Chesco officials spar over test kits

Controller’s Office begins formal examination of the county’s problematic purchase

WEST CHESTER » The Chester County Controller’s Office has begun a formal examination of the county’s problematic purchase of antibody test kits meant to determine the presence of the coronavirus in participants, including frontline workers who might have been exposed to the virus earlier this year.

The announcement of a review was, however, met with a backlash by the county commissioners, who suggested in an email statement that county Controller Margaret Reif had overstepped her bounds in initiating an investigation, and that their office should be given preference in examining the controversial testkit contract in an “independent” fashion.

The county has paid $13.29 million of a $20 million contract to the firm that produced the newly developed antibody tests, even though it stopped receipt of the kits in June after only 102,000 of a contracted-for one million kits were delivered, at a cost of $2 million. The no-bid contract that was negotiated by county officials and the firm, Uwchlan-based Advaite, reportedly does not include a provision for a refund of the funds paid to date.

Reif said earlier this week that her office would investigate the circumstances surrounding the contract.

“Consistent with my authority and responsibilities as controller, my office has already begun a review of the procurement of the Advaite test kits so that recommendations may be provided on how policies and procedures can be improved going forward,” she said in an email this week. “This will be done without any additional expense to the taxpayers.”

Reif, the county’s fiscal watchdog, said that the review was in its preliminary data-gathering stage, but would later include interviews of county personnel in

volved in the purchase of the tests kits and the decision to eventually stop the testing program, which was announced in April to great fanfare as a first in the fight against COVID-19.

The announcement of the formal review comes in the wake of the news last week that the county is offering new antibody tests for the presence of the coronavirus to about 6,200 of those who were administered similar tests in May and early June, tests whose results have been shown to be questionable.

The county’s move included an acknowledgment that test kits purchased from Advaite that were supposed to detect the presence of the virus in blood samples obtained through finger pricks that could provide faster identification of possible infections provided an inordinate amount of positive results that may have been faulty.

The county commissioners had also said last week that their office would begin its own legal review of the procedures used in procuring the tests, and a look at what efforts might be taken, if any, to recover a portion of the $13.2 million paid to the company. The 102,000 test kids the county received before it told Adviate to stop delivery cost $2 million.

That legal review was the subject of the commissioners’ apparent broadside at Reif’s investigation.

“Our intent is to conduct a thorough independent investigation of all steps taken in the procurement of the antibody tests,” the commissioners — Democrats Marian Moskowitz and Josh Maxwell, and Republican Michelle Kichline — said in an email. “That requires the expertise of an independent legal consultant to help us define and implement policies, procedures and best practices going forward.”

The statement from the commissioners suggested that the county Controller’s Office might not have the authority to pursue its stated “review” of the matter.

“The authority and duties of the County Controller is to provide accounting, auditing, accounts payable and payroll services to county government,” the statement read.

“Given the seriousness of this matter, it is our belief that the only way to achieve true independence is to have consultants who are not county elected officials, are not associated with Chester County government, were not involved in any portion of this procurement and subsequent payments, and whose qualifications include independent reviews of significant events to make recommendations on ways to improve.

“We have already appointed that independent legal consultant and they have begun their review,” the statement said. The county has hired the Philadelphia law firm Brown McGarry Nimeroff, which specializes in commercial litigation and has an office in West Chester, to conduct its investigation, a county spokeswoman, Becky Brain, confirmed Wednesday.

“We appreciate the controller’s consideration of this matter, but will continue to exercise our authority with an independent focus to ensure the best possible services and programs are made available to citizens at all times, including during a global pandemic,” the trio said.

In response, Reif in an email cited the provisions of the state’s County Code that spell out the duties of a controller. In the code, she noted that although county commissioners have the authority to hire accountants “independent of and/or in addition to, that conducted by the county controller” to audit the fiscal affairs of the county, those reviews “shall supplement, but not replace, the official acts and audits of the controller.”

Reif, a Democrat who took office in 2018, said that her investigation into the purchase of the test kits would be different from an official audit of the program, which would have been procedurally more limited in scope.

“We were advised by our external auditors to engage in what is known as a ‘consulting arrangement,’ as opposed to an audit,” she said in an email. “This will allow us the flexibility to look where we need to look, gather facts, and make recommendations regarding policies and procedures.

She stressed that the procedure followed by the commissioners’ office in entering the contract with Advaite without the normal bidding process appeared proper at the outset, since it was related to the emergency caused by the COVID-19 pandemic.

“Disaster declarations invoke a different set of procurement procedures to allow flexibility and quick responses in order to address an emergency,” she wrote. “Under the state of emergency, a no-bid contract in response to the pandemic appears to have been within the commissioners’ authority.”

Reif also said she is asking the county to develop a procedure for future contracts under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The test-kit contract was intended to be paid for out of the $90 million the county has received in federal COVID-19 related grants to date; it is unclear whether that will now be possible.

“I have recommended to the Board of Commissioners that we implement a CARES Committee that would include (the departments of) finance, procurement and the controller’s office – as other counties around the state have done — to monitor all CARES expenditures,” she said.

The steps by the controller and the commissioners came after critical reports about the multi-milliondollar testing program intended to identify essential workers who had developed disease-fighting antibodies, which show up in the blood after COVID-19 infection.

The West Goshen grassroots activist whose Rightto-Know requests unearthed evidence of overinflated positive results, praised the controller’s step, but suggested the proposed CARES oversight committee could be expanded.

“As a local government watchdog who advocates for financial accountability and transparency, I’m encouraged by the steps (the controller) is taking to improve the procurement policies of the county,” said Margie Swart in an email Wednesday. “I hope that any CARES committee formed would include citizen involvement with the meetings open to the public.”

In the first few weeks after testing began May 7, the tests produced results that appeared to be accurate. But two weeks later, the percentage of people testing positive for coronavirus antibodies began spiking to levels far above what was plausible, based on the prevalence of the virus in the area. The county eventually shelved the program June 2.

The U.S. Food and Drug Administration says antibody tests should not be used to diagnose COVID-19. But county health officials and their lab partner decided to interpret certain results as signaling a current infection. Patients with those results received emails stating: “You may have COVID-19. You are likely contagious. You should isolate yourself at home.”

The county, though, never informed those who may have received false alarms, nor did it disclose the questionable results — about 6,100 of the 19,425 tests it conducted — on its website.

In their statement last week, the commissioners said they were sorry they did not communicate better regarding the results.