Mr Green told his boss that Manteena was again the preferred tenderer. She said words to the effect: “That wasn’t what the minister’s office wants. What are the options?” HUGH SELBY has been watching the revelations of the second day of the public hearing of the ACT Integrity Commission’s investigation into the Campbell Primary School Modernisation Project.

AT Thursday’s hearing, witness “John Green” explained: the two-stage tender process for construction work at Campbell Primary School; the requirement for tender bidders to hold a compliance certificate with a local code that operated alongside the Commonwealth’s Fair Work Act; how both tenders were over budget; how local company Manteena had the cheaper, higher-rated bid; a trade union antipathy to Manteena; and, how someone within the Education Minister’s office indicated to the acting head of his department that Manteena was not to get the contract.

Friday opened with questions about the use of the Best and Final Offer (BAFO) process. There was no attempt to share with us or the witness what topic/s would be addressed and in what order. What a pity. There is, in most cases, no downside to an advocate sharing with the witness (be it in examination-in-chief, cross-examination or inquiry questions) how and in what order topics will be pursued.

It was entertaining to observe how Commissioner Michael Adams KC, former NSW Supreme Court judge and former Commissioner of the NSW Law Enforcement Conduct Commission, would ask occasional questions, in a friendly tone, that elicited quick, credible responses.

By contrast, Counsel Assisting Callan O’Neill (CA) seemed to be locked into a case hypothesis that Mr Green had something to hide. What that might be was not expressed. This determination became more difficult to understand when we learned, in the closing minutes of the day, that Mr Green has been questioned previously in a private session. More about that at the end of this article.

The identity of the single witness (pseudonym John Green) appearing on Thursday and Friday was not revealed. His identity is subject to a suppression order in the interests of fairness. The live stream does not show him. We listen to his answers.

Mr Green was asked about conversations with his head of department when she returned from leave. She told him that she too had been called to the Education Minister’s office and told that Manteena was not to get the contract. He told her about his proposed use of the BAFO process and how it worked. She told him that she’d be the final decision maker, but he was to keep going with the process.

Asked if it was the Education Minister Yvette Berry who told his head, he couldn’t say.

The Commissioner interrupted CA to ask Mr Green questions about how the decision maker was to be the head and not a delegate.

Mr Green explained how delegations worked. There were various ways in which decisions could be made. Tellingly, his head did not have particular experience in procurement.

He then explained to CA that to use “spare capital works funds” to top up a budget, so that an above-budget tender could be accepted, required the agreement of the minister’s office.

He received a call from the Education Minister’s chief of staff [CS] that confirmed that Manteena was not to get the job. He told the CS that more money would be needed. The CS told him: “Let’s not go for the cheapest bidder” – a remark that Mr Green had previously heard from a union person.

Taken to the decision to have a new evaluation team, Mr Green explained that he had expected the first evaluation team to look over the results of the BAFO. At least one member of that team did not want to be involved. This led to a new team being appointed.

Possible ‘conflict of interest’ for new team

The Commissioner asked him about a possible “conflict of interest” problem for this new team, namely following the desired outcome to use the BAFO or applying independent judgement to proceed in some other way.

The new team had two members who were his subordinates, and one from Major Projects. Mr Green had clearly indicated his preference for a BAFO. Was it, asked the Commissioner, a “direction”?  Mr Green didn’t think it was. His subordinates were senior enough and he trusted their “professional judgement” to come back to him with their views if these were different to his.

The Commissioner then pointed to the issue for Mr Green and the new evaluation team, “how do we deal with the minister’s office intrusion?” Mr Green repeated that he would follow process, that he had a “sense of relief” that it would not be him making the final decision, but his departmental head would do so.

There were some spirited objections from other barristers as to the phrasing of questions from the Commissioner. The purpose of those objections was to protect their clients (whoever they were). This seemed to turn on whether the minister’s office had just a view or something stronger, that is, “do not give this contract to Manteena”.

This may have given us a glimpse into how “the minister’s office” is going to run its case.

To encourage both Manteena and Lend Lease to take part in the BAFO process Mr Green was able to offer each of them a payment to cover their costs in providing their BAFO submission.

Mr Green regrets ‘over sharing’ the political involvement

Mr Green was asked about his knowledge of public servant obligations with respect to probity and ethical behaviour. This was broken up into discrete issues. Mr Green’s answers showed how he believed that he had complied with those obligations.

However, Mr Green regrets that he ever told his teams about the political involvement. As he put it, “I over shared”. “I was being overly candid”.

He wasn’t then asked why he regretted his sharing that information. He should have been. For example, suppose that he didn’t share that information, then he would have been open to later damaging criticism for concealing important information. It could be argued if he did not tell the team that he was deliberately setting up a sham process.

One might say that he was damned if he did and damned if he didn’t share the information with the team members.

It needs to be kept in mind that the tensions upon an accountable and transparent tender process were not introduced or encouraged by Mr Green. The pressure came from elsewhere.

Fortunately, following an exchange between the Commissioner and Mr Green’s barrister (Marcus Hassall), it became clear that Mr Green found the political involvement to be unnecessary to the team’s task. That is, without that knowledge their work could not be said to be influenced by their secondhand knowledge of a political view.

Turning after lunch to the BAFO process, only some of the tender criteria were re-assessed. This reflected the legal advice from the Government Solicitor’s office.

Once the BAFO closed, Mr Green heard “fairly quickly” that Manteena was going to be the higher scored. Thereafter, there was a meeting at which this result was confirmed.

Manteena’s design was preferred and it was cheaper per square metre.

Difference in price between tenders was just under $900,000

It was early June 2020 that the team’s report was finalised. The difference in price between the two tenders was just under $900,000. The Lend Lease tender still exceeded the target budget by nearly a half million dollars. Manteena was below the target budget.

The team’s report came to Mr Green via the usual chain of command. He found it “an acceptable level of professional assessment” (the Commissioner’s words).

Days later he had a meeting with the head. He can’t recall if the meeting was in the office or using “Teams”.

He told her of the report, that Manteena was again preferred.  The head said words to the effect: “that wasn’t what the minister’s office wants. What are the options? He suggested “overriding” the report. He would write her a brief to do something other than accept the report. She asked for that to be done.

Repeatedly during the afternoon CA suggested that Mr Green was the decision maker. Repeatedly Mr Green corrected him.

Apart from the repetition this approach is the more surprising as we learned at the close of the day that Mr Green has earlier been questioned in a private hearing. Surely the point as to who was the ultimate decision maker was raised and answered during that earlier hearing.

If Mr Green gave evidence in the public hearing that contradicted his private hearing evidence then one would expect that to be raised with him today. This is called impeachment. It did not happen.

For the purposes of preparing their questioning of Mr Green, once the CA finishes, the parties may see the transcript of parts or all of that private hearing. It  is unlikely that it will be shared with us.

What Mr Green did after his meeting with the head will be taken up on the next hearing date, September 6.

Berry’s office: ‘Manteena was not to get the contract’

“CityNews” legal commentator and former barrister Hugh Selby wrote brilliant, running commentary on the Sofronoff Inquiry’s public hearings, focusing upon the advocacy and witness performances. The “CityNews” coverage of the inquiry, including his daily reviews, is here.

Hugh Selby’s free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.