Orange wanted best of both worlds on bid, court hears

Orange Communications' lack of binding commitments on tariffs in its bid for the State's third mobile phone licence was one issue on which the British telecoms giant did badly when it came to evaluating the bids, the Supreme Court was told yesterday.

Orange had later complained that it should have been told that the issue of binding commitments was important and had sought an opportunity to offer such commitments, Mr Donal O'Donnell SC said.

This approach meant that Orange had been trying to replay one aspect of the tender process while wanting other aspects of the process which had gone in its favour to stand.

This was not a proper basis on which anyone could find there had been objective bias in the evaluation of the licence bids, counsel argued.

Mr O'Donnell, appearing with Mr Gerard Hogan SC for the Director of Telecommunications Regulation, was continuing his submissions on behalf of the director on the fourth day of the appeal, taken by the director, Ms Etain Doyle, and Meteor Communications, against the High Court's overturning of the director's decision of October 1998 to award the third mobile licence to Meteor.

Orange, which was the only other bidder for that licence, challenged the director's decision in High Court proceedings heard over 50 days last year by Ms Justice Macken.

Upholding the challenge in a 247-page judgment delivered in October last, the judge found the Director's decision was objectively biased and unreasonable. She also found the Director's failure to give reasons to Orange regarding why its bid was unsuccessful was wrong in law.

In court yesterday, Mr O'Donnell continued his detailed analysis of the evidence given to the High Court and of the judgment delivered in the case.

He argued the trial judge had taken an unsustainable and narrow approach to the issue of the correct interpretation of the tender documentation delivered to both Orange and Meteor.

It could not be said the tender document was misleading in relation to the important issue in the tender process of binding commitments on tariffs and the trial judge had wrongly concluded the tender document was insufficiently clear.

Mr O'Donnell also complained that the trial judge had consistently put an onus on the evaluators in the Office of the Director of Telecommunications Regulation to disprove certain matters and their failure to do this was a matter for comment by the judge.

The appeal continues on Monday.