A review of the Campbell Primary School procurement conducted in early 2021 found there may be grounds for a separate investigation in a draft report but this was removed from the final version of the reviewer's report, the ACT Integrity Commission has heard.
The commission also heard evidence the ACT's top public servant weighed up referring the matter to the public sector standards commissioner or, possibly, the ACT Integrity Commission around the same time.
The external review of the procurement was sparked after the matter was brought to the attention of the ACT head of service Kathy Leigh in January 2021.
Ms Leigh was made aware of the issues following a freedom of information request from Manteena around the tender process for the expansion of Campbell Primary School.
The territory's corruption watchdog is investigating whether public officials failed to act impartially and lacked probity in their handling of the procurement, which took place in 2020. The contract was awarded to Lendlease despite Manteena being determined as the preferred tenderer by two separate evaluation teams.
An Education Directorate official, with the pseudonym John Green, wrote a brief recommending Lendlease be chosen. This was included as part of the freedom of information request along with a file note where a public servant from the first tender evaluation team expressed concerns about the process.
This was a desktop review of documents, conducted by Sparke Helmore Lawyers, and nobody was interviewed as part of the audit.
The law firm was only given a matter of days to complete its audit. The contract was executed on February 11, 2021, but preliminary findings had to be provided on February 12, and the report completed on February 19.
A draft report, which was revealed in Wednesday's hearing, said there were "significant probity concerns" with the process and there was "the potential for reputational damage to the territory".
The report said the matter could be referred for a separate investigation.
"There may also be grounds for considering a separate investigation in to the conduct of some of the personnel involved in the procurement process, although that is a matter for legal advice on which we do not offer any opinion," the Sparke Helmore report said.
But this was removed from the final report after a meeting between Sparke Helmore and the ACT government. The reviewer told the commission, in a private meeting, she could not recall why that had been removed.
The commission did hear the reviewer was told in a meeting that one official had strong opinions that nothing improper had happened.
The ACT Auditor-General began an audit into the matter shortly after the external audit. The Auditor-General's audit found the process lacked probity and tenderers were not dealt with fairly, impartially and consistently. The corruption watchdog also began its investigation around the same time.
Meetings with the ACT head of service
The commission is holding a third day of public submissions in its investigation, and is hearing from lawyers for witnesses who appeared before the inquiry.
Counsel assisting the Integrity Commission Callan O'Neill continued to give his public submission on Wednesday.
He revealed that the ACT head of service had been called to give evidence in a private examination on February 14, 2024.
Notes from Ms Leigh showed she met Education Directorate director-general Katy Haire and Major Projects Canberra then-chief projects officer Duncan Edghill on January 29, 2021. They discussed the procurement process in this meeting.
Later that day, notes show Ms Leigh met deputy director general Damian West and in this meeting she questioned whether the procurement process should be referred to the public sector standards commissioner or maybe even the Integrity Commission. Mr West agreed to undertake a review about whether this should be referred.
Mr West reviewed the documents and said there were no suggestions of anything untoward but it was a "lacklustre procurement process" and looked "inept rather than corrupt", Ms Leigh's notes show. But the head of service ultimately decided to ask the government solicitor's office to undertake a probity audit.
"Ms Leigh records her conclusion as being that while she was comfortable there had not been serious corrupt conduct, she wanted an assessment anyway to ensure that, based on what she had been told, her view stood up to a rigorous assessment," Mr O'Neill told the commission.
The solicitor's office recommended an external law firm be appointed to undertake the review.
Mr O'Neill has already alleged Mr Green engaged in corrupt conduct during the procurement.
He also told the commission he would need to decide whether Ms Haire sought to override the tender due to advice from Education Minister Yvette Berry's former chief of staff Josh Ceramidas. Mr O'Neill presented two scenarios and alleged both would have engaged in serious corrupt conduct if the commissioner accepted that version of events.
Lawyers for Ms Haire and Mr Ceramidas have denied this and are strongly challenging counsel assisting's submission. They are expected to provide their submissions in the coming days.
