Manteena boss was unaware of CFMEU's complaints, ACT Integrity Commission hears

On June 29, 2020, someone called Manteena to say the company had been recommended twice in the tender process for the Campbell Primary School modernisation project but it had been overturned by someone high up in the directorate.

Manteena chief executive Mark Bauer told the Commission that the anonymous person suggested the company make a freedom of information request to find out why Manteena missed out on the job despite having a cheaper bid and better design.

"They made a comment that it was wrong and that heads should roll," Mr Bauer said.

Three days earlier, the Education Directorate delegate on the project, given the pseudonym John Green, called Mr Bauer to say his company was unsuccessful in winning the tender.

Later that evening, Kelly Young from Major Projects Canberra called Mr Bauer to check he had received the news that Manteena lost the tender.

"I took from the conversation that she was uncomfortable and my notes are that she intimated it was the wrong decision," Mr Bauer said.

Mr Bauer said he inferred from the conversation that Manteena was put forward by the second tender evaluation team as the preferred tenderer but the recommendation had been overturned.

Ms Young was the chair of the first tender evaluation team that had handled the tender but left the role when it was decided to conduct a best and final offer process.

Mr Bauer met with Manteena executive Rod Mitton and Education Directorate officials Mr Green and Dylan Blom at the Bittersweet cafe in Kingston on September 18, 2020 to get further information about why Manteena had missed out on the tender.

Mr Bauers' notes from the meeting said John Green "stated that there was a very strong view in government that Manteena has a problem with the CFMMEU."

Mr Bauer wrote that Mr Green said he didn't know what the issue was, but that the construction union regularly referenced Manteena in "guttural" terms to the Education Minister and others in the ACT government.

When asked why Manteena did not get a right of reply to the union's concerns, Mr Green said delegates were permitted to make calls contrary to documented evidence and the decision to factor in Manteena's issues with the union was defendable.

Mr Bauer and Mr Mitton had a meeting with the Education director-general Katy Haire and directorate officials David Matthews and Kirsten Laurent on June 22, 2022 after the ACT Auditor-General's scathing report was published in December 2021.

Mr Bauer said he was told at this meeting the directorate had no particular issues with Manteena.

Mr Bauer said Mr Matthews references several times that they could not go back and understand what the delegate, Mr Green, was thinking at the time.

"I challenged this fact, given the statement in the auditor-general's report where Mr Green stated that the director-general made the decision and not him," he said.

Manteena chief executive Mark Bauer said the procurement process for the Campbell Primary School modernisation project was taking longer than usual but that at the time he did not know why.

Mr Bauer followed up with Major Projects Canberra several times by phone and email in early 2020 to find out the status of the tender process.

"My recollection was the process was just taking a long time, longer than what we might expect for a tender assessment to take place," Mr Bauer said.

The Canberra-based construction firm spent more than $200,000 on their bid and had 15 to 20 consultant firms and 30 to 40 subcontracting firms involved in a project of that size.

Mr Bauer said the company's safety record was and is "very good" and it obtained a Secure Local Jobs Code certificate soon in 2019 which confirmed its compliance with relevant safety and industrial laws.

Manteena had an industrial agreement directly with workers, without the involvement of the Construction, Forestry, Maritime, Mining and Energy Union.

On March 23, 2020, Manteena received a letter from then CFMEU ACT branch secretary Jason O'Mara seeking to commence enterprise bargaining on behalf of the companies construction workers.

Mr Bauer said he received advice from the Master Builders Association before replying to the union, stating the company did not require the union's assistance with bargaining or drafting a new agreement at that time.

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Mr Bauer told the Commission he did not think it was necessary to commence bargaining when the existing agreement was on foot. He said the timing was inappropriate as the COVID-19 pandemic was causing uncertainty.

Zachary Smith, who was the assistant secretary of the CFMEU ACT branch at the time, wrote a letter dated April 2, 2020, to the Education Directorate raising issues with Manteena's compliance with the Secure Local Jobs Code after the company was shortlisted for construction of a new primary school at Throsby.

The letter was drafted but ultimately not sent due to an administration error.

The letter said: "We believe that Manteena's consistent failure to adhere to the Secure local jobs code has the potential to render them ineligible to tender at some point during the process, and as such is a risk to the Education Directorate's efficient management of the tendering process.

"To ensure that the Education Directorate maintains a choice of tenderers for this significant project, we seek that you raise the issue of [Secure Local Jobs Code] compliance with Manteena directly. Should they remain unwilling to engage on [Secure Local Jobs Code] matters, we will have no option but to refer the matter to the [Secure Local Jobs Code] Compliance Unit."

Mr Bauer said he was unaware at this time that the CFMEU had an issue with Manteena.

However, Mr O'Mara told the Manteena chief executive in a call on April 15, 2020 that if the company had "engaged more" with the union, they "might have got a different piece of paper on Throsby", according to Mr Bauer's diary notes.

The ACT Integrity Commission is investigating whether Education Directorate officials failed to exercise their official functions honestly and impartially while handling the procurement process for the Campbell Primary School modernisation project between 2019 and 2020.

The public examinations continue.

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