Civil servants may be recalled over key files

The Moriarty Tribunal: The Moriarty tribunal may recall one or more of the civil servants who have already given evidence in relation to the inquiry into the 1995 second mobile phone licence competition, tribunal counsel Mr Jerry Healy SC said at the outset of yesterday's hearing.

Mr Healy said the recall may be necessary because of documents which "throw light on evidence already given". He said the documents concerned the period immediately before and up to the announcement on October 25th, 1995, that Esat Digifone had won the competition.

Mr Healy said the evidence of the current witness, Mr Sean McMahon, had directed them towards the documents.

He said the documents came from the files of the regulatory division of the Department of Transport, Energy and Communications. The documents were "not previously thought to be significant".

He said the documents impact significantly on evidence already given by civil servant Mr Ed O'Callaghan, who may have to be recalled.

Yesterday was the 200th public sitting of the tribunal and the 36th public sitting in the current module.

The tribunal began hearing evidence from civil servants involved in the licence competition on December 17th and is now to recall one or more of these witnesses. The public hearings follow a private inquiry that lasted approximately one year. The tribunal is not to sit next week because of a difficulty with witnesses who are abroad.

Yesterday the tribunal heard more evidence from Mr McMahon, a member of the project team which selected the winner from the six bids submitted. Mr McMahon was questioned about the "weightings" used when analysing aspects of the various bids. The weightings were designed to give varying levels of importance to the different elements of the bid.

He said that at the outset of a meeting on October 23rd, 1995, he could see little difference between the top two bids but that as the day progressed he formed the impression there was "clear water" between Esat Digifone and the second ranked bid, from the Persona group.

He said he believed there was "sufficient difference in terms of merit to conclude that one was ahead of the other". He said he formed this view on the basis of listening to the discussion and in particular of listening to the Danish consultant, Mr Michael Andersen.

A table in the report that ascribed marks to the various bids showed the Digifone bid to be 4 percentage points ahead of Persona. Mr McMahon agreed the two were very close but he said there was a "distinct difference" between the marks received by the two. Out of 500 marks, Digifone scored 432 and Persona scored 410. "It is a small amount but it is none the less translatable into a ranking," he said. "It was as clear as we were going to get."

He was asked if he had known that the figures in the table were arrived at during a meeting in Copenhagen where Mr Martin Brennan, the civil servant who chaired the project team, had converted a table which used grades, i.e. As, Bs, Cs, Ds and Es, into a table which used numbers, 5s, 4s, 3s, 2s and 1s. Mr McMahon said he could recall a discussion on the matter.

Mr Healy said an early draft of the team's report noted that this exercise "distorts the idea of a qualitative evaluation" but the point did not appear in the final report. Mr McMahon said he did not recall a discussion in relation to this point.

He agreed with Mr Healy that there had been deviations from the evaluation model during the process but said this was because it was a complex process. He said the deviations were not such as would have affected the result.

Prior to the tribunal adjourning until March 25th, the chairman, Mr Justice Moriarty, said it was necessary to hear evidence on the complex issue of the weightings used during the competition but that nevertheless it would be better in order to save time if "net issues" could be addressed. He thought the issue could be "codified" and the examination thereby truncated.

Mr Richard Nesbitt SC, for the Department, said it was clear that some "theory" in relation to the weightings was developing in the minds of the tribunal counsel and he suggested that it would be useful if they put this theory down on paper for the assistance of the witness and the other legal teams.

Mr Healy said there was no theory. The tribunal was conducting an inquiry.

Mr Justice Moriarty suggested the legal teams discuss matters between themselves next week with a view to the evidence being addressed more efficiently. He said the inquiry into weightings must be kept to a manageable level.

He said that in his view there were two primary issues: "Were the rules of the competition proper and if so, were they adhered to."

The examination of these issues would require some measure of inquiry into the issue of weightings as well as other matters.