An official engaged in corrupt conduct during the procurement of a contract for the expansion of Campbell Primary School, counsel assisting the ACT Integrity Commission has alleged.
ACT integrity commissioner Michael Adams KC was also told he would need to make a finding on whether Education Directorate director-general Katy Haire and Education Minister Yvette Berry's former chief of staff Josh Ceramidas also engaged in corrupt conduct.
Counsel assisting Callan O'Neill alleged John Green, a pseudonym, did not act impartially and lacked probity when he told a tender evaluation team to review a decision that determined Manteena as the preferred tenderer.
Mr O'Neill said the conduct was enough to fulfil the definition of corrupt conduct under the Integrity Commission Act. He made the allegation during a second day of public submissions to the commission about the investigation.
He also told Mr Adams he would need to decide whether Ms Haire sought to override the tender due to advice from Mr Ceramidas. Mr O'Neill presented two scenarios and alleged both would have engaged in serious corrupt conduct if the commissioner accepted that version of events.
Lawyers for Ms Haire and Mr Ceramidas have denied this version and are strongly challenging counsel assisting's submission.
Mr Green worked in the Education Directorate's infrastructure team in 2020 and oversaw the procurement for the construction of an expansion of Campbell Primary School.
The Integrity Commission placed a suppression order on Mr Green's identity when public hearings began. He is the only witness who has given evidence under a pseudonym. His evidence was critical of others in the process.
A tender evaluation team concluded in late February 2020 that Manteena was the better tenderer. The company received a score of 79 compared to Lendlease's 52. Lendlease ultimately ended up receiving the contract.
But Mr Green told the team to conduct a "best and final offer" process instead but there was apprehension from the tender evaluation team about this.
There was a series of conversations between the tender evaluation team and Mr Green about this during March 2020.
Mr Green said he was not directed to undertake this process but he did so on the understanding that Manteena was not to receive the contract.
He has previously told the commission Ms Berry's office did not want Manteena to receive the contract and neither did the CFMEU.
Mr Green was supposed to be the final delegate on the contract but this was handed to Ms Haire. There is no formal record of the decision to make the director-general the delegate.
The corruption watchdog is examining whether public officials failed to exercise their official functions honestly and impartially while handling the procurement which took place in 2019 and 2020.
Mr O'Neill told the commission Mr Green's direction to the tender evaluation team was ultimately so an outcome would be reached that the contract would not be awarded to Manteena.
"He's injected himself into that process. That is conduct that clearly lacks probity. It is conduct that is not impartial," he alleged.
"It is conduct that is focused upon an outcome and not a process that's put in place to ensure that people who are tendering for procurements are treated appropriately and fairly within the territory."
Mr O'Neill said the conduct affected members of the tender evaluation team and the tenderers. He said it may be regarded as a breach of public trust and it undermined the procurement process, threatening public confidence in the integrity of government procurement.
"That's enough to fulfil the definition of corrupt conduct," he alleged.
Mr O'Neill said the next question was whether it was serious. He said Mr Green does not dispute the underlying facts of the matter but has argued other people were involved.
Mr O'Neill told the commissioner it was open for him to find that Mr Green's role in the procurement fulfils the definition of "serious corrupt conduct" under the Integrity Commission Act.
"But as I say if it does, and the underlying facts don't appear to be in contest in relation to it, then it reaches the finding he engaged in serious corrupt conduct under the Integrity Act," he alleged.
The evidence put forward by counsel assisting is not the view of the commissioner, who will be the ultimate decision-maker in determining whether any corrupt conduct took place. Counsel assisting is simply making an argument.
Ms Haire's role in the process
Following the direction for a "best and final offer process" a second tender evaluation team was established. This team also determined Manteena as the better contractor but Lendlease was awarded the contract.
The commission was told this team was working under the assumption they needed to improve the score given to Lendlease.
During this time Ms Haire became the final decision-maker on the project, and the commission heard a higher level of scrutiny was wanted. She told the commission she took on this role as the project was facing delays and there was pressure to make a decision.
There was a meeting between Mr Green and Ms Haire following the recommendation from the second evaluation team.
Mr Green alleged during this meeting he was told the recommendation was not what the minster's office wanted and he was asked how to overturn the decision. Mr Green said he would write a brief urging Lendlease to be selected, which did end up happening.
Ms Haire denied she told him to overturn the decision but rather asked for advice on whether it could be overturned. She said this decision was based on concerns Manteena was not compliant with the ACT's secure local jobs legislation.
The secure local jobs code is ACT government legislation that seeks to "ensure that public money goes only to businesses that do the right thing by their workers". The code was established following lobbying from the unions.
Ms Haire told the commission she had no independent knowledge of either company and was asking for advice solely on the secure local jobs concerns.
The director-general also discussed the matter with Mr Ceramidas, saying she sought advice from him about whether this was still an important consideration and he responded it "was more important than ever".
Mr O'Neill said one explanation was Ms Haire did not interrogate the issue and one explanation could be "she dropped the ball" as it was not normally how she would act. But he said another explanation was there was something else going on.
Mr O'Neill said if both Ms Haire and Mr Green made the decision to override the tender evaluation because that's what Ms Berry's office wanted then it would constitute serious corrupt conduct for both of them.
But he said if it was made due to the implementation of the secure local jobs code policy then it would be difficult to reach a conclusion of serious corrupt conduct.
"And so whether it's corrupt conduct or not would be determined by whether what would be the disciplinary outcome if this was known, and I don't think there would be a disciplinary outcome in circumstances where you're actually trying to achieve a policy goal," Mr O'Neill said.
Mr O'Neill said the factual matters underpinning these needed to be determined. He said their actions were not for personal or financial gain, and this is where Mr Ceramidas' role came into play.
"The minister's office is in effect Mr Ceramidas communicating to either one or both of them that the result is Manteena is not to be awarded the contract," he said.
Mr Ceramidas flatly denies ever telling or indicating to anybody that was the result the minister's office wanted. But Mr O'Neill said if he was found to have said anything it would be considered "serious corrupt conduct".
The commission has heard allegations of Mr Ceramidas being close to the CFMEU, which had expressed a dislike for Manteena.
The commission has been told both Ms Haire and Mr Ceramidas have made significant submissions against the counsel assisting's findings. Lawyers for both are expected to provide their submissions over the coming days.
