LIVE: Trial hears allegations Tipperary school bus operators attempted to 'load the dice'

Five school bus operators attempted to “load the dice” to distort competition in the market and drive tender prices higher, a prosecution barrister has told a Central Criminal Court jury.

“You cannot go into a tender process and discuss who was bidding for what and how much they were bidding,” said counsel for the prosecution, Dominic McGinn SC, in the trial of five Tipperary men being prosecuted by the Competition Authority for alleged offences relating to the provision of school transport services across five counties.

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The accused are Andrew Walsh (62) of Derrymore, Roscrea; Raymond Heney (54) of Camas, Cashel; Noel Browne (77) of Bansha; Larry Hickey (73) of Ardmayle, Cashel and Anthony Flynn (51) of Golden Road, Cashel.

All five have pleaded not guilty to offences under the Competition Act 2002.

The single charge against each accused alleges that between November 1, 2014, and December 31, 2016, they engaged in a concerted practice which had as its object or effect the prevention, restriction or distortion of competition in trade in the provision of school transport services.

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The trial has heard that all of the accused were involved in the process of bidding for tenders to provide school bus routes and it is alleged that there was a collusion between them.

The jury has heard that one of the accused would arrange to hold meetings in order to provide services and assistance in dealing with administrative processes.

He said the man would invite other bus operators and they would allegedly discuss the allocation and pricing of the school bus routes.

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It is the prosecution case that the people involved would only bid on tenders in a certain way, rather than doing so independently. It is alleged that there was a “degree of coordination” between the parties so that prices would end up higher.

In his closing speech on Wednesday, Mr McGinn told the jury that this was not the usual criminal case as it was “a bit commercially involved”.

He said that competition law exists to protect anyone who is a consumer, anyone who gets value for money, to ensure people cannot manipulate the market.

He said if certain parties come together and agree not to charge the customer less than a certain amount, there is no benefit to the consumer, and this is an example of price fixing.

Mr McGinn said that "market sharing", where it is agreed among the parties to allocate an area to an individual so there is actually only one provider, is also not allowed.

“Any manipulation of that or distortion of that is unfair to us,” he said.

Counsel said that the five accused were involved in that process by getting together to try to “distort the market”. As this is public money, Mr McGinn said that the people being affected were the taxpayers.

He said that this concerted practice was not a formal agreement but collusion between them that involved an exchange of information and a form of coordination that led to “the disappearance of competition”.

Mr McGinn said that this case was not about how important it is for the children of Tipperary to get a bus to school, nor was it relevant that the accused men are approaching retirement and are alleged to have committed this offence in the latter part of their professional lives.

He said that the five accused at least and perhaps others were attempting to “load the dice” to distort the competition.

Mr McGinn told the jury that there were parts of the case where there did not appear to be any dispute. He said that all five accused were involved in a tender process through Bus Eireann, which was a serious and formal process that they knew strictly excluded collusion and had to be confidential.

Counsel said that Mr Heney portrayed himself as offering advice to other operators in this process, but it was clear there was coordination. He said that the wording was the same on various documents provided by different operators, with some consistent spelling mistakes. He said that tax clearance forms submitted by Mr Flynn and Mr Hickey were completed in exactly the same way, which indicated that Mr Heney gave them assistance to fill them in. However, Mr McGinn said the issue was whether they went further than that and also discussed the bidding process and pricing.

He said Mr Heney instigated a series of meetings in various hotels to assist with documentation, but it seemed that more than this was discussed, as Mr Heney gave a PowerPoint presentation in which he outlined how difficult it was for small bus operators to make money.

“You cannot go into a tender process and discuss who was bidding for what and how much they were bidding,” said Mr McGinn.

He went on to say that following a meeting on April 4, 2016, a huge amount of information was exchanged between people who were supposed to be competing against each other.

Mr McGinn said that it was important to look at Mr Heney’s attitude after Bus Eireann contacted operators about their best and final offers, which happens when two bids are equal and the company asks the operator for their best price.

Counsel said that an operator should not know how many other people are tendering for something, so it would be normal to reduce the tender. However, he said that Mr Heney texted someone telling them to “put 50” onto their original bid. Mr McGinn said that if an operator were increasing their bid, they would be putting themselves out of the tendering process, unless they knew that they were the only person applying for it.

Concerning the evidence against the other accused men, counsel said they were part of the concerted plan in a smaller way. Mr McGinn said that Mr Browne managed to bid at the lowest level in all his tenders apart from one, which suggested that either Mr Browne was very astute or had a degree of knowledge of what the other bids would be.

Turning to Mr Hickey, who only bid on one route, Mr McGinn said that text messages between him and Mr Heney spoke of someone who “didn’t sign up”.

“What would he be talking about unless a concerted practice?” asked Mr McGinn.

Concerning Mr Flynn, Mr McGinn said he was part of a large list of recipients invited to the meetings arranged by Mr Heney and knew he was competing with the others.

The trial continues on Thursday before Mr Justice David Keane and the jury of seven men and four women.