The 1995 mobile phone licence competition ran less smoothly than wasinitially hoped. The two top ranking bids, Esat Digifone and Persona, werehard to separate right up to the end of the race, writes Colm Keena.

Crucial decisions about the 1995 mobile phone licence competition were taken during a meeting in Copenhagen on September 28th, 1995, evidence heard recently by the Moriarty tribunal has made clear.

The tribunal has conducted lengthy public interviews with the two key members of the group of civil servants who assessed the six bids received for the licence. At the end of the evidence of the second of those witnesses, Mr Fintan Towey, it is clear the licence competition ran less smoothly than was hoped when the assessors set out on their task. Furthermore, the importance of Mr Towey's role and that of his then boss in the Department of Transport, Energy and Communications, Mr Martin Brennan, has become clear.

In particular it has emerged that the two top ranking bids, Esat Digifone and Persona, were hard to separate right up to the end of the race, and that the decision on who was ahead was first decided at a crucial meeting in Copenhagen attended by only two of the civil servants on the assessment team, Messrs Brennan and Towey.

The Copenhagen meeting took place on September 28th, 1995, and resulted in a chart, or charts which showed Esat Digifone's bid ahead of Persona's.

Mr Brennan conveyed this result to the then minister, Mr Michael Lowry, in the period between the civil servants' return to Dublin and the first subsequent meeting of the assessment team, on October 9th, 1995.

At that meeting the rest of the team was told of what had emerged at Copenhagen. It was also told that the minister had been informed of the ranking and wanted the assessment process speeded up and completed.

Mr Towey rejected a suggestion from counsel for the tribunal, Mr John Coughlan SC, that the effect of the group being told on October 9th by Mr Brennan that Mr Lowry was aware of the result, was to present it with a fait accompli. He said what was presented was a proposal "and I am not aware that anybody in the project team perceived it as being driven through or being a fait accompli".

The bids received for the lucrative licence were lengthy technical documents drafted by teams aware of the criteria under which the bids would be assessed. The bidders knew the relative importance of the various criteria as they had been listed in order of importance in the tender documents. But they bidders did not know the "weightings" which had been given to the criteria, that is figures or scores designed to define precisely the relative weight, or importance of the various criteria.

The assessment team was made up of civil servants from Mr Lowry's department and from the Department of Finance. Mr Brennan was team chairman. The idea was that the various aspects of the bids identified in the list of criteria would be examined by sub-groups of people with relevant experience. The group as a whole had the assistance of a Danish consultancy firm, Andersen Management International (AMI) which, unlike the civil servants, had experience of handling complex, hard-fought competitions for mobile phone licences. The principal of AMI was Mr Michael Andersen.

Overall the team's work was to be sealed from interference by other civil servants, the minister, or any representatives of any bidder. Because different sub-groups were to assess different elements of the bids, before all the scores were assembled to reveal a final result, it would be particularly difficult for anyone operating alone to influence the outcome. That was the theory.

The process to assess the bids was "esoteric and abstruse", to borrow a phrase from tribunal, chairman Mr Justice Moriarty.

Also, the tribunal's work has not been helped by the fact that the team's final report was drafted by Mr Andersen and his Danish colleagues. At times the technical jargon in the report leads to the conclusion that the "Danish English" makes little or no sense.

The criteria under which the bids were to be assessed were grouped into "aspects", such as marketing aspects, technical aspects, management aspects, etcetera. Each aspect was then sub-divided into dimensions and each dimension into indicators and sub-indicators. If that was not complicated enough, the bids were to be subjected to two examinations: one quantitative, the other qualitative, with the latter having greater status.

In fact what happened was that the quantitative analysis - an analysis that would rank the bids according to performances that could be measured - was abandoned during the assessment process. Mr Towey said this was because it proved to be wholly inadequate.

Before the quantitative analysis model was abandoned it was used to rank the bids and it placed the Persona consortium in first place. But Persona came second in the licence competition and has always been very unhappy about the outcome and is currently contemplating suing the State (see opposite).

The analysis used to select the winning bid was qualitative. It involved the use of weightings - the figures drawn up to define the relative "weight" or importance of the difference criteria assessed. A problem which emerged with this during the competition was the issue of how you weigh a qualitative, that is a non numerical, assessment of a performance. In other words, if a certain criteria has a weight of 20, and a bid scores four in relation to that criteria in a quantitative assessment, then it is easy to multiply four by 20. If a bid is given a B grade as part of a qualitative assessment, how is that to be weighted?

By the time Mr Brennan and Mr Towey travelled to Copenhagen in late September 1995, a lot of the sub-groups into which the assessment team had been divided, had analysed the bids. By this time the quantitative analysis had been jettisoned and the bids were only being assessed qualitatively.

Mr Towey said that in the main the way it worked was that a sub-group would look at a particular indicator, Andersen's would suggest a view as to which was the strongest bid in relation to the indicator, and the group would accept or not accept the offered view. A discussion might or might not take place. The best bid for a particular indicator might be awarded an A. The other bids might then be rated relative to the best. It was a case of judgment calls.

As already mentioned, each "dimension" was broken into "indicators". After grades were assigned to the indicators in a dimension, the sub-group would then move to decide on overall grades for the dimension. This would be done not by adding up the number of As, Bs or Cs scored by each bid, but rather by making another judgment call, often with Andersen making the initial suggestion. The grades received at indicator level, and the relative importance given to each indicator, would be used when making this assessment or judgment call in relation to the dimension.

Mr Brennan and Mr Towey were part of the sub-group that assessed the bids under the marketing aspect, the aspect or criteria that was given the heaviest weighting by the assessment team. When they sat down with Mr Andersen and another Danish consultant in Copenhagen on September 28th, 1995, they ranked the bids in relation to the marketing aspect. The other aspects of the bids had already been graded by the other sub-groups, so with all the aspects graded the men addressed themselves to the issue of producing an overall ranking in the competition. Up to this point it was clear to the team that the Esat Digifone and Persona bids were heading the field, but it was not clear which of them was in front.

It seems the Danish consultants produced a table that listed the grades (As, Bs, and Cs) for the various aspects of the various bids. Mr Brennan and Mr Towey were uneasy about this because they felt that the grades - letters - could not be multiplied by the weightings that had been decided upon for the various criteria. The Irishmen wanted to turn the grades (letters) into marks, or numbers, so that the numbers could be multiplied by the weightings. Mr Andersen was unhappy with this but eventually agreed. He believed such a move distorted "the idea" of a qualitative assessment but it was the Irish view that prevailed.

It seems Mr Brennan may have used markers and a flip chart to turn the As into fives, the Bs to fours, and so on. The numbers were then multiplied by the weightings, giving an ultimate result. Esat came out in front.

Three tables were produced, with the first showing the result in grades (letters). The Esat bid got a higher B, the highest grade, though how the various grades it got in the various aspects converted into this final grade is not clear. It may have been another judgment call. Mr Towey said he was not sure whether the result outlined in the table may not have been arrived at after the grades were converted into marks, as detailed in a later table. In other words, he said the final grades may not have been arrived at until after the conversion process described in a subsequent table had produced a numbered result.

If the final result was as per the first table, that would mean the winner of the competition was decided upon after a discussion in Copenhagen involving Mr Brennan, Mr Towey, Mr Andersen, and possibly another Danish consultant, with this discussion being followed by an "exercise of judgment" which led to the final result. In other words, the men would have made an informed judgment call as to the best bid, possibly after a result had been suggested by Andersens. It would mean that most members of the group were not there for what was perhaps the crucial moment at the final, crucial stage of the process.

If, on the other hand, the decision was based on the conversion of the grades into numbers and their being multiplied by the weightings, then the absence of the other members of the group seems less crucial, as this was an exercise which could be repeated and checked. However it is also clear that Mr Andersen was at least uneasy about such a process being conducted.

It emerged during Mr Towey's evidence that he was not clear whether the table using grades had been completed prior to the grades being changed into numbers, as described in a later table. Mr Towey said he did not have a clear memory of the sequence of events at Copenhagen on September 28th. He did say, however, that "it was at the point where we checked the figures, where we applied figures, applied the weighting model and checked the figures. That's the point I recall where I had the feeling this is the ranking, this is the outcome."

A further element of the Copenhagen meeting that has been examined is the fact that the breakdown of the weighting used for the various elements of the marketing aspect, may have been different to that originally agreed by the group. Furthermore, the use of these "unauthorised" sub-weightings may have benefited Esat. Mr Towey has countered that the group as a whole implicitly approved the new sub-weightings because it approved the report drafted at the conclusion of the overall process and the report contained the sub-weightings. After the Copenhagen meeting the two civil servants returned to Dublin. Mr Brennan had a brief chat with Mr Lowry during which he told him that Esat was leading the pack.

He then told the October 9th, 1995, meeting of the assessment group that the minister had been informed of the ranking arrived at in Copenhagen. The group then began to assess the work done in Copenhagen and a draft final report that had been received from AMI.

The notes of the group's meetings do not contain any record of the group being informed by Mr Brennan or Mr Towey on how exactly the discussion in Copenhagen evolved. Mr Towey told the tribunal he would be amazed if the way the debate evolved was not outlined to the group. He further argued that the decisions taken in Copenhagen were approved by the rest of the assessment team as they approved of the final report which contained the fruits of those decisions.

The reason these matters are being inquired into seems clear though the tribunal has not outlined any particular suspected malign scenario that it is investigating or probing. The fact that Mr Brennan and Mr Towey played such key roles means that it would have been easier to influence the competition than would have otherwise been the case, and this is of obvious interest to the tribunal.

That said, watching the evidence heard to date there is no evidence at all of Mr Lowry interfering in the actual deliberations of the group in such a way as to bring about the success of Esat Digifone. There is no suggestion being made, and no basis for any suggestion, that Mr Brennan or Mr Towey had any preference in relation to who won the competition.