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COMMITTEE of PUBLIC ACCOUNTS debate -
Friday, 22 Mar 2002

Vol. 4 No. 10

2000 Annual Report of the Comptroller and Auditor General and Appropriation Accounts:

Vote 35 - Department of Tourism, Sport and Recreation.

Vote 3 - Department of the Taoiseach.

Vote 10 - Office of Public Works (Resumed).

Ms M. Hayes (Secretary General, Department of Tourism, Sport and Recreation), Mr. D. McCarthy (Secretary General, Department of the Taoiseach), Mr. B. Murphy (Chairman, Office of Public Works), and Mr. P. Teahon (Executive Chairman, Campus and Stadium Ireland Development Limited) called and examined.

Members' and witnesses' attention is drawn to the fact that as and from 2 August 1998, section 10 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 grants certain rights to persons who are identified in the course of the committee's proceedings. Notwithstanding this provision in the legislation I remind members of the long-standing parliamentary practice to the effect that members should not comment on, criticise or make charges against a person outside of the House or an official either by name or in such a way as to make him or her identifiable. Members are also reminded of the provisions within Standing Order 149 which state that the committee should also refrain from inquiring into the merits of a policy or policies of the Government or a Minister of the Government or the merits of the objectives of such policies.

Members should note that the committee is concerned with the accounts specifically listed for examination and administrative and operational control aspects related to same which are within the knowledge and competence of the witness being examined. I notice that there are persons present who were not here yesterday.

Ms Hayes

My colleague, Mr. Con Haugh, Assistant Secretary on the sport and local development side of the Department, replaces Kathleen Stack, principal officer, who represented him yesterday.

Mr. Eamon Kearns

I am head of the public private partnership unit in the Department of Finance.

Mr. Murphy

I am accompanied by Mr. Kevin Connolly from the Office of Public Works.

This meeting will conclude this evening at 7 p.m. I have the agreement of the committee to re-commence the session, should it not be concluded, on next Tuesday at 2 p.m. The principal witnesses involved in yesterday's discussion may now add to their comments if they wish to do so.

Mr. Teahon

A number of points arose some of which were mentioned by Deputy Rabbitte on "Morning Ireland" this morning and I wish to comment on what took place yesterday and what Deputy Rabbitte said on "Morning Ireland" this morning.

Do you wish to make those comments now or are you happy to wait?

Mr. Teahon

I am happy to wait.

Ms Margaret Hayes of the Department of Tourism, Sport and Recreation, do you have any comments?

Ms Hayes

I have nothing to add.

Mr. Dermot McCarthy of the Department of the Taoiseach, do you have any comments to add?

Mr. McCarthy

I have nothing to add.

Mr. Barry Murphy of the Office of Public Works, do you have any comments to add?

Mr. Murphy

I will wait for questions and give any further information in that context.

If any matter is not raised in the questioning, please feel free to comment.

Mr. Murphy

I will be straight back to you, Chairman.

Does the representative of the Department of Finance have any comments?

Pól Ó Duibhir

No, thank you, Chairman.

Deputy Durkan may resume his questions.

I have a question for Mr. Teahon. The Attorney General's report has been made available to you since yesterday, I presume.

Mr. Teahon

Before yesterday. I have received a copy of the draft report.

Have you studied it?

Mr. Teahon

Yes.

Have you reviewed any of the evidence you gave yesterday as a result of the contents of the report? I am not asking you to make any of the contents public unless you wish to do so.

Mr. Teahon

I have made a response to Ms Margaret Hayes, the Secretary General, because she asked me to. There is nothing in the report that would cause me to change anything that I said yesterday.

If Mr. Teahon was asked to make a response in this arena, would that place him in an invidious position?

Mr. Teahon

Yes. Not in relation to anything that I have said but in relation to the response that I have given.

Mr. Teahon has given the response to the Secretary General of the Department of Tourism, Sport and Recreation. If she is asked questions on that subject, is she at liberty to disclose any of the contents of Mr. Teahon's response?

Mr. Teahon

I believe that the only person in such a position - and I do not know if it is appropriate that he be here - is the Attorney General. He is the person who must now consider the response and other responses. He, I believe, would then have to give a draft report to the Government, which would then have to decide what to do with it.

Is Mr. Teahon suggesting that the Attorney General come before the committee to give a dissertation on his report?

Mr. Teahon

No. I am simply trying to make clear in reply to the Deputy's question whether it would be comfortable for Ms Margaret Hayes to say anything this evening. I believe that would be unfair to Ms Hayes because, as I understand it, she has simply passed the responses to the Attorney General's office. I am happy for Ms Hayes to say what she has done with the responses, if that is of any assistance. Presumably at some point the Attorney General will finalise a draft report, will give that draft report to the Government, the Government will decide if it is satisfied to publish it and it will then be published and available to the committee, as is appropriate.

Has the Department of the Taoiseach received a copy of the report?

Mr. Teahon

That would be for Ms Hayes to say.

Ms Hayes

The draft report presented to Government last Tuesday would be available to the Department of the Taoiseach.

When was it made available?

Ms Hayes

Last Tuesday. The Attorney General presented a draft of his report to Cabinet last Tuesday. The Government decided that the draft report should be referred to the principals referred to in the report to give them an opportunity to reply to it and that the Attorney General should then be given time to consider their replies before finalising his report.

May I presume that they all have replied at this stage?

Ms Hayes

They have, yes. Given the context in which the request went out for these responses - that is, that the report was being prepared and is currently being completed by the Attorney General - I felt that it was appropriate to immediately bring those replies to the attention of the Attorney General for his consideration as he finalises his report. That is what I have done.

Did your office make any comments, amendments or suggestions?

Ms Hayes

No.

Did the Taoiseach's office make any amendments or seek clarifications to the draft report?

Mr. McCarthy

No.

Did the Office of Public Works do so?

Mr. Murphy

We made some suggested changes. They are minor; a reference to the fact that we were consulted and supplied information to the Attorney General's office, and in one or possibly two sections, amendments were made to clarify who had been informed or not informed of various items.

Was that clarification necessary?

Mr. Murphy

Yes.

Did Department of Finance officials receive or have sight of a copy of the draft?

Pól Ó Duibhir

I am not aware that anybody in the Department of Finance has done so.

What about the public private partnership sector?

Mr. Kearns

No, I have not had sight of the report.

Obviously, the Department of Finance or the public private partnership sector are not regarded as principals.

Ms Hayes

The word "principals" only refers to those referred to in the report.

Was the Department of Finance referred to anywhere in the report?

Ms Hayes

No.

I raised this question last evening. In matters of this nature, it is normal for the Department of Finance to have a view with reference to expenditure and, particularly where public private partnerships are concerned, it is believed to be a sensitive area that would require a view at an early stage. Is that correct?

Mr. Kearns

The role or job of the central public private partnership unit is to develop the PPP programme which is an integral part of the national development plan. This project is not part of the PPP programme for which we have responsibility. The unit's job is to develop with the various procuring agencies the range of PPP projects from roads to schools to environmental services and public transport projects. The particular project being dealt with here is not part of that programme and it would not come to our attention.

What control did the Department of Finance have over this particular project given that it would be customary for the Department to have control over every project? I know that this project was the responsibility of the Taoiseach's office. Does that exclude the Department of Finance from vetting the financial procedures?

Pól Ó Duibhir

It would not exclude it but the Department has drawn up financial procedures, procurement guidelines for governance and so forth, and has promulgated those. It would be up to the parent Department and the body itself to see that they were implemented.

Is Mr. Ó Duibhir saying that the Department of Finance has laid down the ground rules, that it is up to whatever Department has responsibility for a project to follow those ground rules, and that the Department of Finance will not supervise or oversee the performance of other Departments on an ongoing basis?

Pól Ó Duibhir

That would initially be the case, certainly in relation to the ground rules. As far as expenditure proposals are concerned, the Department of Finance would normally have a view on expenditure proposals as such. They would come to Government and the Department——

I am glad to hear the Department has a view on such matters because it is the experience of this committee that the Department normally has a strong and resolute view on most matters related to expenditure. Why the reticence in this case? Is it because the Department of the Taoiseach has special privileges?

Pól Ó Duibhir

No, it is not. The Department has views on the expenditure proposals and would query overall expenditure proposals in the same way it would query any other——

What of procedures that might be weak?

Pól Ó Duibhir

Yes, if they came to its attention the Department would have a view on them. In relation to the present project, the Department of Finance was concerned that the procedures be fully implemented and expected that to be the case.

When I asked that question last evening I did not get any expression of concern. Was that an oversight?

Pól Ó Duibhir

I am sorry. I thought yesterday that the Deputy was asking whether the Department had advance sight of the services contract.

No, it was a general question.

Pól Ó Duibhir

I am sorry, I misunderstood.

Mr. Ó Duibhir might tell me the manner in which his Department expressed its concern and if it expressed concern with regard to procedures being followed, which would be the normal process to be followed by the Department.

Pól Ó Duibhir

Certainly we would have expressed concern about the time scales involved; we would have liked more time to have looked at——

How did that concern manifest itself? Did you send an e-mail, fax, letter or make a telephone call?

Pól Ó Duibhir

We brought it to the attention of the Department of the Taoiseach that we would have liked more time to look at it.

In what manner did you bring it to the attention of the Department of the Taoiseach? Did you use any of the methods I have outlined?

Pól Ó Duibhir

We wrote to the Department.

I presume that the correspondence is available if needs be?

Pól Ó Duibhir

I assume so.

Are there copies of the correspondence?

Mr. Ó Duibhir

Yes.

Do you wish to comment, Mr. McCarthy?

Mr. McCarthy

I wish to confirm that there was indeed discussion and both verbal and written contact between the Department and the Department of Finance including in relation to the PPP items. As I mentioned yesterday, the Department established a project steering group and the group included representatives of the Department and the PPP unit.

Mr. Kearns, you are here today in your capacity as director of the public private partnership unit. The public private partnership concept is new and your unit has successfully spearheaded a lot of Department of Education and Science building projects using the public private partnership model. A company comes in and builds a structure and - you may correct me if I am wrong - it is then rented back to the State for a period of time and eventually becomes the property of the State. That is how the public private partnership works.

You said that you did not have any direct involvement in this project, but were you asked for your opinion? In your experience of PPP to date would you consider that where a private company makes an investment of £500,000 in a project costing about £50 million, it is a good deal as far as the State is concerned?

Mr. Kearns

The essence of public private partnership is the concept of risk transfer. That means that risks which are normally under conventional procurement retained by the State are, under contract, allocated to the private sector. I will give an example: under conventionally procured projects a project is designed and that design is sent out for construction and there may also be an operating element to an asset over the long-term. Within a public private partnership the interface between the elements of design, build, finance, operate and maintain, are combined in a single contract. A special purpose vehicle is established which contains design elements, builders, financiers and facilities managers. It has responsibility for managing the interface between the elements. When a project is designed, those who will build it are part of the same consortium. Issues which arise in respect of design and which have implications for the construction phase are dealt with from within the consortium. Similarly in terms of the management of the facility, under a normal PPP the facilities manager is part of that consortium.

It is not the case that the State rents the asset. Under a PPP the asset is never fully alienated; it is normally a lease or a licence to operate the asset for a concession period and the asset is recovered by the State at the end of the concession period. The ownership has never been transferred to the private sector, only the right of use under licence has been transferred. The benefit of a public private partnership therefore is that the private sector contracts to accept and manage risk.

In relation to this project I was assigned to be a member of the project steering group which was set up in autumn 2000. My role was twofold. As head of the public private partnership unit I was to offer any technical advice in respect of any PPP elements where we could make a contribution. My role was to be aware of the elements of this project which we could learn from and recycle into the PPP process. There are elements of this particular project which are analogous to PPP but the overall project as it has been developed is not consistent with the kind of fully developed PPP concept which I have summarised for you.

Would you consider it a good deal for the State? This is a £50 million project where the private investor invests £500,000 and then operates the asset for 30 years?

Mr. Kearns

In terms of public private partnerships, value for money for the Exchequer is central to our objective. We have developed this relatively new concept very quickly in this country. Value for money certainly means that as far as practicable in any particular project that the risk for the concessionaire - - the person who manages the asset over the full concession period - - is dealt with within the overall PPP arrangement. It certainly appears that the operational element of this project is separate from the design and build part. There seems to be a separate contract. As to whether it is good value for the Exchequer, that is not a call that I can make.

Mr. Teahon

I wish to make three points. I do not believe Mr. Eamon Kearns would be expected to know this but there is not a separate contract, there is only one contract. One of the things I said I would establish yesterday was the figure for the hours that the operating company will have to make available over the period of years and the value of that. The value is £13.65 million. In other words, the operator will have to make available hours that could otherwise be charged for through the Sports Council, for training and events for elite athletes. That is estimated at £13.65 million. The Comptroller and Auditor General remarked yesterday that we had visited a number of facilities similar to the those we are proposing. We visited the two aquatic centres in which the European swimming championships were held in recent times, one in Manchester and the other in Helsinki. In both cases there was a significant subsidy from the government to the operator. In one case it was local government and in the other case it was the national government. The normal experience of aquatic centres in Europe is that there is a very significant subsidy from government to the operator.

The case here is that there is a requirement that there be no recourse to the Government for the current operation and, in my opinion, that is a very significant transfer of risk compared with any equivalent facility. I will explain this in order to be open about it: one of the things we noticed when looking at the Helsinki and Manchester centres is that the number of people using the "elite" swimming facility - the 50 metre pool and diving pool and so on - were relatively few. Each of them has a small leisure waters facility and they were crowded. It became clear to us that there seems to be a real demand for leisure waters facilities. By comparison, the Abbotstown aquatic centre has far more significant leisure waters than either of those two centres where the most recent European swimming championships were held.

Has the Comptroller and Auditor General any observations?

Mr. Purcell

No, I have no way of substantiating the £13.6 million. That would demand an analytical exercise in itself to sustain it. I could not accept it on the basis——

Mr. Teahon

I would be happy to make further details available to the Comptroller and Auditor General.

Mr. Purcell

We are subsidising the building of a 50-metre pool in, I think, Limerick. A figure of perhaps £6 million comes to mind in relation to that. It was envisaged at one stage - the accounting officer of the Department of Tourism, Sport and Recreation can confirm this - that the State would also pay a subsidy to that pool of the order of £200,000 per year for it to make time available for our elite performers. Perhaps, we are going from a point where we had no facilities for our elite performers to a position where there may be too many facilities for them.

Ms Hayes

To confirm what the Comptroller and Auditor General says, the Department of Tourism, Sport and Recreation provided a capital subvention of just under £6 million at the time towards the construction of a 50-metre pool at Limerick University. The Department agreed to provide an ongoing subvention of under €230,000 per annum to cover the cost of providing hours of elite training and so on. It would not be designed to provide the kind of competitive environment that is envisaged in the Abbotstown proposal. It would not be fair to compare them.

Last evening Mr. Barry Murphy of the Office of Public Works said, when asked about concerns expressed in relation to the project, that we would probably read about it in the newspapers. He was being coy in relation to that. Would be it wrong to ask if he might give us a preview at this stage?

Before he goes to the newspapers.

Before anybody else goes to the newspapers.

Mr. Murphy

I am afraid that the word "news" was not in front of the word "papers". I said that we have papers in which one might read it. I was not being particularly coy but one of the concerns that we had, as the Deputy raises it, was about the DBFOM, the design, build, finance, operate and maintain basis of this contract. I point out that we are the pioneers in this area. We have carried out the decentralisation programme through the design, build, finance, operate and maintain process. We have done prisons through client-led design and we have 1,001 variations on contract. The capacity to have innovative and steady project management and project delivery is what has made a success of our building programme over the past ten years.

The difficulty with DBFOM is that if one takes the "F" out of it, we are left with nothing. Only an ordinary contract remains for design and build or an ordinary contract for a concession to operate and maintain. If one sets off on a DBFOM and misses out on the "F", one ends up with the kind of situation we now have where the operator has a 30 year lease. If the contract had been constructed in two parts, the operator might get a five year or, as in the case that we looked at recently, a seven year term. Some 30 years relates to investing money - it relates to the "F" bit of DBFOM.

We were very vocal that this was not an appropriate way to go forward at the start of this project. This has been borne out by the HPR report referred to yesterday, which queries the use of DBFOM as a basis for this type of contract.

Mr. Teahon

I regret that I have to take issue with Mr. Murphy on this subject which is significantly more complicated than he says it is. First, in Australia, when facilities were being put in place for the Sydney Olympic Games, the DBFOM system was used for the two major contracts, that is, the stadium and the indoor arena. Secondly, I readily appreciate that there are other methods and that a judgment has to be made as to which method is appropriate in particular circumstances. DBFOM means in essence three things: it means design and build on one side, it means, as Mr. Murphy suggests, significantly in some cases finance, but, in a critical sense, it means operate.

One of the points that was made to us by those in Australia, Britain and in the United States was that, in their judgment, the earlier the operator could be brought into play in a constructive relationship with the design build side, the better the project would be. While we were in Manchester, two hours was spent explaining to us that because they did not have the operator in place when the design-build took place, it subsequently cost them a significant amount of money.

Mr. Murphy is right when he says that finance is critical. Finance in a DBFOM contract will be related in a commercial sense to the extent of the surplus that will become available. If, for example, I contrast the aquatic centre - where in the European sense one is not talking of a surplus but a deficit, and in the Abbotstown case it is a relatively small surplus - with a stadium where there could be a very significant surplus if one had, as would have been the case in relation to the stadium planned for Abbotstown, a significant number of matches committed by sporting organisations. That is not relevant to this case but I make the point that finance, and the extent to which the private side will be prepared to bring to bear finance, is a function of their view of the surplus.

In this instance, from my perspective, the critical element is that if we look at the European experience - we are not talking about hundreds of thousands of pounds of subsidy in the case of Helsinki and Manchester, we are talking about millions of pounds - it was a good deal for the State to bring the private sector to bear as it would be prepared to operate leisure water facilities in particular and to make some surplus out of the 50-metre and 25-metre elements of the project. It is and does represent, in that context, a good deal for the State.

Mr. Murphy, have you anything to add to that?

Mr. Murphy

The examples given are not exact. If I were a European pool provider and was offered a subsidy, of course I would put in money. There would be no transfer of risk there. In this case, there is no great transfer of risk either and it begs the question as to what happens next because the operator in this case has put in a part bond of up to £750,000, decreasing for only five years. The risk transfer in the Abbotstown project is, therefore, quite small. In the Australian case, the financiers were looking to an Olympic Games and to a virtually guaranteed return on their money. I am not sure how well that pool has performed since the Olympic Games.

Mr. Teahon

I do not wish to give the impression that Mr. Murphy and I are contending with each other.

But Mr. Teahon is doing so.

Mr. Teahon

I am entitled to bring to bear information. In the Australian case DBFOM was not applied to the pool but to the stadium and the indoor arena. But the Olympic Games is one event and the contract exists for a much longer period of time and they have had some problems. They had an issue with some of the games that were committed to Stadium Australia. There are issues and in my judgment there is a transfer of risk in a situation where, if compared with a similar facility in Europe, the operator would expect a significant subsidy and there is no subsidy. I do not see how anyone can say that there is no transfer of risk if someone takes on a facility and agrees to run it without recourse to the Government on a current basis.

Perhaps we can return from Australia for a moment and look at matters closer to home. Last evening, Mr. Teahon, you mentioned in the course of your statement that no wrong was done in regard to the withholding from your board of information that you had received.

Mr. Teahon

Excuse me, Deputy, I did not refer at any stage to the withholding of information. I referred to information not being given and I referred to my being prepared to accept that.

That is fine.

Did you have the information at the time that it was not given?

Mr. Teahon

Yes, and I made that clear in the statement.

I am a little bit at sea here. What is the difference between withholding information that you had available to you and not giving information that you had available to you? In terms of the information you mentioned in your statement last evening that you "did not knowingly" withhold information. Was it unknowingly or knowingly that you withheld or did not give the information that you had in regard to the company in question and that this information was made available to you arising from the Pricewaterhouse assessment? Can you expand on what exactly happened? Was it withholding or was it not giving and was it critical information?

Mr. Teahon

I think I made a number of points and I believe I should underline them. The first point I made was that at this juncture I cannot recollect what information I gave to any of the three key events. One was the assessment panel; the second was the board of CSID; the third was the Department of the Taoiseach. I do not recollect at this stage what information I gave.

Can I just focus on it for a moment. Here was a fairly substantial and serious piece of information which could impact on the whole viability and security of the project and which perhaps could have an impact on public funds at some stage in the future. I would have thought in those circumstances that it would be incumbent on you to recognise the seriousness of that situation and to make the information known to those who depended on your judgment.

Mr. Teahon

I will say what I actually did. It is clear from a note that was prepared at the time that in the case of the assessment panel I made known what I saw as the key piece of information. In other words, the key issue was whether we had a consortium with which we could contract correctly. I made known to the assessment panel that there were funding issues in the case of Waterworld and these had to be resolved. I made that piece of information available. I then immediately set in place the letters which led to those issues being clarified.

So in fact you did not make the entire information available to the people concerned; you selected the information to be made available and you then set about rectifying the difficulties in the interim.

Mr. Teahon

It is clear from the notes that I made available the issue as I saw it. I did not see this as an issue that could not be resolved reasonably readily. In other words, this was not something that I said "this is going to be impossible, this is going to be even hugely difficult". I saw it as an issue where because of the terms under which people entered the tender there had to be a consortium that would provide for its economic and financial standing. I did not see it as something that——

To whom did you report on an ongoing basis in relation to the project?

Mr. Teahon

My relationship was with the board of CSID and on the other side with the Department of the Taoiseach.

When you discovered the information which you obviously recognised as needing further clarification, did you relate that to those two agencies?

Mr. Teahon

As I made clear in my statement yesterday evening, I did not.

You did not.

Mr. Teahon

No, I did not.

You said the word "dormant" was not used when you reported to your board.

Mr. Teahon

No.

Was the word "dormant" used to you in the report and the information made available to you by Pricewaterhouse?

Mr. Teahon

Yes.

What was your previous posting in the public service?

Mr. Teahon

I was the Secretary General of the Department of the Taoiseach.

For how many years?

Mr. Teahon

Seven years.

Did you serve under more than one Taoiseach?

Mr. Teahon

Yes.

Mr. Teahon

Three.

Would you have withheld information of that nature during the course of your service to the three Taoisigh?

Mr. Teahon

I would have had numerous situations in which I do not believe that the three Taoisigh in question would have expected me to have kept them informed at every single point in time as to what action I took. I negotiated a number of social partnership agreements. I would have kept the Taoiseach of the day informed in an overall sense but I would not have informed him of particular problems and how I intended to deal with them. I am not sure that the situations are equivalent but, given that you have asked me the question, I would not have kept a Taoiseach of the day informed in the manner that you are suggesting and neither would the Taoiseach of the day have expected it. If I am negotiating an agreement with social partners I will attempt to resolve any issue that arises. I may inform the Taoiseach of the day that there had been such a problem and tell him how I resolved it. If it became an impossible issue I would tell the Taoiseach and advise him that he would need to intervene. For a great deal of time during my career people expected me to deal on the basis of delegated authority be that formally or informally delegated. That is how I worked in this particular situation. I saw myself having been given formal authority from the board and as implementing an overall position agreed by the board in a particular case.

This is quite new to me. Like a number of people here I would have some small experience of the way Departments operate. How does the Department of the Taoiseach rank in the pecking order in comparison with the other Departments?

Mr. Teahon

The Department of the Taoiseach and the Department of Finance are the two key Departments of Government.

I would expect that other Departments would take notice of telephone calls from the Department of the Taoiseach. Do you agree?

Mr. Teahon

Yes.

Is it the premier Department?

Mr. Teahon

I think my friends in the Department of Finance would take issue with me if I said that it was the premier Department.

We will not encourage them to take issue with you just at the moment. I must ask you again whether it would be normal practice and if you would expect other Secretaries General of Departments to operate in the same way that you have just outlined to the committee. That is, informing their Minister on a "need to know" basis as determined by themselves as Secretary General?

Mr. Teahon

The Deputy can ask Dermot McCarthy who was my successor.

I intend to do that.

Mr. Teahon

I thought the whole basis of being a Secretary General was that one must operate regularly on the basis of delegated authority, whether formal or informal. I did that virtually every day of my seven years as Secretary General of the Department of the Taoiseach. I am not trying to take away from what I said at the end of my statement yesterday evening.

In what way were you appointed? How did you receive your instructions initially?

Mr. Teahon

I was appointed by the Government.

Who in the Government or what Department appointed you?

Mr. Teahon

It was the Department of the Taoiseach.

How did you become aware that you were heading up the consortium or board?

Mr. Teahon

The Taoiseach asked me if I would be prepared to do so and I said I would.

How did he relay that information to you? Did he telephone you?

Mr. Teahon

No. He spoke to me in person.

He met you in person and he relayed the information. What instructions were you given at that stage? I presume you were given a broad outline of the responsibilities being thrust upon you. I presume you were asked to report to him or to someone in his Department on an ongoing basis.

Mr. Teahon

Yes.

Can you tell us what were those instructions?

Mr. Teahon

The instructions were of a general nature. He said he believed we would put in place a stadium as part of the campus. We discussed the types of facility which might be in that situation. He asked me if I was prepared to be an executive chair and I said I was.

Did he ask you to let him know if there were any difficulties or to contact him if a problem arose? Did he tell you to whom you should go in the event of a difficulty arising?

Mr. Teahon

He did not do so on that occasion. Because I had worked with him for a significant number of years, I believe he would have expected me to operate on the basis that I saw myself operating. In other words, in particular situations it is reasonable that there would be delegated authority and that, as an executive chair, I would have to work on the basis of delegated authority.

I want to get a response from Mr. McCarthy about an issue referred to earlier. Would you, Mr. McCarthy, have expected to receive some notification given the alleged seriousness of the information?

Mr. McCarthy

I would.

I presume the secretary of the board, who was a colleague, would have been informed in the event of the type of difficulty described in the past two days arising. Did Mr. Teahon inform the secretary of the board about the word "dormant" in the PricewaterhouseCoopers report?

Mr. Teahon

No.

Ms Hayes, you took over responsibility for the project in January 2001. Does that mean you are the accounting officer going forward?

Ms Hayes

Yes.

After you took it over in January 2001, did you cause any review to be initiated or were you concerned about what you had inherited?

Ms Hayes

My first focus was on having the necessary resources in place to manage and monitor the project and to ensure the Department was well resourced to deal with the issues which would arise. That was our concentration over the months of January and February. We were aware that a Government decision had been made on 19 December, that heads of agreement were being signed and that as soon as they were signed, the immediate final contract negotiations would begin. That was the type of period relating to the development at Abbotstown The main concentration we had in the Department was our own structures and how we would deal with the reception into our portfolio of this project.

When you put those in place, how soon was it before you started to get a grip on it?

Ms Hayes

We received a copy of the heads of agreement some time in March. We received the first request for payment in relation to work on the project on the executive services side towards mid March, if I recollect correctly.

What was your reaction to receiving that?

Ms Hayes

The payment requested was in accordance with the contracts approved up to then. We checked out if contracts were in place and if finance had been sanctioned.

Did it lead you to have any reservations about the merits of the contract?

Ms Hayes

My main concentration was on the terms of the contract and how it provided for the management of the project. Our first meeting on this issue with both the executive chairperson and the project director who headed up executive services was some time in April. We went through a number of matters, did a review on how things were going and dealt with the provision for executive services and general administration and management. We made certain comments about welcoming clarity on the resource commitment and detail of what particular services and functions were covered by the executive services contract. We mentioned the basis for the contract and we suggested they might look at the structure of the contract to provide for greater transparency in the provision of services there.

As it developed, did you form any concerns about the direction events were taking?

Ms Hayes

We concentrated on the contracts then in place which were mainly the executive services contract and the contract for legal services. As regards progress in relation to the pool contract and the other bidding process which had been initiated at the time - expressions of interest had been sought in relation to the remainder of the project which was the stadium and the other sports facilities - the bidding process was moving to phase two and they were the three areas of concentration over the first six months.

I will come back to you, Ms Hayes. Mr. Teahon, where is the company headquartered?

Mr. Teahon

Campus and Stadium Ireland Development Limited is headquartered in the Westend office park in Blanchardstown.

What rental are we paying?

Mr. Teahon

The lease was obtained through the Office of Public Works from the company which owns the building. I do not have the figure, but I can make it available.

Do you know the figure, Mr. Murphy?

Mr. Murphy

I do not have the figure to hand, but I can get it for the Deputy.

Mr. Teahon

I have found the figure. The rent and service charges for the period from 1 June to 31 December 2000 is just under €114,000.

Mr. Murphy

I do not have my papers on that with me, but I think the Office of Public Works pays that rent. We also paid £0.5 million for the fit out of these offices. It was part of the set-up costs.

What is the staff complement for £0.5 million?

Mr. Teahon

There is an executive services team, myself and two people who work for me and a project management team. We are talking about between 30 and 40 people.

Can you recall, in terms of the memorandum and articles of association, what the stated objectives of the company are?

Mr. Teahon

Not off hand, but I can make them available to the Deputy.

I will quote to Mr. Teahon the following: "CSID will provide the overall framework master-planning and site infrastructure and the private sector will provide the facilities on island sites designated by CSID". Do you remember that, Mr. Teahon?

Mr. Teahon

Yes.

How advanced is that framework master plan?

Mr. Teahon

The quotation is from the tender process that was in place for the stadium and other facilities that Ms Hayes referred to. The status of that is at the moment in abeyance.

Is it stalled at the moment?

Mr. Teahon

Yes. We completed two parts of the tender but these are three-part tenders. There are expressions of interest, outline bids and detailed bids.

Do you know how much was expended by the time that happened?

Mr. Teahon

Not offhand. I can check it. The quote is possibly from the HPR report. HPR, in making its report, would have had access to the bids at the outline bid stage. That is where they might have got the information from.

Were any agreements entered into with the private sector in respect of the facilities mentioned in that quote?

Mr. Teahon

No.

None at this stage. If it has been stalled, how long has it been stalled for?

Mr. Teahon

We completed the outline bid stage and then the Government decided to initiate what became the HPR report. In relation to the item the Deputy raises, the next stage would have been the detailed bid stage. We did not proceed to the detailed bid stage because we would not have done so without Government approval.

Notwithstanding it being stalled, are the same monthly payments being made to the Executive Services company?

Mr. Teahon

The same monthly payments are being made because the same people are in place.

We are examining the year 2000 accounts from the report of the Comptroller and Auditor General. It might be possible to find a figure for the amount of funding that has come from the Exchequer up to now. Has the ownership of Abbotstown been transferred from the Minister for Agriculture, Food and Rural Development to CSID?

Mr. Teahon

No. We have had agreements with the Minister whereby we were able to go for planning permission for the pool in the first instance and we have agreements whereby we were able to proceed with the tender process for the other facilities but——

Will the land be transferred?

Mr. Teahon

Yes, in the event that the project goes forward.

In the event that the project goes forward, what arrangement is there to account for the carrying value of the land?

Mr. Teahon

I do not understand the Deputy.

The land is not a free resource. It amounts to about 500 acres and that is of considerable value. Is that correct?

Mr. Teahon

Yes.

But this has not been addressed yet.

Mr. Teahon

In what sense?

In the sense of the accounts of the company, in the event - as is intended - that the lands are transferred from the ownership of the Minister for Agriculture, Food and Rural Development to CSID.

Mr. Teahon

That issue has not been addressed in the way in which the Deputy says.

Has there been any consultation with the Department of Finance?

Mr. Teahon

Not to my knowledge.

Ms Hayes

It is not envisaged that the land be transferred to CSID. It would be transferred to the new statutory entity.

Is that once the legislation goes through the House?

Ms Hayes

Yes.

So we would have a development authority.

Ms Hayes

Yes.

I do not want to go back to Australia but as Mr. Teahon mentioned the Olympic Games being one event, could he give us a breakdown, in the event of the project going ahead, of the annual fixture list in terms of the different hurling, football, soccer and rugby events? What is the expectation?

Mr. Teahon

We have commitments in the case of soccer that all international matches would be played in Stadium Ireland. We also have commitments in the case of rugby that all international matches would be played in the stadium and we have a commitment from the GAA that events giving an annual attendance of 200,000 people would be played in the stadium. In addition, both the soccer and rugby authorities have said that they would expect to be making application for special events. The 2008 European Championships is one such event and the IRFU would intend to apply for the world seven's competition. There would be an issue of tendering for the Rugby World Cup, or at least part of it. The FAI believe that it would be possible at that point in time to have the European Championship final played there. So there would be a range of those types of facility in the stadium.

Does that automatically mean that there will be no international soccer or rugby matches played in Lansdowne Road after the stadium opens?

Mr. Teahon

Yes.

What do the rugby authorities intend to do with Lansdowne Road then, do you think?

Mr. Teahon

I do not know.

Is there a rental fee per match agreed?

Mr. Teahon

There is an outline agreement. What we would expect to happen, and this would be the subject of detailed negotiation, is that the operator would have an agreement involving CSID and the authorities, that is, the FAI, IRFU and GAA. The rental to the operator would be part of that agreement and, therefore, the rental would be paid for by the GAA, IRFU or FAI to the operator.

So in terms of hurling and football, would the GAA pay a rent to the operator to move games out of Croke Park?

Mr. Teahon

Given the way the GAA sees it, it would not necessarily involve moving games out of Croke Park. I think that the GAA sees a situation where, as became evident last year with the new format for the football championships, there would be a significant number of extra games in both football and hurling, and that some of those games could be played at the stadium. The Deputy will be well aware of the problems that the GAA had last year on two fronts: firstly, because residents close to Croke Park took issue with extra games and games being played on a Saturday; and, secondly, because the pitch at Croke Park suffered significant damage because of weather conditions by the time the major finals arrived.

Are you contracted for a certain number of bums on seats, or was that an arrangement that the Taoiseach entered into with Croke Park?

Mr. Teahon

The outline agreement is an arrangement between the Government and the GAA, FAI and IRFU.

To provide how many bodies?

Mr. Teahon

Up to 200,000 per year.

The national league final last year between Galway and Mayo had an attendance of 22,000. So 200,000 would be a big dent in Croke Park's running costs, would it not?

Mr. Teahon

It goes back to the issue of whether one believes, as the GAA does, that there will be a significant number of extra games played and that it would not be credible to play them all in Croke Park.

What number would be required to make the opening of Abbotstown viable?

Mr. Teahon

My recollection from the feasibility study is six.

I am asking about numbers in terms of match attendance.

Mr. Teahon

If one takes six games with an attendance of 40,000 each, the figure is about a quarter of a million.

I mean the break even figure. It is now suggested that for Croke Park to cover all its costs, insurance, security and other services such as canteen and so on, it needs almost 30,000 people in attendance to break even. How many people will be needed for the stadium to break even?

Mr. Teahon

I think it would be lower than in the case of Croke Park because it could be designed to be lower. I think it would probably need in the range 25,000 per game to break even.

How many soccer internationals and how many rugby internationals are you banking on?

Mr. Teahon

The agreement is that all the internationals would be played there. I think you would be talking about four or five of both.

What direction is the Deputy going? I know we are talking about the long-term feasibility.

I am examining on the report of the Comptroller and Auditor General on the accounts for Campus Stadium Ireland for the year 2000. I am trying to establish whether we are getting value for money and whether we can foresee down the line the merits of the project.

Can Mr. Teahon tell us anything about the estimate of the running costs of the stadium?

Mr. Teahon

My recollection is that you would be talking about £4 million, let us say €5 million.

You probably do not remember a figure for depreciation costs or what provision is made for that.

Mr. Teahon

To follow from what I said about how the payments would be made, the running costs would be running costs that would have to be met by the operator, not running costs that would have to be met by CSID.

To facilitate the Chairman I will go back to the executive services contract. Was there a competition for the executive services contracts?

Mr. Teahon

Yes.

What was the nature of that competition?

Mr. Teahon

The competition was advertised in the national and international, The Financial Times, media.

How many applicants were there?

Mr. Teahon

Seven. I am sorry. There were 25 inquiries and seven actual applications that were considered by an assessment panel.

Twenty-five expressions of interest and seven actual applications? Can you remember the criteria for the award of that contract?

Mr. Teahon

The criteria were that we spelled out a series of headings for the services that had to be provided. The criteria that will be used to determine the technical ability of the chosen scheme will be the lead individual of the team having experience of satisfactorily managing on behalf of a client the services outlined above for projects of comparable size and complexity to this project and the capacity and experience of individuals/combined team level to carry out the various elements of the executive services. That was in relation to technical ability. There was also a requirement that evidence of financial standing would be provided by a banker's statement indicating that the team is in a suitable financial position to undertake the work.

Who made the decision to award the contract?

Mr. Teahon

The decision to award the contract was made by the board of CSID. They did so on the basis of a recommendation from an assessment group. The assessment group consisted of myself as Chair, Seán Benton, commissioner of the Office of Public Works and Kevin Kelly, solicitor from McCann Fitzgerald.

Were the Department of Finance procurement guidelines observed at all stages?

Mr. Teahon

Yes.

Was the Department of Finance consulted or informed about the contract?

Mr. Teahon

That would be something for Dermot McCarthy to answer. As far as I know, the Department of Finance was involved at stages but it really is a matter for Dermot McCarthy to answer how.

Mr. McCarthy

Chairman, the Department of Finance certainly became aware of the terms of the contracts at a point subsequent to the process which Paddy has outlined.

But before the award was made, was the Department of Finance advised or consulted?

Mr. McCarthy

Not to my knowledge.

Can anybody in the Department of Finance recall at what stage you were brought on board or you heard of this?

Pól Ó Duibhir

It was after it was awarded. I would have to check that out. I have just moved into this area and I am trying to familiarise myself with all the papers but I would not necessarily be 100% on top of every piece of paperwork in existence. My impression is that it was after the contract was awarded, from my review of the papers.

Mr. Teahon

If I could just make one point that might be helpful to the Deputy, the award of the contract, and of contracts of this nature, takes place in two stages. You decide on which is the most economically advantageous proposal - maybe I am wrong in this - but you decide on the team and then you negotiate a fee with the team. They are separate. It is a Department of Finance requirement that you don't make a judgment on the basis of a team and an amount of money. You make the judgment on a team. You cannot at that stage make a judgment on the amount of money. You have to negotiate with the team already selected.

Did you advise your shareholders?

Mr. Teahon

The decision to accept the recommendation of the assessment panel was made at the board meeting of Campus and Stadium on Wednesday, 10 May 2000.

Did you advise your shareholders?

Mr. Teahon

In the sense of notifying the Government?

No, in the sense of normal corporate governance. Who are your shareholders?

Mr. Teahon

We have three shareholders, the Taoiseach, the Minister for Finance and the Minister for Tourism, Sport and Recreation.

Normal corporate governance requires that you would communicate with them, is that not so?

Mr. Teahon

In general, yes, but not on specifics.

Not on a contract as major as this?

Mr. Teahon

I do not believe that in a situation of this kind there would be a requirement to notify the shareholder.

I think this is a very important point. You stated you signed the heads of agreement on 10 May, Mr. Teahon. On 7 May 2001, there is correspondence between the people providing the executive services in which the fee was capped at 1.75% of £550 million and the amount was quantified at £9.625 million. Deputy Rabbitte has a point in relation to the major shareholders. Surely that is a huge and significant contract? I made the point yesterday, Deputy, and I think you are perfectly correct in raising this. I would like clarification from the Department of Finance on the matter of executive services about which I have some concern. The Department of Finance issues public procurement guidelines to all Departments.

Yesterday we were told that, based on legal advice Campus Stadium received at the time, because it involved executive services it was not necessary to go through the normal mechanism of the European Union journal. There are EC directives with regards to services and those services are elaborated. Yesterday I tried to find out what was unique about executive services. Some of the priority services are listed and I note that the lower threshold for capping is €162,293. If your contract exceeds that and you fall into the services category, in accordance with EU guidelines your organisation, like any other body, is bound to advertise in the European Union journal and in other quarters. Mr. Murphy from the Office of Public Works will be aware of what happens in that regard. What is unique about this project? I have listed the priority services in respect of which it is necessary to advertise if the threshold is exceeded. These are the provision of computer and related services; the provision of accounting, auditing and book-keeping services; and the provision of management consultancy and related services. Information on these services is provided in the Department of Finance's procurement guidelines. I reiterate, what is unique about executive services that they cannot be included?

Mr. Teahon's legal advisers stated that, as far as they were concerned, it was not necessary to advertise in the European Union Journal. Are the officials from the Department of Tourism, Sport and Recreation satisfied that European public procurement directives have not been broken in this case? If these have been violated, there is a risk of serious legal and financial consequences arising. Have reassurances been provided? Are the officials from the Department of Finance, which is responsible for issuing to all other Departments public procurement guidelines, satisfied that, with regard to executive services, what occurred does not conform with what is mentioned in the European Union circular on services?

I reiterate what I said on previous occasions, namely, that I am not happy. I want reassurances to be provided, other than supplied by Mr. Teahon and his legal advisers, by the Departments of Tourism, Sport and Recreation and Finance.

Mr. Teahon

Does the Chairman want me to——

I would like the officials from the Department of Tourism, Sport and Recreation to respond first because Mr. Teahon stated yesterday that he is happy with the legal advice he received. I also wish to hear from the officials from the Department of Finance, which is responsible for instructing other Departments with regard to public procurement policy.

Ms Hayes

Before I answer that question I want to refer to the previous question asked by Deputy Rabbitte with regard to when we began the process of transfer of responsibility. The first formal meeting took place on 26 January between myself and the officials from the Department of the Taoiseach where we discussed exactly what the position was in relation to contracts that had been approved and were in place, what payment procedures were applied, what records were in the Taoiseach's Department and how we could arrange for the transfer and continuity of these. One of the issues I referred to was CSID's contract for executive services. I asked about the issue of the Government contracts committee and referral to that committee and the Department of the Taoiseach said that they were satisfied that CSID at the time had received legal advice that it would not be necessary to submit the contract to the Government contracts committee and that they had dealt with the issue of public procurement, that the contract was in place and was signed, that payment had begun in relation to the project and that the payment arrangements would be okay to continue.

That is what we did in relation to executive services; we continued the arrangement that had already been put in place by the Department of the Taoiseach. We have not paid above the floor price in relation to this contract. No claim for a payment higher than the floor price has been received from Campus Stadium Ireland in relation to that contract.

On the same day I also met the executive chair, the project director and the secretary to the company. Based on the information we had from the Department of the Taoiseach, we then went through the state of play in relation to the project to make sure that continuity was in place and to find out exactly where we were going in relation to cost, payment structures and so on. That probably was the first major overview of what transfer of responsibility would entail and that was after we had done considerable preparatory work ourselves before those two meetings took place.

I should also put on record that the Minister for Tourism, Sport and Recreation is a shareholder. However, that shareholding was not registered until May 2001 because he did not have responsibility for the project on 1 January 2001.

Would the officials from the Department of Finance like to comment on the public procurement guidelines?

Pól Ó Duibhir

We would issue the public procurement guidelines. In giving sanction for expenditure - which would be, in this case, delegated sanction - a condition would be that all of the relevant procedures would be observed. The responsibility, as I understand it, would be on the awarding authority to ensure it did that and, if it were to go any further, on the parent Department to ensure it had taken place. As far as the Department is concerned up to this stage, we would have assumed that had actually been the case. You heard yesterday from Mr. Teahon about his legal advice and from Mr. McCarthy who was in the parent Department that they were satisfied that this was the case. On that basis, the Department of Finance would not get directly involved in that. That would be where we would stand at the moment.

I take it the Departments of Tourism, Sport and Recreation and Finance are satisfied with the legal advice provided and they have not sought advice from the Attorney General with regard to the merits thereof.

Who held Mr. Ó Duibhir's position at that time in the Department of Finance? Is he still in the service? Mr. Ó Duibhir stated that he is relying on the papers from that time. It would be difficult enough for the person who held the position at the time trying to remember what happened without someone new attempting to interpret events. For how long has Mr. Ó Duibhir been responsible for his brief?

Pól Ó Duibhir

About two months.

Pól Ó Duibhir

Yes. However, as I say, I have looked at the papers——

But I presume your colleague who held the position at the time could come before the committee on the next occasion.

Pól Ó Duibhir

I am sure I can arrange that, Deputy.

Mr. Teahon, this was no ordinary, everyday event. Was this not a hugely significant contract in terms of the mandate you have been given?

Mr. Teahon

It was significant.

It was even more than that, was it not? What did Mr. Teahon expect from this executive services contract company?

Mr. Teahon

We expected it to put in place a very significant range of services.

Could the Office of Public Works, which has considerable experience in contracting, not have done that?

Mr. Teahon

The Office of Public Works was involved in the person of Seán Benton.

On the assessment panel?

Mr. Teahon

Yes.

Was the Office of Public Works ever considered in terms of the contractual experience at its disposal?

Mr. Teahon

It was involved with Campus and Stadium Ireland Development Limited to provide other services at that time.

Chairman, may I finish the point I was making?

Mr. Murphy wishes to intervene on that point.

Mr. Murphy

Chairman, I simply wish to make the point that the Office of Public Works would not have been involved in the executive services end of things - that was support for the company and the CSID board. Our name has been invoked in relation to the assessment panel. There are some clarifications needed there. We were involved in that panel because the Department of the Taoiseach asked us to be involved and we were happy to be involved. We were involved only in assessing a set of written submissions. The assessment panel was given a set of written submissions and it looked at these. There was no involvement of the assessment panel in establishing the bona fides of the various bidders. That was a matter for CSID. Nor indeed were we or the assessment panel in any position to guarantee the extent to which the personnel and companies being offered in the consortium would be the personnel and companies that would ultimately take up the particular job. In other words, there was a submission in front of the assessment panel that listed certain people and certain companies. There was no guarantee that they would be the same people or companies that would do the job later.

The assessment panel had no involvement in the money end of things. That was not part of the assessment, nor did the assessment panel have any involvement in the contractual arrangements with executive services.

Was the Department of Tourism, Sport and Recreation not involved in the money end of things?

Ms Hayes

No we were not because all of that was wrapped up by 31 August.

Later on you were concerned.

Ms Hayes

But by the time the project had come to us the contract was in place and payments had already issued in respect of a number of months. As I said yesterday, our main concentration then was on getting value for money out of this contract, which was in place. We had raised the issue among a number of other issues in that transfer discussion which we had with the Department of the Taoiseach on 26 January. On the question of executive services, we were told that the contract had been approved and that the question of Government contracts committee referral had also been dealt with and it was considered that it was not necessary to submit it to that committee.

Did your colleague Mr. Haugh not subsequently express reservations about the charge out rates and the number of staff involved?

Ms Hayes

We did subsequently, yes. But I take it we are dealing here with the global accounts.

Yes. We are talking about a global sum.

Mr. Teahon

I just wanted to add one point in relation to what you said, Chairman, about what was unique about it. There was nothing unique about it in terms of EU procurement law. It is a technical term, but just to make the point, there are what are known as annex 1A and annex 1B services. Provided the balance between these two is in a particular direction - and that was the basis of the legal advice - then there is not a requirement. I think Deputy Rabbitte yesterday asked if the contracts or contract for executive services could be made available. I checked with the head of the lead company and she has provided the basic contract, the first voluntary proposal and the second voluntary proposal for the committee's information.

I thank Mr. Teahon for that. I will summarise this point. As I understand this contract, there was no need to comply with European procurement arrangements or to go the Government contracts committee. Did the contract get approval or was it vetted by any State agency or authority?

Mr. Teahon

The contract was negotiated by me with the executive services team leaders and was so approved by the board.

It was approved by the board. It did not go to the contracts committee. It did not need to comply with Europe. Was the decision by the assessment panel unanimous?

Mr. Teahon

Yes.

Can I come back to the point? From what Mr. Teahon has said, I take it he did not tell the shareholders. Is that because he felt it was not necessary to tell them or because he felt he did not have to tell them?

Mr. Teahon

I basically did not feel I had to tell them.

Was this not the contract that was going to deliver and therefore a big step?

Mr. Teahon

It was a significant step and I mean——

But if Mr. Teahon was in a private company with three shareholders and had something as significant as this, would he not have consulted the shareholders?

Mr. Teahon

No. I believe that in a private company, there is a board and the board takes the decisions. I do not believe that there would be a requirement to consult the shareholder in a case like this.

It would be a unique private company with only three shareholders, or two at that time, and he did not tell the shareholders that this contract was about to be concluded.

Mr. Teahon

In a private company, I would expect that the major shareholders would be represented on the board. In this particular incidence, at this particular point in time, there was no representative of the shareholder on the board. That situation has since changed.

I want to turn briefly to the pool contract, etc. I was always under the impression that under the EU procurement directives, a bidder had to put in place at the time of the tender its financial capacity, fitness, etc. and if there was any substantial change to that later, it rendered the bidder ineligible. Am I wrong about that?

Mr. Murphy

There is a slight gap here between the legal situation as we have discovered it and what we would regard as normal Office of Public Works practice. Let me put it this way. I have never encountered a situation in all my years of dealing with contracts of various sizes, where a lead bidder changed. My instinct would have been that if a lead bidder changes, that is the end of the bid. As it transpired, the legal——

That is the point I am putting.

Mr. Murphy

Yes, but as it transpired the legal advice was that that was in accordance with EU rules. As far as I can recall the Attorney General confirmed that was the case. Now, mind you, this has opened our eyes and we are putting something into contracts now that says if the lead bidder changes, the bid fails. Purely from a common sense point of view, I do not know how it is possible to change horses, but the legal opinion was that this was okay.

Mr. Teahon might remind us of the position. There was a major Dutch company involved with Waterworld UK Limited. It was backed by a company, NGBS in the USA, which I think was a supplier of pool equipment. I think there was also a German subsidiary. In the period leading up to the final bid deadline, all of them dropped out.

Mr. Teahon

Well, no. What had happened was that, as I said, there were three stages. So what the Deputy said was correct at the expression of interest stage, then at the outline bid stage, Rohcon became involved, or became part of the consortium, effectively in place of the Dutch company and then when it came to the detailed bid, Waterworld UK stated it would put in place a local management company, effectively. The people that it identified - it was Waterworld UK Limited that identified the people and that information was available for the assessment panel and the detailed bid - were Messrs Routelage and Bohan from Tralee effectively.

How did Waterworld UK identify them?

Mr. Teahon

I do not know this for a fact, but the Deputy will recall that when I was giving details of the people involved yesterday, although it is not a member of the consortium, the firm called SMP Architects were the architects for the Aquadome in Tralee. My belief would be that SPM Architects knew the people——

If a company in London saw this advertised and put in a successful bid, why would it want to divest 95% of it to people in Tralee it fortuitously discovered through an architect contact, if that is what happened?

Mr. Teahon

Because as it transpired it was not able to convince its parent - I am not sure whether parent is the appropriate word or not - company, NGBS, to provide a parent company guarantee. That is what actually happened and at that point of time, Waterworld UK notified us that it was prepared to give us the Anglo Irish Bank letter, which effectively was secured on the assets of John Moriarty who became the major shareholder in Dublin Waterworld Limited.

That was secured after the bid deadline. It was not secured until February.

Mr. Teahon

Correct.

My understanding is that it is critical that the financial capacity is in place at the time of the bid.

Mr. Teahon

The financial standing of the consortium.

This is a very significant question in the context of the national development plan, as I am sure you well understand, Mr. Teahon. I have been contacted by a number of contractors and companies who are concerned about the apparent implications here, that after a number of main parties dropped out of the consortium and post the bid stage, parties would then set about finding out whether they could come up with the financial wherewithal to deliver.

Mr. Teahon

The legal advice we sought at the detailed bid stage was to the effect that the party could seek backing from a third party. This arose when we took legal advice on discovering the dormant company issue. We were advised that it was allowed, that one could have backing.

However, the people you contracted with on 18 December have turned out to be men of straw.

Mr. Teahon

The people we contracted with were Rohcon Limited, Dublin Waterworld Limited and Waterworld (UK) Limited.

Rohcon Limited had replaced——

Mr. Teahon

The Dutch company.

By 18 December.

Mr. Teahon

Yes. They had replaced them at the outline bid stage. You could have different ways in which the financial standing issue could have been dealt with. In other words, Rhocon Limited could have provided the financial underpinning for the entire contract. That is a possibility. I would take it that can happen in some cases. In fact, what we got when we wrote to the consortium on 19 December was a reply which said we will provide you with a parent company guarantee from NBGS. There was a period of negotiation to establish if, in fact, NBGS could provide such a guarantee. As you said, in February it became clear that they were not prepared to so provide and we were offered the alternative of the Anglo-Irish Bank situation. We consulted with our legal and financial advisers and they advised us that it was reasonable to accept that.

Is it not extraordinary that the company that was supposed to provide the financial wherewithal was not able to do it, or was no longer interested when you put it to them, and you had to look for somebody else after the event?

Mr. Teahon

No, we did not go around looking for anybody else. What happened was that - it was at the later stage that the shareholding issue became clear - Waterworld (UK) Limited gave us the Anglo-Irish Bank letter.

When it was put up to NBGS, it could not come up with the goods and Waterworld (UK) Limited obtained this letter of comfort from Anglo-Irish Bank. A report in The Sunday Business Post of 17 March reported that £3.8 million in financial guarantees provided by Anglo-Irish Bank in a letter of comfort to support the winning bid by the dormant company, Waterworld (UK) Limited, do not apply to Dublin Waterworld Limited. It went on to point out that the British shelf company turned over its beneficial interest to Dublin Waterworld Limited, but the performance of the contract is now backed by a number of bonds worth far less than the original £3.8 million guarantee. Is that the case?

Mr. Teahon

That is correct.

So even when you got the letter of comfort it was underpinning Waterworld (UK) Limited but not Dublin Waterworld Limited.

Mr. Teahon

Dublin Waterworld Limited is the company Waterworld (UK) Limited told us it would be putting in place. When it originally said it would be put in place it was a Waterworld (UK) Company, in other words, it would have been a subsidiary of Waterworld (UK) Limited. In the event, it became a company that had Waterworld (UK) Limited as a 5% shareholder.

Is that regular, Mr. Murphy?

Mr. Murphy

I have to say no. I must say, knowing what we know now, had we known it then, and it was an Office of Public Works project, it would have come to an end at that point. It simply is not possible to deal with a transfer of 95% of one firm to another firm and then deal with this new firm as though it was part of the bidding process. It clearly was not.

The answer is no, we would not act in this way and I am very taken, Deputy Rabbitte, about what you said about various builders and so on, coming to you and asking you if this is how we do business. No, we do not do business like this. We do not.

Is that not, on the face of it, a matter of concern, Mr. Teahon? It would be unfair of me to put on the record, without their permission, the names of two managing directors and one manager in a different company who has contacted me on this point. However, they are concerned about it, presumably because of business they must have in train themselves.

Mr. Teahon

I can appreciate people raising an issue. It is my understanding, on the basis of legal advice, that unless the Office of Public Works had provided, as Barry Murphy specified it now has, that the original lead would remain in, it could not have ended the involvement. In other words, our legal advice was that one cannot end the situation; there is a legal right of a consortium to continue, provided the substitutions that are proposed would, in the opinion of the assessment panels in the different tender stages, have meant that they would have qualified in the first place. The legal advice that we obtained was that we did not have the right, and could have been in trouble, if we had acted as Barry Murphy suggested.

Even if you could assign, and even if it was a good idea that you should assign, why would one want to win a contract like this and retain only 5% in the company that is ultimately to get the benefit of it?

Mr. Teahon

I made the point yesterday that contrary to some reports, the benefit is not huge. In other words, the benefit, on the basis of present information, is £100,000 per annum. It is significant - I am not trying to undermine it - but it is a benefit that, as I said earlier, comes with a risk. It is the view that in the initial period it will lose money, in other words, when it is up and running in the first instance, the centre will lose money because one will pay out more than one will get in. If one takes the stadium referred to by the Deputy, the situation would be completely different. I believe that Stadium Ireland, when and if constructed, will be one of the most commercial stadiums in the world because I know of no other stadium - I have seen quite a number of them - that will have the level of matches with the attendance that Stadium Ireland will have.

The Chairman did not want to pursue that wider area because the purpose of my earlier questioning was to try to establish what would go on in the stadium. I am flabbergasted by your answer. How could it hold the most games when there is not a stadium anywhere in the world of which I am aware that is not a member of the premier league of that country and is, therefore, guaranteed a capacity attendance match ever second weekend. Far fewer people attend League of Ireland matches.

Mr. Teahon

I did not say the most games, I said the most commercial of its kind. Stadia of a national variety - Stade de France is a classic example - have had huge problems because they do not have an anchor tenant of the variety referred to by Deputy Rabbitte. This is not the equivalent of Old Trafford or wherever; this is a national stadium. National stadia, in general, have had huge problems precisely because of what was referred to by the Deputy, that there is no anchor tenant.

I suspect the Chairman will be coming back to the wider question based on the Comptroller and Auditor General's report for the year 2000 for which, presumably, we will soon have accounts. Ms Hayes, are they are with the Comptroller and Auditor General?

Ms Hayes

For 2001.

Ms Hayes

I think the Comptroller and Auditor General's staff may be looking at them, are they?

Mr. Purcell

The client would be the best——

Ms Hayes

The audit process has——

Mr. Purcell

There may be some interim audit work being carried out.

We can come back to that later.

Mr. Purcell

No, I am sure there is not. I do not think we have received the accounts for 2001 yet.

Are they coming along, Mr. Teahon?

Mr. Teahon

Yes, they are.

When do you think the committee might have them?

Mr. Teahon

I do not know because we would have to speak with the Comptroller and Auditor General, but there will be no delay on our side.

Can I check something with you? The Comptroller and Auditor General mentioned figures of £30 million and £48 million yesterday. Is it that the cost of the project has gone from an original expectation of £30 million to £48 million or does the element not provided by the private sector account for the difference?

Mr. Teahon

When the feasibility study carried out by PricewaterhouseCoopers was completed, they said the cost of the facility would be £48.4 million. In other words, the cost figure has not changed. What did change was the capacity, in terms of finance, of the private sector to bring in upfront, as straightforward money, the difference between the two figures, £18.4 million. In fact, what was negotiated was that the private sector would provide a sort of benefit in kind whereby they would make available these hours at a cost of £13.65 million if one was to pay for them. One could do this in either of two ways.

The private sector is making these hours available for social causes.

Mr. Teahon

No, through the Sports Council for our elite and equivalent swimmers.

The private sector being exactly whom——

Mr. Teahon

Being the operator about which we have been speaking, Dublin Waterworld Limited.

It is contracted to provide this.

Mr. Teahon

Yes.

These documents can be made available for the Comptroller and Auditor General to examine for us.

Mr. Teahon

Yes; I am happy to make the calculations available to him as well.

Is this the reason that the profit is projected to be £100,000?

Mr. Teahon

It is one of the significant reasons, yes.

For how many years is it projected to be of that order?

Mr. Teahon

No, the figure is a calculation over 30 years. It is the current value of the hours that will be provided for, that is, 1,300 hours over 30 years.

Was the original basis an expectation that the pool would be a revenue earning venue?

Mr. Teahon

The general experience of aquatic centres throughout Europe, as I have said, is that they are revenue generators, but relative to cost, they lose money and governments make significant subsidies. One of the original inquiries for the tender was from a UK operator which asked what the amount of subsidy would be. We told it there would not be a subsidy and it dropped out. The experience in the UK is very similar.

Let us suppose DublinWaterworld had a couple of bad years and decided to apply its hand to something else. With what would we be left? What would be our exposure?

Mr. Teahon

That is why the guarantee is in place - to cover the cost, should it arise, of putting an alternative operator in place.

In terms of, for example, the provision for elite athletes of £13.6 million, would the State still have to do this?

Mr. Teahon

The Sports Council is a State body which would be in receipt of funding and, through it, the elite swimmers. On the basis of the information we have available and the different structure, in terms of what is being put in place, it should make a small surplus because the leisure waters are far more significant. All the information we have suggests there would be a very significant demand for leisure waters of the kind being put in place.

How would they get there? There is nobody around there except cows. Is that not a problem?

Mr. Teahon

As the Deputy is probably aware, there are significant transport issues which we are addressing.

Let me go back to the point on tendering and contracts and so on. Incidentally, on the contract for executive services, were there international applicants?

Mr. Teahon

Yes.

In the final seven, did any of the international applicants survive?

Mr. Teahon

Yes, to the best of my knowledge, three of the seven did.

Did they all structure their bid on the basis of a percentage of the action?

Mr. Teahon

No, as I explained to the Deputy, in effect, the requirements do not allow you to ask that question at that stage. You effectively qualify and then negotiate. They did not state the nature of the fee system they would require.

You would pick one before you get on to the business of negotiating the money.

Mr. Teahon

Correct.

That is a bit of a shock to me. I would have thought that cost would be one of the major criteria.

Mr. Teahon

It was a surprise to me when I discovered this, but I was told that was the way in which one had to do it.

Mr. Murphy, I am learning something new everyday about this business. Is that the way you do it, you discuss price afterwards?

Mr. Murphy

No, we certainly do not. We used to do it and have had quite a battle over the past few years with the professional bodies in town and it has harmoniously been brought to an end. There is now price bidding for EU advertised consultancies. As far as the Office of Public Works is concerned, one of the criteria is price. Our legal opinion is that is a valid way of proceeding.

Mr. Purcell

I said yesterday that I was surprised that cost was not a factor because, clearly, an alternative way which would ensure, I imagine, best value for money - we are talking about international companies with international reputations - would be to qualify a number of bidders and see how much it would cost to do business with them. In that way you would have a better chance of getting the most economically advantageous deal.

I know I have referred to this earlier, but that sounds to me like——

Mr. Teahon

I agree, but that is the information. I would like to correct one matter because in the further information we provided, under the heading "Fees," it states:

Fees for the services will be negotiated. Teams wishing to be considered for selection shall provide details of their daily/hourly rates or other proposals for remuneration including reimbursement of expenses. Teams should note that proposals in this regard will not be taken into account when selecting the successful team but regard will be had to them when negotiating fees.

I will be happy, if the committee so wishes, to make available the proposals made to us by the different bidders, which I do not have in front of me.

I am just as concerned about the methodology as I am about seeing the documents. Does that not narrow the options of the purchaser somewhat, in this case the State, to be put into a position where cost is not a criterion that is upfront in lights at the time?

Mr. Teahon

I agree. I have to say that I did find it surprising at the time, but I was told - I can check by whom - that this was the way in which you had to do it.

Is the J. P. McManus £50 million still in place?

Mr. Teahon

Yes.

Where is it?

Mr. Teahon

The money has been deposited in a Swiss bank.

Was there a deadline?

Mr. Teahon

Yes, 31 December 2008.

We have a while to go yet.

Mr. Teahon

Yes.

Can I clear up one point in terms of the timing of the bids? I am advised that one bidder delivered ten boxes of finalised or near finalised documents on the evening of Friday, 15 March, and that the decision was announced on the Monday. Is that right?

Mr. Teahon

No. That was one of the remarks you made on "Morning Ireland" that I believe should be corrected. That is not correct.

Please correct it.

Mr. Teahon

We had two groups. All the bidders had provided the information. The information was provided by all the bidders, not by one.

The information was being provided by all the bidders.

Mr. Teahon

All the bidders. In other words, between the outline and detailed bids we had two groups, a cost and contracts review group and a design review group which met regularly. The final bids were received at the offices of CSID on Friday, 15 March. Multiple copies of each bid were requested and received. That meant that while a bidder - I am not sure about the figure of ten boxes - may have sent ten boxes, information of varying kinds was provided by each of the bidders. I believe that people might have reached the conclusion on foot of what you said on "Morning Ireland" that somehow there was an arrangement with one bidder that they would give us the information and that we had decided that that was the bidder.

No. As I understand it, the claim being made is not only on behalf of that consortium but that all three - certainly Bovis - submitted on the same day.

Mr. Teahon

Yes, Prospero.

No, not along those lines. The point being raised is how could they be evaluated over the weekend. It is a different point altogether.

Mr. Teahon

With respect, the Deputy's recollection may be different, but certainly what I believed I heard him say on "Morning Ireland" was that one bidder had provided ten boxes.

Only because I know about this bidder, but this bidder also told me, for example, that Bovis went in on the same day. There were three ultimately, as I understand it.

Mr. Teahon

I think somebody listening to the programme might have come to the conclusion that because you referred to one bidder providing ten boxes what you were really saying was that somehow we knew, and had asked one bidder——

Mr. Teahon

I accept what the Deputy is saying. Certainly, somebody said to me afterwards that that is what they took out of it.

No, this bidder did not get it. I am making the opposite point. This bidder did not get it. Mr. Murphy, do you want to comment?

Mr. Murphy

I have to say that this business of numbers of boxes and so on is perfectly normal because we actually provided the technical teams. We would have been working with the bidders for weeks beforehand. The arrival of the boxes was simply, if you like, the end product of our consultations. We would not have been starting afresh on the Friday evening to go through everything before the Monday. We would have gone through all the documentation previously.

With the assessment panel.

Mr. Murphy

Yes. Sorry, the technical advisers would have.

Be that as it may, surely the deadline is only a deadline because the contract has not been awarded in advance of it and only after the deadline is reached the contract is awarded. Are you saying the decision was made before 15 March?

Mr. Murphy

No, not at all. The technical elements of any of the bids are a matter of discussion with the technical experts.

Mr. Murphy

That means that the bids——

Let me put the question in another way. Is it customary that there would be a deadline set of, say, the 15th day of any month, Friday night, and the award announced on the Monday?

Mr. Murphy

It has certainly happened, no doubt. The only point I am making is that it is not surprising to get large wedges of documentation and that the deadline for making decisions is shorter than you might expect, but only because the technical experts would have been talking to the bidders during this whole process.

Okay. An aggrieved bidder would have no basis for grievance purely on the short window.

Mr. Murphy

No, certainly not. They should not.

How many sub-committees of the board are in place, Mr. Teahon?

Mr. Teahon

One, a finance and audit sub-committee.

Why is it dealing with finance and audit given the significant amount of public money involved and your experience elsewhere that an internal audit committee would be critical? What does finance mean in this context?

Mr. Teahon

It means expenditure undertaken by the company.

The same committee which is dealing with expenditure is also responsible for auditing it.

Mr. Teahon

Yes.

Is that a good idea?

Mr. Teahon

One of the issues we are and have been considering is the issue of internal audit. We have had Andersens looking at it and intend pursuing it. It would be fair to say that the board in one of its recommendations to the Minister - in what we sent to the Minister on 8 March - recommended that there should be a finance director. I think there is a concern that, certainly moving forward where you are talking about far more significant money than has been the case up to now, there should also be a full-time chief executive, a full-time finance director. I think if you had a full-time finance director, it may be that you should have a separate finance and audit committee. I do not think the board would have any problem with this.

You were saying the wider project is stalled. Ms Hayes, do we know how it is stalled?

Ms Hayes

The Minister has been asked to evaluate the HPR conclusions and report back to Government. At this stage it is unlikely we will be able to report back before the end of May. That is the target we have been working towards.

You are happy that the monthly payments should be made in the interim?

Ms Hayes

On the basis that the finance and audit committee is looking at the revised fee proposal put forward by Executive Services to take account of the temporary slowdown in the project. On that basis we are happy to see the payments continue.

Have you satisfied yourself that the State will not be exposed in the event of the temporary slowdown in the project turning out to be something more serious? Are you satisfied that the State will not be exposed significantly?

Ms Hayes

At the moment I have no reason to believe the State will be exposed significantly because Executive Services is dealing with both the running of the company and overseeing a major project which will not be complete until the end of December and will be in commissioning phase for the first three months of 2003 in preparation for the Special Olympics.

I am talking about the totality.

Ms Hayes

The only contracts in place where there are potential contractual liabilities are in relation to executive services and the pool contract. We are managing them closely to ensure there is not the type of exposure about which the Deputy is concerned. There is no exposure in relation to the bid process for the wider project, as far as I am aware, because it is stalled at the outline bid stage. Bidders have not been invited to proceed to final bid stage because at this stage the Department cannot give guidance to CSID as to what the final bid will be about. We were also asked as a result of the HPR report to look at the overall tendering strategy, DBFOM about which comments were made. We will ask the project steering group, which is composed of people from the Department of Finance, the Office of Public Works and CSID, to also look at DBFOM and its advice will be taken on board. If there is a change in tendering strategy, it will have implications for the bid process.

Is there any question of a bidder not having his or her tender assessed properly as seems to have been implied on programmes this morning?

Mr. Teahon

No. I take completely what Deputy Rabbitte said that he was speaking about one of the underbidders who said to him about putting in ten boxes.

About which one are we talking? Did we get a name?

I ask questions at this committee, Deputy. I do not answer them.

We do not know.

Mr. Teahon

I was concerned.

I do not want Deputy Rabbitte to reveal his source.

Mr. Teahon

I had the fear that someone - it is good it is being clarified - would have taken out of it that because one bidder provided ten boxes, there was somehow a special deal with ten boxes. I take completely what Deputy Rabbitte said that he was speaking about someone who did not get the bid. Therefore, the issue does not arise. I am glad that is now clear.

Did you explain to people afterwards why they did not get the bid?

Mr. Teahon

No.

You did not have consultations. Sometimes in public sector contracts disappointed bidders are told where they went wrong or where they could improve their bids.

Mr. Teahon

You might give them a certain amount of information, but you must be conscious at all times that you are dealing with a commercially sensitive subject. Therefore, you cannot reveal too much information.

Cost was not a factor in relation to the executive services contract. Who designed the framework for it? You said you were surprised as regards the executive services contract for the project. You mentioned a factor. Cost was not a factor for the executive services. Did the board or the Office of Public Works design the framework?

Mr. Teahon

My understanding is that it is a requirement of the Department of Finance.

There is a Department of Finance specification in terms of the provision of executive service type contracts for such projects that cost should not be included in the equation.

Mr. Teahon

No. You should negotiate fees with a selected provider rather than negotiate the fee, as I thought would be more normal, as part of the issue, as the Comptroller and Auditor General said. You must get people to put in a tender and a fee and then decide which is the most economic on the basis of the quality of the people being put forward and the cost. It does not mean that you end up with the lowest cost.

Mr. Teahon

You would end up with what is termed the most economically advantageous where the quality and cost are balanced.

And who can deliver the project. The specification for the project arrived on your desk from the Department of Finance.

Mr. Teahon

We needed to know if we were going to recruit people for the project. The advantage of an executive services team is that you get a significant number of people on board at the one time. We were in a situation where at that point we had identified that if we were to put the pool in place and do the project quickly, we needed people in place quickly. The quickest way to do this, as I understood it, was through an executive services team. We then asked for legal advice and were asked what services we had in mind. We told the legal advisers the services we had in mind. The legal advisers said to us that it was a combination of 1A and 1B and asked us to tell them about the breakdown. The breakdown was 84 and 16. Some 84 did not have to be advertised, while 16 would have to be advertised if they were separate. The legal advisers said that because a significant majority did not have to be advertised, it was not a requirement to advertise. We then said we would advertise under the competitiveness process as laid down in the Department of Finance Green Book.

The Department of Finance guidelines, under which you must operate, state that costs should not be considered in the arrangement. Decisions should be made on who is best to deliver and then haggle about the fees. There is no agreement to give a contract until the fees are agreed. Is that right?

Mr. Teahon

You would have made it clear that one had selected - the downside which I——

Is the contract awarded before the fees are decided?

Mr. Teahon

You have notified the winning people that they are——

Can one say that if fees cannot be agreed, the contract will not be issued to provide executive services?

Mr. Teahon

The letter we send states, "The Board of Campus and Stadium Ireland Development have considered your proposal and whilst this letter is not an acceptance of your tender, I am writing to you to inform you that the board today approved in principle your company as the successful team to provide executive services as outlined in our advertisement and further information, subject to the negotiation of contract". It then states, "In that context, I would be glad if you would submit a definitive version of your proposal for remuneration as outlined in point 6 of section 1."

There is no contract in strict legal terms until the fees are agreed.

Mr. Teahon

Yes.

That addresses one of the issues raised by the Comptroller and Auditor General. It would be preferable if people were pre-qualified in terms of the size and cost of the service they provide.

Mr. Purcell

The Deputy must be mistaken. My point was the exact opposite.

I thought you were talking about pre-qualification.

Mr. Purcell

The most sensible way to achieve value for money is to qualify a number of people, to consider cost as an essential element of any of their proposals and, as Mr. Teahon said, to judge the balance between what you are getting and what you are paying for. That would be the best way to get the most economically advantageous deal.

It would be better if people were pre-qualified rather than selecting one.

Mr. Purcell

That is what I suggest.

The State was covered against any loss of cost in this case.

Mr. Teahon

The State was covered in the event of——

If there was a cost factor, it was because people did not sort out the fees during the negotiations.

Mr. Teahon

It would appear to have been open that if the fee was considered unreasonable, you could say the fee was unreasonable and, therefore, the contract would not be completed.

Given the voluntary character of Executive Services, what the company is now doing is effectively a re-negotiation of its contract. Is that correct?

Mr. Teahon

Of the fee.

What the taxpayer is getting is the potential for a lower fee.

Mr. Teahon

Twice. Once to the extent that the 1.8% was an issue. As I made clear, the 1.8% at a level works in two directions. In the event that the cost goes up, there is a benefit relative to a given amount of time. However, in the event that the time increased without the cost, the percentage would represent better value for the State. As I said, HPR was very exercised about the potential for time being lost.

In effect, the contract with Executive Services has been re-negotiated downwards at the initiation of that company. Is that correct?

Mr. Teahon

The nature of the fee proposal is different in the first stage. There are two voluntary proposals. One is that if there is a concern about the 1.8%, we will put in people by charge or rate so that everyone can see so many people by charge or rate. The second proposal is that in the interregnum period only 75% of the norm would be paid.

Mr. Purcell

I do not know where the initiative for this would come from or what would give rise to the initiative. I said yesterday in evidence that we expressed concern last May on this issue and the operation of the floor payment of £100,000. I would like to think that this helped concentrate certain minds in this regard. I see that the executive chairman assents to that.

The next issue that I am puzzled by - I am sorry that Deputy Rabbitte is gone as he raised it - is that of the company transfer. It is quite important that this is clarified because a serious issue has been raised here - it might even be called a spectre. Perhaps Mr. Murphy will be able to clarify what he believes to be the case on - I regard it as fundamental to what we are discussing about this project - the transfer within Dublin Waterworld, Waterworld UK and the general consortium. Was the contract awarded when the transfer occurred?

Mr. Teahon

No.

In other words, there will be no contract with anybody in relation to this work until the transfer occurs.

Mr. Teahon

There was a series of stages. There were three tender stages, those being expressions of interest, outline bid and detailed bid. There were then negotiations on the heads of agreement and, finally, the contract.

That is what I feel has been lost here. No contract has been awarded to Waterworld UK or any other companies or consortia referred to.

Mr. Teahon

There is a contract now.

When the shareholding changes and there is a transfer from 95% down to 5%.

Mr. Teahon

That changed before the contract was signed.

The question is whether this is orthodox practice in his experience.

I will get back to Mr. Murphy——

Sometimes the Deputy is like a defence counsel.

I presume the Chair is proceeding by way of analogy because one could pursue a similar analogy in relation to the Chairman being a prosecuting counsel.

Not necessarily, but we like to ask the pertinent questions that everybody outside is asking.

I like to ask them too.

Those that the ordinary man in the street is asking. I like to reflect his thinking.

The Chairman likes to represent them and I like to represent them also. I will ask the question again, if that is all right with the Chairman——

Of course, it is all right. The Deputy is being granted extreme latitude.

Mr. Teahon, is it the case that there is no contract and that nobody got or had a contract to perform any service in relation to this particular development at the point at which the shareholding changed between Waterworld UK and Dublin Waterworld?

Mr. Teahon

No. Nothing in relation to the operational end——

So there was no liability to the State. If somebody turned around and said that they were not having this and that they did not like the change of status within the company, is there liability? Can they sue CSID and say that they had got a contract and that CSID was reneging on that? Is that not the bottom line?

Mr. Teahon

Correct. However, I have made the point that that course may not be open. Once a tender process is embarked on, the people in that process have rights. One takes legal advice, as we did when the dormant company issue came up. That legal advice was that provided that the company can substantiate its economic and financial standing it has to remain a part of the tender and the continuation of the contract.

Mr. Teahon is talking about the legal licence and company law, in effect. Once the financial guarantees that were acquired——

Mr. Teahon

Once they can provide an acceptable financial guarantee in that connection——

That the service can be delivered at the price promised.

Mr. Teahon

That was the legal advice.

They are onto the contract anyway. In other words, they had not got the transfer but then there was a clarification and there was a substitution of investors, bonds and financial guarantees in that process.

Mr. Teahon

Correct. We were aware of the shareholding and, as Deputy Rabbitte established, the shareholding of the Waterworld UK directors was 5%. That shareholding has since changed, and that is also in the public domain.

However, the critical legal advice about the change that we are referring to here is from CSID's lawyers.

Mr. Teahon

Yes.

It says definitively that if CSID changed specifically in relation to the shareholding issue, the bidders may have the right to sue the State. By ruling them out on that basis, CSID might have opened up the State to a serious liability, claim, or case being pursued by what was perceived to be the winning bidder.

Mr. Teahon

In addition to that, one would not have an operator in time for the Special Olympic Games.

That is an operational matter but they have legal rights at that point, and the financial transfer is what CSID was looking at. Does Mr. Murphy have a view on this? He said that this was unorthodox in the sense that it was not the normal situation.

Mr. Murphy

I am not saying that it is not normal but that I have never encountered it. We have often used shelf companies. It is done normally in "design, build, finance". The lead bidder sets up an entity with which we can place a contract. It is a mechanism to bring together the developer, builder, architects and so on. However, in our experience that shelf company is 100% owned by the lead bidder. We have never had an occasion where it was less than 100% owned. I find it hard to conceive of situations where we might have such an occasion, although there may be special situations. However, the idea that a lead bidder would reduce its interest to 5% at the point of signing a contract is, in my view, not a runner.

It is not a runner from what perspective? Can the nature of what can be delivered be changed substantially?

Mr. Murphy

No, because we are now dealing with a different company from the one that had gone through the tendering process.

But you have put in place some provisions to prevent something like that occurring again on normal tenders.

Mr. Murphy

In our "design build finance" arrangements we have not specifically provided against that but, following this, we will now have to. I am not saying that what was done was not legal; if there is legal advice around it, that is fine. However, it is such an unusual step that I have to say, taking Deputy Rabbitte's point, that there are people doing business with us who are watching us, and I would not like them to believe that we act in this way, or that companies can be substituted at the moment of signing a contract.

If the membership is virtually the same and the service is fulfilled as promised, there is nothing intrinsically wrong about it.

Mr. Murphy

I find it intrinsically wrong. You are passing on a contract, if you like, that is just about to be placed from one firm to another without, as has been said, the kind of guarantees that we were looking for and had been promised from the original firm.

Surely if you take that to its logical conclusion, if one of these companies happened to be taken over subsequent to the awarding of the contract, there would be the same effect. If you are looking for a service to be delivered, in this case a contract to be delivered, what then is the difference about giving the contracts - let us say the company kept the same shareholders - but, let us say, two hours after being confirmed and the contract being signed, the company is taken over by another company. What is the difference once the service is being provided? To make it even simpler, I may be contracted to provide you with ice-cream tomorrow but, after signing the contract, somebody could buy my company and still supply you with the ice-cream. What is the difference and why are you making such a big point if it is the same ice-cream and you are enjoying it just as much?

Mr. Murphy

Again just working from my own experience, that tends not to happen in the construction area.

You are chipping a bit at the procedures here.

Mr. Murphy has considerable experience, maybe not in the ice-cream area but in construction. You have been licked on this one, Deputy Lenihan.

Mr. Murphy

I could do with an ice-cream now, Chairman. The nearest analogy is the design, build and finance. If there were any such change, the contract form for that allows for certain things to happen but all the parties to the contract are involved. I would have to bring the form to you or let you see it.

Would it prevent a take-over happening?

Mr. Murphy

What we try to do is to protect the contract that we have set up which has been arrived at through a tendering process. In this case, looking at it coldly, you could say that a tendering process was being circumvented or avoided.

Mr. Teahon

I would like to make two brief points, please. Just in relation to the question as to whether it is unique, it is not unique because the legal advice was based on European case law so that this is a situation that has arisen at European level. I do not know how normal or abnormal it is or how often it has happened but there is case law. The advice was based on case law.

The second point is to address for the information of the committee the issue you raised, that there is a clause in the contract that has been signed that says there cannot be a change in control from here on in without the agreement of CSID. When the shareholding change - as in the holding of the 5% - arose, I wrote to the majority shareholder and asked "what is the situation?" and he wrote back saying "there is no change in control" and we took legal advice that that was in order so that there is a clause relating to controlling interests. The issue raised by the Deputy, in other words, if somebody were to take over Dublin Waterworld in the morning, there is a clause in the contract which gives Campus and Stadium Ireland the right not to agree with that.

Yes. But then, as you understand it, had control changed?

Mr. Teahon

Not when this 5% changed.

This is the key point. Did control of the company or the consortia shift when the shareholding was reduced?

Mr. Teahon

No.

Is that not the net point, that there was actually no change in the control of the company?

Mr. Teahon

Relative to the change in the 5% shareholding.

You said yesterday in your statement that you had done nothing wrong and you were not resigning in relation to this issue. Is it the case that you made that statement to us yesterday having had sight of what the Attorney General had given to you as being his draft report?

Mr. Teahon

I had not read all the report; I had read some parts of the report.

So it is fair to conclude that notwithstanding what the Attorney General has written in draft form, that you do not believe there is anything in there that suggests any malfeasance or that you personally have done anything wrong in relation to the whole controversy that has developed?

Mr. Teahon

I have read the entire report today and sent a response and I repeat my statement of yesterday.

You are not resigning and that is that. In a sense, we now have to wait as a committee until you make a fuller response. One of the issues that arose earlier in our discussions here was who was going to get the report. Clearly, the Attorney General is not going to make that report available to this committee. If you are going to respond to that, would it be your intention to make that report available to this committee?

Mr. Teahon

As I see it, I made the response available to——

Because the Attorney General said he cannot——

To be helpful to the Deputy——

——the Attorney General said he will not make it available to us because——

To be helpful, I will read out this letter apropos our discussion at the start of the meeting. This was written to Dermot McCarthy, Secretary to the Government, Department of the Taoiseach, Government Buildings, Upper Merrion Street, Dublin 2.

Re Campus and Stadium Ireland Development Limited Financial statements for the period 10 December 1999 to 31 December 2000.

Dear Mr. McCarthy,

The Committee at its meeting today agreed that you be requested to supply it with a copy of the report compiled by the Attorney General and expected to be submitted to the Government secretariat on matters relating to certain issues on administration, operation and control associated with Campus and Stadium Ireland Development Ltd. In doing so, the Committee is exercising its powers to send for persons, papers and records as defined in Standing Order 149 (2) (a) of the Standing Orders of Dáil Éireann.

The next meeting of the Committee relating to the above examination is scheduled for 2 p.m. on Tuesday, 26 March 2002. I am to request that you supply the above documentation prior to that time.

Yours sincerely,

Patrick F. Timmins

Clerk to the Committee.

I take the liberty of reading this letter now instead of at the end of the meeting just to clarify the point for the Deputy.

When will we have sight of the Attorney General's report?

Hopefully before Tuesday.

Tuesday, Mr. McCarthy? You are the Secretary to the Government.

Mr. McCarthy

I have to read the letter, Chairman.

Will I read it again for you, Mr. McCarthy? We will be able to deliver it by hand.

This draft report will only be fully completed in a sense when you and others respond. We heard earlier on that none of the other Departments did but if anyone wants to put his or her hand up and say they did, let them do so. I think Mr. Murphy said earlier on that he had comments. Is there any Department here other than Mr. Murphy's and the Office of Public Works who have added comments other than those submitted to the Attorney General's report by Mr. Teahon? No takers. In effect we are talking about an Attorney General's report in draft form which will now be sent back to him with amendments suggested by yourself. Is that correct?

Ms Hayes

And a number of other parties, Deputy.

Who are the other parties?

Ms Hayes

Basically, Pricewaterhouse, McCann Fitzgerald, Magahy and Company and the executive chairperson.

Have they put in substantial material?

Ms Hayes

There are extensive comments, yes, from a number of those parties.

On the dormancy issue, have——

Ms Hayes

No, the comments expand beyond dormancy issues.

Of course they do. But on that subject?

Ms Hayes

I just had a quick look at them as they came in. They came in around 1.30 p.m. today and the imperative at that point was to get them over to the AG's office to give them an opportunity and as much time as possible to consider them.

Deputy Durkan pointed out yesterday that the Tánaiste said that on four occasions she had not been given information. Is it Mr. Teahon's understanding that the information she is saying she did not get relates entirely to this issue of dormancy?

Mr. Teahon

I do not honestly know because I do not know to which four occasions the Tánaiste is referring.

Is this possibly one of the issues in respect of which clarification is being sought?

Ms Hayes

The comments I requested on behalf of the Attorney General referred to the actual draft report. The Tánaiste's comments have not been included or dealt with in that report by the Attorney General.

I did not say the Tánaiste sought information on four occasions, I said on four occasions on yesterday's Order of Business she repeated that she had requested information and said that for some time she had been of the opinion that due procedures had not been followed and that the Government - I presume she meant all members thereof - is entitled to obtain information on the subject.

As the 7 p.m. adjournment is approaching, I wish to ask a number of questions. Did Mr. Teahon ever meet Mr. Palmer or Mr. Currie of Waterworld (UK) Limited?

Mr. Teahon

I met both of them.

In part of your original brief you were asked to try to get management expertise with vast international experience. I know PricewaterhouseCoopers subsequently checked the position and discovered that Waterworld (UK) Limited is a shelf company. When you met Mr. Palmer and Mr. Currie were you impressed by them?

Mr. Teahon

The point has been made before that having international experience was not a requirement. In other words, you did not have to have international experience. You had to show that you were capable of running a facility of this kind. You did not have to have international experience as such.

Did Mr. Palmer and Mr. Currie impress on you that they possessed that sort of expertise?

Mr. Teahon

I believe, on the basis of the CVs we saw, that, yes, they had a range of experience which led me to believe we were dealing with a company which had said they were effectively going to put Irish people or people who were living in Ireland in place to run the facility. I judged and would judge that they had the management capability to put people like that in place who would run the centre.

The company had supposedly been trading since 1997. I understand Waterworld (UK) Limited is available to purchase on the Internet for £50 sterling. Did you inquire whether the company had ever been involved in a large project?

Mr. Teahon

As I said, we asked them and they gave us their CVs which are available.

My understanding is that the only project in which the company was involved since 1997 was to be located in Sefton near Stockport, but that this did not proceed. Do you have information which indicates that it was physically involved in other projects?

Mr. Teahon

Yes. The judgment we were trying to make was would these people, on the basis of the information they brought forward, be able or capable of putting in place - we did not believe that either Mr. Palmer or Mr. Currie were going to run the aquatic centre——

I accept that entirely. Waterworld (UK) Limited only came close to winning one other contract during its five year lifespan and that involved a proposal to build a £10 million sterling project for Sefton Council on Merseyside. However, that project was abandoned. Therefore, the company was never involved in the physical construction or operation of any structure. If I had met the representatives of Waterworld (UK) Limited during the bidding process, I would have asked if they could take us to see some project in respect of which the company had carried out the physical construction. Although the company has not been trading for the past few years, it appears it was never involved in the physical construction of any major project. That is the point I am making.

Mr. Teahon

To clarify, when I met them they had already indicated that they were putting an Irish dimension in place as part, at that time, of Waterworld (UK) Limited. When the detailed bid assessment panel came into play, the assessment in relation to Waterworld (UK) Limited and its operational capability was essentially that of Messrs. Ruttledge and Bohan and Kit Campbell - the man referred to yesterday. The Scottish expert said in his presentation to the assessment panel that they had a significant reputation in the business of running aquatic centres.

Mr. Campbell, as a consultant, said that?

Mr. Teahon

Yes.

Yet the company was never involved in any project.

Mr. Teahon

No, the people we are speaking about now are the people that Waterworld (UK) Limited had put forward as part of their detailed bid.

Are you referring to Mr. Bohan and Mr. Ruttledge?

Mr. Teahon

Correct.

I accept that, but I am referring to Waterworld (UK) Limited. It is the latter - the Virgin Islands' aspect and the company's shareholding of £5 sterling - upon which people are focused. That is the issue you are addressing with regard to dormant accounts. If I had been in your position and met Mr. Palmer and Mr. Currie, I would have asked them to take me to a project with which their company had been physically involved. All I am saying is that the company has never been involved in a project of any significance.

Mr. Teahon

With respect, I think this is part of the problem. People out there have this idea that somehow we contracted with a shelf dormant company on its own. That is not the reality.

No, we accept entirely that your organisation contracted with a consortium.

Mr. Teahon

As part of that consortium——

That consortium had three parts, one of which was Waterworld (UK) Limited. You were originally asked to get management expertise and it was clear that perhaps people who could run international projects would qualify. If I had been in your position, I anticipate I would have said to Mr. Palmer and Mr. Currie that we were bringing them on board for the project but would have asked them to provide information about the type of projects with which they were involved in the past. That is the point I am making. I know they said they were involved with Schlitterban and some other company and were familiar with them. That is not unusual, however, because anyone involved with an aquatic centre would be approached by these companies in respect of providing water slides, etc. There is no big deal about that.

Mr. Teahon

The point I am trying to make - because I think it is important in terms of people who may read what we are saying today out there - is that when the detailed bid assessment panel made their judgment one of the disappointed underbidders said, "How in the name of God could anybody have decided that these people are better than we are?" The point I am making is that we had an internationally respected person, Kit Campbell, who assessed, from an operational point of view, these three bids and that the bid of Waterworld (UK) Limited with the people it had identified at that point in time were significantly ahead of the other two. That is the point I am trying to get across. We were not assessing Mr. Palmer and Mr. Currie. The advice we were getting from Kit Campbell in this particular case of the operational capacity was that this bid was significantly ahead of the other two.

Is Waterworld (UK) Limited, 8 Gravesend Square, Gravesend, London, the company with which you were dealing?

Mr. Teahon

I——

It was.

Mr. Teahon

If you say it was.

I just point out the nature of the company's business - this information is available on its website - is developing and selling real estate, letting of owned property, buying and selling owned real estate and fair and amusement park activities. Would fair and amusement park activities include aquatic centres? The description of the company's business does not indicate to me that it could have offered any management or worthwhile expertise to this project and I wonder how it became involved in the first instance.

Mr. Teahon

I could produce, if I can find it, the letter that came to us after we wrote the letter of 19 December that stated, "We will provide you with a parent company guarantee from NBGS, one of the biggest operators of aquatic centres in the US."

If you are happy with the company in Tralee and satisfied with its international experience of running the Tralee Aquadome, surely that company would have contacts with water slide operators and other various companies and could put a package together? I believe you said yesterday that Rohcon Limited and Dublin Waterworld would have been acceptable if they had tendered in the first instance. We seem to have run into a mountain of difficulties because of a company called Waterworld (UK) Limited.

Mr. Teahon

I agree.

Kit Campbell looked this up and advised you that this company is involved in buying and selling real estate, letting property and fair and amusement park activities. It would appear like a subsidiary of Chipperfield Circus with that kind of profile.

Mr. Teahon

But, Chairman, Kit Campbell said a number of things to us. In relation to the capacity of the people involved, he said to us these are the best of the three by a significant margin. So in relation to operation, which was one of the headings, he said these are the best. What he said to us in relation to financial standing is: "I believe there is an issue that has to be pursued and we pursued that issue".

Has any other Member anything to add before we conclude this session?

Apropos of my questions earlier, in his days as Secretary General of a Department, how would Mr. Teahon have felt if, for example, an assistant secretary failed to make available to him information which was germane to day-to-day business of the section in the way that it has been suggested happened here? Would that be a serious offence as far as an assistant secretary is concerned?

Mr. Teahon

If I understood the assistant secretary to be operating on the basis of delegated authority and I believed he or she was reasonably saying to me he or she was operating on the basis of authority, I would think he or she was doing a good job.

The kind of thing we were talking about would be major and fundamental. What would happen in a Department if the assistant secretary or secretary when reporting to the Secretary General failed to report an item of major consequence that could cause exposure to liability, etc.? What would be the procedure?

Mr. Teahon

The Deputy said this yesterday and I think I explained yesterday the issue of exposure. When these people were dealt with, we made it explicit to them that they were not being selected as the preferred bidder. They were essentially being put through a process whereby they had to prove to us that they had the appropriate economic and financial standing. There is a serious issue of delegated authority.

No, we will have to come back to this next week.

Can Mr. Teahon remind us how Mr. Moriarty came on board? When the NGBS was unable to find the money, Mr. Moriarty arrived with the cheque. Who found him?

Mr. Teahon

The Deputy asked me this question earlier. In my judgment, the person who found him at that point in time was Kieran Ruttledge.

How much money did he put up?

Mr. Teahon

He did not put up any money, he arranged——

How much of a bond or whatever did he put up?

Mr. Teahon

He arranged for a letter of £3 million.

With Anglo-Irish Bank.

This was done on the basis of a proposed contract.

Mr. Teahon

On the basis of where they were in the tender process which would, in effect, have been a proposed contract.

So the arrangement of a 60% stakeholding was between him and the other two stakeholders.

Mr. Teahon

The shareholders are to my recollection: John Moriarty who has 60%; Kieran Ruttledge has 20%; Mr. Bohan has 15% - that accounts for 95% - and Messrs Currie and Palmer have, in effect, 2.5% each.

I thank Mr. Teahon, Margaret Hayes and her officials, Barry Murphy and his officials from the Office of Public Works and Mr. Pól Ó Duibhir and his officials from the Department of Finance for coming in today. I trust as a result of the letter, which is being handed to Mr. McCarthy after this meeting, that we will have a copy of the report in time for Tuesday's meeting at 2 o'clock. I hope we will be able to bring the issue to finality on Tuesday. I thank everybody for their co-operation.

I call on Mr. Donagh Moran to make the legal advice he got on the executive services available to the clerk of the committee because we would like to look at it. He should also make it available to the Department of Finance - if it has not already received it - so that it can be passed on to its public procurement section and we are all totally happy we will not have the European Union coming back afterwards showing concern with regard to this contract. He should also make it available to the Department of the Taoiseach. The Department of Tourism, Sport and Recreation may possibly have it already.

The witness withdrew.

The committee adjourned at 7.06 p.m. until Tuesday, 26 March 2002 at 2.30 p.m.
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