Response to letter about Rapid Antigen Tests

16 June 2022

Chris Bishop MP
Parliament

Tēnā koe Mr Bishop

Rapid Antigen Testing

Thank you for your letter dated 16 March 2022.

In your letter, you asked our Office to investigate the Government’s purchasing and administration of Rapid Antigen Tests (RATs) as part of the Covid-19 health response.

Your concerns

Your letter raises concerns in two areas.

The first relates to the process of ordering RATs by the Government and, in particular, you refer to reported claims that the Government commandeered orders of RATs by the private sector. The questions you have raised include:

  • What instructions, if any, were issued to suppliers regarding the requisition of RATs by the Government?
  • What powers, if any, did the Government rely on in requisitioning RATs from the private sector?
  • Were only “forward orders” of RATs taken by the Government, or was stock also already in the country taken (and if so, how much?); and
  • How many RATs were commandeered or requisitioned by the Government in total?

The second area in which you have concerns relates to whether the Government ordered its own stock of RATs quickly enough. In your view, while the situation has now improved, there was a shortage of RATs in the first three months of this year, and it was difficult for people to get ”ready access to them when they were needed”. You consider that the Government should have started to order RATs before it did so in November 2021.

You also commented in a press statement on 7 May this year that you were concerned the Government had delayed processing applications to approve RATs and was not moving quickly enough to provide those applications. In that statement, you commented that our Office should also be reviewing that situation.

The focus of our work

As you know, the Auditor-General has a range of functions that help Parliament and the public hold public organisations to account for their use of public money. Those include annual audits of public organisations, monitoring expenditure against parliamentary appropriations, and looking more closely at how public resources have been used and the effectiveness of spending by public organisations through performance audits and inquiries.

Our work can include examining whether a public organisation has followed an appropriate or agreed process in making a particular decision and whether it has adequate controls in place to ensure it can account for the money it spends and deliver services that provide value for money. However, it is not our role to express a view about the merits of a particular decision or the policy sitting behind that decision. We also note that whether an inquiry or performance audit is carried out is a discretionary decision of the Auditor-General. We carefully weigh the nature of the issues that might be considered, the resources that will be required, and other issues we are looking at or intend to look at. 

Our Office’s interest in Covid-related spending

As you will be aware, our Office has an interest in the Government’s spending in response to the Covid-19 pandemic. That is both in a health context (for example, about vaccine roll-out and saliva testing procurement) and more generally. Examples of work in this area are available on our website.1

The issues in this case

In this case, your concerns are, in essence, that the Government did not move quickly enough to secure sufficient RATs and, when it did so, that might have been done inappropriately because stock may have been commandeered that was intended for the private sector.

Although we have an interest in the Government’s spending and actions in relation to Covid-19, we do not propose to carry out any further work in relation to the matters you have raised. We set out our reasons below.

Commandeering or requisitioning of RATs

Considering whether the Government has inappropriately consolidated or “commandeered” orders of RATs from the private sector involves, in our view, drawing conclusions about whether the Government has acted lawfully or in a way that affected a person’s contractual entitlements to RATs. This falls outside the Auditor-General’s mandate.

We have the ability under section 16 of the Public Audit Act 2001 to consider a public organisation’s compliance with its statutory obligations. However, this does not extend to concluding about the legality of actions it might have taken or performing a court’s role in considering a breach of law or contractual obligations owed to another person. 

We also note that in February 2022 the Government made public statements that orders were being processed in line with the sequence that they were made, and that work was under way on how to prioritise allocation of testing, with a focus on emergency or critical services first.

The ordering of RATs and approving testing

Your other concern is that the Government did not act quickly enough to begin ordering RATs early enough for them to be available to the public when you consider they ought to have been, and then did not order them in sufficient quantity. Decisions about the role of RATs in response to Covid-19, how many RATs might be needed to meet the health outcomes sought, and the timing for obtaining them are policy choices for the Government to make. It is not our role to revisit those choices and comment on whether they were the right decisions to make.

We also note that, in relation to the availability of RATs, the Government said publicly that it relied on international experience and modelling to understand how many RATs will be required in New Zealand and when they will be needed.

Further, in relation to your concern about delays in approving the use of specific RATs, we consider that decisions by the Government about which tests to approve, and when those approvals are given, were matters of administration that we do not propose to revisit.

Thank you for writing to us. Because this is a matter of high public interest, I intend to publish this response on our website.

Nāku noa, nā

David Lemmon
Manager, Inquiries

1: Latest reports and letters – Office of the Auditor-General New Zealand (oag.parliament.nz)