be both highly ironic and commercially damaging, depending on your perspective. 

Imagine, for example, if the Ministry of Health were effectively to commandeer the saliva testing resources of Rako Science to ramp up the national testing effort, having fended the company off by any means possible ever since its highly accurate saliva test became available last year. 

Rather than contracting for the service, the ministry would simply be obliged to "compensate" such a provider for their trouble. Watch this space.

Jonathan Milne at Newsroom also has it here. He quotes Rako's Leon Grice:

"There is other legislation where the Government can come in and expropriate or requisition private property – that's the Public Works Act. But that has more protections, like a process to determine a market rate that the Government must pay.... They can just insist we give up our stock and our reagents and our premises that we need to do our work."

If you care about the rule of law in New Zealand, and about the Covid response, you might consider submitting. 

If you haven't time to do anything else, just telling them that it is wrong to propose stealing the testing system that they spend months and months deriding might be nice. 

If you have more time, reminding them that they ought at least be indemnifying Rako against all of the breach of contract messes that will result if the government steals Rako's testing capacity, taking testing capacity away from the private hospitals and others who have paid for this service, causing a breach of contract, after having told Rako repeatedly not to reserve testing capacity for any government need and not to scale up for it - well, that could be a nice addition too. 

On a straight-econ side, even the least-evil explanation above is terrible. 

If investing in testing capacity is high risk, because the government will spend a year crapping all over you, telling people not to contract with you, telling media at the 1 PM Podium of Truth sessions that your testing system isn't reliable, because you're not their preferred supplier - and then the government FINALLY figures out that they might need to get a ton of testing from you? 

Well, at least some return on that risky-as-hell investment is in order if you want anybody to be willing to take similar risks in future. 

None of the international corruption indices understand how New Zealand works.

I'll be submitting on Monday. I'll probably write more on this for next week's Newsroom column. It stinks.