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 CONTENTSPART 1 – THE ROLE OF MICHAEL ANDERSEN AND ANDERSEN MANAGEMENT INTERNATIONAL A/S IN GENERAL TERMS

(i)        BACKGROUND(ii)        ANALYSIS OF ROLE OF MR. ANDERSEN AND AMI GENERALLY(iii)        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 – CONCLUSIONSCHEDULE 1SCHEDULE 2SCHEDULE 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 24th 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 person or persons selected to conduct the Inquiry                           should be informed that it is the desire of the House that  (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 11th 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 non-standard 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 co-operation 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 25 th 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 cross-examination. 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 and Radio (Development) Division, November, 1993.

 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 Digital Mobile Cellular Communications (GSM) dated November 1994”.

             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            Relating evaluation criteria to legislative and regulatory framework;              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.        The Andersen presentation on the quantitative evaluation of the six applicants.

             2.            Discussions of the forthcoming presentation.  

3.         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 11th

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            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”.  41        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 9 th 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 23rd

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 18 th May and agenda including presentation by Anderson of evaluation model and proposed work plan.

            69       Tab 5

 Qualitative Evaluation, Market Development - draft as per 29 th

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 23rd 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 AMI Contractual Matters as regards GSM main/ancillary tasks.

 90       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

18th 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, 24th

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 23rd 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 9th 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

25th 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

26th 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 31.         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.