High Court 

Orange Communications Limited v The Director of Telecommunications Regulations and Another

1998/12160 P 

4 October 1999 

MACKEN J: 

On the 18 March, 1999 I gave a Ruling as to the scope of the appeal in this matter, and this is my judgment on the appeal proper. 

BACKGROUND FACTS 

In late 1997, as part of a continuing programme of liberalisation of the telecommunications industry in Ireland -- in turn driven by movement from the European Community -- a competition was announced by the first Defendant (whom in this judgment call "the Director") for the award of a licence to operate a mobile telephone service in Ireland. This has come to be known as the "third mobile licence", because there were already in existence two "licensees", namely, Eircell, who were the successors to the monopoly previously held by Telecom Eireann and/or the Minister for Posts and Telegraphs, and Esat, who secured a licence from the Director's predecessor, the Minister for Transport, Energy and Communication. 

The Competition for the licence was announced by the Director in late $99 and it is common case between all the parties that at the time there was room in the market for one only further licensee. I understand that this limitation was due both to technology reasons and to market reasons -- in other words that there did not exist sufficient spectrum space for more than one further licensee, and possibly also there did not exist a sufficiently large market for more than one further licensee. In any event, the Director was of the view that a competition for the third mobile licence was the way forward and there has been no complaint as to the adoption by the Director of such a route. 

To understand the issues which arise for consideration in this case, it is necessary to give an outline of the events leading up to the dispute. The Director issued a press release in December 1997, which read, in part, as follows:- 

"The award of this licence will be a very important development in the Irish mobile telephone market. The introduction of competition to this market has already resulted in lower rental charges, lower call tariffs and a significant increase in the number of people using mobile phones. The licensing of a third operator will increase competition and provide consumers with a greater choice of operators who must compete on price, quality and range of services to gain and maintain subscribers. 

The key features of the licence are 

-- combined DCS 1800/GMS service 

-- minimum coverage using DCS 1800 of one third of the population within two years and a minimum 80% coverage, using both GSM and DCS 1800 within 4 years; year licence 

The competition has been designed to ensure that the best applicant wins -- one who can demonstrate its ability to become a key player in the Irish mobile market." 

This was dated the 2 December 1997, as was a note indicating that copies of the tender document were available on payment of a non refundable fee. In part, that note stated:- 

"The Irish mobile market offers significant potential for growth over the coming years. Mobile penetration currently stands at about 11% which is below the current EU average. However, Ireland currently has the fastest rate of economic growth in the EU and this is expected to continue for the foreseeable future. A Summary information memorandum is also available on request and is free of charge." 

The Information Memorandum is also dated the 2 December 1997 and was helpfully included in the copy Tender Document furnished to the court as part of the bundle of core documents intended to be used in the course of the hearing. It, in turn, reads in part:- 

"2. Objectives of the Competition 

The overall objective of this competition is to increase competition and choice so that the Irish consumer benefits from lower tariffs and the availability of high quality services. The introduction of competition to this market has already resulted in a significant increase in penetration rate for mobile telephony with lower rental charges and call tariffs. It is anticipated that the arrival of a third operator will accelerate the development of the market." 

"The overall objective of this competition is to stimulate further' competition in the mobile sector for the benefit of the end user. An additional nationwide licence would best meet this objective. DCS 1800 technology is less effective in providing coverage in rural areas compared to GSM A combined DCS I 800/GSM licence would therefore provide the best means of achieving nationwide coverage. However, there is limited GSM spectrum available and accordingly, only one combined licence can be issued at present. 

"The successful applicant will be selected by way of open tender using the best application method According to the best application methodology, the application which is awarded the highest mark in the comparative process will be ranked first. The evaluation will be in accordance with the evaluation criteria explicitly outlined and weighted in the tender document." 

There are a few other document which, while not available to bidders prior to these proceedings, throws some light on the thinking of the Director and on the objectives of the proposed competition. 

The first of these is from one of the very earliest meetings of the Steering Group (established by the Director in mid 1997 to organise and oversee matters leading to the award of the third mobile licence). On the 26 August 1997 it was recorded by the Steering Group, under the heading '"Key issue for decision before issue of tender document" 

"Discussion paper (97/7), prepared by SB, formed the basis for discussion. This outlines the key decisions to be taken. All agreed that it was necessary to bring the SG's thinking on these issues to an advanced stage before any external consultation with DPE, D/Fin or consultants. 

"SB gave a summary of the issues under the headings in the discussion paper and discussion followed on each issue. SB highlighted that the starting point was to decide what the overall guiding objective for the competition is General consensus that the main objective is to stimulate competition in the 'mobile phone market in order that better service, choice and value for money is offered to the consumer." Next is a memorandum discovered by the Director, and entitled 

"Memorandum on key elements for the DCS1800 licensing process in Ireland". It appeals to be a draft, or at least there are amendments to the copy furnished to Court, of a submission or paper. It may be an earlier draft of the Information Memorandum which I referred to above, but I think it unlikely, because a reading of it suggests that it is a draft of material to be sent to the EU Commission in Brussels. It refers to "the objectives of the licensing process" as being:- 

"To comply with the EU requirement to introduce DCS/800 and to' open available spectrum with a first consideration to new entrants; 

To introduce more network based competition in Ireland, so that the consumer benefits from lower tariffs and the availability of a number of high quality advanced services. 

There is one final document which may also assist the court in ascertaining the objectives of the competition. This is the minute of a meeting of a Steering Group held on the 26 August 1997. I will return to the establishment of the Steering Group in due course. On the 26 August, 1997 the minutes of the meeting record that the general consensus of that Committee was that the main 'objective (of the competition) is "to stimulate competition in the mobile phone market in order that better service, choice and value for money is offered to the consumer." 

It will be clear from the foregoing material that the Director set out the principles behind the tender as being greater competition for the benefit of the consumer, and this is to be evidenced by lower rentals and, call charges and better quality and more available services. I do not find in any of these documents any suggestions that low tariffs were to prevail over better quality or more advanced or available services. 

The competition being by means of comparative tender, in the usual way, all parties interested in bidding sought the tender documents, including the Plaintiff (whom I shall call "Orange" and the Second Defendant whom I shall call "Meteor"). Both Orange and Meteor sought the tender documents, together with, I think, a few others. The closing date was to be the 28 March, 1998. The tender document is described in the above Information Memorandum as consisting of the following:- 

(a) A description of the process; 

(b) The detailed requirements in relation to the form and content of the applications: 

(c) A description of the regulatory, commercial and calculatory assumptions to be applied; 

(d) A draft licence. 

I would not myself describe the Tender Document in quite the same manner, but for the purposes of this judgment nothing much turns on the actual description. 

It is clear from the tender document itself, and was confirmed in the course of the Information Memorandum, that the tender document had been drafted with the assistance of consultants, in this case a Danish company called Anderson Management International (invariably called "AMF' during the course of the tender and evaluation process and in this Court). In the sequence of events, it seems clear that they were the initial drafters of the tender document, although the tender document was amended and redrafted with the expertise of the Director's own staff, to some considerable extent, and then finalised to meet the approval of the Steering Group established by the Director. 

The tender document in full runs to some hundreds of pages, and it was clear that pre-bidding 'queries might arise. Provision was made within the tender process and in the pre tender documentation for questions to be furnished to the Director and answers given prior to closing. That process took place in February 1998, and two sets of answers to questions posed were provided on the 26 and 27 February 1998. The Director dealt with these in a combined or global manner, that it to say, whatever the source of the questions, they were combined together in a long series, and then answered, and the combined questions and answers were then furnished to all parties who had raised questions. This meant that each party raising questions was also furnished with the answers to those posed by others. It did not become clear until later that there were, in fact, only two serious bidders, namely, Orange and Meteor. 

The tender document generated a very large number of queries which required clarification at least. There were 89 questions in all and many of these were in turn subdivided, and this process occupied 31 pages of question and answers furnished -- but such is the nature of the tender document and the field in which the tender operated, that the extent of the queries raised is perhaps not too surprising. However, because of the very large number of questions in fact posed, it was decided by the Director to postpone the original closing date to 2.00 pm on the 6 April 1998. 

On that date, two bids were received, one each from Orange and Meteor. Accompanying each was the anticipated covering letter. In the case of Meteor, which comprised a consortium of companies, the only matter of relevance in this sequence of events, is that the covering letter from Meteor included an indication that AT&T, a United States Corporation, would not hold an equity interest in the consortium, but would have some involvement. This was phrased in the following words:- 

". . . AT&T Wireless Services, Inc ("AT&T) has not at this time agreed to be an equity or financial participant in Meteor Mobile Communications, Ltd (the "Company '). It fully supports the application (of which it assisted in the preparation) and agrees to otherwise support the Company by making available to the Company its technical and international expertise in designing a fully integrated dual-band network and by rendering to the Company the advisory and other services described in the application as being provided by AT&T." 

There was also a statement in the letter that, insofar as the AT&T's intended equity participation was concerned, that equity stake would be "owned by the other shareholders of the Company and the other shareholders will provide the funds that would have been provided by AT&T" 

The scheme which had been determined upon by the Director was one by which, after the receipt of the tender bids -- of however many -- these would be evaluated pursuant to a timetable fixed in anticipation of the receipt of the bids. This was overseen by the Steering Group (briefly referred to above and comprised of members of the Director's staff in Dublin, together with AMI's representatives). This had been established by the Director in mid 1997 and had, as its brief, (a) to appoint consultants to the Director for the preparation of the tender document, and (b) later to assist in the evaluation of the bids in accordance with the tender documents. I will deal with this overall scheme in some detail in considering the claims of Orange, but for this outline sequence of events, it is sufficient to say that:- 

(a) Upon the receipt of the bids, a quantitative evaluation was undertaken in Denmark, by AMI, which became known as a number crunching exercise; 

(b) At the same time as the quantitative evaluation exercise, the entire of the documents from bidders in appropriate segments or sections were read by relevant respective members of Working Groups established by the Steering Group to cover the wide range of different aspects of the bids, and again consisting of AMI nominees and the Director's "in-house" personnel; 

(c) The working groups, divided into 12 in all, met over three days in the middle of May 1998, and at those meetings decided the awards, or scores, to be given to each of the individual segments of the bids of Orange and Meteor, and at the same time ascribed "weightings" to the 67 indicators against which the bids were evaluated. There are at this time no notes or minutes of the deliberations or of the decisions of these Working Groups. There is no clear indication at this time as to the format in which such deliberations may have been recorded, and no certainty that any decision of any of the Working Groups was, in fact, recorded at the conclusion of the respective sessions, even in the most general terms. This is a matter to which I will return in due course, but for the moment, it is sufficient to record their absence; 

(d) An element of further analyses, and which were called "cross-cutting exercises" was undertaken, in the main, by AMI; Again there are no records of these further analyses extant at this time. The actual analyses do not appear to have been furnished or considered at any of the Steering Committee meetings, although in the minutes of one of the last of these meetings there is reference to the members being informed "of the results" of these analyses, the analyses themselves do not appear to have been before the meeting; 

(e) During this time, and simultaneously with the last matter, early drafts of what became the Evaluation Report were being prepared. These were furnished by the drafters, who were members of the AMI team (or its assistants/consultants, etc), and were then considered, amended, reviewed and debated by and between the Director's staff and the AMI representatives, at least in part, and confined, in the main, to what I will call Part I of the Evaluation Report; 

(f) During the course of all of the foregoing, the Steering Group met from time to time, and in late May and early June 1998 met to consider some issues arising from the draft Evaluation Report. On the 11 June 1998, the Steering Group approved the final draft of the Evaluation Report; 

(g) The final draft of the Evaluation Report was sent to the Director, on the 17 June, 1998 with a covering memorandum from one of her key staff, John McQuaid. She returned a copy of that memo on the 18 June, 1998 with her decision endorsed and signed on it in the following terms: "I agree with the recommendation of the Steering Group. Please prepare papers accordingly"; 

(h) On the 19 June, 1997 she, as a corollary to her decision, notified Orange of the fact that she had placed Meteor first in the competition and intended to enter into discussions with it. She wrote in substantially similar terms to Meteor; 

(i) Although not prepared at the time when Mr McQuaid sent his memorandum on the 17 June, it was envisaged that a report would be sent to each of the bidders. On the 6 July 1998, after a short oral briefing with the Director's staff, held on the 25 June, the Director issued both to Meteor and Orange what have been called "summary reports", outlining to each of them, matters in their respective bids which the Director considered should be brought to their attention. These Summary Reports form the last part of Core Bundle S of the documents furnished to me in these proceedings; 

(j) The Director was satisfied with the negotiations with Meteor, as they proceeded. Orange received a letter dated the 22 September 1998 from the Director in which she said that she proposed to refuse to grant a licence to Orange. She stated that the reasons for the proposed refusal: "are that in the detailed comparative evaluation during the competition process, Orange Communications Limited was not ranked first and the discussions entered into with the higher ranked applicant are satisfactory". The Director notified Orange that it might, within 21 days, make representations to her in relation to her proposal to refuse it a licence; 

(k) Orange made representations to the Director, in writing, on the 12 October 1998 without prejudice inter alia to its contention that it was entitled to have access to certain materials before the Director when she made her decision. Prior to that date, on the 23 September, Orange's Solicitors wrote to the Director, putting her on notice that Orange claimed her letter of the 22 September did not comply with her statutory obligations. Orange sought by that letter to have certain documents, arising in the course of the tender process furnished to it; 

(l) On the 30 October 1998, the Director responded to those representations, rejecting them, and actually refusing to grant Orange a licence; 

(m) The Director indicated that the reason why she was refusing Orange a licence was in brief, because, (a) Orange was not ranked first, (b) the discussions with Meteor were satisfactory and (c) none of the representations made by Orange in its letter of the 12 October caused the Director to change her mind; 

(n) The proposed licence to Meteor has not yet issued by reason of the fact that these proceedings (and other earlier ones) issued; 

(o) Orange commenced these proceedings by Plenary Summons on the 11 November 1998, by which it appeals broadly from the decision of the Director to refuse to grant it a licence and from her refusal to give reasons for her decision. 

I have set out the above sequence of events in simple date order, so as to set the framework for the drafting of the tender document and the manner in which the evaluation process took place, and to which reference will be made in greater detail. 

Briefly stated, Orange claims in these proceedings that (a) the decision of the Director to refuse a licence was unreasonable or was reached as a result of unreasonableness in the evaluation process, (b) that her decision or the evaluation process which preceded it was tainted by bias, and (c) she failed to give reasons for her decision, in breach of her statutory obligation. As to the reasonableness claim. Orange say this arises not only simpliciter but also as a result of the bias and from the failure to give reasons pursuant to her statutory obligation. 

THE LEGISLATIVE FRAMEWORK 

It would be helpful also at this time, to give an outline of the legislative framework in which the decision of the Director took place. The Director's functions were previously vested in the Minister for Transport, Energy and Communications. In 1996 Ireland adopted EU Directive 90/388/EC and EU Directive 96/2/EU by means of the European Communities (Mobile and Personal Communications) Regulations 1996 by which an amendment was made to Section III of the Postal and Telecommunications Services Act 1983. Also in 1996, pursuant to the provisions of the Telecommunications (Miscellaneous Provisions) Act 1996, a statutory position of Director of Telecommunications, wholly independent of the State, was established. The functions and the powers and objects previously vesting in the Minister, were thereupon transferred to the Director, and additional powers were also vested in the Director. 

So far as the licensing of mobile telephone services is concerned, Section 111 of the Postal and Telecommunications Act, 1983 was amended by the above Regulations of 1996. Essentially, since the amendment, the licensing regime now has the following characteristics:- 

(a) The Director alone is entitled to grant such licences; 

(b) Certain pre-existing licences remain in place; 

(c) The Director is obliged to, give reasons for certain decisions or proposed decisions -- a decision proposing to refuse to grant a licence, a decision refusing a licence, a decision proposing to revoke a licence, and so forth; 

(d) There is an entitlement to make representations to the Director in certain circumstances, namely, upon notification of the Director's intention to take any of the proposed steps at (c) above, or on the Director actually taking any of those steps; 

(e) There is a time scale permitted by which such representations must be made; 

(f) There are no other explicit powers given to the Director in relation to the decision to grant or refuse a licence or to revoke a licence save under S III although Section 3(2) of the Act of 1983 entitles the Director to "do all such acts of other things as are necessary or expedient for the purpose of the exercise of his or her function."; 

(g) There is no provision prohibiting the Director from contracting out of any of the statutory rights which exist. 

Before I turn to the very detailed issues arising in the present proceedings, I should make a brief reference to the fact that in mid 1998 at a time when Orange considered that the Director was apparently intent on proceeding to negotiate with Meteor on the terms of a draft licence, and entering into such a licence, without giving Orange an opportunity to make representations, Orange commenced Judicial Review proceedings on the 17 July, 1998, in which it sought relief in relation to the Director's obligations under the legislative framework mentioned above. These proceedings were settled between the parties, and I mention them only because in the course of submissions made to me, reference was also made to those proceedings, and so as to clarify the context from which those latter submissions were made. Insofar as it may be necessary for me to mention those Judicial Review proceedings, I will do so, but insofar as anything can be gleaned from the respective stances taken by either party to those proceedings, it seems to me that the evidence presented at that time cannot be accepted as evidence in this case, since the proceedings were settled without any of the issues, factual or legal, being resolved by the Court or conceded by either party. 

These proceedings were issued on the 11 November 1998 by means of a Plenary Summons. Because neither the Telecommunications Act 1983, as amended by the 1996 Regulations, nor the Rules of the Superior Courts, gave any assistance on the matter, I dealt with a preliminary issue as to, the scope of the appeal, which was argued over a number of days and I gave judgment on the 18 March, 1999. I held that the scope of the appeal under the statute is very narrow, and the appeal proper was heard on this basis. I also held, at the commencement of the hearing proper, that the standard of reasonableness to be applied to the decisions under scrutiny was similar to that adopted by Kearns J in his Ruling in the case of M&J Gleeson v The Competition Authority and Others, (unrpt'd 1999) which essentially can be described as being a decision which no reasonable person could have reached and which was of significant relevance to the decision. As to the manner in which any allegedly unreasonable decision was to be proved, I held that this would have to be found in the materials before the Director at the relevant time, and that no new oral evidence or other new material could be presented to Court on the issue of reasonableness. 

Orange also pleaded that the Director or her Evaluators or the Evaluation Process were biased. It was agreed by all of the parties to these proceedings that in respect of this particular plea, oral evidence could and would be adduced. On the question of bias I heard a number of witnesses on behalf of each of the parties, two for Orange, two for Meteor and four on behalf of the Director. The Director did not herself give evidence nor did any director of Orange or Meteor give evidence. 

Finally, before addressing the issues in detail, I would like to say something about the evidence given. A Mr Young and a Mr Wigglesworth, gave evidence on behalf of Orange. On behalf of the Director, a consultant, Mr Andersen (of "AMI") gave evidence, as did Mr McQuaid, Ms Finn and Ms O'Gorman -- all of them on the Director's own, staff at the relevant time. Professor Braunstein and Dr Lee Selwyn gave evidence on behalf of Meteor. 

In the course of this evidence many days were taken up on the most detailed of matters. For example, I was furnished with large quantities of sample tender documents from different jurisdictions. A case was made by Orange concerning the manner in which the tender document was drafted, and the evaluation process managed, and the expertise of AMI in such matters was subject to adverse attack on behalf of Orange. This adverse view of Orange was not in any way withdrawn. As a result both the Director and Meteor presented many documents, essentially to rebut any suggestion that the tender document was not drafted originally in a proper manner, or as to the manner in which the Evaluation process took place in the post bidding period. 

I have to say that while all of these documents (as well as those presented by the Orange witnesses in support of its contentions) were interesting, and indeed helpful to show the very disparate manner in which these matters are dealt with around the world, I really do not consider them, for the most past, to be particularly determining to what I have to consider. So far as it may be helpful to consider or refer to these documents, or some or other of them, I will do so. However, [take the view that it is the role of the court, and not the role of any witness, even an expert witness, to decide if the particular tender document was clear, was appropriately drafted or was or was not unfair in any way to the bidders, although the evidence given by the various parties on the format of those documents or as to the manner in which they are drafted elsewhere was very helpful to the court. So also I have to decide whether the Evaluation process was or was not biased, regardless of whether it corresponded exactly or not at all or only partly, with any practice with which some or other of the witnesses were familiar or with which they had been involved. 

What is absolutely clear from all of the document and other evidence tendered on the issue of the manner in which a tender document is drafted, or its format, or on the way in which the evaluation process occurs, is this, that there is no recognised or fixed format for the drafting of a tender document or the content of a tender of this type, except in the most broad outline. Nor does there appear to be any fixed or standard format for evaluation purposes. For these reasons I have not found it necessary to refer in detail to any significant amount of evidence on these matters, although they occupied many days, save in relation to the role of the outside consultants AMI, in case it is necessary for me to give any views on their approach to any of these matters. 

THE ISSUES ARISING IN THESE PROCEEDINGS 

At the time when I delivered judgment on the scope of the appeal, there were outstanding three issues on this appeal, namely:- 

(a) The allegation that the Director's decision was biased or was reached as a consequence of a biased approach operating in the course of the tendering and/or the evaluation process; 

(b) The allegation that the Director's decision to refuse to grant a licence to the Plaintiff was unreasonable; 

(c) The allegation that the Director had failed to give reasons (i) for her decision to propose to refuse to grant a licence to Orange and (ii) for her decision to refuse to grant the licence to Orange. 

I propose to deal with each of these in turn. However, before doing so, [will say something about the apparent relationship between the first ground of appeal and the second, because it became clear during the hearing, and will become plain in the course of this judgment, that the facts and matters which are tendered by the Plaintiff in support of the unreasonableness claim, are also, with few exceptions, the same facts and matters which support the allegation of bias. 

Because of this overlap, when it came to the oral evidence on the bias issue, there was inevitably some spill-over into matters which are more correctly directed to the reasonableness ground, despite counsel's bona fide and continuing attempts to ensure that this did not occur. Insofar as it has been possible to do so, and having regard to the scope of the appeal and the manner in which the appeal on the reasonableness issue was to be heard, I have sought to ignore such oral evidence which tends to go only to the issue of reasonableness but which might otherwise be available to the Court were the scope of the appeal of a more substantial kind. 

However, I recognise that it is very difficult indeed to ignore evidence which I have, in fact, heard on the issue of reasonableness which could serve to support or defend both the bias claim and the reasonableness claim, and I am certain that there will be occasions where it has not been possible to maintain the clear and desired distinction between them. Moreover the Plaintiff itself has argued that the bias which existed forms part of its unreasonableness claim, so that there is an overlap even in the manner in which the Plaintiff frames its claims. 

Another feature which is important to bear in mind in the context of this judgment is the actual scope of the appeal provided for by the statutory scheme by which the decision of the Director is to be made. This provides only for an appeal against the refusal of the Director to grant a licence -- in this case to the Plaintiff. This has the effect of limiting the Court as to the extent to which the Court can come to findings which might otherwise be available to it in a statutory appeal which was broader than here. It will be recalled that the statutory scheme provides that in the event of an appeal, the Court does not itself substitute its judgment for that of the Director, but is entitled only to refer the matter back to the Director on the determination of the appeal. This may well be an unsatisfactory state of affairs, but is nevertheless what the statutory scheme provides for. 

In order to consider Orange's claims, whether on bias or reasonableness, it is essential that I refer to the Evaluation Report. This is a lengthy document which was again tendered as part of the core bundle of documents furnished to the Court. It was the Report furnished to the Director so as to enable her reach a decision. The Report, dated the 17 June 1998, as furnished to me, comprised the following:- 

(a) A document entitled "Report on the evaluation of the applications". This covered seventy-two pages. 

(b) A document entitled "Appendices to the Report on the evaluation of the applications. Volume 1". This also covered seventy-two pages. 

(c) A document entitled "Appendices to the Report on the evaluation of the applications. Volume II". This covered nine pages. This last part of the Report is dated the 6 July 1998, and obviously post dates the decision of the 17 June. 

The first part of the Report included an Executive Summary, an outline of the conduct of the tender process, a very large section (consisting of approximately sixty pages) detailing the marks awarded to each of the bidders and such reasons as were given for the same, a summary of the marks awarded, the results of what was called the "qualitative evaluation" (effectively the sixty pages referred to above), and a section called "Conclusion and recommendations to the Director". 

The second part of the Report consists of an Appendix which describes the methodology adopted, the results of the Admittance Test (the formal requirements which bidders had to meet), the quantitative evaluation, (the number crunching exercise mentioned above) the supplemental analyses and a verification and track recording section. 

As part of the core bundle number 5 furnished to the Court, there was also included two "summary reports", one each in respect of Orange and Meteor mentioned earlier as having been furnished on the 6 July, and referred to as (c) above. These are dated later than the Report and clearly do not form part of the Report of the 17 June, 1998, but clearly appear to have been before the Director when she made her decision to refuse Orange a licence in September 1998 and when she actually refused them the licence in October. 

The reason why I have mentioned this division of what was furnished to me as Core Bundle 5 (a single large bound volume), is because in the course of the evidence some at least of the witnesses referred to the Report as comprising merely the Report without the Appendices, whereas it seems clear that the Report must consist of both (a) and (b) above. Indeed, it is clear that part of what appears in (b) such as the quantitative evaluation pre-dated the matters arising in (a) above, and I have taken the view that the "Report" is both (a) and (b) above. 

I also mention it in the context of the documents which the Director had before her when she made her determination, in September and again in late October. It seems clear that she had the summary reports before her, since it was prepared sometime before the 6 July, when it was sent to the parties. According to the Director's affidavit sworn on the 26 April 1999 (Item 4b), as to documents before her when she made her decision to refuse to grant a licence to Orange, she had this material before her, but not, of course when she decided to rank Meteor ahead of Orange as a result of the comparative evaluation (Paragraph 3 of the affidavit). 

In addition to the foregoing, there were two documents before me to which substantial reference has been made, but which were not before the Director either when she accepted the Evaluation Report in June 1998, or when she made either of her later decisions in September and October 1998. These are the transcripts of two oral hearings, which took place on the 12 May, 1998. Each lasted three hours, and each of Orange and Meteor on that occasion attended and presented submissions on the strengths of their respective bids, as envisaged in the tender process. This exercise occupied part of the period of time allocated, and the remainder was taken up by a Question and Answer session, at which questions (both fixed in advance and ad hoc) were put by the Evaluation team and answered by the Applicants. These presentations were recorded on tapes (before the Director when she made her decisions) but the tapes were not actually transcribed until after the commencement of these proceedings, when they were discovered by Orange. What appears to have happened is that after the oral hearings, summaries of the presentations were prepared, and these summaries were furnished in turn to the Director. These summaries are both dated the 14 May, 1998. The oral presentations which took place on the 12 May 1998 post dated the series of Working Group meetings which occurred on the 5, 6 and 7 May, and at which the respective bids had been adjudicated upon, scores or marks awarded and weights allocated to each of the 67 indicators/sub indicators by which the bids were evaluated. 

To understand the Evaluation process and the claims made, I now explain something about the marking mechanism adopted by the Evaluators, because in both the evidence tendered and in the submissions of the parties the marks actually awarded to Meteor and Orange are referred to. Many of the headings in respect of Which awards were made, depend for an understanding of the evidence or the arguments, on an appreciation of the marking system. 

(a) First of all, in the tender document, certain information was given as to the marks or percentages which would be allocated for certain objective criteria by which the bids were stated to be assessed during the comparative evaluation stage. 

(b) The Five Group Headings, or criteria, as they are called, were allocated respectively, 38%, 27%, 20%, 20% and 5% for Groups A to E. 

(c) Within each group were what became known as "dimensions", although they were not so described in the tender documents. Both groups and dimensions were originally described as "criteria" simpliciter. 

(d) These dimensions were, in fact, the several sub-groups listed in the tender document under each of the five group headings, and were originally ten in all. However, at some stage, the technical criterion was sub-divided into four (as opposed to the original three listed in the tender document) and the financial criterion was subdivided into three (as opposed to two), leading to 12 overall "dimensions" within the five group headings; 

(e) The percentage award allocated to each of these dimensions were were not published in the original tender document, but parties were made aware that the dimensions were ranked in descending order of importance within each group. It was suggested in the course of the evidence, that the specific percentages attaching to each of the 12 dimensions, were fixed in advance of the tender document, but these details were not published before the evaluation process commenced. I am not certain that this is actually so, because a reading of the various Steering Group meetings did not disclose to me when exactly the alteration came between the original 10 dimensions and the eventual 12 which were utilised as dimensions. The best information I could find was in the minutes of the Steering Group dated the 20 February 1998 (after the tender documents were furnished to the parties, it is recorded: 

The SG then moved on to the section dealing with the quantitative evaluation. JMcQ pointed out that the table of page 5 dealing with criteria and weightings did not correspond with the previously agreed criteria and weightings and that this would have to be corrected. The Financial and Management groups would be combined. Site acquisition/environmental aspects and financial solidity/sensitivities, which had originally each been a single dimension, both would be split in two and the weightings also. Decision point: The individual weightings were agreed as follows: Site acquisition 7% Environmental aspects 3%, Financial Solidity 4%, Sensitivities 8%. MA explained that the indicators laid down in their document for the quantative evaluation would also be used in the qualitative evaluation, but that during the qualitative evaluation phase additional indicators would also be identified and used." 

My understanding of this latter extract is that, at some time after the tender documents were sent, but before the closing date, the series of dimensions and the weightings to be attached to them, whether in descending order or otherwise, were enlarged by 2 and the weightings altered. [do not find in any of the Steering Committees any other decision recording the change of mind by the Evaluators increasing the dimensions from 10 to 12. 

I will also describe here, for case of reference, the manner in which the Evaluators proceeded to mark the respective bids of Orange and Meteor, after the process commenced. This was a complicated procedure. Put simply, the evidence tendered was to the following effect:- 

(a) Sometime prior to the close of bids, what was called a "Reader's Guide" prepared by AMI in Denmark, was distributed to the members of the Working Groups who were to read the bids. Mr Andersen told me in evidence that a standard format for such a "Reader's Guide" appears on AMI's in-house word processing system, and this is then adapted to take into account the peculiarities of an individual tender. 

(b) This Reader's Guide listed certain criteria (which became known as indicators (and even in some cases sub indicators) which were to be applied when reviewing and adjudicating on the respective bids. The closest analogy I can find to this is the fairly usual guide which is sometimes created to evaluate answers to examination questions at College level, if sample answers are not provided to the persons marking the papers. 

(c) Subsequently, at the several meetings of the Working Groups -- which took place over a three day period in early May 1998, the Chairman of each group (an AMI representative) prepared or wrote a list of these indicators and in some cases sub-indicators on a flip chart. These were then applied by the Working Groups, to each of the two bids, although it became clear again in the course of the evidence that some additional indicators; not included in the Reader's Guide, were added at that time: 

(d) the mechanism adopted at these Working Group meeting was that marks were awarded to each of Orange and Meteor for meeting (or nor) the various indicators, the marks or scores ranging from A (highest) to E (lowest). These had a corresponding number mark of 5 to I in descending order. For example, in an area which has given rise to little or no controversy, in respect of the dimension "Proposed Services" an indicator called "Telecommunication Services" was fixed, and both Meteor and Orange were awarded a "B" '(equivalent to a 4). On the other hand, in an area which has given rise to considerable controversy, based on the same exercise, in respect of the dimension "Marketing Strategy" an indicator called "Strength of Distribution Channels" Meteor was awarded a "B" (a 4 whereas Orange was awarded a "C" (a 3); 

(e) After this exercise was completed, the Evaluators then decided what particular percentage weighting was to be allocated to each of the indicators or sub-indicators mentioned above. This operated in the following way. It will be recalled that under each of the Group Headings, there were dimensions in respect of which weightings were allocated in advance (but not published). Each of these in turn having been divided into indicators and sub-indicators, it then became necessary to divide up the percentage allocated to each original dimension, between the several indicators or sub-indicators. To take an example, under the original dimension "Marketing Strategy", this original dimension had a percentage rating of 10% (not published) of the Group weight of 38% (published). The Evaluators evaluated the bids within this dimension under ten different indicators, giving a weighting (in percentage terms) to each of the indicators chosen, and then calculating the eventual points or marks by multiplying the value of the original letter mark awarded (from A to E) by the percentage allocated to the indicator. So, for example the indicator "Strength of Distribution Channels" one of the ten indicators within the dimension "Marketing Strategy" this was allocated 12% of the total 10% (in turn of the 38%.) 

(f) Each other indicator was scored and weighted similarly and then totted up. 

When the Evaluators carried out that exercise, the total scores were then combined and the summary markings prepared by reference to the original Group Headings, and within them, the dimensions. It might also be helpful if I point out that, in the award scheme, the awards were as follows:, although it is not the Court's role to substitute its own awards for those of the Evaluators. 

A. Marketing: 
	
Tariffs	2.65% to Orange	4.12% to Meteor	
Marketing Strategy:	3.93% to Orange	3.67% to Meteor	
Services:	3.60% to Orange	3.55% to Meteor	
Total:	1.211% to Orange	1.475% to Meteor	

B. Technical: 
	
Network Quality:	4.69% to Orange	13.94% to Meteor	
Acquisition of Site:	2.35% to Orange	4.21% to Meteor	
Environmental issues:	3.00% to Orange	4.00% to Meteor	
Covering	4.80% to Orange	4.60% to Meteor	
Total:	1.058% to Orange	1.123% to Meteor	

C. Financial and Management: 
	
Solidity	3.75% to Orange	2.65% to Meteor	
Sensitivity	4.00% to Orange	4.50% to Meteor	
Experience/Expertise	3.15% to Orange	2.70 to Meteor	
Total:	0.722% to Orange	0.682% to Meteor	

D. Charges: 
	
Access Charge:	A to Orange	A to Meteor	
Total:	0.500% to Orange	0.500% to Meteor	

E. Guarantees: 
	
Performance Guarantees:	1.00% to Orange	4.55% to Meteor	
Total:	0.050% to Orange	O.227% to Meteor	

A more detailed summary of the awards of marks vis a vis the individual indicators is also reported in the Evaluation Report, but for the purposes of this Judgment I do not need to set these out. The individual scores awarded under the contentious indicators are the subject of further discussion in this judgment. 

Against the foregoing background I now turn to the appeal itself, and the three issues outstanding. 

1. The appeal based on Orange's allegation that there was bias in the manner in which the tender document was drafted or interpreted, the bids were assessed, the scores awarded and the Evaluation Report compiled, resulting in an allegedly biased decision by the Director. 

Orange say that the recommendations found in the Evaluation Report which ranked Meteor first and Orange second, was simply rubber stamped by the Director, and that in consequence, if there is established bias in the course of the evaluation process, the decision of the Director is similarly tainted by bias. This proposition did not seem to me to be challenged seriously by the Director, and indeed in her letter of the 19 June 1998 to each of the bidders, she stated: I have accepted the report on the evaluation of the applications and am now in a position to inform you of the ranking . . . 

Orange's legal submission on this aspect of the appeal, may be summarised as follows:- 

(a) The Director's decision to refuse to grant the third mobile licence to Orange was an administrative act; 

(b) In the circumstances, the Director was under a duty to act fairly; 

(c) The Court is obliged, in addressing itself to this issue, to look to the conduct of those preparing the AMI Evaluation Report whose recommendation was merely rubber stamped by the Director; 

(d) In assessing the conduct of those involved in the preparation of the Report, the Court must look to see whether there is evidence that the Evaluators acted in an arbitrary, capricious, partial or manifestly unfair way, so as to constitute actual bias; 

(e) In the alternative, the Court looks to see whether there is a reasonable apprehension that the Evaluators may be perceived as having acted in the manner claimed, and thereby have been objectively biased; 

(f) The Court should find that, since the AMI Report is so tainted by bias, either actual or objective, the decision of the Director to accept the ranking and thereby to refuse Orange, her decision cannot be permitted to stand; 

(g) The Plaintiff was treated in a manner which was fundamentally unfair in that: 

(i) the Plaintiff was given no notice that low tariffs were what the Evaluators were seeking; 

(ii) the Plaintiff was given no proper notice of the fact that binding commitments on tariffs would represent a substantial number of marks in the entire competition; 

(iii) the Report was so permeated by bias and contained wholly inaccurate statements in relation to the Plaintiff, which the Plaintiff was given no opportunity to controvert; 

(iv) there were erroneous and inaccurate statements in the Report which the Director must have taken into account; 

(v) sweeping assumptions and decisions were made at critical moments in the evaluation process in order to shore up patent deficiencies in Meteor's application to the disadvantage of Orange; 

(vi) there is a real likelihood that the decision to refuse the licence was based on a one-sided, partial and biased considerations having regard to the foregoing. 

Orange urges the Court to draw a distinction between the case made by the Director and the case made by Meteor, and submits that insofar as the Meteor witnesses have put forward rationalisations and explanations for the impugned conduct of the Evaluators which were not put forward by the Director, the Court should disregard them. 

Orange argues that insofar as there is any conflict between the evidence of the witnesses tendered by the Director and the evidence of any Meteor witnesses, in relation to the intention or thought processes of the Evaluators, the Court should give no weight to the evidence of the Meteor witnesses. On the other hand, both the Director and Meteor submitted that the court is entitled to look to the materials before the Director or her evaluation team, and if her decisions can be supported by any of that material, whether the actual basis for the decision or not, then the court should not reject the findings of the evaluation team or the decision of the Director. 

Orange submits that, as to the evidence:- 

(a) There are a series of errors in the evaluation process, all going one way and none going the other way; 

(b) There was a failure by the Director to provide a reasonable explanation for the disparate treatment of Orange and Meteor in relation to tariffs, subscriber contracts, handset subsidies, business case sensitivity, the "Irish touch", performance guarantees and the admission of new material when it suited the Evaluators; 

(c) There was a failure on the part of the Director to probe the withdrawal at the last moment of AT&T as part of the Meteor consortium, the An Post "agreement", Meteor's position/reliance on "national roaming" and the different capital expenditure projections of both bidders: 

(d) That changes were made to the first drafts of the Evaluation Report so as to tone down the bias evident in them and to further highlight alleged shortcomings in Orange's bid, while disguising or hiding some shortcomings in Meteor's bid; 

(e) That the witnesses on behalf of the Director sought to justify their unjustifiable positions by providing "ex post facto" rationalisations for those wrong positions; 

(f) That because of the foregoing, there was no rational basis for such earlier positions and decisions and that the evidence given in Court had been tendered so as to paper over the cracks; 

It would be impossible to consider and deal in detail with each and every single complaint made by Orange under each of the claim of unreasonableness and bias. What I propose to do is to consider the very serious allegations, dealing, with those in detail, and then consider what I might call the less serious elements in lesser detail. Apart from anything else, it is clear from the authorities which will be cited below, that different consequences flow from bias or unreasonableness which may have a serious effect and bias or unreasonableness which, even if it exists, it does not really impact on the decision overall. I now turn to the allegations made, and I deal with them, not necessarily in the same order as set out above. 

The Plaintiff's allegation of factual errors in the Evaluation Report leading to bias. 

A. The Plaintiff submitted as part of its bias claim that the following matters were factually incorrect in the Evaluation Report but were relied upon as if they were correct, and argues that they were, in the circumstances biased against Orange:- 

(a) The Evaluation Report, in its introductory section, under the heading "Key characteristics of the applications. "states: "This includes an introduction to the applicant behind each bid with a summary of the philosophy behind each application". As to the Applicants, it states: "Both applicants have established an Irish legal entity, ie, a separate company, in order to implement the proposed plan", and also, as to the Plaintiff states: "Orange has established Orange Communications Limited which is the formal applicant". After an introduction to Orange's ultimate parent company's involvement, in other mobile telephone services in European countries, it then continues -- and this is the extract the Plaintiff complains of:- 

"The applicant seems to view the network in the Republic of Ireland as an essential part of its present DCS 1800 networks in Great Britain and in Northern Ireland and has proposed no ownership based consortium with Irish or other partners. Furthermore, no intention to float the shares of the company on the Irish Stock Exchange have been expressed in the application nor are there any commitment(s) to otherwise expand the ownership". (Emphasis added).' 

As to the allegation that it was factually incorrect it is said by Orange that the Evaluators preferred the Irish/United States consortium which comprised Meteor as against Orange, which the Evaluators disliked or appeared to, being a purely United Kingdom Group. To understand the basis for this claim of bias, one has to look to see what was said about Meteor in the same context. This was:- 

"Meteor is a consortium with Western Wireless Corporation (60%), RF Communications Limited (30%) and The Walter Group Limited (TWG 10%) as the backers. Western Wireless and TWG have both introduced intermediary companies between their parents and the operating entity, namely, Western Wireless International Ireland Corporation and TWG Ireland, LLC, respectively. Formally, the applicant is Meteor Mobile Communications Ltd, which is incorporated in Ireland. AT&T withdrew from the consortium before the closing time, and RF Communications has subsequently taken over AT&T intended part of the share capital (10%)" 

As to the ownership, it is said:- 

"No commitments are expressed on extending the ownership, although the wording "prospective partners" is used in the application. However, Meteor works with the option of funding a portion of its capital requirement through the high yield markets. One option addressed is a public bond. Another option is private placement" 

It is argued that this introduction of Orange to the Director and the Directors own decision (which Orange suggest merely rubber stamped the recommendation of the Evaluators) was unfair and biased, because it was wholly untrue. Orange does acknowledge and concede that as part of its tariff proposals -- or at least as to one aspect of its tariff proposals there would be no additional charge made to a customer for calls between its Irish network and its networks in Northern Ireland or the United Kingdom over and above the charge made if the call were wholly in Ireland. But Orange says that it made it clear, both in its application, and also at the oral hearing, that it considered Ireland to be a completely separate and free-standing network and market and that it did so in no uncertain terms. 

Mr Young who gave evidence on behalf of Orange said (on Day 18 at pages 14/15) that when he read the above statements he checked the documentation and could find nothing to support the view expressed. He gave evidence that the network proposed by Orange is an independent network, and that it was not integrated into the United Kingdom network in any sense. 

I did not have an opportunity to read in detail each and every page of the several hundreds of pages of each of the Orange or Meteor bids. They each comprised eight volumes with several documents in the form of appendices. I did, however, read as much of the bids as was drawn to my attention in the course of the hearing, together with those portions which I thought might assist me in understanding the case made by all parties. 

Even if I had been able to read every page of both bids, I do not consider that I would have been able to ascertain, unaided, whether the proposed Orange network in Ireland was or was not an intrinsic part of the United Kingdom or Northern Ireland networks. I did, however, examine the transcript of the oral presentation, and I did not find in that presentation any indication that Orange considered its Irish network as an integrated part of the United Kingdom or Northern Ireland networks. 

It is further said by Orange, and in greater detail, that the original draft of the Evaluation report also referred to the matter, but included the word "consequently" between this above statement and the statement that Orange did not propose new Irish partners. Neither that draft nor any other the other drafts or parts of drafts 'were before her when she made either of her decisions (paragraph 5 of the affidavit of the Director sworn on the 26 April 19980. I deal with this last aspect of the matter in greater detail below. 

In the course of both the evidence and the submissions, it was made clear, and I accept it to be the case, that both the drafts and the final version of at least the main part of the Evaluation Report were scrutinised, debated, analysed and amended on several occasions to ensure the report reflected what was intended by the drafters. 

It is said on behalf of the Director, (and Meteor supported this submission on the same grounds) in defence of the claim made by Orange on this that:- 

(a) the description used in respect of Orange is merely factual, or alternatively that it is of little consequence; 

(b) it is simply background information; 

(c) it does not form part of the process in respect of which scores were awarded and therefore is not really a critical matter; and 

(d) in any event it is properly understood by reading it in conjunction with the description appearing under the heading "The basic philosophy behind each application", immediately following in the Report, and that when so read, the objectionable paragraph is, in fact, favourable and complimentary towards Orange, since it refers to what is called a "rather appealing one network" tariff scheme proposed by Orange. 

(e) That each of the Director's witnesses denied they were biased; 

Mr McQuaid, on behalf of the Director, and Mr Andersen also, both con-tended that the true interpretation of the phrase objected to was clarified by the contents of the material at page 11, namely, that it referred, only to the appealing concept of not charging customers for roaming on an Orange network in Northern Ireland or in the United Kingdom. 

I think it would be difficult to read the paragraph of which complaint is made as being the same as or referable to the paragraph with the heading "The basic philosophy behind each application". While these are two related aspects of the introductory part of the Evaluation Report, they could equally have been placed entirely separately. The first is concerned only with the applicants, their identity, their parent companies or backers, their proposed future ownership, etc. The second part is, in reality, a summary of the concepts or philosophies behind the respective applications, not those underlying the bidders. 

I am of the view that the words in the paragraph are ordinary English language words which do not lend themselves readily to any ambiguity. I am also of the view that the paragraph was at all times intended to inform the Director or can only reasonably be understood as Evaluator's view or opinion or conclusion that the Irish "Orange" undertaking was an essential part of what is called by the Evaluators' "the present DC'S 1800 networks [plural] in Great Britain and in Northern Ireland's I do not think it readily or at all lends itself to the interpretation contended for by the Director, or indeed by her witnesses. The extract at page II is in fact supportive of the fact that there is still a "one network" approach adopted by Orange. If it were, as contended for, by the Director, intended to reflect the comments found to p 11, it is in fact wholly superfluous. It also singularly failed to reflect what is now said was intended to be stated in the Report. 

As to the contention at (a) that it is merely factual, by which I understand it to be the Director's claim that the statement is supported by the bid documents or the oral presentation, this is in my view an unsustainable contention, since I do not consider that it is factually correct. As to the contention at (b) that it is of little consequence in any event because it does not form that part of the Evaluation process an argument, put forward both the Director and Meteor, under Which scores were awarded, this is also difficult to accept. 

Since it is clear that that the drafting and amending exercise described above took place, it seems evident therefore that if this section was included at all, it was intended to form a serious contribution to the Report, and was intended to be a factual representation of what the drafters considered ought to be placed before the Director. It will be seen later in this judgment that the debate on the content of the draft reports extended to altering words so that they more correctly and precisely reflected what the drafters stated in evidence (or those gave evidence) intended to say. 

I think it unlikely therefore that an attempt to refer to a characteristic in the tariff segment of the Orange bid could or would have been worded in so inept a manner and so obtusely that the ordinary words used are only capable of being understood by reference to some other section of the Report or that it would be positioned in the Report where it was. 

I come to the contrary view that it was intended to say and did in fact say, in clear words, that Orange's Irish network was, on Orange's own case, an "essential part" of the existing Orange networks in the United Kingdom and Northern Ireland and was not therefore really a new independent network proposed for the State, and that such a statement is erroneous, and unsustainable, and would be readily perceived by a reader as being adverse to Orange. 

(b) Another factual matter to which Orange takes exception is that concerning its intention to "float the shares" of the company (Orange) on the Irish Stock Exchange, which is limited in the above extract by the words "in the application". It is said by Orange that it mentioned at the oral presentation that it might do so, and that the wording in the Evaluation Report is such as to avoid disclosing its full or true position, and gives a misleading impression. 

In defence of this aspect of the matter, the Director submits that the, paragraph was correctly worded because the Orange application was silent on the matter, and that it would have been wrong to have permitted the introduction of any "new material" presented at the oral presentation. It is said that such information would be "new material" and could not be described as mere clarification. The Director had no transcript of the oral hearing. The Summary of the hearing which she did have says nothing about the flotation of shares. It does mention an answer given by Orange to Question 7 (put by the Evaluators) on "additional funding should it be required". The detail does not mention share floatation. 

It has not been suggested to me that any flotation is referred to in the application of Orange, and it seems to me that, that being so, the Director's evaluation team was entitled to limit the reference to the material in the original bid document. As to whether the statement made at the oral hearing would or did constitute "new material", it seems to me that this decision is one which in general should be left to the Evaluators to decide. It might be that the Court could draft the paragraph in a manner which might give a clearer indication to the Director, but without infringing any rule adopted by the Evaluators as to new material, but I do not think the Director can be faulted for adopting the approach which was adopted in respect of this particular item. 

I do, however, comment that the rather stringent approach suggested both by the Director and her witnesses to the refusal to include anything concerning 'flotation" which may have been suggested at the oral hearing, is difficult to reconcile with the approach taken by the Evaluators to the question of the take up of the AT&T shares in the Meteor consortium with which I will be dealing later in this judgment. In that case, the "application" which included the covering letter of the 6 April made it clear that the AT&T 10% would be taken up by the "remaining members of the consortium", but did not say on its face that it would be taken up by "the remaining members or some or other of them". However, when it came to the oral presentation, the evidence was that only one of the consortium members and not "the remaining members of the consortium" was to take up the shares, or more accurately one of the consortium member and some or other of its shareholders or related companies or person associated with a related company, would take up the shares. This description, which appears to me to go outside the strict terms of the letter accompanying the application did not appear however to cause any difficulty to the Evaluators. 

In the Director's submission it was also suggested that it was correct for a representative of An Post to attend the oral presentation, the better to inform the Evaluators of the "up to date" position. Viewed in that light, it might be said that the confining of the comments on flotation to the application itself, when the possibility was mentioned in the oral presentation, seems to be a little unbalanced in terms of fairness and equal treatment. I should, however, say that I have not in this judgment taken this matter, in the 6 April letter, into account, because surprisingly it was not part of Orange's case that there was a discrepancy between what was said in the letter of the 6 April and what actually occurred at the oral presentation. 

(c) The next matter of factual inaccuracy contended for by Orange concerns a matter appearing in the Appendix to Volume I of the Report. This appears under a section called "Verification and Track Recording Issues", It concerns the question of handset subsidies, the contractual relationship with customers who have been given a handset subsidy, and the possible penalty which may be imposed in the event the customer cancels his contract prior to the expiry of a twelve month period. It is introduced inter alia, in the following terms:- 

"As part of the holistic approach of the evaluation process and as defined in the document approved by the Steering Group "Evaluation Document 00831G" Anderson Management International (AMI) has performed a certification of parts of the information given in the application. In addition to this, AMI has performed a track recording of the most important members of the consortium". 

Under the track recording paragraph, it is said:- 

"The aim of the track recording has been to browse for information which may shed light on the consortium members or on the information given, (sic) as to contradict the written information in the application or the information given at the oral presentation. 

The main method used has been a genuine information search through the Internet and interviews with persons with knowledge about the companies involved". 

I understand from the above extracts, and from the evidence given in relation to it, that the intention behind the foregoing exercise was to carry out a type of cross-check and to inform the Director of anything untoward, in the sense that it might conflict with statements made by the bidders, either orally or in writing, thereby to enable the Director to exercise a view on the reliability of the material furnished or statements made by the respective applicants. The cross-cheek was also, intended to confirm matters of consequence which might have concern for the Director. 

The following statements, of which complaint is made, were included in relation to Orange, which I set out in some detail, so as to place them in context. The track recording section of the Evaluation Report as concerns Orange, reads, in its salient part, as follows:- 

"The public information available on Orange is more limited than the information regarding Western Wireless. The reason may be wider usage of the Internet in the US, or it may be caused by a more firm control of the information exerted by Orange. 

No information seriously compromising the information in the application has been found. But we have found examples of minor discrepancies between facts and the statements by Orange: 

*'Orange has stated that they have applied for a combined GSM/DCS licence in Belgium. According to our information, the licence in Belgium only applies to DCS 1800'." 

No further information was given in the document as to how the information relied on by the Evaluators came to light, nor how reliable such information might be. On its face, the statement gives the clear impression I believe that Orange, in mentioning the type of Belgium licence applied for had misled the Evaluators in some way, and was of sufficient interest to bring the matter to the attention of the Director. It also, on its face, gives the impression that the information available to the Evaluators, which was reported without any limitation, was clearly to the effect that the Belgium licence was actually a mere DCS 1800. 

Orange claims that this statement, in particular taken together with the following statement set out below, which Orange says is also false, evidenced further bias on the part of the Evaluators, whether actual or objective. The evidence given on behalf of the Director, primarily by Mr John McQuaid and by Mr Michael Andersen, was to the effect that the actual licence was granted for something between what Orange had contended for and what the Report actually stated, and I will return to this in a moment. It was also said in evidence by Mr Andersen that the information which the Evaluators had available to it had come from published official information or documents, and that the drafters of the AMI Report had no reason to believe that the information might have been inaccurate. 

It was also argued on behalf of the Director in submission, that the use of the words "according to our information" would suggest to a reader that there was some limitation to be read into the statement. 

I think it is very difficult to believe that a person reading this extract would be put on notice, by the use of the words "according to our information" that some limitation should be read into the statements being made. Indeed Mr Andersen did not suggest in evidence that he doubted in any way the information given, or that he had any reason to doubt it. He was quite certain, and believes other drafters were also certain, that the description which was given was entirely accurate. I do not know of course what the Director understood these words to mean. Neither did I hear from the person who drafted this part of the Evaluation Report, so I do not know what was, in fact, intended by the drafter. But in their ordinary meaning, in the context in which they were used, I am of the view that the meaning a reasonable person would take from the use of the words is this, namely, that -- contrary to what was claimed and stated by Orange -- the Evaluators had information from a different source which threw a doubt on what Orange had claimed. 

In my view the use of the words "according to our information" does not suggest that the information is in some way limited. If it was intended to suggest that the information might be suspect, or might not be as "solid" as the drafter wished, I feel certain this is what would have been said. It was also argued by the Director that that, because of the context in which the statement is found, and the surrounding words used, the statement -- even if inaccurate -- could not be said to be in any way supportive of bias, whether actual or objective. 

Before I consider whether the statement made was biased or was evidence of bias, I need to turn to the second statement in this section to which objection is taken. 

The second statement immediately follows the last statement set out above, and read as follows:- 

*"Hans Snook mentioned during the presentation that he was unaware of the application of Meteor, but according to sources, Orange has even tried to create a consortium together with the same group of companies behind Meteor". 

Orange contends that this statement is false because a correct reading of the transcript of the oral presentation makes it clear that Hans Snook did not state that he was unaware of the application of Meteor. It is unclear again what "sources" were relied on by the drafters of the Report. 

On its face, again it appears to suggest that the alleged statement by Hans Snook inaccurate or misleading. It was argued on behalf of the Director that the statement was in fact, correct. When the precise basis for the objection made by Orange became clear, it was then said on behalf of the Director that the statement was "substantially" correct. 

It will be recalled that no transcript of the tape of the oral presentation was available either to the Director or the drafters of the Report. The Summary Report of the oral presentation was distributed, so far as I can ascertain; but it makes no mention whatsoever of this matter. It has been disclosed during the course of this hearing that, although several of the Working Group members are likely to have kept notes, and the respective chairmen, it had been agreed, would keep appropriate notes of exchanges and decisions made, no such notes were available for the hearing. 

It is equally unclear from where the information relating to Hans Snook was taken. I assume that it came from some notes made by one or other of the drafters, or furnished to one of the drafters by a person or persons who had attended the oral presentation and who had kept some notes of the same. As to what was actually said at the oral presentation, it was as follows:- 

"What is important for us as a company, as Orange, is that we are able to leverage our core strengths either in branding, building networks, technical expertise and so on. Those were note available to us in Western Wireless PCS. Hutchinson is a very very large conglomerate based in Hong Kong; "'with lots of cash reserves. They decided however, to make a financial investment in Western Wireless PC'S. Western Wireless PCS is a specific entity created to roll out digital networks in part of the United States where they have been licenced. Hutchinson you should note also has 5% in Western Wireless the parent company, and it is Western Wireless the parent company that is making this bid with Meteor or through Meteor in Ireland. Hutchinson has no representation on the main board of that company. In fact, we don't even know what that company intends to do. We were quite surprised when we saw Western Wireless making a bid for this market. So if Western Wireless should win this licence, there is absolutely no benefit to Hutchinson at all, because its interest is purely in the US side of the business. I also happen to be a hoard director on Western Wireless PC'S. The reason I was asked to advise them and guide them on building digital networks in the United States and the markets in which they operate so I am very very surprised to see them making a bid here. It was something that we are not aware of so I just want to say again to make it clear that there is no two way advantage to Hutchinson no matter who wins. It is important for Hutchinson that Orange wins this bid." 

It will be seen from the foregoing extract from the oral presentation that Hans Snook did not state he was unaware of the application by "Meteor". What appears to have been stated was that Orange was unaware of WW applying for a licence. My understanding of the foregoing statement by Hans Snook is that (a) the company which is making the bid as part of the Meteor consortium is the parent company called Western Wireless PCS, (b) Hutchinson (a company indirectly related to Orange) has some interest of a small nature in the latter company, (c) Hutchinson has no representation on the board of the main company, (d) Hans Snook is a board member of the subsidiary company and (e) Orange had no indication that Western Wireless (the parent company) was making a bid for the licence and Orange was surprised at this. Mr Andersen stated that he believed reliance was placed on the words "I am very, very surprised to see them make a bid here", as being the words from which flowed the comments in the track recording section of the Evaluation Report. 

It seems to me that the statement in the Evaluation Report concerning Mr Snook was neither correct nor substantially correct, and was carelessly drafted if, as Mr Andersen states, the words relied on are those set out above in the last paragraph. I do not consider it acceptable that, in the course of a track recording exercise, which is supposed to test the veracity and accuracy of statements made or facts contended for, to approach the matter with anything other than great care, because the consequences can be that a false impression is given of the truthfulness or probity of the words used or statements, made by the party impugned. 

It is a well known legal principle of company law, and if there were any doubt about the Director had available lawyers of the highest calibre to advise her on the matter -- that a distinction must be drawn, and is drawn, between the status of a parent company and that of a subsidiary. It is trite law that, as to a parent company, it is generally speaking, in total control of what its subsidiary does, and can at all times determine how the subsidiary is to behave, who sits on its board, and can ascertain without any problem what is going on at board level in the subsidiary company, which may be relevant to the parent company's interests. That may be put in very simple terms, but this judgment is not really concerned with parent/subsidiary affairs. On the other hand, it is also trite law that the position is entirely different in the case of a subsidiary company. It has no control over the board of the parent company, and absent some very unusual relationship, is not entitled to know what happens at board level, in the parent company. 

What appears to have happened here is that the drafter took some notes -- and I do not know what they were. Whatever they were, if the evidence tendered is that the drafter relied on the notes taken from the oral presentation, those notes did not take into account the different approach which Mr Snook was taking, on the one hand in the case of the parent company, and on the other hand in the case of the subsidiary company (of which he was a board member). He did not say what is contended for in the track recording section of the Evaluation Report. He expressed surprise that the parent company, even if that was through Meteor, was making the bid. On the statement made by him, there is nothing surprising in this. 

I am also concerned about the use of the words "Orange has even tried to create a consortium together with the same group of companies behind Meteor", since the drafter of the statement did not given evidence, and in light of the apparent mix up or blending together of the Western Wireless parent and a subsidiary company, I do not know who is being referred to by the use of the words "with the same group of companies behind Meteor". 

The above extracts in the Evaluation Report were followed by this statement:- 

"Apart from this, the general impression of Orange is a company providing state of the art services from a highly refined network". 

It was submitted on behalf of Orange that, absent these two extracts, the overall Track Recording for Orange would have been significantly more positive than that of Meteor and would have had no negative comments. Because these matters were included, they say unjustifiably, the impression given by this important part of the Report was a biased one. 

The Director argued that in relation to these extracts from the Evaluation Report that the court should bear in mind that: 

(a) no witness from Orange itself gave evidence on bias who might have been cross examined on matters such as (a) the Belgian licence and Mr Snook's comments as to his knowledge of Meteor, and 

(b) that Orange's case rests, so far as this and other aspects are concerned, on hypothetical arguments advanced by Mr Young and/or by Mr Wigglesworth. 

I will deal with these submissions so far as they concern other aspects of the Evaluation Report or process as they arise. However, so far as concerns these two statements it seems to me that these arguments can only succeed if, in fact, the Director defends the Evaluation Report on the basis that the two statements are, in fact, correct, I do not have to have the evidence of an Orange director to decided whether, on the evidence tendered, the statements are biased or are capable of being perceived as being biased. 

As to whether the first statement is true, it was accepted both by Mr McQuaid and by Mr Andersen that the statement, as it stands, is not in fact true. What has been conceded by the Director's witnesses is that, because of the manner in which the Belgian licence was awarded, and having regard to the number of licences, and more especially, having regard to some technical developments (or lack of them) in Belgium, or in telecommunications in Europe in general, it would not be possible at this time to operate a combined GSM/DCS 1800 licence in Belgium. I hope I do not do an injustice in so describing the evidence tendered. 

It was conceded by Mr McQuaid, and somewhat more hesitantly by Mr Andersen that the licence, in fact, granted, lies somewhere between a DCS 1800 licence simpliciter and a combined GSM/DCS 1800 licence. What is alleged to have been said by Orange is that they had "applied for a combined GSM/DCS 1800 licence," not that they actually were awarded such a licence. But even if were to be read as referring to the licence, in fact, awarded, the information is inaccurate, at least. 

The second statement is neither correct nor substantially correct, (as was contended for by the Director in the course of the hearing), on my understanding of what was said according to the extract from the transcript of the oral presentation. In that extract, Orange were, in my view, making a very clear distinction between the interest which existed in the board of the subsidiary company, on which it had representation, and the dealings or the interests of the board of the parent company, on which it had no representation. There is no evidence in the documentation which supports this allegation, and no written record of how the conclusion was reached that Orange had indeed endeavoured to create such a consortium. Whether this was for the Irish licence or elsewhere is also not stated. 

It seems to me that either singly or together, these two statements are misleading. Together they give the distinct impression against Orange in that they infer, in quite an open way, that the Director should understand that Orange had not been wholly honest or proper in its disclosures to the Evaluators, and on the contrary, had actually lied in two respects. Since neither statement appears to have been made with any proper basis, I am of the view that a reasonable person when reading this section of the Report, under the heading "Verification and Tract Recording" would be influenced to find against Orange, or in the alternative, would gain comfort from the fact that he or she could justifiably reject the application of a party which had acted in such a manner. 

As to the contention by the Director that the "sting" in the statements was removed by the use of the phrase "No information seriously compromising the information in the application has been found. But we have found examples of minor discrepancies between facts and the statements of Orange", I am not at all convinced that these words assist greatly. While it is true that the reader is told that these are not the most serious matters, nor of earth-shattering importance, nevertheless use of the phrase, in the context of what are called "examples" (making it clear that there may be other examples not cited) of "discrepancies between facts and the statements of Orange" make it clear, that the Director is being informed that (a) these were examples which should be brought to her attention; (b) the true facts are as stated in the Report; and (c) Orange had, at the very least, misled the Evaluators. 

(d) The next "error" issue as claimed by Orange is that the Evaluators wrongly concluded in the Report that staff costs "closed the gap" between Orange and Meteor under the indicator "Bonus to Distribution Channels" The facts underlying this complaint also support Orange's claim that the decision of the Evaluators to award a "B" to Orange and a "C" to Meteor under this heading was unreasonable, because, say Orange, the award to Meteor should have been significantly less. I am setting out the facts which support both contentions here. 

Both the Director and Meteor resist this claim, on either basis. I propose to set out the entire case made here, (and later in the next section of the judgment, I will deal with the reasonableness of the decision), which can be explained briefly as follows:- 

(a) Bidders had to set out their respective marketing plans; 

(b) It is accepted that marketing expenditure was a very important requirement for any successful bidder coming onto the Irish market, especially where there were already two established mobile telephone server companies on the market; 

(c) The actual figures which the parties proposed to spend, in one form or another, in marketing were to be set out, and were set out in the Mandatory Tables provided in the Appendices to the Tender Document; 

(d) Both Orange and Meteor did, in fact, complete the tables as requested; 

(e) When the Evaluators came to consider the marketing budget of the respective parties, they did not draw a distinction between the figures allocated for "Bonus to Distribution Channels" on the one hand and "Marketing Costs" and "Personnel and Social Security Costs" in the Mandatory Tables which both parties completed; 

(f) Rather, the Evaluators recognised that there appeared to be a discrepancy between the figures furnished by one party for the last of these categories and the figures for the other party, because one was quite substantially lower than the other; 

(g) Clarification was sought in respect of these, and it became clear that one of the parties had included the personnel costs attaching to marketing in the "Marketing Costs" figures, while leaving the personnel costs as covering what might be called "pure" personnel costs; 

(h) When clarification was furnished in relation to these apparent discrepancies, the Evaluator reported in the following terms, under the heading "Bonus to Distribution Channels":- 

"Given the importance of distribution channels in the success of a new entrant, bonus, ie, performance related rewards, to distribution channels is considered an important indicator of how successful the operators' distribution channels might be. In its business plan, Orange has budgeted for a significantly higher bonus to distribution channels than Meteor although Meteor plans for more subscribers than Orange, see figure 7. However, supplementary investigations, in particular on the itemisation of the sales staff tend to close some of the gap between the two applicants." 

There follows a graph showing the manner in which the bonus to distribution channels would look over the period of the licence. The Report continues:- 

"On the basis of the considerably higher bonus budget Orange is awarded a "B" and Meteor a "C". 

Now as to how this award came about, and the manner in which the matter was dealt with, which Orange say was both erroneous and biased, the explanation is found in the following:- 

(a) The Evaluators took the two lines of the compulsory tables; 

(b) When they did this, the two lines, together with the additional figures which were taken from "Personnel" which was allocatable to Bonus to Distribution Channels and to Marketing, the gross figures for both bidders was not significantly different; 

(c) The Evaluators recognised, however, that taking two lines would indicate that Orange had what I might call a very enhanced "spend" over what Meteor had provided for; 

(d) On the other hand the Evaluators also recognised that Meteor had planned for more subscribers. It seems to me to follow from this that the Evaluators recognised that with a higher number of subscribers Meteor's "spend" per customer might be somewhat less, perhaps quite a lot less, than Orange's "spend" per customer; 

(e) However, having regard to what was discovered as to the manner in which Meteor had completed the compulsory tables, the Evaluators made an allowance for that increased personnel costs. 

Orange say, in essence, that this was an erroneous approach, and that the staff costs did not, in fact, close the gap at all, but rather made it even more obvious that the bonus to distribution channels which Orange provided for was so much in excess of the Meteor figures, that the Evaluators could not and ought not have awarded the figures in question. On the contrary, Orange say that this approach was biased in favour of Meteor and against Orange. To understand the argument, I have to say a little more about the approach of the Evaluators and in particular to look at the marketing/distribution plan of both bidders. 

Orange planned a distribution scheme by which it would operate a number of its own outlets, positioned predominantly in the larger cities and towns. It also had, as part of its plan, outlets not owned by it which would benefit from bonuses under this heading. On the other hand Meteor's distribution plan was twofold. First it had an alliance with An Post, though whom it intended to distribute hand-sets. There was a suggestion by Orange that the An Post segment of the Meteor distribution plan was concentrated (according to the evidence of Professor Braunstein) on the prepaid segment. This has been vehemently denied by Meteor and the Director. Under this particular I do not propose to limit Meteor's involvement via An Post to any prepaid segment, because I do not think it is particularly relevant. The second key part of Meteor's marketing or distribution plan was the development of a range of its own outlets. Meteor indicated in its application that it intended to have approximately 23 such outlets in all, which the Director describes a more vertically integrated plan for retail outlets on Meteor's behalf. This is true, in the Meteor range is much greater than the Orange range of proposed outlets. 

But what Orange say is that, when one looks at the amount which it was prepared to allocate to "Bonus to distribution channels" even if added to the "marketing" spend. There is a huge difference, amounting to approximately six million pound, and that this was clouded by the Evaluators including in the overall picture the personnel costs. In other words, as I understand the argument, Orange draw a distinction between the funds available in the overall budget for marketing/distribution, and the overall marketing/ distribution costs, and say that these are two different things. If one strips out the personnel costs, as they say the Evaluators should have, Orange contend it is clear that the budget available for pure bonus is indeed higher in the Orange figures than in the Meteor proposal. 

Orange say that, given that handset subsidies must be a given, as part of any third licensees marketing plan, only Orange would have available to it sufficient funds for bonuses. Orange submit that this is so, whether one looks at handset subsidies simpliciter, as they propose them, or at equivalents to handset subsidies, which the Director said was to be inferred as being implicit in the Meteor bid. 

Orange, Meteor and the Director put together separate sets of figures all taken from the various combinations of marketing, bonus to distribution channels and personnel figures supplied by the parties. Each of them comes to a different view as to how the figures should be approached, and as to the differences, if any (and in some cases there were little or no differences) between the several sets of figures. 

But at the end of the day, it seems to me that this issue must turn on whether, on the one hand, for the purposes of the evaluation, the Evaluators were looking at a global budget figure or at something more detailed or more particularly directed towards "bonus to distribution channels". Now in turn, it seems to me that this throws up the differences and the similarities between the marketing "budget" which would include both spend and cost, on the one hand, and a pure spend" on the other hand, ignoring costs. In simple terms, what were the Evaluators seeking? 

Instead of asking what the marketing budget would be, the tender document required the bidders to complete the mandatory tables in a very precise manner, detailing the amount which would be allocated to "bonus to distribution channels", and not simply asking for completion of an overall marketing budget. It seems to me that this was so that the Evaluators could adjudicate upon the actual amount which each bidder was prepared to make available or allocate under this precise heading. 

Because Meteor have a much higher vertically integrated arrangement at retail level, it is natural that its personnel costs are likely to be higher than those of Orange, who have a much smaller proposed own retail distribution plan. 

I recognise that, at least in accounting and economic terms, there can at times be little distinction between the "cost" and the "spend" in global marketing terms. With that in mind, I endeavoured on several occasions to ascertain from the Director's witnesses who were involved in the evaluation whether I was being asked to equate "spend" with overall "cost", but got no clear answer one way or the other. I conclude from the evidence of Professor Braunstein that he considered there was little difference, but of course he was not involved in the evaluation process at all. And it was said in evidence by the Director's witnesses that what they looked at was what overall figure might be available to enable Meteor promote its marketing or distribution proposals, and in submission it was said that all of the three sets of figures were simply added together, and a comparison made, which threw up little difference between the parties. 

In the course of the written submissions, counsel on behalf of the Director has stated as follows:- 

"If anything, however, this evaluation did less than justice to Meteor. Had the situations been reversed, Meteor might well have argued that it ought to have received the same mark as Orange on this indicator on the basis that the true comparator ought to have been on the basis of the combined figures for bonus to distribution channels, marketing costs and personnel marketing costs." 

I do not agree with this submission, absent any evidence that (a) this is the comparator originally sought by the tender documents, and (b) that I should with justification consider the "personnel" costs of Meteor in its integrated retail scheme to be equivalent to "Bonus to distribution channels" which, on all witnesses evidence, is the amount which bidders have available to it to spend on promoting its products through distribution channels. Personnel costs are to be incurred in any event. Whether Meteor sells ten or one hundred handsets, the personnel overheads will still exist, in the estimated figures which Meteor has calculated. There is no necessary connection or correlation between the cost of such personnel, even in their retail outlets and the amount available by way of bonus. Of course the Director also says that, with such an integrated system, there would be less need for bonus to independent outlets. That is true I am sure, and it might be that part of the "spend" would be allocated to training in house personnel in sales and promotion of Meteor products, and that therefore some element of the "costs" of personnel might be taken into account. 

But it is important to draw attention to the fact that the Evaluators themselves settled the tender document, chose the comparators (separating out these three indicators) recognised that, for a larger subscriber base, the amount available from Meteor was significantly lower than from Orange. My major difficulty in relation to this segment of the argument is that no witness in fact indicated to me that the Evaluators had actually carried out any exercise, other than to add up the three sets of figures and assume, for the purpose of the evaluation, that while there were still differences, those differences were marginal or insignificant. 

It is acknowledged by the Director that the wording of 5.2.6 is inaccurate, but the Director suggests that the conclusion drawn, based on "the considerably higher bonus budget" meant that the actual awards allocated could not be biased. But I am not convinced this is correct. The "considerably higher bonus budget" so far as I understand the terms of the paragraph, is a reference to the difference, taking into account the "supplementary investigation which is said to have tended to close some of the gap between the two applicants, which gap, at that time, still left a "considerably higher bonus budget" in favour of Orange. 

I do not think it lies in the mouth of the Director to suggest that the Report yet again, and in relation to an important indicator in the competition, ought to be read as if it had been drafted differently, since I have already pointed out that it was exchanged, redrafted, amended and altered, with some considerable debate before being finally adopted by the Steering Group as reflecting what was intended to be in it, in the manner in which it was in fact said.' 

Meteor adopted somewhat similar arguments to those of the Director. However, Meteor also say that, if one carries out a further exercise, by stripping out all of the costs from each of the figures given both by orange and Meteor, one finds in the overall marketing/bonus to distribution channels combination, very little difference between the two, and therefore the Evaluators were wholly justified in adopting the approach and in awarding the marks given, and that on that basis there was no bias. 

I find that Orange is entitled to complain about the approach taken, which was favourable to Meteor, and which did not make allowances for the combination of (a) the larger subscriber base of Meteor; although that was specifically referred to by the Evaluators and they therefore have to be taken as having recognised it; (b) the significantly higher bonus available from Orange for a small subscriber base (and therefore a greater amount "per head"); (c) the difference between "costs" and "marketing spend", and (d) in particular the fact that the tender document itself required that the actual amount available by way of such bonus was to be inserted in the Tables provided by the evaluators themselves. The marks in my view as awarded were biased in favour of meteor and against Orange, having regard to the foregoing. 

That is not to say that there was a deliberate decision by any of the Evaluators to in effect "do down" Orange, but the result is precisely that. Taking into account what was required by the tender document, and having regard to the individual indicators which the Evaluators themselves fixed, and by which they said the bids were to be evaluated and were in fact evaluated, it seems, clear that there was an error in the Evaluators statement that the "gap was closed", which would be readily preceived as being a bias against Orange. 

(e) The next "error" issue concerns the average "cost per minute", which Orange claim was incorrectly stated, because it did not take account: 

(a) of the different per second billing rates between the bidders, or 

(b) of the cost of acquisition of hand-sets. 

What the Evaluation Report said under this indicator, which was within the dimension "Tariffs" was that "the general price level of the two applicant can be indicated by looking into the average turnover per outgoing traffic minute based on a calculation from their business plans" This was followed by a chart or graph showing the total turnover from subscription and usage charges divided by the total outgoing annual traffic minutes proposed. This showed that Orange had "a significantly higher price level than Meteor". In consequence, Meteor was awarded an "A" and Orange a "C". 

Orange's case is that on the first of the above objections, the Evaluators failed to recognise the difference in the billing methods adopted by both parties, or more correctly failed to apply the different billing methods to the above exercise. Additionally Orange say that, when calculating cost per minute the Evaluators should have taken into account the cost of a handset subsidy. In failing to take these matters into account, Orange argues that the Report was erroneous and biased in favour of Meteor. I do not have to cite the extracts from the Evaluation Report itself. The text is found internally at pages 19 and 21. Mr Young (T23, p 14) gave evidence in support of Orange's contentions on this ground. 

In answer to this the Director says that there was no error at all under this heading. It is acknowledged on the part of the Director that neither of the factors which Orange relies on was actually taken into account, either as to Meteor's figures or Orange's figures. However, the Director says that this was the correct approach. As to the different charging methods, the Director says that Meteor's "send to end" method (by which it must be taken that a successful call will cost more through Meteor's billing mechanism than through Orange's) would have little or no impact on the evaluation because it was minimum in nature, and without expending any monies and valuable time on highly detailed market research, its quantifiable effect would be difficult to ascertain. 

This argument is one which I think may miss the point somewhat. It is not really the effect on marketing which is being sought wider this heading, but rather a straight-mathematical measurement of the cost per minute. I assume that the Evaluators had access to information on average call times, or blocks of call times. 

As to the inclusion in an Evaluation Report under this heading of the cost of handset subsidies, it is the Director's case, supported by her witnesses, that the cost of hand-sets vis a vis the evaluation of call charges is irrelevant. The Director's case is that handset prices are not a regulatory issue at all. It is also said that no information was requested in the tender document concerning handset prices, so it would not have been possible to carry out any calculation. And finally, the Director says it is against international practice artificially to "convert" the cost of hand-sets into the average cost per traffic minute. 

Leaving aside whether handset subsidy prices were mentioned in the Orange bid, I recall no evidence adduced on behalf of Orange that handset subsidies should properly have been taken into account by the Evaluators in respect of this indicator. 

No evidence was tendered by the Director on either of the grounds which is put forward, but evidence was tendered by Meteor that the effect would of send to end would not be significant. 

It seems to me that the Evaluators are fully entitled to say, in relation to certain indicators, that the arguments of either bidder, if correct, would nevertheless have a de minimis effect. While I did not have a substantial amount of evidence on the matter, I am fully satisfied to accept that a good defence exists on the basis of the de minimis principle and [accept the defence in respect of this matter. 

ORANGE'S CLAIM OF BIAS ARISING OUT OF THE DETAILED EVALUATION OF THE RESPECTIVE BIDS 

On the detailed manner in which it is alleged bias operated against Orange, either by means of actual bias or by objective bias, apart from but as well as those matters of error dealt with above, the following individual components or segments of the Evaluation Report are cited by Orange as having been generated by a biased approach or as evidencing such bias:- 

(a) Tariffs; 

(b) Subscriber contracts; 

(c) Hand-set subsidies; 

(d) Business case sensitivity; 

(e) The "Irish touch"; 

(f) Performance guarantees; 

(g) The admission of new material when it suited the Evaluators; (both against Orange and for Meteor); 

(h) The failure to probe the AT&T withdrawal; 

(i) the failure to probe the An Post "strategic alliance" or agreement; 

(j) The failure to probe Meteor's position or reliance on national roaming; 

(k) The different capital expenditure projections. 

Again, some of these headings took on a much more serious role than others, and while I endeavour to deal with all of them, I will concentrate on those which took up most of the time, with one exception, namely coverage and national roaming. 

As I have said, the facts and matters which give rise to the claim of bias in the Report are also the very same facts and matters, which, either alone or together with others, also constitute the basis for the unreasonableness claim. I propose to deal with each of the categories in this section on bias, and for the purpose of the claim for unreasonableness they will be taken in this judgment as including the same facts. 

A. As to Tariffs: 

Few aspects of the Evaluation Report, or indeed of the Plaintiffs claim loom quite so large as tariffs, and a great deal of the evidence was directed towards this particular heading, which by all parties acknowledgement, was the most important or one of the two most important aspects of the entire tendering process. Orange's claim under the issue of tariffs is concerned, briefly, with the following:- 

(a) the allegation that the tender document did not reflect or reflect adequately the fact that the Evaluators were looking for the lowest tariffs, as opposed to tariffs which were competitive; [Policy] 

(b) the allegation that the tender document did not reflect or reflect adequately the fact that the Evaluators were looking for binding commitments as an essential feature of the tendering process; [notification of the policy objective] 

(c) the allegation that, in the evaluation process itself, the Evaluators adopted an unjustifiedly adverse view against the Orange bid and an unjustifiedly favourable view of the Meteor bid; [Comparison of the Tariff plans] 

(d) the allegation that, in the evaluation process itself, the Evaluators failed to take into account its own tender rules concerning the conversion of proposals put forward in Table 7.8 into binding terms and conditions of any licence which might issue; [Clause 1.6.2]. 

To consider these aspects of the claim by Orange, it is necessary first to go to the Tender Document, the Pre-tender Press Release and Information Memorandum, as well as the Questions and Answers exchanged on the 26 and 27 February 1998. 

The sequence of documents is as follows. I have already set out some extracts of these in some detail. 

(a) The Information Document prepared by or on behalf of the Director sometime prior to December 1997 and which formed the final document in the tender document bundle furnished to prospective bidders; 

(b) The tender document itself dated December 1997; 

(c) the Press Release issued by the Director and dated the 2 December, 1997; 

(d) the Questions and Answers exchanged on the 26 and 27 February 1998. 

The Press Release was the first public information on the objectives or principles behind the competition and this is already set out at page above. 

There is a further extract from the Information Memorandum which may be of significance, and which arose in the course of the evidence, and this reads:- 

the applicants will be invited to bid any figure up to and including an amount of IR £10,000.00 in respect of the spectrum access charge. This reflects the fact that spectrum, both DCS 1800 and GSM will be set aside for the use of the third operator". 

The material parts of the Tender Document relevant to a consideration of this aspect of the Orange case, are found in what I might call the Tender Document proper, which consists of four sections, each devoted to separate elements of the competition; and described earlier in this judgment. 

So far as Tariffs are concerned, all parties appear to accept that the following extracts from the Tender Document are relevant:- 

A. Under "1.1.1 "Primary Conditions for award of Third Operator's licence" the following is included:- 

"In addition to the administration fee, the applicants are free to bid up to and including IR 10,000,000 in respect of the spectrum access charge. This spectrum access charge reflects the fact that spectrum, both for DCSI800 and GSM will be set aside for use by the successful applicant. 

B. Under 1.5.2 "Comparative Evaluation Criteria":- 

"Group A (weighting 38%) 

-- The proposed tariffs. 

-- The proposed marketing strategy. 

-- The proposed services to the end users including scope, timing of introduction, quality and customer care" 

It should be explained here that Group A is followed by details of Group B (27%), Group C (20%), Group D (10%) and Group E (5%). 

And then by:- 

"Within each of the above groups, the criteria are set out in descending order of priority." 

C. Under 1.6.2 "Incorporation of terms and conditions in service licence granted:" 

"The Director intends to incorporate proposals made into the terms and conditions of the service licence to be granted. (emphasis added) "Any discussions for this purpose with the successful applicant prior to granting the service licence will be held Such discussions will take place solely on the initiative of the Director. (emphasis) 

"The sole purpose of conducting such discussions will be to ensure that the indications given by an applicant in its application and which have formed the basis for selection are in conformity with the terms and conditions stipulated in the service licence. Thus it will not be possible to modify, the indications given in the application". (emphasis added) 

D. Under Section II A. "General Requirements" 

"4. The quantitative details in the application shall have, as a minimum, the same degree of specification as indicated in the Tables in Section II, Part 7: Tables. 

5. Wherever relevant, the applicant shall complete the tables contained in Section II. Part 7 of this tender document. Apart from that, the applicant will make its own decision as to the extent to which each table should in addition be incorporated into the individual parts of the application. 

7. If the applicant provides information which differs from the details requested, any such difference shall be clearly marked in Part 8, Paragraph 8.1, of the application, accompanied by a justification for such differences." 

E. Under Section II-B. Structure and content of the application under 1.2 Marketing aspects including market strategy, the following:- 

". . . 

(e) Description of tariffs." 

F. Under Section II -- Part 3: Marketing aspects, in particular at paragraph 3.4 Tariffs: 

"The applicant shall provide details of the proposed tariff system based on the services mentioned in Paragraph 3.2 above. This shall include the rationale for arranging the tariff system in the manner proposed, including: 

(a) Description of the tariff system including the underlying tar if principles and any variations in tariffs with regard to volume, distance, time of day, service level/functionality, traffic type, and other forms of tariff differentiation; 

(b) Indication of tariffs per basic service. A distinction shall be made between the initial charge (connection fee) the rental (subscription fee) and call charges (see Table 7.8 in Section II Part 7: Tables); 

(c) Description of any tariff packages and discounts (such as discounts for calls during non-busy hours); 

(d) Description of tariffs for international roaming and national roaming (if applicable); 

(e) Description of billing methods for metered traffic such as call set-up charging and billing interval. Where relevant, the applicant should state the call set-up tariff or successful and unsuccessful calls, respectively. Any minimum charge per call or conversation should also be stated; 

(f) Description of price elasticity and any assumptions in that regard; 

(g) At this stage, applicants should indicate any binding commitments on tariffs, including any reduction predicated on, more favourable interconnection charges or other commercial conditions and downward trends over the licence period". 

G. Under Section II Part 7: Tables This section is introduced by the following: 

"This part contains are production of the mandatory tables together with some definitions) and: 

"a) All tables are to be completed. Any deviations shall be explained in Section II. Part 8, Paragraph 8.1 (Compliance with the tender document)." 

There are thereafter several pages of mandatory tables. 

Table 7.8 provides for "maximum tariffs (IR) excluding VAT on the applicant's own network (GSM/DCS)', and includes; 

22. Initial charge 

23. Annual subscription 

24. Normal call charges per minute 

25. Off-peak call charges per minute 

26. Tariff basket (as defined) 

This table required an applicant to complete the figures for each of years 1 to 15. 

G. Under Section II Part 8: Other aspects and Supplementary Information. 

8.4 Validity of bid: 

"The applicant and all connected entities shall declare in writing that the application is an irrevocable and unconditional offer which shall remain open for 180 days from 27 March 1998 (later changed to 6 April 1998)" (emphasis added) 

Finally, in the Question and Answers furnished on the 26 and 27 February 1998 the following are considered to be of relevance: 

As to Table 7.8: 

Q. 11. "For purposes of this application, please describe the basis for determining 'maximum tariffs' (lines 22-25). Is line 26 mutually exclusive from lines 22-25? 

A. "The basis for determining the 'maximum tariffs' is up to the applicant. 'Maximum tariffs' are to be interpreted as binding maximum tariffs which are offered to all customers and which cannot be exceeded. "Line 26 is mutually exclusive from lines 22-25". 

Q. 12. "Do the maximum tariffs (indicated in Table 7.8) form a binding commitment over the period of the licence? 

A. "Yes, but the maximum tariffs can be adjusted according to the actual inflation rate in relation to the general assumption of a 3% inflation per year". (emphasis added). 

Q. 26a. "Does the Director reserve the right to incorporate any proposals made in submission documents into the terms of the licence or does she confine this prerogative to proposals to which bidders have indicated that they are willing to be bound? (emphasis added) 

A. "The Director reserves the right to incorporate any proposals made in the successful application into the terms and conditions of the licence to be granted". (emphasis added) 

"Q. 26b. "Does the Director envisage that the successful bidder will be obliged to accept the licence under the terms and conditions to be incorporated? 

A. "Yes". 

I do not propose to deal with the allegations on tariffs precisely in the manner in which they are listed at the commencement of this section, because it seems to me that some of the allegations are of a much more serious nature, and had a more significant impact on the results than others. 

Against this documentary background set out above, Orange has argued that, while Meteor's tariff proposals were held to be more attractive than the proposals offered by Orange -- and leaving aside for the moment the question of binding commitments -- the preference for the Meteor tariff plan was biased in favour of Meteor and against Orange because: 

(a) The Evaluators did not notice or failed to draw the Director's attention to the fact that the mandatory tariff tables had been completed by Orange and Meteor on a different basis, and that no allowance was made for this when the tariffs were compared. 

(b) There was no attempt by the Evaluators to see how many subscribers would fall into each of the tariff packages proposed in particular those proposed by Meteor, nor how prepaid proposals would impact on subscription offerings (McQuaid -- T 31, pp 19-28). 

(c) It is said by Orange therefore that Meteor were given undeserved credit for what it called "the Bronze Plan", which Orange described as a stunt plan. 

(d) On contrast, Orange were given no credit for their low priced prepaid tariff plan. 

I should say something here about the so-called Bronze Tariff Plan. This was a plan proposed by Meteor as part of a series of tariff plans. It was acknowledged to be an unusual tariff in that if offered a subscription rate of 9.00 per month but no included call minutes while, most if not all of the remaining tariff plans were what were called "bundled" that is to say, they included in one global rate both the amount deemed to be payable in respect of the subscription charge and a certain number of call minutes. 

It has been Orange's claim in relation to the Bronze Tariff Plan that after a very short number of calls, the cost of the Bronze Tariff Plan would soon be overtaken by a lower cost found in one of the other tariff plans, and in particular by one of the Orange plans, which would, after that point, be more competitive. 

To assess the allegations made, it is necessary first to understand something of the manner in which this important element in the evaluation was dealt with. Tariffs were evaluated under several individual indicators, amounting to 10 in all. This meant that the criterion "Tariffs" (which had a predetermined weighting of 20% from the total of 38%) was determined by the Working Group assessing them according to the several individual indicators, The "Tariff' dimension was adjudicated upon by reference to: 

-- Initial charges (connection fee) 

-- Rentals (subscription fee) 

-- Call charges, national 

-- Call charges, international 

-- The OECD-like basket 

-- Prepaid cards 

-- Discounts 

-- Commitments and price development Billing and metering principles 

-- Total turnover (subscription plus usage charge revenue) per outgoing annual traffic minute. 

Although a number of headings under "Tariffs" are for consideration in this judgment, I propose here to deal with the issue of binding commitments to tariffs being one of most important features of the entire competition. In the course of the evidence tendered during of the hearing, it became clear that "commitments" in the sense which this word is used by the parties, did not, in fact, apply to all of the above indicators, but only to some. For example, no question of any "commitments" arose in relation to "discounts", nor to nor to "total turnover" and others in the list. 

In connection with binding commitments, this comes under the heading "Commitments and price development" (5.1.8), in the Evaluation Report, although of its nature, it must also cover the individual items listed second third and fourth in the above list. However, the Evaluators adopted it as a separate and discrete indicator, and under this individual indicator, they included the following introductory statement: 

"As an indicator of the applicants expectations of the development of prices, the stated figures in Table 7.8 of the application are used." 

This is followed by two charts which show a comparison between Orange and Meteor on per minute and off-peak call charges per minute, and then states ". . . Meteor has proposed significantly greater price reductions than Orange." Orange claimed at all times that the Evaluators were not comparing like with like. This appears to cover everything which the Evaluators intended saying in relation to the figures appearing in Table 7.8. There is nothing in this paragraph of the Evaluation Report which gives any indication that the Evaluators considered that the answers given by Orange in relation to anything in Table 7.8 was, in their opinion, qualified by anything else which Orange said. 

The Evaluation report continues: 

"The question of binding commitments on tariffs has been raised in written questions to the applicants. From Orange's answer of 1 May 1998 it is quoted: 'The Tariffs quoted in the bid are based in part on our assumption of the incumbents response to our entry, Specifically that they will reduce their tariffs ahead of that date. Should these forecast reductions fail to materialise, it may be prudent that our differentiated offer, which will be designed to meet the needs of our customers, can be set at a level above that quoted in the bid, while at the same time presenting customers with a highly attractive price proposition and placing Orange in an effective competitive position." 

"From Meteor's answers of 1 May 1998 it is quoted: 'To this extent, Meteor confirms that the tariff decreases listed in items 23-25 are to be considered part of our binding offer. However, as indicated in volume 8, Section & 2, Meteor is prudently requesting that the ODTR include terms and conditions in the License for DCS 1800 and GSM Mobile telephone Service which would allow the third mobile operator to petition for adjustments in the maximum tariffs. Meteor believes that some level of flexibility is in the interest of all parties involved and is anxious to work with the ODTR to define such terms and conditions." 

The Evaluation Report then states: 

"The conclusion is that there are no binding commitments from Orange whereas Meteor has set out a proposed falling price development with commitments. Therefore, Meteor is awarded a "B" and Orange is awarded an "E". 

To come to a view on the foregoing conclusion, I must also look at the exchange of correspondence between the applicants and the Evaluators. These exchanges took place after the Evaluators had viewed the bids and wished to have some clarification, within the ambit of paragraph 1.3.6 of the Tender Document which permitted the Director to raised questions. By letter dated the 24 April 1998 the Director posed certain questions. Not all concern tariffs, but for this section of the judgment, I confine myself to the questions posed on tariffs, which were in the following terms: 

"7. Tariffs, Vol 3, section 3.4' 

Based on some of the statements in the marketing aspects (Volume 3), the following questions must be answered: 

-- In general, what is the relationship between the Tariffs quoted in section 3.4 and the maximum tariffs quoted in Vol 7, Table 7.8, item 23-25? 

-- On page 42, Orange indicates that a differentiated Offer will be given regardless. Does this mean that Orange envisages that the tariffs quoted in section 3.4 might increase? 

-- On page 48, Orange deals with the possibility to "revise its 'tariffs plans." Please elaborate on how Orange might envisage tariff increases, if any 

-- How are supplementary services, value added services and special applications going to be priced? 

-- On page 46, Orange states that the applicant "does not intend to charge for unsuccessful calls." Please confirm that Orange will at any rate abstain from charging for unsuccessful calls, or alternatively, specify the circumstances in which the potential licensee would like to reserve the right to introduce a call attempt charge mechanism. IN the next sentence Orange states, that "no minimum charge applies." Please clarify', whether there is any difference in Orange's terminology between a charge for an unsuccessful call and a minimum charge. 

-- In table 7.8 item 26, Orange stated the tariff basket as 311.1. A recalculation based on the Basic bundle package yields 312. Please clarify this issue. 

-- Orange mentions the option of giving subsidies to hand-sets. Please specify the subsidies that the business plan is based on." 

As I have mentioned above, Table 7.8 was a table which it was obligatory to complete. It appears to be the only table in which a bidder was obliged to include tariff charges. In other words, a bidder could, if they wished, have had only one tariff plan, described in Volume 3 of the bid document and whose elements had to be listed at Table 7.8 and no more. It might well be that this would lead to tariff plans of other bidders achieving a much higher score, but my understanding of the tender document is that Table 7.8 was the only one which had to be completed, so far as any tariff plan was concerned. 

In reply to the letter of the 24 April, Orange stated as follows as concerns tariffs in its reply of the 1 May: 

"7. Marketing Issues 

General 

The maximum tariff shown in Table 7.8, items 23-25 have been calculated based upon the tariffs quoted in Section 3.4. The maximum price per minute is based upon the tariff applicable to Orange's proposed prepaid offering, which is the most expensive currently proposed, ie, 33 per minute is the maximum which any customer could pay for either a peak or off peak one minute national call. The tariff bundle has been calculated in line with the tender document requirements, and is based upon a monthly subscription to the "basic bundle" and that bundle price per minute, for calls in excess of the 65 inclusive minutes provided with the tariff ie, 15p per minute." 

And 

Response to Questions raised concerning 3-43 & 3-48. 

The dynamic nature of the mobile telephony market in Ireland, and our experience of other markets elsewhere in Europe indicates that the tariffs of our competitors are likely to decrease ahead of our entry. Orange believes that it will be vital to offer consumers in Ireland a significant discount to the tariffs charged by the incumbent operators. Our market research has indicated that consumers were disappointed by the lack of price competition currently perceived in the marketplace. 

It is Orange's intention to deliver a value for money proposition which we believe will present an enhanced lever of service. However, it would not be sound business nor make commercial sense to restrict Orange' ability to react to prevailing market conditions, which would enable Orange quickly to become an effective and durable competitor in the Irish market." 

The balance of the answer is the extract which was quoted in the Evaluation Report and already set out above. Now, to see this answer in context, it is also necessary to say something about the contents of Volume 3 of the Orange bid, from which the above questions arose. It is clear that the questions posed, although in all under the heading "Tariffs" make a distinction between matters arising which concern table 7.8 and those which concern pages 3.42 and 3.48. Orange, in answering the questions posed, also divided its answers in two, namely, dealing first with the questions arising out of Table 7.8 and then with the issues arising under pages 3-42 and 3-48. 

Volume 3 in each bid was directed to "Marketing" of which tariffs formed a part. Orange commenced its bid under 3.4 Tariffs, at 3.39 setting out a description of the tariff system and underlying tariff principles. These were listed as being "simplicity and transparency", "value for money" and "cost control". At page 3.41 is commences with the title "Indication of Tariffs per basic service". It should be noted that this heading is precisely the same as the heading found at 3.4(b) in the Tender Document. After some narrative, it contains a chart under the heading "Potential introductory tariffs for Bundled Packages", then setting out the various rates, and then there follows further narrative. Page 3-42 continues with further narrative, and then a chart under the heading 'Potential introductory Tariffs for Prepaid Cards", setting out figures for two separate options 

It has been Orange's case at all times that, while it did not give formal binding commitments in the body of its bid, nevertheless, the mandatory figures included in Table 7.8 were proposals which at all times, under the terms of the tender document, the Director had indicated she intended translating into terms and conditions of a licence, and to that extent it did not matter if no formal binding commitment were expressed in the bid narrative itself. 

Orange claim that the Evaluators were wrong when they took the view, as they admitted they did, that the extract appearing in the Evaluation Report, from Orange's letter of the 1 May 1998 was, in effect, an abandonment by Orange of any maximum tariffs set forth in Table 7.8 of their bid. 

The Director's Counsel has submitted that the approach adopted by the Evaluators was correct and justified because the Evaluators gave an opportunity to Orange to furnish binding commitments, both by the exchange of correspondence mentioned above, and also in the course of the oral presentation in mid May. I will deal with the oral presentation on this aspect of the matter in due course, but I will follow the chronology initially. Further, it was submitted by Mr Hogan in the course of his submissions on the issue (and indeed also contended for by the witnesses in the course of evidence) that no tariff proposals were, in fact, given by Orange. The emphasis on this aspect of the Director's case was slightly different as between the witnesses and the legal submission made on her behalf arising from the tender document and the Evaluation Report. 

It seems clear from the evidence of Mr McQuaid, Miss Finn and others that, during the course of the Working Group Meetings, the mechanism which I have set above was applied equally to the issue of tariffs. Indeed all the witnesses stated that, having set out the indicators chosen for the dimension "tariffs", a separate indicator was adopted because binding commitments had been sought in the tender documents, and that the weight attached to this separate indicator "commitment and price development" was allocated 45% on the basis that this was an important aspect of the tender process and was a more favourable approach for Orange than the alternative which was to take each of the other indicators, award an appropriate mark and weight, and allocate a "commitment and price development" segment in the weight separately. [I mention in passing that the Steering Group minutes disclose that the intention was to ensure that the tender documents requirements matched the criteria by which the bids were to be evaluated, rather than the reversal. In addition, it seems to be the case that, although the Readers Guide was prepared was available in a standard format, and needed only to be adjusted to meet the specific criteria of this particular tender document, nevertheless it is common case that the Readers Guide, finalised after the tender documents (as is clear from the minutes of the Steering Group meeting in February 1998), did not, as finalised, include "binding commitments" or what became called "commitments and price development" as one of the indicators by which the bids were to be evaluated. The submission made by the Director as to why this did not appear was based on the argument that the Readers Guide was just that, a mere guide, not written in stone, and which was capable of being, and should be capable of being, altered to take into account the individual bids. It is conceded by the Director's witnesses, however, that the bids were in fact evaluated closely by reference to the contents of the Readers Guide, which was altered to include certain indicators not already in it, in order to reflect certain requirements sought in the tender document. 

Each of the initial witnesses for the Director stated that the Working Groups adopted the approach which they did, so that the Evaluators could compare simple tariffs one with the other, as a separate, discrete exercise, and then consider "commitments and price development'! However, several of the witnesses indicated that Orange had not really made what could be called "proposals" at all, and that such proposals as has been made could not have been converted into terms and conditions in any licence which might issue. 

Indeed, Mr Hogan went to far as to say, in submission, that there was no such thing as a proposal in the context of a bid of this type unless it was supported by binding commitments Miss Finn and Mr McQuaid took a slight different approach, suggesting that what was in fact put forward by Orange could not be considered to be a proposal which could be included in any licence because it was too conditional or propositional. I think Mr Hogan may not have intended to go quite as far as he did, because such a contention cannot really be reconciled with the bids, nor with what actually happened, and I do not think it either contention can survive a review of what actually occurred nor what was stated by the witnesses nor indeed what appeared in the Evaluation Report. If it were the case that no proposals were put by Orange, it seems clear this would have been stated or referred to in the Evaluation Report, it being an essential element in the competition that such proposals had to be included. 

First of all, taking the Evaluation Report, as a starting point, one sees, that so far as Table 7.8 is concerned, the figures in this Table, or at least some of them, were compared without any difficulty at all. At least, if there was any difficulty in comparing them, this is nowhere mentioned in the Evaluation Report. In fact, the Evaluation Report is totally silent on the allegation by some of the witnesses that the Orange proposals were difficult to compare with those of Meteor. Taking just some of the wording adopted by the Evaluators themselves, in the section of the Evaluation Report covering "Tariffs", I find the following statements, by way of example: 

5.1.2. "Orange has proposed bundled packages of subscription and outgoing minutes or prepaid cards. A calculation of Orange's Basis Bundle Orange has proposed a prepaid card . . . Although Orange does have a low "subscription fee" . . ." 

5.1.3. "Indication of tariffs per basic service . . . of Orange's application) states that Orange will offer 2 bundled packages with different per minute prices for additional minutes. The prices per minute are the same irrespective of the time of day or the day of the week 

To make a comparison between the applicants on their different call charge schemes two traffic dependant calculations have been made 

The graph shows approximately equal offers for the light business traffic from the two applicants, 

This indicator has been evaluated "narrowly". In particular, account has not been taken of whether or nor binding commitments are given. This issue is specifically evaluated later, 

Meteor is awarded an "A" and Orange is awarded a "B". 

5.1.4.". . . The two applicants have included almost the same amount of features in their packages . . . The two applicants are evaluated equally on this indicator. . . ." 

5.1.6. ". . . A comparison of the different plans is illustrated in figure 3 . . . Figure 3 reveals only small differences . . . These differences may easily be offset by different expiration times . . ." 

5.1.9. ". . . Both applicants state that they will use per billing and that they will not charge for unsuccessful calls. They also offer itemised billing . . ." 

5.1.10. "The general price level of the two applicants can be indicated by looking into the average turnover per outgoing traffic minute based on a calculation from their business plans. Figure 6 shows the total turnover from subscription charges . . . The graph . . . shows that Orange has a significantly higher price level than Meteor." 

It will be seen from the foregoing examples that, so far as the Evaluation Report is concerned, there appears to have been no difficulty whatsoever in comparing the figures mentioned by Orange with those mentioned by Meteor for the purposes of comparisons between them. In the final paragraph of this section of the Report, there is a mention of the indicator "commitments and price development" and one other, as to the weightings given, but no mention whatsoever of any difficulty or problem in comparing the two offers or proposals made. 

In the course of the oral presentation, after the Working Groups had already allocated both scores and weightings to Meteor and Orange, there is a mention of the Orange tariffs in that Mr Andersen read extracts from the Orange bid concerning "potential introductory tariff' and in relation to the prepaid charges which Orange "intends to offer" and to a reference to the possibility that Orange "may revise its tariff plans". Mr Andersen then stated: 

'Now you are giving a lot of intentions and you are also stating that it is a dynamic market, . . . but I would like to pose the question to you, if you can elaborate in excess of what you have already written on your reasoning for giving so many intentions and I would say comparatively less on the committing side.' 

Mr Snook replied to this question and said: 

It is very difficult, particularly when you are so far ahead of launch and not knowing what exactly is going to change in the marketplace, to come up with very, very specific tariff propositions . . . To give you an example in Great Britain we actually didn't finalise our tariff strategy until two weeks before we launched . . . So from that perspective, I suppose that is why were have lots of intentions, but maybe we are short on some specific elements". 

The Director has argued that the tariffs were properly compared, that one of the key features of the Meteor proposals on tariffs was that it offered a wider variety of tariff plans. In the written submissions, although the witnesses did not mention this, it is argued that Meteor offered, binding commitments on a wide range of elements in its plans. For example, it is said that Meteor offered binding commitments on "billing and metering principle" ("nearest second billing") and on the split offered between normal tariffs during normal hours and reductions during off peak hours. It is also said on behalf of the Director that Meteor offered binding commitments on additional hours at a reduced charge on all its tariff plans. 

These last claims on behalf of the Director are repeated by Meteor, which draws the Court's attention to Exhibit 3-12 in its bid, combined with the narrative found at page 3-29 of its bid. At Exhibit 3-12 is set out details of Meteor's Bronze, Silver, Gold and Platinum months subscription figures, which lists a number of included features. The narrative at 3-29 reads, in part as follows: 

"'Upon winning the licence, Meteor is committed to offering a minimum of these services at prices not to exceed those listed in Exhibit 3 -12 for the first year following commercial launch. Meteor maintains full flexibility to price services at rates equal to or less than these listed tariff maximums." 

The details of the Bronze Tariff Plan were included in the mandatory Table 7.8. Meteor draw attention to the fact that in Table 7.8, the Bronze Tariff figures decline over the 15 year period, leading to a significant difference between the Meteor's figures in the Table, over and above those of Orange. I will deal with the question of low tariffs, as opposed to binding commitments to tariffs separately below. Meteor, however, also draw attention to the fact that the indicator was in respect of both "Price Development and Commitments" and that it is wrong to deal with the matter merely on the question of binding commitments, because on the element of price development, Meteor ought properly to have scored over Orange because of its planned reduction in tariffs over the life of the licence. I think there is some very considerable merit in such an approach, which recognises that, at least in one aspect of the indicator, if one were comparing the two bids. Meteor would likely do better than Orange. 

On the other hand, however, it is abundantly clear from the text of the Evaluation report itself that this is not how the Evaluators approached the matter. They said, as I have mentioned above: 

"The conclusion is that there are no binding commitments on tariffs from Orange whereas Meteor has set out a proposed falling price development with commitments 

Therefore, Meteor is awarded a "B" and orange is awarded an "E." In other words, Meteor secured a mark of 4, the second highest, while Orange because they gave no binding commitments, and not otherwise, secured a 0. 

[While dealing with the range of tariffs, it might be convenient if I mention here that it was also argued on behalf of Orange that the Bronze Tariff was, as they put it, a "stunt" tariff, having little or no value to any significant number of people, and that the Evaluators ought to have realised this, or carried out an exercise to ascertain whether it, in reality, had any real base. It was said, in response, by Professor Braunstein that this type of tariff has attractions, especially to persons like him, who can charge third parties for calls which he has to make, but at the same time, permits a person not to incur substantial numbers of calls for which the person is primarily responsible. The Director, on the other hand, took a different view, probably because of different market considerations than those with which Professor Braunstein may be familiar. 

To the Director, the Bronze Tariff plan was recognised as being attractive to a rather small percentage of people, but the evidence of Mr McQuaid was that the number was "small but not insignificant", or perhaps even "small but significant". It was also said in evidence that the Director took into account the fact that the Bronze Tariff plan was an unbundled plan, giving consumers a wider choice -- indeed the only choice of an unbundled tariff plan. 

It was submitted by Orange that the decision of the Evaluators to award a "B" to Meteor and an "E" to Orange in respect of the indicator "Commitments and Price Development" was biased and unjustified in light of the fact that both Orange and Meteor had expressed concerns about giving binding commitments, although expressed in different ways. In addition, Orange say that the Director, according to the Rules of the tender process indicated a clear intention to impose tariff proposals on any party bidding who might be offered a licence. Orange says that it follows that the terms of its bid, and in particular the figures included in the mandatory Table 7.8 could have been readily imposed on it by the Director. Orange submitted that the right to impose such tariffs vested entirely in the Director, on a one-sided basis, but that the Evaluators ignored this power in order to decide the competition on what some of the Director's witnesses called a "common sense" view of the evaluation of tariffs, including both Mr McQuaid and Miss Finn. Mr McQuaid had no recollection of any consideration being given to the prospect of imposing Orange's tariff plans but conceded that the Rules of the competition "were not in the forefront of our mind". [T.32, p 12]. Orange also say that there was no clear indicator in the tender document that binding commitments were either necessary or crucial to the competition. 

The evidence established that in the course of the drafting exercise, when the drafts of the Evaluation Report were being amended. Ms Finn suggested an amendment to the materials to make it clear that Orange had effectively lost the competition because it had failed to make binding commitments to tariffs, and she considered it appropriate that the record should clearly reflect this fact. 

Orange also submit that the entire of the competition was effectively decided on the issue of binding commitments to tariffs, and say that this was effectively conceded by the Director's witnesses, and that this was biased, because a bidder could not have known and was not warned that binding commitments to tariffs could be so critical. Orange also say that, even if binding commitments to tariffs were to form a crucial part of the evaluation process, then the award actually given was biased against it, because the difference between what was given by Meteor as a binding commitment, and what was given by Orange, was minimal. I will return to this specific allegation after I have dealt with the general contention that there was no adequate warning of the importance of binding commitments. 

Both witnesses on behalf of Orange, and in particular Mr Young suggested that neither the tender document nor any of the surrounding documents were indicative of binding commitments being crucial. 

Orange argues: that the AMI Readers Guide had nowhere in it, an indicator covering binding commitments. Orange says that it is clear that "binding commitments" was not a policy objective of the competition, because such an allegedly important policy objective would certainly have been reflected somewhere in the dimensions or at the very least in the indicators listed in the Readers Guide. 

Orange say, in the circumstances, that the Evaluators, during the course of the evaluation itself, decided to give prominence to an indicator not previously identified, and did so at a time when they knew that their decision to weight "binding commitments" at 45% of the 20% allocated to tariffs, would effectively decide the competition against Orange. 

Orange argue that all attempts by the Director at explaining away the position are ex post facto attempts to rationalise an indefensible and biased decision, and that the Evaluators chose to adopt the decision which it did, when they knew Orange was, or must have been unaware of the importance which might be attached to a crucial requirement for binding commitments. 

It is also said that the Evaluators wholly failed to put Orange on notice by explicitly seeking its position on binding commitments. On this point it is argued on behalf of the Director that the Evaluators on a number of occasions, including in written requests, and again at the oral presentation, gave a full opportunity to Orange to make binding commitments on tariffs, and that on each occasion Orange declined to so. 

The Director, in explaining why no indicator Price Development and Commitment appeared in the Reader's Guide said that the Guide was just that, and pointed also to the fact that "competitor analysis" "bonus to distribution channels" and "advertising and branding" had also not appeared, and that under some or other of these, Orange had benefitted. The Director also argued that the tender document was perfectly plain in requiring binding commitments and that as proof of its plainness, Meteor had no difficulty in tending such binding commitments, and in understanding that these were both sought and necessary. However, the court did not hear any Meteor witness, and it does not follow that the inclusion of the material at 3-19 came about as a result of Meteor's believing that binding commitments were essential or required, though they may have, or they may have considered them to be helpful. This is especially so, since they gave commitments in the narrative part of the bid, extending for a one year period, indicating that lower prices might well follow as a result of further competition, after that time. 

To consider this argument as to the obviousness or otherwise of the issue of bidding commitments to tariffs, I refer again to Paragraph 3.4 of the tender document. This is set out in detail in the introduction to this part of the judgment. However, a reconsideration of it suggests the following. The first or heading paragraph (which I set out again for ease) reads: 

"The applicant shall provide details of the proposed tariff system based on the services mentioned in Paragraph 3.2 above. This shall include the rationale for arranging the tariff system in the manner proposed including: 

The paragraph then sets out a series of requirements from (a) to (I) inclusive, all of which follow in a correct grammatical sense from the introduction paragraph. There then follows (g) which I again set out: 

"At this stage, applicants should indicate any binding commitments on tariffs, including any reduction predicated on more favourable interconnection charges or other commercial conditions and downward trends over the licence period 

This paragraph, however, does not flow in any grammatical sense from the introductory paragraph, and I suspect -- although it is only a suspicion -- that it was added in to what was an original draft, to take into account a decision on commitments to tariffs. It appears, in the tender document -- which was apparently carefully drafted according to the minutes of the Steering Group -- as if it had been added almost as an afterthought. Because it is phrased in such an awkward manner, vis a vis, the introductory paragraph, I did ask some of the witnesses if they believed the paragraph properly reflected a serious requirement to binding commitments. The witnesses were split almost equally between those on behalf of the Director and/or Meteor who thought it was and those on behalf of Orange who thought it was not. In answer to a question which I put to Dr Selwyn as to whether or not making it clear that binding commitments to tariffs would form an important element in the evaluation would in some way restrict a bidder's flexibility, Dr Selwyn said he considered it important for the tender document to state that, by which I understood him to mean that he thought it important the tender document should make this clear, and he added "I believe the tender document does state that [T.42, p 132]. He then went on to say: "Perhaps a little less directly than it might have, but taken in its entirety, for the reasons I have stated, I think the tender does express the notion that binding commitment will receive weight. It is not specific as to how much. 

I raised the same issue with Professor Braunstein, because he was presented as a person who had some very extensive experience in assisting, or perhaps even drafting, tender documents in this field and had been involved as a consultant to bidders and other parties involved in the evaluation processes for tenders in the this field. I asked him for a view as to whether there was any reason, why an applicant would not be put on notice that binding commitments within the overall tariff allowance would attract enhanced evaluation to which he replied that his reading of 3.4 was that it was intended to signal to the applicants that they would receive higher consideration or some sort for proposing binding commitments. [T.41, p 180]. 

I then asked him for assistance as to whether he would say that binding commitments were sufficiently notified in 3.4 as having the significance which the court had heard they had, to which Professor Braunstein very fairly replied: 

"Before I read the testimony I had no problem with drawing that conclusion. Now that I have read all the testimony, I am not convinced that my common sense understanding is the correct legal understanding." 

So it seems to me that the evidence is not really as clear cut one way or the other. The most that can be said is that, for Meteor, its witnesses were of the view that binding commitments may have been adequately notified to applicants, and would or ought to receive some additional markings, while the Director's witnesses say that it was perfectly clear, and that Meteor had no difficulty in accepting this, and Oranges witnesses say it was not clear at all. 

It was also argued on behalf of the Director that in allocating a weighting of 45% to the indicator "Price Developments and Commitments" this was a preferable approach and more in Orange's favour than to allocate an individual percentage under, each of the remaining individual headings of "Tariffs" set out above. This was also what a number of witnesses for the Director also contended for initially, including Mr McQuaid and Ms Finn. It became clear, however, in the course of subsequent evidence of some or other of the witnesses, that "binding commitments" as such only applied to certain of the above list of indicators, although given 45% of the entire total allocated to tariffs, ie, almost 50% of the available marks. This would mean that under each of the 9 headings above, almost half of the marks would have been allocated under each heading, had the alternative approach been adopted. However, this suggested, alternative approach does not appear to be the correct approach, if in fact -- as was conceded on behalf of the Director -- that not all of the several indicators would have had a "binding commitment" element in them. 

The correct alternative I believe would have been to allocate a "binding commitment" element in each of the relevant indicators only, I do not know what that might have meant, because in addition to their being only some relevant indicators, some of those indicators might have generated a larger element of "commitment" and therefore a higher weighting than others, and I do not propose to usurp the role of evaluators by seeking to determine what might have occurred. In that regard, I reject the suggestion made on behalf of the Director that, for example, in the case "call charges national" that the alternative approach would probably have resulted in a downgrading of the award given to Orange from a B to a O', or that I should entertain at all the possibility of considering a more suitable mark than that which was allocated, since this alternative exercise was never carried out, and it would be wrong for the court to speculate as to what might have occurred. 

I am of the view that the tender document did not indicate with sufficient or any real clarity that binding commitments were an essential feature of the tender process, or that only proposals which were accompanied by binding commitments, as contended for on behalf of the Director, would be considered to be proposals at all. 

I am also of the view that no reasonable party reading the tender document could anticipate that the absence of binding commitments could have a crucially adverse effect on its bid in the evaluation process. The paragraph in question, unlike the remaining paragraphs in Section 3.4 is phrased in a manner which does not support a contention that it is essential, unlike the remaining subparagraphs in the section. Moreover, although Meteor did give binding commitments, they were confined, in the bid at least, to one year commitments in the year after launch. While I did not hear any Meteor in house witness, and I do not in any way criticise Meteor for this, and nothing should be read from my comment that I did not hear such a witness, it seems to me that if binding commitments were considered by Meteor to have been an essential part of the tender document, they might well have included something rather more than a commitment to price for one year out of a 15 year licence period. Of course, I accept that Table 7.8 in the Meteor bid was a Table which showed maximum prices over a 15 year period, and therefore the other plans would have to be less than those. But that is not the point I make. The conclusion I draw is that the one year specific commitment made by Meteor, is not in my view necessarily indicative of the fact or of their belief that binding commitments were a crucial part of the tender process. 

I also find that the questions put to Orange in relation to the issue of binding commitments to tariffs were insufficiently clearly put to enable Orange to say, without any hesitation that they would not commit to tariffs. Had they been put in a clear way, it would have avoided this court having to embark on an exercise of the greatest complexity. I understand of course the immense difficulty which Evaluators have in endeavouring to walk the tight rope between confining bidders to what is said in the bid, and permitting bidders an opportunity to, in effect, "beef up" their bid if they find they are not doing so well. But even allowing for that difficulty, it seems to me that the Evaluators could readily have indicated to Orange, if they truly thought it to be the case, that none of the figures included in their bid constituted proposals as envisaged, and inviting Orange to state categorically that the figures were those which they were prepared to go to launch with. 

I also find, as a fact, that the approach adopted of allocating a separate indicator for binding commitments after the bids were opened and read, and which was not even included in the Readers Guide, is indicative of a tender document which did not have, as a crucial, requirement an obligation to make proposals of a binding nature, other than those in the mandatory Table 7.8. In fact, in the Steering Group meetings in early 1998, (Meeting No 8) it is stated quite clearly that the tender document is to reflect the criteria, rather than the opposite. In other words, the tender document was to be tailored to the established criteria, fixed in advance of the finalisation of the document itself. 

Before I indicate a final conclusion on this aspect of the matter, I think it is important to draw a distinction between low tariffs on the one hand and binding commitments to tariffs, any tariffs, on the other hand. 

It was argued by Orange that, in answer to Orange's attack on the Evaluators' approach, both Defendants in cross-examining Orange witnesses sought to suggest that the objective of the competition, in fact, was low tariffs. The Director's legal submission includes the same approach. The Director makes this argument on two grounds, namely, (a) that this was a policy objective of the competition and (b) that this objective was obvious from the wording of the tender document itself. 

It was submitted by Orange that there is nothing in any of the Steering Group meetings, prior to the finalisation of the tender document, to show that the policy of the competition was to identify a low cost operator. It is said, on the contrary, by Orange, that the Steering Committee notes (I have mentioned one of these above) as well as that of the 4 March 1998 is indicative of the Director's view that the objective of the competition was to further "effective competition" in the market. Mr McQuaid [T.31, p10-17, p 11, q.4 and p 17, q, 16] stated in evidence that there was no policy decision to go for a low cost operator. 

It was also submitted by Orange that had a low cost operation been a policy objective, it would have been clearly so stated in the tender documents, but was not. The terms of the subsequent Narrow band licence tender were relied on by Orange on support of this, but in answer Mr Andersen was adamant that the position in the marketplace was quite different and that the latter tender document provided for an entirely new situation in Ireland which was not the case with the third mobile licence tender, and I accept that as a bona fide reason for the difference between the two. 

It was argued that if the Director was pursuing a low cost objective, then one would expect this to be openly stated in the tender document and there would be no reason why, in such a case commitments to binding low tariffs would not lead the list of criteria for tariffs. 

Orange also criticised the Director's claim that the extent of the spectrum charge was such as to notify a bidder that low tariffs were a key component in the competition. Orange point to the fact that the claim based on low spectrum charge was not made by the Director's witnesses until it was put to them as a possibility by Mr Gallagher on behalf of Meteor. 

The Director makes several arguments in support of the contention that low tariffs were an essential policy objective of the competition. Firstly, he says that this must have been clear from the fact that, of dimension in Group A, tariffs was listed first and it was clear from the text that it was first in importance. Secondly, the Director refers to the Information Memorandum which I have set out at the commencement of this judgment, which states, inter alia: 

"The overall objective of this competition is to increase competition and choice so that the Irish consumer benefits from lower tariffs and the availability of high quality services, the introduction of competition to this market has already resulted in a significant increase in the penetration rate for mobile telephone with lower rental charges and call tariffs." 

Thirdly, the Director says that the requirement to include binding commitments and indication of anticipated downward trends in tariff levels over the licence period is also indicative of a low cost policy objective of the Director. 

Lastly, the Director states that the spectrum charge was a feature in support of a low cost policy objective, and the Director points to an averment in the Director's affidavit in the course of the judicial review proceedings, favouring the type of contest here over an auction, because of the fact that an auction might lead to a diversion of money otherwise available. I hesitate to accept affidavit evidence sworn in proceedings which were never the subject of cross examination or of any determination by the court or any concession by the opposing party. But in any event, it does not follow that because a beauty contest tender was chosen over an auction type tender, the actual figure set for the spectrum charge was fixed so as to facilitate lower tariffs. It could well be that a bidder would put any additional monies into the roll out budget, or into the marketing budget or otherwise. 

Moreover, I have looked through each and every one of the Steering Group minutes in which the policy behind the allocation of the spectrum, the fee for the spectrum and the reason for making the charge, and it seems to me that the conclusion to be drawn from the several meetings, as they took place over a period of months, is that the spectrum fee was fixed so as to reflect the fact that the third mobile licensee was being allocated spectrum of some considerable value. On the other hand, not a single meeting of the Steering Group mentions the spectrum fee, which was chosen at a maximum capped figure refers to the fact that the fee which was actually fixed, was intended to facilitate bidders in reallocating surplus funding into low tariffs. Further, Orange say in response to this, that it was never put to its witnesses that this was a factor in the low price policy contended for, and that it only arose after Meteor's counsel put the matter to Ms Finn. 

I note also that when the Director sent a Summary Report on the 6 July, 1998 to Orange, outlining the Evaluators comments on the Orange bid, a reference was made to the application not being "particularly strong on tariffs" but there is no direct reference to low tariffs. In the case of Meteor, the position is the same. On tariffs its states: 

"Meteor s proposals on tariffs were considered strong. The range of tariff plans, including an unbundled subscription and two prepaid plans were considered appropriate for the target market. Meteor's commitments to the tariff plans to the downward tariff developments were assessed as positive." 

The Director also argued during the course of the hearing that to notify bidders in the tender of a requirement for low tariffs would lead to artificially tailored bids and would impair flexibility. I have already found that the tender document did not clearly or adequately indicate that binding commitments to tariffs were an essential and crucial requirement in the competition. 

I also find that low tariffs were not a policy objective of the tender process, but rather lower tariffs. I think that the arguments on behalf of the Director slightly miss the point made by Orange. Orange do not say that lower tariffs were not what were sought. It is abundantly clear from the Information Memorandum and the Press Release, as well from the stated objectives of the tender, whether found in the tender documents or in the minutes of the Steering Committee, that competition was what was sought, and that as part of that competition, it was expected that lower tariffs and better services would be crucial. I believe Mr McQuaid was correct and absolutely right when he said there was not a policy of low tariffs per se, and that the submission that this was an obvious policy objective of the tender process and clear from the tender document is an unsustainable one. 

I also find that the spectrum charge, capped as it was at a particular figures, was not chosen so as to permit of low tariffs in the competition, and that there is no record of any description to support such a contention, at least none which was drawn to my attention. Indeed the Steering Group meetings make it clear that this was not so, and that an entirely different reason was stated for fixing the spectrum charge at the capped figure. 

There are a number of other findings which I should make in this matter. I am of the view that the Evaluators did not pay adequate regard to the Rule of the Competition which had been clearly fixed to include the very carefully worded terms of Clause 1.6.2 which was drafted precisely to allow the Director pick from whatever proposals were put forward by any of the bidders and convert these into terms of the licence, even against the wishes of the bidder. It is clear from the Questions and Answers furnished that the entitlement to do so was in respect of any form of proposal made, and was not confined to those in respect of which a binding commitment was offered. 

Insofar as concerns tariffs simpliciter, I am of the view that the Evaluators were perfectly entitled to take into account the range of tariffs proposed by Meteor, and to prefer these over those of Orange. I reject the suggestion by Orange that the Bronze Plan was a stunt tariff which the Evaluators ought to have rejected, or ought to have been put to the test in the way suggested by Orange. The Evaluators were not in any way biased against Orange in preferring the wider range of tariffs proposed by Meteor, if only because it was a wider range. In addition, there was no bias in preferring a range which included an unbundled package, even if that unbundled package was of interest to only a small number of the target population, even if that was less than 20% as Mr Andersen agreed it might be. It is perfectly legal to prefer such a range, and such a combination of ranges, one over the other, and such preference does not in any way constitute bias on the part of the Evaluators. 

However, both in relation to binding commitments, and also in relation to a low tariff policy, I am of the view that while the Evaluators may have themselves considered that the tender document was clear, in reality it was not. In the circumstances, having regard to the findings which I have made, it seems to me that the weighting of binding commitments at 45% in circumstances where a party could not be expected to be aware that it would have any significant weighting, is unfair and biased, or is capable of being perceived to be biased by any reasonable person. Equally the results of an evaluation based on such a criterion and having such a weighting, in which Orange was awarded a zero mark has the appearance of being biased, and cannot survive. So also an evaluation based on low tariffs as opposed to lower or competitive tariffs, is unsustainable in my view, and if -- and it is not clear whether this is so -- Orange were scored lower than Meteor because the Orange tariffs were viewed not to be low, simpliciter. 

I am also of the view that the correct interpretation of the tender document and the rules of the tender were such that any figures included in Table 7.8, which were after all very simple figures, were subject to the clause in the tender document which made these figures capable of being imposed as a term in a licence, whether Orange wished this or not. The combination of the clause in the tender document and the clarification given made it so. 

It was urged on me by Mr Cush in relation to these aspects of the Orange claim that I would be entitled to consider the position vis a vis Orange's overall ranking by allowing Orange the benefit which would arise if there were not indicator "Price Development and Commitments" by the simple exercise of deleting this from the Meteor marks. I do not think that this is an appropriate way in which to proceed. Firstly, the court's jurisdiction is extremely narrow. Secondly, it does not and cannot itself, substitute its own views or a range of marks which it would or might award to one or other bidder. It is indeed an attractive thing to say that if the court discounts the amount by which Meteor benefits from the award under the impugned indicator, then that would end the matter. But it also throws up another dilemma which comes about when interfering with what the Evaluators awards marks for. 

Mr Cush correctly pointed out that there is an inconsistency in the Orange argument vis a vis the commitments given in respect of the Silver, Gold and Platinum plans of Meteor, Orange having drawn the court's attention to the fact, that no formal commitment was given to the prices of these (save that they would be lower than Bronze over the period of the licence). Meteor says than on Orange's argument on Clause 1.6.2. the statements of intent by Meteor in respect of these latter plans was such as to be capable of being converted into terms and conditions of a licence. 

I think this is correct, and that Orange could not dispute this. But (also think it does not deal with the problem of the court seeking to substitute its own marks or views for those which should only be awarded or expressed by the Evaluators. I do not know why the Director chose, if she did, not to invoke the terms of Clause 1.6.2 of the tender in respect of the Silver, Gold and Platinum plans. She may have accepted Meteor's suggestion that market forces after the first year of commercial launch would be such as to generate a downward spiral in prices in any event. 

On this very vexed question of tariffs, I find that the complaints of Orange for the most part are valid and sustained. 

B. SUBSCRIBER CONTRACTS 

This is the next issue within the bias ground. Meteor was awarded an "C" and Orange a "D" under this heading. Orange argues that Meteor was evaluated on the basis that it had no contractual relations with its customers. Because of this, it is said that Meteor was not probed as to how it would govern its relation with its customers in the absence of a contract. On the contrary, because Orange did, have a contractual relationship, the Evaluators concentrated their efforts on seeking to establish whether Orange's 12 month bundled contract together with a penalty clause, which was the Irish market norm at the time, contravened the law. A supplementary analysis was undertaken. 

It is claimed by Orange that no rational explanation was given for the award and that the Director's witnesses were driven to suggest that the significance of the decision to seek a supplementary analysis on this issue was unimportant, and was undertaken for the purposes of general information", [T.39, p 121]. Orange contends that Ms Finn on behalf of the Director stated that: 

"The starting point for this issue was the services group, not the marketing strategy group.' The services group was the first group that I sat on that met (on 5 May). "At that meeting of the indicators we were considering was terms of subscription.' Under that indicator we were considering what the customer was getting, what was being offered to the customer and there was a discussion of the contract period of both the contracts offered by both parties. An issue was raised in relation to the whole concept of 12 month binding contracts in themselves. I myself . . . remember saying at that meeting that I was aware of some new legislation that frowned, if I can put it that way, on binding contracts and I think it was in relation to leased lines . . . it raised a doubt in my mind as to whether there was some issue about 12 month contracts that I should be further aware of. Then the AMI members of the group commented that there had been some recent developments in Denmark about binding contracts and the period for which they could be imposed. So, as a group we decided it would be prudent just to check that out to see if there was any obvious problem in the light of those kind of soft bits of information that we had among ourselves. We assumed frankly that they were okay and we knew that Esat and Eircell had 12 month binding contracts in place. We didn't really think that there was any obvious problem but just in case there was one that we should investigate further, a supplementary analysis was requested at that meeting and that was the focus of that analysis at that point in time. 

". . . the next two meetings I was at followed immediately on the next day, the marketing strategy and the tariffs. I can't recall precisely when in those meeting, but the broader issue which I think has been referred to in evidence here of the bundled packages and the handset subsidy, the tri-party relationship between those three issues was raised, I think probably also at the tariff meeting. As a result, I think, the supplementary analysis was broadened out to include those issues more explicitly. In answer to a further question as to the precise focus of the analysis, Miss Finn stated: 

"The focus of the analysis in the first instance was to find out whether there was any impediment or possible concern about 12 month binding contracts that we should investigate further before finalising the evaluation. Secondly, to investigate the tripartite relationship between the bundling and the handset subsidies and the 12 month binding contract from the consumer's point of view." 

In answer to another question put by Mr McDowell for Orange [Day 40, p 135], Miss Finn stated: 

"The (initial) concern was whether or not a 12 month binding contract in itself had any obstacles to it or if there were any problems with it, whether it was bundled or unbundled or anything, just whether the 12 month binding contract period which should be considered further or whether there was any specific obstance to it." 

And further: as to when a hand-set subsidy issue arose, she said: 

". . . I can't say precisely whether it was in the marketing strategy meeting or the tariffs meeting because they all happened on the one day and I was at all of them, so it was rather a long day. It was during those meeting . . . The concern about clawback as part of a binding contract was discussed but hadn't been raised initially, The issue of clawback insofar as it constituting a penalty payment or any other type of penalty payment was then discussed, . . . at one of those meetings and I think it was the marketing strategy meeting. 

And finally in answer to a question as to whether the Evaluators knew whether Meteor had any arrangement in relation to clawback, stated [Transcript 40, p 139]. 

"We didn't have any information on any explicit clawback that Meteor might want to impose. 

Orange contended that Mr McQuaid, however, conceded that Meteor should have been asked questions as to how Meteor intended to protect its [presumed] hand-set subsidy [T 32, p 127 and p 128], where the following exchange occurs: 

Mr McDowell: Did you assume, . . . that Meteor intended, if they did use a handset subsidy, to have one without any contact for the repayment of the subsidy; was that you assumption? Mr McQuaid: Yes, as I recall, they did not say that they would have a contract period. 

McDowell: However, they did not say they would not either. Therefore, am I right in saying that you went forward on the assumption that there would be no contractual protection for their handset subsidy? 

Mr McQuaid: Yes, I think that assumption may have been made all right. Again, I am not sufficiently familiar with all of the details, but on the face of it, that would appear to be so, yes. 

Mr McDowell: . . . in relation to Meteor, the benign assumption was taken that they would have absolutely no contractual protection for their handset subsidies if they did offer them; is that right? 

Mr McQuaid: Yes, they scored a C, so they did get a better score there all right. I think that did contribute to it all right. Mr McDowell: . . . what assumptions did you make at all about Meteors' proposals to use subsidies? 

Mr McQuaid: I think we concluded that Meteor would use some form of handset subsidies. 

Mr McDowell: . . . did it ever strike you that you better at some stage enquire as to whether Meteor, if they were going to use handset subsidies, as to how they are going to recoup their money and protect themselves from people just going in and ripping them off? 

Mr McQuaid: We did not pose a question to Meteor on that issue. 

Mr McDowell: Do you now accept that that was a mistake? Mr McQuaid: In hindsight, I think it would have been helpful if we had. 

Mr McDowell: Is the truth of it not that the glare of Mr Andersen's theories about handset subsidies was focused entirely on Orange. You marked them down without ever even bothering to ask yourselves what would Meteor's arrangements be if they are going to use handset subsidies to protect themselves? Is that not the truth of it? You never just bothered to ask Meteor, if they were going to use handset subsidies, how they were going to protect themselves? 

Mr McQuaid: We did not confirm whether they intended to have a contract or not, yes. 

I will deal with handset subsidies in a moment, but first I want to turn to the text of the Meteor proposal, since it was the contention of the Director's witness that there was no explicit reference to any clawback for handset subsidies or their equivalents. There are two section of the Meteor bid which I draw attention to, and I hope I do Meteor no dis-service by referring only to these two in respect of what I understand they say about subscriber contracts. 

The first extract is in the tariff section (Volume 3) at 3-25 where it is stated below Exhibit 3-12: 

"These simple pricing structures are designed to match subscriber's calling patterns. No annual contract will be required and subscribers can migrate between plans as his or her needs change . . ." 

That is the first extract which is in the tariffs section. The second extract is found at page 3-60 under a heading which is illegible in my bid document, but within services, and this reads: 

"Meteor has established a friendly simple accessible approach to customer care. In conjunction with its Customer Charter for top of the line customer care there will be no service contract requirements. Initially, Meteor will deploy service without the assistance of service providers. Key elements of subscriber aspects include: 

-- No contracts requirements for service; 

-- No connection (initial) fee; 

-- No credit checks prior to activation, provided that the customer pays by credit card, has an existing account or prepaid service, or leaves a prescribed deposit; 

-- Any subscriber will have service activated within 2 hours from order and all efforts will be made to achieve activation in less time than specified. 

Meteor is working to limit the complexity of establishing a subscription through a 'no annual contract' policy and waiving the connection fee. 

After purchase of a subscriber terminal or SIM Card, the subscriber initiation and service activation process is quite efficient. The customer will provide his or her name, address, and agree to simply and directly stated terms and conditions, credit information -- if applicable, and desired subscription." 

While I accept that the above extract appears to be from the section of the Meteor bid covering customer care, it does set out some indication of the position adopted by Meteor. What is unclear about both extracts is what is meant by the phrase "no annual contract" in the context of the heading under consideration. If it was intended to mean "no contract", one would expect to find this. If it was intended to say "only one month contract" or "six month contract" then one would expect to find that also. What it does tend to show is 

-- that there is no 12 month contract, which on the evidence tendered in court, was the norm at the time, at least in respect of almost all of the plans on the market. It does not, in my view, state that there is no contract at all. On a literary reading, it could be referring to one or three or six or more months contract, but certainly not 12 months. 

The statements appear, however to have been accepted by the Evaluators as an indication that there would be no contract term whatsoever. The second feature of these extracts is that, so far as having the freedom to move from one plan to another, as the subscriber desires, the bid does not, in the above extract, indicate that this is either without penalty or that it follows there is no contract. 

There may well be terms and conditions which permit the change to take place, or a contract which permits it subject to some terms and conditions. The Evaluators did not seek any clarification on any of these matters. 

But in case I am wrong or have overlooked some other part of the Meteor bid which clarifies the matter more fully, I propose to deal with this heading on a more full basis. 

Before I consider this issue further I should also look at the issue of hand-set subsidies simpliciter, since these are related matters, and handset subsidies come up on quite a few occasions. Hand-set subsidies are, according to Orange, and this does not appear to have been contested in any real way, the norm on the Irish market. Orange put the issue on a stronger basis and say that, absent handset subsidies, it would be impossible for a third mobile licence holder to get a foothold on the Irish market at all. Again, this contention was not seriously challenged, either by the Director's witnesses or Meteor's witnesses although they did argue in the context of the indicator "Bonus to Distribution Channels" that the phrase could have a wider meaning than that contended for by Orange. A handset subsidy is an amount of money which a company is prepared to allow a new customer against the normal cost of purchasing a handset. 

The supplementary analysis referred to above, was carried out in respect of what the Evaluators considered was a distinct disadvantage of the Orange offer in respect of its subscription contracts, in that they proposed handset subsidies, which were combined with term contracts and a break clause subject to a penalty. The analysis is reported at Paragraph 5.3 of the Appendix to the Report. On its face it is stated to be an exercise to consider whether or not (a) the Orange proposal infringed any rule of law in Ireland and/or in Europe, or (b) were in line with what was called "best international practices". 

A reading of this analysis makes it clear that, at the end of the day, the Evaluators considered a question mark still hung over the Orange proposal. It is introduced as being a legal exercise, although it was suggested in the course of the evidence, both by Mr Andersen and by Ms Finn on behalf of the Director, that it was not a legal exercise at all. It was said by Miss Finn that it was carried out for "general knowledge" purposes. This reason seems to me to be at odds with its positioning in the Report, and also with the conclusions drawn to the reader's attention. Having heard the witnesses on the matter, I have come to the following view. 

The exercise was one concerning Orange only, was embarked upon to see whether there were any grounds upon which Orange's proposal could be subject to legal attack and its conclusions did not accurately or properly set out what was discovered in the course of the investigation. What appears to have been discovered was that there was no basis upon which the Orange proposal offended any Irish law. If there was, any such basis, there was no mention in the Report of any Irish law which was infringed. In addition, it was acknowledged that there was no law in Europe which was infringed by the proposals -- although both statements are couched in terms which suggest that there might be such laws, not yet ascertained. Moreover, there is an acknowledgement that at least some or other of the incumbents were operating a similar system, although, it was said in the course of evidence [later corrected] that no incumbent's scheme so operated. While a comparison was drawn with the position in Denmark -- alone -- the conclusion that the plan is not in accord with best international practices, is an unsustainable one, since it cannot be accepted that Denmark alone could constitute an adequate "base" for comparison purposes. 

What was said in 5.3, in its "Final Remarks" section was: "The results of the supplementary analysis are that: 

-- Orange's proposed bundled tariff packages combined with an initial binding period of 12 months apparently do not conflict with any EU regulation. 

-- Orange's proposed bundled tariff packages combined with an initial binding period of 12 months apparently follow the practice as used by the two existing Irish GSM operators; 

-- Looking at experience from other mobile markets with a high penetration, handset subsidies may be adequate if a third operator has to penetrate the market, but in relation to ordinary residential users, an initial binding period of 12 months can hardly be considered as standard operating industry practice outside Ireland. 

-- In Denmark, an initial binding period of 6 months has been the normal practice since 1996. The predominant purpose of the sector specific regulation has been prevent the operators from limiting the competition in the market by binding the customers. The period of 6 months has been settled to make it possible for the operators to recover the average non-reversible costs of the operator, ie, the handset subsidy is not recovered at all. 

-- It may therefore be concluded that Orange's proposition seems to have no conflict with the present Irish practice except for the fact that customers according to Orange's proposition cannot buy an ordinary non-bundled package. Compared to Meteor's proposition, Orange offers less flexibility. 

. . . 

-- Moreover, it cannot be rejected that complaints either under the competition or the consumer regulations on Orange's bundled proposition (12 month binding period, substantial handset subsidies and bundled packages) may be justified. However, a final answer to the legitimacy of Orange's proposition outlined very briefly in their application will require information at a higher level of detail." 

The Director argues: 

(a) that it was neither appropriate, in the context of a competitive tender, for the Evaluators to "probe" either applicant on the contractual terms it would impose, contrary to Orange's contention. 

(b) that the Evaluators had to take each application on its face. 

(c) that the awards of marks, of the range given, were justified, having regard to (i) an absence of any termination charge by Meteor to cover handset subsidies, (ii) its offer of an unbundled product, and (iii) its absence of any minimum contract period in respect of any of its plans; 

(d) If Meteor was prepared to run the commercial risk in respect of the possible recovery of the equivalent of a handset subsidy, then this was a matter for Meteor and it was not for the Evaluators to second guess the commercial merits of such a policy. 

(e) That as to handset subsidies, these were justifiably expressed in the Evaluation Report and are expressly related to consumer concerns with the indicator "terms of subscription" 

(f) that Meteor fared better than Orange because Meteor's subscription package did not have the Orange elements: there was no contract (with no minimum terms); it had an unbundled offering and, because there was no contract, no proposals to recoup the hand set subsidy. 

So as to consider the question of "Terms of Subscription" this was one of the indicators in the dimension "Evaluation of Services". The entire paragraph 5.3.4 was quite short, and stated: 

"The indicator 'terms of subscriptions' is evaluated on the basis of the intended contractual relationship between the operator and the customer. 

The proposals for subscription terms are assessed as relatively poor for both applicants. The short descriptions of subscriber aspects are of a general nature and could be generic to suit any developed country with a few modifications. Neither of the applicants had included a draft subscription contract. Both applicants welcome prepaid-customers which, from a contractual point of view, are loosely connected with the operator. 

For customers using the two bundled packages, Orange proposes an initial 12 months contract period, which may only be cancelled if the customer pays the charge to offset the cost of providing a handset subsidy. [See furthermore the supplementary analysis in appendix 5.3). 

Orange is scored with a "D" and Meteor with a "C". 

So far as the supplemental analysis at 5.3 is concerned, there is no suggestion that the Director was given any information to counter the conclusions stated in it. I did not hear from the Director as to what she understood this analysis to mean. But from a purely language point of view, it seems to me clear that it could only be understood to mean that the Evaluators thought Orange's position was not without a remaining question mark. It seems to me that this position is also supported by the Evaluators comments at the end of Part 8 of the Evaluation Report. 

It seems to me that it is not acceptable, for the purposes of an unbiased evaluation, for the Evaluators to say that everything which is put forward by any bidder must be accepted effectively at face value. Certainly, it must be accepted at face value as a starting point. The Evaluators appear to have accepted the absence of a twelve month contract as indicative of no contract existing, and appear also to have accepted without query that the 'terms and conditions" (even if simple) would not include any form of penalty, whereas some investigation of what was intended by Meteor, might well have generated answers to these questions. 

Nor do I accept that, in all circumstances, it is appropriate or proper or unbiased for Evaluators to adopt an approach that no questions are asked in circumstances where it may not be clear whether, for example, a tenderer intends to impose any kind of penalty on a person who, having accepted a subsidy so as to become a customer of the tenderer. It may well be that the bid is silent on the issue, but it does not follow that silence automatically means that there will be no charge, or no penalty, or in the alternative no loss to the tenderer. And it is the case that Mr McQuaid at least accepted, in hindsight, that questions ought to have been asked of Meteor. 

For the Director to say, therefore, that it is a purely commercial decision for the tenderer, and of no interest to the Evaluator cannot be a sustainable position. A simple question to Meteor, whom the Evaluators say (although this is disputed by Orange) they assumed would use handset subsidies, or their equivalent, would have elicited a sufficiently clear answer from Meteor on its intentions, and would have enabled the Evaluators to come to a view as to whether the Orange proposal was that much worse than what it was assumed Meteor's position was. Moreover, it cannot be reasonably stated that this is a purely commercial matter of no interest to a regulator. If the purpose of the evaluation and its supplementary analyses is to ascertain which is the better bid, if the matter does not arise under "terms of subscription" but is a commercial matter, it must surely arise under the business plan, and perhaps even under the financial or solvency aspects of the bid. If there were a significant amount of funds being paid over by way of handset subsidies or their equivalents, and these were being "lost" by chum or otherwise, because there was no term in the contract, the "loss" must surely be something of interest to the Evaluators, although of course it is not an issue which arises under "Subscribers Contracts." 

When paragraph 5.3.4 is analysed it is seem that: 

(a) the Evaluators considers both bidders to have relatively poor subscription terms; 

(b) the descriptions of subscriber aspects were of so general a nature as to be generic, in truth; 

(c) neither applicant included a draft subscription contract; (d) both applicants welcomed prepaid customers; 

From these descriptions, it is clear that there was nothing between the parties, on the face of it. 

The difference arises in respect of Orange's "bundled packages" only and no more. And of course Meteor also had unbundled packages, one more than Orange. If the "simple terms and conditions" included a penalty and bound the customer for a period of less than 12 months, while there would be no "annual" contract, it would not follow that the Meteor proposals should not have been subject to a similar analysis, and it would not follow that Meteor had no penalty clause whatsoever. 

There is no indication whatsoever that anything other than the unbundled factor of the Orange proposal made any difference to the score awarded. It is true that in the course of evidence, it was suggested by Ms Finn in particular that there were other factors taken into account in favour of Meteor. But if they were, two things are clear. One is that this was nowhere included in this paragraph of the Evaluation Report, and therefore could not be assumed to have been a basis for the decision, nor were these others matters drawn to the attention of the Director. And secondly, it is in my view doubtful if, under this particular heading -- as opposed to the marketing strategy heading and/or tariffs -- the other factors were actually taken in account. 

What was said above by Ms Finn makes it clear that, under this heading only, the 12 month binding contract "problem" was the issue of concern. It was not until later, she said, that the possible analysis was broadened out to cover other factors. It seems to me in these circumstances that, at the time when the Working Group awarded marks for this indicator, the other matters were not under consideration under this heading. Of course it could be said that the Director, when reading the report, would have before her all of the detailed information in the Meteor bid, and could have come to her own independent view that its information was sufficiently clear to establish that the matters contended for by Mr Hogan in his submission were supported. But even that, I think, is unsustainable, and it is likely that the Director, having read the Evaluation Report which she indicated she accepted would have drawn to Mr McQuaid's attention anything which she had considered which might be different from the contents of the Report itself, having regard to the words chosen by her in her note to Mr McQuaid of the 18 June. 

I am of the view that any reasonable person reading the analysis at 5.3 would come to the view that the contract position adopted by Orange was very questionable, legally and otherwise. 

I am also of the view that, given the context in which the reference to 5.3 is made, under the "subscription contract" heading, the exercise was not carried out for mere general knowledge purposes. If it were, it would either not be in the Report at all, or would not be tied in with paragraph 5.3.4 where specific reference is made to the supplementary analysis. One would also have expected a legal analysis, such as this, to have been carried out by the Director's eminent legal advisers, rather than by AMI, who did not claim any legal expertise. 

In light of the foregoing I conclude that the findings against Orange set forth in the supplementary analysis were highly adverse, and unjustifiably so, and that the actual award given was biased against Orange and favourable to Meteor. 

5. THE BUSINESS CASE SENSITIVITY ANALYSIS 

Meteor's business case was stated to "stand or fall on the supply of sufficiently high volumes of subscriptions and traffic at the expected commercial terms" it is said in the Evaluation Report (at p 69). At page 69, it is stated: 

"Meteor has presented a business plan yielding a significantly higher IRR . . . As the higher IRR is not based on a higher tariff level, Meteor's business is primarily sensitive to the actual demand and to the CAPEX Concerning the actual demand, the projected traffic volumes are the most critical factor, as Meteor has assumed a substantial increase over the planning period, partly on the basis of substitution for fixed network traffic . . . Meteor's business case stands or falls on the supply of sufficiently high volumes of subscriptions and traffic at the expected commercial terms." 

It is Orange's case that the Evaluators were biased in 

(a) failing to probe whether or not Meteor would actually obtain the high volume of subscription or traffic contended for; 

(b) assumptions were made where necessary to shore up obvious problems for 

Meteor in relation to these matters. 

In contrast, it is argued by Orange that the Evaluators reported Orange's business case to be "sensitive to the proposed handset subsidies in conjunction with the 12 months initial binding period for customers and the bundled packages which may not be a viable marketing mix throughout the planning period," although no evidence was tendered in the report, nor in the course of the hearing to support this contention. It was said in the Report that the material effect of the Orange risk would be either to increase the level of churn or to decrease the demand, and these would have a subsequent impact on the revenue streams projected by Orange. 

Orange say there was no comparable business case sensitivity carried out in relation to Meteor. It is argued by Orange that this was because the Evaluators: 

(a) did not know what Meteor's position was on handset subsidies; or (b) did not know what Meteor's proposals were in relation to any clawback of subsidy; or 

(c) did not know what impact a non clawback of a subsidy would have on the business case sensitivities. 

It is argued by Orange that there was no tenable justification for this approach, which it claims was entirely one sided. 

The Director's response to this is similar to the response put forward in relation to the indicator "Terms of Subscription", namely, that in a competition of this nature, the applications have to be taken at face value and the Evaluators could not press Meteor on the question of a supposed clawback when (a) Meteor indicated this would not be a feature of its contractual arrangements, or (b) merely because the other bidder's contractual arrangements featured such a clawback. 

I do not see this answer as being a response to what Orange complains of. It says that, having regard to the fact that they informed the Evaluators precisely of their intended clawback or penalty, they were adjudicated upon in a very strict way, and this was considered to be disadvantageous to Orange, although the comment in the Report cited above, concerning Orange, is nowhere supported by any evidence appearing in the Evaluation Report itself, nor was any witness asked to give supporting evidence for the conclusion. 

It seems to me that if the Evaluators (a) presumed that handset subsidies or their equivalent would be part of the Meteor plan, (b) there were to be no penalty clauses, (c) certain chum would or might take place (d) they did not know how the cost of such handset subsidies or their equivalent would be recouped, and (e) Meteor were, according to the Evaluators, dependent upon achieving sufficiently high volumes of subscriptions and traffic, then the Evaluators had to make some effort to see how the question of handset subsidies or their equivalent might impact on Meteor's business plan. 

I don't know what the answers might have been, but I do not have to decide this. While it is undoubtedly the case that the experts should be entitled to evaluate the bids as and how they please, that freedom must be circumscribed by compliance with what appears to be a requirement as to unbiased investigation. 

However, Meteor draw my attention to others aspects of the Evaluation Report. It points to the fact that "Sensitivity Analysis" is used in two difference senses in the Evaluation Report. The sensitivities are analysed under "Financial and Management Aspects" by reference to Table 7.15, and Meteor says that this analysis is carried out in respect of both bids, and it was concluded that the Meteor bid was less sensitive than the Orange bid so far as the assumptions in that Table are concerned. 

It is also said that Table 7.15 also took account of the respective parties being unable to meet their projected subscriber numbers and Meteor's financial plan was sufficiently robust to deal with a situation where it would not achieve its full customer target, but would achieve 25%. 

It seems to me that the exercises actually carried out by the Evaluators under this indicator are sufficiently unbiased and wide-ranging not to be subject to adverse criticism by this court. It is important, and has been recognised by many courts, that interference with specialised tribunals should only be in rather narrow circumstances, and the case law is very well established. I do not find that the approach of or the Evaluators was in any way biased on this matter. 

D. THE "IRISH TOUCH" 

This is not an issue which generated an award of marks in the tender process. In the course of the Evaluation Report, in several place, there is a mention of the fact that Meteor have given their application an "Irish Touch". It was alleged by Orange: 

-- (a) that no such "Irish Touch" characteristic was appropriate to consider in the context of a competition which was open to all corners, both Irish and foreign, and 

-- (b) that in any event there was no basis for supporting a so called "Irish Touch" save to slant the report in favour of Meteor, and to assure the Director that the Meteor consortium was an Irish one, being awarded an Irish licence. 

To understand the context in which the phrase appears, it is necessary to say where it arises in the Evaluation Report. The Report has an introductory section, which I have mentioned above, consisting of two sections, one concerning the Applicants and one concerning the philosophy behind the applications. 

The phrase the "Irish Touch" is found in the section dealing with the philosophy behind the application of Meteor, and is made in the context of an alliance with An Post. It stated: 

Under the Heading "The basic philosophy behind each application": "Moreover, Meteor has given its application the 'Irish touch', notably through the expected strategic alliance with An Post. This alliance is proposed to be the vehicle for a number of products and services to the mass market as well as one of the keys to the opening up of new types of distribution channels." 

It is submitted by Orange that the tenor of this introductory paragraphs to the Evaluation Report is such as to draw to the Director's attention a distinction between what the Evaluators considered to be an "English" bid (Orange) and what they saw as an "Irish American" bid, with a preference for the latter, (Meteor). 

Orange also argue that if the court comes to the view that this was the basis for this part of the report, then the entire process must be condemned, as being permeated by bias and alleges that the Defendants concede that if the attitude taken was as contended for by Orange, this would be the result. 

The Director argued that the use of the phrase "the Irish touch" was totally innocent and of little or no substance. Her argument was that the phrase meant nothing more than that one of the bidders, namely, Meteor, had shown better "local" knowledge, by being more aware of local or environmental issues, and had taken more preparatory steps in the matter, for example as to the acquisition of sites and an awareness of local environmental sensitivities. He said that Orange's contention that the phrase bore an unacceptable meaning was in consequence of a straining of the words. 

It was said that the Evaluators did not mean to have the words taken literally, but that its true reference was perfectly clear from the fact that Meteor was more prepared in two these two respects, and suggested that Mr Andersen's references to An Post being a State Enterprise should be understood by reference to his clarification that An Post offices are simply a familiar part of the infrastructure of communications in Ireland, and not that it was State owned. 

Meteor put forward a robust defence to this argument. It points to the fact that Mr McQuaid, Mr Andersen and Ms Finn all stated that the phrase meant no more than that Meteor was more prepared on local issues. It also argued that there was no prohibition in EU or other law against such preparedness being recognised, and finally Meteor says that Orange too recognised that it was important both to do the homework and be rewarded for doing so. 

It seems to me that these arguments both of Meteor and of the Director would be quite attractive, if they were reflected in the Evaluation Report. Although it is clear that the above extract speaks for itself, it is again the Evaluators suggestion that the rather simple words used, did not really mean what they said. Reading the words on their own, it seems to me that what I have to look at is to see whether the explanation for the use of the phrase ties in with what was stated, and whether it is fair to say that this is what the Director would have understood the words to mean. 

It is difficult to understand that the words: "Meteor has given its application the 'Irish touch' notably through the expected strategic alliance with An Post" means and was intended to be understood as saying that Meteor had done more preparatory work on site acquisition and on environmental issues, meeting with a pressure group, that is to say, something quite different to what the words actually say. What it does seem to suggest is that there is something else with which Meteor is involved, but that something else is (a) not worth stating, and (b) is far less important that the main basis for the "Irish touch" namely the "strategic alliance with An Post". If that something else, namely what is now contended for both by Meteor and the Director, was to be considered by the Director, where would she find the information? 

Taken on its own, I think while it might be biased in favour of Meteor, I can see no reason why even if the words apply to the strategic alliance with An Post, this would not be an added bonus for Meteor. No argument was made to me that an undertaking such as An Post is not entitled to enter into alliances with a company such as Meteor, or anyone else, although there was a suggestion that, because of the association between An Post on the one hand and the Minister on the other hand, the knowledge that An Post was operating in association with Meteor in this bid might be scrutinised. That however is a far cry from saying that the use of the phrase is biased in favour of Meteor. 

Placed however in the same introductory section of the Evaluation report as the rather negative words concerning the "one network" concept ascribed to Orange, the phrase takes on a slightly more biased flavour in favour of Meteor, but I propose to deal with the overall impact of these two matters later in the judgment. 

E. GUARANTEES 

This dimension ""Guarantees" generated some considerable debate. Under this heading Orange was given an "E" (the lower possible mark) and Meteor was given an "A" (the highest possible mark). It had a total weighting of 5%. There is a legal argument made by Orange in relation to the Director's entitlement to impose performance guarantees, to which I will return later, but so far as bias is concerned, the case made by Orange, [Young T18, p 56] is that while he understood why Orange was at the bottom of the fbarometer, it was wrong and biased that Meteor was awarded an "A" in respect of very small conditional performance guarantees, which would be of no meaning after 30 months. Orange gave no such guarantees (on its own admission). 

Orange say that in contrast to the "E" awarded to Orange for offering nothing, according to the Evaluators, Meteor were given a "C" for incorrectly filling in the mandatory table in relation to drop out rates and in the circumstances there is simply no explanation as to why Meteor did not also secure an "E", save bias by the Evaluators in its favour. 

As to the dimension, this was subdivided into these indicators: 

-- Performance targets 

-- Penalty amounts offered. 

-- Means of measurement 

-- Suggested procedures to remedy non-complying performance targets. 

The Report continues: 

"It has been decided that only performance guarantees in respect of commercial launch date and coverage would be considered in evaluating this dimension." So far as concerns Meteor, it was said: 

"Meteor commits itself to penalties totalling IR 5,100,000 and is for 'Performance targets' and 'Penalty amount offered' awarded an "A" Meteor has few remarks concerning "Means of measurements" and "Procedures to remedy non-compliance issues" and is for these two indicators awarded a "D" and a "C" respectively. 

The Director's response to this part of the Orange case is that Meteor did not get "to the top of the barometer' as was alleged by Orange, because the Evaluators awarded low scores in respect of two of the sub indicators, namely a "D" and a "C". 

The reason performance guarantees only covered the first 2.5 years, according to the Director, was because they were specifically related to launch of the network and initial rollout. It is argued by the Director that Orange made no proposal in relation to performance guarantees. It did not commit to any of the relevant sections of the tender on Guarantees, application and gave no commitments whether in relation to performance targets or otherwise in its bid. 

As to Mr Young's contention that the amount offered by Meteor was insignificant, it was argued that the amount would constitute a much larger percentage of the true expenditure, because it would payable by reference to a smaller amount than the 300 million stated, as it would be payable very early on in the roll out phase when something much less than 300 million in expenditure was involved. The amount was, in any event, significant. 

I am of the view that: 

(a) Orange did not offer any guarantees, whether of a performance nature or otherwise, 

(b) that the Rules of the Competition, and in particular the Questions and Answers concerning the terms and conditions of any possible licence, made it clear that the Director would not, in any circumstances, enter into any discussions or negotiations with either or any bidder prior to the completion of the competition, but that all bidders were free to make comment on the draft licence furnished. 

(c) In the circumstances set out at (b), it seems to me quite clear that Orange could have been under no illusion but that there would be no opportunity to enter any discussions about this dimension prior to the completion of the comparative evaluation. 

(d) It is also clear to me that Orange was relying on its claim that the Director had no statutory power to look for such guarantees. If Orange was wrong in relation to this, then having offered no guarantees, they could not expect to receive any consideration under this heading. 

But Orange say that the Director's powers are found only in Section 111 2B of the Act of 1983, which gives the Director power, after granting a licence to propose its re vocation or to revoke it, subject in each to the licensee having a right to make representations on that proposal, but that she does not have any larger power. 

The legal argument made on behalf of Orange is based on its contention that the Director did not have any statutory power to impose any performance guarantees whatsoever. It is said by Orange that it recognised this, and indicated to the Director that it wished to discuss its performance guarantee concerns. No such discussion took place. This last matter is conceded to some extent by the Director in that Mr McQuaid and Mr Andersen stated that they thought Orange wished to discuss this aspect only after the ranking were announced. (T.32, p 102). Orange state that this did not exonerate the Evaluators from seeking clarification on the matter, save for bias. 

Orange's claim that the Director has no power to impose guarantees is based on its claim that a review of her functions and powers under the legislation makes it clear that her power is limited in a significant way. Essentially Orange say that the Director has power (a) to grant a licence, and (b) to revoke a licence, although in both cases she is obliged to notify the parties of her intention to do either, and is obliged to give the parties an opportunity to make representations in respect of either proposal. Orange argues that this scheme is one by which Parliament has, in effect, elected to control a party who has secured a licence but has failed to comply with its terms. 

The Director relies on Section 3(2) of the Act of 1996 to give her power to do all "things necessary or expendient" in connection with her functions and her Counsel says that this clears the matter entirely. He also says that a distinction has to be drawn on the one hand between powers which she seeks herself to impose, which might in certain cases, be limited, and her entitlement to enter into agreements where offers, such as performance guarantees, have been volunteered. He says neither bidder was obliged to offer performance guarantees and the tender could be won without them. In such circumstance, he said, there is nothing to prevent the Director from entering an agreement/licence which incorporates terms arising from the proposals made. In other words, she does not herself in such circumstance seek to impose a term, by exercising a statutory right to do so, but rather accepts an offer made by an offerer, and incorporates this into a contract, of which she is a party. 

Meteor through Mr Cash, SC, made a submission on this issue also, to this effect, namely: The Director has clear power under Section 3(2), in line with what is contended for by counsel for the Director. There is nothing to prevent her from entering into an agreement or licence of a commercial nature, which includes in it a term which is of such commonality that it would be ludicrous to prevent her from doing so. Moreover if she considered it expedient to impose terms less draconian than those prescribed for revocation, then Section 3(2) is sufficient to vest in the Director such an apt and suitable power. 

Moreover, the position is different, he says, if such a guarantee is offered by Meteor, as here, because the Director is not herself imposing a term, but is merely responding to a term offered. 

I am not certain that this last argument namely that she is entitled to enter any agreement where an offer has been made, is one which can succeed on the present set of facts. 

Under paragraph 1.6.2 cited above of the tender document, the Director made it clear she intended to convert any offer made into a term of the licence. The answer given to Question in February 1998 made it clear just how widely she intended to invoke 1.6.2. So long as she both expected the parties to include performance guarantees and intended to convert these into a term in the licence, it is difficult to accept that this was a mere offer made by a party to which the Director was simply responding. 

However, on the powers contended for pursuant to Section 3(2) namely that she is entitled to do anything that is expedient to the exercise of her functions, it seems to me that this argument is well grounded. It is true of course that she has power to revoke, and that this may well be the primary means for controlling licensees, as intended by Parliament. But if it was intended that the power was restricted to revocation, then it seems to me that the terms of Section 3(2) would of necessity have to carry some limitation, and it does not. Nor indeed does the revocation section carry any limitation or protection from Section 3(2). 

And I am influenced by Mr Cush' s argument on behalf of Meteor that such performance guarantees, being a regular part of commercial life, it would be difficult indeed to suggest that the Director should not benefit from them. I am of the view that the terms of Section 3(2) are wide enough and the entire Regulatory scheme drafted in such a manner as not to prohibit the Director from seeking such performance guarantees, and they seem to me to be particularly apt in the start up years before full roll out of a network is complete. I do not find that the Evaluators approached the matter in an incorrect or illegal manner and I find that they were not biased in the approach adopted. 

F. FAILURE TO PROBE THE AT&T WITHDRAWAL 

The background to this allegation of bias arises from the fact that when the Meteor application was filed, it was accompanied by a letter dated the 6 April, in which the statement (already quoted in full above) appeared, including: 

"AT&T will not be taking up the equity interest . . ." 

It would appear that, for whatever reason, the Meteor application was prepared and finalised at a time when it was agreed or thought likely [it is unclear which] that AT&T would have an equity share in the consortium, of 10%, with an option to acquire a further 20% in certain circumstances. The application was remitted to the Director with the unaltered position of AT&T still remaining in the bid documents. I assume, for the purpose of this judgment, that there was simply an insufficient amount of time, coming up to the closing date, to alter the application so as to delete all references to AT&T as an equity share holder in the consortium. The Evaluators recognised in the Evaluation Report itself that this left them in a difficult position, being faced with a bid which had a number of references to AT&T, in that shareholder capacity, but with the job of evaluating the bid without any AT&T equity involvement. 

It was decided by the Evaluators: 

(a) that they would evaluate the bid as if AT&T's name had not appeared as a shareholder in the consortium at all; 

(b) after consideration of the matter at a Steering Group meeting of the 23 April, 1998, that is to say, the first Steering Group meeting after the closing date for bids, that no questions would be put to Meteor on the reasons for the withdrawal of AT&T. What the Steering Committee actually record is: 

"AMI's draft written questions to both applicants were reviewed and slight amendments made. It was greed that applicants be asked to answer certain priority questions by the following Wednesday, with other questions to be answered by Friday. In relation to the AT&T involvement in the Meteor consortium, it was agreed simply to ask in what proportion the 10% equity attributed to AT&T would be taken up by the other consortium members. Account would be taken in each evaluation group of the fact that AT&T were no longer involved in the consortium and any reference in the application would be disregarded." 

And in addition, there is one other matter recorded on the AT&T issue under Item 8 -- Other issues arising from reading of applications: 

"The AT&T issue was again mentioned under this item. AMI said that in a beauty contest only the material contained in the application and clarifications contained in answers to written questions could be evaluated. For this reason no further information should be sought from Meteor on this issue, other than the question of equity." 

Orange accepts that it was a reasonable approach of the Evaluators to ignore all references to AT&T in the bid in seeking to deal with an application which had a large number of references to AT&T in it. However, Orange contend that it was biased of the Evaluators to fail to probe the reason why AT&T withdrew. It was contended at considerable length on behalf of Orange, both by Mr Young and by Mr Wigglesworth that there was an inexplicable failure on the part of the Evaluators to explore why AT&T withdrew and also that it was incumbent on them to do so, even if there had been no mention in newspapers of a statement allegedly made by a Mr Woo of AT&T in connection with the bid, alluding to a claim that AT&T had not had an opportunity to carry out a due diligence exercise. 

The Director defended her position by saying that such exploration by the Evaluators would infringe the Rules of the Competition, in that it would 

(a) permit new material to be introduced by Meteor; 

(b) hinder the Evaluators in ensuring that one of the existing consortium members would take up the AT&T share; 

(c) allow a situation to develop where an outside shareholder might take up the 10% previously apparently held by AT&T. 

It was submitted by Orange however, that: 

(a) the Evaluator's contention that they were at pains to seek to "box in" the existing members of the consortium, and 

(b) the Evaluator's contention they were at pains to prevent a situation developing where an outside shareholder could take up the 10% AT&T equity, if there were any probing, is entirely at odds with the covering letter to the bid which made it clear that the AT&T shareholding would be taken up "by the existing consortium members". This is what the letter of the 6 April states. Orange say therefore that any attempt by Meteor to introduce a new shareholder could be readily rejected by the Evaluators, as being clearly new material outside the express scope of the Meteor bid. 

It is further submitted by Orange: 

(c) that the Evaluators' contention that they did not wish to allow Meteor smuggle in "new material" by means of the back door did not hold weight, since the Evaluators were well in a position to ignore any such new material, or distinguish new from existing material, and had done so on many occasions. 

(d) that the Evaluators' contention that probing would have permitted Meteor to present the withdrawal of AT&T in the best possible light, was an untenable contention, since the absence of any probing meant that the withdrawal was, in the event, presented in the best possible light, that is to say in an entirely neutral light; 

(e) That although the stated position of the Evaluators was that they ignored the references to AT&T, nevertheless the Evaluators failed to do so. It is argued by Orange that the Evaluation Report (at p 58) indicates that 5 of Meteor's 18 key personnel were going to come from AT&T. Orange contend that the attempt by witnesses for the Director to suggest that these 5 personnel were not those same AT&T originally included in the Meteor bid, when it provided for an AT&T equity involvement, was untenable. 

Orange have one further this argument arising from the AT&T position. While the AT&T withdrawal was dealt with in the above manner by the Evaluators, nevertheless, certain continuing input was to come from AT&T. In relation to that input, Orange alleges that the Evaluation Report was biased in that it wrongly viewed what was on offer from AT&T as having some value. The Report states that "AT&T had provided a signed commitment to back up the consortium", which is the letter of the 6 April. The conclusion drawn by the Evaluators in the Report was that "although the terms and conditions of the commercial agreement were not presented" the information provided on the participation was considered "credible ". It is submitted by Orange that this statement suggests to the Director that the Evaluators knew of or had been told that a commercial agreement in fact existed between the parties, and only its terms were not "presented", ie, furnished to the Evaluators. 

It is suggested there was no evidence whatsoever of any concluded agreement or terms of any agreement existing between Meteor and AT&T, and Orange argue that there was no tenable justification furnished in evidence to the Court for the conclusion that AT&T's participation was "credible". 

In the circumstances Orange says the Court must be compelled to find that its inclusion in the Evaluation Report was for the purposes of providing comfort to the Director in relation a very uncomfortable situation for Meteor, bearing in mind that it was accepted by the Evaluators that the absence of AT&T created a problem for Meteor. 

So far as this last matter is concerned, the Director responds by arguing that the bona fides of the AT&T involvement in Meteor's rollout was evidenced by the presence of a senior AT&T executive at Meteor's oral presentation. Even if the Evaluators could have taken into account the comments of Mr Woo (referred to above), such presence would have negated any doubts which the Evaluators had about its stated involvement in Meteor's business plan. 

It is also argued on behalf of the Director that the reference to AT&T personnel was a reference to their absence (although it is suggested this is inelegantly expressed. It is said the Evaluators had every justification to inquire about who within the consortium was taking up the AT&T shares, since the Evaluators had to know which member of that consortium was taking up the share. It is said this is entirely different from probing the withdrawal. 

This last submission on behalf of the Director concerning the AT&T personnel appears to me to be at odds with what was said by Mr Andersen in evidence. He was unable to say from where the information concerning the AT&T personnel was acquired and the Orange argument appears to be more in line with the fact that in the Meteor bid there was a specific reference to five key personnel coming from AT&T, at a time when AT&T had an apparent equity involvement in Meteor. It would be quite coincidental, and nowhere supported by any evidence, to find that another five key personnel from AT&T were being made available as part of AT&T's technical commitment as described in the covering letter of the 6 April. 

Meteor argued essentially (a) that it was up to the Evaluators to decide how they would approach the question of the withdrawal of a party in the circumstances in which this arose in the case of AT&T, (b) that there was credible evidence from Professor Braunstein, a person of some considerable experience in the evaluation of tenders such as this as to the appropriateness of the manner in which the Evaluators actually dealt with the matter, and (c) that the Evaluators were entitled to have regard to the presence of an AT&T party at the oral presentation. 

It seems to me that the Steering Group makes it clear, and it was confirmed both in the Evaluation Report and in the course of evidence from the Director's witnesses, that the withdrawal of AT&T was, to say the least, difficult and embarrassing for Meteor. It would have been easier for everyone if it had been possible for Meteor to have redrafted its application so as to delete all references to an AT&T equity involvement prior to the closing date and the bid confined to the continuing technical involvement reflected in the covering letter. But the very late withdrawal of AT&T, which must have been the case, does not mean that this was in some way sinister, and this despite Mr Woo's alleged statement concerning due diligence. With the best possible intentions in the world, a large corporation may well enter and continue negotiations right up until the very last minute, and for a myriad of reasons, withdraw from negotiations, even for the very simple reason that the lawyers have not had sufficient time or opportunity to finalise matters. 

The Evaluators were entitled, in my view, both to ignore the appearance of AT&T as an equity partner -- which Orange accepts -- and also to continue the evaluation on the basis that the withdrawal would not be probed. The matter was fully considered by them and the approach adopted, according to the minute of the Steering Committee set out above after the advice of Mr Andersen on the matter. It is not, in my view, for this court to say that, from several possible approaches suggested by Orange, AMI or Meteor, only one particular approach is acceptable. 

In my view this approach was not biased in favour of Meteor nor against the interests of Orange. 

G. AN POST 

An Post came into the picture as part of the Meteor proposals on an overall distribution scheme. The alliance was presented as "a cornerstone" of its distribution plan. This distribution plan was evaluated by the Evaluators under the dimension "Marketing" and more specifically under the heading "Strength of Distribution Channels". Under this indicator, Meteor were awarded a "B" and Orange was awarded a "C". 

Orange's case on this is as follows: 

The Evaluators' Report (page 69)) identified and found that Meteor's business case was dependent on obtaining its proposed volume of subscriptions and traffic. What the Evaluation Report actually stated, vis a vis the Meteor business plan was: 

"The business case stands or falls on the supply of sufficiently high volumes of subscriptions and traffic at the expected commercial terms." 

While the An Post issue is raised also in a serious manner under the reasonableness claim, having regard to the above extract, it is Orange's case that the An Post arrangements were deserving of significant probing, that no such probing took place and that the Evaluators were biased in favour of Meteor in failing to probe while considering Orange's business plan as not being as favourable. 

Orange says that the An Post distribution plan was called a "strategic alliance" and it is argued by Orange that if it did not, in fact, exist, then the Evaluators should have been gravely concerned about this, given that the alleged strategic alliance was mentioned in terms which made it clear it was a cornerstone of Meteor's plans, in the bid document. Orange say that, coupled with the AT&T intended involvement and its sudden withdrawal, An Post was presented as being Meteor's "strategic partner" and that absent the AT&T equity involvement, its bid was significantly suspect, since the dual AT&T and An Post involvement were crucial to its application. 

It was clear both from the Evaluation Report, and from the evidence tendered, that there was no commercial arrangement in existence between An Post and Meteor, or no form of concluded agreement. Neither were any signed heads of agreement in existence. 

Orange say that, contrary to what ought to have occurred, the Evaluators proceeded on the basis that the An Post idea was a good idea. Orange say that while it was suggested in the evidence by Ms Finn and by Mr Andersen that that idea gave Meteor only a slight advantage, nevertheless the actual Report relies substantially on the An Post alliance as giving Meteor a significant advantage. So far as the Evaluation Report is concerned, the following extracts are relied on by Orange as evidencing the substantial reliance on An Post: 

(a) In the introduction section of the report under the heading "The Applicants" it is stated: "Meteor has entered into negotiations on a strategic alliance with An Post;" 

(b) Under the same introductory section of the Report, under the heading "The Basic philosophy behind each application" stated: 

Moreover, Meteor has given its application the "Irish touch" notably through the expected strategic alliance with An Post. This vehicle is proposed to be the vehicle for a number of products and services to the mass market, as well as one of the keys to the opening up of new types of distribution channels." 

(c) Under the heading "Strength of distribution channels (5.2.5)", it is stated: "Meteor has planned a comprehensive network of channels consisting of the 1900 An Post post offices spread over the country, "Meteor is awarded a "B" as it has carried out more preparatory work and has developed a new distribution channel in the form of An Post which fits well into Meteor's mass market approach." 

(d) Under the heading "Approach to the mass market (5.2.8)"' it cites from Meteor's bid as follows: "Meteor will provide accessible services and customer care through innovative channels in the rural and urban areas of Ireland . . ." and further states: "Furthermore, Meteor has planned a comprehensive distribution channel network also covering rural areas through a strategic alliance with An Post, . . .". In the Summary Report furnished after the oral presentation, and before the Director when she made her decision to accept the Evaluation report, the following comments are found as to the An Post distribution involvement: 

"Meteor will set up a nationwide distribution network. Through its proposed strategic partnership with An Post, Meteor will have a presence in every town in the country. 50% of the public visit their local post office at least once a week." 

In the same summary, in answer to a question posed by the Evaluators Meteor is recorded as: "Meteor replied that the An Post outlets were a cornerstone of its plan and that outlets would be used to promote and publicise the brand." 

Orange point to the fact that Mr McQuaid conceded in evidence that the Evaluators failed to probe whether or not the supposed agreement would be beneficial as a distribution plan in that the Evaluators did not assess whether or not Post Offices would be appropriate places for distribution of phones. ET.33, p 671. 

On Meteor's behalf Professor Braunstein of the United States suggested that Post Offices would be used mainly for prepaid cards. Orange say in answer to this that such prepaid card offerings amounted to 25% of Meteor's proposed business plan, and therefore that the cornerstone of its distribution network appears to be directed to only that 25% customer base. 

It is also contended for by Orange that there was no attempt to investigate the problems for Meteor's use of Post Offices in areas of the country for which Meteor was not providing coverage. Further, they allege an inconsistency between what was said in the Meteor bid and in a letter of the 1 May 1998 from Meteor to the Director, and the position presented at the oral presentation by Mr Hynes of An Post. Again this inconsistency, say Orange, was not probed. [T.33, p 6'7]. 

Orange submitted that there was no basis for marking Meteor up on the basis of this so-called plan and marking Orange down for not having such a similar plan in place, in the absence of any probing of the plan itself, and that this evidenced one-sidedness and bias on the part of the Evaluators in Meteor's favour. 

It was conceded by the Director that Mr McQuaid agreed that little attention was paid to the letters in the appendix (including the one of the 18 March from An Post). That letter set out, in general, the type of services which An Post subsidiaries provide, although not on an exclusive basis. 

He also suggested that considerable and justifiable weight was given to the fact that an An Post representative was in attendance at the oral presentation, and had indicated that the approach to Meteor had taken place at the initiative of An Post. 

But the Director contends through Ms Finn and Mr Andersen that the amount by which Meteor were marked up having regard to the proposed An Post distribution plan was marginal. 

One or more witnesses for the Director stated that they gave consideration to the fact that not all Post Offices would be used. The Director also argues that the alliance was only one aspect of the Meteor distribution plan. As to the absence of any signed agreement, it is said: 

(a) the Evaluators were well aware that the alliance had not come to fruition, and described it therefore as "proposed"; 

(b) in the real world it takes time for major enterprises to consummate legal agreements in the nature of joint ventures; 

(c) the fact that this had not been done as at the date of the opening of the bids could give no rational grounds for concern. 

The Director also argues that it is fallacious for Orange to allege that An Post could only be used for the sale of prepaid packages, and it is undoubtedly the case that the Meteor bid makes it clear that a wide range of plans would be available from Post Offices. 

As concerns coverage, the Director argues that since most post offices are in locations where there are at least significant amounts of population, the fact that Meteor chose (like Orange) not to provide coverage in remote geographical areas is of no significance. 

Finally, the Director argues that as to the alleged inconsistency between the letter of the 18 March 1998 and the presence of the Chief executive of An Post, the Evaluators were entirely reasonable in relying on the latter as (a) Mr Hynes' position in the organisation bore no comparison to a division manager such as the letter writer, and, being later in time, Mr Hynes' description of the state of play clearly reflected the more up to date evaluation of the An Post -- Meteor relationship 

Meteor argue that the An Post issue is really a reasonableness issue rather than a bias issue, and that there was evidence before the court from Professor Braunstein that he considered the approach by the Evaluators to be "exactly the right set of standards to use." [T.41, p 66] I have to say that I do not quite understand what is meant by this answer, but take it to mean that he considered the An Post issue not to have been dealt with in a biased way. 

My conclusion in relation to the issue of the An Post distribution plan and its place in the overall Evaluation Process and in particular as to whether any bias existed in the approach of the Evaluators to Meteor's proposals is as follows: 

(a) The An Post involvement was one which was attractive to the Evaluators, and they were fully entitled to be attracted to it. 

(b) If the An Post plan had been at the stage that heads of agreement had been reached, even expressed in conditional terms, I can see little objection to the Evaluators considering the plan to be a significant contribution to Meteor's bid. 

(c) But the objection which is taken by Orange to the An Post involvement at the bias stage is based on the fact that, absent any terms or conditions being in existence, and being only a proposed plan, it should have been probed, rather than taken a mere face value. Orange's argument is based on the combination of the fact that (i) Meteor based its bid fairly and squarely on an equity involvement for AT&T, and (ii) Meteor also, in combination with (i) had, as the cornerstone of its distribution plan, a proposed or possible strategic alliance with An Post. 

(c) Orange's argument is that, when one strategic limb of the foundation to its bid is removed, as occurred in the case of AT&T (whose withdrawal was also not queried or probed), then it was essential to probe the strength of the An Post "alliance" to see if, in fact, it had the value ascribed to it by Meteor. 

(d) There is no doubt but that it was not probed, as to value. It was said to be a "good idea". While the Report refers to all 1900 An Post outlets, it was said in evidence that only some reasonably smaller number were considered as likely outlets. 

(e) Of course, the court is at the significant disadvantage of not having any record whatsoever of the decision of any of the Working Groups on this, or any other issue, and it is scarcely surprising if witnesses, as is admitted in the written submissions of the Director, in being asked to recall matters arising well over one year ago, cannot recall with certainty the consideration given to the matter. 

(f) I accept, so far as it goes, the veracity of witnesses recollections on the matter. But it seems to me to be entirely at odds with what is actually said, both in the Evaluation Report and in the Summary report of the oral presentation. It is difficult to reconcile the clear statements in these reports, concerning the extent of the use of the entire Post Office range of outlets, with statements that, in fact, a much smaller range was actually considered at the Working Groups. 

(g) Given the extent of the exchanges on the draft reports between Dublin and Denmark, I find myself in difficulty in accepting fully the recollection of the witnesses, in the absence of any written documentation and in the face of the unqualified nature of the Evaluation report statements. I find that the report concluded that, so far as An Post is concerned, there was to be use of all 1900 post office outlets, that the An Post alliance formed the basis for a very favourable result to Meteor, that there was, in fact, no probing of the value of this distribution plan, in the absence of any documentation confirming its legal basis, and that the Evaluators used this alliance in support of its position in favour of Meteor and against Orange. 

I reject the contention of the Director that the Evaluators were entitled to have regard to what is submitted to be the "up to date" position of the An Post Meteor strategic alliance as stated by Mr Hynes at the oral presentation because this seems to me to be the very thing which the Evaluators have said cannot be done, ie, new material taken into account after the closing date. However, does all of this amount to bias again Orange? I think not. I am of the view that the An Post matter is a pure or mainly reasonableness issue and not a serious bias issue, and I propose to deal with it under that heading. 

H. NATIONAL ROAMING 

Roaming is a concept by which one service company operating in one area makes arrangements with a provider of a corresponding service in an adjoining or more remote area by which the customers of the first company may "roam" on the network of the second company, usually for a fee. In the context of mobile telephony, this usually occurs where one company -- for whatever reason -- does not have sufficient network coverage of its own to service all its customers' needs. In the absence of a roaming arrangement, a person making a call may lose the call if he travels outside the network of his provider or server company and there is no arrangement in place with another company which permits a seamless move for the call from one area to another. This is my understanding in simple terms, of what roaming is and why it is needed at times. 

A more usual occurrence might be where a customer in Ireland wishes to make a call on his phone to, say, England. He may not be able to do so unless there is an arrangement in existence with another mobile phone service provider on whose network he is permitted to roam, in exchange for a fee. A corresponding situation might be where a caller phones while travelling between Cork and Kerry, but there is no coverage in Kerry by his service provider. In the absence of roaming arrangements, the call will be lost on moving into the unserved area. Other examples equally come to mind. There are, in the event, two types of roaming, national and international. 

It is likely that the need for national roaming is more urgent, for a new service provider, while that company is getting its own network up and running, although, depending on the extent of that network, national roaming might be needed or desirable even after that time. This aspect of Orange's claim concerns only national roaming. It is important also to point out that, in some countries, national roaming can be imposed by legislation, by which is meant that each of the operating companies is obliged to permit roaming on its network by other companies' customers, and vice versa. Such an arrangement does not exist in Ireland, and during the course of the Questions and Answers in February 1998, referred to above in when the issue of compulsory national roaming was raised, it was made clear by the Director that Applicants should not assume that any national roaming arrangements would be imposed. 

Notwithstanding the foregoing, bidders were free to enter into national roaming agreements, if these could be negotiated with the two incumbent companies, and were free to include in their bids, information on such national roaming arrangements. But it was made clear in the tender document that national roaming could not be utilised by the bidders for the purpose of meeting the minimum coverage requirements imposed upon them by the tender. 

Against that background, Orange submit that Meteor's bid was reliant on national roaming, notwithstanding that Meteor sought to suggest otherwise. It was submitted by Orange that there are numerous references to national roaming in the Meteor bid. They say that despite this, it is unclear what the Evaluators thought the Meteor bid was saying in relation to national roaming. 

Orange point to the fact that the minimum coverage requirements for the licence were 80% of population after 4 years. Meteor were required to build out a network to that extent. They were evaluated as providing 85% coverage after four years (being static thereafter). Orange say it is to be assumed that, having regard to the bid terms, Meteor intended to utilise national roaming in some form and it is suggested by Orange that Meteor's business case could not be supported, in terms of high volume of subscription and traffic, if it was to be so dependent on national roaming, when both the incumbents, Esat and Eircell, were already established on a nationwide basis and would have no reason, absent legislative compulsion, to enter any such arrangement with Meteor. It is alleged by Orange that the Evaluators failed to appreciate this matter and failed to see or assess its impact on customer perception of the offerings of Meteor and on its marketing case. 

It is alleged by Orange that questions should have been put to Meteor. [T.25, p 671, and that the failure to do so was bias against Orange and in favour of Meteor. 

The Director says that as to bias, and national roaming, it was clear from the Meteor bid that Meteor was not, in fact, relying on national roaming to achieve either (a) the minimum coverage or (b) its total planned coverage, and that therefore no question of bias arises. Meteor supports this contention and says further: 

company and there is no arrangement in place with another company which permits a seamless move for the call from one area to another. This is my understanding in simple terms, of what roaming is and why it is needed at times. 

A more usual occurrence might be where a customer in Ireland wishes to make a call on his phone to, say, England, he may not be able to do so unless there is an arrangement in existence with another mobile phone service provider on whose network he is permitted to roam, in exchange for a fee. A corresponding situation might be where a caller phones while travelling between Cork and Kerry, but there is no coverage in Kerry by his service provider. In the absence of roaming arrangements, the call will be lost on moving into the unserved area. Other examples equally come to mind. There are, in the event, two types of roaming, national and international. 

It is likely that the need for national roaming is more urgent, for a new service provider, while that company is getting its own network up and running, although, depending on the extent of that network, national roaming might be needed or desirable even after that time. This aspect of Orange's claim concerns only national roaming. It is important also to point out that, in some countries, national roaming can be imposed by legislation, by which is meant that each of the operating companies is obliged to permit roaming on its network by other companies' customers, and vice versa. Such an arrangement does not exist in Ireland, and during the course of the Questions and Answers in February 1998, referred to above in when the issue of compulsory national roaming was raised, it was made clear by the Director that Applicants should not assume that any national roaming arrangements would be imposed. 

Notwithstanding the foregoing, bidders were free to enter into national roaming agreements, if these could be negotiated with the two incumbent companies, and were free to include in their bids, information on such national roaming arrangements. But it was made clear in the tender document that national roaming could not be utilised by the bidders for the purpose of meeting the minimum coverage requirements imposed upon them by the tender. 

Against that background, Orange submit that Meteor's bid was reliant on national roaming, notwithstanding that Meteor sought to suggest otherwise. It was submitted by Orange that there are numerous references to national roaming in the Meteor bid. They say that despite this, it is unclear what the Evaluators thought the Meteor bid was saying in relation to national roaming. 

Orange point to the fact that the minimum coverage requirements for the licence were 80% of population after 4 years. Meteor were required to build out a network to that extent. They were evaluated as providing 85% coverage after four years (being static thereafter). Orange say it is to be assumed that, having regard to the bid terms, Meteor intended to utilise national roaming in some form and it is suggested by Orange that Meteor's business case could not be supported, in terms of high volume of subscription and traffic, if it was to be so dependent on national roaming, when both the incumbents, Esat and Eircell, were already established on a nationwide basis and would have no reason, absent legislative compulsion, to enter any such arrangement with Meteor. It is alleged by Orange that the Evaluators failed to appreciate this matter and failed to see or assess its impact on customer perception of the offerings of Meteor and on its marketing case. 

It is alleged by Orange that questions should have been put to Meteor. [T. 25, p 67], and that the failure to do so was bias against Orange and in favour of Meteor. 

The Director says that as to bias, and national roaming, it was clear from the Meteor bid that Meteor was not, in fact, relying on national roaming to achieve either (a) the minimum coverage or (b) its total planned coverage, and that therefore no question of bias arises. Meteor supports this contention and says further: 

(a) that there was nothing in the Evaluation report to suggest that the Evaluators interpreted the Meteor coverage as being dependent on national roaming. 

(b) there were explicit statements both in the Meteor bid and in the oral presentation that Meteor was not so dependent; 

(c) that it would be wholly wrong for the Evaluators to interpret Meteor's application as being dependent or national roaming or to make any assumption in that regard. 

(d) there was no basis on which the court could conclude that the Evaluators acted incorrectly in relation to the Meteor proposals so far as national roaming might impact on them; 

In the course of submissions, Orange relied on an extract from the "Tariffs and Marketing" section of the Meteor bid. The particular statement read: "As Meteor rapidly builds out its network, the need for national roaming agreements will be reduced but not eliminated." It was argued by Orange that this statement made it clear that Meteor intended at all times to have a dependence on national roaming. Meteor argue that this statement has been taken out of context by Orange, cannot override the clear and explicit statements in the Technical Section of Meteor's bid, and that properly understood all that it means is that Meteor recognises the desirability of national roaming agreements if they can be negotiated, so long as there is any area of the country which is not covered by Meteor's proposed roll out. Meteor argues that it recognised the uncertain nature of negotiating roaming agreement, and since it clearly recognised this, it would make no sense to be reliant on those very agreements for its own plan. And finally Meteor says that its financial plan was in no way dependent on national roaming, and that suggestion that it was, is without foundation. My conclusion on this aspect of the Orange case is that there is no evidence of bias on the part of the Evaluators in relation to national roaming. 

Although I accept that parts of the Meteor document could be interpreted in a particular way, I am satisfied that a more sensible reading of the document -- which also seems to be the manner in which it was read by the Evaluators -- makes it clear that, so far as technical roll out was concerned, Meteor was not dependent on national roaming arrangements existing, so far as its minimum coverage was concerned. Nor am I satisfied that, even in relation to its full coverage over the planning or roll out programme it was dependent or reliant on national roaming. I am satisfied that the Evaluators did not themselves consider that Meteor was so reliant, and I am of the view that they rightly came to this view. In the circumstances I find no bias on the part of the Evaluators in respect of national roaming. 

I. CAPITAL EXPENDITURE (CAPEX) 

Orange contends that the Evaluators failed to notice or ignored the difference between the capital expenditure (capex) per traffic minute for Orange and Meteor, in that Orange's capex per traffic minute remained 3 times as high as that of Meteor over the 15 year period of the anticipated licence. Mr Young on behalf of Orange said that these figures should have rung alarm bells, but the evidence from Mr McQuaid [T.33, p 41] was that the Evaluators simply accepted the assumptions underlying the Meteor projections at face value. Orange submit that this was a biased approach and an attempt to shore up any problems for Meteor. 

The Director says that there is no explanation given by Orange as to why alarm bells should have run, and says that in any event, the figures were, consistent with Orange's relatively capital intensive rollout plan, which was heavily reliant on DCS. The Evaluators were concerned, not with the fact that Orange's CAPEX was high relative to Meteor's, but rather that it was high in its own right, ie, that it tended to over-invest in its proposed network. 

The Director also argued that acceptance of the underlying assumptions was quite proper as there would be neither the time nor the necessity to investigate the underlying assumptions. 

Meteor argue that no bias exists under this heading. It points to the fact that the Evaluators took the initial view as to the reasons for the higher figures from Orange, but did not allow the matter rest at that. Rather, the Evaluators carried out a supplementary test, which evidenced a preparedness on the part of the Evaluators to investigate this matter fully. 

I find I am in agreement with this last submission, and there was no bias on the part of the Evaluators as to the manner in which they dealt with this heading. Again, it is indicative of a difference in approach, in a situation where more than one approach is utterly acceptable. 

J. CHANGES TO THE DRAFT REPORTS 

Another of the serious claims made by Orange on the issue of bias was that alterations were made to the early drafts of the Reports in order to obliterate or mask an otherwise biased approach of the drafters. To understand this, one has to know something about how the drafts of the Reports apparently came about. 

(a) There were 12 Working Group meetings on the 5, 6 and 7 May 1998. These were the Working Groups which I have previously mentioned. Each meeting took place over a two or three hour period from 9.00 am to 5.00 pm, one following on from the prior one, but tariffs were allocated two separate 2 hour periods, because of the importance which the Evaluators attached to tariffs. 

(b) Each of these meetings was chaired by a chairman, an AMI appointee! representative. The only chairman who gave evidence was Michael Andersen, who himself chaired one working group, that on financial sensitivities. Most of the meetings were chaired by Michael Thrane, another member of the AMI team. He did not give evidence. 

(c) So far as Mr Andersen was concerned, he personally drafted that portion of the draft report which covered the work of the working group which he chaired. He did so, he said, from a combination of memory and some short notes he had of the meeting and he did the work immediately after the meeting, when he returned to Denmark. He gave evidence that he assumed that the other chairman did the same, with the assistance of others in the AMI team or their employees or consultants, but did not know for certain that this was so. 

(iv) Unfortunately, the Court did not have before it any of the notes taken at these working group meetings by any of the chairmen, nor even any of the decisions made by the working groups. 

(v) There was available three charts, of the flip variety, on which were written sets of indicators, awards and weightings. The evidence was that these were probably made up at the commencement of 3 of the Working Groups, or just beforehand. 

Before considering these in detail, there is one more matter which may be relevant for a consideration of these complaints. While it was originally intended that the Chairman of each of the working groups would maintain the minutes of those groups, and may indeed have done so, all of the working documents of AMI were destroyed, in the sense that they were either shredded or in some other way disposed of, either after the first drafts of the report were prepared, or else after AMI considered (having consulted with the ODTR) that its contribution to the competition had come to an end. 

It appears to be the case that AMI took these steps, or at least the last step, at a time when it thought that the Director's office had suitable or appropriate records of all material data concerning the competition. What however, is very clear is that there was, at the time when these proceedings were commenced, and probably for some time before that, and certainly well prior to the date of the refusal by the Director to grant a licence, no records of the actual decisions of the Working Groups, save for the first drafts of the Evaluation Report (which do not on their face purport to record the findings of the Working Group, as such), and of the above charts (which were discovered somewhat late in the day after I commenced hearing the case. 

In the absence of any records of the Working Groups, and in the absence of any notes of the Working Groups, it would have been very helpful to the Court to have had the evidence of Mr Thrane who chaired the vast majority of the Working Groups. Witnesses on several of the Working Groups gave evidence that they believed the drafts reflected what was decided by the Working Groups. Of course a very long time has passed since then, the Working Groups were, I am sure, intensely packed with discussion or debate, since the evidence was that this is how these sessions actually operated, and one ran immediately after the previous one. It would be quite unfair to expect witnesses to say with certainty that the drafts were absolutely accurate of all that occurred at the Working Groups. Indeed, even now, it is impossible to know whether it is the drafts or the final versions which accurately reflect the decisions taken at the Working Groups, although it must also be said that at its final meeting in June 1998, the Steering Group adopted the final version of the Evaluation Report. 

(vi) Sometime in late May 1998 about a fortnight after the meetings and the oral presentations a first draft of the first part of the Report -- that is to say, that part of the Report which did not include the Appendices -- was forwarded to the Director's staff and copies were made and sent to various members of her staff for review. 

(vii) Amendments were made or suggested, and in some cases comments were inserted in margins, and eventually, either directly or through John McQuaid, the comments or some of them and the amendments, or some of them, found their way back to Denmark, and a further draft was sent in early June, when the same process was repeated again. 

(viii) Eventually a final draft was prepared, again in Denmark, and that final version was approved or adopted by the Steeling Group on the 11 June. 

Orange contend that several changes were made to the draft report so as to reduce its otherwise biased tone. However, Orange in particular complains about changes in the draft report which concern the financial solidity findings in respect of the Meteor consortium. I propose to deal with the general complaint of changes, and deal with the issue of financial solidity findings separately. As to the general complaints made, Orange says: 

(a) A sentence was deleted that Orange would not be tied to any licence requirement on tariffs. [T.32, p 69-80]; 

(b) A change was made to say that the withdrawal of AT&T "on the closing date" should be "before the closing date"; 

(c) A phrase that Meteor's projection were in line with the "most" optimistic projections was altered to become "more" optimistic 

(d) The original alliance with An Post was described by the Danish drafters as a fact, and the ODTR had to remind the drafter that the alliance was only a proposed alliance. The explanation for this was that the draft was done in a hurry. 

(e) In the first draft report it was stated that because Orange viewed the [Irish] network as an essential part of its United Kingdom and Northern Ireland networks it "consequently" had no intention of building up an ownership based consortium with Irish partners. Orange point to the fact that the word "consequently" was then removed from the final report, Orange says to avoid the otherwise clear linkage between the two issues. 

(f) The lack of intention to float shares on the Irish stock exchange was changed to include the words "in the application" because such an expression had been given at the oral presentation. 

O'Gorman Orange's approach to tariffs in the original draft was stated to be "unprecedented" which was altered to "atypical" which word was then deleted and Orange were stated to be "credible". Orange say that Mr McQuaid suggested the word "unprecedented" may have been an error [T.32, P 981 but that Mr Andersen confirmed in evidence that it was exactly what he meant. 

(h) Orange also say that Mr McQuaid was uncomfortable with the suggestion made to him that Orange might not get the licence if discussions with Meteor were unsuccessful IT 32, p 108, 1. 

The Director states in reply that there was a more than satisfactory "audit trail" to demonstrate the thought processes of the Evaluators and, in any event, all that is required according to O'Keeffe v An Bord Pleanala [1993] 1 IR 39 is that there was material before the Director "which would justify her" in coming to a decision and not material which actually did justify her arriving at the conclusion which she reached. 

The Director says that, against that background, there is more than ample evidence to illustrate the manner in which the final decision was arrived at. The Director made no submissions separately on the above individual matters complained of. I will deal with the question of a so-called 'audit trail' separately in this judgment, if necessary. 

On a more serious basis than much of the foregoing complaints, but I understand, without resiling from the above, Orange contends that the changes made in the "financial solidity" indicators, considered below, were such as to cloak the original views of the Evaluators that the Meteor consortium was financially very weak and so that the Evaluation Report would not be so obviously disadvantageous to Meteor. 

To understand this serious allegation, I have to explain the markings and the history of the drafts. This aspect of the Report is found at pages 50 and the following, as part of the section concerned with "Financial and management aspects". Under the dimension "Solidity" four individual indicators were established, including "Guarantees from Backers" and "Financial strength of consortia members". It will be recalled that there were 12 Working Groups in all, and one of the Working Groups concerned financial matters. The last indicator is the one I consider first, and was introduced by the following words: 

"The financial strength of the consortium members demands a close look at the parent companies. A detailed description of the consortium is stated in Part I of the application." 

There then followed a schematic overview of the ownership structure of each of the bidders, together with an indication of the breakdown of equity ownership in the hands of each consortium member. Then there follows a list of the key figure categories (turnover, net income, solvency degree, etc) which were to be considered by the Evaluators, followed by a comparative table comparing Orange Plc (ultimate parent of one bidder) and Western Wireless Corporation (majority shareholder of the other bidder) [Table 18]. There then follows this statement: 

"The figures in table 18 reflect that the companies are in the early years of operation, where expenditures, especially capital expenditures due to network roll out, are relatively high and revenues are low, but increasing. This pattern is considered quite normal for the telecommunications industry . Although both companies make net losses, differences between them are present." (emphasis added). 

The description then continues with some further detail on credit facilities, uncertainties in relation to this, the application of a forward looking approach (market expectations), the confidence of investors, a list of stock prices of recent origin, the capitalised market value of each of the above companies, and so forth. This is then followed by the statement: 

"Taking into consideration the above sub-indicators in the evaluation of the financial strength of Orange plc, and WWCA in the context of the telecommunication industry, the following scores were reached. Although having negative equity, Orange has positive and increasing cash flows and a high capitalised market value, and the award of a "B" was considered. WWCA is solvent but has negative and decreasing cash flows, and the capitalised market value is materially lower than Orange's, and the award of a "C" was considered. However, WWCA represents only 60% of the ownership of Meteor Mobile Communications Ltd, as described earlier, and the financial strength of The Walter Group and in particular RF Communications is less [than] that of WWCA. Accordingly, Meteor is awarded a "D" and Orange is awarded a "B". 

It will he clear from what is said below that these scores are different from those which appeared in the original draft which was sent from Denmark, and in which Orange was awarded a "C" and Meteor a "D". 

Just before I turn to the arguments, there is one other matter which may help understand these. As I mentioned, there were four indicators under the dimension "solidity", namely Solvency degrees during the entire planning period in excess of the minimum requirements 

-- Solvency during the critical years; 

-- Guarantees from backers 

-- Financial strength of consortium members (discussed above). 

On the first two of these, both bidders scored equally, and nothing much turns on this. On the third indicator, however, according to the final Evaluation Report, Meteor was awarded a "D" and Orange was awarded a "C". This too is different from the original draft, and was altered. All the above scores appear in a chart ( with all the other dimensions). 

In the first draft the chart shows that Meteor was awarded an "E" under the indicator "Guarantees from Backers". In the final report this award is a "D". It was argued by Orange that the ODTR (through Karen O'Gorman, who was the financial expert from the Director's office on the Working Group and who gave evidence), had no justification for supporting an increase or change from an "E" to a "D" in favour of Meteor in respect of the indicator "guarantees from backers". 

It was also argued by Orange that there was also no justification for increasing or changing the mark of "C" awarded to Orange in the draft to a "B" in the final report in respect of last indicator "financial strength of consortium members", nor from increasing Meteor from a "D" to a "C" and then reducing that "C" back to a "D". 

Orange complain that the suggestion made in the course of evidence that the changes were in the awards given for the indication "financial strength of consortium members" as a result of a so-called "narrowing" of the evaluation field, from that of a "general company" to a "company operating in the telecommunications field" subsequent to the original meeting of the Working Groups in early May, subsequent to the oral presentation on the 12 May, and subsequent to the drafting of the first report, which the Director submitted reflected the decisions of the Working Groups, was unsustainable, and that the real reason for the alteration was more sinister. 

It was submitted by Orange that the court would have to conclude that there was an attempt made, by the process adopted, to ensure that Meteor would not be presented to the Director as being the consortium which scored the lowest possible mark "E" in relation to "guarantees from backers" and which ought to have been the mark awarded in respect of the last indicator "strength of consortia members", because the Director could not possibly award a licence to such a consortium, when an expenditure of something in excess of E300 million was envisaged. 

It was also argued by Orange that, while the category itself only carried 4% of the overall marks, nevertheless it was clear that the reader of the document would have had grave concerns about granting a licence to any consortium with such a poor solidity indicator. 

In order to place these allegations in context, I should now turn to the draft Evaluation Report and to the correspondence exchanged in relation to the changes, and the evidence given; before considering the response of the Director and/or of Meteor to these allegations. 

It is unclear when the first draft went from Denmark to Ireland. However, among the documents included in the bundle of draft reports is one with a date " 19-05-98", and the draft which I had of the report -- or more correctly part of the report -- at that time, shows that it was considered by Miss O'Gorman who made certain amendments to it. The first "full" draft of the entire of the Report (less the appendices) came to Dublin on the 2 June, by that time the marks under the third indicator above had been changed, and I will describe the changes below in some detail. 

So far as I can ascertain, this appears to be the first full report, although parts were distributed earlier. For example, the Executive Summary was subject to amendment by Mr Curran by fax of the 28 May with an indication that it had been received by him "yesterday", and Miss O'Gorman gave evidence of having received part of the report while she was on leave from the office of the Director. There was some mix up about the furnishing of all of the material, due to the fact that some of the drafts appeared to be duplicates, but in fact included parts of earlier drafts (not then discovered). All this was cleared up during the course of the hearing, and appropriate further affidavits of discovery sworn and delivered. I do not in any way criticise any of the parties on this point, because the documents were very voluminous and the omission a very understandable one. 

The Financial and Management Aspects commences at page 44 in the copy which Miss O'Gorman had, although it is clear that she also had pages from an earlier draft included in the later version, which bore different numbering. In the earliest draft, the dimension "Solidity" is divided in exactly the same way as above, ie, four indicators. 

There is no material difference in the text or in the scores or awards under the first two indicators. Under the third indicator "Guarantees from backers" the earliest draft shows that the Evaluators awarded an "E" to Meteor and a "D" to Orange. This award appears in the draft as sent from Denmark and was not altered at all by Miss O'Gorman nor in any way commented on by her. In fact the entire of the last paragraph of page 47 (page 4 in the earliest draft) reads, without amendment or comment, as follows: 

"One could consider Orange a little weaker than Meteor as it has only one financial backer where Meteor has three financial backers in addition to technical and international support from AT&T. However, orange has a more qualified back letter with a banker's review of the business plan compared to Meteor's very general letters. Therefore, Orange is awarded a "D" and Meteor an 

These scores, or awards, are then transferred to the paragraph at page 52 (page 9 in the earliest draft), without alteration. When I look at the chart itself in the original, draft, it too remains without amendment, change or comment, and is clearly what was originally drafted in Denmark by whoever created this section of the Evaluation Report. On the first page (44) of the report is the following comment in Miss O'Gorman's handwriting: 

"KO'G comments given to JMcQ on earlier draft of this section of report" 

A comparison of the draft report under the indicator "Guarantee from backers" which, in the draft, comprises nine paragraphs, with the equivalent section of the final report shows that the same run of paragraphs is found in both the draft which Miss O'Gorman marked up and the final draft, save that there is one line changed in the final report. 

So far as the final indicator is concerned "Financial strength of consortia members", the following is the manner in which the conclusions were dealt with the in original draft: 

"Although having negative equity, Orange has positive and increasing cash flows and a high capitalised market value, and is being awarded with a "C". 

Western Wireless is solvent but has negative and decreasing cash flows, and the capitalised market value is materially lower than Orange's. Therefore, Meteor is awarded with a Compared to the above extracts from the final report, it will be seen that the final report suggests that "consideration" was given to awarding one mark as opposed to another, and there is included in the final report the following additional comment: 

"WWCS However, WWCA represents only 60% of the ownership of Meteor Mobile Communications Ltd, as described earlier, and the financial strength of The Walter Group and in particular RE Communications is less [than] that of WWCA. Accordingly, meteor is awarded a "D" and Orange is awarded a "B". 

The Directors' general response is that the drafts were changed but only so as to remove the Danish language approach and to clarify unclear statements. On the general complaints, as I have said, there is little or no response. On the question of solidity, however, the Director has made a substantial response which can be summarised as follows: 

(a) As to the indicator "Guarantee from Backers", it is said that after Miss O'Gorman left on leave, and when Mr McQuaid received the first full copy of the draft final Report, he considered the original marking of both Orange and Meter was too severe, although no basis was given for such a view in evidence. 

(b) Mr McQuaid then discussed the matter with Mr Thrane and "it was decided to raise both Orange and Meteor, to a "C" and a "D" respectively; 

(c) Mr McQuaid stated the above on affidavit in these proceedings, after the commencement of the hearing, and it is said that he was not cross examined on the matter. 

(d) It is suggested that even a casual perusal of pages 49 and 50 demonstrates that the original proposed mark for Meteor would have been exceptionally severe, given the nature of its three backers and the comments of the Evaluators in relation to guarantees. 

On the question of the final indicator, which was also altered or changed in the final Evaluation Report, it is said on behalf of the Director, in defence of the position that: 

(a) The original approach of the Evaluators was to discount RF Communications and the Walter Group by reason of their inherent weakness on this indicator and to evaluate Western Wireless on the basis of its being a 60% shareholder; 

(b) Subsequently, the Steering Group and Miss O'Gorman arrived at the conclusion that this analysis was incomplete and that regard should be had to the financial standing of all three members of the consortium; 

(c) Following the receipt of the first full draft of the Evaluation Report on the 2 June, Michael Thrane and John McQuaid had another telephone conversation, the result of which was that John McQuaid prepared two new texts (A and B) which were sent, and which, it is said, after further discussions, were inserted into the draft; 

(d) Text "A" reads as follows: 

"Taking into consideration the above sub-indicators in the evaluation of the financial strength of Orange Plc and WWCA in the context of the telecommunications industry, the following scores were arrived at"; 

(e) It is argued on behalf of the Director that the new text "clearly shows" that a decision was taken to narrow the field of evaluation to those of telecommunications companies, as opposed to other types of companies. 

While the actual figures did not change, it is argued that those figures "were more impressive" once the field of evaluation was narrowed. 

(f) It is further argued that, having in the circumstances just outlined, given a "C" to Meteor, a further exercise had to be carried out, to reflect the "drag" factor which RE and the Walter Group effected on the WWCA score. Text B was then introduced, which read as follows: 

"However, WWCA represents only 60% of the ownership of Meteor Mobile Communications-Ltd, . . . and the financial strength of the Walter Group and in particular RE Communications is less than that of WWCA. 

Accordingly, Meteor is awarded a "D" and Orange is awarded a "B". 

O'Gorman It is said that, because of this last exercise, there was justifiable reasons for the Meteor score remaining exactly as it was under the original draft mentioned above, because even though there was a narrowing of the field and an improvement for Meteor, both RE and the Walter Group were so weak they tended to drag down the overall Meteor mark. 

(h) It is argued by the Director that Orange's contention is demonstrably incorrect. It is said besides, that a mark of "E" to Meteor under this indicator would have been patently unfair, as the major shareholder WWCA is a robust telecommunications company with strong financial figures. 

The Meteor Response support the Director's contention, and further say that the contention on Orange's behalf amounts to an allegation of deliberate fraud, which has not been sustained by the evidence. It is also said that the allegation ignores the fact that the Evaluators carried out a very detailed comparative evaluation. If there was an intention to present Meteor's case in as favourable a light as is contended for by Orange, then a comparative evaluation could have been done on the basis of the indicators used in the quantitative evaluation, and any indicator thought to result in a poor scoring for Meteor could have been eliminated or ignored. Rather, it is argued by Meteor, the Evaluators selected a considerable number of additional indicators with the result that Meteor in fact faired badly in respect of many of these. It is argued by Meteor that the contention by Orange is not supported by what actually took place. 

Against the foregoing, I find, as a fact, having regard to the draft of the Report, and the evidence given that the first and certain other drafts were altered. It seems to me clear that the effect of these alterations is to generate a result which can readily be perceived to be biased in favour of Meteor and against Orange. 

I find that the alterations, or some of them, were intended to remove or modify the otherwise very harsh meaning attaching to many of the phrases or words used by the drafters. These are set out in some detail above, and the Director has given little or no explanation, save to say that the drafts suffered from a Danish language approach, and therefore had to be amended to take account of this. However, while I accept that some of the amendments were purely of a language nature, and Ms Finn gave evidence that one of her concerns was to ensure that the draft did not suffer from any possible disadvantage arising from the fact that it was drafted in Denmark, I do not agree that this is the full answer to Orange's case. 

In the first place, on the evidence tendered, it was clear that Mr Andersen had a very fluent grasp of English, and where he had any hesitation in answering, clarification of a question generated a clear and very comprehensive answer. Secondly, all of the chairmen of the 12 Working groups which considered, in very great detail, the 67 indicators by which the bids were evaluated, and the content of the bids themselves, were Danish. Next, all of the drafts of the Report were, in fact, first drafted in English in Denmark, and then sent for consideration by the ODTR. There was no evidence whatsoever that any of the members of the AMI team were at any disadvantage by virtue of the fact that the working language of the entire tender process and evaluation was English. These processes were considered in great detail at the Steering group meetings well prior to the closing date of the bids, and both AMI and the Directors own team were silent on any possible disadvantage arising from the above approach adopted in relation to drafting. 

It seems to me therefore that there is little evidence to suggest that, for example, use of the word "unprecedented" by the drafters was intended to be anything other than what it means in ordinary English, namely, without precedent, and indeed Mr Andersen who had chosen the word said in evidence that this was precisely what he intended to say, and he indicated he understood the precise meaning to be attached to the word. The change therefore to the milder "a typical" made by Mr McQuaid was a deliberate change, and I believe was done, even on Mr McQuaid evidence, to reduce the apparent harshness of the drafters' intention by the use of the word "unprecedented". If not done with that intention, it certainly could readily be perceived to have been so done. 

Another example is found in the deletion of the word "consequently" linking the statement that Orange's Irish network, being linked with the United Kingdom and Northern Ireland networks meant that Orange, the applicant, would really have no need or desire to find Irish partners. I can find no reason why this would be done, save to avoid the suggestion, appearing in the first draft of the report, that there was a connection between the two matters. Indeed, if the first of the matters of the two originally linked statements, had the meaning contended for by Orange, which appears to be the meaning on the face of the words used there, and elsewhere, then the use of the word "consequently" would make sense, I am of the view that its removal is more likely explained by the Orange contention than by any suggestion that there was a problem arising from the drafters being Danish. 

Turning to the two indicators under the "solidity" heading, these are very troubling matters for me. The allegation is made that the changes were deliberate so as to avoid a situation where the intended licensee had been awarded such a low score on two important financial sub indicators, that the Director could not possibly issue a licence to it. What troubles me greatly is the following: 

(a) The first draft which went to Miss O'Gorman (and presumably to all other members of the Working Group on Financial Solidity), included the drafters original recommendation, arising from the decision of the Working Groups. 

(b) On the evidence of the Directors' witnesses who spoke to the issue, it is the case that, although there are no records of what went on at the Working Group meetings, and although no decisions (which may have been recorded by the chairmen) is recorded or available to the Court, nevertheless it was their claim that the Evaluation Reports reflected the decisions of the Working Groups. I did not understand their evidence to be that only the final version of the Report reflected the decisions of the Working Groups and indeed in the case of "financial solidity" the evidence of Mr McQuaid is that the alterations took place after the Working groups had determined the original scores; 

(c) On the third sub-indicator, namely "Guarantees from Backers" the first draft makes it clear precisely what the Evaluators came to the view that scores should be "D" and "E" for Orange and Meteor respectively; and, as I have mentioned above, neither Miss O'Gorman nor Mr McQuaid (who also sat on the solidity Working Group) nor Mr Andersen (who also did), nor Mr Thrane (who also did), nor anyone else thought to change or amend the final paragraph of that section. 

(d) Nor did anyone suggest that the chart at the end of the Section was so "severe" looking, when the two awards were plainly placed there nor did any of them, until after the first full version of the report was available think that these marks were wrong or ought to be looked at again. 

(e) The Working Groups, having awarded these scores, did not either, after the oral presentation, make any suggestion that the score should be reconsidered although others were. Nor did the position alter, even after the circulation of the Summary Reports of the oral presentation; which were dated the 14 May well prior to the date of the earliest draft above. 

(f) Although both the Steering Committee and Miss O'Gorman believed that further consideration should be given to the last sub indicator (but for the reason that WWCA was only a 60% shareholder and both of the other members of the consortium were weaker), neither thought that the third sub indicator required further consideration; 

O'Gorman It was not, apparently, until after the receipt of the affidavit of Mr McQuaid, after the hearing of this case had commenced, that it was said that he had a discussion with Mr Michael Thrane (by phone) during which it seems they agreed together to change the scores, because the original scores were "too". But no explanation whatsoever was given for this view, and no explanation was given as to why the Working Group apparently did not think so. Nor was any explanation given as to what Precise steps were taken to come to the view that each of the parties should be increased by one mark, as opposed to two or more. Nor was any indication given as to why the Evaluation process, in so far as this sub indicator was concerned, was on the basis of a mere telephone call between two members of the Working Group, but without any reference whatsoever, to any further meeting of the Working group to reconsider the matter. 

(h) It is not for this court to suggest that the Working Groups might well have come to a different view, on the same material as appears in the as is suggested on behalf of the Director, "given the nature" of the Meteor backers and the fact that the Evaluation Report mentioned certain "common practices". It seems to me from a reading of the Evaluation Report that the Working Groups have to be taken to have known all of that before they gave their original award. Indeed the draft makes it clear that they considered these matters. But their decision was altered, by a telephone conversation, without any known further analysis or consideration by the Working Group. As to the reason for the change in the last sub indicator, I am equally troubled by these changes also, and for all of the reasons set out above, although based on different facts. The position appears to be as follows: 

(a) Again, the Working Groups decided that the sub indicator would be assessed, and it was. A score was awarded, and this was reflected in the first draft of the Report. 

(b) Having considered the draft, both Miss O'Gorman and it is said the Steering Group decided that it should be reconsidered. My interpretation of what Miss O'Gorman said was that it should be looked at again because of the fact that RF Communications, which was initially only the holder of 10% (according to the application), and at the time when the Working Groups met and awarded scores, the Evaluators did not know the indication in the Meteor covering letter of the 6 April concerning the AT&T shareholding would be resolved. It had stated that the 10% would be taken up by the "other consortium members". It may be that the Evaluators considered that it would be divided in some way between them as this appears to be what was suggested in the letter. 

(c) It was not until the oral presentation that the Evaluators were told that RE Communication (or more correctly RF Communications and certain other persons associated, directly or indirectly with that company) would take over the shareholding of AT&T, and therefore when it became clear that RE Communications would hold 30% of the shareholding, it made sense to suggest that a further analysis be carried out. 

(d) I do not lay any great emphasis on the fact that it is submitted on behalf of the Director that both Miss O'Gorman and the Steering Committee independently came to this view, because the Steering Committee clearly was acting through one or other of the Financial Solidity working group members when the suggestion was made, and it is not a surprising suggestion. The minutes of the Steering Group meeting of the 27 May 1998, under "Financial Sensitivities and experience of the applicant" state as follows: 

"MT explained that three supplementary evaluations had been carried out on the financial aspects of the applicants, one on proposed capital expenditure, one on interconnection, and one of profit ratios. He explained that the results of these supplementaries back up the scoring results from the financial sub-group. The SG agreed that the financial strength of the Walter Group and in particular RE Communications had to be looked at again as this had not been taken into account in the scoring of the financial sub-group." 

(e) I do however, have difficulty accepting the explanation put forward for the manner in which the change came about, and the basis for the change. When one considers the first draft report, upon which Miss O'Gorman made certain amendments, it is clear that references are made to the factors which operate in "the telecommunications industry". At page 7 of the original draft, for example, it is said under the heading "Financial Strength of Consortium Members" the following:- 

"[Having set out a chart for Orange Plc and Western Wireless Corporation covering turnover, net income, equity, solvency degree and operation cash flow figures]: "The above figures reflect that the companies are in the early years of operation, where expenditures, especially capital expenditures due to network roll out are relatively high and revenues are low, however increasing. This pattern is considered quite normal in telecommunications business." 

The earlier draft also stated the following by way of conclusion at this stage: 

"Although having negative equity, Orange has positive and increasing cash flows and a high capitalised market value, and is being awarded with a "C". 

The word "being" was deleted from Miss O'Gorman's copy, presumably by her and the end of the page was ticked, by which I understand it to mean that it had been checked. There follows the next statement: 

"Western Wireless is solvent but has negative and decreasing cash flows, and the capitalised market value is materially lower than Orange's. Therefore, Meteor is awarded with a 

(f) I have very strong reservations, having regard to the tender process and the manner in which the detailed evaluation process is communicated to the Director in the Evaluation Report itself, that changes of the critical nature of these financial matters, were made over the telephone, with no apparent analysis, or explanation, as to why a narrowing of the industry to a sector specific industry, generated the scores in question. 

O'Gorman When one looks at the Steering Committee which approved the final draft of the Report on the 11 June 1998, no indication is given that these changes were made by phone, that they were in an apparently casual manner, that there appeared to be no record of any description (other than the amendments to the drafts) giving the basis for the change, the rationale behind the increases actually made, or any of the other factors which the Evaluators drew to the courts attention as being indicative of the great care and attention which was exercised by them to carry out checks, cross checks, track recording etc. 

I am afraid I come to the view that the most likely reason why these two sub indicators were actually changed was because they appeared in the draft reports to be too negative against Meteor. I am afraid I also come to the view that the changes were made in a manner which did not accord with the tender process as set out by the tender document. [also come to the view that a reasonable person viewing these decisions would view them as being biased in favour of Meteor, and in consequence against Orange. 

I do not accept the submission made on behalf of Meteor that these changes amount to fraud. They really fall into no different a category than the actual award given, but not changed, in respect of the other indicators. The changes made were not, in my view, made in accordance with the Rules of the competition on with the manner in which the awards were to be given, and the changes appear to me to have been made without any supporting basis. 

Having regard to the foregoing series of allegations of bias, I now apply the law to the findings. 

THE LAW RELATING TO BIAS: 

The law relating to bias is reasonably well developed in this jurisdiction, although no case law has been opened which is directly applicable to the Orange claim made here. Among the general principles enunciated are those from the following cases: 

O'Cleirigh v Minister for Agriculture, Food and Forestry and Another [1998] 2 ILRM 263:- 

"An administrative act, being the power to ascertain the nature and to assess the value of the rights lost must be exercised reasonably, conscientiously and fairly and not so exercised is subject to judicial review by the courts." 

Radio Limerick One Limited v The Independent Radio and Television Commission [1997] 2 IR 291 at p 315 

"It has been repeatedly recognised in Ireland, as in other jurisdictions, that the adjudication of disputes by a tribunal which is not only impartial but seen to be impartial, is an essential feature of the administration of justice. Speaking for this court in Dublin Well Woman Centre Ltd v Ireland [1995] 1 ILRM 418 Denham J said at p 418:- 

'There are two fundamental streams of thought within this wider concept. First, that there should be no actual bias, ie, a subjective test. And secondly, that there should be no reasonable apprehension that there is bias, ie, the objective test". 

Both of these streams of thought are equally important in the broad river of justice." 

This distinction also underlies Lord Hewart's often cited dictum in R v Sussex Justices ex party McCarthy [1924] 1 KB 256, at p 259:- 

"It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. 

Whether the bias alleged is subjective or objective, it may take a variety of forms. The decision maker may have a financial or proprietary interest in the outcome of the litigation. He or she may be related by family, social or business ties to one of the parties. He or she may have on some other occasion so prejudged the matters in dispute as to be incapable of reaching a detached decision or, at all events, a decision which reasonable people would regard as free from even the suspicion of bias." 

In Metropolitan Properties Co Ltd v Lannon [1969] 1 QB 577, in which it was held by the Court of Appeal in England that, although in the circumstances there was no error of law disclosed in the committee's decision, the facts relating to the chairman's connection with tenants of Regency Lodge were such as to give the reasonable impression that he was biased even though there was no actual bias on his part. Accordingly, the decision had to be quashed and the case remitted to another assessment committee. 

Reference was also made to the decision in In TV3 Television Company Ltd and Another v Independent Radio Television Commission [1994] 2 IRA 439. 

Orange contended that many of the allegations of bias, standing alone, would each lead to a finding of bias against the Director but that, taken together, they amount to substantial bias, both subjective and objective. Orange also argues that applying the principles to the facts in the present case, it is clear that both objective and subjective bias operated in the Evaluation process and that, in consequence, the decision of the Director cannot stand. 

The Director argues that all the cases cited by Orange involve a personal connection between the decision maker and one of the parties before him, for example in the cases of Lannon and The Dublin Well Woman Centre, etc. 

The Director also argues that each of the witnesses called for the Director who were involved in the evaluation process swore to an absence of bias on their part and further said that there really would be no benefit either to the Director or to AMI to be involved in any way with bias in an evaluation such as this. 

It is true that all of the cases cited are as the Director claims, but it does not seem to me that it follows in law that it is only in such circumstances that an issue of bias can arise. Indeed it is clear from the case that bias "may take a variety of forms" and that what follows in that case is simply a range of possibilities mentioned by the judge as being examples of bias. I do not understand from the case that the examples are to be considered as wholly or at all conclusive. 

It seems to me that Orange is correct when it alleges that the decisions, or the decision making process, is an administrative act and that O'Cleirigh supra, applies. 

In considering the question of bias, however, I think it is extremely important -- indeed vital -- to draw a distinction between a preference on the one hand, and true bias on the other hand. There is absolutely nothing improper or illegal -- or suspect, in a competition of this kind, for the Evaluators, when adjudicating on the bids, to prefer the contents or parts of the contents of the bids or proposals of one over those of another. This is inevitable and it is the very nature of what the parties described as being a "beauty contest" tender and evaluation process that parts of one bid will be more attractive than the equivalent parts of another bid. 

To take a very simple example, leaving aside low tariffs or commitments altogether, Meteor proposed five separate tariff plans as against three by Orange. Some of those proposed by Meteor were bundled, and one at least was unbundled. If one of the factors taken into account is the variety or range of tariffs being made available by one bidder, including an unbundled tariff plan it seems to me that the Evaluators are perfectly entitled to have regard to that range and in consequence, one bidder's proposals are preferred to those of another, this not a biased decision but a legitimate preference. Similarly in the case of actual tariffs, if lower tariffs are a factor in the evaluation process (as opposed to the contentious policy of low tariffs), this would suggest that competitive tariffs are to be looked at. If in the course of doing so, the Evaluators prefer the competitiveness of one set of tariffs over the competitive tariffs of another bidder, this too is a perfectly legitimate preference, and not a bias on the part of the Evaluators. If in the course of assessing customer care, one bidder has a customer base or even two within the jurisdiction, and the other has none, it is perfectly legitimate and not biased, for the Evaluators to prefer the one over the other. It is important therefore, on the question of bias, for the claimant to be able to show that there is something more than a legitimate preference involved, before the Court can, in my view, accept that there is bias, at law. 

So far as the case made on subjective bias is concerned, there is a very heavy burden imposed on Orange to establish that the decision maker in this case, or the Evaluators deliberated acted as to prejudice Orange. It is not, in my view, sufficient to establish this by reference to the fact that in certain cases in the course of the Evaluation process, the Evaluators favoured Meteor as opposed to Orange. While I do not accept that Orange's claim under this heading is one of fraud, nevertheless, I find that it has not discharged the burden on it of proving subjective bias. 

On the issue of whether there is a reasonable apprehension of bias, or objective bias, the cases are not especially helpful. I have drawn attention to some of these above. Some of them, in the argument of Meteor, are not really bias cases at all, and I agree. Some, or most of the cases in relation to a reasonable apprehension of bias are concerned with conflicts apparent between the decision maker and one of the parties affected by the decision, but as I have said these cases do not appear to suggest that this is the only category of bias under the objective bias heading. 

It is argued also by Meteor that the court, in considering this question, has had a very detailed review of the entire of the decisions of the Evaluators in the course of the evaluation process. This has certainly been the case. It is also argued by Meteor that the court is in a position to come to a view as to whether there could be a reasonable apprehension of bias operating, having regard to the limitations arising from cases on the difference between lack of fair procedures on the one hand and bias on the other hand. I accept the arguments put forward on behalf of Meteor, and conclude that the cases continue to suggest that a different approach may be appropriate depending on the circumstances of each case. 

And I have no hesitation in accepting that I must also take account of the explanations given to the court, including the explicit denials of bias, both the Director and Meteor relying in that regard, on the decision of the Supreme Court in McAuley v Keating [1998] 4 IR 138. 

There were some extremely important elements in the tender process, including the policy objective behind the competition, the question as to whether that policy objective was adequately notified to the bidders, the question of binding commitments and their notified role in the competition, the extent of the terms of subscription, the allegation of errors in the Evaluation Report, and the alterations between the drafts and the final report. 

I have, in respect of several of the allegations made by Orange, found that no element of bias operated, whether subjective or objective. However, I have come to the view that in relation to several other elements, Orange have established to my satisfaction a reasonable apprehension of bias I am particular concerned to dismiss as not being of vital relevance to the decision making process some of the elements on which a reasonable apprehension of bias is established. For example, although the introductory section concerning the Irish network being an "essential part of the United Kingdom and Northern Ireland" does not -- form part of the actual section of the Evaluation Report in respect of which an award of marks was given, I considered this to be an influential part of the Report. On the other hand, I do not consider that it is a critical part of the Report, and absent any other complaint would have little hesitation in rejecting an allegation of objective bias. Having regard to the findings which I have made on the above elements, it seems to me that, as to binding commitments, subscriber contracts and low tariffs, each of these standing alone, would support a claim of a reasonable perception of bias. When the several other elements on which I have made findings are combined, however, it seems to me that a reasonable person would justifiably consider and apprehend that there has been and was significant bias on the part of the Evaluators to such an extent that the decision of the Director could not justifiably stand. 

It is not my view that there was deliberate bias of a subjective nature on the part of the Evaluators who gave evidence in the course of the hearing. 

2. THE CLAIM BASED ON REASONABLENESS: 

Reasonableness in this context is not to be equated with what is accepted in judicial review applications simpliciter, in the sense of mere capriciousness or arbitrariness, or in the sense mentioned in supra. In such a case, the court will only intervene if it can be established that the decision maker came to a view for which there was no supporting material before him. 

Unreasonable in the present context is that which is referred to in the M & J Gleeson case supra, in which Kearns, J stated that the decision could be impugned if a reasonable person would not have come to the decision which was come to. I state at the outset that in a case such as this, where the decision being impugned is that of an expert tribunal, that I accept wholeheartedly the proposition that I should only interfere with its decisions on grounds of reasonableness with very considerable reluctance. There are ample authorities, both in the this jurisdiction and elsewhere, for such a proposition. And it is clear from the decision of Kearns, J in M&J Gleeson, supra that the reluctance is properly based. It was stated in that case: 

". . . the applicants in order to succeed must establish a significant erroneous inference which was critical to the grant of the licence and which went to the root of that decision rather than an erroneous inference which raises some detail, even if that detail is relevant. In relation to any particular inference, therefore, the applicants must show the that had the Competition Authority drawn some other inference the licence could not properly have been granted. It is not enough that this Court might think that if it were reconstituted that the Competition Authority would decide the matter differently, the Court must be satisfied that the Authority's decision lacked a reasonable basis." 

I do not want to repeat the very substantial amount of facts and matters upon which the parties rely which have been set out above, because as I have mentioned, most of the facts and matters are put forward to support or defend Orange's claim, both on bias and on unreasonableness. I therefore propose to confine this part of the judgment to those issues of reasonableness which are in addition to the matters set out above, but at the end of this section of the judgment, I will also give my views on whether or not any of the above matters support Orange's claims on unreasonableness. 

Essentially the case made by Orange on this aspect of the matter is made from the Evaluation Report and the documents before the Director, although as I have said previously there was some spill-over from the evidence tendered on "bias" into the area of "reasonableness". 

Mr McDowell made some detailed submissions on the issue of reasonableness before any ORAL evidence was given on the issue of bias. These may be summarised briefly as follows: 

Orange submit that certain general principles of administrative law apply to consideration of the reasonableness test, namely: 

The decision must be one to which the decision makers must direct themselves "properly in law"; 

The decision must he one in which the decision makers call to their own attention matters which they are bound at law to consider; 

The decision must be one in which those who make the decision exclude from their consideration matters which are irrelevant to what they have to consider; 

Insofar as a decision rests, or appears to rest, on bad faith (including bias or prejudice or dishonesty) it is also, a fortiori, unreasonable, as bad faith and dishonesty, and the other indicia or unreasonableness run into each other; 

Orange relied on the jurisprudence enunciated in De Smith, Woolf and Jowell Judicial Review of Administrative Action (Chp 13), 5th Edition, and Hogan and Morgan Administrative Law in Ireland (Chp 12) 3rd Edition. 

Orange argues that the decision to refuse the licence to Orange was unreasonable in that: 

(a) it was based on a perverse and biased evaluation details of some of which are given above; 

(b) Orange also says that the Director adopted an unreasonable approach to the Evaluation of several issues in the tender process itself; 

(c) the Director failed to permit the Plaintiff to put before the Director, the representations which Orange has had to put before the Court, and which would have persuaded the Director that the decision was perverse, wrong and biased. 

(d) Orange argues that the unreasonableness pervaded both of the above matters, resulting in an unreasonable decision to refuse to grant the licence. 

Having regard to the extract set out above from the M & J Gleeson case, I do not agree that these are the above list suggested by Mr McDowell are the appropriate ones. 

It seems to me that the only way in which the issue of unreasonableness can be considered under the appropriate test, or indeed even under the above list, is to look at the award of marks given to each of the bidders, assess the sections in the Evaluation Report, which give reasons for the awards, together with such portions of the Appendices; and the exchanges between the Director and either of the bidders, as may be relevant. 

It is true as I have said that, during the course of the bias evidence, some evidence came to light which affects also the unreasonableness issue. This throws up a dilemma, because of course if evidence had been permitted on the question of reasonableness, proper, Orange might have wished to adduce substantial oral evidence on this aspect of its claim also. I must endeavour therefore to confine myself therefore, to a consideration of the documentary evidence available and the submissions made, and cannot properly take into account matters which might have explained the reasonableness of the approach of the Evaluators, or the elaboration which they may have given or which might explain the basis for the various marks awarded, if these cannot be gleaned from the Report itself or the drafts or other material before the Director or the Evaluators.. 

The objection on the reasonableness ground is made, not only on the basis that many of the awards of individual marks in the particular dimensions complained of by Orange were unreasonable, but also on the basis that the accumulated marks, awarded in an unreasonable manner, leads equally to unreasonableness. 

There were 67 indicators (or sub indicators) in all chosen by AMI or the Working Groups. These do not appear to have been approved by the Steering Committee. Each of these, when applied, resulted in an award to Orange and an award to Meteor. It is claimed by Orange that, in respect of some of these, at least, the decision to award the particular mark to one or other of the bidders was unreasonable. 

There is little law in relation to this aspect of the matter, at least the initial exercise which has to be carried out. What I have to consider is whether, on a review of the Evaluation Report, and other relevant material, it is established that some or many or all of the awards made were unreasonable ones in the sense used in the cases, and whether, if any or all such were made unreasonably, this has the effect of persuading the Court to reject the decision of the Director to refuse to grant a licence to Orange, because that decision also was in turn unreasonable. 

Examples of the claims to unreasonableness are many, and some are more serious than others. They include the following which I don't suggest is an exhaustive list, but it seems to me that it is appropriate that I should consider the ones emphasised by Orange and see what impact these may have on the issue of reasonableness. 

A. BILLING AND METERING PRINCIPLES [5.2.3] 

Both parties were awarded an "A" on the basis, according to the text of the Report, that both applicants indicated they would use "per second" billing, and would not charge for unsuccessful calls, and both would make itemised billing available. On the face of it there appears to be very little between the bidders. 

However, Orange say that the award of an "A" to Meteor being the highest award possible, was unreasonable, because the Evaluators failed to notice or give credit for a significant advantage in the Orange bid over Meteor's bid. Meteor's bid, although based on per second billing, provided for calls to be billed as if they commenced at the very second when one dials the number sought, which is called "send to end" as opposed to the Orange method of billing, which is to charge from the time the call is answered, or answer to end. It was submitted by Orange that it became clear from the documents discovered that this information was available at all times to the Evaluators, but that they either ignored it deliberately (bias) or failed to realise the implications for the customer. Orange claim that such a billing method by which consumers would be charged for, in effect, waiting time, was a significant disadvantage, not taken into account, and which ought to have reduced the mark awarded to Meteor. 

The Director says that (a) as Meteor's bid was clear, it was not necessary to ask it any questions, and (b) as the two applications were evaluated to be equal on the important issues of (i) per second billing, and (ii) no charge for unsuccessful calls, the Evaluators were entitled to award both applicant an equivalent figure of "A". I have set out above under the bias heading what the Director says about this item in terms of the minimal effect which the "send to end" proposal of Meteor would have, and on the judgment no to spend time on a difficult market study. 

Meteor say under this heading (a) that Orange was silent on whether or not it would operate a send to end billing system, and that the Evaluators should not have been obliged to make an assumption that Orange would use what it claims was the market norm. Moreover, Meteor says (b) that the difference in cost, even if the assumption is made, is de minimis on the basis that in most cases calls would be answered within a reasonable period of time and the cost would be very small on a per second basis. 

It seems to me that it is impossible for a court to find that the approach of the Evaluators to this aspect of the Orange bid is in any way suspect or unreasonable. True it may be that the norm in the Irish market is not send to end but that is not really the issue. The issue is whether there was some unsustainable finding, and I find that there was none. 

B. STRENGTH OF DISTRIBUTION CHANNELS 5.2.5 

Under this heading Meteor was awarded a "B" and Orange was awarded a "C". The award of a "B" to Meteor is criticised as being unreasonable having regard to the several An Post factors mentioned above under the "bias" claim. In reality under the bias heading I have set out more information concerning the role of the An Post connection than was directly applicable to bias, and included facts which are more particularly applicable under this heading. 

Orange argue that the same facts support an unreasonableness claim and both the Director and Meteor defend the marks awarded on the same basis. I do not have to consider this in greater detail, as it is clear that the facts would simply be repeated. However I think that the An Post issue, in terms of unreasonableness, is a good example of the manner in which a legitimate exercise can be carried out for the purposes of preferring one bid over another. The basis for the Evaluators awards of "B" and "C" respectively, was that in the case of Meteor, it had proposed a combination of distribution by means of An Post, and a fairly wide range of retail outlets. It was said that, so far as An Post is concerned, the proposed alliance with An Post "fits well into Meteor's mass market approach." So far as Orange is concerned, it is said that Orange had a "full distribution network" but did not produce any evidence of any negotiations with proposed market channels. 

It seems to me that applying the test in the M & J Gleeson case, it would be quite impossible for this court to find that the decision of the Evaluators on this indicator was unsustainable on the evidence before it. It is quite true that some otherwise constitute Evaluation board, or the court -- if it had power to -- might give less or more marks or scores to one or other of the bidders, but of course this is not the test. The test is well surpassed by the Director on this aspect. 

C. ADVERTISING AND BRANDING 5.2.7 

Under this indicator, Orange was awarded a "B" and Meteor was awarded a "C". It is Orange's claim that the award to Meteor of a "C" was unreasonable, because, it was said that, when Meteor was asked about its intended brand, it admitted it had no actual brand chosen. On the other hand it was argued by Orange that it had a highly successful brand, well established and ready to be promoted in the Irish market. Orange claimed that advertising and branding was of crucial importance to a third entrant in a market, where two incumbents were already well established. 

The Director says that the evaluation took place on the basis that this indicator covered not only branding, but also an advertising strategy, a communication strategy, an assessment of the concept behind the advertising strategy, and so forth. It was said that, bearing this in mind, the differences between the two marks was justified. It seems to me that again there is little about which Orange could justifiably complain. It is true that in the course of the evidence, some explanation was given for the philosophy behind the indicator, which, strictly speaking, I should not take into account. However, the tender document set out the various matters which were to be taken into account by the bidders in their bid applications. Meteor drew the court's attention to certain aspects of this part of its bid. Meteor's segment on branding and advertising, as clarified at the oral presentation, in my view made it perfectly acceptable for the Evaluators to have given the two awards, and I find nothing in the Evaluation Report to suggest an unsustainable finding of fact under this heading. 

D. APPROACH TO THE MASS MARKET: 5.2.8 

This is another indicator whose scores are objected to by Orange. Orange were awarded a "C" and Meteor a "B". The "B" was awarded, according to the Report, because of Meteor's "more clear mass market approach". Orange alleges that Meteor is given an unreasonable preference on the basis that it states it is going to be a cost driven entrant to the market, and Orange's "value for money" approach is given a "C", as being "less clear" as a market approach. It is submitted that Orange were wrongly marked down on the marketing side vis-a-vis Meteor, and that Meteor were unfairly marked up. 

It is submitted on behalf of the Director that there is a clear basis found in the Evaluation Report for a difference in scores between Orange and Meteor. Both bidders offer interesting approaches to the mass market, and the two approaches are considered, compared in brief and contrasted, at the end of which a very small difference is found in the scoring. 

It seems to me, without having to consider the arguments made by Meteor on this indicator, that the Director's approach is correct, and that again the awards cannot be legitimately complained of. The awards were well supported, even by the Evaluation Report. 

F. NATIONAL ROAMING. 

Again, I have dealt with national roaming in very considerable detail under the bias heading, and I do not propose to repeat this. 

G. TERMS OF SUBSCRIPTION 5.3.4 

Equally, this has been considered in some detail under the bias issue above. 

This was evaluated on the basis of the intended contractual relationship between the operator and the customer. Under this heading, Orange was awarded a "D" and Meteor was awarded a "C" Orange complains about this marking on the basis that its 12 month contract was held against it. Orange says that such a contractual arrangement was standard in Ireland and possibly elsewhere, and that it arises out of its provision of a handset subsidy. 

Orange say that it was marked down unreasonably for having a mechanism which is not unusual in the market, and Meteor was awarded a better score because it has avoided the issue altogether, and was not questioned by the Evaluators on its own position. 

I will deal with this, together with other matters covered in the bias report, at the end of this section of the judgment. 

G. SPECIAL APPLICATIONS 5.3.5 

Both Orange and Meteor were awarded "D" for lack of innovation under this heading. Orange complains that its highly innovative offer to charge "national" rates for calls to Northern Ireland and the United Kingdom -- not offered by either incumbent, and highly attractive in a new entrant to the Irish market, should have been taken into account. This was especially so, it was submitted, having regard to the fact that two third of Irish international calls terminate in the United Kingdom, and that the Evaluators recognised and reported this, and in fact made specific mention of this favourable aspect of the Orange bid in the -- introduction to the Report, but gave no mark for it. 

Again, I think this is a misjudgment of what a court is entitled to look at in considering the question of reasonableness. There was sufficient basis in the bids for the Evaluators to come to a view that there was a lack of innovation under this heading. It is not for this court to second guess what the Evaluators might have better taken into account under this heading. Equally, it might be said that the Evaluators did take the Orange position into account under a different heading, but they cannot be faulted for coming to the view, as they did, that this was not sufficiently innovative to merit a higher mark. 

H. UNDERSTANDING OF LOCAL ISSUES 5.53 

In respect of this indicator Meteor is awarded an "A" and Orange is awarded a "D" Orange again complains about this award on the basis that there is no justification for the award of an "A", since the only difference was the Meteor had simply met with representatives of the Department of Health, Environment and Public Enterprise, and with an Irish pressure group. Orange argues that this could not be sufficient reason to merit an "A", while Orange's roll out plan involved covering more of the country than Meteor, at an earlier stage, and merited only a "D", although such a roll out plan could only be achieved if Orange had an understanding of local issues. 

Without having to set out in detail the response of either the Director or of Meteor, I am of the view that again this is an unsustainable argument. What is sought to do here is to challenge the weight which the Evaluators sought to attach to the contacts made by Meteor with Departments of Government or with environmental groups. Again, this is suggestive of the court placing itself in the shoes of the Evaluators and deciding that it would award a different mark for the same factors which the Evaluators took into account. This is not permitted. Besides, the award was given, not necessarily for the fact that Meteor had received some information as a consequence of its approaches to the above parties, but rather that the very approaches had, in fact, been made, showing a preparedness, in every sense of the word, on Meteor's part which was not reflected in the Orange bid. 

In my view, this was a perfectly acceptable approach, and did not lead to any unsustainable finding of fact, or any error of law in approach. 

PREPARATION FOR SITE ACQUISITION (5.5.4). 

Under this heading Orange was awarded a "D" and Meteor a "B" and again Orange complains that the much lower award to it was unreasonable. Under Section III of the tender document it was made clear that planning permissions would be necessary for the erection of buildings, etc. Bidders were also informed that the Departments of the Environment and Public Enterprise encourage the co-location of antennae on shared sites. [3.2.3.4J In addition the following was stated: 

"Appendix 6 Contains a list of contact persons representing organisations who indicated a willingness to discuss access to transmission sites." 

Appendix 6 then listed Eircell, The Electricity Supply Board, Esat Digifone, The Garda Siochana, RTE and Telecom. It was stated in the Evaluation Report that Meteor had enclosed letters from ESB, CIE, RTE, An Post, An Garda Siochana and the Department of Defence, indicating a preparedness to discuss negotiations with Meteor about the use of their respective sites. And reference is made in the Report to negotiations with a site acquisition firm in Ireland. It is said of Orange that it only described the process by which it would ensure rapid site acquisition. 

A look at the several letters from the parties mentioned indicates that exchanges took place between Meteor and these parties. The general thrust of these was to the effect that most of them would be prepared to enter into negotiations, of one form or another, for the possible sharing of sites and it seems perfectly clear that Meteor took 'the nod" from the terms of the tender document and actually made the approaches to the various possible co-locators of antennae sites. 

The Director has made a very detailed submission on this aspect of the matter, pointing to the importance of site acquisition in the context of an early roll out and coverage by and intended licensee. I do not have to go into these in detail. In the context of a licence of the type envisaged, it seems to me perfectly plain that site acquisition and/or shared antennae arrangements are not just desirable but essential. 

The Evaluators were entitled to have regard to the approaches actually made, in response to the tender document guidance, and there is, in my opinion no justification for the contention that the awards given were in any way unreasonable. 

G. THE APPROACH TO ACHIEVING DEMOGRAPHIC COVERAGE AND THE SPEED OF ROLL OUT [5.7] 

This dimension was divided into several indicators, including: 

Coverage in excess of the minimum requirements; 

Coverage at launch and five other indicators. 

However, it is "coverage in excess of the minimum requirements" which I will consider first. This issue became quite a heated one. Under this heading, according to the Evaluation Report both Meteor and Orange were awarded an "A". This was seriously objected to by Orange on the basis that, on a correct reading and analysis, the coverage being provided by Meteor was significantly less than that of Orange over the licence period, and that in consequence the decision to award an "A" was an unreasonable one. In order to understand this rather complex issue, it is necessary to give some indication of what this indicator is all about. 

Under the terms of the Tender Document, so far as roll out and coverage is concerned, by which is meant, the putting into place geographically and demographically of a country wide system, there were certain minimum requirements which had to be met by the bidders. The guide to what was required is found under Section II. Part 4: 4.2, combined with Section III, Paragraph 3.3.3.1.1, and 3.3.3.1.2. While not pretending to understand the detail of the technical aspects of the requirements, essentially all bidders had to comply with minimum coverage of: 

(a) not less than one third of the population within two years after commencement of the licence, for DCS 1800 services; 

(b) not less than 80% of the population within four years of commencement of the licence, for the combined DCS 1 800/GSM services; 

In addition to the foregoing, there were certain technical definitions in respect of adequate coverage under the heading "Definition of geographical and demographic coverage'. These two coverages do not in general correspond one with the other, but rather certain assumptions were made by which certain geographical coverage was equated with certain demograph coverage. 

It would also be helpful to draw attention to the fact that under the particular indicator in question, was entitled "Coverage in Excess of the Minimum Requirements". 

The Evaluation Report sets out figure for each of Meteor and Orange in years 1.2.4 and 15, in the form of a diagram, the rationale behind this being, I assume, to have an indication of the efforts intended to be made by each within a short period of a licence being granted, again in years two and four to meet the minimum requirements of the tender, as mentioned at (a) and (b) above and to get a picture of the eventual coverage by the end of the licence period (15 years). 

The conclusion under this indicator reads as follows:- 

"Orange and Meteor both fulfil the minimum requirement for DCS 1800 in year 1 (1998/1999), which is well before the deadline. 

"Concerning DCSI800/GSM Orange fulfils the minimum combined coverage requirement in Year 2, and Meteor in year 3, which is also well before the deadline". 

It seems to me, and the evidence did not dissuade me, that what was being looked at here was not really the overall coverage over the 15 years, but rather the extent to which each of the bidders indicated a preparedness to get to the minimum coverages at the earliest possible stage. The heading "Coverage in excess of the minimum requirements' is slightly misleading I think because it gives the impression that what one was looking at is the extent over the one third or 85% required coverage nationally. 

According to Mr McQuaid once this was achieved "well before the deadline" it did appear to not matter to the Evaluators whether either Meteor or Orange exceeded the percentage coverage required. Both were awarded "A" accordingly, and no bonus was given for the fact that, apparently, Orange's overall national coverage would, on its face, be much or somewhat greater by year 4 than Meteor's. It would have been more correct I think to list the indicator as "coverage in advance of the minimum requirement". 

Mr McDowell submitted that the award of an "A" to Meteor, being undifferentiated as between Meteor and Orange was manifestly unreasonable. Although I have taken the above view of what the Report says, all of the parties entered into a heated debate on the question of the overall coverage nationwide, and the Director and Meteor made very substantial submissions on all of the indicators under the above dimension. In the case of Meteor, it makes the submission in answer really to the attack by Orange on Meteor's so-called national roaming dependence. Essentially the broad dispute between the parties was that: 

(a) On Orange's side, it claimed to have a greater coverage nationwide amounting in all to 97%; 

(b) Both the Director and Meteor rejected this contention and suggested that the approach by Orange was, in fact, misleading, because it simply added up two percentage figures for its DCS 1800 coverage and its GSM coverage, and that some eliding would necessarily have to occur where, in the case of Meteor, it had taken this overlap into account; 

(c) Queries were raised by the Evaluators at the oral presentation on Orange's figures, and it was agreed that these would be dealt with by way of supplemental written questions, which were answered; 

(d) Orange say that when they answered these questions, they made it clear that there was no overlap, despite the fact that the figures coincidentally result, by addition, to 97% or whatever other percentage one looks at; 

(e) Orange also say that, if there were any doubt but that the Evaluators accepted this explanation, this doubt would have been found in the Evaluation Report, which does not anywhere indicate that the Evaluators were left with any doubt. 

(f) The Director and Meteor point to the fact that both Mr McQuaid and Mr Andersen gave evidence that Orange was given a benefit in fact even though the figures were not correct as supplied. 

O'Gorman Meteor points to the fact that the Evaluators carried out a subsequent evaluation, found at 5.7.6 in respect of the degree of coverage at the end of the planning period, and under which it was found that the differences between Orange and Meteor were only marginal; 

I find these arguments and counter arguments impossible to resolve. It is clear that the figures appear to be reached by way of simple addition. It is equally true that the steps at (c) and (d) above occurred, and that the Evaluation Report makes no comment on this. Instead, the indicator is dealt with entirely on a different basis, as is clear from the final paragraph. 

In these circumstances, I do not think I have to embark on any exercise as to whether there was a mistake in favour of Orange in the Evaluation Report. The fact of the matter appears to be that whatever was thought about the responses of Orange, they never found their way into the Report at all. 

As to whether the award of "A" was unjustified, I have come to the view that the award, on the basis on which it was given, and clearly expressed, was justified and not unreasonable. 

In passing I should say that this heading of complaint also formed one of the grounds of alleged bias by Orange. For the reasons which I have set out above, I do not think the issues arises in truth under either heading, and I did not in the circumstances consider it necessary to come to a view on it, vis a vis that claim. 

H. COVERAGE OUTSIDE THE GREATER DUBLIN AREA 

Each of Meteor and Orange were awarded an "A". Orange advance that the award of an "A" to Meteor was unreasonable because Orange was proposing 73% coverage while Meteor was proposing, only 64%. On its face, it is clear that there is a difference between the apparent coverage by one bidder over the other. 

However, the Director has made it clear in submission that the Evaluators were fully entitled to take into account the differences in the deployment by one bidder, in accordance with its bid, of a more predominant GSM programme, and on the other hand the deployment of a predominant DCS 1800 programme, with a difference in terms of coverage and I find that, taking into account the contents of the bids, and the submissions made, the Evaluators were entitled to come to a view that there difference between the two parties was not sufficient to justify any margin between them. 

I. FINANCIAL AND MANAGEMENT ASPECTS AND SOLIDITY: 

I have dealt with this matter in some considerable detail in the context of the changes appearing in the draft and final reports, and I don't propose to revisit this aspect of the matter. 

Under this dimension, covered in the financial section, are: 

(a) solidity; 

(b) sensitivities; 

(c) experience; 

(d) expertise. 

as indicators. 

The only indicators which I consider merits any consideration under the heading of unreasonableness are the last two of these (c) and (d), which are reported under 5.10 in the Evaluation Report. 

J. EXPERIENCE AND EXPERTISE [5.10] 

Under this general heading, Orange points to the fact that it scored consistently better than Meteor, save in respect of one indicator or sub-indicator. The report states: 

"Experience and expertise as defined in the evaluation model is the only dimension under the management aspect. 

The following indicators were identified to cover this dimension: 

-- Preparedness of the personnel and the organisation 

-- Transfer of expertise 

-- DCS 1800 and GMS900 occurrences in OECD member countries 

-- Degree of 3rd licensee or "last mover" cellular expertise in OECD member countries 

-- Experience of the applicant in the Irish market 

Experience of the Applicant in the Irish market 

Under the last of the sub indicators, Meteor was awarded a "D" and Orange was awarded an "E" in the following terms:- 

"Based on the experience of RF Communications, which is of limited value, Meteor is awarded a "D". Providing effectively a '"blank page ", Orange is only awarded an "E". 

This reasoning and the awards given, are objected to by Orange. Orange argues that marking down a party, which is bidding to be an entrant into a market in which it is not already operating which must of necessity mean that it will have no expertise on the Irish market in that field, is unreasonable. Neither indeed, say Orange, did Meteor have any expertise -- in the Irish Market but was awarded a higher score. Secondly, Orange say that so far as RF Communications is concerned, as one of the members of the Meteor consortium, the suggestion that it be awarded marks in respect of meetings with site owners or with ICAMP is wrong, since this had already been marked under another heading. 

Finally, Orange object to the award under this heading on the basis that, under EU law, the Director cannot legally mark down a non Irish entrant on the Irish market because it has no Irish experience. There is no valid basis for marking down an EU company on the basis that it did not have pre-existing experience in the relevant market. 

In my view it is clear from the tender document (Section II, Part 5) Material Aspects that "Competence and Experience" is something which the bidders had to describe. 

Under this heading, the only experience spoken of in the document is in the field of establishment of telecommunications in general, and then in mobile communication in particular. Experience arising from ownership of networks in OECD countries is also mentioned, as well as from ownership interests in other mobile telephone networks also has a listing, and experience working as part of a consortium, if relevant. Finally, other relevant experience. 

Nowhere is there any mention of any requirement for local or specifically Irish experience. All of the above headings are reflected in the Report, and they are, for the most part, almost identical to what appeared in the Tender Document. However, the "Other relevant experience" appears to have been converted by the Evaluators into "Experience of the Applicant on the Irish market, "although there is neither a suggestion in the Tender Document that this is what is required nor any indication that this was what was expected. 

Orange dealt with the Tender Document requirement by responding to 5.1(a)(b)(c) and (d), but did not furnish any information under (e) 'Other relevant experience. 

Meteor dealt with the Tender Document requirement by responding also to 5.1 in the same way as Orange, but with a different emphasis. However, even allowing for the difficulty in reading the copy of the Meteor bid document, Volume 5, it is possible to glean from it that nowhere did Meteor submit to the Director that under "other relevant experience" it was relying on any approach to Government Departments or any meeting with ICAMP, to meet the "other relevant experience" segment of 5.1(e). 

I find that there was no apparent justification for converting '"other relevant experience" to "experience of the applicant in the Irish market" without notice to the parties. 

Since neither party claimed to have any such experience, it is difficult to see where the Evaluators found any relevant Meteor Irish "experience" in the sense in which that word must be understood. Nowhere was there any suggestion by Meteor, that it considered an approach or approaches to Government Departments or to other parties, in reality would come within the term "experience in the Irish market" which is undoubtedly directed to the equivalent of experience on other markets, if any. 

I find that the decision to award an "D" to Meteor for alleged "experience" in the Irish market was an unreasonable one, and equally I find that the decision of the Evaluators to award an "E" to Orange on the basis that it had no such experience, was also unreasonable. 

The facts and matters adduced by Orange under this heading, on the bias issue, are also those supporting the reasonableness claim I do not find that Orange is entitled to raise any objection on the basis of the guarantees actually given by Meteor, nor on the awards made in Meteor's favour. The "C" and "D" of which the main complaints are made were matters well within the entitlement of the Evaluators to adjudicate upon, and there was evidence, whether a court or a differently constituted Evaluation team might or might not deal with in a different, upon which the Evaluators could rely. 

In this part of the action, having regard to the scope of the appeal, I am only concerned with whether or not the Director's decisions based on the Evaluators' Report, were reasonable. I am not concerned with whether a Court or another Evaluator might come to a different view. I do not think that the issue of unreasonableness can be disposed of on the basis of a mathematical calculation, that is to say, taking 67 indicators and finding for Orange on, say, one third or one half. I have to look and see, according to the law, whether, if a particular element or contribution of elements are unreasonable, that has a material effect on the overall process. With very few exceptions, based on the range of examples which I have set out above, many of the decisions of the Evaluators were perfectly reasonable and cannot be challenged. 

Significant and substantial legal arguments were made to me both on behalf of Meteor and on behalf of the Director. Having found, as a fact, that the above grounds of alleged unreasonableness do not succeed for the most past, I do not have to deal with legal issues in the context of those headings. 

However, that leaves outstanding the very few items above together with the several items in respect of which I have found that there was bias. Some of bias issues were not, strictly speaking, issues on which an award was given, for example, the question of an Orange "one network" concept, and the suggestion that Orange had misled the Evaluators in relation to the Belgian licence and its knowledge of Meteor bid. But several other headings were those in respect of which awards were, in fact, given. These include (a) binding commitments on tariffs, (b) low tariffs, (c) terms of subscriptions, (d) the issues surrounding bonus to distribution channels, (e) guarantees from backers and (t) strength of consortium members, and others. These individual awards say Orange, must fall as being also unreasonable because they were reached by means of bias, and cannot therefore be considered to be reasonable. 

Both Meteor and the Director argue that for grounds to succeed on the reasonableness basis, I should have regard to the various authorities cited in the ALALSI Gleeson case, supra, and I agree. In basic terms, the court will not interfere unless (a) there is an identifiable error or law, or (b) there is an unsustainable finding of fact; or (c) there is a significant erroneous inference drawn from the facts critical to the decision or going to the root of the decision. 

Now it is also stated in the M & J Gleeson case, supra, that in that case the court indicated that the complaining party must establish that each unreasonable element relied on must be one which is not simply relevant, but, in essence, goes to the core of the decision makers decision. In general I would agree with such an approach. 

However, it seems to me that where, on a variety of issues, many of which are acknowledged to be critical to the Director's decision, the combination of these is critical to the decision, it would not be correct to ignore the overall combined effect of all of the unreasonable or biased decisions, and to suggest that each one must be viewed in total isolation. 

I find on the combined basis, as well as on the basis of bias alone, that the decision of the Director cannot be sustained. On the facts which have established bias, as set forth above I find that those facts also support a claim to unreasonableness. 

3. THE FAILURE TO GIVE REASONS: 

The next challenge which Orange mounted to the decision of the Director, is based on its contention that no reasons were given by the Director for her decisions. 

In order to understand the basis for this challenge, it is necessary to refer again to the legislative framework in which the Director was operating. Functions previously vested in the Minister prior to being vested in the Director under the 1996 Act included those under the Postal and Telecommunications Services Act 1983. As I have said above; Section 111 of that Act was amended by the provisions of the European Communities (Mobile and Personal Communications) Regulations, 1996, which came into effect in or around May 1996. It is this section of the amended act of 1983 which Orange relies on, and which Orange claims provides the scheme pursuant to which the Director may grant or revoke licences. Section 111(2) of the Act of 1983 provides as follows:- 

"The Minister may after consultation with the telecommunications company grant a licence to any person to provide a telecommunications service of a kind not within the exclusive privilege granted to the telecommunications company 

The "telecommunications company" referred to in this subsection is a company mentioned in Section 10 of the Act, and is not material for the purpose of the argument in this case, but is included as the starting point. 

This section was further amended by Regulation 7 of the European Communities (Telecommunications Services) Regulations, 1992, which added a new subsection 2(A) reading as follows:- 

"2(A) A licence to provide a telecommunications service may be granted by the Minister under this subsection on the basis of a declaration by the applicant for the licence . . ." 

Again, this subsection is not particularly material to the arguments in the present case, but is included for completeness sake: 

Section 111 was then further amended, in a substantial way, by Regulation 4 of the European Communities (Mobile and personal Communications) Regulations, 1996, by adding a new subsection 2(B) which reads as follows:- 

"(a) In this subsection, save where the context otherwise requires, 'licence' means a licence under subsection (2) to provide a mobile and personal communications service or a mobile and personal communications system. 

(b) A person shall not provide mobile and personal communications services or mobile and personal communications systems otherwise than under and in accordance with a licence; 

(c) A licence shall remain in force for such period as may be specified therein and may, while it is in force, be continued in force by the Minister from time to time for such periods as may be specified in amendments of the licence. 

(d) A licence and the granting or the refusal to grant a licence shall be in conformity with the requirements of Commission Directive No 9 0/338/ EEC of 28 June 1990, as amended by Commission Directive 96/2/EC of 16 January 1996; 

(e) Without prejudice to subsection (3) but subject to paragraph (d), a licence shall be subject to such terms and conditions as the Minister may determine and specify in the licence including terms and conditions authorising the suspension or revocation of the licence by the Minister in such circumstances as may be specified in the licence and the amendment of the terms or conditions of the licence by the Minister, and an amendment of a licence shall be effected by the furnishing to the holder of the licence, by or on behalf of the Minister, of a document containing the amendment. 

Whenever the Minister proposes to refuse to grant a licence or to revoke or suspend, or amend a term or condition of a licence, 

(i) the Minister shall notify the applicant for the licence ("the applicant") or, as the case may be, the holder of the licence ("the holder") of the proposal and shall include in the notification a statement of the reasons for the proposal and of the rights of the applicant or holder under paragraph O'Gorman, and 

(ii) before deciding to refuse such grant, or as the case may be, to revoke or suspend, or amend a term or condition of the licence, the Minister shall take into account any representations the applicant or, as the case may be, made by the applicant or, as the case may be, the holder within the period specified in paragraph O'Gorman in relation, to the proposal aforesaid O'Gorman A person may, within 21 days of the receipt by him or her of a notification under paragraph (I), make representation to the Minister in relation to the proposals concerned 

(h) The Minister shall notify the applicant or holder concerned in writing of a decision by the Minister to refuse to grant or to revoke or suspend a licence or to amend a term or condition of a licence and shall include in the notification a statement of the reasons for the decision and, where appropriate, of the rights of the applicant or holder under paragraph (i) 

(i) A person may, within 28 days of the receipt by him or her of a notification under paragraph (h)' appeal to the high Court against the decision concerned not being a decision to amend a term or condition of the licence concerned) and the high Court may confirm the decision or direct the Minister, as the may be appropriate, to refrain from granting, revoking or suspending the licence concerned, and the Minister shall comply with a director under this sub-paragraph and shall not implement the decision unless and until it is appropriate to do having regard to the outcome of the appeal. 

Against that legislative background Orange claim that the duty on the Director to give reasons arose at two Stages, namely, Stage 1, when the Director proposes to refuse to grant a licence (in this case in September 1998) and Stage 2, when she actually refuses to grant the licence to Orange, (in this case October, 1998.) 

Orange submits that the failure to give reasons at Stage I falls within the ambit of the decision of Carroll, J in Germark Pharma Limited v The Minister for Health, unreported, July 1997, by reason of the fact that Orange was deprived of an opportunity to make proper representations to the Director, because the Director refused to make available to Orange the AMI Report which formed the basis for her decision to rank Meteor first and Orange second. 

It would be helpful to set out the sequence of events surrounding this aspect of Orange's claim, which is as follows:- 

(a) On the 19 June 1998, the Director wrote to Orange referring to the "application for the above licence received on 6 April. A comparative evaluation of both applications has now been completed in accordance with the evaluation criteria outlined and weighted in the tender document. I have accepted the report on the evaluation of the applications and am now in a position to inform you of the ranking as follows:- 

1. Meteor 

2. Orange 

In accordance with Section 1, Paragraph 1.6 of the tender document I intend to initiate discussions with the higher ranked applicant with a vieawarding the licence. 

I would be happy to arrange a half hour briefing for you next week on the outcome of the competition . . . " 

(b) A Press Release issued the same day, 

(c) An identical letter was written to Meteor on the same day notifying it of the rankings and indicating that discussions would be commenced with the higher ranked party; 

(d) A short briefing took place on the 25 June, but there does not appear to be any written note of this briefing or at least no note which was opened to me. 

(e) On the 6 July a letter went by courier from Orange to the Director in which Orange referred to the letter of the 19 June and the half hour oral briefing of the 25 June. I take it from the content of the letter, that the Director's own letter of the 6 July referred to below had not reached Orange when it wrote to the Director. The letter complained to the Director that no opportunity was being given to Orange to raise queries on the Evaluation Report or to have access to the assessment papers, other documentation, minutes of the meetings of the Evaluation/competition group markings relating to weightings, etc. Orange requested access to these on what it called "a fair and reasonable basis", and said that such a facility was afforded and availed of in other jurisdictions relating to similar competitions. A formal request was made by Orange to have access to "all papers, documentation, transcript, minutes of meetings and markings dealing with the evaluation of Orange and Meteor". This letter was acknowledged on behalf of the Director but I find no formal response. 

(f) On the 6 July, 1998 also, the Director wrote to Orange following the above briefing, and enclosed a report entitled "Summary Reports on Individual Applications Orange Communications Limited" After a general introduction, it was stated "This report is intended to provide information to Orange on the evaluation of their application." These are the summary reports found at the back of the report and the Appendices in Core Bundle 5 furnished to the Court. 

This Summary Report was just over three pages in length. After the introduction, which occupied most of page 1, the report then mentioned the various weights which had been disclosed in the Tender Document, and the sub weights within each of the Group weights. By that report it became clear that "proposed tariffs" had been allocated a weighting of 20% (of the 38% total for that section). The report included the following General comment:- 

"The application submitted by Orange was generally of a high standard and was considered credible. The application passed the initial admittance procedure. This included a test of compliance with both the formal and, minimum requirements. There then followed comments on the material provided by Orange under the various Group headings. Under Tariffs, Marketing and Services, Orange was told: 

(a) The application was not particularly strong on tariffs; 

(b) The possibility of introducing call charges to Northern Ireland and the UK at national rates, with no roaming charges, was noted as a positive feature. 

(c) The application did not provide any binding commitments on tariffs; 

(d) Tariff development and critical information was qualified with words such as 'indication" and "potential". This had an impact on the scoring of the tariffs dimension which accounted for 20% of the overall marks, 

(e) The proposed marketing strategy was generally strong including the approach to segmentation. The analysis of the relative positions of competition in the market was considered positive. The overall score could have been improved by more specific analysis of the Irish market from the perspective of consumers as well as more details of specific proposals for distribution channels. 

(f) The customer care proposals were considered positive. However, this element could have been developed further with additional information provided, eg, sample customer contracts. 

O'Gorman Orange's proposals for achieving technical quality in the planned network and also for achieving demographic coverage and the speed or roll out received a high score. 

(h) The approach to the acquisition of sites and permissions is important for Orange. The commitment to sharing was noted as a positive factor. The application would have benefited from more information on the proposed approach to acquisition of sites, including documented evidence of more extensive preparatory work and elaboration of an understanding of the local environmental planning issues. 

(i) A more in depth proposal could have lead to a higher score on the approach to environmental issues. 

(j) Orange was assessed as reasonably strong on financial solidity in the context of the telecommunications industry. The overall score could have been improved by clarifying what minimum solvency ratio would be offered as a binding commitment. (emphasis added) 

(k) Orange's business case has a high exposure (a negative accumulated operating and investing cash flow) during the initial years and remains negative for a considerable period. This led to a reduced score on financial sensitivities. 

(l) Orange was strong on last mover experience. 

(m) On the heading Performance Guarantee, because of the failure to provide key material, this led to a low score. 

The Director, who adopted substantially the same approach, cited a number of areas where the score could have been improved by additional information, including (by example: 

-- commitments to tariff levels; 

-- approach to acquisition of sites; 

-- performance guarantees; 

On the same day the Director sent Meteor a similar note with a briefing document enclosed. This document followed the same format as the Orange one above, save that the examples which were drawn to Meteor's attention as evidencing good or poor aspects of its bid differ to those in the Orange case. It is, however, noteworthy that the "General" comment is identical in both cases. Both the range of tariffs and the binding commitments to tariffs were mentioned as being strong. The marketing strategy (including the distribution arrangement with An Post) was considered "reasonably good". Better branding and advertising proposals were indicated as having the potential to an improved score. A similar comment was made in relation to terms and conditions of subscriptions. Somewhat similar comments were made on network coverage, etc but the financial aspects were commented on adversely, as being "not particularly strong on financial solidity", in particular "the financial strength of the consortium" and "guarantees from backers", but the business was considered "robust". Meteor was considered "strong" on performance guarantees. Again, in the conclusion section comments were made on areas in which Meteor could have improved matters. 

Orange submits that the failure of the Director to give reasons fatally undermined the entire statutory process which provides only a limited form of appeal. 

Orange also claims that when the Director did comply with her statutory obligation, she provided wholly inadequate reasons for the refusal. 

Orange say that the Director rendered nugatory Orange's statutory right to make representations to the Director which might persuade the Director to change her mind. It submits that if the representations had been made, and had been disallowed by the Director, and if the Director had then further complied with her statutory obligation, the Court would have before it:- 

-- A detailed notification of the reasons for the ranking of Meteor first; [this is not correct I think, because all she is required to do is give reasons why Orange was about to be refused]; 

-- Detailed representations as to why the AMI Report is fundamentally flawed and as to why Orange should have, in fact, been ranked first; 

-- Detailed reasons rejecting the subsequent representations of Orange and stating why Orange were rejected, Orange says that, in those circumstances, Orange would have to show, by reference to these detailed records, that the Director had reached a flawed conclusion to refuse a licence to it; 

Orange say that the Court has been deprived of the record which would enable the Court property to exercise its appellate jurisdiction in accordance with the Court's ruling. Orange argues that the failure of the Director at Stage I meant than in reality there was no prospect that she could comply with her statutory obligation at Stage 2. 

Orange then dealt with the suggestion made in correspondence and subsequently made by submission that Orange had received reasons for the Director's decision in the form of the notification dated the 19 June and a briefing report furnished on the 6 July 1998. Orange allege that this contention is false because:- 

(a) even with the briefing document of the 6 July, Orange was unable to address the real issues which had influenced the Director to refuse to grant a licence to it, ie, that Meteor's application was preferred to that of Orange; 

(b) The Director in the Judicial Review proceedings did not suggest that the briefing document contained the reasons for the refusal. 

(c) On the 22 September, 1998 the Director wrote to Orange indicating that she proposed to refuse to grant a licence to Orange, and stating "The reasons for the proposal to refuse to grant the licence are that in the detailed comparative evaluation during the competition process, Orange Communications Limited was not ranked first and the discussions entered into with the higher ranked applicant are satisfactory." The Director then advised Orange of its right to make representations within 21 days. 

(d) Although not known to Orange prior to discovery, this last letter was preceded by a memorandum to the Director from John McQuaid, dated the 17 September, entitled "Update on Meteor Licence" in which it was stated that a draft licence was sent to Meteor on the 19 August 1998, and that a meeting to discuss the terms of the draft licence had taken place on the 2 September. A copy of an amended draft (after legal advice was received from the Director's Solicitors), was sent with the memorandum, which also indicated that a letter was expected from Meteor on the following day confirming that the terms of the licence were acceptable to Meteor. 

(e) That memorandum also informed the Director that letters to Orange and Meteor were also attached for signature, and that after receipt of these by Orange, Orange would be entitled to make representations within 21 days of the letter under S 111 of the Act. The memorandum also stated: "The next step is to notify Orange of the decision to refuse to grant a licence following which Orange may within 28 days of the receipt of the notification appeal to the relevant Court" and "The final step is to issue the Licence". I assume that the letter dated the 22 September is the one referred to in the last paragraphs. Orange argue that this memorandum demonstrates that Orange were to be deprived of its statutory right to make representations which might have an influence on the Director. 

(f) On the 23 September Orange wrote to the Director claiming that the alleged reasons for her proposal to refuse to grant a licence to Orange were invalid, inadequate and not of the type contemplated by the 1983 Act (as amended), did not enable Orange to make representations, and was ultra vireos for that reason. O'Gorman On the 28 September 1998 the Director wrote in reply and rejected the suggestions made by Orange. 

(h) Orange made written representations by letter dated the 12 October. These submissions were very long and repeated Orange's view that the reasons of the Director were not such as was contemplated under the Act, and make the submissions without prejudice to Orange's contention that the Director's refusal to give reasons prevented Orange from having an adequate opportunity of preparing representations. 

(i) The submission was stated to be based on the Director's Summary report, and in particular addressed the areas which the Director had indicated could have been enhanced. It is not necessary for me to consider or set these out in detail, but I should perhaps draw attention to the submission made by Orange in relation to tariffs, because this is a matter which is for consideration under some other headings, and this read as follows:- 

"Orange would now like to confirm that the maximum tariffs which were included in table 7.8 of its application are to be interpreted as being maximum tariffs which are offered to all customers and which will not be exceeded over the period of the time other than to be adjusted in accordance with the actual inflation rate. "(emphasis added) 

(j) These representations were responded to by the Director in a lengthy response dated the 30 October 1998. It is, again, not necessary for me to detail the response, but I should say that the Director rejected the introductory contentions of Orange, dealt with each of the individual submissions made, and concluded that the submissions furnished by Orange were either (a) the same as the original submissions which had been considered fully, or (b) new material which the Director was not in a position to receive or consider, as this was outside the terms of the original tender. 

(k) In that response also the Director notified Orange that pursuant to S 111 (2B)(h), the Director had decided to refuse to grant Orange a licence, and stated the reasons to be "that in the detailed comparative evaluation during the competition process Orange was not ranked first and the discussions subsequently entered into with the higher ranked applicant were satisfactory. In addition, none of the representations made by Orange . . . contain any argument of substance which I can properly take into account which cause me to reconsider the proposal (already communicated to you by letter on the 22 September 1998) to refuse to grant you a licence". 

Against the foregoing legislative framework, and the factual sequence set out above, Orange submit that the failure to provide reasons was (a) in breach of the statutory obligations imposed, and (b) not in accordance with the case law on the furnishing of reasons, and ought to be struck down. 

As to the cases on the matter, these fall into two categories, possibly three, namely (a) those where the reasons are sought simpliciter, (b) those in which the reasons are sought where there is a right of appeal, and (c) those where there is no guide as to whether or not a party is entitled to have reasons at all. 

Orange relies on a number of cases in support of its claim that actual and detailed reasons must be given both at Stage 1 and at Stage 2. 

Orange says that in the majority of cases where the Court has been asked to rule on the duty to give reasons, and the extent of the reasons required to be given, applications have been in matters of Judicial Review, from decisions of administrative bodies, which have not been, by statute, obliged to give reasons for their decisions. In that regard, Orange places reliance on State (Creedon) v Criminal Injuries Compensation Tribunal [1998] IR 51 in which it was held that for a tribunal "such as the respondent to reach a conclusion rejecting in full the claim of an applicant, and not to give any reason for the rejection, was an unacceptable and improper form of procedure," and also:- 

"Once the Courts have a jurisdiction and if that jurisdiction is invoked, an obligation to enquire into and, if necessary, correct the decisions and activities of a Tribunal of this description, it would appear necessary for the proper carrying out of that jurisdiction that the Courts should be able to ascertain the reasons by which the Tribunal came to its determination . . . the requirement that justice should appear to be done, necessitates that the unsuccessful applicant before it should be made aware in general and broad terms of the grounds on which he or she has failed" 

Orange also relies on International Fishing Vessels Limited v Minister for the Marine, [1989] IR 149, in which it was said:- 

"It is common case that the Minister's decision is reviewable by the Court. Accordingly, the Applicant has a right to have it reviewed but in refusing to give his reasons for his decision, the Minister places a serious obstacle in the way of the exercise of that right. He deprived the Applicant of the material he needs in order to be able to form a view as to whether grounds exist on which the Minister's decision might be quashed. As a result the Applicant is at a great disadvantage, firstly, in reaching a decision as to whether to challenge the Minister or not, and secondly, if he does decide to challenge it, in actually doing so, since the absence of reasons would make it very much more difficult to succeed" 

Orange also relied on the comments of Costello, P in McCormack v The Garda Siochana Complaints Board and Others, unreported, January 1997, in which the duty to give reasons was considered, and in respect of which, the learned President said, inter alia,: 

". . . the Court will be required to consider: 

c. The possible detriment the complainant may suffer arising from the failure to state reasons. To give an example of a possible detriment; if a statute permitted an appeal to the Court from a decision of an administrative authority on a point of law, the failure to give reasons for a decision may well amount to a breach of a duty to apply fair procedures if it could be shown that their absence rendered ineffectual a statutory right of appeal." 

These decisions, and others, including the case of O'Dwyer v McDonagh and others, unrept'd, 14 October 1996, were reviewed by the Court in Maigueside Communications Limited & Others v IRTC and Others, unreported, July 1997, in which the Court found that there was no requirement to give reasons, and in which the Court stated:- 

"It is clear from the judgment in the O'Dwyer case that the learned Barr J makes a distinction between the exercising of a judicial or quasi-judicial function and the procedure whereby one candidate is selected for promotion from a pool of applicants. 

"The applicants have suffered a detriment which was bound to be suffered by all unsuccessful applicants, that of having put a great deal of time, effort and money into the making of an application which was not successful. This detriment, however, does not arise from the failure to give reasons, but from the actual rejection of their applications. This is not a situation where the statute permits an appeal to this Court from the decision of the Commission and the failure to give reasons would render ineffectual a statutory right of appeal." 

Orange say that these case show some of the views of the Irish Court on the requirement to give reasons in circumstances where administrative bodies are neither required to give any reasons pursuant to statute nor from which there is a statutory right of appeal to the Court. 

Orange admit however, that these cases are not of central relevance to the issue before this Court, because (a) the Director is required to give reasons at two stages, and (b) there is a statutory right of appeal to this Court. I am inclined to agree with this contention because it seems to me they do not cover the position which arises under statute here. 

Orange also relies on a series of cases in planning law to support its contention that reasons must be of a particular type citing both O'Keeffe v An Bord Pleanala and O'Donoghue v An Bord Pleanala [1991] ILRM 750 and State (Sweeney) v Minister for the Environment [1979] ILRM 35. In O'Keefe it was said; insofar as ascertaining reasons is concerned; 

"What must be looked at is what an intelligent person who had taken part in the appeal or had been appraised of the broad issues which had arisen in it, would understand from this document, these conditions, and these reasons." 

Orange also relies on Genmark Pharma Limited v The Minister for Health, unreported, July 1997, concerning an alleged failure of the Minister for Health to give reasons (which he was statutorily obliged to give), for refusing to grant product authorisation for a pharmaceutical product. It was said:- 

"Genmark was entitled to know what were the final grounds put forward by the NDAB so that it could respond to them before the Minister made his decision. It is not enough to say that Genmark was aware of the main ground, ie, lack of randomised phase three clinical trials. It was entitled to be informed of all the grounds. 

Genmark also complains that the Respondent failed to give reasons for this decision. This is not just required by natural and constitutional justice, but it is specifically required by Directive 65/65. Article 12 requires a refusal to be notified stating in detail the reasons on which it was based In my opinion, it was insufficient for the Minister just to refer to regulations. Article 12 required detailed reasons to be given. The Regulations deal with generalities." 

Orange also referred to Ni Eili v Environmental Protection Agency, unreported, February 1998, in which the High Court had held that the reasons required to be given were readily ascertainable from the decision of the Environmental Protection Agency and the conditions annexed thereto. The report of the case, however, Orange says, indicated that very considerable documentation was available to the Applicant, from which the reasons could be gleaned readily and says that, absent the same, the Court would have found the reasons lacking. 

These latter cases, with the exception of Ni Eili dealt with the right to reasons to enable a Court to exercise a supervisory function. It is submitted by Orange that these case are applicable to Stage 2 of the reasons stages required by the statute. It is argued by Orange that, at Stage 2, the purpose for reasons is to enable Orange to know whether it has good grounds for an appeal and then to enable it to formulate an appeal. It is argued by Orange however, that the Director's reasons were wholly inadequate and fall within the category of exiguous reasons identified by Costello P in O'Keeffe, and within the principles advanced by the Court in the O'Donoghue case which I mention in greater detail below, namely, that it is an informative, if technically correct, reason. It is submitted by Orange that the failure to give reasons wholly undermined its right to assess whether it had good grounds of appeal and to formulate those grounds. 

It is argued by Orange that it was only after the completion of the discovery process in the present case and the disclosure by the Director of the AMI Report at that stage that Orange became aware of the real reasons for its ranking and thereby was able to formulate proper grounds of appeal. 

A separate argument is made in respect of the failure of the Director to give reasons at Stage 1. Orange contends that this failure comes within the observations of the Court in the case, supra. Orange claims it was wholly deprived of any opportunity to make proper representations to the Director by reason of the refusal of the Director to make available the AMI Report which formed the basis for her decision to rank Meteor first and Orange second. 

It is said by Orange that when the Director eventually complied with her statutory obligation to notify her proposal to refuse the licence to Orange, she provided wholly inadequate reasons, and thereby rendered nugatory the right of Orange to make representations to her which might persuade her to change her mind. 

It seems to me that none of the above cases really deals with what is required for consideration in this case. 

On the duty to give reasons, both the Director and Meteor adopt similar approaches. On the part of the Director, there is general agreement with the relevance of the cases mentioned by Mr Gardiner on behalf of Orange. 

However, the Director urges to the Court to look at the matter from the point of view of the Court being, in many cases, reluctant to oblige the provision of reasons, and point to many cases in which no such reasons have been. Mr Hogan urges the court to accept that the actual reasons given were perfectly acceptable in the circumstances of a competition, but it seems to me that this is a separate matter. 

In support of his argument, Mr Hogan refers to several cases, and indeed Mr Cush, on behalf of Meteor adopts a somewhat similar approach. 

It seems to me, however, that arguments by which the Court is asked to view the statutory obligation to give reasons in the light of cases in which the courts were considering whether or not any reasons should be given, are not aposite, even from the point of the argument that courts are, in frequent circumstances, reluctant to direct the provision of any reasons, or for the purposes of persuading me that, that being so in such cases, I should read the obligation in the present case, found in the 1983 Act as having some limitation built into it. I think that this is simply an incorrect argument at law. 

A much more important aspect of the case made by the Defendant, and equally by Meteor, is the answer which they give to Orange's claim that the reasons actually given were inadequate. Each of the Director and Meteor rely four square on the case of Adia Interim v The Commission of the European Union, a decision of the European Court of First Instance, in which Adia had complained, inter alia, that no adequate reasons were given for the decision of the Commission to reject the Adia bid in respect of a public procurement contract of which Adia had been a bidder. 

The facts of the case can be summarised fairly readily. Under the public procurement Regulations, tenders were sought in respect of the provision of certain services for the supply of contract personnel. These public procurement regulations provide that, in the case of tenders pursuant to the Regulations, these can be based on the lowest bid, or on the "most economically advantageous bid". There were six bids in all, and three short criteria had been specified in the tender documents, including price. After the tendering process had concluded, Adia was notified that it was unsuccessful. 

Adia then requested reasons for their rejection, and those reasons were included in a letter to them. Having set out the background to the tendering process, and the manner in which the process operated, Adia were then notified that they were not among the three tenders deemed by the process to be "the most economically advantageous" and the names of the three successful bidders were then listed. 

Adia appealed from that decision on the basis of inadequate reasons, inter alia. The Court rejected the appeal, stating that adequate grounds had in fact been given, and pointing to the fact that, when the grounds were given, Adia knew, and confirmed in court that they knew, the basis for their rejection. This happened to be that Adia had made a calculating error in their bid, which meant that they had, in effect, eliminated themselves from the bid. 

Both the Director and Meteor rely on this case, as being a case supportive of reasons furnished, in the course of a tendering process, which simply indicated the fact that Adia was not "the most economically advantageous" as supporting the manner in which the Director furnished her reasons, in September and October. 

But I am not certain that this is an analogous case to Adia. In the first place, it is very clear from the judgment of the Court, that the tender was one which was very simple in nature having only three basic requirements as to price, being (a) net hourly wages, (b) gross hourly wages and (c) an hourly billing rate. More importantly, the Court confirmed the principle behind the obligation to give reasons as being that, according to Article 190 EC is that parties affected by the reason must be able adequately to defend their rights, and a court must be enabled by the reason to exercise its supervisory jurisdiction. These are principles which are also well established in Irish law. Secondly, the Court held that the reasoning (not simply reasons) must be disclosed in a clear and unequivocal fashion, so as to enable the above principles to be met. 

Thirdly, in that particular case, the court laid considerable emphasis on the fact that, in the course of the healing, referring to the Commission's second letter, did in fact provide sufficient reasons, since Adia was "thereby able to, and in fact did, identify the precise reasons for its rejection, namely, the systematic calculation error." 

It seems to me that the true principles to be gleaned from Adia are (a) that there is a clear obligation to state reasons, (b) the reasoning must be clear and unequivocal and enable the party to defend its rights and the court to exercise its appropriate supervisory role, and (c) each case must be considered on its own peculiar facts to establish whether or not the reasons do or do not meet the criteria. In the case, which was a very simple case, they did, and Adia admitted they did. 

It is undoubtedly the case that some analogy can be taken from the decision in the ADIA, supra. But it is possible readily to distinguish that case one two or possibly three grounds, namely: 

(a) In that case, from a factual point of view, there were only three possible criteria by which the tenderers were being adjudicated. This made it easy for the Applicant to ascertain under which of these criteria they might have failed to be among the three possible contenders for the contract; 

(b) In that case also it was admitted by the Applicant in the course of the hearing itself that the Applicant was in fact readily able to ascertain from the letter of the 21 December, the reason why they had failed to be among the three successful candidates. Therefore the Court quite properly held, as a fact, that the reasons were adequate, inter alia, because the Applicant acknowledged itself that it could ascertain the read basis for its failure from the terms of the reasoned letter of the 21st; 

(c) From a legal point of view the statutory scheme in which the Applicant sought to have reasons was quite different from that operating in the present case. It is true that the Court held that reasons are required, at least in certain circumstances, so that the party who has tendered is in a position to defend its rights. This is most likely to occur where legal proceedings are available to a tenderer, so that the tenderer can decide to avail of such rights. A somewhat similar position has arisen in several Irish cases where the courts have made it quite clear that, where a party requires reasons for the purposes of either ascertaining whether rights exist or where such reasons are required so that the legal proceedings can be properly drafted, then -- certainly in the case of judicial or quasi judicial acts of administrative bodies, reasons are required. 

But in the present case, whereas some comfort can be found for the Director's position in the case of what Orange calls Stage 2 reasons, it seems to me that even then the extent and adequacy of the reasons given are questionable. However, when I consider the statutory requirement to furnish reasons at what Orange calls Stage 1, then Adia is not, in my view, a case on which either the Director or Meteor can readily rely. Why is this so? 

In the first place, the statutory scheme adopted by the Oireachtas for the granting/revoking of licences is such that it has decided to grant a statutory right to any Applicant/Licensee to have reasons at Stage 1 in the process. The only reason for granting such a statutory right is to enable the Applicant/Licensee to make the representations which they are, by the same statute, entitled to make to the Director. To do that, there is, in my view, a statutory right to have reasons which enable the Applicant/Licensee to consider the reasons, make appropriate representations and furnish these to the Director for her consideration. She may then accept or reject those representations, but the entitlement to make any representations arises only in respect of the actual reasons given. 

In the present case, the first notification given by the Director to Orange was by letter of the 19 June in which she notified Orange that it had come second in the competition. In other words, she gave them the results of the competition, but in my view nothing more. She indicated she was intending to enter upon discussions with Meteor on a possible licence. 

That letter did not contain any proposal by her that she intended to refuse Orange a licence, and I think that this was a correct approach, since until the discussions on the terms of a licence were successful or unsuccessful, she did not know whether she was, in fact, going to refuse Orange. At that stage, of course, it was likely that Orange knew that if the licence discussions were successful, she would notify them of her proposal to refuse a licence. 

The actual letter in which she first notified Orange of her proposal to refuse Orange was the letter of the 22 September 1998. By that letter she gave the reasons which I set out above, but which I now repeat, namely 

"The reasons for the proposal to refuse to grant the licence are that in the detailed comparative evaluation during the competition process, Orange Communications Limited was not ranked first and the discussions entered into with the higher ranked applicant are satisfactory." 

Now for Orange, or indeed any applicant, to make representations on such a notification, it is not possible in my view to ascertain from the contents of the "reasons" why the Director had not ranked Orange first, and therefore, Orange would be confined to writing and informing the Director that she was wrong in so far as the rankings were concerned, which could scarcely constitute representations for the purposes of doing what all parties acknowledge Orange is entitled to do, namely, seek to persuade the Director that her decision was wrong. 

I will return in due course to the Summary Report which was sent to the Orange (and indeed also to Meteor) on the 6 July and on which both Meteor and the Director rely in seeking to persuade the court that, even if the letter of the 22 September does not disclose all of the reasons, that is not of consequence, since Orange were fully aware, as was the position of the applicant in the Ni Eili case, supra, of the real reasons why they were unsuccessful and therefore why the Director had proposed to refuse them a licence. 

Some assistance can be gleaned from certain English cases which were not opened to me in the course of submission, but I consider them because it seems to me that none of the cases cited to me, with the exception of Ni Eili, O'Keefe and Maigueside, all cited above, as well as the Adia case, are of any real assistance. 

Since the statutory scheme provides that the relevant parties are entitled to have reasons at two separate stages of the process, and since it is stated in the statute that those parties are entitled to make representations on the proposal to refuse or on the refusal, I am of the view that the real question to be considered by the court is the legal requirement as to the extent of those reasons, and not -- as has been suggested -- whether reasons are or are not required in the first place. Nor do I consider the proposition put forward by the Director that I should consider the question of the reasons by analogy with those cases where the courts have considered whether reasons are or are not required, and in particular those cases where the court has found that reasons are not required. Once there is a statutory right to reasons, and a right to make representations to the Director seeking to persuade the Director to change her mind, those reasons must take on a quality or characteristic which enables the parties entitled to them to make representations arising from them. If it were otherwise, it would be sufficient for the Director simply to announce the result of the competition and if the reasons were not of significance vis a vis the representation stage, then there would be no need for reasons to be given at all. 

What does the requirement to give reasons embrace? Some assistance can be gleaned from the case of Bolton Metropolitan District v Secretary of State for the Environment unrept'd, May 1995 Times Law Review, a decision of the House of Lords in which it was held that a failure to refer, at least in a very general way, to how and why a decision was made was objectionable. 

There is also a requirement to record a note of the reasons for the decision See P & F Sharpe v Dublin City and County Manager [1989] IR 701 at p 720 in which it was stated: 

"The necessity for the elected members in the case of any direction under Section 4 of the 1955 Act concerning the granting or refusing of a planning permission to act in a judicial manner would inter alia involve an obligation to ensure that an adequate note was taken, not necessary verbatim but of sufficient detail to permit a Court upon review to be able to ascertain the material on which the decision has been reached." 

In the case of Great Portland Estates Plc v Westminster City Council [1984] 3 All ER 744, it was held that where a statute required a public body to give reasons for a decision the reasons given were required to be proper adequate and intelligible, although they could be brief. The same position would appear to have arisen in the case of Ellis v Secretary of State for Environment (1974) 31 P & CR 130, in which it was held by the Divisional Court that reasons adequate to the circumstance of any particular case should be given. In that particular case an objection had been taken to the sufficiency of the reasons given, and had argued that in the past the reasons set forth by the Secretary of State had been of a more detailed nature, and that therefore that practice should have been followed by the inspector in the present case. 

This last submission was rejected out of hand, and is not relevant to the present case. On the question of the adequacy of the reasons actual given, it was stated: 

"All that is required is that adequate reasons, reasons adequate to the circumstances of any particular case, be given. There may be occasions where the reasons themselves have through a typing error or some other circumstances become unintelligible. There may be occasions where the reasons set out in a decision letter on their face appear to be bad reasons for the conclusion to which the inspector purports to come. Subject to that however, it is not, in my view, for this Court to go into the factual accuracy of or the weight to be afforded to reasons given by an inspector nor in particularly, their length or particularity. In the present case the inspector's conclusions and reasons are set out in paragraph 18 of the decision letter, and it is, I think, sufficient for the purposes of this judgment merely read that paragraph. 

"Your clients' use of the site is untidy and is likely to lead to noise and smell particularly from cellulose spraying. Although there is a six foot high boundary wall the uses on the land can be seen through the accesses. Also the crane is plainly visible above the wall, and there must be vehicular activity to and from the site. These various facets of the development are likely to lead to a loss of residential amenity and the uses are inappropriate in the metropolitan green belt and within and area likely to become part of the Colne Valley Park. For these reasons planning permission cannot be granted for the development. 

In my judgment these reasons there set out by the inspector in the circumstances of this particular case are sensible and appropriate, and there can be no ground whatsoever for this Court in any way to seek to interfere with the inspector's conclusions." 

This case seems to me to be a very good example of the principle enunciated in the case supra. It also finds its equivalent in the case of Great Portland Estates supra, to which I now return. In that case, a claim was made by Miss Ni Eili against The Environmental Protection Agency ["EPA"]. Among the allegations made was one that there was an obligation on the EPA, by statute, to furnish reasons for its decision. It was alleged that no proper or valid reasons were given or, in the alternative, if any reasons were given, they could not readily be ascertained from the documents furnished by the EPA to the applicant. 

In that case the High Court accepted that reasons had, in fact, been furnished in adequate form, since it was possible to ascertain from the documents made available, either alone or in combination one with the other, the reasons for the EPA decision. But that case did not suggest that where reasons must be given, those reasons are to be other than as enunciated in the Great Portland Estates case. 

In fact considerable assistance is found in the more recent decision of The Supreme Court in Ni Eli v The Environmental Protection Agency, unrept'd, 30 July 1999, in which the decision of the Court was delivered by Murphy J. In that case there were four grounds of appeal, one of which included the claim by Miss Ni Eili that The Environmental Protection Agency had failed its statutory obligation to give reasons. The judgment is both instructive and helpful in that it reviews a considerable number of cases, and also considered the United Kingdom cases which I have mentioned above. In the Ni Elli, the Supreme Court stated: 

"This is not a case in which an obligation is imposed by implication on an administrative tribunal or body to give reasons for its decision. In the present case the Licensing Regulations . . . expressly provide as follows (quoted). 

The appellant is, therefore, clearly correct in saying that the Agency as under an obligation to give reasons and that not once but twice. First, it must give reasons for its decisions for "Proposed Determination' and secondly, reasons for its actual decision to grant a licence. The issue between the parties related to the manner in which these reasons should be expressed and the documentation in which they should be located" 

Before I turn to the other principles enunciated by the court, it seems to me that these comments as to the real issue between the parties are particular apt in the present case, and it seems clear that there is some analogy between the legislation requirements to give reasons at two stages in both sets of regulations. 

The Court also stated: 

"The reasons at the proposed determination could differ materially from those at the licensing stage." 

The court then applied this statement to the particular scheme which arises in the case of a licence from the Environmental Protection Agency. I suspect the same might well apply in the case of planning matters. The learned judge continued 

The decided cases do provide some guidance as to the manner in which administrative bodies may explain the reasons for their decisions. In Golding & Ors v The Labour Court and another (1994) ELR 153. Mr Justice Keane pointed out that: 

". . . the determination by the Labour Court need not, as a matter of law, take any particular form: what is essential is that the manner in which it is expressed leaves no room for doubt as to the reasons which led to the decision, thus ensuring that neither the appellant nor the supervisory jurisdiction of this Court is frustrated by an inadequate indication of reasons. 

More specifically, in O'Keeffe v An Bord Pleanala (1933) 1 IR 39 Finlay CJ said of reasons provided by An Bord Pleanala in the form of a combination of a brief statement together with a series of conditions and reasons given for the imposition of such conditions the following: 

"Firstly, I am satisfied that there is no substance in the contention made on behalf of the plaintiff that the Board should be prohibited from relying on a combination of the reasons given for the decision and the reasons given for the conditions, together with the terms of the conditions. There is nothing in the statute which would justify such a rigid approach and it would be contrary to common sense and to fairness. What must be looked at is what an intelligent person who had taken part in the appeal or had been appraised of the broad issues which had arisen in it would understand from this document, these conditions and these reasons. Approached in that way, I am satisfied that the entire of this document sufficiently identifies the reasons by which the Board reached a decision to grant this particular permission subject to these particular conditions. 

Continuing, the learned judge said: 

"I have no difficulty in accepting that the principles enunciated by Chief Justice finally in the O'Keefe case would be properly and readily applied to a decision the Agency in relation to a proposed determination. The Applicant for the licence would readily understand that the Agency was satisfied that the statutory conditions would be met if, but only if, the conditions specified by it were met. Moreover, the Applicant would have ample information and evidence with which to seek judicial review if he wished to contend that any of the conditions imposed were ultra vires the Agency. Where a decision to grant a licence is made the position is different. In that event, by definition, objection shall have been made to and submissions received by the Agency in relation to such objections. If a licence is indeed granted it might be inferred that those objections had been overruled or the submissions rejected. That would not an adequate compliance with the Regulations. Those who have gone to the trouble and expense of formulating and presenting serious objections on a matter of intense public interest must be entitled to obtain an explanation as to why their submissions were rejected. I did comment perhaps not very helpfully -- as to the nature and extent of the reasons which administrative tribunals must give for the decisions in O'Donoghue v An Bord Pleanala . . ." 

The learned judge then set out in the course of the judgment the extract which the parties have relied on in this case 

"Those comments accord with the subsequent decision of the House of Lords in Bolton Metropolitan District Council v The Secretary of State for the Environment (supra) and the more recent decision of the Court of Appeal in England in MJT Securities Ltd v Secretary of State for the Environment (supra also). In the latter case, Evans LJ summarised the statutory obligation in the following terms: 

'The inspector's statutory obligation was to give reasons for his decision, and the courts can do no more than say that the reasons must be proper, intelligible and adequate as has been held. What degree of particularity is required must depend on the circumstances of each case." 

The learned judge then applied the principles set out above to the facts in the Ni Eili case, and added "Certainly it is desirable that the reasons for the decisions of the Agency should be readily available without the necessity of excessive research or inquiry 

Although I am not strictly bound by the decision of The Supreme Court in that case, because of course it did not deal directly with the first named defendant's statutory obligation under consideration here, it is abundantly clear that it sets out a series of helpful principles which I can apply by suitable analogy to the present case. 

The principles to be found in the case, can be summarised as follows: 

(a) Where there is a statutory obligation to provide reasons, these should be of a character mentioned in the case of Great Portland Estates Plc, supra, that is to say, proper intelligible and adequate; 

(b) It should be possible for the party to whom the reasons are particularly relevant, to ascertain the reasons without undue difficulty or detailed research; 

(c) The reasons do not have to be set out in significant detail but should be sufficiently clear to permit the party affected by them to make appropriate use of them 

(d) The Court should be able, by reference to the reasons, come to a view when exercising its supervisory role, as to whether the stated reasons are sufficient or justifiable; 

(e) The degree of particularity which is to be given will depend always on the particular circumstances of the case; 

I am of the view that neither the reasons at Stage 1 nor those at Stage 2 were in accordance with the case law on the matter. It would, in my view, be impossible either for an Applicant or a Licensee to know the reason for the Director's decision from a review of either letter furnished, in September, nor by reference to the letter of the 30 October, nor do I consider that the Summary Report, which of course was never issued on the basis that it was the reason for the subsequent decision to refuse the licence, adequately sets out the reasons for the Director's decision. 

Of course, this does not cover the matter entirely. Both Meteor and Director -- although for different reasons -- say that both letters were perfectly properly and sufficient. 

Both also say that, as in the case of Adia, Orange knew what the reasons were. Both say this by virtue, inter alia, of the fact that Orange made very substantial representations -- on the 12 October to the Director, and were able to do so in a full and adequate manner, because they had available the Summary Report of the 6 July. 

There is another matter which I think I should mention at this time, because it may also be relevant to the submissions, particularly those made on behalf of Meteor by Mr Cush. While the statutory scheme obliges the Director to furnish reasons, it will be recalled that Orange requested not only the reasons for the decision, but also certain documentation. Among the documentation sought were (a) a copy of the Evaluation Report (b) a copy of the Summary Report issued to Meteor also on the 6 July, 1998 and the draft licence furnished to Meteor. 

I must also consider the extent to which the parties themselves may have, by agreement, limited the scope of their entitlement, if not to reasons, then to documents which underlie the reasons. In that regard I turn to the tender document and the Questions and Answers exchanged, to which I have referred in another context previously. So far as the tender document goes, there is really nothing which indicates any limitation on the availability of documents underlying the Director's decision, save that under 1.4.6 the following appears: 

"The names of the applicants will be announced by the Director following the deadline for receipt of applications. 

Information contained in applications will be treated as confidential and will not be disclosed to the public where such information constitutes, at the Director's discretion, a business secret the disclosure of which would materially affect the applicant's business interests." 

Each of Orange and Meteor claimed absolute confidentiality in each and every aspect of their respective bids, so that, so far as the bidders were concerned, there was nothing in the bids which, on its face, was permitted by the bidders, at least, to be made available "to the public". It seems to me that for the purposes of these claims, Meteor is part of the "public" so far as Orange is concerned, and Orange equally is part of the "public" so far as Meteor is concerned, as otherwise there would be little point in the claim to confidentiality by either party. It is far more likely that bidders would be concerned about confidential information passing into the hands of its competitor than into the hands of the general public who might have little or no understanding of the information and still less interest in utilising the information. 

As far as the Questions and Answers is concerned, a number of questions were raised in relation to this issue of confidentiality. 

Question 25 b asked: 

"Will the rankings of the unsuccessful bidders be published?" 

Answer: 

"No. Unsuccessful bidders will be given reasons for the rejection of their applications for a licence on an individual and confidential basis." 

Question 25 c asked: 

"Will rankings by comparative evaluation criteria be published?." 

Answer: 

"No". 

Question 25 d asked: 

"Will the contents of the respective bids be maintained as confidential?" 

Answer: 

"Information contained in applications will be treated as confidential and will not be disclosed to the public where such information constitutes, at the Director's discretion, a business secret the disclosure of which would materially affect the applicant's business interests, of Section I, Paragraph 1.4.6, Announcement of the names of the applicants. Applicants should indicate which parts of their application are regarded to contain commercially sensitive information." 

Although not directly involving the question of publication, another question raised gives an indication of the Director's approach to the question of confidentiality. 

Question 39: Spectrum Access Charge. 

"Will the Director confirm how the points will be awarded for a bid of less than 10,000,000. For a bid of less than 10,000,000 how will the points be graded?" 

Answer: 

"All details of the evaluation method to be used other than those outlined in Section 1, Paragraph 1.5.2 are strictly confidential." 

Question 40: Weighting of Assessment Criteria 

"It would greatly assist the transparency of the process if the breakdown of the weighting between sub-headings in each group was provided, together with a list of the key criteria within each sub-heading" 

Answer: 

"The competition is a transparent one, it is organised in accordance with best international practice. The European Commission has been kept appraised during the process. Detailed information and documentation has been made available to all interested parties subject to the minimum requirements to protect confidentiality" 

Question 54: Announcement of the names of the applicants. 

"The issue of confidentiality is not satisfactory being" at the Director's discretion. " Please confirm that commercially sensitive information which is furnished for the purposes of the application will be kept confidential and in particular where same is highlighted and marked in the application. 

Answer: 

"The answer repeats the answer given above at 25 d." 

Question 55: Comparative evaluation criteria. 

"Will written reasons be given by the Director in the event that the minimum requirements are deemed not to have been fulfilled." 

Answer: 

Yes 

Question 56: Validity of the applications 

"Please confirm that reasons will be given by the Director in respect of her decision on request of an applicant's application is invalid or unsuccessful." 

Answer: 

"Yes". 

Question 86 raised a question of confidentiality in respect of Article 8(7) of Section IV. An identical answer was given to that at 25 d also. 

My understanding of the foregoing is that (a) at least prior to the time when the bids were in, no further information was to be given in relation to the manner in which the assessment was to take place, (b) both after the bids coming in, and subsequently, but at the Director's discretion, parts or possibly all of the bids would remain confidential in the sense that there would be no publication of the contents "to the public", (c) the comparative assessment ranking would not be published. 

So far as the first of these is concerned, it seems to me to be an entitlement in the Director not to disclose in advance of the bidding, the manner in which the assessments would take place, nor the sub-criteria by which the bids would be assessed. The Director has indicated that to do so would hinder the tender process was stultifying the manner in which the bids would be structured. 

So far as the publication of the contents of any bid which might be made, again if there are commercial secrets or commercially sensitive information contained in them, or transcribed from them to other documents, I am of the view that the Director was at all times entitled to, and the parties agreed, that such would only be published at the Director's discretion, if ever. 

So far as the publication of the comparative assessment ranking of the parties, I am of the view that the answer given to the question on this was given in the context of the plans for the announcement of the rankings. In other words, there would be no press release in which the comparative assessment would be made public. I do not consider that the agreement between the Director and the bidders evidenced in the willingness of the bidders to proceed with bids subsequent to the receipt of the Questions and Answers goes any further on this aspect of the matter. 

The Director refused to give reasons for her proposal to refuse the licence to Orange or for her actual refusal in the sense requested by Orange in its letter of the 23 September. By that letter it stated ". . . your alleged reasons do not afford our client any, or any adequate, opportunity of preparing or making representations and that they are, in our client's view, ultra vires." The Director replied by letter of the 28 and rejected this contention. She gave as her reasons for refusing the documents or information the following: 

". . . The reasons for proposing to refuse to grant the licence to your client are surely, at this stage of the process, entirely obvious to your client. The bid of Meteor Mobile Communications Limited ("Meteor") was ranked first in the tendering process. I met with your client for the purposes of an oral briefing. I issued to your client a report on the evaluation of your client's bid. This Office's discussions with Meteor with regard to its proposed licence have proved satisfactory. 

I am at a loss to understand the purpose behind your client's requests for the items listed at (a) (b) and (c) of your letter, or what can in practical terms be achieved by disclosing these matters. Your letters fails to indicate how your clients knowledge of the reasons for refusal is deficient. Nor does it indicate how the information you request would, in practical terms and in substance, improve your client's understanding of why I do not propose to issue the license to it. In any event, I cannot possibly provide the items requested at (a), (1) and (c). The reasons are as follows. 

Item (a) (the terms and conditions of Meteor's draft licence) contains commercially sensitive information relating to Meteor's business. As your client is well aware, the terms and conditions of the licence (other than those mainly procedural matters set out in the draft licence published in the Tender document) relate to specific technical and commercial aspects of the licence holder's proposed business, I am quite sure that were your client in Meteor's position, your client would be entirely justified in opposing any proposed disclosure of the details of any proposed or actual licence to a competitor. The detailed terms and conditions of the licence are confidential between this Office and the licence holder. 

Item (b) requested by you (summary report on Meteor's application) also contains commercially sensitive information relating to Meteor. The equivalent document which this Office issued to your client contains commercially sensitive information relating to your client's business. I would no more contemplate disclosing this document to your client than I would contemplate disclosing your client's equivalent document to Meteor. As regards (c) (details of marks awarded to Meteor and to your client), the following are two reasons why I am not prepared to disclose these details. First, revealing the precise marks awarded would be detrimental to any future tendering process which this Office might run. As I was at pains to point out in my affidavit filed in defence of the Judicial Review proceedings recently brought by your client against this Office, disclosure of those precise marks would inevitably lead future applicants artificially to tailor their bids, in other words, it would lead all applicant to, as it were, tell this Office what it wanted to hear. It would then be very difficult (if not impossible) to grade respective bids. On the contrary, the whole purpose of the tendering process is to encourage applicants to make bids which truly represent their own technical and commercial strengths, their perception of what the market requires, and what they can deliver. Secondly, I am constrained by my obligation to protect applicants' commercial secrets from disclosing Meteor's precise marks to you or your client. It was, I believe, fair to indicate separately to each applicant those aspects of the applicants respective bid which were strong and weak (as the case may be). However, it is quite another matter to disclose to one applicant where another applicants bid was strong or weak. This is tantamount to disclosing an applicant's business and commercial secrets to its very competitor (whether in Ireland or elsewhere). I am quite sure that were the tendering process routinely to be followed by this sort of exchange of commercially sensitive data, it would be impossible for this Office (or indeed any other regulatory body in this jurisdiction) to run a tendering process. I am not prepared to disclose Meteor's results to you or your client, equally I am not prepared to disclose your client's results to Meteor . . . 

This letter was responded to by letter of the 1 October in which Orange indicated that it would make representations, and at the same time complained that the stance of the Director to the giving of reasons diluted its rights pursuant to Section 111 (2B) O'Gorman of the 1983 Act. It also reserved to itself the right to claim that the reasons given are not in compliance with the provisions of that Act. It also claimed that not all of the information sought at (a) (b) and (c) of its earlier letter included matter of a commercially sensitive nature. 

Before I deal further with the Director's arguments, which have been repeated in the submissions made to me on the matter, I should return here to the Summary Briefing made on the Orange Tender, and will refer at the same time to the similar document furnished to Meteor. Before doing so, however, I should say that when this document was furnished on the 6 July, it was not indicated by the Director at that time that it constituted the reasons for her (at that time) intended refusal to grant a licence. Indeed, since a similar document was furnished to Meteor, it is difficult to see how it could have been presented as being such. In addition, during the course of the evidence, it was said by Ms Finn that these documents were furnished to each of Meteor and Orange so as to be of assistance to them, in the event that they wished to bid in other tendering processes. 

I have set out in some detail already what appeared in these Summary briefings. Essentially, they told each of the bidders that certain aspects of their bids were strong or weak or could have been better expressed or might included more detail. They do, not, however, in my view, tell either Meteor or Orange why they were ranked first or second. It is not clear to me that on receipt of this Summary, Orange were thereby informed of the reasons why Orange were being refused, or had come second in the evaluation. 

Take, for example, the issue of tariffs. What is said here is "Orange's application was not particularly strong on tariffs." . . . "The application did not provide any binding commitments on tariffs and tariff development and critical information was qualified with words such as "indication" and "potential". This had an impact on the scoring of the tariffs dimension which accounted for 20% of the overall marks". This tells Orange that (a) there were no binding commitments to tariffs, and (b) that this lack of binding commitment was found in the use of certain limiting words. It also tells Orange that in respect of roaming charges, this was positive. 

Now compare this to what was said to Meteor, under the same heading which was as follows: "Meteor's proposals on tariffs were considered strong. The range of tariffs plans, including an unbundled subscription and two prepaid plans was considered appropriate for the target market. Meteor's commitments to the tariff plans and to downward tariff development were assessed as positive." This tells Meteor (a) that the range of tariff were appropriate; (b) that, in particular an unbundled subscription was singled out; (c) that two prepaid plans were of interest; (d) that the commitments to the tariff plans were positive and (e) that the commitments to downward tariff developments were also positive. 

Comparing the two, the information given to Meteor, had they been the unsuccessful candidate, would have been adequate to tell them why they were marked in a particular way. On the contrary, no indication is given to Orange that they were not ranked as the higher bidder on tariffs, inter alia, because (a) they had no unbundled plan; (b) that the Evaluators did not approve of the tied contract together with the penalty clause on a break in the contract; (c) that the range of tariffs actually included in the bid was too narrow, (d) that there was inadequate downward trends expressed in their price development figures, and (e) that the tariffs themselves were too high, it being clear now from the evidence that the Evaluators were looking not just for competitive tariffs but low tariffs, if not the lowest tariffs. 

When it came to the representations actually made, even if it were the case that the briefing document set out the reasons, it is clear that Orange did not make any submissions whatsoever on any aspects of tariffs which, at the end of the day, were critical to it, other than in respect of the question of commitments, to which their attention had been drawn in the Summary report. 

But of course it is clear that there were several other tariff matters on which critical adverse findings were made against Orange. This is as it should be. However, it seems to me that to indicate to a party, who is entitled to make representations in that regard, that the reason why they have not succeeded is because they were ranked second in a competition is not a sufficient reason within the Act. 

I have set out in detail all of the contractual or semi contractual relations which were agreed between the parties, and by which Orange agreed to limit its entitlement to certain material, if the broadest possible interpretation is taken of the Question and Answers given. 

Contrary to Mr Cush's submission, on behalf of Meteor, that in a competition of this nature, it would be wrong to furnish Orange with information which would enable it in turn to overturn the rankings which had occurred, I am of the view that the statutory obligation is imposed, even in circumstances where a competition of this type is operated. It is not the fact of a competition which legally determines the entitlement of the bidder for a licence to have reasons and to make representations. It is the Act which grants that right and imposes that obligation, and the obligation and right continue to exist regardless of the manner in which the licence is intended to be awarded. 

What follow from this, in law, is an obligation on the Director to give full and proper reasons, bearing in mind also the agreements she reached concerning confidentiality for example. It is not, in my view, a valid legal basis for refusing to give any further details save for the rankings and the summary report, for the Director to say that information on any greater detail might in some way hamper the Director in any future tendering process which she might envisage into the future. Nor is it a valid legal basis for refusing to give any further information save for the rankings and the summary report, for the Director to say that such information was of a confidential nature. It is certain that trade or business secrets of parties ought to be protected, and both parties agreed to this. It may therefore mean that, as to the Evaluation Report, and its availability, certain information would have to be protected and protected even from the party requesting the information. But this is a matter which arises in many cases and many circumstances, and it does not follow that each and every part of the Evaluation Report contained information which was of this sensitive nature. In the alternative, such information could be made available, subject to appropriate undertakings, not directly to the opposing bidder but to its independent advisors, an approach often adopted by the High Court in matters of commercial sensitivity. 

However, to refuse point blank to furnish anything other than the rankings and the earlier summary report, which I find did not constitute reasons adequate for Orange to defend its right, either at Stage 1 or Stage 2, is not legally sustainable having regard to the Scheme provided for by the 1983 Act. 

I therefore make findings in favour of Orange on the claims made by it against the refusal of the Director to grant it a licence, and I remit the matter back to the Director for her further consideration. 

DISPOSITION