The ACT Integrity Commission continues its probe into the tender for building works at Campbell Primary School. On Thursday legal columnist HUGH SELBY says there were lots of observations  but no progress in dealing with the issue: who caused the tender process to miscarry and is there sufficient, admissible, credible evidence to call anyone to account?

REMEMBER the game whack a mole? There’s a similar game being played out in domestic gardens and parks across Canberra these days as the wretched rabbits breed and breed.

Much is consumed by these critters (apart from carrots) and they make nuisance burrows everywhere, but little, if anything other than more rabbits results.

Much of Thursday’s questions and answers in Operation Kingfisher reminded me of the moles and the rabbits: lots of observations – here, there and everywhere (much of it repetitive) – but no apparent progress in dealing with the issue: who caused the tender process to miscarry and is there sufficient, admissible, credible evidence to call anyone to account?

The early part of the day was not propitious. Manteena’s CEO Mark Bauer came back, as unflappable as ever, to be questioned by Kate Morgan SC, counsel for Education head Katy Haire.

The aims of cross-examination are to bolster one’s client’s case, to cause some damage to the witness if that is necessary and to articulate ideas or themes that the cross-examiner will take up with other witnesses (including one’s client) and in submissions to the fact finder.

Cross-examination can be objected to by other counsel when they have a good legal basis to do AND it is in their client’s interests.

There was no interruption to cross-examination that: was mostly repetitive of information we had already heard; made it clear that Ms Haire was the decision maker; and allowed Mr Bauer to state with clarity, conviction and credibility, about the face-to-face meeting attended by her client, Mr John Green (an earlier witness and not his real name), Mr Bauer and another Manteena director.

“We [Manteena] weren’t getting clear answers [as to why Manteens lost the tender] from anyone – the director-general [Ms Haire], Mr Green or anyone else. It’s as simple as that.”

Rabbits dig burrows to survive. Humans occasionally dig unnecessary holes.

Dylan Blom, another procurement officer within Education and junior to Mr Green, resumed his evidence from Wednesday. We can’t see him but his audio is more than adequate.

Mr Blom took us through the unusual steps followed in his tender assessment. He shared how he learned of the rumours about union and the Education Minister’s “interest” before the contract was awarded.

He knew from Mr Green that Mr Green was “under pressure” and that Mr Green was “relieved”that the [directorate head] was the decision maker.

Mr Blom felt a degree of empathy for Mr Green. He [Mr Blom] felt pretty helpless, especially as he was not able to brief Mr Green and Ms Haire together as to how robust was the preference for Manteena.

He told us his efforts to raise his concerns with management – even going outside the Education Directorate. The advice he received, and upon which he acted, was “to document everything” and “to follow due process”.

Following the awarding of the contract he was present at two “debriefs” of Manteena, one by audio-visual and the second at a Kingston cafe. Mr Blom wanted Manteena to know he had no role in any improper process. His probity, and the reliance of others upon that, was and is important to him.

It was at the Kingston cafe debrief that Mr Blom first became aware, as Mr Green set it out to those present, of much of the detail about the “interests” of the union and the minister’s office.

There was a moving moment when, shown another document on the screen, Mr Blom indicated that he remembered it so didn’t need to see it. Counsel assisting, Callan O’Neill, memorably said: “We’ve got to assist people playing at home.” On behalf of our readers, myself and those others who were watching, I say: “Thank you, Mr O’Neill”.

That said, except for the “take out” enlargement shots, it’s often not possible to read the document text on the screen.

Duncan Edghill, head of Major Projects, was called after lunch.

Regrettably, there was a technology glitch and I had no access to the first half hour of his evidence. The day’s video was taken down within seconds of the hearing ending. That meant it was impossible to go back and have a look. Perhaps the commission could leave the day’s audio visual up and accessible for a few hours? Thursday’s transcript may be on the commission’s website on Friday.

Despite the viewing problem, what I saw of his evidence, especially as to the conduct of one of his staff, a Ms Young, was interesting: determined, gutsy, whistleblowing.

Ms Young was a member of the first evaluation team that preferred Manteena. She refused to be part of the second team. She wrote a lengthy email to Mr Edghill. (It was so long that he may not have read it carefully.) This email was in response to his direction that his officers report to him when there were delays. Going to a BAFO (best and final offer) caused such a delay.

We were taken to a series of emails between him and Ms Young, including where she tells him that the decision to award the contract to Lend Lease is in conflict with two committee recommendations. She also points to Manteena being preferred and under budget. 

Apprised of rumours about union and ministerial office “interest”, he told his officers not to be deflected from doing their jobs in the usual way. His view then was that everything seemed to be in order. Hence, he saw no reason to take any further action.

And at around the time of the decision to award the contract to Lend Lease he does not recall discussing the Campbell project with Ms Haire.

Ms Morgan, counsel for Ms Haire, questioned him briefly. She claimed that Ms Young phoned Mr Bauer to tell him that the wrong decision had been made, that Manteena had been preferred and that Mr Bauer might like to consider the Freedom of Information process. This was not known to Mr Edghill. It was sending up a big balloon for us all to see. This is one of those “shoot the messenger” comments, barely disguised as questions: there may be a rebound.

The head of the Education Directorate, Katy Haire, was called late in the afternoon. We heard about her settling into her new job and dealing with the bushfire and air pollution problems at the end of the school year in 2019.

What she could remember about her action before handing over to an acting head (Ms Cross) in mid-February 2020, was that procurements were not on her mind.

More on Friday. Fingers crossed we’ll hear her version – clear, brief and persuasive – of what, if anything, came from anyone in the minister’s office about the Campbell job and how to handle Manteena’s bid for it.

Spare us more rabbits running this way and that!