Draft reports from the evaluators of applicants for the State's third mobile phone licence were altered to generate a result which could "readily be perceived to be biased" in favour of Meteor Communications and against the British mobile phone company Orange, according to a High Court judge.

In her decision upholding Orange Communications' challenge to the decision of the Office of the Director of Telecommunications Regulation to award the third licence to Meteor Mobile Communications, Ms Justice Macken said she found "as a fact" that the first and certain other drafts of the report "were altered".

"It seems to me clear that the effect of these alterations is to generate a result which can readily be perceived to be biased in favour of Meteor and against Orange."

The judge said she found the alterations, or some of them, were intended to remove or modify the otherwise very harsh meaning attaching to many of the phrases to words used by the drafters.

While she accepted that some of the amendments arose from the fact the report was drafted in Denmark, she came to the view that the most likely reason why two particular sub-indicators were changed was because they appeared in the draft reports "to be too negative against Meteor".

She also concluded the changes were made in a manner which did not accord with the tender process as set out in the tender document. She further concluded a reasonable person viewing those decisions would view them as biased in favour of Meteor and against Orange.

However, the judge added, she did not accept the claim that the changes amounted to fraud. They were not in accordance with the rules of the competition and were made without any supporting basis.

Orange had claimed changes made, for example in "financial solidity" indicators, were such as to cloak the original views of the evaluators that the Meteor consortium was financially very weak and so that the evaluation report would not be so obviously disadvantageous to Meteor.

The full version of Ms Justice Macken's 247-page judgment, delivered on Monday, was made available yesterday.

In upholding Orange's challenge, she found the decision of the regulator, Ms Doyle, to award the third mobile licence to Meteor was objectively biased and unreasonable and that her failure to give Orange adequate reasons for her decision to refuse the licence to Orange was wrong in law.

The judge did not agree with all of Orange's claims of unreasonableness or bias but said that in those areas where she did find bias and/or unreasonableness, the combined basis, as well as the basis of bias alone, meant the decision of the regulator could not be sustained.

The judge noted evaluation of the bids for the third mobile phone licence was carried out by a Danish company called Anderson Management International. The timetable for evaluation was overseen by a steering group comprising members of the regulator's staff in Dublin and Anderson representatives.

At the same time as the quantitative evaluation was undertaken by Anderson in Denmark, all the documents from bidders were read by relevant members of 12 working groups established by the steering group to cover the wide range of different aspects of the bids.

The groups met over three days in mid-May 1998 to decide the awards or scores to be given to each of the individual segments of the bids of Orange and Meteor and also ascribe "weightings" to the 67 indicators against which the bids were evaluated.

Ms Justice Macken noted there were no notes or minutes available of the deliberations or of the decisions of the working groups. Further analyses were undertaken by Anderson but there was no record of these.

During this time, early drafts of what became the evaluation report were prepared. These were furnished by the drafters, who were members of the Anderson team (or its assistants, consultants etc) and were then considered, amended, reviewed and debated by and between the regulator's staff and the Anderson representatives.

The final draft of the evaluation report was approved by the steering group on June 11th, 1998.

Ms Doyle later agreed with the steering group's recommendation and, in September 1998, she informed Orange she proposed to grant a licence to Meteor.

After detailed analysis of the conduct of the evaluation process, Ms Justice Macken found there was objective bias against Orange in relation to several matters, including binding commitments on tariffs, low tariffs, terms of subscriptions, guarantees from backers and strength of consortium matters.

The awards given by the evaluators in those categories and others, were unreasonable because they were reached by means of bias, she found.

She said it would not be correct to ignore the overall combined effect of all of the unreasonable or biased decisions. The judge also referred to a strategic alliance or agreement involving An Post, which formed a cornerstone of Meteor's proposals for an overall distribution scheme. Orange had contended these proposals deserved to be significantly probed but this did not happen.

The distribution plans of both licence applicants was evaluated by the evaluators and Meteor secured a B and Orange a C.

Ms Justice Macken said it was clear both from the evaluation report and from evidence that there was no commercial arrangement in existence between An Post and Meteor or no form of concluded agreement.

The judge said the evaluators were fully entitled to be attracted to the An Post involvement, but she noted there was no probing of the value of this distribution plan and that the evaluators used the An Post alliance in support of their position in favour of Meteor.

However, she did not think this amounted to bias against Orange.