TRIBUNAL OF INQUIRY
(PAYMENTS TO MESSRS CHARLES HAUGHEY AND
MICHAEL LOWRY)
APPOINTED BY INSTRUMENT OF AN TAOISEACH
DATED THE 26TH DAY OF SEPTEMBER 1997
(“THE TRIBUNAL”)
SOLE MEMBER: THE HONOURABLE MR. JUSTICE
MICHAEL MORIARTY
OUTLINE SUBMISSIONS TO THE TRIBUNAL ON BEHALF OF
TELENOR
MATTER : THE NON-AVAILABILITY OF MICHAEL ANDERSEN
(FORMERLY OF ANDERSEN MANAGEMENT INTERNATIONAL) TO
PROVIDE SWORN TESTIMONY TO THE TRIBUNAL
Kilroys,
Solicitors,
69 Lower Leeson Street,
Dublin 2.
TABLE OF CONTENTS
PART 1 – THE ROLE OF MICHAEL ANDERSEN AND ANDERSEN
MANAGEMENT INTERNATIONAL A/S IN GENERAL TERMS
(i)
(ii)
(iii)
BACKGROUND
ANALYSIS OF ROLE OF MR. ANDERSEN AND AMI GENERALLY
CONCLUSION
PART 2 – THE ROLE OF MR. ANDERSEN AND AMI BY
REFERENCE TO THE DOCUMENTARY EVIDENCE OPENED TO
THE TRIBUNAL TO DATE AND RELEVANT EXTRACTS FROM THE
TRANSCRIPTS OF THE PUBLIC SITTINGS OF THE TRIBUNAL
(i)
INTRODUCTION
(ii) THE AMI PROPOSAL
(iii) THE ANNOUNCEMENT OF AMI AS CONSULTANT
(iv) THE SERVICES PROVIDED BY AMI PURSUANT TO THE TERMS OF THE
CONSULTANCY CONTRACT AND OTHERWISE
(v)
EXECUTION OF THE TENDER AND EVALUATION PROCESS
(vi) DOCUMENTATION AND ORAL EVIDENCE DISCLOSED IN PUBLIC
SESSIONS SUPPORTING THE INTRINSIC ROLE OF MR. ANDERSEN
(vii) AMI’S OWN ASSESSMENT OF THE GSM2 TENDER
(viii)
CONCLUSION BASED ON THE EVIDENCE IN SCHEDULES 1 AND 2:
PART 3 – LEGAL IMPLICATIONS OF THE NON-AVAILABILITY OF
MICHAEL ANDERSEN TO GIVE EVIDENCE
(i)
ANALYSIS OF THE TERMS OF REFERENCE
(ii). ESSENTIAL REQUIREMENT FOR EVIDENCE FROM MICHAEL ANDERSEN
(iii)
POSITION OF TELENOR
(iv) DUTY OF TRIBUNAL TO PROCURE MR. ANDERSEN’S EVIDENCE
(v)
RELEVANT LEGAL PRINCIPLES
(vi) LEGAL EFFECT OF NON-AVAILABILITY OF MR. ANDERSEN
PART 4 – CONCLUSION
SCHEDULE 1
SCHEDULE 2
SCHEDULE 3
PART 1 – THE ROLE OF MICHAEL ANDERSEN AND ANDERSEN
MANAGEMENT INTERNATIONAL A/S IN GENERAL TERMS
(i)
BACKGROUND
Although the original evaluation criteria listed in the RFP on 2nd March 1995 was
drafted by another firm of consultants, Andersen Management International A/S
(“AMI”) was retained at a very early stage in the tender process for the award of the
GSM2 licence.
AMI had very substantial experience in this area having advised on and administered
many competitions of a public procurement nature, and in excess of one hundred and
twenty mobile communications licences.
In contrast, the relevant civil servants in the Department of Transport, Energy &
Communications (“the Department”), however competent and experienced in the
area of policy and regulation, had never personally administered any such
competitions.
Accordingly, the experienced role of Mr. Michael Andersen (“Mr. Andersen”) and
AMI was a key factor in the administration of the competition, the implementation of
the evaluation process and in the conclusions, which were ultimately arrived at in
early October 1995, and reported to the relevant Minister on or about 24 th October
1995, leading to the Government decision of 25th October 1995.
More specifically, AMI, through its principal, Mr. Andersen, devised a sophisticated
and complex evaluation model which elaborated the initial evaluation criteria in the
RFP document issued by the Department on 2nd March 1995 and applied what might
be described as a reductionist approach to various elements in the evaluation criteria.
In particular, a system of dimensions, indicators, sub-indicators and aspects was
devised and the evaluation model included both the measurable quantitative model
and the more evaluative qualitative model. Such an elaboration of the original criteria
in the construction of the method of measuring the competing bids with reference to
those criteria was, of necessity, to be the almost exclusive function of Mr. Andersen
and AMI, which uniquely had, in the evaluation process, the experience, expertise
and skill sets required effectively to perform this function.
It is submitted that no aspect of the PT GSM evaluation of the matter was carried out
in isolation from Mr. Andersen and AMI. On the contrary, every aspect of the
evaluation process involved the active and ongoing involvement Mr. Andersen and
his colleagues in AMI who attended all meetings in Dublin post the appointment of
AMI and who were present at crucial stages, including during the Oral Presentations
in Dublin between the 11th and the 14th September 1995. The specific elements of the
competing bids were carefully examined by AMI to the extent that AMI was obviously
the dominant factor in the measurement of the performance of the competing bids,
according to the criteria and the model which had been devised. Mr. Andersen was
truly the guiding light in this process and it was perfectly natural and appropriate
that he was such.
In particular, Mr. Andersen had a crucial role in relation to dispensing with the
quantitative model (because of its apparent unsuitability) and he was actively
involved in the selection of the recommended winner.
(ii)
ANALYSIS
OF
ROLE
OF
MR.
ANDERSEN
AND
AMI
GENERALLY
Having regard to the above, the advisory, implementation and “hands on” role of Mr.
Andersen and AMI’s representatives, who themselves were experts in the area, was
intrinsic, integral and central to the evaluation process, to the extent that the
following is clear:-
1.
Having regard to the expertise and experience of AMI and, in particular, of
Mr. Andersen personally, they were intended to be and were in fact crucial to
the progress of the evaluation process and in the selection of a recommended
winner.
2.
There was no aspect of the process which did not actively, substantially and
crucially involve Mr. Andersen as the critical influence and force in the
process.
3.
It is impossible to separate out and to identify the separate roles of AMI and its
representatives and, in particular, Mr. Andersen because of how inextricably
Mr. Andersen and AMI were bound up in the process.
4.
The various crucial decisions made during the process including the devising
of the detailed evaluation model, the application of that detailed model, the
development of the weightings, the measurement of the competing bidders
against those weightings, the adjustment of the results and the working out of
the application of conclusions based on the methodology and models devised
by AMI resulted in a position in which, however valuable it may be argued
that the role of the PT GSM was, it was in a real sense subsidiary to the greater
experience and expertise of AMI and to the dominant role of Mr. Andersen in
devising and implementing an extremely sophisticated and complex
evaluation model.
(iii)
CONCLUSION
Consequently based on documents in the public domain, the transcripts of the
testimony of the members of the PT GSM and the responses to the questioning raised
by Counsel for the Tribunal, it is clear that Mr. Andersen and AMI were not merely a
crucial and vital element of the evaluation process but in fact it was Mr. Andersen and
AMI who, in a real sense, devised, performed, implemented and concluded the
evaluation process and all the fundamental aspects thereof. The functions of the
relevant members of the PT GSM were important in an overall policy point of view.
The PT GSM was involved in the original process prior to 2nd March 1995 of devising
the evaluation criteria in conjunction with other consultants and in bringing local
knowledge and expertise to bear but ultimately, it was Mr. Andersen and AMI who
clearly directed and controlled the entire evaluation process, albeit in close
communication with the PT GSM , and Mr. Andersen and AMI were intimately
involved in the selection of the ultimate recommended winner.
PART 2 – THE ROLE OF MR. ANDERSEN AND AMI BY
REFERENCE TO THE DOCUMENTARY EVIDENCE OPENED TO
THE TRIBUNAL TO DATE AND RELEVANT EXTRACTS FROM THE
TRANSCRIPTS OF THE PUBLIC SITTINGS OF THE TRIBUNAL
(i)
INTRODUCTION
AMI became involved with the public tender of the GSM 2 licence in response to an
invitation to tender which was published in the Official Journal of the European
Communities in late 1993. AMI responded by submitting a pre-qualification document
initially.
The competition was launched on 2nd March 1995 with 23rd June 1995 as the closing date.
The competition process was suspended following questions raised by the EU Commission
in relation to the competition process and, in particular, the proposed auction element of the
licence fee. The closing date for the competition was re-scheduled to 4th August 1995 so as to
facilitate the resolution of the issues raised by the Commission.
(ii)
THE AMI PROPOSAL
AMI prepared a proposal entitled “Detailed and costed proposal for tailor-made expert and
consultancy services in connection with the evaluation and licence award to an operator to
instal and operate a second GSM network in Ireland” (“the Proposal”) which was submitted
to the Department on 16th March 1995 and which was accepted by the Department in late
March 1995.
The Proposal was a comprehensive submission incorporating an analysis and formulae in
respect of the following:-

AMI’s perception of the complexity of the GSM2 tender;

Suggested solutions to some of the anticipated problems and challenges
relating to the legal and regulatory framework;

A preliminary outline of the work programme;

Specific comments and suggestions concerning evaluation models;

Profile of competence and suggested staffing, incorporating Mr. Andersen as
team leader and the key person;

Details of references for assisting regulators within the field of mobile
cellular telephony;

Objectives for ensuring transparency, independence and confidentiality; and

Budgetary and contractual projections.
The Curriculum Vitae of Mr. Andersen is incorporated in the Annex to the Proposal and sets
out the extensive experience of his “thorough knowledge of management and aspects of
infrastructure” in relation to GSM tendering and operating of GSM operators in Europe.
The attraction of Mr. Andersen and of AMI is that they possessed a unique and proprietary
model for evaluating such competitions having refined the model and its application through
the conduct of so many similar competitions.
(iii)
THE ANNOUNCEMENT OF AMI AS CONSULTANT
The announcement of the appointment of AMI as the GSM Consultant to assist the
Department with the competition was made on 11th April 1995. In that announcement, it was
stated as follows:“The major part of the consultancy is to carry out a detailed evaluation of the
competing bids for the licence but the consultants will also assist with all other
aspects of the competition. The Minister said that Andersen’s are particularly well
suited to be his independent advisors taking account of experience gained while
recently undertaking similar tasks for both the Danish and Dutch governments”.
Prior to the contract with the Department, AMI and Mr. Andersen had assisted a number of
similar EU countries with GSM tender qualifications, in particular in Denmark, Norway and
the Netherlands.
Mr. Andersen, team leader, and Marius Jakobsen, a senior consultant with AMI, attended at
the meeting of the PT GSM on 19th April 1995 and thereafter representatives of AMI were in
attendance at all of the PT GSM meetings. It was noted at the 19th April 1995 meeting that
draft contracts has been drawn up for signature by the Department and AMI at that date but
such draft contracts were subject to the approval of the Office of the Chief State Solicitor
prior to signature.
(iv)
THE SERVICES PROVIDED BY AMI PURSUANT TO THE TERMS
OF THE CONSULTANCY CONTRACT AND OTHERWISE
The Consultancy Agreement between the Minister and AMI was not signed until 9th June
1995. Under the terms of the Consultancy Agreement, it was agreed that the services to be
provided by AMI would include:

The development of the evaluation model;
Responses to questions submitted to the Department by prospective
applicants;

A detailed evaluation of the applications received in accordance with the
evaluation model developed and in accordance with the consultancy tender;

A comprehensive written report on the outcome of the evaluation carried out
by AMI; and

Preparation of a draft licence for eventual award to the successful applicant.
However, after the signing of the Consultancy Agreement it was necessary to amend it with
regard to the scope of work. These amendments were necessitated because the work done by
Mr. Andersen and AMI included work outside the scope of the tender for consultancy
services which AMI had responded to initially such as:
work related to dealing with the Commission’s involvement with the tender
process;

advising with regard to complaints from interested parties;

issues arising from the inadequate nature of the original tender documents;
and

what AMI perceived as hold-ups caused by the Department’s delay in
allocating personnel resources to the sub-evaluation groups;
AMI acknowledged that “there was less than perfect preparation by the Department prior
to AMI’s involvement in the tender process”. Amendments to the Consultancy Agreement,
necessitated by additional work required to be performed by AMI and Mr. Andersen, were
agreed on 14th June 1995 and again on 14th September 1995. These adjustments reflect how
central and crucial the role of Mr. Andersen and AMI was. It was Mr. Andersen who became
involved and advised in the course of the process extending to involvement in and advising
on issues not specifically provided in the tender document but which impacted on the
process and upon which the Department was obliged to obtain expert advice for the
purposes of seeking resolutions to the relevant issues and moving the process forward.
The evaluation criteria decided by the Department in co-operation with the consultants prior
to AMI’s involvement had been set out in paragraph 19 of the RFP document. AMI’s and Mr.
Andersen’s view as clearly revealed in AMI’s own documentation was that the tender as
designed by the Department and the previous consultants did not comply with standard
European practice for GSM Mobile tenders. In particular, the areas of tender specifications
and evaluation methodology were lacking.
(v)
EXECUTION OF THE TENDER AND EVALUATION PROCESS
The PT GSM comprised members from the then three telecommunications divisions of the
Department and representatives from the Department of Finance. The Project Team
included AMI personnel, including Mr. Andersen, as team leader, co-ordinated all aspects of
the evaluation process following the announcement of AMI as the external consultants to the
Department. The documentary evidence including transcripts of oral testimony available to
the Tribunal reflects the importance of Mr. Andersen and shows how he was intrinsic to,
fundamentally impacted on and steered each and every aspect of the evaluation process and,
in particular, the following areas and developments in the course of the process:-

Advising on all aspect of the evaluation model and the quantitative and
qualitative aspects of the evaluation including aspects, dimensions,
indicators and sub-indicators;

Attending at all of the PT GSM meetings held after the appointment of AMI
had been announced;

Advising in relation to the guidelines issued on 12th May 1995 including
further points of clarification in respect of the tender documentation,
guidance on assumptions for the preparation of applications, a number of
mandatory tables requesting quantitative information in a specific form and
on a particular basis, the purpose of which was to clarify and seek
information in a particular format from the interested parties so as to
facilitate as far as possible comparative evaluations on a like for like basis;

Assisting and advising the Department in the drafting of some of the
answers provided in the Information Memorandum issued to applicants on
28th April 1995;

Advising and recommending revised weightings which were subsequently
approved by the PT GSM;

Designing and advising in regard to the steps to be executed in connection
with the evaluation process including designing the appropriate time fame
for the execution of all relevant steps and work programmes in connection
with same;

Advising in relation to its assessment of the issues raised by the Commission
which issues led to delays in the original time frame proposed;

Advising on the conformance of the applications received for the licence with
the minimum requirements;

Drafting of sets of questions for discussion at the oral presentations
generally;

The preparation of applicant-specific questions to be addressed to the
applicants to secure the proper evaluation of the relevant applications
covering general business case questions and marketing, technical,
management, financial and other questions covering all aspects of the
applications and a separate list of questions dealing with technical
dimensions;

Providing an outline of the underlying philosophies and weak points of each
application for the preparatory meeting held in advance of the first of the oral
presentations and attending and playing a significant participatory role in
the course of the oral presentations;

Furnishing of a draft report in respect of the quantitative evaluation of the
applications;

Preparation and issuing of the various draft evaluation reports and
appendices dated 3rd, 18th and 25th October 1995 respectively for submission
to the PT GSM in respect of the evaluation process and recommendation of a
winner of the tender;

Preparation of the draft licence;

Advising with regard to the incorporation of information submitted in the
application of the successful bidder into the final licence;

Commenting on the content of the draft rejection letter for each
unsuccessful applicant prepared by the Department;

Attending at meetings with disappointed applicants;

Participation in the first licence negotiation meeting with Esat Digifone
Limited on 9th November 1995;

Generally, (as expressly referred to in the letter of 14th September 1995 from
Mr. Martin Brennan to Mr. Andersen), carrying out such work as would
generally be considered reasonable in order to ensure a fair and objective
evaluation of the applications for the GSM licence.
(vi)
DOCUMENTATION AND ORAL EVIDENCE DISCLOSED IN
PUBLIC SESSIONS SUPPORTING THE INTRINSIC ROLE OF MR.
ANDERSEN
The documentation specified in Schedules 1 and 2 annexed to these submissions reveals and
underscores the inherent and fully pervasive role of Mr. Andersen as team leader in the
entirety of the evaluation process and the outcome of that process. There was no aspect of
the process in which Mr. Andersen and AMI was not involved as is evident from the
documentation contained in Schedules 1 and 2.
The fundamental role of Mr. Andersen is further underscored by what is evident from the
notes of the meeting of the PT GSM held on 23 rd October 1995 to consider one of the draft
evaluation reports prepared by AMI. These notes reflect the PT GSM’s position that, whilst
the presentation of the analysis prepared by AMI was not acceptable to the Regulatory,
Technology and Department of Finance members of the PT GSM, there was general
satisfaction with the detailed analysis and the final result as contained in the draft report.
The substantive focus of the Department was on presentational and drafting issues.
The Minister himself in reply to Parliamentary Questions raised on the 22nd November 1995
stated that AMI were “a highly experienced company” with “particular expertise and
experience in the evaluation of GSM tenders”. The Minister further stated that “The
Consultants report on the outcome of the evaluation makes it clear that the approach to the
evaluation including the relative weighting of the selection criteria was settled in detail
and documented before the closing date. It is clear that the Consultants played a full
role in the evaluation process and their involvement was necessary to ensure
that the process would be accepted as fair”. [Emphasis added]
Martin Brennan as the Chairman of the PT GSM acknowledged (draft press statement dated
19th April 1996) that although he “personally managed the project” he had “dozens of
meetings…….in what was a learning phase” for him. It is clear that the substantive and
detailed analytical work was carried out by Mr. Andersen and by AMI nominated personnel.
Mr. Andersen was an acknowledged “guru” in connection with the process. In a real sense,
he was the judge and assessor of the competing bids and he had worked out the specific
evaluation methodology for doing this.
Further, the Minister subsequently stated in a prepared script (Tab 201 Book 44
Department’s Documents) that the preparatory phase included an “open door” consultation
process with interested parties. This was “to a large extent….a learning phase for the
Department where various options in relation to the process as a whole were canvassed
with consultants and interested parties”.
Mr. Brennan has been examined more extensively than any other single witness during this
phase of the Tribunal’s inquiry. A much more central and influential role in the entirety of
the design, evaluation and selection of the outcome of the GSM2 tender was performed by
Mr. Andersen. He was the oracle in the process.
The significance of the role of Mr. Andersen and AMI as intrinsic to the evaluation process is
further evident when account is taken of the fact that when the PT GSM was divided into ten
evaluation sub-groups to evaluate different aspects i.e. evaluation criteria, dimensions and
indicators as envisaged in the AMI evaluation model, each sub-group comprised consultants
from AMI.
These sub-groups dealt with all dimensions of the evaluation criteria in paragraph 19 of the
RFP and specifically:
Market development

Coverage

Tariffs

International roaming plans

Radio network architecture

Network capacity

Frequency efficiency

Performance guarantees

Financial key figures; and

Experience
Approximately, one-third of the sub-group evaluation meetings took place in Copenhagen.
The documentation disclosed during this phase of the inquiry and the examination of Mr.
Brennan and other “Department witnesses” establishes the overwhelming significance of the
role, involvement, functions and performance of Mr. Andersen as team leader and as
director of the evaluation process. It is apparent from the documentation that he was the
person who undertook the building and design of the quantitative and qualitative criteria,
the primary author of the draft reports, leading to the final report and had a principal and
underlying role in the final recommendation. These factors cannot be divorced from any
aspect of the evaluation process carried out by other members of the PT GSM.
The documentation annexed in Schedules 1 and 2 proves Mr. Andersen’s fundamental
function as the “guiding light”, the central actor and the primary influence in accepted to be
a chief role in what was a “learning phase” for the officials in the Department. Mr.
Andersen’s influence permeated every part of the evaluation process and the documentary
evidence and the testimony of Mr. Brennan and Mr. Towey supports this fact. Mr. Andersen
directed and managed every aspect and facet of the process. This he and his AMI colleagues
were both equipped to do and were expected to do because of the very extensive experience
reflected in the Proposal and which was delivered so as to direct, assist, support and bolster
the significant lack of expertise and experience of the civil service members of the PT GSM.
Even without examining the AMI internal working papers and the analytical exercises
carried out in preparation for communication to the rest of the PT GSM, it is obvious from
the papers and records of the PT GSM that Mr. Andersen coordinated and integrated the
work done by himself and other AMI personnel on the evaluation process and he drew
together the different elements into a comprehensive and coherent analysis using the special
and unique skills and embedded expertise of Mr. Andersen and of the relevant AMI
personnel.
(vii) AMI’S OWN ASSESSMENT OF THE GSM2 TENDER
AMI in its overall assessment of the GSM2 tender contained in the AMI memorandum of
January 2002 (“the AMI Memorandum”) stated that “it is the opinion of AMI that for the
part of the tender process that AMI was involved in, the process was - in the main -carried
out in a professional and correct manner…….It is also the opinion of AMI, that Esat
Digifone - objectively and having taken into consideration the issues of criticism mentioned
below - handed in the best application as against the other applicants according to the
evaluation criteria and their descending order of priority. In AMI’s opinion the evaluation
result nominating Esat Digifone as the winner thus was and is the right result”.
The primary issues of criticism referred to matters such as the fact that not all of the
evaluation criteria listed in paragraph 19 of the RFP were in the opinion of AMI suited to
form the basis for a comparative evaluation on the basis that the RFP did not simultaneously
develop an evaluation model document and the exclusion of AMI from part of the licensing
negotiations and supplementary analyses because of budgetary constraints. It is submitted
that these factors do not impede or detract in any way from the cornerstone involvement of
Mr. Andersen as team leader of AMI in the entire evaluation process itself nor on the
outcome of the competition.
The AMI memorandum reflects AMI’s position (and presumably that of Mr. Andersen, as the
director of the evaluation process), that the evaluation process was carried out on an
objective and fair basis, that the integrity of the evaluation process was not in any way
undermined and, even with the benefit of hindsight, whilst there may have been (according
to the very exacting standards and wealth of experience of AMI and Mr. Andersen)
blemishes in the process, such blemishes were not the result of any manipulation and more
significantly, notwithstanding any such blemishes, the recommended winner in the view of
AMI was the correct result. The blemishes did not go to the substance of the result. Clearly,
the AMI Memorandum gives no indication that there was or could have been any
interference in the process and, based on what is contained in the AMI Memorandum, there
is nothing to indicate that the process was other than designed to be and was free of any
direct or indirect Ministerial influence.
Based on the AMI Memorandum, it is clear that the potential for the exoneration of the
evaluation process by the attendance of Mr. Andersen to give evidence cannot be
underestimated. This factor alone demands the availability of Mr. Andersen as an essential
witness. Only Mr. Andersen can adequately and properly address in his direct evidence
many of the issues and queries which have arisen following the Tribunal’s scrutiny of the
process.
(viii)
CONCLUSION BASED ON THE EVIDENCE IN SCHEDULES 1
AND 2
In the view of Telenor, Mr. Andersen must be called as a witness because he is indispensable
in explaining the entirety of the evaluation process, in which he was an intrinsic and
fundamental participant. He was responsible for steering the process from a background of
superior expertise and experience to the other PT GSM members. The evaluation process
could not have been executed or completed or a recommendation issued without Mr.
Andersen. It is inconceivable therefore that an inquiry which involves a scrutiny of the
process could be executed or completed without Mr. Andersen giving evidence to the
Tribunal.
PART 3 – LEGAL IMPLICATIONS OF THE NON-AVAILABILITY OF
MICHAEL ANDERSEN TO GIVE EVIDENCE
(i)
ANALYSIS OF THE TERMS OF REFERENCE
Under the Tribunal’s Terms of Reference, the Tribunal is requested
“to inquire urgently into and report to the Clerk of the Dáil and make
such findings and recommendations as it sees fit, in relation to”
inter alia ……………………..
“(g) Whether any substantial payments were made directly or
indirectly to Mr. Michael Lowry, … during any period when
he held public office in circumstances giving rise to a
reasonable inference that the motive for making the payment
was connected with any public office held by him or had the
potential to influence the discharge of such office.”
The Tribunal was requested
“to conduct its enquiries in the following manner, to the extent that it
may do so consistent with the provisions of the Tribunals of Inquiry
(Evidence) Acts 1921 and 1979:(i) to carry out such investigations as it thinks fit using all the powers
conferred on it under the Acts (including, where appropriate,
the power to conduct its proceedings in private), in order to
determine whether sufficient evidence exists in relation to any
of the matters referred to above to warrant proceeding to a
full public inquiry in relation to such matters,
(ii) to enquire fully into all matters referred to above in relation to
which such evidence may be found to exist, and to report to
the Clerk of the Dail thereupon,
(iii) in relation to any matters where the Tribunal finds that there is
insufficient evidence to warrant proceeding to a full public
inquiry, to report that fact to the Clerk of the Dail and to
report in such manner as the Tribunal thinks appropriate, on
the steps taken by the Tribunal to determine what evidence, if
any, existed …
…………………………….
And that the
Inquiry
House that
person or persons selected to conduct the
should be informed that it is the desire of the
(a) the Inquiry be completed in as economical a manner as possible
and at the earliest date consistent with a fair examination of
the matters referred to it, and
(b) …” [emphasis added]
The Terms of Reference further provide that the Taoiseach in pursuance of both
resolutions orders the Tribunal so appointed
“………..to enquire urgently into and report and make such findings
and recommendations as it sees fit to the Clerk of the Dail on the
definite matters of urgent public importance set out at paragraph (a)
to (b) of the Resolutions passed by Dail Eireann on the 11 th day of
September 1997 and by Seanad Eireann on the 18th day of September
1997.” [emphasis added]
The highlighted portions of the terms of reference make clear that at the time of the
establishment of the Tribunal, the Dail required the Tribunal “to enquire fully” into
the various matters but it was anticipated that the Tribunal might not be able to
obtain complete evidence in regard to all of the matters upon which it had to enquire.
The Terms of Reference allow the Tribunal to approach the Clerk of the Dail and
report to it, where that is appropriate, that there is no evidence to warrant a public
investigation or inquiry. In the further directions of the Dail, towards the end of the
Terms of Reference, the Dail indicated the manner in which the inquiry had to be
completed, namely, that it had to carry out “a fair examination“ of the matters
referred to it. These references indicate that the Terms of Reference themselves
anticipated the difficulties which the Tribunal might face in regard to collecting
evidence and that nonetheless the inquiry had to be fair.
It is submitted that these directions to the Tribunal mean that the Tribunal, in
discharging its obligation to act fairly, must have regard to the fact that it might not
have a complete evidential picture available to it, even after it has conducted its
inquiries. This requirement also informs the obligation on the Tribunal to report to
the Dail and make such findings and make such recommendations “as it sees fit”.
This effect of this is that in deciding on the contents of the Report, findings and
recommendations, and in discharging the obligation to be fair, the Tribunal must
have regard to the extent to which it is in fact able to make a particular finding, by
virtue of the absence of any important evidence. The Tribunal would not be acting
fairly if it were to proceed to find facts in circumstances where there was not
adequate evidence to support those findings.
(ii)
ESSENTIAL REQUIREMENT FOR EVIDENCE FROM MICHAEL
ANDERSEN
The Tribunal has indicated that:
“………. Insofar as the Tribunal is scrutinising the evaluation process,
such scrutiny is for the sole purpose of enabling the Tribunal to make
findings of fact pursuant to paragraph (g) of its Terms of Reference.”
[emphasis added]
The clarification given by the Tribunal makes absolutely clear the importance of a
thorough and fair scrutiny of the evaluation process and of the essential participants
in that procedure. From the point of view of the public interest, the enquiry carried
out, if it is to be of any value, has to be full and fair.
Indeed, the requirement for Mr. Andersen’s testimony to the Tribunal is rendered
absolutely imperative as a result of the fact that the Tribunal has already and as early
as 26th March 2003, arrived at a view, although expressed as “tentative” in nature,
that the AMI Report (“the Report”) appears to be “flawed in a number of ways and
indeed may contain a number of seriously fundamental flaws.”
In its letter of the 26th March 2003 (contained in Schedule 3 hereof) to Landwell, Mr.
Davis, Solicitor to the Tribunal, stated that this tentative view of fundamental flaws
has been confirmed by the “expert assistance” of an expert whom we can only assume
is Mr. Peter Bacon.
Not only does the Tribunal state this confirmation but it also expresses the view that
“conclusions” (presumably of an adverse nature) “may be reached” and offering an
opportunity to the authors of the report to respond.
The letter emphasises, if such emphasis, were needed that the unavailability of Mr.
Andersen to defend aspects of the Report and of the evaluation process reported
upon in the Report is capable of resulting in adverse conclusions of a serious and
prejudicial nature.
These “views of fundamental flaws” had been formed by the Tribunal before the
Tribunal had even concluded its examination of the Department witnesses.
Telenor has the gravest of concerns that the contents of the letter demonstrates the
following:-
(i)
that the Tribunal has already prejudged issues of central importance to
the examination of the evaluation process;
(ii)
that the communication of these views to Mr. Andersen can only have
encouraged and/or exacerbated the concerns of Mr. Andersen and his
legal advisors that Mr. Andersen might have a legal exposure as the
primary author of the Report and the director of the evaluation
process and, consequently, that an indemnity was not merely prudent
but essential; and
(iii)
that prejudgement has been arrived at and can only be capable of being
properly and satisfactorily addressed by the personal attendance of
Mr. Andersen before the Tribunal in order to rebut the Tribunal’s
views as to the existence of flaws.
The Tribunal itself has already placed enormous importance on the details of the
evaluation process, for the purpose of forming a view pursuant to paragraph (g) of the
Terms of Reference. The Tribunal expended a large amount of time in public session
examining in detail various Departmental witnesses, including Mr. Martin Brennan
and Mr. Fintan Towey, in regard to the detailed procedure carried out by the PT GSM
in the evaluation process.
It has also examined an enormous amount of
Departmental documentation and has sought to analyse the mechanism used by the
PT GSM in arriving at its conclusion.
It is furthermore clear from the conduct of the inquiry that the Tribunal itself
considers that the details of the evaluation process are very important to its
determination of the issues arising in this module in relation to paragraph (g) of the
Terms of Reference. The Tribunal is concerned with the conclusion reached and what
may or may not have influenced it. It is impossible for the Tribunal to form a proper
view as to what may or may not have influenced that conclusion, without the evidence
of Mr. Andersen. It will be recalled that the Tribunal spent approximately six months
of its public hearings engaged in a detailed analysis of that very process. From the
point of view of understanding what took place, and having regard to the complete
inexperience of the civil servants in the conduct of such a competition previously, the
Tribunal will not be able to form a proper, fully informed and balanced view as to the
conduct of many aspects of that process in the absence of Mr. Andersen’s evidence.
Whereas the roles of Mr. Brennan and Mr. Towey in the evaluation process were
obviously of considerable importance, Mr. Andersen, as the outside professional and
only person who had expertise in the conduct of such competition, was as important,
if not even more important. Mr. Andersen was an independent foreign national
participating as a truly independent professional in the process unconnected with any
of the bidders. A considerable amount of his work was carried out in Denmark. The
evidence of such an outside professional is an essential component in any attempt by
the Tribunal to form a fair assessment of the circumstances of the award of this
Licence. As is clear from the detailed analysis above, he had an overwhelmingly
important role as the director of the competition process. The conduct of the
competition involved a sophisticated analysis of many highly technical matters,
involving complex evaluation techniques and issues, in respect of which Mr.
Andersen alone had the necessary professional expertise to guide the PT GSM. Mr.
Andersen was a therefore a critical element of the evaluation process and he guided
and steered the process throughout and brought it to a conclusion in the form of the
final recommendation. He was the primary author of the draft Reports and his
primary role in the final recommendation is inextricably linked to the entire
evaluation process which the PT GSM carried out. The roles and perspectives of Mr.
Brennan and Mr. Towey, as career civil servants, were very significantly different
from that of Mr. Andersen. Accordingly neither Mr. Brennan’s nor Mr. Towey’s
evidence could in any way substitute for that of Mr. Andersen.
Having regard to the very extensive nature of the investigation already carried out by
the Tribunal as to the detailed analysis of the procedures of the PT GSM, that
investigation has rendered the evidence of Mr. Andersen absolutely critical. In order
to complete and balance the range of evidence for the Tribunal to consider, it is
necessary that the evidence of Mr. Andersen be factored into the analysis. Mr.
Andersen is an essential witness if the Tribunal is to be able to understand properly
how the competition was run and why it was run that way. Mr. Andersen is necessary
to fully explain how the evaluation model and its application really worked. The
fundamental problem posed by Mr. Andersen’s non-attendance cannot be alleviated
on the basis suggested by the Tribunal in its letter of 19 August 2005, namely by
means of secondary evidence. Only Mr. Andersen can properly address any of the
fundamentally important issues that have arisen relevant to his role and the technical
aspects of the competition.
At present, there is no sworn evidence at all from Mr. Andersen. The memorandum
submitted by Mr. Andersen to the Tribunal is unsworn, and was given many years
after the events took place. Many questions have been put to various witnesses in
regard to the attitude or conduct of Mr. Andersen arising either out of documents
before the Tribunal or arising out of the evidence of other persons. The Tribunal have
not yet heard Mr. Andersen’s own evidence on these various matters. Mr. Andersen
might deny that certain events took place or that they took place in the context or
manner in which the other evidence might suggest they took place. None of the other
participants will have had an opportunity of cross examining Mr. Andersen on any
points of particular concern to any of them, where matters may not have been
previously raised with him by the Tribunal.
The non-availability of Mr. Andersen would mean that the Inquiry will be by nature
materially incomplete and in that sense unbalanced. In the case of many witnesses,
their absence would not have rendered the outcome of the inquiry materially
incomplete. However that would not be the case in the event of Mr. Andersen’s
absence because of his intrinsic role in the entire competition process.
(iii)
POSITION OF TELENOR
Telenor has been involved in the Tribunal process for over four years. It voluntarily
provided the fullest possible co-operation in relation to all aspects of the Tribunal
inquiry which were relevant to Telenor. Neither Telenor, nor its personnel, were
compellable witnesses but despite that, they made themselves voluntarily available to
give evidence to the Tribunal, including former executives of Telenor. Several of the
witnesses travelled to Ireland on two separate occasions to give evidence to the
Tribunal.
Telenor is entitled to have its reputation vindicated and already it has had to endure
four years during which various allegations and innuendos have been made in regard
to the award of a licence to the consortium, which allegations and innuendos have
naturally been offensive but also seriously damaging to it. Telenor, along with all
other parties before the Tribunal, was entitled to expect that Mr. Andersen’s evidence
would be taken and all impediments to that non-attendance would be overcome. That
remains Telenor’s position and it wishes that all steps be taken to ensure his
attendance. Mr. Andersen is a fundamental and essential witness for the process. He
is not a compellable witness, but he is willing to provide co-operation based on
certain conditions. Telenor submits that the request of Mr. Andersen for an
indemnity to address his not unreasonable concerns should be resubmitted to the
Government with a complete explanation of Mr. Andersen’s role and the critical
importance of his evidence.
(iv)
DUTY OF TRIBUNAL TO PROCURE MR. ANDERSEN’S EVIDENCE
Telenor has been provided with considerable correspondence indicating the
Tribunal’s efforts to procure Mr. Andersen’s attendance. Whereas the Tribunal has
made very considerable efforts to procure the attendance of Mr. Andersen, so far
these have not been successful. It is submitted that it is the statutory duty of the
Tribunal, having been appointed by the State to embark on the investigation, to
ensure that Mr. Andersen’s evidence is available, if the Tribunal is validly to arrive at
adverse conclusions on any of the issues involved in this module. The Tribunal has
indicated a possible connection between the evaluation process and paragraph (g) of
the Terms of Reference. In the absence of Mr. Andersen’s evidence, the Tribunal will
not be able to carry out a full and fair investigation of the evaluation process, as it is
required to do.
Whereas the Tribunal may have encountered difficulties with Mr. Andersen’s
attendance, that nonetheless does not discharge the obligation on the Tribunal to
procure his evidence, in the event that it wishes to arrive at a complete determination
by reference to paragraph (g) of its Terms of Reference. Should it happen that Mr.
Andersen’s evidence is unavailable to the Tribunal, then that will prevent the
Tribunal from arriving at any adverse conclusions on the various issues in which Mr.
Andersen was involved.
It is submitted that the duty of the Tribunal has not been discharged to date. Telenor
is surprised and disappointed that the Tribunal did not pursue all avenues available
to it to procure the evidence of Mr. Andersen. Whereas the Government has declined
to comply with Mr. Andersen’s request, as submitted to it by the Tribunal, that fact
does not excuse the Tribunal from its obligation to procure Mr. Andersen and to take
all necessary steps to procure his attendance to give evidence, in the event that the
Tribunal wishes to proceed to make adverse findings on the evaluation process.
It is submitted that the position of the Government, however understandable in the
context of the communications between the Tribunal and the Government as recently
disclosed and specifically outlined in the letter from the Government to the Tribunal
dated the 4 May 2005, (a copy of which is attached in Schedule 3) to comply with Mr.
Andersen’s request is nevertheless unacceptable from the perspective of a complete
inquiry. The Tribunal is linking the scrutiny of the evaluation process with paragraph
(g) of the Terms of Reference which indicates that what is at issue here is a potential
finding that a Government Minister was or was not guilty of corruption in relation to
a decision affecting a vital economic interest in the State. In such circumstances, it
cannot seriously be asserted that the public interest permits or justifies that Mr.
Andersen’s testimony be dispensed with, either by the Tribunal or by the
Government.
It is our submission that, whatever conditions are required in order to enable Mr.
Andersen to attend to give evidence to the Tribunal, they should be complied with to
the extent that those conditions are reasonable. It is not for us to comment on the
reasonableness or otherwise of the conditions but we submit that they are perfectly
understandable in the context of the correspondence exchanged between the
Tribunal and Mr. Andersen’s legal representative. We submit that the significance
and the value of Mr. Andersen’s evidence in terms of its weight, value and relevance,
may well be considered as outweighing any consideration of financial exposure
consequent on the provision of an indemnity as requested.
The Tribunal has not actually exhausted the procedures available to them to procure
the attendance of Mr. Andersen. No application has yet been made to invoke the
assistance of the Danish Courts in procuring evidence from Mr. Andersen in
Denmark. Whereas there may be difficulties in obtaining Mr. Andersen’s evidence
through such a procedure, it is not satisfactory that the apprehension of such
difficulties has led to no steps being taken at all.
No steps have been taken to date as far as Telenor is aware to pursue an alternative
solution to the problem caused by the Government’s refusal to provide the
indemnity. If the Government is concerned by the potential financial implications for
the State and for the taxpayer as a result of foregoing an opportunity in relation to
recovery of damages from Mr. Andersen personally, or from any other party, as a
result of any letter of comfort or waiver or indemnity, consideration should be given
to exploring the availability from a commercial insurance underwriter for an
extension of insurance cover under whatever policy or professional insurance is likely
to have been in place at the time that Andersen Management International and Mr.
Andersen performed the services for the State in 1995 and to a more limited extent in
1996.
With a suitable declaration that Mr. Andersen is now proposing to provide evidence
to the Tribunal, it may well be possible to obtain a special extension of such
professional insurance cover, with the payment of an additional premium, and to
elongate the period of insurance cover to include claims made for a period of years
thereafter. There is no evidence that any such attempts have been made to date to
explore such an alternative. In addition to, or as a further alternative to that
suggestion, it may be possible to obtain on a commercial underwriting market
“special risks” cover in respect of a “once-off” insurance risks of particular or nonstandard nature. Telenor believes that such possibilities must be explored and that at
this point the efforts to obtain Mr. Andersen’s attendance are not yet exhausted.
In the short timescale available for the making of these Submissions, we have not had
the opportunity of considering in detail the full extent of the correspondence and
communications exchanged between the Tribunal and Mr. Andersen and/or his
representatives but, such limited examination has been made, has caused
considerable concerns on the part of Telenor in relation to procuring the full cooperation and/or the sworn testimony of Mr. Andersen.
These concerns are as follows:(i)
As mentioned above, Telenor is surprised that, at the very least, the process of
initiating the obtaining of Mr. Andersen’s testimony in the Danish Courts has
not been commenced and that all of the available avenues to procure Mr.
Andersen’s testimony outside the jurisdiction have not been commenced.
(ii)
Telenor is surprised and disappointed that, in the event that Mr. Andersen
could not be procured to give evidence; that more determined efforts were not
made to procure the attendance of other AMI personnel, actively involved in
the project, to provide oral testimony to the Irish Courts on a voluntary basis.
It would appear that some steps were taken to initiate that process but the
documentation provided by the Tribunal does not reflect determined and
continuous efforts to procure the evidence of other AMI personnel in an
attempt to compensate, at least partially, for the unavailability of Mr.
Andersen.
(iii)
Based only on the correspondence between the Tribunal and the Government,
Telenor is surprised that the Tribunal’s correspondence does not sufficiently
emphasise the enormous significance of Mr. Andersen as a witness before the
Tribunal and the potential weight, value, and relevance of the evidence of Mr.
Andersen and, in particular, the fundamental importance of the role of Mr.
Andersen in relation to the evaluation process, which is an aspect which has
attracted the closest scrutiny from the Tribunal.
(iv)
Telenor is concerned that possible alternative to or supports for an
indemnity based, perhaps on insurance or other solutions, are not being
pursued with sufficient diligence having regard to the need for Mr. Andersen’s
testimony.
(v)
The Tribunal’s explanation and description of the role of Mr. Andersen has not
been fully explained to the Government. The Tribunal has not explained the
degree of significance to be attached to Mr. Andersen’s expected evidence in
relation to his central role in the process.
Based on the written
documentation only, it appears that the Government has been informed that
Mr. Andersen’s evidence would be “helpful” but Telenor is not aware of the
Tribunal having informed the Government that the examination of Mr.
Andersen would be more than helpful and might potentially be decisive in
relation to many issues.
(v)
RELEVANT LEGAL PRINCIPLES
The legal principles relating to the unavailability of a witness to give evidence are as
follows:Where a witness is unavailable to the Tribunal, the Tribunal is compelled to take
cognisance of that in discharging its constitutional and statutory duties as well as its
duties under the Terms of Reference. In Goodman International v. Hamilton
& Ors.[1] it was held in the High Court by Geoghegan J (then of that Court):
“I do of course accept that the Tribunal itself might be obliged to
ensure that certain witnesses be available, in particular at the
request of a person seeking to vindicate his good name, if such
attendance is compellable. But there may be many instances where a
relevant witness cannot be made available. It may be that he or she
died, or is too ill to attend and give evidence, or can plead a privilege,
or simply refuses to give evidence and is out of the jurisdiction. Any
obligation which the Tribunal may have to produce a witness which
a particular person whose good name is under attack may think is
necessary ceases if the procuring of such witnesses is impossible. In
short, therefore, my view is that the Tribunal is carrying out its
obligation to vindicate the applicants’ good name if it does not permit
hearsay evidence to impugn that good name and if it accedes to
reasonable requests for the availability of particular witnesses
considered necessary for the vindication of a good name provided
that it is possible to obtain such witnesses or evidence. I do not think
that these views in any way conflict with the judgment of O’Dalaigh
CJ in in Re. Haughey [1971] IR 217. I am reinforced in this view by
the approach which the former Chief Justice took to the objection on
the part of Counsel for Mr Haughey to the procedures adopted at the
trial in the High Court as distinct from the procedures before the
Committee. There was no oral evidence in the High Court with the
exception of formal evidence by the clerk of the Committee. The main
evidence in support of the Committee’s complaint was contained in
an affidavit sworn by the Chairman of the Committee and leave to
cross-examine the chairman was refused. O’Dalaigh CJ made it clear
that in a criminal trial evidence must be given orally and there is
always a right to cross-examine, subject, of course to relevancy of
questions. Again, what was obviously concerning the former Chief
Justice was that somebody might be convicted of a criminal offence
on evidence which could not be tested by cross-examination. But, as I
have already noted, the Respondent has made it abundantly clear
that only direct evidence will be relied upon in relation to any matter
which involves the vindication of the Applicant’s good names and of
course that means oral evidence in the Tribunal which can be fully
tested by cross-examination by Counsel on behalf of the respective
applicants.” [emphasis added]
Thus the entitlement to proceed in the absence of a witness in the circumstances
outlined by Geoghegan J. is one which is not open ended. The absence of a witness
carries its own additional obligations for the Tribunal. It is clear from this judgment
that proper constitutional procedures were followed in that case by virtue of the fact
that the Tribunal in that case had specifically indicated that only direct evidence
allowing the possibility of cross examination would be relied upon in relation to any
matter involving the good name of a person. This means that fair procedures
prohibits reliance on any hearsay evidence which damages the good name of those
affected by it.
In O’Brien –v- Moriarty
[2]
in the context of an application for leave to seek
judicial review, Fennelly J. stated in regard to a complaint that the Tribunal had acted
unfairly in conducting an interview in the United Kingdom with Mr. Christopher
Vaughan in September 2004, in the light of the fact that he would not be available as
a witness, stating
“Nor can I discern any basis for the complaint regarding the
interview of Mr. Vaughan. If the non-appearance of Mr. Vaughan as
a witness gives rise to any unfairness to the Applicant, the Tribunal
will be bound to take appropriate steps to protect its legitimate
interest, but the mere fact of having interviewed Mr. Vaughan cannot
be a ground for Judicial Review. Finally, no evidence of argument
has been presented which could lead to the halting of the entire work
of the Tribunal. It would be an extraordinary matter for the Courts
to intervene to restrain the completion of a task mandated by the
Oireachtas. It would require exceptional evidence. None has been
presented.” [emphasis added]
Kearns J. in O’Brien –v- Moriarty stated that
“a Tribunal can adopt a less stringent test than a Court in deciding
what material may be admissible is well established, subject to the
requirement of fair procedures. As Henchy J. noted in Kiely –v- The
Minister for Social Welfare [1977] IR 267 (at 281):“This court has held, in cases such as in Re. Haughey,
that Article 40, Section 3 of the Constitution implies a
guarantee to the citizen of basic fairness of procedure.
The rules of natural justice must be construed
accordingly.
Tribunals
exercising
quasi-judicial
functions are frequently allowed to act informally – to
receive unsworn evidence, to act on hearsay, to depart
from the rules of evidence, to ignore courtroom
procedures, and the like – but they may not act in such a
way as to imperil a fair hearing or a fair result.” “
[emphasis added]
Kearns J. further stated
“In preparing his report, it must be presumed that the Sole Member
will only take account of evidence given to him at public hearings. I
cannot see how the non-availability of these two witnesses in any
way precludes the Tribunal from proceeding to public hearings.”
Kearns J. approved specifically a dictum of Herbert J. as Trial Judge in relation to
what a Tribunal ought to do where a witness is unavailable where Herbert J. stated
“If Mr. Christopher Vaughan does not give evidence, then in
particular having regard to the letter from Mr. Christopher Vaughan
to the Tribunal dated 6 March 2003 the Respondent will have to
decide what weight (if any) he can give to the letter of 25th
September 1998 in making his Report to the Clerk of the Dail.”
[emphasis added]
These views in the O’Brien case emphasise the responsibility that rests on the
Tribunal to determine what weight might be attached to a letter from that unavailable
witness. Quite apart from the conduct of the private and public hearings, the
Tribunal’s determination of the content of the report findings and recommendations
is a later but equally critical phase of the obligation to comply with the principles of
constitutional fairness. In Redmond –v- Flood [1999] 3 IR 79 at p.88
Hamilton CJ stated
“The Tribunal is obliged to conduct its enquiry and all necessary
proceedings in relation thereto in accordance with fair procedures
and the principles of constitutional justice.”
Hardiman J. stated in O’Callaghan –v- Mahon [Unreported] Supreme Court
9 March 2005
“It will thus be seen that the independence accorded to the Tribunal in
deciding on its own procedures is, and indeed must be, subject to the
constitutional rights of those appearing before it or upon whom its
decisions may impinge.” [emphasis added]
In deciding on the weight to be attributed to such evidence, the Tribunal has to bear
in mind the high importance in the concept of constitutional justice in this
jurisdiction of having viva voce evidence and an opportunity to cross examine. In In
Re Haughey [3] the rights of the applicant to defend his good name pursuant to the
Constitution, were enumerated as being:
“(a) That he should be furnished with a copy of the evidence which
reflected on his good name;
(b) That he should be allowed to cross examine by Counsel, his
accuser or accusers;
(c)
That he should be allowed to give rebutting evidence;
(d) That he should be permitted to address again by Counsel, the
Committee (Tribunal) in his own defence.”
In Kiely v. Minister for Social Welfare Henchy J made it is clear that it is not
permitted to have written material as evidence which is contradicted by oral
evidence. The right to challenge evidence is one part of the essential elements of the
“truth eliciting process” referred to by Henchy J. in Kiely. In Kiely –v- Minister
for Social Welfare [1977] IR 267 at p.281 Henchy J. stated
“Audi alteram partem means that both sides must be fairly heard.
That is not done if one party is allowed to send in his evidence in
writing, free from the truth-eliciting processes of a confrontation
which are inherent in an oral hearing, while his opponent is
compelled to run the gauntlet of oral examination and crossexamination. The dispensation of justice, in order to achieve its ends,
must be even-handed in form as well as in content. Any lawyer of
experience could readily recall cases where injustice would certainly
have been done if a party or a witness who had committed his
evidence to writing had been allowed to stay away from the hearing,
and the opposing party had been confined to controverting him
simply by adducing his own evidence. In such cases it would be cold
comfort to the party who had been thus unjustly vanquished to be
told that the Tribunal’s conduct was beyond review because it had
acted on logically probative evidence and had not stooped to the level
of spinning a coin or consulting an astrologer. Where essential facts
are in controversy, a hearing which is required to be oral and
confrontational for one side but which is allowed to be based on
written and therefore, effectively unquestionable evidence on the
other side has neither the semblance nor the substance of a fair
hearing. It is contrary to natural justice.” [emphasis added]
Likewise Kiely was applied in the Supreme Court in Gallagher –v- Revenue
Commissioners [1995] 1 ILRM 241 where the Supreme Court upheld Orders of
the High Court which quashed the Respondents’ decision to dismiss the applicant
from his post in Customs & Excise following an allegation that he had deliberately
undervalued imported vehicles and cost the State significant loss of revenue. In
relying to a significant extent on hearsay evidence (consisting of documentary
information from British Customs Authorities detailing previous sales with relevant
vehicles) and without oral testimony or the opportunity to cross-examine the source
of the information, the applicant had been deprived of his constitutional right to fair
procedures and natural justice. The importance of the right to cross-examine was of
course also highlighted in Maguire –v- Ardagh [2002] 2 IR 385 and in
O’Callaghan –v- Mahon [Unreported] Supreme Court 9 March 2005.
It is submitted that the effect of the foregoing is that the Tribunal is not entitled to
arrive at adverse conclusions which are damaging to the constitutional rights of
persons affected by them, where such conclusions are based upon hearsay evidence
before the Tribunal, in respect of which it was not possible to cross-examine the
source of such hearsay evidence.
When the Tribunal comes to consider such evidence as it has available to it, in order
to comply with its constitutional obligations, its determination or the result of such
enquiry has to be fairly reached. In Georgopoulus -v- Beaumont Hospital
Board [1998] 3 IR 132 at p.151 Hamilton CJ addressed the issue of the standard
of proof that must be adopted and said as follows:“As already pointed out in this judgment, the proceedings before the
Defendant were in the nature of civil proceedings and did not involve
any allegations of criminal offences. The standard of proving a case
beyond reasonable doubt is confined to criminal trials and has no
application to proceedings of a civil nature.
It is true that the complaints against the plaintiff involved charges of
great seriousness and with serious implications for the plaintiff’s
reputation.
This does not, however, require that the facts upon which the
allegations are based should be established beyond all reasonable
doubt. They can be dealt with on “the balance of probabilities”
bearing in mind that the degree of probability required should
always be proportionate to the nature and gravity of the issue to be
investigated.
As stated by Scarman LJ in Reg –v- Home Secretary (ex parte)
Khawaja [1984] 1 AC 74 at p.112:“My Lords, I have come to the conclusion that the choice
between the two standards is not one of any great
moment. It is largely a matter of words. There is no need
to import into this branch of the civil law the formula
used for the guidance of juries in criminal cases. The civil
standard as interpreted and applied by the civil courts
will meet the ends of justice.”
I am satisfied that in enquiries, such as conducted in this case, the
standard of proof to be applied is not the standard of proof required
in a criminal case but is that applicable to all proceedings of civil
nature, namely, “the balance of probabilities”, a standard which
takes into account the nature and gravity of the issue to be
investigated and decided.
I agree with the statement of Sir William Wade in the Sixth Edition of
his work on Administrative Law which summarised the position in
the following terms at p.341:“But the civil standard is flexible, so that the degree of
probability is required is proportionate to the nature and
gravity of the issue. Where personal liberty is at stake,
for example, the Court will require a high degree of
probability before it will be satisfied as to the facts
justifying detention; and the requirement will not be
much lower in matters affecting livelihood and
professional reputation, or where there is a charge of
fraud or moral turpitude. Lord Scarman has indeed said
that the choice between the two standards is largely a
matter of words …”
There is, in my opinion, no justification for requiring a Board, such
as in this case, to be satisfied beyond all reasonable doubt and I
would dismiss the plaintiff’s appeal based on this ground.”
It is submitted that arising from the foregoing, the standard of proof which this
Tribunal is to apply to the conduct of its inquiry, is that approved by Hamilton CJ
namely, the standard of the balance of probabilities, whereby in its application it is
necessary to bear in mind that the degree of probability which the Tribunal must
require has to be proportionate to the nature and gravity of the issue to be
investigated.
In O’Callaghan –v- Mahon Hardiman J. stated
“For the reasons set out in my judgment in Maguire –v- Ardagh
[2002] 1 IR 385, I consider that the hearing of very grave allegations
before a tribunal of inquiry which not merely sits in public but whose
proceedings are in practice accorded enormous publicity, attracts for
persons whose reputations are impugned procedural rights
analogous to (though often varying in detail from) those of a
defendant in a criminal trial. These are the Re. Haughey rights.”
It could hardly be doubted that what is under investigation in this Tribunal is of the
utmost seriousness and gravity and in those circumstances, it is submitted that the
Tribunal must be scrupulous in requiring that a high degree of probability is shown
for any conclusion it might reach, in proportion to the serious nature and gravity of
the issues being investigated. This principle is of particular relevance in the
Tribunal’s consideration of any evidence relating to matters relevant to Mr. Andersen
in circumstances where it appears there will be no evidence forthcoming from Mr.
Andersen.
(vi)
LEGAL EFFECT OF NON-AVAILABILITY OF MR. ANDERSEN
Clearly the protection of the rights of all those affected by the inquiry undertaken by
this Tribunal requires in the first instance that all steps be taken to ensure that Mr.
Andersen’s evidence is procured, and Telenor submits that all procedures to obtain
that evidence must be exhausted. The Tribunal remains under a clear and as yet
undischarged duty to procure the attendance of Mr. Andersen.
In the event that such evidence proves not to be available, the Tribunal will then be
required to take proper account of that situation in observing the principles of
constitutional justice and natural justice, and the discharging of its obligations under
the Terms of Reference. It will have to do so in the very process of its analysis and
decision-making leading to the making of findings and recommendations and the
provision of its Report. The foregoing cases make clear that, in the event of Mr.
Andersen’s absence, the Tribunal will have to take proper account in relation to each
of the elements that it will be considering in relation to this module and whether and
to what extent it can now constitutionally proceed to make any adverse determination
in relation to which a critical witness has been unavailable. The Tribunal is only
entitled to arrive at a determination based on evidence heard in public. In the event
of the non-attendance of Mr. Andersen, the Tribunal would not have complete
evidence before it on what took place in connection with the award of the Licence.
It is clear that part of the rationale of the dicta referred to above is that, in allowing
the Tribunal to proceed with an inquiry in the absence of a witness, where hearsay
evidence is admitted, the Court expects that the Tribunal itself will take account of
the position of all of the parties affected by the absence of that witness and ensure
that no unfairness is done to any party as a result of the admission of that hearsay
evidence. It is submitted that the practical effect of this is that it places the onus on
the Tribunal to take account of the impact on the totality of the evidence before it, of
the admission of hearsay evidence from Mr. Andersen. Significant hearsay evidence
from Mr Andersen has already been put to witnesses and neither the Tribunal itself
nor the other participants will have had the opportunity to question Mr. Andersen on
any of that evidence. Constitutional fairness means that hearsay evidence from Mr.
Andersen that is contradicted by viva voce evidence must be disregarded.
Furthermore where a conclusion impugning the good name of the participants is
based on hearsay evidence from Mr. Andersen, it is the clear duty of the Tribunal to
decline to arrive at that conclusion.
It is submitted that the more important the witness who is unavailable, the greater is
the onus on the Tribunal to be vigilant to ensure that constitutional justice is
observed. There can be no doubt about the critical importance of Mr. Andersen as a
witness. This means that for areas where Mr. Andersen is a relevant witness, the
Tribunal must take account of the fact that it does not have a full picture of the events
that occurred, in applying the test of requiring a high degree of probability in
arriving at a conclusion. It is submitted that it would be an unconstitutional
procedure for the Tribunal to adopt were it to form any conclusions impacting
adversely on the position of Telenor, where in doing so the Tribunal relied on only
bits of evidence from Mr. Andersen, and where the remainder of his evidence is
missing.
The test applicable to the deliberations of the Tribunal is that in arriving at any
conclusion the Tribunal must be satisfied that such a conclusion is justifiable based
on a high degree of probability. It is further submitted that the duty to take full
account of that position is rendered particularly important in circumstances where
the Tribunal has to consider whether a determination with adverse consequences for
the good name and other rights of Telenor is being considered. As a result of this, on
any issue where there is an absence of a significant body of evidence, fair procedures
prohibit the Tribunal from arriving at conclusions adverse to the interests of Telenor.
A determination by the Tribunal which involves negative conclusions in regard to the
conduct of the Licence award process with respect to the Terms of Reference, would
cause serious damage to the participants, including Telenor. The good names and
other rights of the participants must be taken into account by the Tribunal.
Furthermore having regard to Mr. Andersen’s unique role, the Tribunal cannot
constitutionally fill the gap caused by his non-attendance by reference to the evidence
of other witnesses, or contemporaneous documentation, or indeed by reference to the
memorandum subsequently produced by him which is hearsay. Whereas there is also
contemporaneous documentation relating to many of the matters in issue, in
circumstances where there is a conflict of evidence, it is clear that reliance upon such
contemporaneous documentation is inadequate and does not validly represent or
substitute for the evidence of Mr. Andersen. It is submitted that this precludes the
Tribunal from making any adverse determinations which impugn any aspect of the
process in which Mr. Andersen was so intrinsically involved and in relation to which
Mr. Andersen was a relevant witness.
The position in which the Tribunal will be placed in the event that Mr. Andersen does
not give evidence, is that the Tribunal’s inquiry insofar as it has examined the
detailed mechanism of the competition process will not in fact be able to meet its
obligation of thoroughness in the conduct of the inquiry in a very material way,
because of the effect of the absence of a critical witness. The Tribunal’s ability to carry
out its work methodically will also have been seriously impaired because the absence
of critical evidence across such a broad range of issues and over such a large period of
time will leave a large hole in the evidence available, making the process of reaching
conclusions in certain areas hazardous if not impossible.
Telenor submitted itself as part of a consortium, to a selection process in which Mr.
Andersen was a central figure. The overall effect of the absence of Mr. Andersen
would be that neither the Tribunal nor Telenor and the other participants will have
had available to them a fundamentally important witness who may well have been in
a position to give evidence vindicating the process as a result of which the evidence
available to the Tribunal is incomplete and consequently unbalanced. Where if the
outcome of the investigation, for whatever reason, produces an unbalanced range of
information available to the Tribunal, as may happen here, the Tribunal is
constitutionally required to take account of the impact of this. There are some areas
where the absence of Mr. Andersen will have little impact on the ability of the
Tribunal to arrive at findings of fact. However, there will be many other areas covered
by what was approximately six months of evidence from the Department witnesses
where the absence of evidence from Mr. Andersen will be highly detrimental to and
potentially fatal to the process of conducting a balanced and fair assessment of what
happened. Because of this, in such instances the obligation of fairness will mean the
Tribunal will not properly be in a position to arrive at conclusions on various issues,
insofar as those conclusions might be adverse to the interests of Telenor. In such
cases it is the clear duty of the Tribunal to decline to make such a determination on
these issues, having regard to the requirements of the Constitution and its obligations
under the Terms of Reference.
It is furthermore not open to the Tribunal to draw any negative conclusions from the
non-attendance of Mr. Andersen in regard to the substance of the matters which it is
investigating. Mr. Andersen has not refused to attend the Tribunal but has merely
stipulated conditions for such attendance. Neither has Mr. Andersen refused to be
examined under oath in a Danish Court.
It is proposed that evidence would be taken from Mr. Peter Bacon and a report has
been procured from him for that purpose. In that report Mr. Peter Bacon has carried
out an analysis of the work of the PT GSM consisting of a separate retrospective
analysis of the methodology of the competition process, carried out some nine years
after the competition was completed, with all the benefit of hindsight, and without
reference to Mr. Andersen, the prime architect and leading professional involved in
the conduct of the competition. Mr. Bacon had no involvement in the events of the
time and is not an expert on the conduct of competitions for public licences.
Furthermore the analysis of the methodology carried out by Mr. Bacon is based, of
necessity, on materially incomplete information, since Mr. Andersen’s evidence was
unavailable to him, for example, to explain as the expert designer of the competition,
the reasons why particular matters were conducted as they were. Mr. Bacon has not
gone to Denmark to interview Mr. Andersen or indeed any of his colleagues in AMI.
Neither has Mr. Bacon interviewed the Department witnesses. Mr. Bacon’s analysis
suffers from the same problem as that facing the Tribunal itself and reliance upon it
does not assist the Tribunal. It is submitted that the resulting incomplete report
available to the Tribunal from Mr. Bacon precludes the Tribunal from arriving at any
findings adverse to the position of Telenor in reliance upon Mr. Bacon’s report.
PART 4 – CONCLUSION
In conclusion it is the position of Telenor that it wishes that all steps would be taken
to procure the attendance of Mr. Andersen to give evidence at the Tribunal.
In the event that it turns out that notwithstanding the taking of all necessary steps to
procure his attendance, that such evidence is not available to the Tribunal, the
Tribunal will then be under significant constraints in the extent to which it can reach
conclusions.
Where there is a conflict of evidence as between oral evidence given at the Tribunal
and hearsay evidence deriving from Mr. Andersen, the hearsay evidence will have to
be ignored. The Tribunal will not constitutionally be entitled to form conclusions
which are adverse to or impugn the evaluation process in the absence of Mr.
Andersen as a witness. In arriving at any conclusions in relation to the process, the
test which the Tribunal must adopt is that of the balance of probabilities, and having
regard to the gravity of the matters at issue in this Tribunal, a high standard of
probability is required for the formation of any conclusions reached.
Dated this
day of September 2005,
_______________________
Kilroys,
Solicitors,
69, Lower Leeson Street,
Dublin 2.
SCHEDULE 1
SCHEDULE OF DOCUMENTS
SUBMISSIONS RELATING TO THE UNAVAILABILITY OF MICHAEL ANDERSEN TO
ATTEND TO GIVE EVIDENCE AND THE IMPLICATIONS OF THE UNAVAILABILITY OF
MICHAEL ANDERSEN AS A WITNESS
“Department” Documents, Volume 1, Book 41
1
Tab 6
Note for Minister, drafted by Mr. Martin Brennan dated October 1993
Extract from paragraph 2
“Evaluations of the tenders will probably take a further three months and is
likely to require outside assistance in the form of consultancy”.
2
Tab 10
Memorandum entitled “Confidential and Sensitive Information – Competition
in Digital Mobile Cellular Communications (GSM)
Paragraph 3
“Consultants should be recruited to evaluate tenders and procedures……
they should commence at an early date”.
3
Tab 10 Indent A
Memorandum entitled “Summary of Memorandum Competition and Digital
mobile Cellular Communications (GSM).
Extract from Paragraph 5
Evaluation of Tenders/Use of Consultants
“It will be seen that the tenders will be very complex documents. The
evaluation will entail both economic analysis and judgemental decisions and
considerable interaction between the two…. It is recommended that we
engage consultants to assist with the evaluation and that we so announce
when announcing the competition. We could go so far, if pressed, to commit
to engage the consultants and settle the terms of reference in advance of the
closing date for tenders. This could also move the chosen consultants up the
learning curve in advance. Finding suitable consultants not already
committed to potential tenders maybe problematic”.
Extract from Memorandum from Telecommunications
(Development) Division, November, 1993.
and
Radio
4
Tab 12
Letter dated 6th April 1994 from Roger Pye of KPMG to Mr. Martin Brennan
enclosing KPMG comments on draft tender.
Paragraph 2.2
Evaluations of tenders/consultants
“We agree that any consultants involved in selection should also be involved
before tenders are submitted, in particular in answering bidders questions.
Otherwise inconsistencies may arise.”
5
Tab 14
Draft agenda in respect of first meeting dated 29th April 1994 incorporates at
paragraph 4 “question of consultants”.
6
Tab 23
Aide Memoire entitled “Competition in
Communications (GSM) dated November 1994”.
Digital
Mobile
Cellular
Paragraph 10
“… consultants will be required to assist with the evaluation. The perception
of objectivity in our evaluation and comparison of tenders will be critical”.
7
Tab 41
Aide Memoire for Cabinet Committee entitled “Competition in Digital Mobile
Telephony (GSM) dated February 1995”.
Paragraph 11
The selection process
“Consultants will be engaged to assist the process of final selection and will
also be on board in time to assist in the final stages of preparation of the
Department’s information memorandum… “.
“Consultants will be required to assist with the evaluation. The perception of
objectivity in our evaluation and comparison of tenders will be critical”.
8
Tab 46
Competition for a licence to provide digital mobile cellular Communications
(GSM) in Ireland.
Paragraph 12
Evaluation of Applications
“Independent consultants will be employed to assist with the evaluation of
applications.”
9
Tab 47
Notes of second meeting of GSM Project Group dated 6th March 1995.
Paragraph 3
Critical Path
“… document detailing critical path was circulated - it was agreed that the
consultants will be required to advise on a successful applicant by
approximately mid September in order to give ample time to put the matter
to Government for decision”….
“furthermore, to speed events, it was agreed that the drafting of the license
should begin prior to the decision on the successful applicant. The option of
getting the consultants to draft the licence is favoured.
10
Tab 46
“Detailed and costed proposal for tailor made expert and consultancy services
in connection with the evaluation and licence award to an operator to install
and operate a second GSM network in Ireland” prepared by Andersen
Management International A/S dated 16th of March 1995.
Particular reference is made to part 4 of this proposal entitled “preliminary
outline of the work programme”.
4.1
An overview.
“Our work programme is determined by the “cornerstone” approach as
outlined in figure two below….. as it will not be possible to foresee and
anticipate all challenges during the GSM 2 tender process, we have divided
the project into a phased programme within which a number of sub-projects
is defined………..”.
These phased programmes were stated to relate to the following:“1
framework;
Relating evaluation criteria to legislative and regulatory
2
Detailing the evaluation criteria;
3
Evaluation model(s);
4
Providing answers to the potential applicants;
5
Calculatory assumptions;
6
General Preparations;
7
Evaluation of the applications;
8
Track recording and verification;
9
Documenting the results of our evaluations;
10
Drafting and negotiating the licence; and
11
Final status reporting (evaluation of the evaluation and “level playing
field”).”
An annex to the proposal sets out the terms of reference. Again, there is a
reference to the consultants taking part in all four cornerstones of the GSM
evaluation i.e. framing the work, setting the stage, executing evaluations and
closing the process. As AMI saw it, the specific objectives were:“1
To elaborate work plans in compliance with the time tables of the
tender.
2
To detail the evaluation models which are to be used and thereby
suggest evaluation models which are in line with the procedures in
other European GSM tenders and which will fill the EU requirements
on transparency, objectivity and non discrimination,
3
To perform the main part of the evaluation of the applications, to
draft an evaluation report and to be very specific in the advice to the
Department regarding the choice of the best application with
reference to the evaluation.
4
To be available for extra services for example, within the area of
interconnection. Licence negotiations, drafting of press releases and
unforeseen events.”
Reference is also made to annex B incorporating the CV’s of the consultants
including in particular that of Mr. Andersen, as team leader.
11
Tab 50
Notes of third meeting of GSM Project Group dated 29th of March 1995.
3.
Information round
“The following points were emphasised”…
“the importance of having the consultant present at the next meeting, to
assist in drafting detailed replies”.
12
Tab 52
Notes of forth meeting of the GSM Project Group dated 10th April 1995.
Update on Consultant
“Department of Finance has given go ahead on Andersen as our selected
consultant; press release is expected 11th April 1995 to announce the
successful candidate….”
“First all day meeting with Mr. Michael Andersen will be on Wednesday 19th
April”.
13
Tab 53
Press announcement in respect of the appointment of Andersen Management
International A/S dated 11th April 1005 which provided as follows:“The major part of the consultancy is to carry out a detailed evaluation of
the competing bids for the licence but the consultants will also assist with all
other aspects of the competition.
The Minister said that Andersen’s are particular well suited to be his
independent advisers taking account of experience gained while recently
undertaking similar for both the Danish and Dutch Government”.
14
Tab 54
Notes of fifth meeting of GSM Project Group dated 19th April 1995.
This was the first PT GSM meeting at which both Mr. Andersen and Marius
Jakobsen were in attendance. In the course of this meeting there was a
discussions with regard to the “weightings for selection criteria” and in
particular the letter of 31st of March 1995 from the Department of Finance to
Mr. Martin Brennan of the Department of Transport and Energy and
Communications.
The notes of the meeting provide as follows:“………….this issue was discussed at length again. It was pointed out that”:



The process would be open to legal challenge by the CION if some
sort of quantitative of evaluation was not performed;
The Andersen approach favoured combining quantitative and
qualitative elements for evaluation;
Giving no guidance as to weight might lead to the worst case
scenario of receiving non comparable bids.
It was further discussed and agreed based upon the notes of the meeting that
Marius Jakobsen of AMI would provide a first cut of the draft licence by
Thursday, 27th April 1995.
15
Tab 60
Notes of meeting of the PT GSM Team on the 27th April 1995
“Both Department of Trade Energy and Communications and their
consultants emphasised that they saw no way of evaluating the bids without
some system of weightings”.
16
Tab 61
“Department of Transport Energy and Communications - Information
Memorandum - Response to questions posed by prospective applicants for the
licence to become the second operator of GSM mobile telephony within
Ireland dated 28th April 1995”.
“In order to simplify the process both for application and evaluation, the
Department intends to develop a pro forma application, which will require a
single bid per applicant. Each applicant for the second GSM licence will be
expected to submit its application in this format. The template is currently
being developed by the Department in conjunction with its consultants”.
Page 5
Selection Process
“A model to be used to assist in the evaluation of tenders for the second GSM
License is being developed by the Department in conjunction with its
consultants”.
17
Tab 62
Letter dated 3rd May 1995 from Martin Brennan to Department of Finance:Third paragraph
page 2
“The weighting approach is also, as you are aware, strongly favoured by the
chosen consultants, Andersen Management International in order to carry
out the first stage of the evaluation viz. the quantitative method. However,
given that Andersen’s proposed to carry out a qualitative analysis and
supplementary analysis in particularly difficult areas, I am confident that
this allows flexibility to ensure that a perverse result does not emerge. This
matter will be discussed further at the GSM Project Group meeting on 18th
May 1995 on the basis of a presentation by Andersen Management
International”.
The draft Report on “quantitative and qualitative evaluation of the GSM
applications” prepared by AMI dated 17th May 1995 setting out information
concerning the quantitative and qualitative evaluation models and a complete
description of those models.
The chosen division of the evaluation criteria into aspects, dimensions and
indicators, is based on the framework described in the proposal from AMI.
18
Tab 64
Notes of the 7th meeting of the GSM Project Group dated 18th May 1995.
In attendance from AMI were Mr. Andersen and Jon Bruel. The purpose of
this meeting was the presentation of the evaluation model by AMI.
In relation to the licence fee issue, it was noted that AMI had issued a draft
memorandum to the Department in regard to this matter and it was further
agreed at the meeting that Mr. Andersen would accompany the Irish
delegation for discussions with the CION on this matter.
19
Tab 66
Memorandum prepared by AMI concerning the GSM 2 tender in Ireland and
the approach of the Commission dated 30th May 1995. The introduction to
this memorandum provides as follows:“The Department of Transport, Energy and Communications has requested
AMI to express the immediate assessments of the consultant in relation to the
letter of 28th April 1995 from Commissioner Karl Van Miert to Minister
Lowry”.
20
Tab 68A
Andersen Management International Report on the quantitative and
qualitative evaluation of the GSM applications dated 8th June 1995.
This is the second draft report prepared by AMI. It provides at part 5 entitled
“procedure for the qualitative evaluation process” as follows:Paragraph 7
“If major uncertainties arise (for example in accordance with step 4 of the
quantitative evaluation or due to incomparable information) supplementary
analyses might be carried out by Andersen Management International A/S
in order to solve the matter.
Paragraph 9
“The draft report is to be presented and discussed among the “essential
persons” (identified by the Department) and on this basis, Anderson
Management will be asked to proposed a final report.
21
Tab 69
Copy of the Agreement between the Minister for Transport Energy and
Communications and Anderson Management International dated 9th June
1995 setting out the terms of the agreement upon which AMI had been
requested by the Minister to provide advice and assistance in relation to
matters concerning the grant of a licence to a second operator of GSM mobile
telephony within Ireland.
22
Tab 70
Notes of the eighth meeting of the GSM Project Group dated 9th June 1995.
Mr. Michael Andersen and Mr. Jon Bruel of Andersen Management
International were in attendance.
The notes of the meeting refer to correspondence from Vodafone Consortium
to the Secretary of the Department and states that AMI had been asked to
consider the correspondence and comment on same. At this meeting also the
evaluation model was approved as presented to the meeting.
“Department” Documents, Volume 1, Book 42
23
Tab 79
Letter from Michael Lowry to Commissioner Karl Van Miert dated 22nd June
1995.
Page 3
Paragraph 2
“I believe that the order of priority of the selection criteria elaborated at
paragraph 19 of the tender document is a reasonable compromise. I am
given to understand that the process I am invoking is in fact one of the most
advanced and transparent of its kind in Europe. I have, of course, recruited
international consultants to assist in carrying out the evaluation”.
24
Tab 80A
Fax from AMI to Fintan Towey of the Department of Transport Energy and
Communications enclosing progress chart in respect of all aspects of
executing the evaluation of tenders received in connection with the GSM 2
award.
25
Tab 84
Note from Martin Brennan dated 14th July 1999 addressed to Secretary. The
hand written note on this memorandum provides as follows:“Andersen’s say this is the first time the Commission cleared a competition
before the closing date”.
26
Tab 88
Note re revised weightings from Maev Nic Lochlainn addressed to Mr. Fintan
Towey dated 27th July 1995 which incorporated the following hand written
note of Mr. Fintan Towey:“Revised weightings approved as recommended by AMI”.
27
Tab 91 (A)
Fax from Michael Andersen of AMI to Fintan Towey of the Department of
Transport Energy and Communications incorporating a memorandum
prepared by AMI on conformance with the defined minimum requirements as
set out in the tender document.
28
Tab 92
Fax dated 9th August 1995 from Michael Anderson of AMI to Fintan Towey of
the Department of Transport Energy and Communications enclosing guide to
qualitative evaluation criteria incorporating dimensions and indicators for
various aspects of the applications.
29
Tab 93
Letter dated 16th August 1995 from Martin Brennan to ESAT Digifone Limited
setting out a list of questions which required a written response. The attached
list of questions which were applicant-specific questions arising in connection
with clarification of the applications has been prepared by AMI.
30
Tab 93 (A)
Letter from Michael Andersen to the Maev Nic Lochlainn of the Department
of Transport Energy and Communications setting out proposals for
proceeding in relation to problems with the A5 application.
31
Tab 96
Notes of ninth meeting of the GSM Project Group dated 4th September 1995.
Three representatives of AMI were in attendance at this meeting namely Mr.
Michael Anderson, Mr. Marius Jakobsen and Mr. Mikkel Vinter.
The agenda for the meeting comprised the following:“1.
2.
3.
The Andersen presentation on the quantitative evaluation of the six
applicants.
Discussions of the forthcoming presentation.
The future framework for the project”.
All of these aspects appear from the notes of the meeting to have been dealt
with by reference to significant input from Michael Anderson. In relation to
the issue of the quantitative evaluation, Mr. Andersen presented the initial
draft report on this evaluation. In relation to the presentations, AMI
presented a set of general questions for discussion at the presentations. In
relation to the future framework of the project, it was noted that ten sub
group meetings for the qualitative evaluations had been proposed by AMI.
It was noted that five of these meetings had already taken place and AMI
committed to provide the Department with “the documentation on these
earlier sub group meetings”.
AMI also outlined a time table for the remaining five sessions and stated that
the qualitative scoring of dimensions would take place in the sub groups.
A date of 3rd October 1995 for the delivery of the draft qualitative report was
suggested by AMI.
32
Tab 98 (A)
Notes of a meeting with AMI in Copenhagen on 6th September 1995.
This was a meeting of the sub group examining financial matters with Michael
Andersen, Michael Thrane, Billy Riordan and Fintan Towey in attendance.
The focus of this meeting appears to have been the process to be undertaken
in relation to the qualitative analysis and in particular the analysis of the
financial projections contained in the mandatory tables and AMI suggestions
for categories for evaluation indicators to be used namely solvency, financing,
profitability and sensitivity.
33
Tab 99
Notes of tenth meeting of the GSM Project Group held on 11 th September
1995.
In attendance from Andersen Management International were Mr. Michael
Anderson, Mr. Marius Jakobsen, Mr. Jon Bruel and Mr. Ole Feddersen.
The agenda for this meeting was to discuss a strategy plan for the
presentations. In this meeting, it is noted that:“Mr. Andersen advised that the opening questions to each applicant should
be easy so as to give the presenters a chance to warm up and that they
should also be informed that they may have time to confer in questions if the
need arose”.
35
Tab 100
Selected oral applicant-specific questions to be posed during the presentation
meetings to be held on 11th to 14th September 1995 prepared by AMI dated 10th
September 1995.
36
Tab 103 (A)
Letter dated 14th September 1995 from Martin Brennan to Michael Anderson.
This letter dealt with issues between the Department and AMI in relation to
what the Department envisaged as a ceiling in respect of fees to be paid to
AMI in connection with the activity stipulated in the tender document.
The letter provides as follows:Paragraph 2
Page 1
“You are aware that several of the items which you consider to be additional
to the project would in our view be reasonably considered to the intrinsic to
the evaluation process to which your tender relates.
Paragraph 4
Page 1
“The evaluation report shall contain a quantitative and a qualitative
evaluation of all the applications and the results of any supplementary
analyses undertaken. The report shall rank the top three applications for the
GSM licence in order of merit according to the criteria prescribed by the
Department, while detailing the differences between the applications which
form the basis of this ranking. The evaluation report shall also nominate a
winner and shall explain why the three applications not ranked do not
qualify for ranking”.
“The final evaluation report shall take account of comments provided by
members of the GSM Project Group. It is anticipated that comments from the
GSM Project Group on the draft evaluation report shall be provided to AMI
by 10th October 1995. Following consideration of such comments, AMI shall
produce a further draft evaluation report in the format described above for
the draft evaluation report by 17th October 1995. This further draft
evaluation report shall be discussed at a meeting of the GSM Project Group
within six days. The final evaluation report taking into account the views of
the GSM Project Group shall be submitted to the Department by AMI by 25th
October 1995 unless an alternative date is expressly approved by the
Department prior to the said date”.
“Carry out such further work which is not expressly specified at this time but
would generally be considered reasonable in order to ensure a fair and
objective evaluation for the applications for the GSM License”.
“Participate in the preparation of a draft license and in the license
negotiation process as outlined in the tender of 16th March, 1995”.
37
Tab 104
Notes of the eleventh meeting of the GSM Project Group held on 14th
September 1995.
In attendance from AMI was Mr. Michael Andersen, Mr. Mauris Jakobsen, Mr.
Jon Bruel and Mr. Ole Feddersen. There was a review of the presentation by
the A4 candidate, a review of the current position and a discussions of how to
progress the evaluations further.
Mr. Andersen spoke about the success of the presentations generally and
expressed his view that because AMI were well prepared from the earlier
quantitative assessment, they had attained the required information from all
the applicants.
AMI listed the next steps as:“1.
Finalise the qualitative scoring and award marks on the
dimensions;
2.
Perform initial scoring of the aspects and;
3.
Perform supplementary analyses in;
Blocking/drop out
Financial analysis concerning Sigma/Advent adherence to EU
procurement rules
Tariffs
Interconnection (since assumptions vary widely between applicants)”.
It was also noted that AMI would be involved in any negotiation with the
successful applicant in relation to the license.
38
Tab 109
Note from Michael Andersen to Martin Brennan and Others setting out
schedule in respect of meeting in Copenhagen regarding awarding of marks to
various elements of the applications.
39
Tab 110
Draft report regarding quantitative evaluation for Irish GSM 2 prepared by
AMI.
40
Tab 111
Memorandum prepared by Michael Andersen addressed to Martin Brennan
and Fintan Towey dated 21st September 1995 setting out work programme for
the next 10 days and specifically covering the following items:“A
41
The remaining award of marks to the ten dimensions.
B
Scoring of the marketing aspect, financial aspect and other aspects.
C
Grand total.
D
Supplementary analyses.
E
The first draft report”.
Tab 112
Letter from Jon Bruel to Billy Riordan in the Department of Finance re GSM
evaluation.
42
Tab 117
First draft of the evaluation report dated 3rd October 1995.
43
Tab 119 (A)
Fax dated 5th October 1995 from Maev Nic Lochlainn of the Department of
Transport Energy and Communications to Michael Anderson raising queries
with regard to the qualitative scoring for technical aspects.
44
Tab 120
Notes of the twelfth meeting of the GSM Project Group held on 9th October
1995. In attendance were Mr. Michael Andersen and Mr. John Bruel.
45
Tab 121
Note of hand written meeting of Project Group held on 9th October 1995.
Extract from Page 2
“Martin Brennan - would proceed in the way Andersen suggests and would
strengthen report”
46
Tab 127
Final draft version of the appendixes to the report on the evaluation of the six
applications for the GSM licence dated 18th October 1995.
47
Tab 128
Final version of the evaluation report for the six applications for the GSM
licence in Ireland dated 25th October 1995.
“Department” Documents, Volume 1, Book 43
48
Tab 131
Note dated 22nd October, 1995 from AMI to Department re incorporation of
information from the A5 application into the final license.
49
Tab 132
Notes of the thirteenth meeting of the GSM Project Group dated 23 rd October
1995.
In attendance was Michael Andersen.
In relation to the discussion of the draft report prepared by AMI, it was stated
that “while there was general satisfaction with the detailed analysis and the
final result, the presentation in the draft report of that analysis was not
acceptable”.
50
Tab 133
Memorandum dated 23rd October 1995 containing the views of the regulatory
division in which the views were stated to be based inter alia on the “logic of
the AMI report”.
51
Tab 138
Memorandum dated 25th October 1995 from Jimmy McMeel to Minister for
finance, Ruari Quinn in which it is stated as follows:“The project team, which included the Danish consultants Anderson
Management International who drew up the report, will be recommending
to the Minister for [Trade, Transport] Energy and Communications that he
open license negotiations with the top rated applicant which is the Esat
Digifone Consortium”.
52
Tab 141
Memorandum dated 25th October 1995 from John Loughrey to Michael
Lowry. This memorandum provided as follows:“The process was cleared with the EU Commission and the Independent
Danish Consultants acted at all times with expert professionalism and
disinterest”.
53
Tab 141 (B)
Transcript of press conference given by Michael Lowry Minister for Transport
Energy and Communications announcing the winner of the second GSM
licence at the Department on the 25th October 1995.
Page 2
Paragraph 1
“Well, first of all we appointed Anderson’s’ Consultants… That has been the
outcome and we got a clear result from the consultants and from the Project
Team and I have accepted the proposal that was put forward by the
consultants and project team”.
54
Tab 145
Aide Memoire dated 26th October 1995 from the Minister for Transport,
Energy and Communications re telecommunications issues and award of the
GSM mobile telephony licence.
Paragraph 5
“The evaluation was conducted by a project team led by the Department of
Transport Energy and Communications and incorporating representatives
of the Department of Finance and independent advisors Anderson
Management International”.
55
Tab 147
Letter dated 27th of October 1995 from Michael Andersen to Fintan Towey
enclosing copies of the final report. In this letter Michael Andersen states:“As we have heard nothing from you after reviewing the faced copy earlier
this week, we take it that you agree on the way that we have worked it out”.
56
Tab 149
Memorandum dated 2nd November 1995 of Fintan Towey concerning the first
meeting with Esat Digifone following the announcement regarding the GSM
licence award.
Mr. Michael Andersen was circulated with the relevant documentation for the
meeting and there was to be a preparatory meeting with AMI at 9am prior to
the meeting with representatives of Esat Digifone Limited at 11am on
Thursday, 9th November 1995.
57
Tab 154
Letter dated 13th November 1995 from Martin Brennan to Denis O’Brien.
58
Tab 156
Replies to Parliamentary questions by Michael Lowry on 22nd November 1995.
These replies incorporate the following in respect of the role of AMI as
consultants:“I have been asked to elaborate specifically on the role played by the
consultants. Andersen Management International, a highly experienced
company who have a particular expertise and experience in the evaluation
of GSM tenders, were retained by me following a competitive selection
procedure which fully respect EU procurement rules. They, in close liaison
with the project team led by my Department and which included
representatives of the Department of Finance, designed and carried out a
full comparative evaluation of all of the applications. The Consultants report
and the outcome of the evaluation makes it clear that the approach to the
evaluation including the relative weightings of the selection criteria was
settled in detail and documented before the closing date. It is clear that the
consultants played a full role in the evaluation process and their involvement
was necessary to ensure that the process would be accepted as fair.
59
Tab 163
Fax dated 15th February 1996 from Michael Andersen to Fintan Towey
enclosing memorandum on the evaluation of the evaluation of the GSM 2
tender in Ireland.
60
Tab 187
Press statement prepared by Martin Brennan on the 19th April 1996.
In this press statement, prepared by Martin Brennan, he stated the following:Paragraph 2
“I have personally managed this project since September 1993 when I was
given a brief to conduct a competition. In the preparatory phase I had an
open door to representatives of potential bidders, consultants and other
interested parties. I had dozens of such meetings in what was a learning
phase for me”.
Paragraph 3
“When the actual competition was about to be launched we set up a broadly
based project team. It contained representatives of the relevant divisions of
the Department of Transport Energy and Communications as well as
representatives of the Department of Finance together with Anderson
Management International as consultants. The team contained within it all
the disciplines necessary to conduct the competition professionally”.
61
Tab 188
Press statement dated 19th April 1996 issued on behalf of the Department of
Transport Energy and Communications.
“Department” Documents, Volume 1, Book 44
62
Tab 201
Michael Lowry – “prepared script” which provided as follows:
Page 4
Paragraph 4
“The Department of Transport Energy and Communications had been
working seriously on a GSM competition since late 1993. The preparatory
phase included an “open door” consultation process with interested parties.
This, to a large extent was a learning phase for the Department were
various options in relation to the process as a whole were canvassed with
consultants and interested parties”.
Page 5
Paragraph 3
“…The conduct of the operation of the competition within these parameters
was carried out by the Civil Service, in other words officials of my
Department and the Department of Finance with the aid of consultants”.
Page 8
Paragraph 2 and 3 entitled “Consultancy Advice”
“It was clear from the outset that the process of evaluation of the
applications would be complex, would require specialist expertise and would
have to be carried out to a high degree of objectivity. An international
competition was held to recruit appropriate consultancy advice.
The contract was awarded to a Danish firm, Andersen Management
International. Anderson’s had substantial relevant expertise in similar
processes in Europe and demonstrated in their tender a highly developed
approach to evaluation”.
Page 8
Paragraph 4 entitled “Process”
“When I announced the competition for the second GSM licence, I was
determined to put in place a selection process that would be fair, impartial
and objective. An evaluation team, led by my Department was set up which
included the consultants and officials from my Department and the
Department of Finance”.
“This team was given responsibility for the conduct of the entire process and
to make a recommendation regarding the award of the licence. The group
incorporated special technical and financial and management expertise
from the Civil Service as well as the expertise of the consultants”.
Page 15
Paragraph entitled “Consultants Report”
“The evaluation process itself is fully documented in the consultants report.
This report was approved by the project team which came unanimously to a
single result based on the analysis.
63
Tab 202
Dáil report for 30th April, 1996.
64
Tab 205 (A)
Summary of opening remarks by Martin Brennan delivered equally to the
unsuccessful applicants.
This provided at paragraph 11 of page one as follows:“The technical evaluation was carried out competently and independently by
appropriately qualified and experienced people. Technical aspects were
evaluated by the technology division of the Department and the Andersen
team. Financial aspects were evaluated by accountants from the
Department and the Department of Finance and the Anderson Team and so
on.
“It was only when the results were pulled together that a winner emerged.
Andersen’s took on and actively played the role of ensuring that adequate
steps were taken to avoid double counting of strong or weak points which
bore on different criteria”.
64
Tab 219
Summary of minutes of meeting at Department of Transport Energy and
Communications dated 15th of May 1996.
Michael Andersen was present at this meeting. The notes of the meeting
provide as follows:“Martin Brennan, Chairman of the Project Team and Michael Andersen,
consultant were the main participants of the Department although six other
individuals were present”.
Feed back to unsuccessful applicants, paragraph entitled “The Selection
process”
The framing of the evaluation.
In order to frame the evaluation work, the project team completed a number
of activities prior to the competition closing date including, but not limited to
the following:“A division of responsibilities was agreed, according to which Anderson
Management International was to be the initiator of the work during the
evaluation”.
65
Tab 242
Minutes of evidence dated 2nd of April 1998 of public session of the committee
of public accounts-witness Mr. John Loughrey.
66
Tab 243
Memorandum of Andersen Management International A.S. experience as the
lead consultant in the GSM 2 tender in Ireland, 1995 dated January 2002
prepared by Andersen Management International.
Preface
Paragraph 1.3
Page 4
“AMI’s project files on the GSM 2 tender project consist of documents and
correspondence prepared and issued by a AMI (electronics files) whereas
only a small number of the documents have been generated by the
Department or other third parties related to the GSM 2 tender project (hard
copy files). AMI’s electronic archive for the project consist of approximately
280 documents, including the documents relating to the regulatory project
that AMI carried out partly and parallel with the GSM 2 project”.
Page 25
Paragraph 7.2
The evaluation organisation and procedure in general.
“In order to frame the evaluation work, the PT GSM completed a number of
activities prior to the closing date, including, but not limited to the
following:Agreement of division of responsibilities, as a result of which it was clear
that AMI was to play a significant role in the evaluation”.
“Department” Documents, Book 54, Weighting
Documents
67
TAB 4
Memorandum from Maev Nic Lochlainn to Fintan Towey dated 27th July 1995
enclosing advice received from AMI in relation to the alteration of the
weightings and indications of approval from members of the project group.
“Department of Finance Documents”, Book 57
68
TAB 1
Fax from Maev Nic Lochlainn to Billy Riordan dated 16th May 1996 enclosing
time table for GSM project group meeting on 18th May and agenda including
presentation by Anderson of evaluation model and proposed work plan.
69
Tab 5
Qualitative Evaluation, Market Development - draft as per 29th August 1995.
70
Tab 6
Quantitative Evaluation for Irish GSM 2 - number 2 draft dated 30th August
1995.
71
Tab 7
Tables for Qualitative Evaluation entitled “background information for the
evaluation - version 2” dated 30th August 1995.
72
Tab 8
Qualitative Evaluation, Dimension International roaming plan dated 31st
August 1995.
73
Tab 9
Qualitative Evaluation of the applications - Dimension coverage, dated 31st
August 1995.
74
Tab 14
Fax from Michael Thrane of AMI to Fintan Towey noted as for the attention of
the GSM Evaluation Group and enclosing the financial conformance cheque
dated 11th September 1995.
75
Tab 15
Qualitative Evaluation of the applications, dimension finance dated 13th
September 1995.
76
Tab 16
Qualitative Evaluation of the applicants, dimension tariff’s dated 13th
September 1995.
77
Tab 19
Fax from Jon Bruel to Fintan Towey enclosing quantitative evaluation notes
on roaming and management aspects dated 18th September 1995.
78
Tab 20
Evaluation tables relating to Tariff’s, version dated 19th September 1995.
79
Tab 21
Quantitative Evaluation for Irish GSM 2, second draft, dated 20th September,
1995.
80
Tab 22
Qualitative Evaluation tables entitled “background information for the
evaluation, version 2” dated 20th September 1995.
81
Tab 23
Evaluation tables relating to finance, version of 20th September 1995.
82
Tab 25
Letter dated 26th September 1995 from Jon Bruel to Billy Riordan regarding
GSM evaluation and enclosing spreadsheets on A1 through to A6.
83
Tab 26
Qualitative Evaluation of the applicants, dimension finance - number 2 draft
version dated 27th of September, 1995.
84
Tab 30
Fax from Michael Andersen to Fintan Towey dated 11th October 1995
enclosing a new draft chapter to the main report and two supplementary
analyses on tariff’s and interconnection.
Paragraph 2 entitled the Evaluation Process
“The Department of Transport, Energy and Communications have had the
overall responsibility for the conduct of the tender as well as the evaluation.
The drafting of this report has been the responsibility of Andersen
Management International”.
“The project team on GSM (PT GSM) has been the nucleous of the decision
making process. The PT GSM comprises members from the three telecoms
divisions of the Department of Transport, Energy and Communications, the
Department of Finance, and from affiliated consultants from Anderson
Management International”.
85
Tab 31
Undated letter from AMI to Billy Riordan enclosing draft evaluation tables,
version dated 13th October 1995.
86
Tab 33
Undated memo entitled “comments on AMI draft evaluation report” which
refers to detailed discussions of GSM Project Group meeting on 23 rd October
1995.
“Department” Documents”, Book 52
87
Tab 14
Note of a telephone conversation between Fintan Towey and Michael
Anderson dated 3rd April 1996.
Paragraph 2
“With regard to the provision of information to disappointed applicants, he
requested that no action be taken without the benefit of his input. He
expressed concern that unilateral action by this Department could expose his
firm to a litigation process”.
88
Tab 17
Letter dated August 1995 from Martin Brennan to Michael Andersen
regarding contractual matters.
89
Tab 18
Memorandum entitled
main/ancillary tasks.
90
AMI
Contractual
Matters
as
regards
GSM
Tab 19
Memorandum from Maev Nic Lochlainn to Fintan Towey and Martin
Brennan regarding Anderson contractual matters dated August 1995.
91
Tab 20
Note re arrangements between the Department and AMI undated and
unsigned.
92
Tab 21
Memorandum of a meeting of 4th September 1995.
93
Tab 22
Note entitled “Journal of AMI Contractual Litany” undated and unsigned.
94
Tab 24
Memorandum entitled “what Michael Anderson said-for September for
project group meeting” undated and unsigned.
95
Tab 25
Note to GSM Project Group members re work plan for GSM evaluation signed
by Fintan Towey dated July 1995.
96
Tab 26
Note to Martin Brennan from Maev Nic Lochlainn dated 21st July 1995.
This contains the following:“Subject to further comments being submitted in writing to myself, the
eighth meeting of the GSM Project Group approved the paper on the
evaluation model presented by Anderson Management International, with
the correction of one minor typo on page 6/21. No written submission was
received and so it can be taken that the model has been approved”.
97
Tab 27
Letter dated July 1996 from Martin Brennan Michael Anderson
“During the time that you worked with the Department, your work was
considered to be of a consistently high professional standard and both the
quality of the advice you gave and the experience that you brought to the
process played valuable parts in ensuring the smooth progress of the work
at hand. This applied to all stages of the process from the detailed
preparatory work in relation to clarification of tender documents for
interested parties; the design of the evaluation model, the execution of the
evaluation itself, the documentation of the result and finally to the
information sessions for the unsuccessful applicants at the end”.
SCHEDULE 2
SCHEDULE OF DOCUMENTS
Relevant Extracts from Transcripts of Proceedings of the Tribunal
1.
Day 163 (Transcript of Proceedings of the Tribunal on the 17th
December 2002), Mr. Healy’s examination of Martin Brennan.
Page 55, Line 14
“Because before the involvement of Andersens, I would go so far as to say we
hadn’t clearly thought about how we were going to evaluate at all. It was
the Andersen structure that got us to the whole business of scoring, etc. I
mean, clearly, individuals had conducted selection processes of one kind or
another, admittedly not on this scale, at different times, and we would have
worked out a Matrix of some kind. But it is very speculative to try to
imagine what might have been in the absence of consultants.”
Page 87, Line 18, Question 144
“Did you see the Consultants, then, as being part of the Project Group?”
Answer : “I guess I did, yeah.”
In response to a question with regard to the conduct of the Oral Presentations,
Page 111, Line 19, Martin Brennan said:“Yes. I think, while I chaired the meetings and adhered to the structure, that
Mr. Andersen probably led the meetings in the second half.”
In response to queries with regard to the meetings in Copenhagen on the
18th/19th September and the 28th/29th September, Mr. Brennan stated at Page
122, Line 5
“I have forgotten who was there from Andersens, but certainly Michael
Andersen was at all meetings.”
Page 126, Line 19
“No, I wasn’t happy that the grades were going to give me the result in the
way Michael Andersen--thought, ok, it is so obvious, there is all these As in
the A5 line, they have won the competition. And I kept saying, I can’t see
that, I can’t accept that you can mentally apply weightings to letters, and
that there has to be a way of modelling this and I got up on a white board or
flip chart and I started to do it, and my understanding is eventually
everybody was agreed that it was right to do it, and that the result turned
out to be the one that Michael Andersen thought…”
2.
Day 164, (Transcript of Proceedings of the Tribunal on the 18 th
December 2002) Examination of Mr. Martin Brennan by Mr. Healy
Page 94, Question 68
“Details of Mr. Brennan’s knowledge, direct or indirect, of any discussions
with Andersen Consulting concerning further enquiries or investigations or
other actions which would have been required to enable Andersens to
provide a report with any qualification or rider regarding the financial
capability of either Esat Digifone or Persona.”
And you say : “There is an inference in this question that Andersen
Management International produced a qualified report. This was not the
case. The report identified strengths and weaknesses in all applications. In
the case of Digifone, although its application was the strongest overall, one
weakness related to a financial vulnerability. The Project Group did not
consider that further analysis was necessary in relation to this or any other
weakness in the Digifone application. The financing issue was followed up at
the time of the licence award. I cannot recall any discussions with Andersen
Management International in relation to the need for further analysis.”
Page 104, Question 219, Line 7
Question : “Did you envisage at the very beginning that the Report of this
Project Group would in fact be put together by somebody who was to some
extent on the margin of the group as regards its day to day decisions -- that
is, Andersen -- or would you envisage that it would come from the
Department itself?
Answer : “I think it was always going to be a report from Andersens.”
Question : “So to that extent, it wasn’t a wholly independently outsourced
report, but was it not a predominantly outsourced report?”
Answer : “The report is no more than a record of what happened, or a record
of how the thing was handled. And it would be very unusual indeed if you
recruited consultants and then decided to write the report yourself.”
Page 105, Question 224, Line 15
Question : “Did the other members of the group, do you think -- I am asking
you for your impression, whether they felt Andersens were an independent
Advisor to the Group or an actual integral member of the Group?”
Answer : “Well, I think that they were engaged in a joint project ; there was
us and them. And I think we had this yesterday morning, on the basis of the
content of the narrative, I have forgotten the details now, but I mean we
recruited consultants to assist us to run this competition, and we let them do
a lot of the initiative in terms of number crunching, in terms of suggesting
the approach to marking, suggesting the marks themselves. I know that in
one or two marking groups that I attended, it was always -- Andersens came
and said “These are what we would propose, based on these
considerations”…
Page 106, Question 225, Line 8
“But did they sort of make the running, then, in that sense?”
Answer : “I think they made a lot of the running, yeah.”
Question 226, Line 11
“But when it came to finally putting the report together, and taking the final
decisions, if you like, the macro or quasi political decisions, policy decision,
seemed to have been taken in Dublin; is that right?”
Answer : “Certainly the 23rd/24th, Andersens weren’t in Dublin. So in that
sense, when the Project Group records in what you rightly drew attention to
as a belated minute of the meeting, it was a meeting of the people in Dublin.
But since Andersens’ people were involved in the sessions in Copenhagen and
were interacting in relation to all drafts of the report, I don’t think it’s
possible to drive a wedge between their role in the process and their
ownership in the outcome.”
3.
Day 173 (Transcript of Proceedings of the Tribunal, 24 th January
2003) Examination of Mr. Martin Brennan by Mr. Healy
Page 12, Line 1
“I think that’s probably true, but I have a sense in which the Tribunal is now
trying to get me to fill the gaps caused by the fact that Michael Andersen
seems not to be available, and that’s putting me in a difficult situation
because I don’t have access to the records.”
Page 64, Line 6
“As I was trying to say this morning, in all of this, we had engaged expensive
consultants with lots of experience, and they were guiding us as to what was
appropriate to do.”
Page 67, Question 157, Line 20
“It seems that at this time that the process was being driven forward, perhaps
conscious of the time element, very much by you and Fintan Towey, was it?”
Answer : “I suspect it was actually being driven forward by Mr. Andersen.”
4.
Day 174 (Transcript of Proceedings of the Tribunal on 28th January
2003) Examination of Mr. Martin Brennan by Mr. Healy
Page 1, Line 4
“Mr. Healy : Today sir, I propose to deal with an aspect of the evidence on the
evaluation project connected with Mr. Andersen’s role in the inquiry being
carried out by the Tribunal. Now, I am going to deal with one small matter
before I do that but then, what I propose doing is having the registrar read
into the record a report prepared by Mr. Andersen detailing his involvement
in the process. This was a report which the Tribunal requested the
Department to provide. It was paid for by the Department and provided to
the Tribunal in January 2002.
Now, ultimately, in view of the fact that Mr. Andersen has resiled from an
agreement to give evidence to the Tribunal and has left the matter of his
future attendance at the Tribunal in some doubt, a question may arise
concerning what weight is to be attached to this document. But in the first
instance, I think it should be read into the record, and questions concerning
its weight can be dealt with at a later point.”
Page 119, Question 103, Line 15
“In your 30 years in the civil service, how many times did you preside over a
process like this? And I want to make it clear that I am not intending in any
way to make any pejorative remarks about the process when I talk about the
conferring of largesse; it’s the conferring of a privilege on somebody as a
result of a process which is designed to involve non-political independent
technical evaluation of application.
How many times in your 30 years have you been involved in a process which
was set up as, if you like, profoundly as this to carry out such an evaluation?
Answer : “By definition, never on that scale.”
5.
Day 172 (Transcript of the proceedings of the Tribunal dated 23 rd
January 2003) Examination of Mr. Martin Brennan by Mr. Healy.
Page 125, Line 24, Question 25
“They were certainly asking questions, but I detected from you and Michael
Andersen, who seemed to be the two sort of, if you like, almost Chairman
and Deputy Chairman--“
Answer : “mm-h-mm”
6.
Day 215 (Transcript of Proceedings of the Tribunal on Friday 9 th
June 2003) Examination of Mr. Fintan Towey by John Coughlan
Page 34, Line 4
“…the process was led by the consultants, and I think in most cases, at the
subgroups I was at, I attended, it was by Michael Andersen.”
Page 14, Line 7
“… the decision was taken by consensus among the Participants in the
subgroup. That is to say, I don’t believe that any final award of scores to a
dimension was agreed without the agreement, express agreement, of the
Andersen Management International Members.”
Page 57, Line 9
Chairman: …Could I just raise, in conclusion, the more general point of the
relationship between the members of the Project Group and Andersens, as
Consultant. I think you said this morning, earlier, that you regarded the
relationship as working on a basis of interplay and consensus?
Fintan Towey : Yes
Chairman: If there was a breakdown, where did you see the decision making
role resting? If I could just give you one example; from the third of the three
presentations that we heard played…there was a little incident near the end
in which one of the consortium spokesman asked could they possibly put in a
fairly small additional document, a spreadsheet and Mr. Brennan, from
recollection, said, “Well, I’ll have to rely on Mr. Andersen who is the expert”
and indicated that, no, it seems, “because of our rules, don’t call us, we’ll call
you, we can’t take extra information.” And then at the very conclusion of the
meeting, Mr. Brennan expressed a different view and said, “Alright, we’ll
give you 24 hours to put in that spreadsheet.” Now, so that you don’t think
that I am trying to set a trap for you in my own view, I think Mr. Brennan
was probably correct in that, but would you have a view yourself as to
where the decision making function lay, if there was, in fact, a difference, if
Andersen’s advised a particular view to you or to a colleague or to the whole
Project Group, and you felt well, no, we just want to go another way?
Fintan Towey : I think we would have been very reluctant to go in any
direction that wasn’t agreed by Andersens, because we did see them as the
experts in this process.
Page 74, Line 15
“The Project Group would not have made a decision without it being
supported by Andersens.”
7.
Day 223, (Transcript of Proceedings of the Tribunal, 23rd May
2003) Examination of Mr. Fintan Towey by Mr. Nesbitt and Mr.
Coughlan
Page 47, Line 22, Question 171
“Now, just going back to a few matters from yesterday. I think Mr.
McGonigal commenced by asking you about the role of Andersen and why
the Department retained the services of Andersen or a consultant?”
Answer : “Yes”
Question : “And of course, nobody had ever done this before in Ireland. You
were all on a learning curve, and you agreed with him, that to a significant
extent you were dependent on Andersen, and upon the advice and work
which Andersen Management carried out?”
Answer : “Yes”
Question : “And you said, “Yes, that’s right, I would have seen a number of
roles for Andersen but mainly in providing a guiding light in terms of
process of expertise, but also in bringing telecoms market expertise and
financial and legal expertise to this process.” So that was your view, that
that was the role of Andersens?”
Answer : “Yes”.
Question : “They were the ones who were going to tell you how to do it?”
Answer : “Yes”
Page 55, Line 6, Question 210
“…The first one is that, Mr. McGonigal asked you about the practice which
Andersen might have had of collecting all papers?”
Answer : “Yes”
Question : “You have no recollection of that being a particular practice and
procedure of Andersens?”
Answer : “No, I don’t recall that but, I mean, Andersens did have charge of
maintaining a record.”
Question : “That is what I want to ask you about. You said that it was agreed
that Andersens would maintain the record?”
Answer : “Yeah.”
Page 55, Question 216, Line 30
“The second point is, that Andersen maintains that he was never asked to
keep an audit trail, which was the facility offered; in other words, that you
would be able to follow the documents through and have a full audit of the
process?”
Answer : “Ok. It was understood at the subgroup meetings that Andersens
would keep a record of the agreement, and the basis for it.”
8.
Day 228 (Transcript of Proceedings of the Tribunal dated 25 th June
2003) Examination of Mr. Martin Brennan by Mr. Healy
Page 53, Line 10, Question 119
“Is it likely that, contrary to what you were suggesting a moment ago, there
must have been a discussion of how you divided up the weights within the
criterion, and that when he was taking part in that discussion, Mr.
Andersen, or -- neither Mr. Andersen nor anybody else, if you like, twigged
to the fact that when you added up the weights in the first criterion, they
came to 32.5?”
Answer : “I don’t know, I mean, I suspect that in the first discussion, we were
talking about -- everybody had their own approach. And I have described
what I recollect of my approach, which is not looking at the table and
picking out figures; it was looking at the overall balance in terms of the
competition…it could well be that Andersens, and indeed others, may have
had a different approach.
9.
Day 229 (Transcript of Proceedings of the Tribunal dated 26 th June
2003) Examination of Mr. Martin Brennan by Mr. Healy
Page 3, Line 22, Question 11
“You relied on Andersen as the expert; isn’t that right?”
Answer : “Yes”
Page 6, Line 24
Mr. Healy: “I am only trying to work out how it was done or how it was
envisaged it would be done; what did Mr. Andersen have in mind? It is
extremely difficult, he will not come here and explain it but, -- and he clearly
wasn’t able to explain it to you to enable you to be able to explain it to me or
any of the other witnesses. But it just occurred to me that if the quantitative
was alive, then you would have had your numbers and you would have had
a basis upon which to apply your weights to generate, at the end of the day,
a numerical--a numerically credible result, if you like?”
Answer : “mm-h-mm”
SCHEDULE 3
1.
Letter from John Davis, Solicitor to the Tribunal, to Mrs. Carol Plunkett,
Landwell Solicitors, dated 26th March 2003.
2.
Letter from the Secretary General to the Government to Mr. Michael
Heneghan, Solicitor to the Tribunal, dated 4th May 2005.
[1] [1993] 3 I.R. 307.
[2] Supreme Court 12 May 2005.
[3] [1971] I.R. 217 at 263.