'O'Brien won fairly' - counsel

Mr Denis O'Brien "wiped the floor" with a number of major international corporations when he successfully competed for the State's second mobile phone licence, his counsel, Mr Eoin McGonigal SC, told the Moriarty tribunal yesterday.

Mr McGonigal, making a statement on behalf of his client at the conclusion of the tribunal's seven-day opening statement, said the rumour and innuendo which had existed since the 1995 competition should be brought to an end and the losing bidders should "put up or shut up".

It would be seen that Mr O'Brien's Esat Digifone consortium, the "minnow" in the competition, had done nothing wrong and had beaten major multinational corporations, in particular the favourite (Persona).

He said that at the end of the day, the position was simple. "A young entrepreneur, Irish, came along and partnered himself to the leading IT firm in the world at the time, Telenor, and together they wiped the floor with some of the major corporations of the world."

Mr McGonigal said Mr O'Brien welcomed the fact that the competition process was being investigated and that the seven years of rumour and innuendo could finally be laid to rest. Any material which was available to allegedly support the rumours should be given to the tribunal. It was important that the losing consortiums who had been "whinging" for seven years and who had initiated proceedings, should come forward and provide any material they had.

Mr O'Brien had won the competition "legally, fairly and properly", Mr McGonigal said. He would be asking the tribunal chairman, Mr Justice Moriarty, to find that this was the case. Mr O'Brien had no "confidential or insider information" relating to the competition process. He had won because he had the best team, was the best prepared, had the most planning applications in for sites for masts, and was "better than anyone else".

A Danish consultant, Mr Michael Andersen, who had been involved in selecting the best bid had said the Esat Digifone application was the best he had ever seen, Mr McGonigal said.

He said it would have been impossible to interfere with the marking process which selected the best bid and which awarded marks under 10 sub-groups evaluated by different people. The process was carried out by members of the civil service.

"The civil service is an organisation which throughout the history of the State has shown completely and utterly their loyalty to the State regardless of the government in power."

Mr McGonigal said the Esat Digifone consortium bid got 432 marks in the evaluation process, with the next highest mark being 418. "There is no evidence that the process was interfered with or invalidated." Mr McGonigal said it would have been impossible, or at least extremely difficult, to interfere with the selection process and this was something the tribunal would have to take full note of.

He said the evaluation team was aware of the financial issue concerning Mr O'Brien's company, Communicorp, but Telenor, the other partner in the Digifone consortium and "a £1 billion company", could have funded the Digifone project in its entirety. Similar issues existed with other bids.

Mr McGonigal said a number of questions could be addressed. They included the question as to whether the minister could have changed the result of the evaluation, and if he could have, how had he changed the result. "In my respectful submission, he could not have changed the result."

Mr McGonigal said it seemed the evaluation team had made its decision by the end of September 1995, and there was no obvious way Mr Lowry could have changed that result and there was no obvious way he could have influenced the process up to the end of September. "There was not and could not have been any intervention by the then minister in the evaluation process."

Mr McGonigal said it would be found that the civil servants involved in the process did their work fairly, honourably and independently, and that the result reached was the correct result.

He said if he had one concern about the tribunal it was that it might try to "assess the assessors", but this was not within its terms of reference.