The Education Directorate boss relied on the advice of a senior official to make up for her inexperience in the ACT's procurement system when the directorate overruled a tender evaluation to award a school construction contract, the ACT Integrity Commission has heard.
Education director-general Katy Haire sought the experience of a senior executive in her directorate, John Green, a pseudonym, as she grappled with the pandemic and being new to the territory's public service in 2020, her lawyer has said.
The commission held a fourth day of public hearings with lawyers able to give submissions on behalf of their clients who were witness in the watchdog's investigation of the procurement for the construction of an expansion for Campbell Primary School.
Kate Morgan SC, Ms Haire's lawyer, told the commission the Education Directorate boss was a career public servant with an impressive resume and she was described by another witness in a private examination as "a model of integrity and diligence".
But the director-general did not have experience in capital procurement and instead relied on Mr Green who had experience with both the ACT's secure local jobs code and in capital works procurement.
"He was the most senior executive in the education directorate with the responsibility, the skill and the background for capital works and infrastructure and had the delegated power to make the relevant decision in this case," Ms Morgan told the commission.
The Campbell Primary School expansion contract was given to Lendlease, despite Manteena scoring higher by two separate tender evaluation teams.
Mr Green gave evidence saying Ms Haire knew the office of Education Minister Yvette Berry and the CFMEU had issues with Manteena as the tender was being considered but Ms Morgan said there was no evidence to suggest the director-general had any knowledge of this during this time.
Instead, Ms Haire's was focused on the secure local jobs code. The government's secure local jobs legislation seeks to "ensure that public money goes only to businesses that do the right thing by their workers."
The minister's office, especially her then-chief of staff Josh Ceramidas, contended this was a key issue for the territory.
Mr Green has told the commission Ms Haire said she had been summoned to the minister's office some time in mid-March to talk about the Campbell procurement but Ms Morgan said there was no evidence that occurred. Ms Morgan this was alleged to have happened in the same week before schools were shut due to the COVID pandemic.
At some point during the procurement, Ms Haire became the decision-maker on the project. She has said this was because there were delays in the tender process and she wanted to ensure a decision could be made. When she became the decision maker she still relied on advice from Mr Green.
ACT integrity commissioner Michael Adams KC asked whether Ms Haire had questioned the principles secure local jobs code, which is what the decision to ultimately give the tender to Lendlease was based on. Ms Morgan said the director-general had conceded she did not query this to extent she should have but she was right to rely on the advice from the senior executive.
"She trusted Mr Green as her senior executive with responsibility for infrastructure and capital works in education and with the specific expertise with the construction industry and secure local jobs," Mr Morgan said.
Green's evidence
The decision to award the tender to Lendlease came after two evaluation teams determined Manteena as the preferred tender. Their recommendation was overwritten from a brief from Mr Green.
Following the recommendation from the second tender evaluation team Mr Green and Ms Haire met to discuss the result. Ms Haire contacted Mr Ceramidas following this meeting to ask if the secure local jobs code was still relevant. She said she was told the criteria was "more important than ever".
Mr Green wrote a brief recommending Lendlease be awarded the contract. He made this on the basis of three criteria that weren't considered as part of the best and final offer process, this criteria was part of the secure local jobs code but only contributed to 10 per cent of the overall tender.
Mr Green's lawyer, Athol Opas, who also gave a submission on Thursday, argued the conversation between Ms Haire and Mr Ceramidas was crucial.
"We submit commissioner that the dye was cast once Ms Haire went and had this discussion with Mr Ceramidas," Mr Opas said in the hearing.
Mr Opas said it did not matter if this conversation was about giving the tender to Manteena or Lendlease or whether it was about the secure local jobs code
"Either way Ms Haire knew what Mr Ceramidas wanted. She knew what the priority was and I will submit that it was her priority to give effect to what Mr Ceramidas had told her about the government's priority," he said.
Mr Opas argued it was inappropriate for her to go to Mr Ceramidas and he also said it was unusual for the head of a directorate to be the final decision make on the project.
Mr Green's credibility as a witness has been brought into question by a number of witness. During public hearings last year, he admitted he did not tell the whole truth to the Auditor-General when an audit was being conducted into the matter. He said he wanted to protect the directorate's reputation.
But Mr Opas said he was a witness of credibility despite being outnumbered by other witnesses who say otherwise.
"Despite whatever criticisms will be made of Mr Green, including as to why he didn't tell the full story to the Auditor-General, I submit that in giving evidence in these commission proceedings Mr Green was candid, open and forthcoming," he said.
"He gave evidence against self-interest."
Ms Morgan argued otherwise, saying Mr Green initially presented as being uncertain in private hearings but became more confident by the time public hearings occurred. She said the commissioner should be cautious of this and not rely on his evidence in making a decision.
"The commission should be very wary of accepting certainty and confidence in demeanour, in some cases, more than three years after the event as an indicator of reliability," she said.
Ms Morgan said an assessment of demeanour can be affected by "significant unconscious bias". She then put to the commissioner he had made suggestions that could be perceived as preferring Mr Green's evidence.
Ms Haire is taking legal action against the commissioner alleging apprehended bias. This was on the basis that her lawyers were initially not allowed to cross-examine Mr Green in public hearings last year. This was overturned and her lawyers did examine him but the action is still continuing with a date set aside in November.
Mr Green was alleged to have engaged in "serious corrupt conduct" by counsel assisting the ACT Integrity Commission. Mr Adams was also told he would need to make a finding on whether Ms Haire and Mr Ceramidas engaged in corrupt conduct.
Hearings are set to continue next Thursday with Mr Ceramidas' lawyers to provide their submission.
