Irish telecoms giant Eir was kept “unlawfully in the dark” by its rival BT when tendering for the biggest public sector contract in Northern Ireland, the High Court in London has heard.
On the opening day of the hearing, in which Dublin-based Eir is seeking damages from BT of £67 million (€78 million), the background to the long-running dispute was outlined, with Eir’s barrister arguing that BT had a “wealth” of secret information that led to it winning the £400 million contract in 2018.
“Eir went from being one of Northern Ireland’s largest public sector players to being marginalised completely from the market ... and BT effectively stepping into their shoes in what was a role reversal,” Eir’s barrister, Robert O’Donoghue, KC, said on Thursday.
The tender process for the lucrative nine-year Northern Ireland Public Sector Shared Network (NIPSSN) contract ran between April 2016 and March 2018.
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Schools, Stormont departments, health trusts and councils were among 150 organisations who would avail of the service.
In 2020, Ofcom, the UK telecoms regulator, fined BT £6.3 million for unlawful anticompetitive practices during the procurement process.
During his opening submission, Mr O’Donoghue referenced the Ofcom ruling and “turbocharged” legal obligations it had previously placed on BT to ensure a level playing field for its competitors.
“Interestingly and prophetically BT objected to this additional obligation at the time,” he told the court.
Eir, which is controlled by the French billionaire Xavier Niel, claims that Openreach (the network arm of BT) discriminated against it by failing to provide it with key information on costs and BT’s fibre-to-the-premises on-demand product (FOD).
BT and Eir were the only two bidders for the contract.
For BT to portray its bid team as “mavericks” in using FOD was “self-serving nonsense”, claimed Mr O’Donoghue, as the product “is just another type of fibre that has been around many years”.
“The issue was that BT made it difficult to get a handle on costs ... Eir were kept unlawfully in the dark while BT had access to secret information on costs ... and the notion that the BT bid team had uniquely stumbled across some Holy Grail or secret source of FOD is obviously untrue.”
The case is listed to run for four weeks.
Some 14 witnesses, a “considerable quantity” of expert material and complex technical background will be detailed, the court heard.
“It must be like staring at the foothills of the Matterhorn at the start of a climb,” Mr O’Donoghue told Judge Adam Johnson.
“But we submit that the points of this case are not actually that complicated, and to a material extent, not actually in dispute.
“The long and the short of it is, that everything matters, is admitted by BT. The starting point is that BT admitted the infringements to Ofcom.”
The case continues.
