Five school bus operators attempted to “load the dice” to distort competition in the market and drive tender prices higher, a prosecution barrister has told a Central Criminal Court jury.
“You cannot go into a tender process and discuss who was bidding for what and how much they were bidding,” said Dominic McGinn SC, in the trial of five Tipperary men being prosecuted by the Competition Authority for alleged offences relating to the provision of school transport services across five counties.
The accused are Andrew Walsh (62) of Derrymore, Roscrea; Raymond Heney (54) of Camas, Cashel; Noel Browne (77) of Bansha; Larry Hickey (73) of Ardmayle, Cashel; and Anthony Flynn (51) of Golden Road, Cashel.
All five have pleaded not guilty to offences under the Competition Act 2002.
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The single charge against each accused alleges that between November 1st, 2014, and December 31st, 2016, they engaged in a concerted practice which had as its object, or effect, the prevention, restriction or distortion of competition in trade in the provision of school transport services.
The trial has heard that all of the accused were involved in the process of bidding for tenders to provide school bus routes. It is alleged that there was collusion between them.
The jury heard that one of the accused would arrange to hold meetings in order to provide services and assistance in dealing with administrative processes. The man would invite other bus operators and they would allegedly discuss the allocation and pricing of the school bus routes.
It is alleged that there was a “degree of co-ordination” between the parties so that prices would end up higher.
In his closing speech on Wednesday, Mr McGinn told the jury that this was not the usual criminal case as it was “a bit commercially involved”.
He said that if certain parties come together and agree not to charge the customer less than a certain amount, there is no benefit to the consumer, and this is an example of price fixing.
Mr McGinn said that “market sharing”, where it is agreed among the parties to allocate an area to an individual so there is actually only one provider, is also not allowed.
He said that this concerted practice was not a formal agreement but collusion between them that involved an exchange of information and a form of co-ordination that led to “the disappearance of competition”.
He said the five accused, and perhaps others, were attempting to “load the dice” to distort the competition.
Mr McGinn told the jury that all five accused were involved in a tender process through Bus Éireann, which was a serious and formal process that they knew strictly excluded collusion and had to be confidential.
Counsel said that Mr Heney portrayed himself as offering advice to other operators in this process, but it was clear there was co-ordination. He said that the wording was the same on various documents provided by different operators, with some consistent spelling mistakes. He said that tax clearance forms submitted by Mr Flynn and Mr Hickey were completed in exactly the same way, which indicated that Mr Heney gave them assistance to fill them in. However, Mr McGinn said the issue was whether they went further than that and also discussed the bidding process and pricing.
He said Mr Heney instigated a series of meetings in various hotels to assist with documentation, but it seemed that more than this was discussed, as Mr Heney gave a PowerPoint presentation in which he outlined how difficult it was for small bus operators to make money.
He went on to say that following a meeting on April 4th, 2016, a huge amount of information was exchanged between people who were supposed to be competing against each other.
The trial continues on Thursday before Mr Justice David Keane.
