Moriarty ruling suggests there may have been flaws in mobile bid process, writes Colm Keena

Perhaps the most important fact about the 1995 mobile phone licence competition is that the winning bid was to be selected by a team of civil servants drawn from the Department of Finance and the Department of Transport, Energy and Communications, working with Danish consultant Michael Andersen, but otherwise without outside interference.

When the Moriarty tribunal launched its marathon examination of the process, a key aspect was always going to be the evidence given by the civil servants on the team. All have now given evidence and none have said that they felt their work was interfered with or overborne in any way. Andersen is refusing to come to Dublin to give evidence.

There has been no suggestion that any of the officials involved would have any reason not to give truthful evidence. Accepting that would seem to mean either that the competition was clean or that it was interfered with in some way that did not come to their notice.

In the course of a lengthy ruling recently, tribunal chairman Mr Justice Michael Moriarty made it clear he was not convinced the assessment of the bids for the licence was the sealed process it was meant to be.

Furthermore, he expressed the view that the assessment process did not progress as it was supposed to but, rather, ran into difficulties and had to be altered as it went along.

The assessment was to have involved a quantitative element to which weightings were to be applied. In other words, different aspects of the bids would be scored, and the scores multiplied by a series of secret weightings.

What happened, however, was that the quantitative scoring was dropped because of unforeseen difficulties.

The remaining qualitative element of the process was then used to grade the bids. Also, weightings that were to be applied to quantitative scores were applied to qualitative marks that were given to various aspects of the bids.

There were six bids and, as the process neared its conclusion, it was still not clear to the assessment team whether Esat Digifone or Persona was in the lead. In late September 1995, the head of the team, Martin Brennan, travelled to Copenhagen with his fellow civil servant, Fintan Towey, where they worked with Andersen on bringing the process to a conclusion.

Grades were turned into scores and weightings applied, despite concerns about the accuracy or validity of such a manoeuvre.

After the civil servants returned to Dublin, Brennan told the minister, Michael Lowry, that Esat Digifone was on top and reported back to the team that he had done so. Lowry may have asked that the process be hurried to a conclusion.

All this occurred before the team as a whole had a chance to review what happened in Copenhagen. From his ruling, it would seem that the judge is focusing on this series of events.

In his ruling, he said: "In general, I will be obliged to address myself in reaching any conclusions concerning the latter part of the competition to the question whether, by reason of the acceleration of the process or any other interventions by the minister, one of which will be referred to below, there was a reluctance or a certain disinterest on the part of officials to scrutinise certain aspects and more specifically, certain weaknesses in either of the leading two applications."

The other intervention he referred to was a phone call from Lowry, earlier in September 1995, received by Towey. In evidence, Towey said Lowry told him during the call that he was "under a lot of pressure" over the competition. He was receiving representations and wanted to know how the competition was progressing.

Towey said that the minister gave the clear impression that he was under pressure in that it was believed by one consortium that one of the applicants had the competition "sewn up" and that the result was a "foregone conclusion" and "in the bag". (These are believed to have been references to the Persona group.)

Towey told the minister there were still a number of players in the competition. He may have given Lowry the names of the leading consortiums at that stage, but he could not be sure. He reported the call to Brennan.

In response to questioning, he said he did not perceive from the conversation that Lowry was "negative" in relation to Persona.

It seems that the tribunal, from the evidence heard, has reduced the key issue of how the team could have been influenced or overborne in any way, to this: the minister may have indicated, or been taken to have indicated, a preference for a candidate, or satisfaction with an outcome, and the civil servants may have then, because of the culture in which they operate, have set about wrapping up the process so as to give effect to this.

The day after the judge's ruling, Denis O'Brien, founder of Esat, took the unusual step of issuing a lengthy statement to the media, in which he strongly criticised the tribunal. One point strongly made was in relation to this reference to the competition being "accelerated", possibly because of the minister's intervention.

He referred to a document that was discovered in the department's files where, as part of a dispute over fees with Andersen, a timetable for the completion of the process was agreed. The settlement, including the timetable, was negotiated by Brennan on behalf of the department and so both sides at the Copenhagen discussions may have been seeking to push the process over the line, so as to keep faith with the agreed timetable. In fact, the process ran to conclusion in keeping with this timetable.

Of course, just because the process ran to the agreed timetable doesn't mean that an intervention from the minister in the ways referred to by the judge could not have had an influence on the civil servants' work in the way stated by the judge.

The judge's observations and comments came in a ruling where he said he would continue with the inquiry, despite submissions from O'Brien and others to the effect that, without the evidence of Andersen, the inquiry must be inadequate.

In the course of his ruling, he also referred to other matters that he may have to rule on, including matters to do with how Dermot Desmond came to be involved in the Esat consortium.

Most of the evidence on the licence competition has been heard and there is little evidence of Lowry interfering to help Esat Digifone. However, the defects in the assessment process that have been identified could prove to be manna from heaven for Persona, which is suing the State over how the competition was run, in a case with the potential for huge damages. Defects, as opposed to corruption, could be enough to serve Persona's purposes.

The Persona consortium, which included Motorola back in 1995, is now owned by Irish businessmen Tony Boyle and Michael McGinley. As O'Brien put it in his lengthy statement, Boyle must have been gleeful when he read the judge's ruling.