Fwd: Urgent Request for meeting with Prime Minister Narendra Modi regarding General Electric corruption- Seema Sapra, lawyer - WP Civil 1280/2012 a corruption whistle-blower petition in the Delhi High Court (Seema Sapra v General Electric Company and Others)

---------- Forwarded message ----------
From: Seema Sapra <seema.sapra@googlemail.com>
Date: Mon, Aug 18, 2014 at 10:30 AM
Subject: Urgent Request for meeting with Prime Minister Narendra Modi
regarding General Electric corruption- Seema Sapra, lawyer - WP Civil
1280/2012 a corruption whistle-blower petition in the Delhi High Court
(Seema Sapra v General Electric Company and Others)
To: Amit Shah <amitshah.bjp@gmail.com>, sanjayjain.chamber@gmail.com,
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vinod.pandey@bjp.org, TRIVENDRA SINGH RAWAT <tsrawatbjp@gmail.com>,
Rameshwar Chaurasia <rpcnokha@gmail.com>, arti_9@yahoo.co.in,
vani_tripathi@yahoo.com, dr.sudhayadav@yahoo.co.in, Sudha Malaiya
<malaiyasudha@gmail.com>, Poonam Mahajan R <pmahajanr@gmail.com>,
drtamilisai@yahoo.co.in, lois.bjp@gmail.com, Arun Jain
<bjparun.jain@gmail.com>, Arun Jain <arun.jain@bjp.org>,
bjpinparliament@yahoo.com, "V. Shanmuganathan"
<vsnathan7666@gmail.com>, PRAKASH JAVADEKAR <pjavadekar@gmail.com>,
shahnawaz@sansad.nic.in, shahnawaz.hussain@bjp.org,
nsitharaman@gmail.com, "Dr. B S Shastri" <dr.bsshastri@gmail.com>,
trivedi.sudhanshu@gmail.com, Meenakshi Lekhi <mrs.mlekhi@gmail.com>,
Captain Abhimanyu <abhimanyu.bjp@gmail.com>, mjakbar@hotmail.com,
president@bjp.org, ajaitley@sansad.nic.in, sushmaswaraj@hotmail.com
Cc: gurmeharsistani@gmail.com, secy-mci@nic.in, Seema Sapra
<seema.sapra@gmail.com>, Seema Sapra <seemasapra@hotmail.com>


To the Prime Minister, Mr Narendra Modi,

Please read about pending corruption charges against General Electric
Company and Montek Singh Ahluwalia pending in the Delhi High Court below (in WP
Civil 1280 of 2012) and at
http://seemasapra.blogspot.in/p/some-of-corruption-fraud-bribery_4275.html
and at http://seemasapra.blogspot.in/p/updated-court-documents-in-whistle.html

Please give me an appointment for a meeting with you. My life is in
danger and I am being poisoned including through chronic exposure to
neuro-toxins. The Delhi Police Commissioner has failed to provide me
any protection despite Delhi High Court orders to provide me
protection.

Reproduced below is a copy of CM 7197/ 2012 pending in WP Civil 1280
of 2012, which sets out in detail the corruption complaints and
evidence against General Electric Company in connection with the
Railway Ministry Projects and tenders for the proposed diesel and
electric locomotive factories at Marhowra and Madhepura respectively.

Also reproduced is a complaint that General Electric Company has
failed to appear before the Delhi High Court through an authorized
representative and a fraud is being committed on the Delhi High Court.

Copies of the entire court record in this writ petition are attached.


Seema Sapra



In the Hon'ble High Court of Delhi at New Delhi

Civil Writ Jurisdiction

C.M. Appl. No. 7197 of 2013

In

Writ Petition No. 1280 of 2012





IN THE MATTER OF:

Seema Sapra
…Petitioner

Versus

General Electric Co. and Others
….Respondents



AN APPLICATION UNDER SECTION 151, CIVIL PROCEDURE CODE SEEKING
INJUNCTIVE RELIEF AND DIRECTIONS FROM THE COURT TO RESTRAIN RESPONENTS
4 AND 5 FROM SUBVERTING THESE WRIT PROCEEDINGS




The Petitioner above named

Most Respectfully Showeth:





1. This is an application seeking directions to Respondent 2 (the
CVC), Respondent 4 (Railway Ministry), and to Respondent 5 (the PMO)
in connection with the affidavit dated 15 May 2013 filed in this
matter by Mr Nihar Ranjan Dash purporting to be on behalf of
Respondent 4.



The present application seeks an urgent injunction addressed to
respondents 4 and 5 (Ministry for Railways and the office of the Prime
Minister of India respectively) restraining these respondents from
acting on the Cabinet decision dated 1 May 2013 and from proceeding
further with the new RFQs published on 6 May 2013 for the Projects for
the proposed diesel locomotive factory at Marhowra and the proposed
electric locomotive factory at Madhepura until the present writ
petition is heard and decided finally. This application seeks orders
restraining respondents 4 and 5 from receiving any application/
technical bids/ under these new RFQs issued for ELF and DLF from and
on behalf of General Electric Company/ GE India Industrial Private
Limited/ GE Global Sourcing India Private Limited and/ or any of their
Associate companies.



3. The petitioner refers to and relies upon the writ petition,
the counter affidavits and rejoinder affidavits on record, several
additional affidavits on record and upon several sets of additional
documents on record.



4. The petitioner also refers to and relies upon CM 19501/ 2012
pending hearing before this Court where the following relief was
sought:



"Injunct/ restrain respondents 4 and 5 (Railway Ministry and the Union
of India through the PMO) from inviting financial bids and otherwise
proceeding further with the bid process for the two global tenders
impugned in the present writ petition, namely the 2010 tenders for the
proposed diesel locomotive factory at Marhowra [Global RFQ No. 2010/
ME (Proj)/ 4/ Marhoura/RFQ] and for the proposed electric locomotive
factory at Madhepura [RFQ No. 2010/ Elect. (Dev0 440/1(1))] until this
writ petition is heard and finally decided;"



5. In the latest affidavit dated 15 May, 2013, Mr Nihar Ranjan
Dash has informed the court that the Bidding Process initiated in 2010
for the two tenders impugned in this writ petition has been cancelled.
New Bidding Processes (tenders) for the Project for the proposed
Marhowra diesel locomotive factory (DLF) and for the Project for the
proposed Madhepura electric locomotive factory (ELF) have been
initiated. Fresh RFQs for both these Projects have been issued.



6. Attached hereto as Annexure P-1 is a copy of the new RFQ
issued for the Project for the proposed diesel locomotive factory at
Marhowra, being Global RFQ No. 2013/M/ (W)/ 964/33 dated May, 2013.



7. Attached hereto as Annexure P-2 is a copy of the new RFQ
issued for the Project for the proposed electric locomotive factory at
Madhepura being Global RFQ No. 2013/Elect (Dev)/440/7 dated 6 May,
2013.



8. It is submitted that the manner and timing of cancellation of
the tenders impugned in this petition by the Railway Ministry and the
inordinate hurry in issuing new RFQs and thereby starting new Bidding
Processes for the Marhowra and Madhepura Projects and the manner in
which this has been done without informing this Court and despite the
pendency of this writ petition is nothing but an attempt to over-reach
this court and to cover-up the grave charges of corruption, fraud,
forgery, bribery, and improper and undesirable conduct in connection
with the DLF and ELF tenders and Projects that this court is seized of
in the present writ petition. The malafide intent of respondents 4 and
5 appears to be to "save" General Electric from the lawful
consequences of its illegal acts and corrupt practices which are
before this Hon'ble Court.



9. Several issues arise as a result of the attempted subversion
of these writ proceedings by the latest actions of the Railway
Ministry, the PMO, the Planning Commission, the Finance Ministry, Mr
Montek Singh Ahluwalia, Mr P Chidambaram, and Mr Pavan Bansal as
disclosed in the affidavit of Mr Nihar Ranjan Dash dated 15 May, 2013.
These are listed below.



10. This affidavit was not served on the petitioner. The petitioner
obtained a copy only on 20 May, 2013 when she obtained a copy of the
scanned court record from the court registry.



11. This affidavit was deliberately filed late on 15 May 2013 so that
it was not before the court on the last date of hearing, i.e., on 16
May, 2013. No one appeared for the Railway Ministry on 16 May, 2013 to
inform the court that this affidavit had been filed or about these
latest developments in the matter. Neither Mr Rajiv Mehra (the ASG)
nor Mr R N Singh, the counsel appearing for the Railway Ministry
appeared for the hearing on 16 May, 2013 to inform the court of these
actions of the Government of India.



12. This writ petition was again listed before court on 22 May 2013
along with CM 6417/ 2013 filed by the petitioner. Once again there was
no appearance by Counsel for the UOI (PMO), the CVC or the Railway
Ministry despite the fact that this new application expressly seeks
relief against the CVC and the Railway Ministry and advance copies of
this application were served on all parties.



13. The affidavit dated 15 May 2013 signed by Mr Nihar Ranjan Dash
pertains to both the Madhepura Project being administered by the
Electrical Engineering directorate of the Railway Ministry and to the
Marhowra Project being administered by the Mechanical Engineering
directorate of the Railway Ministry. Yet the affidavit has been filed
by a junior officer of the Electrical Engineering directorate who has
no authority to file an affidavit deposing on the issue of the
Marhowra Project which is being managed by an entirely separate
department of the Railway Ministry. For this reason and for being
evasive and misleading (as described below), this affidavit must be
rejected.



14. The timing of these new developments and the actions of the
Railway Ministry, the PMO, the Union Cabinet, Mr P Chidambaram, Mr
Pavan Bansal, Mr Montek Singh Ahluwalia and Prime Minister Dr
Manmohan Singh as disclosed in the affidavit of Mr Nihar Ranjan Dash
dated 15 May, 2013 show that the intent of the Government is to
over-reach this court and to take steps which are timed in a clear
attempt to subvert this writ petition in order to cover up criminal
activity including corruption. The timing of these malafide actions
also shows that the Government of India is attempting to take undue
advantage of the petitioner's pending request for recusal by the Bench
of Justice Gita Mittal and Justice Deepa Sharma, of the order passed
by Justice Gita Mittal and Justice Deepa Sharma in adjourning the
petitioner's application for their recusal to 18 July 2013, and of the
month long summer vacations of the Delhi High Court in June.



15. The intent seems to be to complete the new Bidding Process for
the DLF and ELF tenders before this writ petition can be heard and
decided. It is submitted that General Electric is liable to be
blacklisted from all Railway Ministry tenders for two years or more
and this prayer has been expressly sought in this writ petition. The
Railway Ministry cannot therefore be permitted to invite General
Electric to participate in a new Bidding Process even while the
unaddressed complaints of fraud, forgery, corruption, bribery and
illegal lobbying by General Electric for an earlier Bidding Process
for the same Project are before this court in this writ petition.



16. A brief list of dates that establishes this attempt to over-reach
the court by the PMO, the Union Cabinet, the Railway Ministry, the
Planning Commission, Mr P Chidambaram, Mr Montek Singh Ahluwalia and
Mr Pavan Bansal is set out below. This list of dates spans three
different tenders for the DLF and ELF Projects. The first set of
tenders for these two Projects were in 2008-2009, the second set of
tenders for these two Projects were in 2010-2013, and the third set of
tenders for the same two Projects have been issued on 6 May 2013. The
two Railway Ministry Projects are ELF (electric locomotive factory at
Madhepura) and DLF (diesel locomotive factory at Marhoura). Both
Projects together are worth approximately 20 billion USD.



LIST OF DATES



22 Feb 2007

Issue of justification for the ELF and DLF Projects



Cabinet Committee on Economic Affairs (CCEA) approved Railway proposal
to set up ELF and DLF.



This approval and the basis for this approval have not been placed on
the court record by the Railway Ministry.



According to Railway Ministry affidavit dated 14 January 2013 in reply
to CM 19501/ 2012, there is a CCEA note justifying the need for DLF
and ELF and the need for new manufacturing capacity for diesel and
electric locomotives. This note has not been produced on record.



Mr Montek Singh Ahluwalia is a member of the CCEA.



The genesis of these Projects is a recommendation by Mr Montek Singh
Ahluwalia at the behest of General Electric.

1 Aug 2008

Issue of General Electric having access to unreleased Bid Documents in 2008



Reproduced below is an email that the petitioner received from Ms Ruby
Anand on March 9, 2010 forwarding five pdf files that were sent to her
by Ms Praveena Yagnambhat (from General Electric) on August 1, 2008.
Ms Ruby Anand has in the past served as General Counsel for General
Electric in Indiafor about 10 years. The documents attached to this
email were the following:

i. 11th July
2008 D Loco Land Lease Agreement

ii. 11th July
2008 D Loco Maintenance Contract

iii. 11th July 2008
D Loco Procurement Contract

iv. 11th July 2008
D Loco RFP Document

v. 11th July 2008
D Loco Shareholders Agreement





The email from Ms Ruby Anand read:



"From: Ruby Anand <rubysdesk@gmail.com>

Date: Tue, Mar 9, 2010 at 8:35 PM

Subject: See the 5th doc for now - the Loco RFP -issued earlier

To: Seema Sapra <seema.sapra@googlemail.com>







---------- Forwarded message ----------

From: Yagnambhat, Praveena (GE Infra, Transportation)
<praveena.yagnambhat@ge.com>

Date: Fri, Aug 1, 2008 at 4:10 PM

Subject: Loco RFP

To: Ruby Anand <rubysdesk@gmail.com>



Dear Ruby



Attached please find a soft copy of the Loco RFP. Please let me know
if you are unable to open any of the files.



Regards

Praveena Yagnambhat

GE Infrastructure - India

Phone : +91 11 4155 5317

Fax : +91 11 2335 5969



--

Ruby



Ruby Anand

C-4/7 Safdarjung Development Area

New Delhi- 110016

India



Mobile - +91-9811082215"





A printout of the pdf file - 11th July 2008 D Loco RFP Document –
which the petitioner received from Ms Ruby Anand on March 9, 2010 has
been attached as Annexure P-2 to the rejoinder affidavit filed by the
petitioner on July 23, 2012. This document is the Railway Ministry
draft RFP for the 2008-2009 tender for the diesel locomotive factory
Project at Marhowra. Similarly, the other four documents attached to
Ms Ruby Anand's email dated March 9, 2010 are all Indian Railways
draft documents for the 2008-9 tender for the Marhowra locomotive
factory Project.



The RFP for the Marhowra Project tender in 2008 was not issued by the
Railways Ministry until the 22 September 2008. So how did General
Electric have in its possession on August 1, 2008, the draft documents
for the 2008-2009 Marhowra Project tender? How did General Electric
get access to these documents on or before August 1, 2008?



These internal Railway Ministry documents (still in draft form) were
obviously obtained by General Electric illegally before they were
officially finalised and released publicly. This evidence confirms the
complaints of corruption against General Electric. General Electric
needs to disclose how it came into possession of these confidential
documents. How were these documents leaked to General Electric?



The affidavit filed by the Railway Ministry in response to CM 19501/
2012 does not offer any explanation about how General Electric came to
possess a copy of the draft RFP on 1 August 2008, when this RFP was
formally released to Bidders only on 22 September 2008.



All that this affidavit dated 14 January 2013 filed by the Railway
Ministry in response to CM 19501/ 2012 (in volume 13 of the court
record) states on this issue is the following:

"It is pertinent to note that any RFP document is one which is
discussed, deliberated and finalized after discussion with several
stakeholders and consultants."



No explanation has been provided by the Railway Ministry as to how
General Electric had in its possession the draft Bid Documents for the
ELF tender on 1 August 2008, before these were released to the two
Bidders, EMD and General Electric.



The statement in the Railway affidavit that "It is pertinent to note
that any RFP document is one which is discussed, deliberated and
finalized after discussion with several stakeholders and consultants"
is an attempt to cover up the fact that General Electric had in its
possession, the draft Bid Documents before they were officially/
formally released/ shared with either General Electric or EMD.



This provides evidence that the DLF Project have been created/
tailor-made at the behest of and for General Electric. General
Electric has since 2008 influenced the bid documents to ensure that a
commercially lucrative contract and opportunity is created for itself
using their contacts/ agents within the Indian government (like Mr
Montek Singh Ahluwalia).



The role of Prime Minister Manmohan Singh, the role of his close aide
Mr Montek Singh Ahluwalia and the role of other officials from the PMO
and the Planning Commission in creating these suspect Projects for
General Electric and in interfering in the bid process and the bid
documents with intent to help General Electric secure the DLF Project
requires to be investigated.

22 Sep 2008

RFP for DLF issued to General Electric and to EMD.

5 Feb 2009

Framework and documents including PCMA approved by the Cabinet for the
Projects for ELF and DLF



Cabinet appointed Empowered Committee of Secretaries to approve
changes in the PCMA.



This Empowered Committee of Secretaries comprised Chairman Railway
Board, Secretary Economic Affairs, Secretary Planning Commission,
Secretary Law, Financial Commissioner Railways, Member Electrical
Railway Board, and Member Mechanical Railway Board.



This approval was issued in a hurry with intent to award these
contracts before the 2009 general elections.

10 Feb 2009

Issue of tailor-made DLF Project and tenders and issue of illegal
lobbying by General Electric



The petitioner draws the attention of this court to a public statement
made by Mr. John Rice, Vice Chairman of General Electric Company in
connection with the Madhepura and Marhowra Projects during an investor
meeting on February 10, 2009. Mr John Rice stated:



"We are also competing for the India rail tender, which will be
announced over the next two or three weeks. This is a project that has
been 10 years in the making, and will be all of the diesel electric
locomotive requirements for India over the next 10 years. So it's a
very big tender, significant when you add services. It is about $6
billion and a great opportunity for us."



In this statement, Mr John Rice has disclosed that the Marhowra
Projects which is the subject matter of one of the impugned tenders in
this writ petition "has been 10 years in the making, and will be all
of the diesel electric locomotive requirements for India over the next
10 years." This recorded statement of Mr John Rice (Vice Chairman at
General Electric Company) is an admission that General Electric has
lobbied for "the making" of this DLF Project for ten years and that
the Project, the impugned tender for this Project, the earlier 2008
tender for the same Project, as well as the new 6 May 2013 tender/ RFQ
for the same Project, have been tailor-made for General Electric to
hand over to it on a platter the "great" business opportunity that is
present in "all of the diesel electric locomotive requirements for
India over the next 10 years."

16 February 2009

Financial bid for DLF tender received from GE Global Sourcing India
Private Limited. EMD, also shortlisted did not bid.



General Electric's bid was found to be non-responsive and the tender
was discharged.

23 Feb 2009

Cabinet approved Railway Ministry proposal to set up DLF and ELF
Projects as Departmental Production Units of Indian Railways.

23 Feb 2009

Business Standard news report dated February 23, 2009 titled "Railways
may scrap diesel loco bid -Railway Board to decide on the matter"
published.

This report contained the following statements:

"Also, according to sources in the railways, there also appears to be
some technical mistake in the GE bid.

When this was pointed out, however, the company said it was a
mathematical error and has agreed, in writing, to accept that the
price of its locomotives be lowered by the extent of the error — for
all the locos. This adds up to around Rs 300 crore over the life of
the project."

23 Feb 2009

Issue of internal General Electric emails showing that it was lobbying
Mr Montek Singh Ahluwalia for the DLF Project



There exist internal General Electric emails from 23 Feb 2009 that Mr
Jeffrey Eglash (from General Electric) showed the Petitioner on
November 30, 2011 during a meeting at the business centre of the
Shangrila hotel in New Delhi. These internal General Electric emails
forwarded the 23 February 2009 news report reproduced in the row
above, as an attachment to Mr John Rice (Vice Chairman of General
Electric Company) and to Mr Karan Bhatia (Legal Counsel at General
Electric Company for International Law and Policy) with a message
containing language that approximated "should we let this die". This
internal General Electric email trail also contained language that
approximated "should someone talk to Montek or Ronen Sen'. There is
therefore an internal GE email trail (seen and read by the petitioner)
on the subject of this Business Standard news article dated February
23, 2009 reporting that there was a mistake in General Electric's
financial bid dated 16 February, 2009 and that the Railway Ministry
was planning to scrap the Project. [General Electric would have been
informed prior to 23 February, 2009 in writing by the Railway Ministry
that its bid had been found non-responsive and that the tender was
being discharged.]

Yet on 23 February, 2009, internal General Electric emails sent to the
Vice Chairman (Mr John Rice) suggested that the news report be allowed
to die or that someone from General Electric speak to Montek Singh
Ahluwalia or Ronen Sen. General Electric cannot deny these emails seen
and read by the petitioner. GE has not issued a denial that an
internal GE email sent to John Rice and Karan Bhatia mentioned Montek
and Ronen Sen by name and that email was on the subject of the
Business Standard Report dated February 23, 2009 and suggested what
should be done by GE in response to this report.



The fact that internal GE emails dated February 23, 2012 that were
also addressed to John Rice and Karan Bhatia referred to Montek Singh
Ahluwalia and Ronen Sen by name and mentioned the possibility of
someone at General Electric speaking to these two persons in
connection with the Business Standard news report dated February 23,
2009, and the 2009 tender for the Marhowra diesel locomotive factory
Project establishes that General Electric was engaged/ involved in
corrupt dealings/ contact/ lobbying with high-level functionaries
within the Indian government (like Montek Singh Ahluwalia and Ronen
Sen) around its 2009 bid for the Marhowra DLF Project. Internal GE
emails from February 2009 sent to GE officers (like John Rice) record
these corrupt dealings and lobbying. The internal GE emails dated 23
February 2009 that Jeffrey Eglash inadvertently showed the petitioner
on November 30, 2011 are prima facie evidence of corruption by General
Electric Company and also raise questions about General Electric's
access to, dealings with, and influence on high-level government
officials like Mr Montek Singh Ahluwalia.

5 May 2009

Issue of Mr Montek Singh Ahluwalia lobbying for the DLF Project on
behalf of General Electric



In a meeting between Planning Commission and Railway Ministry, Mr
Montek Singh Ahluwalia lobbied (on behalf of General Electric) for
once again exploring JV route with private parties for ELF and DLF.

18 May 2009

Issue of Mr Montek Singh Ahluwalia lobbying for the DLF Project on
behalf of General Electric



Because of the pressure from Mr Montek Singh Ahluwalia, Railway
Ministry approached Cabinet to revert to JV framework for setting up
ELF and DLF.



Cabinet approval granted to set up ELF and DLF in JVs with private parties.

18 May 2009

Issue of Clause permitting Bidder to use Consultants who have advised
the tendering authority



Ministry of Finance issued Office Memorandum releasing a revised model
RFQ for pre-qualification of Bidders for PPP Projects



Clause 2.2.1 (d) of the model RFQ was amended to allow consultants to
the Bidding authority to work for Bidders in relation to the same
Project if their engagement by the Bidder ended six months prior to
the date of issue of the RFQ.



The petitioner submits that this modification is arbitrary,
unreasonable, counter-productive, and promotes corruption and conflict
of interest and clauses of such nature must be struck down by the
Court in all RFQs including in the new ELF and DLF RFQs issued by the
Railway Ministry on 6 May 2013.

11 Aug 2009

Issue of Mr Vinod Sharma



"General Electric" (respondents 1, 6 and 7 or "GE') has engaged in a
corrupt practice by using/ engaging the services of Mr. Vinod Sharma
for GE's bid for the 2010 diesel and electric locomotive tenders.



Mr Vinod Sharma is a retired Indian Railways official who after
retirement worked with PricewaterhouseCoopers and while at
PricewaterhouseCoopers advised the Railway Ministry in 2007, 2008 and
2009 on the PPP Project for the proposed diesel locomotive factory at
Marhowra.



Mr. Vinod Sharma has in the past advised the tendering Authority in
respect of the same Project. The 2010 tender is for the same Project
that Mr. Vinod Sharma advised the Ministry of Railways for in
2008-2009. The bid strategy and the bid documents for the 2010 tenders
are based upon the advice provided by PricewaterhouseCoopers (and by
Mr. Vinod Sharma) to the Railways Ministry. By knowingly engaging Mr.
Vinod Sharma as a consultant for the 2010 tenders (as GE has admitted
in its counter affidavit) GE violated Clause 2.2.1 (d), Clause 4.1.3
a) and Clause 4.1.3 d) of the 2010 RFQ for the proposed diesel
locomotive factory and engaged in corrupt practices as defined in the
RFQ and is liable to be disqualified under Clause 4.1.1 and
blacklisted under Clause 4.1.2.



The 2010 RFQ for the proposed diesel locomotive factory that
respondent 7 had been shortlisted for along with respondent 16 (EMD)
[Global RFQ No. 2010/ ME (Proj)/ 4/ Marhoura/RFQ] is for the very same
Project.



Mr. Vinod Sharma had extensive contact both with GE executives and
with Indian Railways officials during the time he was working for and
lobbying for GE. Mr. Vinod Sharma had helped formulate the bid
strategy and helped draft the bid documents for the diesel locomotive
factory tender for the same Project in 2007/ 2008. The engagement of
Mr. Vinod Sharma by GE therefore violated Clause 4.1.3 a) (ii) of the
2010 Marhowra RFQ and amounts to a corrupt practice as defined in this
Clause. The engagement of Mr. Vinod Sharma by GE also violated
Clause 4.1.3 d) of the 2010 Marhowra RFQ and amounts to an undesirable
practice as defined in this clause. GE executives interacted with Mr.
Vinod Sharma and used his services with the object of canvassing,
lobbying and influencing the bidding process. Mr. Vinod Sharma was
connected to Indian Railways as he had been engaged (as part of the
PwC team) as consultant to the Indian Railways for the same project.
GE's dealings with Mr. Vinod Sharma created a Conflict of Interest as
defined in Clause 4.1.3 d) of the 2010 Marhowra RFQ.



Mr Vinod Sharma facilitated and participated in corrupt contact and
prohibited lobbying of Railway Ministry officials by GE executives.
GE's dealings with Mr. Vinod Sharma amount to corrupt and undesirable
practices as defined in Clauses 4.1.3 a) and 4.1.3 d) of the 2010
Marhowra RFQ. This conduct makes GE liable to be disqualified and
blacklisted under Clauses 4.1.1 and 4.1.2 of the RFQ. This is a very
serious violation of the tender conditions by GE. The Railway Ministry
is legally obligated to disqualify and blacklist GE for this conduct.
The 2010 Marhowra RFQ, the law, and the guidelines of the Government
of India do not give the Railway Ministry the discretion to overlook
this serious violation of the RFQ.



The petitioner relies upon Clause 4.1.3 (a) of the 2010 Marhowra RFQ
which reads:

""corrupt practice" means (i) the offering, giving, receiving, or
soliciting, directly or indirectly, of anything of value to influence
the actions of any person connected with the Bidding Process (for
avoidance of doubt, offering of employment to or employing or engaging
in any manner whatsoever, directly or indirectly, any official of the
Authority who is or has been associated in any manner, directly or
indirectly with the Bidding Process or the LoA or has dealt with
matters concerning the Agreement or arising therefrom, before or after
the execution thereof, at any time prior to the expiry of one year
from the date such official resigns or retires from or otherwise
ceases to be in the service of the Authority, shall be deemed to
constitute influencing the actions of a person connected with the
Bidding Process) or (ii) engaging in any manner whatsoever, whether
during the Bidding Process or after the issue of the LOA or after the
execution of the Agreement, as the case may be, till commissioning of
the factory as per provisions to be specified in the RFP, any person
in respect of any matter relating to the Project or the LOA or the
Agreement, who at any time has been or is a legal, financial or
technical adviser of the Authority in relation to any matter
concerning the Project".



Clause 4.0 of the 2010 Marhowra RFQ deals with "Fraud and Corrupt
Practices" and Clause 4.1.1 states:

"The Applicants and their respective officers, employees, agents and
advisers shall observe the highest standard of ethics during the
Bidding Process. Notwithstanding anything to the contrary contained
herein, the Authority shall reject an Application without being liable
in any manner whatsoever to the Applicant if it determines that the
Applicant has, directly or indirectly or through an agent, engaged in
corrupt practice, fraudulent practice, coercive practice, undesirable
practice or restrictive practice in the Bidding Process."



Clause 4.1.2 of the 2010 Marhowra RFQ provides:

"Without prejudice to the rights of the Authority under Clause 4.1.1
hereinabove, if an Applicant is found by the Authority to have
directly or indirectly or through an agent, engaged or indulged in any
corrupt practice, fraudulent practice, coercive practice, undesirable
practice or restrictive practice during the Bidding Process, such
Applicant shall not be eligible to participate in any tender or RFQ
issued by the Authority during a period of 2 (two) years from the date
such Applicant is found by the Authority to have directly or
indirectly or through an agent, engaged or indulged in any corrupt
practice, fraudulent practice, coercive practice, undesirable practice
or restrictive practice, as the case may be."



Clause 4.1.3 d) of the 2010 Marhowra RFQ defines "undesirable
practice'. It reads:

"undesirable practice" means (i) establishing contact with any person
connected with or employed or engaged by the Authority with the
objective of canvassing, lobbying or in any manner influencing or
attempting to influence the Bidding Process; or (ii) having a Conflict
of Interest".



It is submitted that that Clause 4.1.3 a) of the 2010 diesel
locomotive factory RFQ defines "corrupt practice" as including
"engaging in any manner whatsoever, whether during the Bidding Process
or after the issue of the LOA or after the execution of the Agreement,
as the case may be, any person in respect of any matter relating to
the Project or the LOA or the Agreement, who at any time has been or
is a legal, financial or technical adviser of the Authority in
relation to any matter concerning the Project".



The key word in Clause 4.1.3 a) for the present purpose is the word
"Project'. The Glossary provided at the beginning of the 2010 Marhowra
RFQ has an entry for "Project" which reads: "As defined in Clause
1.2.1". "The term "Project" is defined by this RFQ in Clause 1.2.1 as
follows:



"The Project for which the Applications are being invited pursuant to
this RFQ Document shall comprise of the following:

i. setting up a new Mainline Diesel Electric Locomotives factory at
Marhowra, Bihar (hereafter referred as the "Site"); and

ii. supplying Mainline Diesel Electric Locomotives to the Authority; and

iii. providing maintenance support for the Mainline Diesel Electric
Locomotives procured by the Authority from the new factory."



The bar imposed by Clause 4.1.3 a) is therefore against a bidder
engaging any person 'who at any time has been or is a legal, financial
or technical adviser of the Authority in relation to any matter
concerning the Project". The key word here is "Project" and not
"tender".



Clause 2.2.1 (d) of the 2010 Marhowra RFQ reads as follows:

"An Applicant shall be liable for disqualification if any legal,
financial or technical adviser of the Authority in relation to the
Project is engaged by the Applicant during the Bidding Process or
after the issue of the LOA or after the execution of the Agreement, as
the case may be, till commissioning of the factory as per provisions
to be specified in the RFP, in any manner for matters related to or
incidental to the Project."



The engagement of Mr. Vinod Sharma as consultant by GE violated Clause
2.2.1 (d) of the 2010 RFQ for the proposed diesel locomotive factory.
Mr. Vinod Sharma, a retired Railways official has advised the
Authority/ Planning Commission on this Project. In 2010, he was
actively advising and assisting GE regarding the tender for the same
Project (diesel locomotive factory) and also for the tender for the
electric locomotive factory. Vinod Sharma was a frequent visitor to
GE's AIFACS office. He was in frequent contact with GE employees
working on this tender, including Pratyush Kumar and Ashfaq Nainar.
He attended several meetings at GE's office. Internal GE emails
provide documentary evidence of such meetings. He lobbied and
canvassed with Indian Railways officials on behalf of GE. Mr. Vinod
Sharma vetted the RFQ applications submitted by GE (through respondent
7) on 12 July 2010 and on 17 May 2012 for the diesel locomotive
factory and the electric locomotive factory tenders. Clause 4.1.3 (a)
(ii) of the Diesel RFQ defines a "corrupt practice" as including the
engagement "in any manner whatsoever, whether during the bidding
process or after the issue of the LOA or after the execution of the
Agreement, as the case may be, any person in respect of any matter
relating to the Project, or the LOA or the Agreement, who at any time
has been or is a legal, financial or technical adviser of the
Authority in relation to any matter concerning the Project". Mr. Vinod
Sharma's engagement by General Electric falls foul of Clause 4.1.3 (a)
(ii) and would render GE's application liable for rejection under
Clause 4.1.1 of the RFQ. It would also render GE liable for
blacklisting in accordance with Clause 4.1.2 of the RFQ.



In a concerted and planned malafide attempt to mislead the court, the
Railway Board (Respondent 4) in its counter affidavit (filed by a
low-ranking officer who would not in the discharge of his duties be
aware of the facts of this case) states that the Railway Board has
"never engaged Shri Vinod Sharma for any work in connection with the
said tenders". I point out that the language used by Respondent 4 is
carefully worded to avoid commenting on whether Vinod Sharma was an
advisor to the Project (i.e., the proposed factory for diesel
locomotive tenders at Marhowra). The Railway Ministry knows that it
engaged PricewaterhouseCoopers as consultant for the Project and that
Mr Vinod Sharma was part of the PricewaterhouseCoopers team for this
engagement and was therefore an advisor for the Project. The Railway
Ministry knows that Mr Vinod Sharma's engagement by GE for the same
Project was therefore a corrupt practice. Yet the Railways Ministry in
its counter affidavit fails to disclose these facts. Respondent 4 is
covering up the corrupt practice that GE engaged in by using evasive
and misleading language in its reply on this issue in its
counter-affidavit. The Railways Ministry has not being forthcoming
with the facts. It has attempted to suppress these facts by omitting
material facts when stating that 'Vinod Sharma was never engaged by
the Railways Ministry' and by using the word "tenders" instead of the
word "Project". This statement in the affidavit filed by Mr Nihar
Ranjan Dash purportedly on behalf of respondent 4 constitutes a lie by
omission and deliberate concealment of relevant facts. The Railways
Ministry has failed to state that though it never engaged Mr Vinod
Sharma directly, it is aware that Mr Vinod Sharma was part of the
PricewaterhouseCooper team that rendered advice under the engagement
of PricewaterhouseCoopers by the Ministry as a consultant for the same
Project. The relevant point is not whether the Railway Ministry
'engaged" Mr Vinod Sharma for the "tenders". Rather the relevant
question is did Mr Vinod Sharma at any time act as an "adviser of the
Authority in relation to any matter concerning the Project". The
Railway Ministry has not denied that Mr Vinod Sharma was in 2007, 2008
and 2009, an "adviser of the Authority" as a result of the engagement
of PricewaterhouseCoopers as consultant to the "Project" for the
proposed diesel locomotive factory at Marhowra which Project is the
subject matter of the impugned RFQ [Global RFQ No. 2010/ ME (Proj)/ 4/
Marhoura/RFQ].



General Electric has admitted that it entered into a written contract
with Mr Vinod Sharma, through his "company" "Essvee Consultants"
effective from 11 Aug 2009.



The petitioner has pointed out that there exists no company registered
with the Ministry of Corporate Affairs with the name "Essvee
Consultants".

18 Feb 2010

Issue of Mr Montek Singh Ahluwalia lobbying for the DLF Project on
behalf of General Electric



Cabinet approved launch of Bidding Processes for the ELF and the DLF
as JVs with private partners.

2 March 2010

Global RFQ No. 2010/Elect./(Dev.)/440//1(1) issued for ELF

March 2010

Global RFQ No. 2010/ME/ Proj/4/Marhoura/RFQ issued for DLF

1 May 2010

Issue of illegal lobbying by General Electric



General Electric was lobbying to introduce"2X6000HP Permanently
Coupled Co-Co units at 23 Tons / Axle' into the bid specifications for
the 2010 diesel locomotive tender or into the RFP for this tender. The
petitioner was present at a meeting and discussion between Mr
Pratyush Kumar and Mr Ashfaq Nainar (both from General Electric) with
Mr Shubhranshu from the Railways Ministry that took place in Mr
Shubhranshu's office on May 1, 2010 (a Saturday) concerning these kind
of locomotives. This was obviously not an official Railway Ministry
meeting. The petitioner recalls Mr Ashfaq Nainar mentioning tonnes per
axle and lobbying for some changes to the bid documents (to either the
RFQ or the RFP) during this meeting.

12 May 2010

Final version of ELF RFQ issued.

17 May 2010

Technical Bids submitted for ELF 2010 tender (Bidding Process) under
Global RFQ No. 2010/Elect./(Dev.)/440//1(1).



Issue of Shell Company

General Electric Company used an Indian subsidiary (GE Global Sourcing
India Private Limited) as the bidding entity. GE Global Sourcing India
Private Limited is a shell company and at the relevant time, this
shell company had not engaged in any prior business activities. This
shell company was selected as the bidding entity by General Electric
Company to avoid having to make mandatory disclosures required under
the RFQ read with the Government of India, Department of Disinvestment
'Guidelines for qualification of Bidders seeking to acquire stakes in
Public Sector Enterprises through the process of disinvestment' issued
vide Office Memorandum No. 6/4/2001DDII dated July 13, 2001.

20 May 2010

Issue of General Electric email to Gmail account of Railway official
three days after technical bids submitted for ELF



Mr. Ramesh Mathur from GE Transportation (India) sent an email from
his General Electric email account (ramesh.mathur@ge.com) to Mr. Ved
Mani Tiwari's gmail account (vmt20769@gmail.com) on May 20, 2011 (at
10:46 am) providing additional documentation and information for
General Electric's technical bid for the Electric Locomotive Tender
three days after the technical bids were submitted and opened in the
presence of all Bidders on May 17, 2010. Mr. Ved Mani Tiwari is an
Indian Railways officer and his present designation is DEE (Dev.) in
the Electrical division of the Railway Board.

18 May 2010

and

22 May 2010

Issue of General Electric's ineligibility for ELF as it does not
manufacture electric locomotives, yet ELF Bid Documents tailored to
render General Electric eligible.



Petitioner has placed on record two McKinsey documents titled
"18052010 Assessing Loco Opportunity v4.ppt" dated May 18, 2010 and
"20100522_Working session_V04.ppt" dated May 22, 2010. These
documents are of interest because they also establish that General
Electric does not manufacture electric locomotives and does not
possess the technology to manufacture electric locomotives.



Slide 3 of the document dated May 22, 2010 titled "20100522_Working
session_V04.ppt" lists 'Key engineering issues identified during
initial round of discussions' between GE and McKinsey. These were
listed as:

"Can we hire 100 engineers, including 20-30 domain experts, in 3
months time (plus 4 months before LoA for preparations, e.g., CV
short-listing)?

Is BHEL's limited expertise in Liquid cooled IGBT sufficient?

What risk will be posed by the lack of expertise in reliability,
vehicle dynamics, system engineering and high voltage circuitry

What risk will be posed by the lack of expertise in E-loco bogey

Can the factory be commissioned in 18-21 months?

What will be the loading cost of higher failure rate (2.04 per fly Vs 1.5)?"



These documents establish that General Electric does not manufacture
electric locomotives and does not possess the technology, expertise
and experience for this purpose.

31 May 2010

Issue of expedited short-listing of Bideders by Railway Ministry for
ELF Project in 2010



Railway Ministry shortlisted all four applicants for the 2nd (RFP)
stage of the Bidding Process for the 2010 ELF tender.



The shortlisted bidders were Siemens AG, Alstom Projects India
Limited, Bombardier Transportation India Limited, and GE Global
Sourcing India Private Limited



Respondent 4 in its counter affidavit states that official
communications were issued to all bidders on May 31, 2010 and that the
prequalification was completed on May 31, 2010. The Railway Ministry
needs to explain how it completed scrutiny and prequalification of
four voluminous bids for a Project worth almost 10 billion USD in just
9 working days.

June 2010

Issue of illegal lobbying by General Electric



Towards the end of May 2010 and the first two weeks of June 2010,
General Electric engaged a team of McKinsey consultants who were
working out of General Electric's office in New Delhi. McKinsey was
ostensibly engaged to evaluate the ELF opportunity for General
Electric. These McKinsey consultants and General Electric executives
had several extensive meetings with Railway Ministry officials during
this time. General Electric used these consultants to lobby for
changes to the bidding documents for the Diesel and Electric
Locomotive Tenders of the Indian Railways. Such contact between a
Bidder and its agents with Railway Ministry officials and such
lobbying was expressly prohibited under the Diesel and Electric
Locomotive tender documents and amounted to a corrupt practice.
General Electric executives from GE Transportation in Erie, United
States including Mr. Lorenzo Simonelli and Ms. Tara Plimpton as well
as Mr. John Flannery, Respondent No. 9 were aware of these meetings
between the McKinsey consultants, General Electric executives and
Indian Railways officials. They were regularly briefed on conference
calls by General Electric executives and by the McKinsey team about
this lobbying. The Petitioner specifically learnt about the meetings
between the McKinsey Consultants, General Electric executives and
Railway officials when she was asked to prepare a non-disclosure
agreement to be executed between McKinsey and General Electric after
the McKinsey team had already completed their assignment.

The petitioner recalls members of the McKinsey team accompanying
General Electric executives including Mr. Pratyush Kumar, Mr Ashfaq
Nainar and Mr. Ramesh Mathur to the office of the Railway Ministry for
meetings on several occasions.

The petitioner has first hand knowledge of these meetings having taken place.

7 June 2010

Issue of internal General Electric emails/ documents evidencing
corruption and illegal lobbying



Reproduced below is an internal GE email sent by Mr. Pratyush Kumar to
Mr. Lorenzo Simonelli, Mr. David Tucker, Mr. Brett Begole, Mr. Monish
Patolawala, Mr. Joel Berdine, Mr. Russell Stokes, Ms. Tara Plimpton,
Mr. Cyrille Petit, Mr John Flannery, Ms Tammy Gromacki, Mr Eric
Ducharme, Mr. Karan Bhatia, and Mr. Rich Herold (all from GE) on June
7, 2010. This email was copied to Mr Ashfaq Nainar, Ms Alpna Khera, Mr
James Gerson, Mr Steve Seip, Mr Atulya Dubere, Mr Ramesh Mathur, Mr
Gaurav Negi, Mr James Winget, Mr Kevin Randall, Mr Puneet Mahajan, Mr
Ashish Malhotra, Mr Vageesh Patil (all from GE) and to the petitioner.
This internal General Electric email dated June 7, 2010 sent by Mr
Pratyush Kumar has been filed with the petitioner's affidavit dated
July 9, 2012.



The subject of the email was "India Update: D-Loco". The email was
flagged "High Importance." This email stated as follows:



"Current estimate of timelines for D-Loco

· RFQ due: Jul 12

· Shortlist: Jul 30 – Aug 9

· RFP Release: Aug 16-31

· Price bid: Oct 31 – Nov 15

· LOA: Dec 15-31

· Appointed Date: Mar 31, '11 … Clock for deliverables starts then

RFQ Process [Prat/Ash, Jul 12]

· Pre-Bid held on May 26 … EMD, GE and Phooltas Harsco (a
local company from Bihar with no Loco background) attended

· 220 acres of land in possession with 40 pillars for boundary
laid out … $4.56MM paid to farmers

· [As we had anticipated] asked to harmonize with Electric RFQ
… final amendments are not yet out … we have the draft

· So far, keeping Jul 12th submission date

Letter to IR on D-Loco [Prat/Brett/Tara, Jun 15]

Closed item – no 6000HP at 23T/axle

BHEL partnership [Prat/Ash/Brett/Cyrille/, multiple deadlines]

Structure discussed with BHEL [Prat/Brett/Lorenzo]

· Circle back to them with revised Structure 2 [Prat/Brett, Jun11]

· Set target price for components supplied from BHEL to GE
[Jim Gerson/ Ramesh Mathur, Jun 20]

· Develop back-to-back terms [Seema Sapra/ Kevin Randall/
Cyrille Petit, Jun 20]

· Discussion with BHEL with Lorenzo and Dave [June 22]

· BHEL Board meeting [Last week of June]

· Negotiations [Prat/Cyrille, Jul-Aug]

RFQ Prep [Ashish Malhotra, India)/Steve Seip, Erie), Jul5]

· Resolve how to handle CFO certification on networth [Prat/
Monish/ Puneet]

· Customer certificates …selected few [Steve Seip]

· Responsiveness requirement [Seema Sapra]

[We will bring BHEL into consortium only after the propulsion %
control JV terms are nailed down. But we need to work on consortium
agreements now]

· Joint Bidding agreement with BHEL [Seema Sapra/ James
Winget/ Kevin Randall]

· BHEL RFQ certificates [Seema Sapra / James Winget/ Ashish Malhotra]

Bharat Forge [Atulya, Sep 15]

· Identify items they want to quote [Atulya/Ramesh, Jun 15]

· Get firm quotes with back to back terms [Atulya/ Amol/ Ramesh, Sep 15]

· Supply agreements with back to back terms [Atulya/ Amol/
Ramesh/ Seema/ Jamie, Oct 1]

Refreshing model / bid [Jim Gerson/ Gaurav Negi/ Monish, Oct 1]

· EPC quotes for factories and township [Atulya/ Ramesh/ Joel, Jul 15]

· EHS/ site assessment etc [Atulya/ Ramesh/ Joel, Aug 15]

· Bengal site assessment for GE or BHEL-GE JV factory [Atulya/
Ramesh/ Joel, Aug 1]

· Cost validation [Jim Gerson, Aug 15]

· Discussions with township management vendors [Atulya/
Ramesh/ Joel, Aug 15]

· Scrub Service model [Alpna/ Gina, sep 15]

· Run Tollgates [Ashish/ Jim/, various by Oct 15]

Ensure E-Loco concessions get incorporated in D-Loco bid [Prat/ Ash, Sep 15]

Timeline risks

· EMD asking for more time pending deal closure with Cat

Railway Minister changing"



Two items from this email that establishes corrupt dealings between
General Electric executives and Railway and Planning Commission
officers need to be highlighted.

The first is

"[As we had anticipated] asked to harmonize with Electric RFQ … final
amendments are not yet out … we have the draft"

The second is

"Ensure E-Loco concessions get incorporated in D-Loco bid [Prat/ Ash, Sep 15]"



General Electric here is talking in internal company emails on 7 June
2010 of concessions obtained from the Railway Ministry in the ELF
PCMA, even before the draft RFP for ELF 2010 tender was issued to
shortlisted bidders on 11 June 2010.



The email talks about getting these ELF concessions incorporated in
the DLF Project documents.



This email also talks about the internal decision/ discussions of the
Railway Ministry to harmonise the DLF RFQ with the ELF RFQ.

8 June 2010

Issue of illegal lobbying by General Electric



Towards the end of the McKinsey assignment, Mr. Pratyush Kumar (from
General Electric) asked the petitioner on June 8, 2010 to prepare a
timeline for events/ tasks to be completed in the Electric locomotive
factory RFP. He told her to use the 2008 RFP. The timeline showed
certain inconsistencies/ unachievable deadlines. For example the
factory would not have been ready in time to meet the first delivery
deadlines. Mr. Pratyush Kumar wanted this timeline urgently for
meetings with Railway Ministry officials. Soon after these meetings
between General Electric, Railway Ministry officials and McKinsey
consultants, the Railway Ministry issued the RFPs for the Dankuni
Project and the ELF Madhepura project.



The petitioner has personal and first-hand knowledge of these meetings
between General Electric executives, McKinsey executives working on
an assignment for General Electric ostensibly to assess the ELF
opportunity, and Railway Ministry officials.

Mid June 2010

Issue of illegal lobbying by General Electric and corrupt and
prohibited contact with Railway Ministry officials



In June 2010, the petitioner was present in the GE AIFACS office on a
mid-week holiday working on the Dankuni tender RFP comments. The
McKinsey team was also present working on their assignment. Mr.
Pratyush Kumar arrived at the General Electric office around the
evening (sometime after around 4 pm) that day. Mr. Ved Mani Tiwari (a
Railway Ministry official) came to the General Electric office to meet
Pratyush Kumar and the McKinsey team. Mr Anupam Agarwal (the McKinsey
engagement manager), Mr Pratyush Kumar and Mr Ved Mani Tiwari all had
a meeting n Mr Pratyush Kumar's office cabin. The petitioner is a
witness to the fact of this meeting having taken place. The exact date
of this visit and meeting can be verified. It was a mid-week
government holiday sometime in the first half of June 2010. This was
not an official Railway Ministry meeting.

The petitioner has first-hand knowledge of this meeting having taken place.

She was present and saw the meeting taking place through the glass
doors of Mr Pratyush Kumar's cabin in the GE AIFACS office. In fact,
the Petitioner had been present in Mr Pratyush Kumar's office and was
asked by him to leave the office after Mr Pratyush Kumar, Mr Ved Mani
Tiwari and Mr Anupam Agarwal (McKinsey) had assembled therein for this
meeting.



General Electric has not denied and cannot deny that this meeting took
place. Mr Pratyush Kumar, Mr Ved Mani Tiwari and Mr Anupam Agarwal
were seen by the petitioner closeted together in Mr Pratyush Kumar's
cabin for this meeting. The circumstances of this meeting having taken
place on a government holiday, with Mr Ved Mani Tiwari coming to
General Electric's AIFACS office is clear evidence that this meeting
was not above board, was improper and that it took place to facilitate
corrupt and illegal lobbying and to unlawfully influence the ELF bid
documents and process to enable General Electric to unlawfully
influence the DLF bid documents and process. This meeting presents
irrefutable and unambiguous evidence of corrupt dealings/ lobbying by
General Electric in connection with the ELF and DLF tenders.



There can be no other explanation for the fact of this meeting

.

11 June 2010

RFP draft for ELF 2010 tender issued to shortlisted bidders

18 June 2010

By June 18, 2010, Mr. Jeffrey Immelt had decided that General Electric
would not bid for the Madhepura electric locomotive factory tender.

28 June 2010

Amendments made to RFQ for DLF and Global RFQ No. 2010/ME/
Proj/4/Marhoura/RFQ –Rev 1. issued for DLF

June- July 2010

Issue of illegal lobbying by General Electric and corrupt and
prohibited contact with Railway Ministry officials



Pratyush Kumar (General Electric) was lobbying Railway Ministry
officials to ensure that the diesel locomotive RFQ was harmonized with
the electric locomotive RFQ on the language for the certification
required to establish net-worth. [General Electric was apprehensive
about being able to obtain a net-worth certificate from the US auditor
of General Electric Company in the prescribed format. Eventually
though, General Electric did manage to obtain the necessary net-worth
certificate. There are several internal GE emails on this issue sent
in the last two weeks of June 2010 and first few days of July 2010. In
these emails which were also copied to the petitioner
(seema.sapra@ge.com) and which she read, Mr Pratyush Kumar has
recorded that he was speaking on the phone (from the US) daily with an
official in the Railways Ministry to get the RFQ modified so that a
net-worth certificate from General Electric's US statutory auditor
would not be necessary. These emails were sent to a number of persons
in General Electric including to Mr Lorenzo Simonelli, Mr Monish
Patolawala, Mr Puneet Mahajan, Mr James Winget, GE's financial
controller (a lady called Emily – the petitioner does not recall her
full name), Mr Gaurav Negi, Mr Ashfaq Nainar, Mr Ashish Malhotra, and
Mr Ramesh Mathur. The reason for the difficulty was that the amended
definition of net-worth in the 2010 Marhowra RFQ was different from
the definition of net-worth that General Electric's statutory auditor
used in the US. Therefore General Electric executives were worried
that their US auditors (KPMG) might not be willing or able to provide
a certificate that met the requirements of the 2010 Marhowra RFQ.
Eventually, General Electric did manage to obtain the necessary
certificate, so the complaint is not that General Electric did not
submit this document. The petitioner points out that internal GE
emails record that before General Electric managed to obtain the
certificate, Mr Pratyush Kumar's stated on internal General Electric
email that he was in daily telephonic contact from the US with some
official(s) in the Railway Ministry to try and get the RFQ language
amended to suit General Electric.] The complaint is once again of
illegal and prohibited lobbying and the use of corrupt and undesirable
practices by General Electric.



6 July 2010

Issue of internal General Electric emails/ documents evidencing
corruption and illegal lobbying



Reproduced below is another internal GE email sent by Mr. Pratyush
Kumar on July 6, 2010 to Mr. Lorenzo Simonelli, Mr. David Tucker, Mr
Karan Bhatia, Mr Ashfaq Nainar, Mr Brett BeGole, Mr Richard Herold, Mr
Monish Patolawala anf Mr James Gerson (all from GE). This email was
forwarded by Mr James Gerson on July 8, 2010 to Ms Tara Plimpton, Mr
James Winget, Mr Kevin Randall (all from GE) and to the petitioner.
This internal General Electric email sent by Mr Pratyush Kumar on July
6, 2010 has been filed by the petitioner with her affidavit dated July
9, 2012. The subject of this email was "India Update". This email was
an updated version of the "India Update" contained in the email sent
by Mr. Pratyush Kumar on June 7, 2010. This email sent by Mr. Pratyush
Kumar on July 6, 2010 stated as follows:





"Current estimate of timelines for D-Loco

· RFQ due: Jul 12 … On track

· Shortlist: Jul 30 – Aug 9 … Pushing for before Jul 30

· RFP Release: Aug 16-31 … Pushing for before Jul 30

· Price bid: Oct 31 – Nov 15 … Pushing for before Oct 30

· LOA: Dec 15-31

· Appointed Date: Mar 31, '11 … Clock for deliverables starts then

RFQ Process [Prat/Ash, Jul 12]

· Pre-Bid held on May 26 … EMD, GE and Phooltas Harsco (a
local company from Bihar with no Loco background) attended

· 220 acres of land in possession with 40 pillars for boundary
laid out … $4.56MM paid to farmers

· [As we had anticipated] asked to harmonize with Electric RFQ
… final amendments are not yet out … we have the draft

· So far, keeping Jul 12th submission date

· CSR making rounds … unclear if they will bid

Letter to IR on D-Loco [Prat/Brett/Tara, Jun 15] … act after RFQ
Submission only if CSR bids

Closed item – no 6000HP at 23T/axle … 2X6000HP Permanently Coupled
Co-Co units at 23 Tons / Axle … idea late in the game, unlikely but we
are exploring

BHEL partnership [Prat/Ash/Brett/Cyrille/, multiple deadlines]

· Structure discussed with BHEL [Prat/Brett/Lorenzo] … Done

· Circle back to them with revised Structure 2 [Prat/Brett,
Jun11] … Done

Need Help on the following items which has NOT progressed … must close
ASAP to bring BHEL into consortium

· Set target price for components supplied from BHEL to GE
[Jim Gerson/ Ramesh Mathur, Jun 20]

· Develop back-to-back terms [Seema Sapra/ Kevin Randall/
Cyrille Petit, Jun 20]

· Discussion with BHEL with Lorenzo and Dave [June 22]

· BHEL Board meeting [Last week of June]

· Negotiations [Prat/Cyrille, Jul-Aug]

RFQ Prep [Ashish Malhotra, India)/Steve Seip, Erie), Jul5]

· Resolve how to handle CFO certification on networth [Prat/
Monish/ Puneet] … Done

· Customer certificates …selected few [Steve Seip] … Done

· Responsiveness requirement [Seema Sapra]

[We will bring BHEL into consortium only after the propulsion %
control JV terms are nailed down. But we need to work on consortium
agreements now] … Done

· Joint Bidding agreement with BHEL [Seema Sapra/ James
Winget/ Kevin Randall] … Will need for consortium agreement BEFORE RFP

· BHEL RFQ certificates [Seema Sapra / James Winget/ Ashish
Malhotra] … Will need for consortium agreement BEFORE RFP

Bharat Forge [Atulya, Sep 15]

· Identify items they want to quote [Atulya/Ramesh, Jun 15] … Done

· Get firm quotes with back to back terms [Atulya/ Amol/ Ramesh, Sep 15]

· Supply agreements with back to back terms [Atulya/ Amol/
Ramesh/ Seema/ Jamie, Oct 1]

Refreshing model / bid [Jim Gerson/ Gaurav Negi/ Monish, Oct 1] … Need
full team Kickoff [Jim]

· EPC quotes for factories and township [Atulya/ Ramesh/ Joel, Jul 15]

· EHS/ site assessment etc [Atulya/ Ramesh/ Joel, Aug 15]

· Bengal site assessment for GE or BHEL-GE JV factory [Atulya/
Ramesh/ Joel, Aug 1]

· Cost validation [Jim Gerson, Aug 15]

· Discussions with township management vendors [Atulya/
Ramesh/ Joel, Aug 15]

· Scrub Service model [Alpna/ Gina, Sep 15]

· Run Tollgates [Ashish/ Jim/, various by Oct 15]

Ensure E-Loco concessions get incorporated in D-Loco bid [Prat/ Ash, Sep 15]

Timeline risks

· EMD asking for more time pending deal closure with Cat … EMD
told IR that they expect it to close by End of Sep

· Railway Minister changing"



The statements in this email that corroborate the Petitiner's
complaints against General Electric interalia are:



· Shortlist: Jul 30 – Aug 9 … Pushing for before Jul 30

· RFP Release: Aug 16-31 … Pushing for before Jul 30

· Price bid: Oct 31 – Nov 15 … Pushing for before Oct 30

General Electric was lobbying for an expedited bid-process to prevent
EMD from being able to submit a bid.



· CSR making rounds … unclear if they will bid

Letter to IR on D-Loco [Prat/Brett/Tara, Jun 15] … act after RFQ
Submission only if CSR bids

General Electric intended to use the tailored IPR clauses in the 2010
DLF RFQ to prevent the Chinese competitor (CSR) from participating in
the tender.



Closed item – no 6000HP at 23T/axle … 2X6000HP Permanently Coupled
Co-Co units at 23 Tons / Axle … idea late in the game, unlikely but we
are exploring

General Electric was lobbying to introduce these changes aimed at
keeping other competitors out of the Bidding Process.



Ensure E-Loco concessions get incorporated in D-Loco bid [Prat/ Ash, Sep 15]

Having managed with the help of pliable and corrupt officials from the
Planning Commission and the Railway Ministry's Electrical Engineering
Directorate to have favourable terms included in the ELF PCMA
(approved by the Cabinet in 2009) even before it was released to the
Bidders, General Electric's ultimate goal was to get these concessions
incorporated into the DLF PCMA.



Timeline risks

· EMD asking for more time pending deal closure with Cat … EMD
told IR that they expect it to close by End of Sep

General Electric was lobbying for an expedited bid process to prevent
a bid from EMD. Having earlier already successfully lobbied for
Cabinet approval for a single bidder provision, General Electric was
trying to engineer a situation where it would be the sole bidder.



Timeline risks

...

· Railway Minister changing"

The court should direct Mr Jeffrey Immelt, CEO of General Electric
Company to explain on affidavit why a change of the Cabinet Railway
Minister was a "risk" to General Electric's bid.

9 July 2010

Pre-bid meeting held for ELF

12 July 2010

Technical Bids submitted by General Electric and by EMD for the DLF
2010 tender (Bidding Process).



Issue of shell company



General Electric Company used an Indian subsidiary (GE Global Sourcing
India Private Limited) as the Bidding entity. GE Global Sourcing India
Private Limited is a shell company which until 12 July 2010 had not
carried on any prior business activity. This shell company was
selected as the Bidding entity by General Electric Company to avoid
having to make mandatory disclosures required under the RFQ read with
the Government of India, Department of Disinvestment 'Guidelines for
qualification of Bidders seeking to acquire stakes in Public Sector
Enterprises through the process of disinvestment' issued vide Office
Memorandum No. 6/4/2001DDII dated July 13, 2001.



Even the registered office of this shell company, GE Global Sourcing
India Private Limited, as disclosed in the two applications for
prequalification submitted by this shell company for ELF and DLF on 17
May 2010 and on 12 July 2010 respectively, was "care of" the
registered office of another company. This shell company did not even
have its own separate office.



12 July 2010

Issue of tampered/ forged customer certificate



General Electric's technical bid for the 2010 Marhowra tender
submitted on July 12, 2010 is also tainted because a forged/ tampered
document has been submitted to the Government of India with this bid.
General Electric employees illegally and without authorization
"forward-dated" an undated customer certificate issued by Kazakhstan
Railways and submitted this tampered/ forged document to the Indian
Railways on July 12, 2010 as part of Respondent 7's request for
prequalification for the multi-billion dollar Diesel Locomotives
Tender.

12 July 2010

Issue of internal General Electric emails/ documents evidencing
corruption and illegal lobbying



The petitioner has produced before this court a copy of an email sent
by Mr. Pratyush Kumar on July 12, 2010 to James Gerson, Steve Seip,
Kamal Shivpuri, Joanne Kleinhanz, Gina Trombley, Robert Parisi, Ashfaq
Nainar, Ramesh Mathur, Kevin Randall, James Winget, Randy Biletnikoff,
Christopher Morgen, Michael Lafferty, Paul Zeigler, Alan Hamilton,
Vageesh Patil, Deepak Adlakha, Puneet Mahajan, Alpna Khera, Atulya
Dubere, Amol Nagar, Praveena Yagnambhat, Ed Hall, Gaurav Negi, Ashish
Malhotra, Himali Arora (all from GE) and to the petitioner. This email
was copied to Lorenzo Simonelli, David Tucker, Brett BeGole, Russell
Stokes, Monish Patolawala, Joel Berdine, Tara Plimpton, Eric Ducharme,
John Flannery, Tammy Gromacki, Alexander Artman, Karan Bhatia and
Richard Herold (all from GE).



The subject of this email was "Draft Workplan for D-Loco India Bid"
and it contained an attachment "India D-Loco Update 12 Jul 10 V2.ppt".
The attachment to this email was drafted by a group of GE executives
sitting in Mr. Pratyush Kumar's office cabin on July 12, 2010 after
lunch-time. This group led by Mr. Pratyush Kumar also comprised of Mr.
Ramesh Mathur, Ms. Alpna Khera, Mr. Gaurav Negi, and Mr. Ashish
Malhotra. The email was thereafter sent by Mr. Pratyush Kumar at 6:05
pm.



This email states the following:

"Team, we have pulled together a draft workplan for D-Loco bid … with
estimated dates and names (which are our best guesses and will require
your input). We will set up a kickoff call with the core team
(Pitchers – Catchers for each activity). Please let me know if you
have any questions. Thanks, Prat"



The attachment to this email "India D-Loco Update 12 Jul 10 V2.ppt" is
a six page power-point document. This email and the attached file are
already before the Delhi High Court in Civil Writ Petition 1280 of
2012 on pages 222-228 as part of Annexure P-7 to the writ petition.



The first page of the attachment is a title page which states:

"GE Transportation

India Diesel Locomotive

12 Jul 2010"



The second page contains a flowchart that is titled "D-loco Process
Forward" with the words "Expected timeline" under it. This flowchart
has nine boxes depicting nine milestones in the tender process. This
flowchart depicts how Mr. Pratyush Kumar (GE) expected the diesel
locomotive tender process would unfold. It depicts key milestones and
underneath each milestone are bullet points that highlight key
achievements or key targets for GE. These bullet points also point out
the factors/agents that have had an impact on the outcome or were
expected to impact the outcome.



The first box is for February 18, 2010 and it states "Cabinet approves
reversal to JV". Under this box are two bullet points. The first reads
"Single Bidder provision intact". The second reads "Electorate
directorate played key role".



The second box is for March 23, 2010 and it states "issue new RFQ".
Under this box are two bullet points. The first reads "No focal point
in mechanical: Missing Shakeel". The second reads: "Use momentum of
E-loco to push".



The third box is for May 12, 2010. This date is struck out and
replaced by July 12, 2010. This box states "RFQ submission". Under
this box are two bullet points. The first reads "EMD requested delay".
The second reads "Only 2 Bidders – EMD and GE". The first three boxes
are shaded as they depict completed events as on the date of the
email, i.e., July 12, 2010.



The fourth box is for July 30, 2010 and it states "Announce qualified
bidders". Under this box is a single bullet point that reads: "Align
RFP with E-Loco."



The fifth box is for August 9, 2010 and it states "Issue RFP'. Under
this box are two bullet points. The first reads "Some positive
changes". The second bullet point reads "E-Loco changes must flow
through".



The sixth box is for September 14, 2010 and it states: "Pre-Bid
meeting(s)". Under this box is a single bullet point that reads
"Ensure spec / bid changes".



The seventh box is for November 1, 2010 and it states "RFP
Submission". Under this box are two bullet points. The first reads
"EMD expected to bid". The second reads "Tender & Appreciation
committees will decide preferred bidder".



The eight box is for December 30, 2010. It states "Issue LOA". Under
this box are two bullet points. The first reads "Rail Minister –
approval required". The second reads "May require cabinet blessing".



The ninth and last box on this page is for March 31, 2011. It states
"Appointed Date". Under this box is a single bullet point that reads
"Contract clock starts".



The first box in the flowchart titled "D-loco Process Forward" conveys
that General Electric was pleased that the single bidder provision
remained intact in the February 18, 2010 Cabinet decision. General
Electric had lobbied for the tender to be awarded even if there was a
single bid. At the same time, General Electric was lobbying for an
expedited bid process and for the bid process to be completed before
Caterpillar's acquisition of EMD closed. EMD would not have been in a
position to bid until its acquisition by Caterpillar was complete.
General Electric was therefore lobbying for and expedited bid so that
EMD not be in a position to bid, with the result that the Railway
Ministry would have accepted General Electric's bid even as a single
bidder.



Even though this flow-chart concerns the diesel locomotive factory
tender, this chart notes that the Electric directorate of the Railway
Board played a key role in this Cabinet decision to allow a single bid
tender. [It is also pointed out that by June 18, 2010, Mr. Jeffrey
Immelt had decided that General Electric would not bid for the
Madhepura electric locomotive factory tender.]



Issue of corrupt dealings between General Electric and Mr Shakeel
Ahmed, a Railway official

The second milestone on this flow-chart is the issuance of the diesel
locomotive RFQ (Request for Qualification). The first bullet point
states "No focal point in mechanical: Missing Shakeel". The language
used here suggests a contrast with the situation in the electric
directorate. This language conveys that Mr Pratyush Kumar (General
Electric) had no "focal point" in the "mechanical" directorate of the
Railway Board. It also conveys that Mr Pratyush Kumar (General
Electric) did have a focal point in the Electric Directorate. In the
Mechanical Directorate, however, General Electric was "missing"
Shakeel Ahmed. Mr. Shakeel Ahmed was a Railway Ministry official in
the Mechanical directorate in 2008-2009, when GE had bid for the
diesel locomotive factory project. The language used by Mr. Pratyush
Kumar conveys that Mr. Shakeel Ahmed had been General Electric's
"focal point" in the mechanical directorate in 2008-2009. Mr. Shakeel
Ahmed was 'missing' in 2010 as he had retired. The reference to "focal
point" by Mr. Pratyush Kumar is a reference to a pliable and corrupt
Railway Official who could be relied upon to favour General Electric
and to help deliver the outcomes that General Electric wanted. Just to
be clear, the reference to "focal point" is not a reference to the
Railway Ministry official designated to accept the tenders and to
communicate with the bidders. [The relevant officer named in the 2010
diesel locomotive factory RFQ for this purpose was Mr. Santosh Sinha,
Director, (Mech Engg)/Works, Ministry of Railways. See Clause 2.13.3
of the 2010 diesel locomotive factory RFQ.] Mr. Pratyush Kumar
confirms in this document that General Electric was "missing" Shakeel
Ahmed who General Electric had earlier relied upon for support and
help in the Mechanical directorate of the Railway Board. Mr. Pratyush
Kumar's email dated 12 July 2010 confirms that in 2008-2009, during
the earlier tender for the same project, General Electric had access
to, was in contact with, and obtained help from Mr. Shakeel Ahmed, a
Railway Ministry official in the Mechanical directorate.

GE employees corruptly obtained advice and assistance from a Railways
Ministry official/ advisor Mr. Shakeel Ahmed during GE's diesel
locomotive bid in 2008-2009.

[The petitioner has independent and personal knowledge of General
Electric's corrupt dealings with Mr Shakeel Ahmed during the 2008-2009
DLF tender. In June 2010, the petitioner was informed of such
corrupt dealings by a US based executive (Mr Steve Seip) and a US
based lawyer (Mr James Winget) for General Electric. The petitioner,
then working as in-house counsel for General Electric, was on a
phone-call with Steve Seip and James (Jamie) Winget (both from General
Electric) towards the end of June 2010. This phone-call was to discuss
certain changes that the petitioner had suggested to the technical
prequalification application documents for the diesel locomotive RFQ
that was being prepared. Steve Seip opposed the petitioner's changes
and his only reason was that the documents prepared by him were based
upon the precedent of the documents that had been submitted by General
Electric for its RFQ application for the DLF tender in 2008. The
petitioner in her capacity as Legal Counsel for GE Transportation in
India disagreed with the draft documents prepared by Steve Seip and
supported her recommendations for modifications to these documents
upon her interpretation of the RFQ guidelines. After some discussion
on this phone-call, the petitioner was able to convince James Winget
about her suggestions and it was agreed that the petitioner's
suggestions would be incorporated in the technical bid application to
be submitted by General Electric.

Steve Seip from General Electric then told the petitioner and James
Winget on this phone call that the DLF RFQ application that was
submitted by General Electric to the Railway Ministry in 2008 had been
vetted by Mr. Shakeel Ahmed, a senior official in the Railway
Ministry. Mr Steve Seip described the procedure followed for this
vetting in detail. He stated that each document contained in GE's 2008
DLF RFQ application was after drafting, first sent to Mr. Shakeel
Ahmed in the Railway Ministry for his approval and was included in
General Electric's RFQ application only after such approval. This RFQ
application vetted by Mr Shakeel Ahmed from the Railway Ministry was
then submitted by GE Global Sourcing India Private Limited to the
Railway Ministry.

This kind of consultation with and assistance from Mr. Shakeel Ahmed,
a Railway Ministry official, who was directly involved in the tender
process for the Railway Ministry was a corrupt and undesirable
practice under the RFQ and rendered GE for disqualification and
blacklisting.

An investigation into these charges will recover documentary evidence
from General Electric confirming that a Railway Ministry official, Mr
Shakeel Ahmed vetted General Electric's RFQ application for the DLF
Project before it was submitted to the Railway Ministry in 2008. A
detailed investigation and the examination of General Electric
executives and lawyers (including Mr Steve Seip and Mr James Winget)
by investigating authorities will provide additional details and
evidence of these corrupt dealings and will also provide evidence of
bribes paid by General Electric to Mr Shakeel Ahmed in lieu of his
help and evidence of how these bribes were paid.

GE's corrupt access to and use of Mr. Shakeel Ahmed in 2008-2009 is
also recorded in the above internal General Electric email dated July
12, 2010 sent by Pratyush Kumar to a number of persons including to
the Petitioner.

The statement "No focal point in mechanical: Missing Shakeel" in the
above internal General Electric document establishes and is a written
admission by General Electric that in 2008-2009, Mr. Shakeel Ahmed, an
official in the Railway Ministry was assisting General Electric in its
bid for the DLF Marhowra Project. Mr. Shakeel Ahmed was at that time
a high-ranking public official in the Railways Ministry and he was an
adviser for the public private partnership projects, which included
the Marhowra and Madhepura locomotive factory tenders. Mr. Shakeel
Ahmed's dealings with General Electric and the assistance he rendered
to General Electric (including his having vetted General Electric's
bid documents in 2008-2009 as confirmed to the petitioner by Mr Steve
Seip and Mr James Winget from General Electric) in its bid to secure
the multi-billion dollar diesel locomotive factory tender amount to
corrupt practices.



Mr. Shakeel Ahmed's LinkedIn profile shows that from 2006 till October
2009, he was Executive Director/ Public Private Partnership & Adviser
(Projects) for the Indian Railways. His LinkedIn profile describes his
job as follows:

"Innovative business models for setting up large Railway Production
Units in JV on the basis of Procurement-cum-maintenance Contract
developed from scratch.
• Innovative business model for setting up production units on the
basis of long term procurement contract developed.
• Preparation of complex two stage bid documents and a host of
agreements requiring knowledge of procurement, finance, legal and
regulatory issues, taxation, company law provisions, transfer of
technology, domain knowledge of manufacturing/maintenance etc.
• Preparation of complex bid documents for appointment of reputed
consultants on quality-cum-cost criteria done and consultants
appointed."



After his retirement from the Indian Railways, Mr. Shakeel Ahmed has
been working as Chairman cum Managing Director of Hindustan Copper
Limited since October 2009. Mr Shakeel Ahmed is being investigated by
the CBI for corruption during his tenure at Hindustan Copper.]



Mr. Pratyush Kumar's flowchart also confirms that General Electric had
corrupt contact with and access to Railway Ministry officials in the
electric directorate during 2010. These corrupt railway officials were
helping General Electric in various ways including by modifying the
bid process and bid documents to suit and benefit General Electric.



The next bullet point in the second box of the flowchart confirms that
General Electric had access to pliable Railway Ministry officials in
the Electric directorate. It reads "Use momentum of E-loco to push".
It conveys that not only was General Electric assured of momentum by
pliant railway officials in the electrical engineering directorate
regarding the 2010 Madhepura tender, but that General Electric planned
to use the momentum of the ELF tender to speed-up the tender process
for the DLF tender and to lobby for changes to the bid documents for
the diesel locomotive factory (DLF) tender. It conveys that General
Electric was satisfied with and assured of adequate momentum in the
electric locomotive tender because of its influence and corrupt links
with officials in the electrical engineering directorate of the
Railway Ministry.



The fourth milestone in the flowchart is the announcement of the
qualified bidders. The bullet point under the fourth box states "Align
RFP with E-Loco". Once again this provides evidence and an admission
by General Electric that it was lobbying for the yet to be issued RFP
(PCMA) for the DLF Project to be aligned with the RFP for the ELF
Project because General Electric had managed to introduce favourable
changes ("concessions") in the ELF RFP with the help of pliable and
corrupt Railway Ministry officials in the electrical engineering
directorate and with the help of Mr Montek Singh Ahluwalia and Mr.
Gajendra Haldea from the Planning Commission.



The fifth milestone in the flowchart is the issuance of the diesel
locomotive RFP. The first bullet point here reads "Some positive
changes". In his email, Mr. Pratyush Kumar refers to some changes to
the diesel locomotive RFP which were "positive" for General Electric.
On the date of this email (12 July 2010), General Electric had in its
possession the 2008-2009 cabinet-approved RFP for the DLF Project. The
2010 RFP for the DLF Project had not yet been released on July 12,
2010. (The DLF RFP was only released on 11 October 2010.) How did Mr.
Pratyush Kumar from General Electric know on July 12, 2010 that there
were some positive changes in the yet to be released DLF RFP? From
February 2009 till July 2010, General Electric had had no official
interaction with the Railway Ministry, or with the Planning Commission
on the question of the new DLF RFP that was still to be issued. So how
did Mr Pratyush Kumar (General Electric) know the contents of the 2010
DLF RFP on 12 July 2010 three months before the RFP was released? This
once again confirms that General Electric had advance access to and
advance knowledge of the internal workings of the Railway Ministry and
unlawful access to internal government documentation on the DLF and
ELF tenders and to internal confidential government deliberation and
decision-making on the Bid Process for these tenders much before such
information/ documentation was publicly released. General Electric
could not have "officially" or lawfully known on July 12, 2010 the
contents of the still to be issued DLF RFP.



This court should direct a senior officer of General Electric Company
to state on affidavit how General Electric was aware of "positive
changes" in the DLF RFQ on 12 July 2010 when this RFQ was not
released until 11 October 2010.



The second bullet point of the fifth milestone in the flowchart is
even more revealing. It reads ""E-Loco changes must flow through".
General Electric's internal documents confirm that General Electric
wanted the "concessions" introduced at its behest into the 2010 ELF
RFP to be incorporated into the 2010 DLF RFP. The changes introduced
into the 2010 ELF RFP benefited General Electric and it wanted these
"concessions" to be incorporated into the 2010 DLF RFP. These internal
General Electric documents also establish that General Electric was
using its participation in the 2010 ELF tender to lobby for and
influence changes to the bid documents for the DLF factory tender and
to influence the DLF tender bid process.



The sixth milestone in the flow chart is the pre-bid meetings. Under
this box, Mr. Pratyush Kumar notes that General Electric must "Ensure
spec / bid changes". Once again this confirms that General Electric
wanted further changes to the product specification and the bid
documents in the yet to be issued DLF RFP. The use of the verb
'ensure' suggests that GE was confident of achieving this. This bullet
point must be read along with the statement under the fifth box. i.e.,
"E-Loco changes must flow through".



This flow-chart shows that General Electric had "managed" to influence
the drafting of the 2010 RFP for the ELF tender and the PCMA contract
terms in this document were modified to introduce "concessions" to
General Electric. General Electric in its own internal documents
records its intent to ensure that these "concessions" introduced into
the 2010 ELF RFP be also incorporated into the DLF RFP. This is clear
from the internal General Electric flowchart, which contains
incriminating statements like "Use momentum of E-loco to push"; 'Align
RFP with E-Loco"; "E-Loco changes must flow through"; and "Ensure spec
/ bid changes". Also confirmed from this flow-chart is the corrupt
access that General Electric enjoyed in 2010 to pliable officials in
the Railways electrical engineering directorate. It appears from
internal General Electric documents that General Electric did not
enjoy similar access to officials in the Railways mechanical
engineering directorate, which was managing the DLF Project. The
Railway Board has a number of directorates. The tender for the
proposed diesel locomotive factory is being managed by the mechanical
engineering directorate. The tender for the proposed electric
locomotive factory is being managed by the electrical engineering
directorate.



The third page of the power-point file attached to Mr. Pratyush
Kumar's email dated July 12, 2010 contains a timeline titled "D-Loco
Bid Critical Path". This contains external and internal targets for
GE.



Pages 4, 5 and 6 of the document attached to Mr. Pratyush Kumar's
email contain a chart titled "Work-plan". This chart has five columns:
(i) Key work streams; (ii) Activities; (iii) Pitcher/India – Catcher/
Erie; (iv) Team; (v) Timing and (vi) Deliverable. This chart has
thirteen rows under the column headings setting out thirteen 'Key work
streams'. These are: (i) RFP Documentation; (ii) Tollgates/ Exec
Reviews; (iii) Site development; (iv) Facilities development; (v)
Product; (vi) Service; (vii) Sourcing; (viii) Financial modelling /
Tax Optimization; (ix) Commercial discussions – customer; (x) BHEL
partnership; (xi) Bharat Forge partnership; (xii) Competitive
analysis; and (xiii) External stakeholder engagement.



The entries for the ninth work stream "Commercial discussions –
customer" read as follows:

Key work streams

Activities

Pitcher – Catcher

India -Erie

Team

Timing

Deliverable

Commercial discussions – customer

RFP terms



Pre-Bid

Ash Nainar – James Gerson

Ash Nainar

Prat Kumar

Dave Tucker

Brett Begole

Russell Stokes

Ongoing …

conclude RFP by Sep 15

E-Loco terms for D-Loco







The entries for the thirteenth work stream "External stakeholder
engagement" read as follows:



Key work streams

Activities

Pitcher – Catcher

India -Erie

Team

Timing

Deliverable

External stakeholder engagement

Keep the momentum for the bid

Manage environment

Prat Kumar/ John Flannery – Lorenzo Simonelli

John Flannery

Prat Kumar

Ash Nainar

Lorenzo Simonelli

Dave Tucker

Karan Bhatia

Rich Herold

On-going





The date of Mr. Pratyush Kumar's email is July 12, 2010. On that date,
GE had submitted the RFQ for the diesel locomotive factory tender. The
RFP for this tender was not issued until 11 October 2010. On 12 July
2010, General Electric was not even a short-listed bidder for the DLF
tender. General Electric submitted its application for
pre-qualification for this tender only on 12 July 2010. Yet on 12 July
2010, internal General Electric communications record that commercial
discussions with the Government of India had been ongoing on the RFP/
PCMA terms even at the Pre-Bid stage and the goal/ deliverable was to
have the ELF PCMA concessions incorporated into the DLF PCMA and that
the DLF RFP/ PCMA would be concluded by September 15, 2010. These
statements in internal General Electric documentation are a clear
admission of corrupt activities, illegal lobbying and of corrupt
influence on the Bid Process and the Bid documents.

The court should direct a senior officer of General Electric Company
to explain on affidavit the statement in this internal General
Electric document that the RFP would be concluded by September 15,
2010. Was the decision of the Railway Ministry to conclude the RFP
being taken at the behest of and instructions from General Electric?

On July 12, 2010, Mr. Pratyush Kumar committed to the deliverable
"E-Loco terms for D-Loco", i.e., GE wanted the concessions from the
ELF RFP to be incorporated into the DLF RFP. Mr. Pratyush Kumar also
stated that discussions with the Railway Ministry on this
"deliverable' were 'on-going' and that he expected the RFP to be
concluded/ finalised by September 15, 2010. Discussions between the
Railway Ministry and the bidders on the DLF RFP terms would formally
commence only after the bidders were short-listed/ pre-qualified and
after the RFP was issued The RFP was not issued until 11 October 2010.
Yet Mr. Pratyush Kumar stated on July 12, 2010 that these discussions
were ongoing. These written statements in an internal General Electric
document establish that General Electric was in corrupt contact with
Indian government officials and was engaged in prohibited lobbying for
this tender.



The prescribed two-stage tender process is that bidders are first
prequalified on prescribed technical and financial criteria. The RFP
is thereafter issued to qualified bidders. Subsequent to this, pre-bid
conferences are held by the tendering Authority (in this case the
Railways Ministry) where all prequalified bidders who have purchased
the RFP are invited. Commercial discussions do take place at this
stage between the bidders and the tendering Authority, but these
discussions take place through a formal and transparent process where
all bidders are present and are notified. During these pre-bid
conferences, short-listed bidders can ask for clarifications, make
suggestions, and raise objections orally or in writing. These
interventions by the short-listed bidders are then discussed openly in
the presence of the representatives of all short-listed bidders.
Written communications received from any single short-listed bidder
are formally shared by the Authority with all other short-listed
bidders. Any clarifications issued by the tendering Authority and/ or
any modifications made to the RFP terms consequent to suggestions
received are also formally communicated in writing simultaneously to
all short-listed bidders.



Given the above formalised process, Mr. Pratyush Kumar's statement in
an internal GE document sent to several GE executives and officers on
July 12, 2010 that commercial discussions between General Electric and
the Railway Ministry on the DLF RFP terms were ongoing with the
objective of concluding the DLF RFP by September 15, 2010 and that he
along with other GE executives (Ash Nainar, James Gerson, Dave Tucker,
Brett Begole and Russell Stokes) would deliver "E-Loco terms for
D-Loco", unambiguously and irrefutably establishes that General
Electric executives were in corrupt contact with and were engaged in
prohibited lobbying of Railway Ministry and Planning Commission
officials.



This constitutes an admission by General Electric of corrupt dealings
and contact with Railway Ministry and Planning Commission officials
in connection with the tenders for the DLF Project.

1 October 2010

Railway Ministry issued letters to GE Global Sourcing India Limited
and to EMD Locomotive Technologies short-listing them for the 2nd
(RFP) stage of the Bidding Process for the 2010 DLF tender

6 October 2010

Pre-bid meeting held for ELF.

8 October 2010

RFP issued for ELF 2010 tender to short-listed bidders



(According to the Railway affidavit filed on 14 January 2013 in
response to CM 19501/2012, the Empowered Committee of Secretaries met
for ELF on 17 May 2010, 31 May 2010, 10 June 2010, 26 July 2010, and
30 September 2010 to consider and approve changes to the Bid documents
and PCMA for ELF).



Changes were made to the Cabinet- approved ELF PCMA by the Empowered
Committee of Secretaries as a result of these meetings. These changes
have been described in internal General Electric documents reproduced
herein as "concessions".



The meetings of the Empowered Committee of Secretaries on 17 May 2010,
31 May 2010, and 10 June 2010 to discuss the ELF PCMA correspond to
the period when General Electric executives organised meetings between
Railway Ministry officials and McKinsey executives who were evaluating
the ELF tender for General Electric.



The first pre-bid meeting for ELF was on 9 July 2013. At whose behest
then did the Empowered Committee of Secretaries introduce changes into
the PCMA before this date and at whose behest did the Empowered
Committee of Secretaries meet for the ELF on17 May 2012, 31 May 2012,
and on 10 June 2010?



It is submitted that the Railway Ministry should be directed to
produce the following documents on record in these writ proceedings:

1. The ELF PCMA approved by the Cabinet in 2009

2. The draft ELF PCMA/ RFP issued on 11 June 2010

3. The ELF PCMA/ RFP issued on 8 October 2010



Dates for submission of financial bids for ELF repeatedly postponed.

11 October 2010

RFP issued for DLF 2010 tender to short-listed bidders



Dates for submission of financial bids for DLF repeatedly postponed.

6 Nov 2010

Issue of illegal lobbying by General Electric



A November 6, 2010 Bloomberg news story quotes General Electric
Chairman Mr Jeffrey Immelt (respondent 8 herein) as having stated:



"We've been hoping to bid on the modernization of the rail sector for
10 years," Immelt said, speaking a day after the country's festival
of lights. "If we ever do get a chance to bid on locomotives in India,
this will be my Diwali, even if we don't win."



Mr Jeffrey Immelt made this statement in a public event during US
President Barrack Obama's visit to India in November 2010.



This statement by Mr Jeffrey Immelt, again confirms as does Mr John
Rice's statement to General Electric investors in 2009, that General
Electric had been lobbying for the DLF Project for 10 years and that
the Project was specially conceived and created (with Mr Montek Singh
Ahluwalia's help) only to benefit General Electric.



This statement by Mr Jeffrey Immelt and Mr John Rice's statement dated
10 February 2009 constitute public "admissions" (these even amount to
public boasts) by General Electric executives at the highest level
that the DLF Project of the Indian government has been created at
General Electric's behest and for its benefit.

19 January 2011

Pre-bid meeting held for ELF.

14 Mar 2011

Issue of illegal lobbying by General Electric



In March 2011, Mr Jeffrey Immelt again visited India and on 14 March,
2011, a Wall Street Journal article quoted Mr. Immelt as having stated
in a public event held in India:

"We have invested for a long period of time for the opportunity to
successfully bid on a competitive basis to modernize the railways of
India – it is extremely important to us that that investment gets
made," Mr. Immelt said. "To not even have a chance to bid is
frustrating."

He said, in what appeared to be only a half-joke, that if the company
doesn't get the chance to bid for the contract while he is still at
the helm, "my own self-worth would be diminished immensely."

Just in case anyone in the audience didn't get the point, he added: "I
would like that on the record."



The petitioner submits that the above statement by Mr Jeffrey Immelt
made after the petitioner had sent formal complaints against General
Electric in connection with the DLF and ELF tenders to the Railway
Ministry, looks like a threat from General Electric to the Government
of India that 'it should proceed with the bid process or else'. Mr
Jeffrey Immelt's statements made in India during high-profile visits
and in public events covered widely in the international and national
press in November 2010 and in March 2011 were not only inappropriate
but amounted to lobbying and to pressurising the Government of India
to submit to General Electric's demands concerning the diesel
locomotive factory Project. Mr Jeffrey Immelt ought to have displayed
better judgment before threatening the Government of India. A
multi-billion dollar tender that would in effect transfer public funds
from the Indian exchequer to a foreign private party and would also
transfer the entire Indian assured market for diesel locomotives to a
foreign private party is certainly not to be demanded from the Indian
government or to be awarded to General Electric by the Indian
government in response to threats delivered at public events by
General Electric's Chairman and CEO. An insinuation that General
Electric would get "annoyed" if the Government of India did not
proceed as demanded is certainly a threat to the Indian government.
Other press reports from this time contained other threats that
General Electric would withdraw from India and statements by General
Electric executives criticising Indian government decision-making and
so-called policy paralysis and suggesting that this would impact
investment in India negatively. General Electric's public announcement
at this time that it would invest in a factory in India and its
eventual investment in Maharashtra is nothing but a carrot offered to
the Indian government to cover up the complaints of corruption against
General Electric and to hand over the DLF contract to General
Electric.



The petitioner submits that Mr Jeffrey Immelt would never make a
similar statement with respect to a government contract either in his
own native country, the United States, or elsewhere in the developed
world. Mr Jeffrey Immelt was openly condescending and disrespectful to
the Government of India and about government processes in this country
precisely because he believes and knows that public officials and
public contracts here can be purchased through bribes.

30 May 2011

Issue of non-investigation by CVC of complaint of forged customer certificate



Respondent No. 2 (the CVC) registered a complaint bearing No. 107/11.1
acting on the Petitioner's email dated January 11, 2011 reporting the
submission of a forged customer certificate by General Electric with
its technical bid for the DLF RFQ on 12 July 2010. A copy of the
letter dated May 30, 2011 received by the Petitioner from Respondent
No. 2 is attached to the writ petition as Annexure P-5.

The letter dated May 30, 2011 sent to the petitioner by the CVC
referred to the petitioner's email letter dated January 11, 2011 and
stated that this email complaint had been registered as complaint no.
107/11/1 and had been forwarded to Mr A K Maitra, Advisor (Vig),
Railway Board for investigation and submission of a report. The email
complaint sent by the Petitioner on January 11, 2011 stated that the
Kazakhstan Railways customer certificate submitted by GE Global
Sourcing India Private Limited for the Marhowra RFQ on July 12, 2010
was a tampered and forged document.

29 February 2012

Writ Petition (Civil) 1280/ 2012 and CM 2770/ 2012 seeking stay of the
2010 ELF and DLF tenders filed.



The prayers in this writ petition are:

"

Summon the records of Respondent Nos. 2, 4 and 5 on the whistle-blower
complaints made by the Petitioner and after examining the records and
hearing the Respondents, issue a writ of mandamus to Respondent 4
directing that Respondent 7 be disqualified and Respondent Nos. 1, 6
and 7 be black-listed from the Diesel and Electric Locomotive Tenders
(Global RFQ No. 2010/ ME (Proj)/ 4/ Marhoura/RFQ and RFQ No. 2010/
Elect. (Dev0 440/1(1)).



Issue writs of mandamus to Respondent Nos. 2, 4 and 5 directing them
to respond to and act upon the said whistle-blower complaints in
accordance with law.



Direct that Respondent No. 2 inquire into the commission of criminal
offences (including forgery, bribery and public corruption) arising
out of the Petitioner's whistle-blower complaints and direct
prosecution of GE employees and government officials and public
servants found involved and complicit.



Enforce and protect the right to life of the Petitioner and direct
that the Petitioner be provided full protection and safety and be
immediately relocated to a safe house.



Pass such other and further orders as this Hon'ble Court may deem fit
and proper.

7 March 2012

Notice issued on writ petition and on CM 2770/ 2012 to

General Electric Company – respondent 1

CVC – respondent 2

Delhi Police, respondent 3

Railway Ministry – respondent 4

PMO – respondent 5

GE India Industrial Private Limited – respondent 6

GE Global Sourcing India Private Limited – respondent 7



Writ Petition adjourned to 19 July 2012.



CM 2770/ 2012 adjourned unheard to 9 May 2012.

19 March 2012

Pioneer news story



The Pioneer newspaper published a news report on March 19, 2012 titled
"US loco giant pits Montek against planners". It is relevant to quote
the entire news report here. It reads:



"In the midst of political turmoil over the railway fare hike, an
intense fight is going on in higher echelons of bureaucracy over the
selection of bidders for two locomotive factories that then Railway
Minister Lalu Prasad Yadav had announced for his parliamentary
constituency in Bihar in 2009. In the 2009 Railway Budget, Lalu had
announced setting up of one electric locomotive factory at Madhepura
and another diesel loco factory in Marhowra on PPP model.



The process of selection of bidders has pitched two key Ministries —
Railways and Finance — against the Planning Commission. Top officials
of Railway Board and Finance Ministry have objected to the proposals
of Plan panel to change the Cabinet-approved bidding process and
supply conditions for these two pending projects, which have reached
nowhere in three years.



The official communication and file notings available with The Pioneer
show that top officials of Railway Board and Finance Ministry
protested over the changing of the Cabinet decisions to favour certain
bidders by Plan panel deputy chairman Montek Singh Ahluwalia's Advisor
Gajendra Haldea. For executing the bidding process, the Cabinet in
2009 formed an Empowered Committee consisting of officials drawn from
Railway Board, Finance Ministry and Planning Commission. The
controversies started when Haldea mooted some changes last year in the
Cabinet-approved proposal.



In case of Madhepura project, senior officials of the Railway Board
and Finance Ministry noted down that the minutes of the meeting were
also "changed" and "misquoted" to propose major changes in the bidding
documents to favour the US giant, General Electric.



In a series of communications between the Empowered Committee members,
Finance Ministry and Railway Board officials have stated that Haldea's
proposal to change the Cabinet approved bidding procedures and supply
conditions would place an extra burden of more than Rs16,405 crore.



Sources told The Pioneer, in several meetings of the empowered group,
heated exchanges took place and some members alleged that these
changes were introduced to suit General Electric — the lone bidder for
the project. In the bidding process of Marhowra project also, top
officials of the Railways and Finance Ministries protested Haldea's
high-handedness. "Haldea apparently thinks that India is a Banana
Republic that can be forced to accept a con game….," noted Sanjiv
Handa Member (Mechanical) of Railway Board in a note seen by the
Railway Board Chairman.



In the same note, Additional Member (Production Unit) SK Sharma of the
Railways wrote that "it is unfortunate that professionalism, probity
and regard for highest standards of integrity of the mechanical
directorate are being questioned by resorting to sensationalism,
misinformation and slander, rather than reasoned debate. It is for the
investigators to determine whether this was part of a larger agenda
aimed at compromising the Indian Railways interest."



The Finance Ministry officials also expressed displeasure on changing
of Cabinet-approved bidding and supply conditions. A Railway Board
note of June 28, 2011 read, "Economic Affairs Secretary R Gopalan
specifically asked financial commissioner the decisions of the
Empowered Committee at the behest of the bidders will need to be
seen with regard to their financial aspects so as to ensure that
gaming by the bidders is ruled out and Railways interest will not be
compromised. The minutes do not include these concerns of the
Secretary, Economic Affairs."



In a communication to Montek on February 9, Planning Commission Member
Secretary Sudha Pillai questioned the authority of Haldea for
approving the changed proposals, which he himself mooted.
"Subsequently, several amendments that were proposed to the terms
approved by the Cabinet were also admittedly authored by him. These
proposals altering the terms of the proposed contracts in significant
ways were quickly endorsed by the Infrastructure Division (headed by
Haldea), bypassing me on some occasions.



"However, these amendments when subjected to detailed discussion and
scrutiny by the Empowered Committee were found to have serious
implications which had not been adequately addressed. It was clear
that these amendments were not subjected to independent and impartial
scrutiny. This created a very embarrassing situation for me as a
member of the Empowered Committee," said Sudha Pillai in a
communication to Montek."



This news report was published on March 19, 2012 after the Delhi High
Court had issued notice on Civil Writ Petition 1280 of 2012 on March
7, 2012. This report also confirms that contract terms and bid
processes were manipulated in order to benefit General Electric. This
news report goes on to name Planning Commission officials who stand
accused in internal Government of India documents of manipulating the
bids for the impugned tenders in order to help General Electric obtain
the lucrative diesel locomotive factory contract. This report also
names and quotes government of India officials who have objected to
such manipulations. These manipulations to contract terms and bid
processes not only benefit General Electric but are also to the
detriment of other qualified bidders; to the detriment of other
qualified suppliers who were excluded from the bid process entirely;
to the detriment of the public interest; and to the detriment of the
interests of the Government of India and the public exchequer.



This court should direct the Planning Commission, the Railway Ministry
and the Finance Ministry to produce on the record of these writ
proceedings, the documents mentioned in the Pioneer news report.



As reported by the Pioneer newspaper, government officials from
several departments have accused Mr Montek Singh Ahluwalia and his
close aide and advisor Mt Gajendra Haldea of favouring General
Electric and of introducing changes to the ELF and DLF bid documents
at the behest of General Electric and at the cost of the Indian
exchequer. Charges have been levelled that Mr Gajendra Haldea also
mis-recorded/ altered minutes of government meetings to prevent
objections to such unjustified concessions from being recorded.



The account narrated in the Pioneer newspaper shows that Mr Montek
Singh Ahluwalia and Mr Gajendra Haldea were interfering in the
governmental process of finalising the bid documents for ELF and DLF
even though neither of the two had an official role to play in this
process.



Several corruption scams that have been exposed in India, show that
corruption and improper and malafide decision-making is usually
facilitated by government advisors/ ministers/ bureaucrats taking
decisions without any accountability by interfering in formal
decision-making procedures and later distancing themselves from any
responsibility for the unsupportable decision.



The 2G scam has disclosed how the PMO and the Attorney General
contributed to the improper and corrupt decision-making in allocating
2G licences at a huge loss but managed to evade all responsibility/
blame for these decisions because their role was played outside the
official decision-making procedures.



Even in the Enron scandal, the approval to the misconceived Dabhol
power project (in which General Electric was also involved) was given
by Mr Montek Singh Ahluwalia, even though this approval needed to come
from the CEA. Corruption is facilitated within the government by
by-passing official decision-making procedures so that the person
actually taking the corrupt decision can later disclaim any
accountability. No one has till date been held to account for the
massive pecuniary, resource, and opportunity loss caused to the Indian
State and to the Indian public by the completely infeasible Dabhol/
Ratnagiri project which has again stopped functioning.



Even in the present case, both Mr Montek Singh Ahluwalia and Mr
Gajendra Haldea were interfering without any authority in a task that
had been delegated by the Cabinet to an Empowered Committee of
Secretaries. Neither Mr Montek Singh Ahluwalia nor Mr Gajendra Haldea
were members of this committee. With what authority then and on whose
behalf was Mr Gajendra Haldea proposing changes to the ELF and DLF bid
documents and also approving these changes bypassing even the
Secretary to the Planning Commission who was an appointed member of
the Empowered Committee? With what authority was Mr Gajendra Haldea
participating in meetings of the Empowered Committee and altering
minutes of these meetings despite protests by other participants?



The petitioner herself attended 2-3 pre-bid meetings for the ELF/ DLF
tenders in 2010 along with General Electric executives. The petitioner
recalls the presence of Mr Gajendra Haldea at some of these meetings.
Whenever Mr Gajendra Haldea was present for Railway pre-bid meetings
he essentially chaired those meetings with all railway officials
including railway board members deferring to him.



Mr Gajendra Haldea is a retired bureaucrat and his official engagement
is as an advisor to Mr Montek Singh Ahluwalia. Mr Gajendra Haldea's
official position therefore does not confer on him the authority to
chair railway pre-bid meetings. Where does Mr Gajendra Haldea derive
this informal authority within Indian government processes? It is
clear that Mr Gajendra Haldea is merely a representative of Mr Montek
Singh Ahluwalia.



Yet experience with past scams and corruption within the government
shows, that in case of any questions being raised later on the
propriety of the ELF and DLF bid documents, the blame would have
fallen only on the Empowered Committee and on Railway Ministry
officials with Mr Montek Singh Ahluwalia and Mr Gajendra Haldea
evading/ disclaiming all blame/ responsibility for changes sponsored
by them.

2 April 2012

Outlook India news story



More sordid details about the corruption plaguing the ELF and DLF
tenders were published by Outlook India, a reputed Indian news
magazine in a news-feature in its April 2, 2012 issue titled "The
Great Railway Bazaar". This news exposed the "creeping privatisation"
and the accompanying corruption in the Indian Railways and asked the
question: "Is the lifeline of the nation—the Indian Railways—being put
on the block, bit by bit?' This news story highlighted that
privatisation of fixed rail infrastructure was creeping in. The report
stated:



"Eye On Infrastructure - Models are being developed to allow private
players to enter in fixed rail infrastructure—stations, high-speed
lines, manufacturing of locos, coaches, wagons—in the form of public
private partnership (PPP) projects.'



It also noted that tailor-made tenders and manipulated bid-processes
were being resorted to by government agencies and officials involved
in these high-value PPP projects.



The Outlook India report stated:



"Change The Rules - Planning Commission bid to change bidding process
for two PPP locomotive plants in Bihar rings a bell with similar PPP
moves in power, highways, airports. Current PPP projects: Rs 1,166
crore. PPP projects in the pipeline: Rs 99,064 crore."



The news report highlights the involvement of the Planning Commission
and Mr. Sam Pitroda in the push behind this privatisation drive. It
states:



· Senior government and railway officials say Dinesh Trivedi's
railway budget was crafted with the major backing of the Planning
Commission in a manner not seen during the tenures of previous railway
ministers Laloo Prasad Yadav and Mamata Banerjee.

· Trivedi's proximity to railway reforms panel head Sam
Pitroda is grist for the gossip mills in Rail Bhavan. There are some
who view a potential conflict of interest in Pitroda residing at
Trivedi's Delhihome while his house was being readied.

· Trivedi has gone on record in TV interviews to say that he
had approached American investor Warren Buffett to "invest" in railway
bonds and promised to clean up the railways to ensure this.

This report exposes the corruption and rule-tweaking in the impugned
locomotive factory tenders. The Outlook India article states:

"Experts point out that huge concessions are expected to be granted to
attract private investments. Currently, there are over a dozen
departments handling various PPP projects. The proposal to have a
dedicated railway board member looking at PPPs has been shot down by
the new minister. This is unfortunate as there is no transparency or
accountability in how these projects are being formulated or operated.
All this should set alarm bells ringing.

Apart from genuine fears about corruption and tweaking of rules, there
is also the concern that millions of consumers who rely on the
railways could end up suffering and paying higher tariffs. …

The controversies have already begun. The basic flaw with the railways
following the PPP mode to augment resources for infrastructure
development is the lack of a sound model. Currently, the railway
ministry is relooking at the proposal for setting up two new
locomotive factories in Bihar. During his tenure as railway minister
in 1998-99, Nitish Kumar had ordered a feasibility study on increasing
locomotive manufacturing capacity in the country for domestic use and
exports. "But it was only in 2009 that Laloo Prasad Yadav pushed ahead
with the idea of setting up more loco manufacturing units through the
PPP mode in Bihar," says a former railway board member.



But despite two cabinet approvals, the process of awarding the
contract has been put on indefinite hold after differences cropped up
between members of the railway board and the Planning Commission. In
fact, even within the Planning Commission, questions have been raised
about changing of contract terms to benefit General Electric. Such
changes were to be done only by an inter-ministerial group. As charges
of tweaking terms of contracts fly against Planning Commission advisor
Gajendra Haldea, he defends himself, saying, "The bid document and bid
process for electrical locos was completely transparent, fair and
competitive."



Associated with the process of evolving the PPP structure, Haldea
states that "any suggestion that I made any changes at my level in the
contract is complete hogwash". He points out that there are only four
manufacturers of the kind of locos being procured and all of them are
competing for the contracts. Highly-placed sources in the know point
out that the freeze in decision-making on the Bihar and other PPP
projects is mainly due to Mamata Banerjee's unease with what's
happening. That is why a second committee of experts was set up to
study the implications of various PPP proposals to safeguard the
railways' interest.



Not all PPPs have gone wrong, avers former railway board chairman
Vivek Sahai, who says experiments like the wagon investment scheme
have proved to be a win-win situation for both the railways and the
private party. However, as the Bihar PPPs show, for setting up
manufacturing units (like the two proposed locomotive plants) it is
still uncharted territory. Many contracts are coming under scrutiny
for questionable clauses to suit investors."



The Outlook India news story quotes Mr. Gajendra Haldea, (advisor to
Mr Montek Singh Ahluwalia) as having stated (about the electric
locomotive factory tender) that 'there are only four manufacturers
of the kind of locos being procured and all of them are competing for
the contracts.' This statement by Mr. Gajendra Haldea's is false and
misleading. As pointed out hereinabove, General Electric does not
manufacture electric locomotives at all. Therefore General Electric is
not a manufacturer of electric locomotives as misrepresented by Mr
Gajendra Haldea to Outlook magazine and to the public at large. In
2008-2009, General Electric was ineligible for the Madhepura electric
locomotive factory project. The tender eligibility conditions were
diluted and tailored in the 2010 Madhepura RFQ to enable General
Electric to participate in this tender. The Government of India must
inform this Hon'ble Court as to how a company (General Electric), that
does not even manufacture electric locomotives, and which not possess
the demonstrated technology to do so, was short-listed in a
multi-billion dollar global tender to set up a factory to manufacture
electric locomotives on government land, with assured government
funds, and with an assured and guaranteed government order for 800
electric locomotives to be supplied and maintained over a period of
ten years. As already explained hereinabove, the eligibility
conditions in the 2010 Madhepura RFQ prevented all other international
manufacturers/ consortiums (apart from Siemens, Alstom and Bombardier)
from participating in this tender. The bid specifications for the 2010
RFQ were tailored to ensure that the competition would be open only to
Siemens, Bombardier, Alstom and General Electric. Several other
potential suppliers were kept out. While Siemens, Bombardier and
Alstom are reputed manufacturers and suppliers of electric
locomotives, the Government of India needs to explain why was the
electric locomotive factory tender opened up to General Electric and
why were other potential bidders including from Japan and China not
allowed to participate in the bid.



Along with its April 2, 2012 news-report, Outlook India also published
a letter written by Mr. Montek Singh Ahluwalia on August 9, 2011 to
Mr. Dinesh Trivedi, the then Minister for Railways. In this letter,
Mr. Montek Singh Ahluwalia encouraged Mr. Dinesh Trivedi to take up
for action the issues highlighted in the note attached to Mr.
Ahluwalia's letter. Item 6 in the attached note is titled "Railway
Production Units" and reads:



"6. Railway Production Units

It is well known that much of our existing rolling stock, both wagons
and locomotives, is outdated and needs to be modernised. The White
Paper also makes reference to this as far as wagons are concerned, but
the same is equally important for locomotives. This is especially so
given the increased importance of energy efficiency in a world which
faces challenges due to climate change.

For existing factories for production of rolling stock it is worth
delinking them from the Railways as a service provider, and spinning
them off into separate public sector units. Railway staff in the
existing production units can, if they wish, remain on the rolls of
the Railways until they retire, but new staff should be recruited by
the corporation as a PSU. Spinning of Railway production units into
separate corporations may be resisted because of tax implications but
it should be possible to agree with the Finance Ministry to a
tax-reimbursement arrangement for the next ten years.

As for new factories, these should be built outside the Railways
through strategic partnership with qualified parties who can bring
the right technology and can be given incentives to indigenise
production. The Railways have seen a great deal of robust investor
interest for production of state-of-the-art locomotives and also
passenger coaches. However, far too much time has been wasted. We need
to bring these initiatives to closure, in order to enhance public
confidence in our resolve to modernise the Railways".



Evident from this note authored by Mr Montek Singh Ahluwalia, is the
fact that the ELF and DLF Projects have been created at his instance
and were not even part of the Railway Ministry white paper.



Larger public interest issues



Accepting the premise that the Indian railway locomotive stock needs
to be modernised and upgraded, the ELF and DLF Projects as conceived
are clearly not the right approach.



The end result of the DLF and ELF Projects will be to hand over the
locomotive manufacturing industry in India to multinationals. Even
with indigenised production (which in any case will never be 100%
indigenised), the ELF and DLF Projects will at best create assembly
units for locomotives in the Government partnered JVs. The technology,
patents and profits will remain with the multinationals.



It is also pointed out that with more and more aggressive world trade
rules, the Government of India will not be able to insist on
indigenisation of manufacture.



Also, there is a larger public and national interest aspect at stake
of the future of the manufacturing sector in India. India has had
indigenous locomotive manufacturing capacity for at least the last
70-80 years. TELCO (now TATA Motors) was a leading locomotive
manufacturer after Independence, The government then thought it
necessary to nationalise locomotive manufacture and the DLW and ELW
units were established.



Locomotive manufacture is not rocket science. If the government is now
reversing its decision to nationalise the locomotive industry by again
opening up this sector to private firms, then why should Indian
industrial firms not be invited/ encouraged to get into this sector.



The consequence of the government's decision for the ELF and DLF
projects as presently conceived will be that in ten years time,
locomotive manufacture inIndia will be dominated by the two
multinational firms selected for ELF and DLF. Their only competitors
will be the existing public sector manufacturers like DLW and ELW,
which will have neither the incentives nor the resources nor the
management nor confirmed orders to compete with the multinational
manufacturers. Both DLW and ELW will slowly deteriorate.



These multinational manufacturers will then dominate the locomotive
manufacture industry in India.



It is also the obligation of the Indian state to promote Indian
industry. Does the Government of India want India to
de-industrialise? Do we want a country where all locomotive
manufacturing is carried on by foreign multinationals? India lacks and
has been trying to develop the manufacturing capability to manufacture
aircraft. Do we also want to lose indigenous capacity to build
locomotives?



19 July 2012

Writ Petition and CM 2770/ 2012 for stay of the impugned tenders
listed before Justice Rajiv Shakdher who adjourned the matter unheard
to 12 October 2012.

12 October 2012

Writ Petition and CM 2770/ 2012 for stay of the impugned tenders
listed before Justice Rajiv Shakdher who adjourned the matter unheard
to 12 April 2013.



Notice of the writ petition issued to respondents 13 to 17 (Siemens,
Alstom Projects India Limited, Bombardier Transportation India
Limited, EMD Locomotive Technologies and BHEL), however the order
passed was unclear.

8 November 2012

Petitioner moved CM 18324/ 2012 seeking clarification that notice of
the writ petition had been issued to respondents 13 to 17. This was
clarified.



(Respondents 13 to 17 (Siemens, Alstom Projects India Limited,
Bombardier Transportation India Limited, EMD Locomotive Technologies
and BHEL), have all been served in this matter and all (except BHEL)
have entered appearance through counsel.

19 November 2013

Petitioner moved CM 18642/ 2012 seeking interalia issue of notice of
the writ petition to the corporate officers of General Electric
(respondents 8. 9. 10 and 11), which direction was issued in court but
was unclear in the order signed by Justice Rajiv Shakdher.

26 November 2012

Petitioner moved CM No.18862/2012 seeking clarification that order
dated 19 November 2012 issued notice of the writ petition to
respondents 8.9, 10, and 11.



Justice Rajiv Shakdher again ambiguously stated in his order:
"According to me, no clarification is necessary."

26 November 2012

Justice Rajiv Shakdher passed an unsustainable and uncalled for order
directing the court registry not to list further applications filed by
the Petitioner.



The writ petition had been earlier fixed for hearing by Justice Rajiv
Shakdher for 12 April, 2013.



This meant that the writ petition would not have come up for hearing
before the court until 12 April, 2013 and the petitioner would have
been unable to move any application seeking interim relief in the
meantime.

27 November 2012

First attempt by Prime Minister Manomohan Singh, PMO and Mr Montek
Singh Ahluwalia to over-reach this court



Taking a clear advantage of the unsustainable order dated 26 November
2012 of Justice Rajiv Shakdher, the Prime Minister, Dr Manmohan Singh
and Mr Montek Singh Ahluwalia attempted to over-reach the court and
push through the impugned tenders by convening a meeting to review
progress on the tenders for the ELF and DLF Projects and by directing
that: "The bids for the Madhepura Project will be called by 31
December 2012 and the project will be awarded before the Railway
Budget. The IMG set up under the CCEA approval will consider and
approve any necessary changes to documents. Timelines for the Marhowra
Project will be announced by December 15."



This meeting at the PMO was attended by Prime Minister Manmohan singh,
Mr Montek Singh Ahluwalia, Mr C Rangarajan, Mr Pavan Bansal, Mr Surya
Prakash Reddy (MoS for railways), Mr Ranjan Chaudhary (MoS for
Railways), Mr Vinay Mittal (Chairman Railway Board), Mr Pulok
Chatterji (PMO, Mr B V R Subrahmanyam (PMO), Mr Krishan Kumar (PMO).



Were the participants at this meeting made aware of these writ
proceedings and the complaints and evidence produced on record in
these proceedings?

5 December 2012

A Division Bench of this Hon'ble Court passed the following order
dated December 5, 2012 listing this writ petition for hearing on
January 23, 2012.



"5 December 2012

CM 19197/ 2012

1. In view of the prayers made in the writ petition, we are of
the opinion that the writ petition has to be treated as one pertaining
to "Tenders" and as per the rules of this Court required to be listed
before a Division Bench.

2. The application stands disposed off directing the Registry
that the writ petition should henceforth be listed before the roster
bench, on January 23, 2013".

6 December 2012

Second attempt by Prime Minister Manomohan Singh, PMO and Mr Montek
Singh Ahluwalia to over-reach this court



In another attempt to over-reach the court, the PMO issued a Press
Release stating:



"Madhepura/Marhowra PPP Loco Factories:The bids for the Madhepura
Project will be called by 31 December 2012 and the project will be
awarded before the Railway Budget. The IMG set up under the CCEA
approval will consider and approve any necessary changes to documents.
Timelines for the Marhowra Project will be announced by December 15."

6 December 2012

Petitioner filed CM 19370/ 2012 pointing out that Mr Nanju Ganpathy/
AZB & partners had been appearing for Respondents 1, 6 and 7 (the
three General Electric respondents) since 9 May 2012 without
vakalatnamas.

7 December 2012

Vakalatnamas were filed by Mr Nanju Ganpathy/ AZB & Partners for the
three General Electric respondents but these were defective as they
did not disclose the source of authority of the signatory.

10 December 2012

CM 19370/ 2012 was listed before court when Mr Nanju Ganpathy lied to
the court that vakalatnamas had been filed earlier but were not on
record. It was also stated that fresh vakalatnamas had been filed on 7
December 2012. (These vakalatnamas are defective).

12 December 2012

CM 19501/ 2012 moved by petitioner for stay of the impugned tenders.



The order passed directed:

"As desired by learned counsel for respondent No.4, the application is
directed to be listed on December 19, 2012, by which date learned
counsel for respondent No.4 would obtain instructions and inform the
likely date by which financial bids are intended to be invited and
opened by the Indian Railways pertaining to the two tenders qua which
the writ petition relates i.e. the tenders pertaining to Marhowra and
Madhepura; being tenders Global RFQ No.2010/ME (PROJ)/4/MARHOWRA/RFA
and RFQ No.2010/ELECT. (DEV0 440/1(1))."

14 Dec 2012

CM 19683/ 2012 filed by Petitioner for declaration that the
vakalatnamas filed on behalf of General Electric respondents on 7
December 2012 were defective and invalid.

This application has not been heard.

17 Dec 2012

CM 19820/ 2012 filed placing on record additional facts in support of
CM 19501/ 2012 seeking stay of the 2010 tenders.

17 December 2012

Issue of PMO pressure on Railway Board



Railway Board chairman wrote to Principal Secretary of Prime Minister
conveying endeavour to meet the deadlines imposed by the Prime
Minister on 27 November 2012.

19 December 2012

C.M.No.19501/2012 for stay of the impugned tenders was listed before
court and the following order was passed:



"1. Learned ASG informs that the matter pertaining to finalization of
the two tenders referred to in the order dated December 12, 2012 needs
various procedural steps to be taken and that the first step would be
the approval by Empowerment Committee of Secretaries comprising
Chairman Railway Board, Financial Commissioner Railways, Member
Electrical Railway Board, Member Mechanical Railway Board, Secretary
Planning Commission, Secretary Department of Economic Affairs and
Secretary Department of Legal Affairs to the bid documents and accord
approval thereto, which step is likely to be completed by December 31,
2012. It is only thereafter that the financial bids would be invited
on or around March 31, 2013. Meaning thereby, that by January 16, 2013
i.e. the date fixed in the matter to consider issues which were noted
in the order dated December 10, 2012, the financial bids may not be
invited; far from the tender being finalized.



2. List the application on December 20, 2012."

20 December 2012

CM 19501/ 2012 for stay of the impugned tenders listed before court
but not heard.

21 December 2012

CM No.19501/2012 for stay of the impugned tenders and CM No.19820/2012
(providing additional facts in support of CM 19501/ 2012) listed
before court, but not heard.



Order passed directed as follows:



"1. Learned Additional Solicitor General of India states that reply
would be filed to the two applications positively by January 09, 2013.



2. Rejoinder, if any, desired to be filed by the petitioner may be
handed over to the Court but after advance copy is served to counsel
for respondent No.4 latest by January 15, 2013.



3. The two applications would be listed on the date fixed i.e. January
16, 2013."

14 Jan

2013

Reply filed on behalf of Railway Ministry to CM 19501/ 2012.

14 Jan 2013

CM 522/ 2013 filed seeking declaration that vakalatnamas filed on
behalf of General Electric respondents on 17 December 2012 are also
defective and invalid.

This application has not been taken up for consideration.

15 Jan 2013

Petitioner filed partial rejoinder to Railway reply to CM 19501/ 2012.

16 January 2013

CM No.19501/2012 for stay of the impugned tenders and CM No.19820/2012
(providing additional facts in support of CM 19501/ 2012) listed
before court but not heard because Bench stated that it could not
devote adequate time to hear the matter. Matter sent to Chief Justice
with recommendation to constitute a Special Bench.

Chief Justice rejected the possibility of a Special Bench as infeasible.

23 January 2013

CM No.19501/2012 for stay of the impugned tenders and CM No.19820/2012
(providing additional facts in support of CM 19501/ 2012) listed
before court but not heard because Bench released the matter.

24 January 2013

CM No.19501/2012 for stay of the impugned tenders and CM No.19820/2012
(providing additional facts in support of CM 19501/ 2012) listed
before court but not heard because Bench released the matter.

30 January 2013

CM No.19501/2012 for stay of the impugned tenders and CM No.19820/2012
(providing additional facts in support of CM 19501/ 2012) listed
before court but not heard because Bench released the matter.

1 February 2013

CM No.19501/2012 for stay of the impugned tenders and CM No.19820/2012
(providing additional facts in support of CM 19501/ 2012) listed
before court but not heard because Bench released the matter.

4 February 2013

Writ Petition, CM No.19501/2012 for stay of the impugned tenders, CM
No.19820/2012 (providing additional facts in support of CM 19501/
2012) and all other pending applications listed before Justice Gita
Mittal and Justice Midha. Matter adjourned to 16 May 2013 without
hearing because Bench stated it did not have time to hear the matter.

26-27 February, 2013

Petitioner-whistleblower a woman lawyer starts to sleep in her car at
night parking it on public streets because she has no place to stay
after her applications for protection, housing, medical treatment, and
financial assistance remain unheard.

28 Feb 2013

False, unauthorised and evasive affidavit filed purportedly on behalf
of CVC by Mr R V Sinha, who has not produced a vakalatnama on record.

8 March 2013

Issue of Planning Commission interference in Bid Process for ELF and DLF



As per Railway affidavit dated 15 May 2013, on directions of Prime
Minister Manmohan Singh, the PMO constituted Informal Group of
Ministers (IGOM) to resolve and forge consensus on issues relating to
ELF Project terms because of divergence of views between the Railway
Ministry and the Planning Commission.

18 March 2013

CM 3380/ 2013 moved by Petitioner for impleadment of Siemens AG and
for issue of notice to Siemens AG.



Directions given in court for notice of CM 3380/ 2013 to Siemens AG,
but signed order excluded this portion.

1 April, 2013

CM 3855/ 2013 moved by Petitioner for impleadment of Siemens AG and
for issue of notice to Siemens AG. Application adjourned without
hearing and without reasons to 18 April 2013. This application was
then adjourned to 16 May 2013 and later to 18 July 2013.

3 April 2013

Petitioner filed four additional affidavits in the writ petition.



One of these affidavits placed on record true copies of email
correspondence exchanged between the Petitioner and General Electric
in 2010, 2011 and 2012 after General Electric terminated the
Petitioner's employment in violation of its whistleblower protection
policies and whistleblower protection laws. These documents establish
that General Electric's alleged internal investigation was fraudulent
and intended to cover up the petitioner's whistleblower complaints.
These documents provide additional evidence in support of the
petitioner's complaints of corruption, forgery, bribery, fraud,
obstruction of justice and other illegal activities that General
Electric's employees engaged in, in connection with the impugned
Madhepura and Marhowra tenders and in connection with the 2008-2009
tender for the Marhowra Project and in connection with ongoing
shareholder lawsuits filed against General Electric Company in the New
York District Court, SDNY.



The second affidavit placed on record copies of emails sent by the
Petitioner to the Supreme Court, the Delhi High Court, the Police
Commissioner and to various other authorities between 1 April 2013 and
26 February, 2013 recording interalia how the petitioner has been
compelled to spend the night in her car since the end of February
2013.



The third affidavit placed on record copies of some emails sent/
received by the Petitioner during her employment with General Electric
in 2010. These documents are relevant for the present matter as they
establish the truth to counter the false attempt by General Electric
(acting through an unauthorised signatory and unauthorised counsel) to
tarnish the petitioner's reputation and work tenure at General
electric. The petitioner had more relevant emails in her possession
but some of these were removed from the petitioner's home in Jangpura
Extension on 30 May 2012 (before the petitioner had scanned them)
during the unlawful eviction carried out in the Petitioner's absence
and when all her belongings including these emails were removed with
police assistance and have till date not been returned to the
petitioner.



The fourth affidavit interalia placed on record important information
pertaining to the issue of Mr Vinod Sharma, which is repeated below in
this application.

3 April 2013

Unauthorised, false and perjurious Sur-rejoinder filed on behalf of
General Electric by AZB & Partners purporting to represent the General
Electric respondents without proper vakalatnamas.

3 April 2013

As per Railway affidavit dated 15 May 2013, Railway Ministry wrote to
PMO seeking to raise both ELF and DLF issues before the IGOM
constituted by the Prime Minister.

11 April 2013

Writ Petition listed before Registrar.



Counsel for respondent 14 (Bombardier Transportation India Limited)
and Counsel for respondent 16 (EMD Locomotive Technologies) sought
time to file counter affidavits.

22 April 2013

Issue of third and most outrageous attempt by the Government of
Indiato overreach the court



As per Railway affidavit dated 15 May 2013, Informal group of
Ministers (IGOM) meeting held – decision taken to cancel the 2010
Bidding Process for both ELF and DLF and to issue new RFQs for both
ELF and DLF



This IGOM was comprised of Mr P Chidambaram, Mr Montek Singh Ahluwalia
and Mr Pavan Bansal.

26 April 2013

Issue of third and most outrageous attempt by the Government of
Indiato overreach the court



As per Railway affidavit dated 15 May 2013, Railway Ministry submitted
note to Cabinet seeking approval for cancellation of 2010 tenders for
ELF and DLF, and seeking approval for initiation of new tenders for
both ELF and DLF by issuing news RFQs.



1 May 2013

Issue of third and most outrageous attempt by the Government of
Indiato overreach the court



As per Railway affidavit dated 15 May 2013, Cabinet meeting held where
proposal for cancellation of the impugned tenders approved with
direction that new RFQs for ELF and DLF be issued by 6 May 2013 and
new RFPs for ELF and DLF be issued by 6 July 2013.

6 May 2013

Issue of third and most outrageous attempt by the Government of
Indiato overreach the court



New RFQs for ELF and DLF issued by Ministry of Railways

15 May 2013

Issue of third and most outrageous attempt by the Government of
Indiato overreach the court



Affidavit of Mr Nihar Ranjan Dash disclosing these new developments
filed without serving a copy on the petitioner. This affidavit was
deliberately filed in court late on 15 May 2013 so that it would not
be available on the court record on 16 May 2013.

16 May 2013

Issue of third and most outrageous attempt by the Government of
Indiato overreach the court

Affidavit filed by Mr Nihar Ranjan Dash not on the court record. No
appearance for the Railway Ministry either by the ASG (Mr Rajiv Mehra)
or by the Railway Counsel (Mr R N Singh).



Court not informed of these new developments.



Writ petition adjourned unheard to 18 July 2013.



CM 6096/ 2013 moved by Petitioner seeking recusal by Justice Gita
Mittal and Justice Deepa Sharma adjourned to 18 July 2013.



Several unwarranted statements made in the order dated 16 May 2013 by
Justice Gita Mittal and several unwarranted directions issued.

22 May 2013

Writ petition again listed before court on 22 May 2013 along with CM
6417/ 2013. Once again there was no appearance by Counsel for the UOI
(PMO), the CVC or the Railway Ministry despite the fact that this new
application expressly seeks relief against the CVC and the Railway
Ministry and advance copies of this application were served on all
parties.

29 May 2013

Petitioner-whistleblower continuing to sleep in her car without
protection since 27 February 2013.



Delhi Police has failed to comply with the court's order dated 18
April, 2013 asking the Police Commissioner to take immediate steps to
adequately protect the petitioner's life and property.





Issue of Mr Vinod Sharma



17. The reply filed by Respondent No 4 to CM 19501/ 2012 is nothing
but a document cleverly crafted by government lawyers aimed at
concealing the true facts from this court and intended to cover up the
corruption, fraud, forgery, bribery and other illegal and undesirable
activities complained of by the petitioner which are the subject
matter of the present petition.



18. The most glaring example of this attempt to deceive this Hon'ble
Court is the response of respondent 4 on the issue of Mr Vinod Sharma,
who having earlier advised the Railway Ministry on the proposed diesel
locomotive factory at Marhowra, was in clear violation of the 2010
Marhowra RFQ terms advising General Electric on its 2010 bid for the
Marhowra Project. In order to expose this attempted deception by
respondent 4 in its reply dated January 14, 2012 to CM 19501/ 2012,
the petitioner describes below the elaborate and planned deception
that has obviously been masterminded by government counsel. That the
Assistant Solicitor General himself, Mr Rajiv Mehra is appearing for
the respondent 4 and has overseen the drafting of this perjurious and
false affidavit filed by respondent 4 through Mr Gopal Krishan Gupta
[executive director, mechanical engineering, railway board] and Mr
Nihar Ranjan Dash [executive director, electrical engineering
(development) railway board] is a matter of great regret.



19. The affidavit dated January 14, 2013 filed by respondent 4 states
at page 12 on the issue of Mr Vinod Sharma that: "A bare perusal of
the communication dated 07.01.2013 as conveyed by M/s. RITES evidently
discloses that Mr. Vinod Sharma was not part of the team nominated by
PWC for working on the advisory assignment for the setting up of the
DLF, Marhowra". It is submitted that this statement is unsubstantiated
and false and that the authors of the Railway affidavit know that this
statement is untrue and unsubstantiated and therefore to protect
themselves, the affidavit uses the words "evidently discloses". The
phrase "evidently discloses" is commonly used to distance oneself from
a statement of fact and to deny any personal responsibility for the
statement of fact being asserted. Both Mr G K Gupta and Mr N R Dash
therefore in their affidavit dated January 14, 2013 have denied
personal responsibility and ownership of the statement of fact – did
or did not Mr Vinod Sharma at any point act as an advisor or in fact
advise the Railway Ministry on the Marhowra Project.



20. Turning now to the source of this 'evident disclosure', the
petitioner submits that as elaborated hereinbelow this 'evident
disclosure' is based upon reference to irrelevant and incomplete
documents.



21. The Railway affidavit states that it wrote to RITES on 27
December 2012 seeking clarifications on this issue which is described
in the affidavit as an issue with respect to PWC. This letter sent by
Mr G K Gupta and addressed to the Chairman-cum-Managing Director,
RITES Ltd is at page 129 of the railway affidavit. This letter does
not even mention or describe the issue pertaining to Mr Vinod Sharma
and does not mention that the writ petition complains that Mr Vinod
Sharma and General Electric's dealings in 2010 constituted a corrupt
practice on account of Mr Vinod Sharma having previously advised the
Railway Ministry on the Marhowra Project. Instead this letter states:
"the petitioner has raised certain issues related to M/s
PricewaterhouseCoopers, who had been engaged by M/s RITES as
consultant for setting up of Diesel Locomotive Factory, Marhowra". The
next sentence of this letter is very revealing. Instead of providing a
copy of this writ petition to RITES with this letter dated December
27, 2012, Mr G K Gupta misleads RITES by lying that "The contents of
Writ Petition are posted on website of Delhi High Court". The letter
goes on to state that "You may kindly get the same examined and submit
your comments …". The letter also states: "Concerned officers may
discuss and seek any clarification on the matter with undersigned on
28.12.12." There is a Railway Ministry stamp on this letter dated
December 31, 2012. There is no stamp acknowledging receipt of this
letter at RITES.



22. The letter dated December 27, 2012 deliberately omitted to
mention/ describe the nature of the complaint concerning Mr Vinod
Sharma. A blatant lie was resorted to avoid attaching a copy of the
writ petition with this letter. Instead of sending a proper and
complete query in writing to RITES, the letter did not set out the
query and was left deliberately opaque. It appears that the real
discussions between officials of respondents 4 and RITES to cover up
the Vinod Sharma issue and to create misleading documentation with
intent to mislead this court took place in private meetings and over
the phone. Note that the letter bears a stamp (for dispatch?) dated
December 31, 2012 but the letter mentions personal meetings to discuss
the issue on December 28, 2012.



23. Turning to the letter dated January 7, 2013 allegedly received
from RITES and attached at page 130 of the affidavit of respondent 4
dated January 14, 2012, it is pointed out that this letter has not
been issued by the Chairman-cum-Managing Director of RITES. This
letter appears to have been issued under the name of one Mr Anil Vij
with the words GGM/ RW&IE printed underneath. The letter does not bear
a full signature and instead has merely been initialled and even these
initials are illegible.



24. Before examining in detail the contents of the RITES letter dated
January 7, 2013, some incomplete facts and dates that emerge from the
affidavit of the Railways and the RITES letter are set out below:

(i) 11-10-2006 – Railway Board approved appointment of
RITES and approved engagement of a consultancy firm by RITES. [The
RITES letter describes this as a Railway Board letter communicating to
RITES "that Railway Board has approved appointment of RITES for
providing consultancy services to the Ministry of Railways to engage
consultancy firm for advisory on setting up new manufacturing units
through International Competitive Bidding under Single Stage Process
based on the RFP framed by PPP cell.".

(ii) 2-3-2007 – RITES engaged PWC as consultant on
behalf of the Railway Ministry by issuing letter of award of contract
to PWC.

(iii) 6-3-2007 – RITES signed an agreement with PWC on
behalf of the Railway Ministry.



25. The petitioner now turns to the RITES letter dated January 7,
2013 filed with the Railway affidavit dated January 14, 2013 and draws
attention to the following:

(i) The RITES letter states that the railway board
letter dated 11-10-2006; the letter of award dated 2-3-2007 issued to
PWC; and the agreement signed with PWC on 6-3-2007 are annexed to the
RITES letter as Annexure 1, Annexure 2 and Annexure 3 respectively.
However, the copy of the RITES letter placed on record does not
contain any of these three documents as annexures.

(ii) In the opening paragraph, the RITES letter refers
to "issues relating to M/s PricewaterhouseCoopers raised by the
petitioner" and without elaborating on these and without describing
these issues, the RITES letter states that these have been examined.

(iii) The RITES letter in paragraph (III) state that: "As
regards the issue of Mr Vinod Sharma raised by the petitioner, it is
brought out that the relevant records have been checked and as per the
Technical Proposal – Part II of M/s PwC of December, 2006, the Team
Composition of PwC for the consultancy assignment mentioned in Para I
above, was as under:-". The letter then includes a table with 9 names
for Technical/ Managerial Staff and a further 7 names as Support
Staff. Mr Vinod Sharma's name is not included in this table.

(iv) The next statement in the RITES letter is: "Further,
at no stage during the currency of the assignment, M/s PwC informed
RITES. Ministry of Railways about any change in the team composition.

(v) The last relevant statement in the RITES letter
reads: "Thus from the information furnished by PwC, it is seen that
Mr. Vinod Sharma was not a part of the PwC team that worked on the
consultancy assignment."



26. A copy of a Railway Ministry document downloaded by the
petitioner from the website of the Railway Ministry has been annexed
to CM 19501/ 2012 as Annexure P-1. This document titled
"Annexture_1_4.pdf" and downloaded from
http://indianrailways.gov.in/railwayboard/uploads/directorate/O&M/Annexture_1_4.pdf.
contains the following statement on the role of PwC as the consultant
to the Indian Railways for the Marhowra diesel locomotive factory
tender:

"Ministry of Railways have appointed a Consultant M/s Price Waterhouse
Coopers for advisory on setting up of new unit.

Final report for the first part, which is on strategy, has since been
received and the consultant has been given a go-ahead for the second
part of the report i.e. bid process management.

A final decision on Joint Venture will be taken based on the response
in the bidding process.

Status on selection of developer for setting up new Manufacturing
Units in Joint Venture:

Draft Agreements (Procurement contract, maintenance contract and
shareholders' agreement) approved by the Board(MM).

Legally vetted copy of final Land Lease agreement incorporating views
of AM/Adviser's Committee has been submitted by the Consultant (PWC)
and put up to Board(ME) for approval.

Legally vetted copy of Procurement Contract has been received from the
Consultant. Other draft agreements (Shareholders' agreement and
Maintenance Contract) are under legal vetting with the Consultlant.

Procurement Specialist for validating procurement contract hired by
the Consultlant, has started work. Work likely to be completed in a
week's time.

After validation of Procurement Contract and legal vetting of draft
agreements, final bid document (RFP) will be put up for approval by
Board(MM, FC & CRB) and MR. Likely date of submission is 30-04-2008.

A fresh RFQ based on approval by Planning Commission will be issued shortly.

Further bid process will depnd on the reply to the reference made to
the Ministry of Finance.

Bid process is likely to be completed by August, 2008.

The project is expected to be completed in about 2 to 2½ years after
CCEA's approval is obtained for going ahead with bidding process for
Joint – Venture."





27. The petitioner submits that RITES letter dated January 7, 2013
does not confirm or state that Mr Vinod Sharma has never acted as an
advisor to the Railway Ministry/ RITES for the Marhowra Project.
Further, the affidavit filed by respondent 4 on January 14, 2013 also
does not state that Mr Vinod Sharma has never acted as an advisor to
the Railway Ministry/ RITES for the Marhowra Project.



28. The RITES letter dated January 7, 2013 fails to disclose full and
complete facts about RITES dealings with PwC and fails to provide
direct and unambiguous evidence establishing that Mr Vinod Sharma was
never an advisor to the Indian railways for the Marhowra Project.
Instead, the RITES letter refers to selective, irrelevant and
incomplete documentation with intent to mislead and confuse and from
flawed and incomplete disclosure of information and records, it seeks
to mislead this court that Mr Vinod Sharma's dealings with General
Electric were not a corrupt practice under the 2010 Marhowra RFQ. It
is pointed out that the RITES letter only states that: "Mr Vinod
Sharma was not a part of the PwC team that worked on the consultancy
assignment". This statement is unsubstantiated. The documents that
this statement claims to be based upon are not produced, and appear to
be irrelevant while documents/ records that would be relevant are
suppressed and not referred to.



29. The RITES letter merely states that the Technical Proposal Part
II of PwC of December 2006 for the consulting assignment mentioned in
para 1 of the letter contained a list of names which does not include
the name of Mr Vinod Sharma. This document has not been produced. It
appears to have no connection to the engagement of PwC for formulation
and review of Bid Documents for the 2008-2009 tender for the DLF
Project. The intent to misinform and mislead the court is clear.



30. It is submitted that a perusal of the RITES letter in the light
of the document annexed hereto as Annexure P -1, shows that PwC
performed more than one consultancy assignment for RITES/ Railway
Ministry in connection with different Projects and PwC has been
engaged at different stages.



31. The assignment refered to in para 1 of RITES letter concerns
advisory on new manufacturing units under single stage bidding. The
engagement of PwC to formulate bid strategy and Bid documents and to
review the bids received is clearly a different and subsequent
assignment.



32. The railway document quoted from hereinabove was created sometime
in 2008. This document deals only with the Marhowra Project and this
document contains the following statement: "Ministry of Railways have
appointed a Consultant M/s Price Waterhouse Coopers for advisory on
setting up of new unit." Therefore it appears that the Railway
Ministry appointed PwC for advice on setting up the Marhowra Project.
This appears to be an engagement subsequent to the engagement of PwC
mentioned in the RITES letter dated January 7, 2013.



33. It is submitted that the statement in the Railway affidavit dated
January 14, 2013 on the complaint regarding Mr Vinod Sharma is false,
unsubstantiated and unacceptable. The RITES letter stated : "Thus from
the information furnished by PwC, it is seen that Mr. Vinod Sharma was
not a part of the PwC team that worked on the consultancy assignment."
This statement is false, unsubstantiated, unsupported and not borne
out by the information disclosed. The consultancy assignment referred
to is deliberately not produced. It appears that there was more than
one consultancy assignment. It appears there was more than one PwC
team working with RITES/ the Railway Ministry from working on initial
feasibility studies for several manufacturing units and proceeding to
consultancy assignments/ phases for specific units/ projects/ project
and bid stages. This statement by RITES (who was never provided with a
copy of the writ petition nor told about the actual complaint
regarding Vinod Sharma) is padded and misrepresented in the railway
affidavit as: "A bare perusal of the communication dated 07.01.2013 as
conveyed by M/s. RITES evidently discloses that Mr. Vinod Sharma was
not part of the team nominated by PWC for working on the advisory
assignment for the setting up of the DLF, Marhowra". It is submitted
that the RITES letter does not even mention the word "Marhowra" or the
words "diesel locomotive factory' or the abbreviation DLF.



34. RITES was not provided with a copy of this writ petition. RITES
was not told that the writ petition complained that Mr Vinod Sharma
had engaged in a corrupt practice by advising General Electric on its
2010 bids for the Marhowra and Madhepura locomotive factories after he
had earlier acted as advisor to the Railway Ministry for the Marhowra
locomotive factory project during his association/ employment with PWC
after retirement. RITES was not shown the clause in the 2010 Marhowra
RFQ that defined such conduct as a corrupt practice. Therefore RITES
could not have known what would be relevant records that needed to be
checked and whether RITES needed to ascertain facts directly from PWC.



35. It is submitted that while the letter written to RITES is
addressed to the Chairman-cum-Managing Director, the response is from
someone who appears to be a General Manager. It is submitted the
person in whose name the RITES letter has been issued would not be the
appropriate person to respond to a query of this nature. Normally, a
legal officer would handle queries that pertain to legal or court
matters.



36. The Railway Ministry document quoted from hereinabove shows that
the list of names from PwC's technical proposal part II dated December
2006 set out in the RITES letter dated January 7, 2013 is irrelevant.
This Railway Ministrt document from 2008 states that: "Final report
for the first part, which is on strategy, has since been received and
the consultant has been given a go-ahead for the second part of the
report i.e. bid process management." It also states that: "Procurement
Specialist for validating procurement contract hired by the
Consultlant, has started work. Work likely to be completed in a week's
time." Therefore the procurement specialist for the Marhowra Project
was hired by PWC only in 2008.



37. That an irrelevant and wrong list of names has been reproduced in
the RITES letter dated January 7, 2013 with intent to mislead the
court and that this list does not establish that Mr Vinod Sharma did
not advise the Railway Ministry/ RITES for the Marhowra project is
borne out by the following:

(i) The source of this list has not been produced.
This court cannot know what this list signifies unless the document it
was attached to is placed before court.

(ii) This list is from a proposal made by PWC and not
from the actual contract signed with PWC. The contract with PWC needs
to be placed on record so that this court can see what the contract
covered, whether this was the relevant contract, and what was the team
identified in the contract. Prima facie it appears that the PWC
contract referred to in RITES letter dated January 7, 2012 is not the
relevant contract with PWC.

(iii) The list is for a proposal to carry out initial
feasibility studies into multiple manufacturing units at the
conception stage. Therefore the list included separate technology
experts for passenger coaches, wheels, diesel locomotives and electric
locomotives. These persons would not be required for a advisory
consultancy that drafted and reviewed bid documents for the Marhowra
Project, limited to diesel locomotives. Instead the composition of the
team that advised Railways/ RITES on drafting and reviewing bid
documents for the Marhowra project and which helped Railways/ RITES
evaluate the technical and financial bids for the Marhowra Project in
2008-2009 would necessarily be different from the proposed team set
out in paragraph III of the RITES letter.



37. The Railway affidavit states that:



"Further, RITES have intimated in the said letter that Clause 4.8.2 of
the Request for Proposal issued by the RITES to PWC for their
engagement on the project, reads as under:-



"If it is necessary to replace any person of Consultant, the latter
shall immediately arrange for replacement by a person of equivalent
competence. This shall however be done with the approval of MINISTRY
OF RAILWAYS (MoR)"



Therefore, in case of any change / replacement in the team composition
working on the advisory on setting up new manufacturing units through
International Competitive Bidding under Single State Bidding Process,
PWC was required to take the approval of the Ministry of Railways.



It may be noted that neither RITES, nor the Ministry of Railways
received any communication/request for approval of any replacement of
any person in the team composition working on the advisory on setting
up new manufacturing units through International Competitive Bidding
under Single State Bidding Process."



38. It is submitted that the above statement in the Railway affidavit
is false because the RITES letter dated January 7, 2013 attached to
the affidavit does not contain any statement about "Clause 4.8.2 of
the Request for Proposal issued by the RITES to PWC" and in fact does
not even refer to any such clause.



39. The attempt to deceive this Hon'ble Court by the Railway Ministry
through its affidavit dated January 14, 2013 is clear. The statements
made in RITES letter dated January 7, 2013 and the Railway Ministry
affidavit (on page 12) are in respect of the appointment of RITES "for
providing consultancy services to the Ministry of Railways to engage
consultancy firm for advisory on setting up new manufacturing units
through International Competitive Bidding under Single Stage Process
based on the RFP framed by PPP cell.". Mr Vinod Sharma advised the
Railway Ministry for the Marhowra Project and for the 2008-2009 tender
for the Marhowra Project. The 2008-2009 tender for the Marhowra
Project was not a single stage tender process. The Railway Ministry
did not pursue single stage bid processes at any time for the Marhowra
diesel locomotive factory or for the Madhepura electric locomotive
factory. It is therefore submitted that in an attempt to deceive and
mislead this Court, the Railway Ministry has used RITES officials to
write the January 7, 2013 letter referring to irrelevant documents
instead of relevant documents and is now attempting to rely upon this
misleading letter to mislead this court through the affidavit dated
January 14, 2013.



40. It is submitted that for the reasons set out hereinabove, the
statement in the Railway Ministry affidavit (dated January 14, 2013)
on page 12 that "A true copy of the letter issued by RITES bearing
No.2012/RITES/RW&IE/DLF/Marhowra dated 07.01.2013 detailing the list
of persons working in the PriceWaterhouse Coopers team, as
communicated to the answering Respondent is annexed" is also false,
misleading and intended to deceive the court.



41. It is clear that the engagement of PWC by the Railway Ministry
for the Marhowra Project referred to in the Railway document quoted
from hereinabove is not the same engagement of PWC that is referred to
in the RITES letter dated January 7, 2013. The RITES letter relates
to the appointment of RITES "for providing consultancy services to the
Ministry of Railways to engage consultancy firm for advisory on
setting up new manufacturing units through International Competitive
Bidding under Single Stage Process based on the RFP framed by PPP
cell." The engagement of PWC referred to in the Railway Ministry
document reproduced hereinabove is in connection with a two stage bid
process with an RFQ and an RFP stage.



42. For the reasons set out hereinabove, the statements made by
respondent 4 in its affidavit dated January 14, 2013 in paragraphs 17,
18, 20, and 32 on the issue of Mr Vinod Sharma are false and
incorrect. These statements and the misleading record produced and
sought to be created (in the case of the RITES letter dated January 7,
2013) by the Railway Ministry are clearly the result of a planned
conspiracy under advice of lawyers, by Railway Ministry officials to
deceive and mislead this court with intent to cover up the corrupt
nature of the dealings between Vinod Sharma and General Electric in
2010. These corrupt dealings render General Electric liable for
disqualification and blacklisting under both the 2010 Madhepura and
Marhowra RFQs. The Railway Ministry acting in collusion with/ under
pressure from the PMO and the Planning Commission has filed false and
perjurious affidavits to cover up General Electric corruption and to
hand over the contract for the Marhowra Project to General Electric in
violation of law, its own contract terms and government of India
guidelines.



43. The failure of the Railway Ministry to unambiguously affirm on
affidavit that Mr Vinod Sharma has never acted as advisor to the
railway ministry for the Marhowra Project shows that the petitioner's
complaint is correct and General Electric's dealings with Vinod Sharma
in 2010 constituted a corrupt practice under the 2010 Marhowra RFQ.



44. The "Sur-Rejoinder Affidavit on behalf of Respondent Nos. 1, 6
and 7" dated 23 March 2013, states on internal page 62:



" … the Answering Respondents state that GE India did in fact enter
into a written agreement to govern its relationship with Mr Sharma's
company, Essvee Consultants, effective August 11, 2009. This document,
which did undergo legal review and does contain stringent compliance
representations and warranties in stark contrast to the Petitioner's
baseless allegations to the contrary, is not annexed hereto because of
the confidential and proprietary nature of the agreement. The
Answering Respondents will submit the agreement under sealed cover if
and when directed by this Hon'ble court".



45. The Mr Sharma in question is Mr Vinod Sharma, a retired Railway
Ministry official, who after retirement worked with
PricewaterhouseCoopers as a consultant and advised the Railway
Ministry on the Project for the proposed diesel locomotive factory at
Marhowra and on the 2008-2009 Bidding Process (tender) for this
Project.



46. GE Global Sourcing India Private Limited had participated in the
2008-2009 Bidding Process for this Project but its Bid was not
accepted on account of it being found to be non-responsive. [In its
affidavit-in-reply filed to CM 19501/ 2012, the Railway Ministry has
stated in connection with the 2008-2009 Bidding Process for this
Project that: "The sole bidder who submitted the bid was M/s GE Global
Sourcing India Pvt. Ltd i.e. the Respondent No. 7. … After due
scrutiny of the bid documents, the bid was discharged as the bid was
found to be non-responsive to the bid conditions".]



47. Mr Vinod Sharma's dealings with General Electric in 2010 in
connection with the 2010 Bidding Process for the Project for the
proposed diesel locomotive factory at Marhowra constituted a corrupt
practice as defined in Clause 4.1.3 (a) (ii) of the 2010 RFQ.



48. The alleged affidavit sworn on 23 March 2013 by Mr K R
Radhakrishnan states that GE India entered into a written contact with
Mr Vinod Sharma's company called "Essvee Consultants" and that this
contract came into effect from 11 August 2009. The petitioner has
searched the company records maintained by the Ministry for Corporate
Affairs and there exist no records for a company with the words
"Essvee Consultants" in its name. There is no incorporated company in
existence in India which begins its name with "Essvee Consultants". It
also appears as if the "Essvee" stands for Mr Vinod Sharma's initials
in reverse order. An internet search shows that there is a website
with the domain name http://www.essveeconsultants.com/. The "company
profile" on this website reads:



"Established in 2009, *Essvee Consultants* is a trusted placement
agency providing total recuritment solutions for diverse industries
having its offices in Ajmer (Rajasthan) and Faridabad (Haryana). We
are engaged in providing manpower solutions in India as well as
abroad. The company has been established with the sole objective of
dedicatedly serving the Human Resource Sector with quality service.
The company is providing consultation and value added HR services to
Corporate and other small Business Houses. Our prime focus is on
offering HR Services that exactly match the requirements of our
esteemed clients".



The "management team" and "contact" pages on this website list the
following three names: Sandeep Dutt Sharma, Rajesh Sharma and Rahul
Sharma. All three names share the surname "Sharma" with Mr Vinod
Sharma. It is pointed out that this Essvee Consultants claims to have
been established in 2009.



49. In his alleged affidavit-in-reply verified on 23 March 2013, Mr K R

Radhakrishnan makes the following statement:



"The Answering Respondents are unaware of the percentage of text from
the 2010 diesel tender documents that is similar to the earlier
project documents. Further, the Answering Respondents are unaware of
what role, if any, Mr. Sharma or PwC served in reviewing documents
associated with the 2008 diesel locomotive tender".



50. A clause identical to Clause 4.1.3 (a) (ii) of the 2010 Diesel
RFQ was present in the 2008 Diesel RFQ. Since a clause of this nature
is usually included in all RFQs issued by the Government of India, why
and how did General Electric not know or not enquire into the role of
Mr Vinod Sharma in the 2008-2009 Bidding Process for the Marhowra
Project? This statement is even more unbelievable given that Mr K R
Radhakrishnan also states that the contract signed with Mr Vinod
Sharma's company in August 2009 was subject to a full legal review.
Did General Electric not engage in due-diligence with respect to Mr
Vinod Sharma's prior dealings with the Marhowra Project? This again
establishes that General Electric is still attempting to cover up its
corrupt dealings with Mr Vinod Sharma.



51. The petitioner was told by Mr Raian Karanjawala in July/ August
2011 that Mr Vinod Sharma might be related to Mr Sunand Sharma who is
at present the country president for Alstom India and who has in his
career worked for General Electric earlier. Mr Raian Karanjawala had
asked the petitioner if Vinod Sharma was Sunand Sharma's brother. Mr
Raian Karanjawala knows Mr Sunand Sharma personally and as a client.



52. Both GE and Alstom's applications for the 2010 Marhowra and
Madhepura tenders (respectively) were similar in that these involve
consortia with BHEL. The Petitioner was told by Mr Pratyush Kumar
(from General Electric) that a consortium bid along-with BHEL by GE,
would assure it of winning the contract. This connection between Mr
Vinod Sharma and Mr Sunand Sharma raises the possibility of
cartelization between GE, BHEL and Alstom in connection with the
Madhepura and Marhowra tenders.





Issue of General Electric email sent to Railway Ministry official's
Gmail account on 20 May 2011



53. This email sent by Mr Ramesh Mathur to Mr Ved Mani Tiwari on May
20, 2011 has been produced by the Petitioner with her affidavit dated
July 9, 2012. It is also part of Annexure P-7 at page 215 to the
present Writ Petition. It reads:



"Dear Sir,

As desired by you, a summary of the Railway Locomotives supplied two
years prior to the application due date is enclosed."



The attachment to this email was an excel file titled "IR
AnnexII_I.xls. This email was forwarded to the petitioner on May 20,
2010 at 10:47 am (it was also sent to Mr. Pratyush Kumar, Mr. Ashfaq
Nainar, Mr. Gaurav Negi, and Ms. Praveena Yagnambhat) by Mr. Ramesh
Mathur with no explanation.



54. Mr. Ramesh Mathur's email to Mr. Ved Mani Tiwari was sent without
the petitioner's knowledge and without any consultation with her. The
petitioner is also not personally aware of why this email was sent or
of any prior or subsequent communication between General Electric
executives and Mr. Ved Mani Tiwari or the Railway Ministry on this
issue.



55. Clause 2.2.2 of the 2010 Madhepura RFQ sets out the conditions
for eligibility for pre-qualification and short-listing. 2.2.2 (A)
lays down the conditions to be met to establish Technical Capacity.
The first proviso to clause 2.2.2 (A) reads: "Provided that at least
one third of the Threshold Technical Capacity shall be from Eligible
Projects which were supplied at least 2 (two) years prior to the
Application Due Date."



56. Therefore, at least 1/3rd of the eligibility threshold technical
capacity is required to be met by locomotive supplies made two years
prior to the application due date. On May 20, 2010, Mr. Ramesh Mathur
sent Mr. Ved Mani Tiwari a summary of locomotive supplies made by
General Electric two years prior to the application due date in an
excel chart titled "IR Annex II_I.xls. The above email sent by Mr.
Ramesh Mathur establishes that in the technical bid submitted on May
17, 2010 for the Madhepura Electric Locomotive factory tender, General
Electric did not provide adequate information or information in the
required format to satisfy the tendering Authority that the condition
specified in the first proviso to clause 2.2.2 (A) had been met by GE.
This information was belatedly sent by Mr. Ramesh Mathur to Mr. Ved
Mani Tiwari on the latter's personal Gmail account (and not on his
official email address - deed@rb.railnet.gov.in) on May 20, 2010,
three days after the technical bids had been opened on May 17, 2010.
That General Electric found it necessary to supplement its technical
bid for the Madhepura RFQ on May 20, 2010 suggests that without the
additional information/ document/ statement provided by Mr. Ramesh
Mathur to Mr. Ved Mani Tiwari on May 20, 2010, General Electric's
technical bid as submitted on May 17, 2010 was non-responsive and
incomplete.



57. Clause 2.19 of the 2010 Madhepura RFQ prescribes the tests for
responsiveness. According to Clause 2.19.1, to be considered
"responsive", an application must be in the format prescribed by
Appendix I; must contain all required information and documents,
complete in all respects; and must contain this information in the
specified formats. Clause 2.19.1 provides that the Authority will
first determine whether an application is "responsive" before
evaluating it for pre-qualification. Clause 2.19.2 provides that the
Authority reserves the right to reject a non-responsive application.



58. Clause 2.16.1 of the 2010 Madhepura RFQ provides that: "No
Application shall be modified, substituted or withdrawn by the
Applicant or on after the Application Due Date". Clause 2.16.2
provides that "The modification, substitution or withdrawal notice
shall be prepared, sealed, marked, and delivered in accordance with
Clause 2.13, with the envelopes being additionally marked
"MODIFICATION", "SUBSTITUTION" or "WITHDRAWAL", as appropriate. Clause
2.16.3 provides that: "Any alteration/ modification in the Application
or additional information supplied subsequent to the Application Due
Date, unless the same has been expressly sought for by the Authority,
shall be disregarded."



59. Clause 2.20.1 of the 2010 Madhepura RFQ provides that: "To
facilitate evaluation of Applications, the Authority may, at its sole
discretion, seek clarifications from any Applicant regarding its
Application. Such clarification(s) shall be provided within the time
specified by the Authority for this purpose. Any request for
clarification(s) and all clarification(s) in response thereto shall be
in writing".



60. Clause 2.24 of the 2010 Madhepura RFQ provides that: "Save and
except as provided in this RFQ, the Authority shall not entertain any
correspondence with any Applicant in relation to the acceptance or
rejection of any Application."



61. According to Clause 2.16.1 of the 2010 Madhepura RFQ, General
Electric was only permitted to modify its application until the due
date. After the due date, General Electric could not have modified its
application or provided additional information unless this was
expressly sought for by the Authority in writing under Clause 2.16.3
or Clause 2.20.1. Under Clause 2.20.1, any request by the authority
for clarification or additional information/ documents had to be in
writing. The Railways Ministry (the tendering Authority) did not make
any written request to General Electric asking it to provide
additional/ missing information or documentation. The information sent
by Mr. Ramesh Mathur on behalf of General Electric on May 20, 2010 was
therefore not sent in accordance with the rules prescribed in the RFQ.
This email was not in response to a formal written request from the
Railways Ministry asking General Electric to provide this additional
information. It was not sent in the format prescribed by Clause
2.16.2. It was not addressed to the appropriate officer designated in
the RFQ as authorized to receive the bids and all queries,
clarifications etc. Mr. Ved Mani Tiwari was not the designated officer
authorized to receive bids, information or queries under the RFQ.
Clause 2.13.3 of the RFQ named Mr. Sudheer Kumar, Executive Director,
Electrical Engineering (Development), Ministry of Railways (Railway
Board) as the officer designated to receive the bid documents and all
queries/ information. Contact details for Mr. Sudheer Kumar including
his email contact (edeed@rb.railnet.gov.in) were provided in Clause
2.13.3.



62. Mr. Ramesh Mathur's email dated May 20, 2011 sent to Mr Ved Mani
Tiwari violates Clause 2.20.1 and Clause 2.24 of the 2010 Madhepura
RFQ. Mr Ramesh Mathur's email dated May 20, 2011 establishes that
there was informal, corrupt and off-the-record communication between
Railway Ministry officials (including Mr. Ved Mani Tiwari) and General
Electric executives (Mr. Pratyush Kumar and Mr. Ramesh Mathur). Such
informal and off-the-record communication also took place after May
17, 2010 pursuant to which Mr. Ramesh Mathur (from General Electric)
sent this email on May 20, 2010 to Mr Ved Mani Tiwari. The information
supplied by Mr. Ramesh Mathur in this email was taken into account by
the Railways Ministry in its decision to prequalify General Electric
for this tender. This email constitutes evidence of the corrupt and
cozy relationship between Mr. Ved Mani Tiwari (a Railway Ministry
official acting alone or under instructions from his superior
officers) and Mr. Pratyush Kumar and Mr. Ramesh Mathur from General
Electric. Mr. Ved Mani Tiwari went out of his way to help General
Electric prequalify for the 2010 electric locomotive tender. Mr Ved
Mani Tiwari in collusion with the General Electric executives involved
(Mr Pratyush Kumar, Mr Ramesh Mathur and Mr Ashfaq Nainar) acted
corruptly and violated the conditions laid down in the RFQ. There will
be additional evidence on this corrupt interaction between Mr. Ved
Mani Tiwari, Mr. Pratyush Kumar and Mr. Ramesh Mathur. There will be
evidence about how Mr. Ved Mani Tiwari used and what he did with the
excel document supplied on May 20, 2010 by Mr. Ramesh Mathur of
General Electric.



63. Clause 2.16.3 of the 2010 Madhepura RFQ states that any
information supplied subsequent to the application date shall be
disregarded unless it was expressly sought for by the Authority. The
Indian Railways could not therefore have relied upon the information
and documentation provided by Mr. Ramesh Mathur (General Electric) in
his email dated May 20, 2010 to support its decisions treat General
Electric's bid as responsive, and shortlist it for this tender.



64. As the decision of the Railway Ministry to treat General
Electric's bid for the 2010 Madhepura as responsive and to shortlist
it was based upon "wrongful" consideration of the additional
information supplied by General Electric after the application due
date, and because this information was supplied in violation of the
RFQ terms and as part of corrupt contact and collusion between Railway
Ministry officials and General Electric executives, this decision was
bad in law and was liable to be set aside/ quashed.



65. Mr Ramesh Mathur's email sent to Mr Ved Mani Tiwari's gmail
address also amounts to an "undesirable practice" under Clause 4.3 (d)
of the 2010 Madhepura RFQ which reads:



""undesirable practice" means (i) establishing contact with any person
connected with or employed or engaged by the Authority with the
objective of canvassing, lobbying or in any manner influencing or
attempting to influence the Bidding Process; or (ii) having a Conflict
of Interest".



66. The legal consequences that would follow on account of Mr Ramesh
Mathur's email dated May 20, 2010 to Mr Ved Mani Tiwari are:



i.
The additional information provided by General Electric to the Railway
Ministry on May 20, 2010 through Mr. Ramesh Mathur was liable to be
disregarded;

ii.
The decision to prequalify General Electric for the 2010 electric
locomotive tender was liable to be reversed/ set aside;

iii.
Mr. Ved Mani Tiwari (Railway Ministry), and Mr. Pratyush Kumar and Mr.
Ramesh Mathur (General Electric) are liable to be investigated for
corruption and punished in accordance with law;

iv.
General Electric Company and its two Indian subsidiaries (GE India
Industrial Private Limited and GE Global Sourcing India Private
Limited) are liable to be blacklisted for corrupt and undesirable
practices in accordance with law and the 2010 Madhepura RFQ.





Issue of General Electric lobbying Railway Ministry officials using
McKinsey consultants



67. The petitioner has complained about illegal and prohibited
lobbying of Railway Ministry officials by General Electric with the
help of McKinsey consultants. Paragraph 23 of Civil Writ Petition 1280
of 2012 reads:



"The Petitioner states that towards the end of May 2010 and the first
two weeks of June 2010, GE engaged a team of McKinsey consultants who
were working out of GE's office in New Delhi. These consultants and GE
executives had extensive meetings with Indian Railways officials
during this time. GE used these consultants to lobby for changes to
the bidding documents for the Diesel and Electric Locomotive Tenders
of the Indian Railways. Such contact with Indian Railways officials
and lobbying was expressly prohibited under the Diesel and Electric
Locomotive tender documents and amounted to a corrupt practice. GE
executives from GE Transportation in Erie, United States including Mr.
Lorenzo Simonelli and Ms. Tara Plimpton as well as Mr. John Flannery,
Respondent No. 9 were aware of these meetings between the McKinsey
consultants and the Indian Railways officials. They were regularly
briefed on conference calls by the McKinsey team about this lobbying.
The Petitioner learnt about the meetings between the McKinsey
Consultants and the Railways officials after the fact, when she was
asked to prepare a non-disclosure agreement to be executed between
McKinsey and GE after the McKinsey team had already completed their
assignment."



68. The petitioner reproduces below some emails that were exchanged
between her and GE lawyers and executives including Ms. Tara Plimpton
(then General Counsel, GE Transportation) in early June, 2010. (The
email trail shows that Ms. Tara Plimpton mistakenly sent her response
to my Gmail address instead of the GE email address I was using
(seema.sapra@ge.com). Copies of these emails dated June 1, June 2,
June 3 and June 4, 2010 have also been filed with the petitioner's
affidavit dated July 9, 2012.



"---------- Forwarded message ----------

From: Thomas, Peter G (GE Infra, Transportation) <peter.g.thomas@ge.com>

Date: Fri, Jun 4, 2010 at 6:35 PM

Subject: Re: NDA with McKinsey

To: "Plimpton, Tara (GE Transportation, US)" <tara.plimpton@ge.com>,
"BeGole, Brett (GE Transportation)" <brett.begole@ge.com>

Cc: seema.sapra@googlemail.com





Tara...I haven't been involved in the india engagement. I thought that
they were working directly with Flannery/Prat.



Brett...do you know?

--------------------------

Sent from my BlackBerry Wireless Handheld





----- Original Message -----

From: Plimpton, Tara (GE Transportation, US)

To: Thomas, Peter G (GE Transportation)

Cc: Seema Sapra <seema.sapra@googlemail.com>

Sent: Fri Jun 04 08:18:27 2010

Subject: FW: NDA with McKinsey



Peter, who owns the McKinsey relationship and do we have an NDA that
covers this scope of work in India?



Tara



-----Original Message-----

From: Sapra, Seema (GE Transportation, Non-GE)

Sent: Friday, June 04, 2010 5:00 AM

To: Winget, James, Legal (GE Transportation, US)

Cc: Plimpton, Tara (GE Transportation, US); Malhotra, Ashish (GE
Transportation); Kumar, Prat (GE Transportation); Gerson, James (GE
Transportation); Adlakha, Deepak (GE, Corporate)

Subject: FW: NDA with McKinsey



Jamie -



I discussed the NDA issue with Prat and Ashish.



Since McKinsey has been engaged by GE Transportation, the NDA should
be between General Electric Company, U.S. and McKinsey Global. We need
your help in facilitating this.



The scope of work is covered in the attached workplan document and
discussion document.



Thanks,



Seema





-----Original Message-----

From: Gerson, James (GE Transportation)

Sent: Thursday, June 03, 2010 1:16 AM

To: Sapra, Seema (GE Transportation, Non-GE); Kumar, Prat (GE Transportation)

Cc: Negi, Gaurav (Corporate); BeGole, Brett (GE Transportation);
Winget, James, Legal (GE Transportation, US); Parisi, Robert D (GE
Transportation)

Subject: RE: NDA with McKinsey



Seema



Thank you for the response.



Jim





-----Original Message-----

From: Sapra, Seema (GE Transportation, Non-GE)

Sent: Wednesday, June 02, 2010 8:59 AM

To: Gerson, James (GE Transportation); Kumar, Prat (GE Transportation)

Cc: Negi, Gaurav (Corporate); BeGole, Brett (GE Transportation);
Winget, James, Legal (GE Transportation, US); Parisi, Robert D (GE
Transportation)

Subject: RE: NDA with McKinsey



Jim,



I'll discuss this with Prat and get this closed.





Thanks,

Seema







-----Original Message-----

From: Gerson, James (GE Transportation)

Sent: Wednesday, June 02, 2010 3:42 PM

To: Kumar, Prat (GE Transportation); Sapra, Seema (GE Transportation, Non-GE)

Cc: Negi, Gaurav (Corporate); BeGole, Brett (GE Transportation);
Winget, James, Legal (GE Transportation, US); Parisi, Robert D (GE
Transportation)

Subject: NDA with McKinsey



I think we should proceed with an NDA with McK based on the
sensitivity of information that is being disclosed or may need to be
disclosed.



Can Seema help on this? Is there a reason why we have not initiated this?



Thanks,



Jim



-----Original Message-----

From: Kumar, Prat (GE Transportation)

Sent: Tuesday, June 01, 2010 8:11 PM

To: Gerson, James (GE Transportation)

Cc: Negi, Gaurav (Corporate); BeGole, Brett (GE Transportation)

Subject:



Jim, please do NOT share full D-loco model with McKinsey - we can
share pieces of data for comparing costs with E-loco. While we do have
NDA with them, I am very nervous sharing the full bid-model. Prat"



69. The background is that soon after May 17, 2010, General Electric
executives including Mr. John Flannery, Mr. Pratyush Kumar, Mr. Deepak
Adlakha and Mr. Brett BeGole visited Bangalore for a live video
conference with Mr. Jefrrey Immelt. A decision was taken by General
Electric executives during the meetings at Bangalore to engage
McKinsey consultants. A few days later at the end of May 2010, a
McKinsey team arrived at the General Electric AIFACS office and were
allotted a conference room to work in. The engagement manager for
this assignment was a McKinsey consultant called Mr. Anupam Agarwal.
The petitioner was told (by Mr. Gaurav Negi from General Electric)
that this team was studying the electric locomotive factory
opportunity. The McKinsey team worked in General Electric's office
for about 10-15 days. During this period, this team interacted closely
with Mr. Pratyush Kumar, Mr, Ramesh Mathur and Mr. Gaurav Negi. The
petitioner was not formally involved in or informed about what
McKinsey was doing. The petitioner clearly recalls some members of
the McKinsey team accompanying Mr. Pratyush Kumar and Mr. Ramesh
Mathur to the office of the Indian Railways for meetings.



70. Towards the end of the McKinsey assignment, Mr. Pratyush Kumar
asked the petitioner on June 8, 2010 to prepare a timeline for events/
tasks to be completed in the Electric locomotive factory RFP. He told
her to use the 2008 RFP. The timeline showed certain inconsistencies/
unachievable deadlines. For example the factory would not have been
ready in time to meet the first delivery deadlines. Mr. Pratyush Kumar
wanted this timeline urgently for meetings with Indian Railways
officials. Soon after these meetings between General Electric, Railway
Ministry officials and McKinsey consultants, the railway ministry
issued the RFPs for the Dankuni Project and the Madhepura project.



71. Around early June 2010, the petitioner was asked to prepare a
non-disclosure agreement between General Electric and McKinsey for the
electric locomotive opportunity assignment. The scope for the McKinsey
assignment was eventually provided to the petitioner by Mr. Gaurav
Negi who told the petitioner to include meetings between McKinsey and
Railway Ministry officials in the scope of McKinsey's work protected
from disclosure. The draft NDA that the petitioner prepared had an
attachment which set out the scope of information that was protected
under the NDA. This attachment also mentioned meetings and discussions
between the McKinsey team and Railway Ministry officials. This draft
NDA was sent out by the petitioner to the McKinsey lawyer for Asia
based either in Hong Kong or Singapore. It was also sent by her to
various General Electric executives and to Ms Tara Plimpton, Mr Deepak
Adlakha, Mr James Winget and to Mr Mrigank Sharma (all General
Electric in-house counsel).





Issue of General Electric having been shortlisted for ELF despite not
manufacturing electric locomotives and despite admittedly not
possessing required experience or technology.



72. The petitioner has produced in CWP 1280 of 2012, two McKinsey
documents titled "18052010 Assessing Loco Opportunity v4.ppt" dated
May 18, 2010 and "20100522_Working session_V04.ppt" dated May 22,
2010. These documents are of interest because they also establish
that General Electric does not manufacture electric locomotives and
does not possess the technology to manufacture electric locomotives.
Slide 3 of the document dated May 22, 2010 titled "20100522_Working
session_V04.ppt" lists 'Key engineering issues identified during
initial round of discussions' between GE and McKinsey. These were
listed as:

"Can we hire 100 engineers, including 20-30 domain experts, in 3
months time (plus 4 months before LoA for preparations, e.g., CV
short-listing)?

Is BHEL's limited expertise in Liquid cooled IGBT sufficient?

What risk will be posed by the lack of expertise in reliability,
vehicle dynamics, system engineering and high voltage circuitry

What risk will be posed by the lack of expertise in E-loco bogey

Can the factory be commissioned in 18-21 months?

What will be the loading cost of higher failure rate (2.04 per fly Vs 1.5)?"



73. The above questions raised by General Electric and recorded in
McKinsey documents show that General Electric was and is not qualified
to set up an electric locomotive factory because it does not
manufacture electric locomotives and does not possess the technology,
expertise and experience to do so.



Issue of forged/ tampered Kazakhstan Railway customer certificate
submitted by General Electric with its RFQ bid for the DLF Project on
12 July 2010



74. General Electric Company, GE India Industrial Private Limited, GE
Global Sourcing India Private Limited and any other associate General
Electric Company are all liable to be blacklisted for all Railway
tenders for a period of two or more years also for submitting a
tampered customer certificate with the technical bid submitted by
Respondent 7 for the DLF Project on 12 July 2010. Respondent 7 was
subsequently shortlisted by respondent 4 for this tender on the basis
of this unauthentic document. The submission of a forged/ tampered
customer certificate would amount to fraudulent conduct under the
Diesel Locomotive Tender RFQ and would render Respondent 7 liable to
disqualification and black-listing. It would also amount to the
criminal offence of forgery under both Indian and US law. The tampered
customer certificate was submitted as part of the requirements for
technical prequalification. Besides constituting a criminal offence
under the Indian Penal Code, submission of a forged certificate
amounts to a material misrepresentation under clause 2.7.3 of the 2010
Marhowra RFQ rendering General Electric liable to be disqualified and
blacklisted. This also amounts to a fraudulent practice under clause
4.1.3 (b) of the 2010 Marhowra RFQ that defines a fraudulent practice
as a "misrepresentation or omission of facts or suppression of facts
or disclosure of incomplete facts, in order to influence the bidding
process". Clause 4.1.1 of the 2010 Marhowra RFQ mandates that the
Authority (Respondent 4) "shall reject" an Application if it
determines that an Applicant has engaged in a fraudulent practice.
Further under Clause 4.1.2 of the 2010 Marhowra RFQ, an Applicant
found to have engaged in a fraudulent practice shall not be eligible
to participate in any tender or RFQ or a further period of two years."



75. On this issue of the forged customer certificate, the petitioner
refers to and relies upon the rejoinder affidavits filed by her in
this matter on July 9, 2012 and on July 23, 2012 and upon other
documents filed in this matter, and in particular on the
correspondence between the petitioner and General Electric exchanged
during and after General Electric purported internal investigation.



76. The petitioner has also filed a detailed 55 page affidavit
exclusively addressing the evidence in connection with her complaint
of forgery on October 11, 2012 and she will refer to that affidavit at
the time of arguments on this application. This affidavit describes in
detail the events of July 8, 9, and 10, 2010, the weekend before July
12, 2010 when the technical bid was submitted by General Electric for
the Marhowra tender.



77. The petitioner worked for General Electric as Legal Counsel
during May, June, July, August and September 2010, and was involved in
the preparation of General Electric's RFQ application dated July 12,
2010 which included the tampered document. Therefore the petitioner's
evidence is based upon her personal knowledge of the facts. General
Electric had a customer certificate that Kazakhstan Railway had issued
to General Electric around December 2009/ January 2010. General
Electric needed to submit this document in original to the Railway
Ministry along with General Electric's technical bid for the 2010
Marhowra tender in order to satisfy the RFQ technical capacity
eligibility criteria (in particular the requirement that the prior
locomotive sales should have had at least two variants which the RFQ
defined as gauge variations or service application variations). This
customer certificate from Kazakhstan Railway was undated and therefore
non-compliant with the format for customer certificates prescribed in
the RFQ. This fact that the certificate was non-compliant was pointed
out by the petitioner to colleagues at General Electric at the end of
June 2010 (the RFQ application was due on July 12, 2010).



78. Unknown to the petitioner, sometime between the end of June 2010
and July 9, 2010, General Electric executives/ employees (including
Pratyush Kumar, Ashfaq Nainar, Gaurav Negi. Ramesh Mathur,Ashish
Malhotra and Praveena Yagnambhat) entered into a criminal conspiracy
to add a false date to the undated customer certificate and to submit
this altered and therefore forged document along with General
Electric's RFQ application to the Railway Ministry on July 12, 2010.
The petitioner states that this conspiracy was carried out and the
document that was submitted by General Electric to the Railway
Ministry on July 12, 2010 as part of General Electric's RFQ for the
2010 Marhowra tender as the customer certificate issued by Kazakhstan
Railway was a tampered and forged document. The document submitted was
the original copy of the Kazakhstan Railway certificate that General
Electric obtained in December 2009/ January 2010. This document was
altered and a false date (July 7, 2010) was added to this undated
document by the hand of one of the General Electric executives
involved in the criminal conspiracy. This altered and forged document
was then submitted to the Indian Railway on July 12, 2010 with General
Electric's RFQ application.



79. As part of this conspiracy, an elaborate and detailed fraud was
perpetrated by these General Electric executives (with other unknown
co-conspirators) whereby a record was created on internal General
Electric emails that these executives had obtained a fresh customer
certificate from Kazakhstan Railway which was compliant (dated), and
that a scanned copy of this new certificate would be submitted by
General Electric, and that the Railway Ministry had approved the
submission of a scanned copy instead of the original document.



80. In reality, the afore-mentioned General Electric executives
altered the old Kazakhstan Railway certificate (which did not have a
date) and added a false date (July 7, 2010) to that document. This
tampered/ forged document was then slipped into General Electric's RFQ
application just before it was sent for binding. No one else in
General Electric, except those involved in this conspiracy, would ever
have known which document was eventually submitted by General
Electric. Also, the Railway Ministry would have accepted the altered /
forged document as an original certificate and would never have raised
any questions. It is also possible that the General Electric
executives involved in the conspiracy intended to claim that the new
original document from Kazakhstan Railways (which had been purportedly
couriered) had been delivered sometime during the weekend of 10 and 11
July 2010 and that this document had been substituted in place of the
scanned copy. As a result, even the internal General Electric record
would have shown that General Electric had submitted a original copy
of a compliant certificate.



81. This conspiracy was foiled as a result of the petitioner
recording on email on the morning of July 10, 2010 that the General
Electric team consider including both documents in its RFQ
application, i.e., the alleged scanned copy of the fresh certificate
and the undated original document. As the undated original document
had already been tampered, it was no longer possible for the General
Electric executives (involved in the forgery) to include it. The plan
was also foiled because the petitioner looked through the bound RFQ
application on July 10, 2010 and saw that this compilation included an
"original certificate" from Kazakhstan Railway that bore the date July
7, 2010. As a result of the petitioner having seen evidence of the
forgery, she was drugged during the weekend of July 10 and 11, 2010
by/ at the behest of these General Electric executives. She was also
bullied, harassed and an attempt made to get her to participate in an
unlawful act (as described in the affidavit dated October 11, 2012
filed on the forgery issue) which could then be used to blackmail the
petitioner. After July 12, 2010, the petitioner was again drugged/
poisoned while these General Electric executives participated in a
further conspiracy to eliminate the petitioner and to remove her by
having her contract with General Electric terminated. The petitioner
was finally able to report this forgery only on October 1, 2010 to the
General Counsel for General Electric Co. (Respondent No. 1) after her
contract with General Electric had been terminated in violation of
whistleblower non-retaliation laws and policies. Since then, the
petitioner has been subjected to further poisoning and drugging and
her complaint of this forgery has been covered up by General Electric.
The petitioner's life remains in grave danger.



82. The petitioner states that she was drugged at the behest of
General Electric executives involved in the forgery and was drugged/
poisoned on General Electric premises with the help of the pantry
assistant. The petitioner points out that after July 12, 2010 the
manner in which cut fruit was served to the petitioner in the General
Electric office changed. The manner in which drinking water was
supplied in the General Electric office also changed. After July 12,
2010 the petitioner was being supplied with unsealed bottles of
mineral water by the pantry assistant and she was told that these
bottles were being refilled. The petitioner recalls that Mr Pratyush
Kumar and Mr Ashfaq Nainar stopped drinking water and were only
consuming canned coke in the General Electric office. The opportunity
to have the petitioner drugged at her residence was also available as
the petitioner lived alone and had a cook come in to prepare meals.
The petitioner was also invited out by Ms Himali Arora (the then CFO
at GE Transportation India) for meals/ drinks on at least two
occasions. On another occasion, the petitioner went out for drinks and
a meal with other colleagues at the initiative of Mr Manish Batra from
General Electric. In August 2010, the petitioner was suddenly invited
for dinner by three former "friends" on three separate occasions. Two
of these dinners were in public restaurants (the Set'z at the Emporio
Mall and at 360 degrees at the Oberoi hotel). All three of these
former 'friends' have subsequently been revealed as having targeted
the petitioner on account of her corruption complaints in this
petition. All three of these "former" friends have also been suitably
rewarded by sudden material gains obtained at the behest of General
Electric. These dinners were further opportunities to drug the
petitioner. During the period from July 12, 2010 until she left
General Electric in September 2010, the petitioner was not her usual
self. She was under severe stress, was not sleeping well, was eating
badly, was coming in to work late and became physically bloated and
was obviously retaining salt and water. The petitioner was not
functioning normally and was finding it difficult to manage even basic
chores at home. In addition the work environment in the General
Electric office turned abusive and hostile. At the same time, a lot of
work was thrown at the petitioner with unrealistic deadlines and with
unreasonable and hostile demands.



83. After July 12, 2010, a conspiracy was put into effect to create a
hostile work environment for the petitioner. She was set up for
failure on tasks she was allocated. She was not involved in meetings
that she was supposed to be involved in. The petitioner was ready to
resign and leave this employment even in the week of July 12, 2010 but
was prevented from doing this by Deepak Adlakha. Pratyush Kumar,
Ashfaq Nainar, Deepak Adlakha and other General Electric executives
involved in the forgery hatched and put into effect a plan to have the
petitioner's employment contract terminated for some adverse reason
while simultaneously having the petitioner drugged and poisoned. The
petitioner states that even though she was ready to leave the job, she
was prevented from doing that while steps were taken to prepare for a
termination of her contract under circumstances that could then be
used to blackmail her into keeping silent on the forgery. At this time
the petitioner was also drugged and perhaps poisoned as well, and the
plan could have also involved her murder passed off as a natural death
from ill-health or some other manufactured cause.



84. General Electric employees tampered with the Kazakhstan customer
certificate and submitted a forged document to the Government of India
as part of General Electric's Request for Qualification for the Diesel
Locomotive tender at Marhowra on July 12, 2010. These employees
including Deepak Adlakha, GE India's General Counsel, attempted to
implicate the petitioner in this offence, and to scapegoat and
victimise her. the petitioner was bullied, lied to, and tricked. There
was an attempt to blackmail her. Deepak Adlakha conspired to ensure
that the petitioner did not leave General Electric immediately after
12 July 2010. He conspired to prevent the petitioner from resigning
(which she wanted to do) while he set the stage for a termination of
the petitioner's contract and created hostile conditions that
compelled the petitioner to resign on August 3, 2010. Mr. Deepak
Adlakha threatened the petitioner. He bullied the petitioner when she
withdrew her resignation on August 10, 2010 in order to raise
concerns. Mr Deepak Adlakha tried to dissuade the petitioner from
raising her concerns. At a later date, Mr Deepak Adalkha suggested
that he could find the petitioner an alternate position in General
Electric if she was ready to wait for a couple of months before
raising her concerns. The petitioner refused. Once the petitioner
started to raise her concerns, Mr. Adlakha avoided her. The petitioner
was asked to move to the Gurgaon office in an attempt to isolate her
physically. Finally when the petitioner started to relate Mr. Deepak
Adlakha's role (she sent an email about this to Tara Plimpton and
Deepak Adalkha in the beginning of September 2010), the petitioner's
contact was terminated without notice and without being given a
reason. Mr Deepak Adlakha then got another General Electric lawyer
(Mr Joydev Sengupta) to try and influence the petitioner into not
raising further concerns by offering the possibility of a in-house
counsel job at Microsoft India.



85. General Electric through Mr Alexander Dimitrief's letter dated
February 3, 2011, claims that documentary evidence disproves the
petitioner's complaint about the forgery. This is incorrect. The
documentary evidence discussed in Alexander Dimitrief's letter is
irrelevant. He states: "We have compared the printout of the
certificate from the July 7 e-mail with GETI's copy of the Request for
Qualification ("RFQ") submitted to Indian Railways and they are
identical".



86. The petitioner submits that this does not establish that the
certificate was not forged. Why would General Electric executives
retain evidence of the forgery and of the tampered document on General
Electric files? A close reading of Alexander Dimitrief's letter will
establish that it does not provide any evidence to establish that the
petitioner's complaint of forgery is without basis. The letter
misrepresents and ignores the petitioner's written evidence and
attempts to falsely suggest that the petitioner withdrew her
complaint, whereas the petitioner did not.



87. A relevant question is did Kazakhstan Railway actually issue a
fresh customer certificate on July 7, 2010? Was the July 7, 2010 email
genuine or fake? Even if this new certificate was indeed issued by
Kazakhstan Railways, the document that General Electric eventually
submitted to the Railway Ministry on July 12, 2010 was not a scanned
copy of the fresh customer certificate dated July 7, 2010. General
Electric executives submitted the original undated Kazakhstan Railway
customer certificate after adding a false date to it. This is the
document the petitioner saw in the bound RFQ application on July 10
and 11, 2010. The evidence that the petitioner has shared in writing
clearly shows the following:



i.
The document the petitioner saw in the RFQ compilation on the evening
of 9 July 2010 contained a black and white copy of the Kazakhstan
certificate. This was the final set that was supposed to have been
sent for binding.

ii.
The bound set that the petitioner saw on 10 July 2010 contained an
entirely different document (Kazakhstan certificate) that was in
colour and looked like an original leading the petitioner to ask her
colleagues at General Electric: "are you guys playing games with me?"

iii.
Ashish Malhotra (from General Electric) lied to the petitioner and
told her that the coloured document had been present in the set the
petitioner looked through on 9 July 2010. This is incorrect. The
document the petitioner saw on 9 July 2010 was a black and white
document that on the face of it looked like a copy.



88. The only relevant evidence of the forgery is the document on the
files of the Railway Ministry, i.e., the document General Electric
actually submitted. The petitioner submits that a perusal of this
document by this court will establish that the document General
Electric submitted was the original undated Kazakhstan Railway
customer certificate with a false date. Any reasonable person wanting
to investigate this forgery would look to the relevant documentary
evidence available with the Government. Why does General Electric not
want that evidence examined? The petitioner has described the events
of 10 and 11 July 2010 in great detail in writing. There is hard
evidence of the events of 10 and 11 July 1010 that have been
described by the petitioner. In addition, the petitioner has also
detailed the conspiracy to cover up this forgery that was put into
effect afterwards.



89. The petitioner submits that this Hon'ble Court should ask General
Electric to produce all its internal records on the forgery issue
including the several emails mentioned in the petitioner's affidavit
dated October 11, 2012.



90. It is also submitted that the counter affidavit filed by the
Railway Ministry/ Railway Board on CWP 1280 of 2012 and the railway
affidavit dated 14 January 2-013 establish that the complaint of
forgery was not investigated either by the Railway Ministry or by the
Central Vigilance Commission. Instead the attempt has been to cover up
this matter and avoid an investigation into and a clear answer to the
complaint of forgery. The Railway Ministry has made a false statement
that the Kazakhstan Railway customer certificate submitted by General
Electric was not necessary to prequalify/ shortlist General Electric.
This position is legally incorrect. General Electric does not satisfy
the technical capacity prequalification conditions prescribed in the
2010 Marhowra tender RFQ in the absence of the Kazakhstan Railway
customer certificate.



91. Respondent 4 has not investigated whether or not the customer
certificate from Kazakhstan Railways submitted by Respondent 7 (GE
Global Sourcing India Private Limited) with its RFQ on July 12, 2010
was forged/ tampered.



92. Respondent No. 4 has not investigated the petitioner's complaint
that General Electric submitted a forged document by submitting a
customer certificate issued by Kazakhstan Railways that had been
tampered with by General Electric executives. The certificate issued
by Kazakhstan Railways did not have a date. General Electric
executives added a false date to this document and submitted the
tampered document. This constitutes forgery of a government document.
The Ministry of Railways cannot ignore the petitioner's complaint that
this was a forged document. And further the Ministry of Railways
cannot ignore this forged document and the criminal offence of forgery
by 'falsely' stating that General Electric did not need to rely upon
this document to prequalify or that General Electric has not derived
any advantage by submitting this document.



93. Submission of a forged/ tampered/ unauthentic document with a bid
for a government tender, not only constitutes the criminal offence of
forgery but also renders the Bidder liable to be disqualified and
blacklisted. Submission of a forged document with the bid would amount
to a fraudulent practice under Clause 4.1.3 b) of the 2010 Marhowra
RFQ and this would render General Electric liable to be blacklisted
under Clauses 4.1.1 and 4.1.2 of the RFQ.



94. By submitting a forged document, General Electric has also
violated paragraph 1 of the Letter comprising the Application for
Qualification submitted by General Electric on July 12, 2012. This
paragraph reads:



"All information provided in the Application and in the Annexures is
true and correct and all documents accompanying such Application are
true copies of their respective originals."



95. Further by submitting a forged document, General Electric has
also violated Clause 2.7.2 of the Marhowra 2010 RFQ in that General
Electric has made a material misrepresentation and improper response
in its application submitted on July 12, 2010. Clause 2.7.3 of the
2010 Marhowra RFQ provides:



"In case it is found during the evaluation or at any time before
signing of the Agreement(s) or after its execution and during the
period of subsistence thereof, including the thereby granted by the
Authority, that one or more of the prequalification conditions have
not been met by the Applicant or the Applicant has made material
misrepresentation or has given any materially incorrect or false
information, the Applicant shall be disqualified forthwith if not yet
appointed as the Successful Bidder either by issue of the LOA or
entering into of the Agreement, and if the Applicant has already been
issued the LOA or has entered into the Agreement, as the case may be,
the same shall, notwithstanding anything to the contrary contained
therein or in this RFQ, be liable to be terminated, by a communication
in writing by the Authority to the Applicant, without the Authority
being liable in any manner whatsoever to the Applicant."



96. The statements made by Respondent 4 in paragraph 3 of the
affidavit under reply are significant in two ways. First, Respondent 4
does not confirm or deny whether General Electric submitted a forged
document. Respondent 4 does not state that any investigation/ enquiry
was held on the complaint as to whether General Electric submitted a
forged document. Respondent 4 also does not confirm that the document
in question was not a forged document. Respondent 4 has failed to
investigate the complaint of the petitioner which was referred to it
by the CVC.



97. The Respondent 4 in paragraph 3 of its counter affidavit states
that its "investigation" found that General Electric did not need the
Kazakhstan customer certificate to fulfil the technical capacity
criteria under clause 3.2 of the 2010 Marhowra RFQ. This seems to be
the full extent of the investigation undertaken by respondent 4.
According to the affidavit filed by Respondent 4, all that it did was
to reach the "conclusion" that General Electric did not need the
Kazakhstan customer certificate to prequalify. Respondent 4 did not
make any further inquiry. It did not inquire into the authenticity of
the Kazakhstan Railways customer certificate submitted by General
Electric on July 12, 2010. According to the affidavit filed by
Respondent 4, the Railways Ministry, it recommended to the CVC that
the complaint (no. 107/11/1) be closed on the sole basis that General
Electric did not need this certificate to prequalify and that General
Electric did not derive any advantage from submitting this
certificate. This finding and reasoning is the sole basis for the
Railways Ministry recommendation to the CVC that the complaint be
closed and this false and specious reasoning and finding was blindly
accepted by the CVC and it appears that the complaint was closed
without investigation into the complaint of forgery.



98. Respondent no. 4 and the CVC have both failed to investigate the
complaint of the petitioner that GE Global Sourcing India Private
Limited submitted a tampered document (customer certificate issued by
Kazakhstan Railways) with its RFQ application on July 12, 2010 for the
diesel locomotive factory tender. This constitutes a forgery under the
Indian Penal Code.



99. Respondent 4's statement and finding that General Electric did
not need the Kazakhstan Railways customer certificate to fulfil the
technical capacity criteria under clause 3.2 of the 2010 Marhowra RFQ
is patently false and a deliberate misrepresentation of facts and the
RFQ requirements and is intended to mislead this court and to cover-up
the forgery committed by General Electric executives. Not only has
respondent 4 failed to investigate the complaint of forgery, but
respondent 4 also attempts to mislead this court by stating that
General Electric did not need the Kazakhstan customer certificate
because (according to respondent 4 in the counter affidavit filed)
General Electric had provided details of 2326 mainline diesel electric
locomotives (supplied over the last ten years) whereas the requirement
in the RFQ technical criteria was only for 1000 locomotives.
Respondent 4 goes on to state that for this reason General Electric
did not derive "any advantage by submitting the scanned copy".



100. The Railways Ministry is misleading this court by suggesting
that General Electric did not need to rely upon the Kazakhstan
Railways to meet the technical prequalification criteria.



101. Clause 3.2.1 of the 2010 Marhowra RFQ reads:



"Subject to the provisions of Clause 2.2, the Applicant shall:

a) over the period of last ten (10) years, have manufactured and
supplied at least 1000 Mainline Diesel Electric Locomotives and:

i. such Locomotives should comprise at least 2 Variants; a Variant for
the purpose of this RFQ Document shall mean a Locomotive with
different gauge or with different service application;

ii. the supply of such Locomotives should have been to three (3) or
more countries;

iii. 200 or more of such Diesel Electric Locomotives should be of 4000
HP (or higher) with AC-AC 3-phase and IGBT technology; iv. 25 or more
of such Diesel Electric Locomotives should be of 6000 HP (or higher)"



102. In the affidavit under reply, Respondent 4 falsely suggests
that the only technical criteria required for prequalification was
evidence that a bidder had manufactured and supplied 1000 mainline
Diesel Electric locomotives. As is clear from Clause 3.2.1 (reproduced
above), a bidder also needed to provide customer certificates to show
that it met the other conditions/ criteria prescribed in Clause 3.2.1.
The 1000 locomotives relied upon by a bidder needed to have at least
two variants. These locomotives should have been supplied to at least
three countries. 200 of these locomotives should have been of at least
4000 HP with AC-AC 3-phase and IGBT technology. And at least 25 of
these locomotives should have been of at least 6000 HP.



103. While General Electric did not need the Kazakhstan Railways
customer certificate to certify the requirement for prior manufacture
and supply of 1000 locomotives, it did need this certificate to meet
the requirement that these locomotives should comprise of two variants
(i.e., locomotives with either gauge variations or service application
variations). General Electric does not meet the requirement for two
variants prescribed by Clause 3.2.1 without the Kazakhstan Railways
customer certificate. This was also the internal understanding in
General Electric and is recorded on internal General Electric emails.



104. The petitioner relies upon her email dated July 10, 2010 that
was sent while the petitioner was working for GE to Mr Pratyush Kumar,
Mr Ashish Malhotra, Ramesh Mathur, Steve Seip, James Winget, Ashfaq
Nainar, Mr Deepak Adlakha and Ms Tara Plimpton (all GE executives/
lawyers). A copy of this email is attached as annexure P-1 to the
petitioner's affidavit dated October 11, 2012 filed on the issue of
the forgery and is also annexed to the writ petition. An extract from
this email is reproduced below.



"Prat,



Just wanted to capture the latest position as of yesterday evening
with respect to customer certs.



For gauge variations, the following have been included in the set sent
for binding:

Original from Indonesia has been received and has been included. – has
a gauge variation plus mixed use (passenger/ freight) – locomotives of
2000 HP capacity



A scanned email copy of the new Kazakhstan cert (with date) included
as hard copy still not received – original in transit – gauge
variation



The undated Kazakhstan cert (hard copy available) not included.



A scanned email copy of the Vale cert included as hard copy not
received. – We will need the hard copy in case railways asks for it
later. – gauge variation plus helpful for 6000 HP numbers.



As already indicated to the team,



1. The RFQ language (2.12.2) requires original certs

2. Variant requirement of at least 2 variants – If we are using gauge
variations, I interpret the RFQ as requiring at least 3 different
gauges. No gauge variation is a zero variant, one different gauge is
one variant and 2 different gauges are 2 variants. In D loco last time
with the same language we had 3 gauge variations.

…"





105. As the above email records, General Electric needed the
Kazakhstan Railways customer certificate to meet the variant
requirement. The Petitioner submits that even with the Kazakhstan
Railways certificate being considered, General Electric still doid not
satisfy the 'variant' requirement specified in Clause 3.2.1 of the
2010 Marhowra RFQ.



106. The Indonesian customer certificate submitted by General
Electric was obtained at the last minute as recorded in the email
above. The petitioner was informed by Mr Ashfaq Nainar (a General
Electric executive) that this was not useful as it was for locomotives
of 2000 HP capacity and therefore not for the kind of locomotives
(mainline Electric Diesel locomotives) that the Railways was
interested in purchasing. Mr Ashfaq Nainar told the petitioner that
this certificate would not be acceptable to the Indian Railways to
meet the variant requirements.



107. From the above, it is clear that General Electric did not meet
the variant requirement without reliance upon the forged Kazakhstan
Railways certificate.



108. The customer certificate from Vale (a Brazilian firm) that
General Electric submitted with its RFQ application for the Marhowra
Project on July 12, 2010 was also not the original document but was a
scanned copy received by General Electric several months before July
12, 2010. Since receipt of this scanned copy by General Electric, Vale
had refused to provide the original or a fresh certificate to General
Electric because of a subsequent dispute connected to the supplies.
This customer certificate therefore was also no longer valid having
been disowned by the issuer.



109. It is submitted that the Railways Ministry admitted in its
counter affidavit that scanned copies of customer certificates could
not be considered by the Authority under the 2010 Marhowra RFQ which
required that customer certificates to meet the technical capacity
criteria be submitted in original.



110. Clause 2.2.3 i. of the 2010 Marhowra RFQ clearly provided that
the original customer certificates were required to be submitted with
the RFQ application. This clause reads:



"The Applicants shall enclose with its application, to be submitted as
per the format at Appendix-I, complete with its Annexes, the
following:

i. certificate(s) from its statutory auditors or the concerned
customer(s) stating the number of Mainline Diesel Electric Locomotives
designed, manufactured and supplied, during the past 5 years as
specified in paragraph 2.2.2(A) above. In case a particular
job/contract has been jointly executed by the Applicant (as part of a
consortium), he should further support his claim for the share in work
done for that particular job/ contract by producing a certificate from
its statutory auditor or the concerned customer(s);"





111. The Railways Ministry could not have prequalified General
Electric without reliance upon the Kazakhstan customer certificate.
General Electric did derive an advantage by submitting the Kazakhstan
certificate as it did not meet the variant requirement without this
certificate.



112. It is submitted that because General Electric did not submit
an un-tampered, true and original copy of the Kazakhstan Railways
customer certificate, it could not have been prequalified for the 2010
diesel locomotive tender. General Electric did not submit original
document for the customer certificate issued by Vale, a Brazilian
corporation.. Without these two certificates, General Electric did not
meet the RFQ requirement that the 1000 locomotives include at least
two variants and also include at least 25 6000HP locomotives. General
Electric's RFQ application for the Marhowra locomotive factory Project
submitted on July 12, 2010 was therefore non-responsive and
non-compliant and General Electric was liable to be disqualified by
the Railway Ministry.



113. The officers in the Railways Ministry and in the Central
Vigilance Commission who have attempted a cover-up of the forged
Kazakhstan Railways customer certificate submitted by General Electric
with its technical bid on July 12, 2010 and have attempted to mislead
this court should be investigated and punished in accordance with law.
The Central Vigilance Commission has clearly colluded in the aforesaid
attempt to cover-up the forgery committed by General Electric
executives and the submission of a forged document (Kazakhstan
Railways customer certificate) by Respondent 7 (GE Global Sourcing
India Private Limited). Both the Central Vigilance Commission and the
Railways Ministry are attempting to mislead this court. These actions
by officers of the Railways Ministry and the CVC cannot be said to be
acts done in good faith.



114. The only document produced by Respondent 4 in connection with
its alleged investigation of the Petitioner's email complaint dated
January 11, 2011 is a copy of a note by Mr R C Arora, a Director in
the Central Vigilance Commission advising closure of the case (on page
14 of the affidavit under reply). No reasons for this recommendation
are given in the note. This note does not even mention the nature of
the complaint, the nature and terms of reference of the investigation,
the findings of the investigation, or the reasons for closing the
complaint. The petitioner submits that the fact that respondent 4 has
produced this "note" which communicates absolutely no detail about the
alleged purported investigation is itself a red flag that respondent 4
and the CVC are attempting to hoodwink the court.



115. This note reads:



Central Vigilance Commission

The Commission has perused the investigation report and the comments
of the administrative authorities thereon. In agreement with the
RB(Vigilance), the Commission would advise closure of the complaint
case.

2. Railway Board's ID No.2011/VC/RB/10-CVC dated 12.08.2011 refers and
its file is sent herewith.


(R.C. Arora)



Director



116. Respondent 4 has not produced a copy of the investigation
report (with the comments of administrative authorities thereon)
referred to in the above note. As stated above, in its counter
affidavit the Railways Ministry has attempted to mislead this court by
misrepresenting the petitioner's complaint about the Kazakhstan
Railways certificate tampering/ forgery. Respondent 4 is attempting
to cover up and misrepresent the petitioner's complaint that the
Kazakhstan Railways customer certificate submitted by General Electric
with its technical bid on July 12, 2010 was a forged/ tampered
document. The omission by the Railways Ministry to produce the
original investigation report before this court provides confirmation
that the Railways Ministry and the CVC are covering up the forgery
committed by General Electric executives.



117. The petitioner submits that this court should direct the
Railways Ministry and the CVC to produce (i) the terms of reference
for the investigation it undertook; (ii) the investigation report;
(iii) the names of the officers who carried out this alleged
investigation; and (iv) the comments of the administrative authorities
referred to in the note by Mr R C Arora, a Director in the Central
Vigilance Commission.



118. The new document(described as brief of the investigation
conducted) produced at page 397 of the affidavit filed by the Railway
Ministry on 14 January 2013 (page 4888 of the court file in volume 13)
confirms that neither the CVC nor the respondent have investigated the
complaint that the customer certificate for Kazakhstan Railway
submitted by respondent 7 with its technical bid on 12 July 2010 is a
tampered and forged document.



119. In its counter affidavit dated July 3, 2012 filed in CWP 1280
of 2012 (this affidavit has been filed without a vakalatnama on record
and has been signed and verified by one Mr K R Radhakrishnan who does
not have the authority to represent respondents 1, 6 and 7), General
Electric's response on the complaint of forgery is limited to a single
statement- " … the Answering Respondents deny that any tampered /
forged / unauthenticated / undated documents were submitted by GE
Sourcing, including the certificate issued by Kazakhstan Railways."



120. It is respectfully submitted that in the face of the detailed
evidence presented by the petitioner, and the clear suppression by the
Railway Ministry, General Electric's response on the forgery in its
false counter affidavit is unsatisfactory, evasive and points to
General Electric's unwillingness to confront the hard evidence of
forgery that the petitioner has presented. The statements made in the
alleged sur-rejoinder filed on behalf of General Electric and the
documents attached thereto also do not establish that the document in
question was not a tampered document.



121. As further evidence that General Electric Co. covered up the
petitioner's evidence-backed complaint of forgery, reproduced below is
an extract from the letter that the petitioner received from Mr
Alexander Dimitrief on February 3, 2011. This letter states:



"When GETI submitted its RFQ, GETI explicitly stated to Indian
Railways that "all documents accompanying [our] Application are true
copies of their respective originals".



This statement is a clear attempt to cover up the fact that not only
did General Electric submit a forged document, but that even in the
alternative (without prejudice conceding only for the sake of argument
that General Electric submitted a scanned copy of the Kazakhstan
Railway customer certificate), General Electric's technical bid for
the 2010 Marhowra tender is clearly non-responsive. As is amply clear
from the 2010 Marhowra RFQ clauses reproduced earlier, all bidders
were required to submit original customer certificates along with
Annex IV of their RFQ applications. Clause 2.12.2 of the 2010 Marhowra
RFQ reads:



"The Applicant shall prepare and submit one original document
comprising the Application (together with original documents required
to be submitted along therewith pursuant to this RFQ) and clearly mark
the original document as "ORIGINAL"."



122. General Electric submitted original customer certificates with
its RFQ application for the 2008-2009 tender for the Marhowra Project.
General Electric submitted original certificates for technical
capacity eligibility with its RFQ applications for the 2010 RFQs for
the Dankuni and Madhepura Projects. General Electric collected
original customer certificates for submission with the RFQ for the
2010 Marhowra tender. All the customer certificates that General
Electric submitted to the Railway Ministry on July 12, 2010 with the
RFQ for the Marhowra Project were original documents except two – the
Kazakhstan Railway customer certificate and the Vale customer
certificate. General Electric had failed to obtain the original
document of the Vale certificate from Vale, a Brazilian company. And
as described hereinabove, General Electric discovered a last-minute
defect in the Kazakhstan customer certificate. General Electric
executives tampered with this Kazakhstan Railway certificate and
submitted the tampered document to the Railway Ministry thereby
perpetrating the fraud, forgery and criminal conspiracy that has been
described hereinabove.



123. It is submitted that in either case, General Electric's
technical bid for the 2010 Marhowra tender was non-responsive. It was
certainly non-responsive if the Kazakshstan Railways customer
certificate is a tampered document as complained by the petitioner. It
was also still non-responsive even accepting General Electric's lie
that an unaltered scanned copy of this certificate was submitted.
General Electric's lawyers know this. Therefore in a clear cover-up
attempt, Alexander Dimitrief stated in his letter dated February 3,
2011, that General Electric informed the Railway Ministry in its RFQ
application itself that it was submitting a scanned copy of the
Kazakhstan Railway certificate. This statement is false. Alexander
Dimitrief quotes a pre-included statement in the prescribed format in
the RFQ application (which General Electric did not introduce or
modify) and which stated: "All information provided in the Application
and in the Annexures is true and correct and all documents
accompanying such Application are true copies of their respective
originals." It is respectfully submitted that this statement cannot be
relied upon by General Electric to falsely claim that it disclosed to
the Railway Ministry that it was submitting a scanned copy of the
Kazakhstan Railway customer certificate. It is submitted that the
statement in the Railway affidavit that Bidders were permitted to
submit photocopies of customer certificates and that no original
documents were required with the technical bids is incorrect and is
merely intended to assist the cover-up of the forgery issue.



124. It is submitted that evidence and affidavits and documents
produced on the record by the petitioner as well as General Electric's
multiple lies in its purported counter affidavit, lead to the
inescapable conclusion that the Petitioner has disclosed the complete
truth and her complaint of forgery needs to be fully investigated. The
first step would be for this Hon'ble Court to call for and look for
itself at the document (the Kazakhstan Railway customer certificate)
that General Electric submitted to the Railway Ministry on July 12,
2010. The petitioner is certain that the forgery and the conspiracy to
commit and cover up the forgery will stand exposed.



Issue of payment of bribes by General Electric using a third party
contractor called Aartech Consultants India Private Limited



125. It is submitted that there are facts and evidence which prima
facie establish the need for an investigation by the CBI under the
Prevention of Corruption Act and by United States federal authorities
(under the Foreign Corrupt Practices Act) as to whether General
Electric has paid bribes or illegal payments at any time in the last
twelve years to any public official in India in connection with its
efforts to get a government contract to supply locomotives to the
Indian Railways. Besides the facts and evidence described above, there
is evidence that touches directly upon the likelihood that bribes have
been paid by General Electric to public officials and that in
particular, a third party (a shell company named Aartech Consultants
India Private Limited) has been used as the conduit to transfer these
bribes and to launder the bribe-money on behalf of the recipients.



126. The petitioner sent the following complaint on June 10, 2011
describing payment of bribes and FCPA violations by General Electric
in India involving a third party contract with an entity called
Aartech Consultants Private Limited.



"---------- Forwarded message ----------

From: Seema Sapra <seema.sapra@googlemail.com>

Date: Fri, Jun 10, 2011 at 1:11 PM

Subject: FW: Concerns about GE and possible FCPA violations

To: pmosb@pmo.nic.in

Cc: tka.nair@pmo.nic.in, jmg.vc@nic.in, r.sri_kumar@nic.in,
mr@rb.railnet.gov.in, dch@nic.in, g.haldea@nic.in,
crb@rb.railnet.gov.in, mm@rb.railnet.gov.in, jeffrey.immelt@ge.com,
john.flannery@ge.com, "Denniston, Brackett (GE, Corporate)"
<brackett.denniston@ge.com>



Dear Sir,

I would to like to share some further concerns about GE Transportation
India and corruption. Please see my email below. Thank you.

Yours Sincerely,

Seema Sapra

________________________________

From: Seema Sapra [mailto:seema.sapra@googlemail.com]
Sent: 10 June 2011 13:08
To: ffetf@usdoj.gov; chairmanoffice@sec.gov;help@sec.gov;
fcpa.fraud@usdoj.gov; askdoj@usdoj.gov
Cc: jeffrey.immelt@ge.com;john.flannery@ge.com; 'Denniston, Brackett
(GE, Corporate)'
Subject: Concerns about GE and possible FCPA violations

Dear Madam/ Sir,

Some further evidence about GE corruption in India.

Thank you,

Seema Sapra

________________________________

From: Seema Sapra [mailto:seema.sapra@googlemail.com]
Sent: 10 June 2011 12:41
To: 'Denniston, Brackett (GE, Corporate)'; 'Dimitrief, Alexander (GE,
Corporate)'
Cc: 'Eglash, Jeffrey C (GE, Corporate)'; jeffrey.immelt@ge.com;
john.flannery@ge.com
Subject: Concerns about Aartech Consultants and FCPA

Mr. Denniston/ Mr. Dimitrief,

I want to place on record my concerns about a third party contractor
that GE Transportation India was using, an entity called Aartech
Consultants. I shared this concern with Mr. Eglash when I spoke with
him on 29 November 2010. I asked Mr. Eglash - what did this consultant
do for GE? Unsurprisingly, Mr. Dimitrief's letter of 3 February 2011
does not mention Aartech Consultants.

I first learnt about Aartech Consultants when in June 2010, I received
an email asking me to review the documentation for Aartech's ITP
(Independent Third Party) contract that was up for renewal. I reviewed
it and found there were reputational red flags that had been
identified. Plus Aartech's application was old and the answers to
certain questions were unclear or potentially wrong. I spoke to Himali
Arora, the CFO about this. She then pointed out that Aartech had a
networth of approx. Rs. 30,000 which was also odd. I discussed the
matter with Himali Arora and Ashwani Bhargava, who was handling
compliance and was based in Bangalore. I then declined to approve the
renewal unless these matters were reviewed and addressed.

The Aartech Consultants representative was one Sikh gentleman who
visited the AIFACS office. I was never introduced to him and never
spoke with him. On different occasions, I saw him sitting with Prat
Kumar, Ash Nainar and Himali Arora. Plus he seemed to know most other
GE Transportation employees at AIFACS well.

There is a very distinct possibility that Aartech Consultants was
being used to make illegal payments to Indian Railway officials.

I was told by Anand Chidambaram in August that Aartech Consultants had
good contacts within the Indian Railways and helped GE move files
within the Indian Railways. I was also told that Aartech got a
commission of 5% on every deal.

I fail to understand why GE would need an external contractor to help
move files in the Indian Railways. GE Transportation India had
sufficient human resources to undertake all legitimate interactions
with the Indian Railways in GE's business dealings and tender
applications. What services did Aartech Consultants provide?

Even though Aartech Consultants' contract renewal with GE did not go
through in June 2010, the gentleman in question still visited AIFACS.
I was told by Ashish Malhotra in August 2010 that despite the
non-renewal of Aartech's contract, GE documentation still showed that
Aartech was being paid 5% commission for the turbocharger tender that
GE had won. GE was having internal compliance problems with the terms
and conditions of this deal and I remember hearing Prat ask Alpna
Khera, Himali Arora, Ashish Malhotra and Anand Chidambaram to enlist
Aartech Consultants' support in getting the Indian Railways to relax
certain terms, for example, getting the Indian Railways to agree to a
liquidated damages provision.

Did you investigate whether any illegal payments were routed through
Aartech Consultants by GE? Was there a violation of the Foreign
Corrupt Practices Act? What services did Aartech provide? What
payments did GE make to Aartech Consultants? Were these justifiable?

Sincerely,

Seema Sapra"



127. The petitioner sent another email complaint dated June 15,
2011 about FCPA violations by General Electric and the use of a third
party contractor (Aartech Consultants India Private Limited) to pay
bribes and kickbacks to Indian government officials in exchange for
bid manipulation with intent to award the lucrative contract for the
proposed diesel locomotive factory to General Electric.

"From: Seema Sapra [mailto:seema.sapra@googlemail.com]
Sent: 15 June 2011 09:10
To: pmosb@pmo.nic.in
Cc: tka.nair@pmo.nic.in; jmg.vc@nic.in; r.sri_kumar@nic.in;
mr@rb.railnet.gov.in; dch@nic.in;
g.haldea@nic.in;crb@rb.railnet.gov.in; mm@rb.railnet.gov.in;
jeffrey.immelt@ge.com; john.flannery@ge.com; 'Denniston, Brackett (GE,
Corporate)'
Subject: FW: Additional information on Concerns about GE and possible
FCPA violations

Dear Sir,

I would like to provide additional information about corrupt
activities by GE Transportation in India. Please see attached.

Sincerely,

Seema Sapra

________________________________

From: Seema Sapra [mailto:seema.sapra@googlemail.com]
Sent: 14 June 2011 18:16
To: ffetf@usdoj.gov;chairmanoffice@sec.gov; help@sec.gov;
fcpa.fraud@usdoj.gov; askdoj@usdoj.gov
Cc: jeffrey.immelt@ge.com; john.flannery@ge.com; 'Denniston, Brackett
(GE, Corporate)'; 'Dimitrief, Alexander (GE, Corporate)'; 'Eglash,
Jeffrey C (GE, Corporate)'; fwarin@gibsondunn.com
Subject: Additional information on Concerns about GE and possible FCPA
violations

Dear Madam/ Sir,

Please find attached internet search results for Aartech Consultants,
the independent third party contractor that GE Transportation India
was using to liaise with the Indian Railways. Aartech Consultants
shows up in search results as a recruitment agency.

I emailed about Aartech Consultants on 10 June 2011. (Before I sent my
email, I googled "Aartech Consultants"and all the search results
described it as a recruitment firm.) When I googled Aartech
Consultants again on 13 June, the "recruitment" links did not show up.
However, they still show up if you do not enter the full name. Instead
there were 3-4 results that now describe Aartech as a business
consultancy. Screen shots of these internet search results are
attached.

The representative from Aartech Consultants who visited the GE office
was Mr. Inderjeet Singh. He does not seem to hold any special
qualifications that might have qualified him to provide any consulting
services to GE. Plus he seems to be the sole representative and
employee.

Thank you,

Seema Sapra"



128. Paragraph 14 of Civil Writ Petition 1280 of 2012 reads:

"The Petitioner has complained that Respondent No. 6 had entered into
a third party contract with an entity called Aartech Consultants India
Private Limited (hereafter referred to as Aartech) and that this
contract was used to facilitate illegal payments and to pay bribes to
Indian government officials. This would amount to offences of
corruption under the Prevention of Corruption Act and also constitute
a violation of the Unites States' Foreign Corrupt Practices Act. The
Petitioner raised several red flags that call for an investigation. In
June/ July 2010, the Petitioner (while still at GE) was asked to
review and authorize a renewal of the contract between Respondent 6
and Aartech. The Petitioner found some red flags and deferred
authorization until these red flags were addressed. First, Aartech had
a total share capital of less than Rs. 50, 000. Second, GE's routine
internet and reputational searches conducted under GE's internal Third
Party Contract Authorisation Policy had found certain reputational red
flags. Third, Aartech's application was outdated and seemed
non-compliant. The Petitioner was later told by Mr. Anand Chidambaram,
an employee of Respondent 6 that Aartech helped GE move files in the
offices of the Indian Railways and received a 5% commission on every
contract. The Managing Director of Aartech is one Mr. Inderjit Singh
who was the main contact for GE and appeared to be the sole employee/
representative of Aartech. Mr. Inderjit Singh is a graduate and does
not have any educational/ professional/ technical qualifications or
expertise that would make him qualified to provide business
consultancy services to GE in respect of GE's rail transportation
business. Further since leaving GE, the Petitioner found internet
search results for Aartech and Mr. Inderjit Singh that featured
Aartech as a provider of recruitment consulting services. This raises
a red flag suggesting money laundering. Given that other evidence and
documents point to several instances of corrupt contact between GE
employees and Indian Railways officials, these red flags about a third
party contractor (Aartech) call for an investigation into the nature
of services being provided by Aartech to GE, into whether payments
made to Aartech were inflated and into whether Aartech was acting as a
conduit to bribe Indian government officials."



129. In its purported counter affidavit dated July 3, 2012 filed in
Civil Writ Petition 1280 of 2012, General Electric has admitted that
"GE India" has an International Sales Representative Agreement with
Aartech Consultants India Private Limited. General Electric further
states in the said counter affidavit that its agreement with Aartech
is a "bonafide commercial contract completely unrelated to the Indian
Railway tenders in question". General Electric describes its dealings
with Aartech as an "innocent act of GE's Indian affiliate contracting
with a local Indian business on matters completely unrelated" to the
Madhepura, Marhowra and Dankuni Projects/ tenders. I state that
General Electric is again misrepresenting facts and except for the
admission that it has had dealings with Aartech, these statements in
General Electric's counter-affidavit are lies and intended to cover up
the petitioner's complaints without any kind of investigation. Mr K R
Radhakrishnan, who has filed the false counter affidavit purportedly
on behalf of GE without authority documents has committed perjury by
stating these blatant falsehoods on oath.



130. In August 2010, while the petitioner was still employed by
General Electric, she had looked at the third party contracts that GE
Transportation had entered into globally. All these contracts (which
were mandatorily required by internal General Electric policies to go
through a rigorous compliance review process under and in accordance
with a written and detailed Independent Third Party Contract General
Electric Policy document) were listed on the webpage of the internal
General Electric website that was used by the GE Transportation legal
team. The contract between General Electric and Aartech Consultants
was listed under these contracts on GE Transportation's Legal Team
website. This website is maintained by the office of the General
Counsel for GE Transportation based in Erie, Pennsylvania in the
United States and is hosted on General Electric's US servers.



131. In its counter affidavit dated July 3, 2012 filed in CWP 1280
of 2012, General Electric states that GE India has entered into an
International Sales Representative Agreement with Aartech Consultants
India Private Limited. The counter affidavit further describes this
contract as "GE's Indian affiliate contracting with a local Indian
business". These statements are false. The contract between General
Electric and Aartech was a contract between GE Transportation (a
business unit of General Electric Company, a US corporation) and
Aartech, otherwise this contract would not be available on the US
website of GE Transportation.



132. Some background as to how General Electric's business in India
is organised is required. Until recently, General Electric's business
in India was not consolidated into an India unit. The Indian business
unit was set up only after Mr John Flannery was sent to India at the
end of 2009. The actual business reorganisation into an India business
unit did not formally take place until July 2010. Therefore during the
months of May, June and July 2010 when the petitioner was working for
GE Transportation in India, she was reporting on a functional basis
(legal) to the General Counsel for GE Transportation, who at that time
was Ms. Tara Plimpton. The petitioner was reporting on a business
basis to Mr Pratyush Kumar, who was employed by General Electric Co.
or by GE International and who in turn reported to Mr Lorenzo
Simonelli, the CEO of GE Transportation. The second most senior GE
Transportation executive based in the New Delhi office of GE
Transportation was Mr Ashfaq Nainar, who was also employed by the
parent company, General Electric Co. and who reported to Mr David B.
Tucker of GE Transportation.



133. The petitioner was asked to review and approve the renewal of
General Electric's contract with Aartech in June 2010 as Legal Counsel
for GE Transportation in India. The request for approval of this
contract was not sent to the petitioner by GE India's corporate office
in Gurgaon or by GE India employees working for GE Transportation in
the General Electric office at Rafi Marg, New Delhi. Instead the
request emanated from the Erie-based headquarters of GE Transportation
in the United States. The petitioner was sent an internet work flow
link on the General Electric US website where the existing contract
with Aartech was uploaded along with the results of the third party
contract due diligence processes and the approvals (with
justification) already obtained from the business and commercial
executives who in General Electric language "owned" this contract.
(For the record, the petitioner had not been given access to the
website for GE India as she did not require this access for her work.
The petitioner had been given access rights to the US website of GE
Transportation). The petitioner was asked to review all this
documentation and give the approval for a renewal of Aartech's
contract in her capacity as GE Transportation's Legal Counsel for
India. The business and commercial approvals for the renewal of
Aartech's contract were given by Mr David Tucker and Mr Ashfaq Nainar.
Mr David Tucker and Mr Ashfaq Nainar had made the commercial case for
General Electric to renew the contract with Aartech. Both Mr David
Tucker and Mr Ashfaq Nainar are employees of General Electric Co. and
are part of GE Transportation. Mr David B. Tucker is Vice President,
Global Sales Operations for GE Transportation, a business unit of
General Electric Company. This contract between General Electric and
Aartech was therefore a contract between GE Transportation in the
United States and Aartech Consultants India Private Limited. It was
this contract that was being used by General Electric as a conduit to
make illegal payments as bribes to Indian government officials.



134. In an attempt to cover up the petitioner's complaint, Mr K R
Radhakrishnan has lied under oath in General Electric's purported
counter affidavit when he states that the contract with Aartech was an
innocent business contract between GE India and a local Indian
business (Aartech). Mr K R Radhakrishnan does not name which GE
company signed the contract with Aartech. Instead he uses the vague
term "GE India". If the contract with Aartech that was up for renewal
in June 2010 was a contract with "GE India", then this contract would
not have been sent to the petitioner for renewal approval by GE
Transportation in the US and neither would Mr David Tucker or Mr
Ashfaq Nainar have been involved in giving business and commercial
approvals for such renewal. Instead of coming clean and owning up to
an evidence-backed corruption and FCPA complaint that requires
investigation, General Electric has attempted to cover-up and bury the
issue.



135. What is absolutely clear is that GE Transportation had entered
into a third party contract with Aartech before 2010 and this contract
was subsequently being considered for renewal in June 2010.



136. To further expose the lies in General Electric's counter
affidavit in its attempt to cover-up the complaint regarding its
contract with Aartech, it is pointed out that the said counter
affidavit states that the contract with Aartech is unrelated to the
Indian Railway tenders. The counter affidavit states that General
Electric has an international sales representative agreement with
Aartech, but it evasively does not disclose what business or product
this agreement covers.



137. The petitioner was told in August 2010 by Mr Anand Chidambaram
(Chidambaram Balakrishnan) a General Electric executive with the GE
Transportation India team that Mr Inderjeet Singh, the managing
director of Aartech Consultants India Private Limited used to be or
was a small supplier to Indian Railways and therefore had good
contacts within Indian Railways and helped General Electric 'move
government files'. The LinkedIn profile for Mr Inderjeet Singh, the
managing director at Aartech Consultants India Private Limited, shows
his industry as "Transportation/Trucking/Railroad".



138. Why would GE Transportation appoint Aartech Consultants India
Private Limited or Mr Inderjeet Singh as its International Sales
Representative? Mr Inderjeet Singh has a graduate degree from St
Stephen's College. Neither he nor Aartech have any international
business experience in the rail sector. Mr Inderjeet Singh has no
professional or technical qualifications that would qualify him to act
as GE Transportation's international sales representative. GE
Transportation has a large sales team spread all over the world
wherever GE Transportation's customers are. Why would GE
Transportation need to appoint a small supplier to Indian Railways as
its international sales representative?



139. In an attempt to cover-up its murky and corrupt dealings with
Aartech Consultants India Private Limited, General Electric in its
false counter-affidavit dated July 3, 2012 in CWP 1280/2012 has
avoided replying to or even acknowledging any of the facts or evidence
presented by the petitioner, and instead has made vague, evasive and
false statements. General Electric has not disclosed which General
Electric company signed the contract with Aartech or which industry
sector or product was serviced by the international sales
representative contract with Aartech.



140. All that the said counter affidavit states is that General
electric's agreement with Aartech is "completely unrelated to the
Indian Railway tenders in question". This statement is false and
constitutes another instance of perjury by Mr K R Radhakrishnan who
has filed the counter affidavit on behalf of General Electric. While
the written contract between GE Transportation and Aartech might not
mention the multi-billion dollar Indian Railway tenders for the
Madhepura, Marhowra and Dankuni Projects, General Electric's admission
that it appointed Aartech as its international sales representative
confirms that the third party contract between General Electric and
Aartech was used to bribe Indian Railways officials and to pay
kickbacks to Indian government officials in exchange for and as quid
pro quo for the manipulation of bid processes and bid documents as
part of a criminal conspiracy to award the contract for the Marhowra
locomotive factory Project to General Electric.



141. Mr Inderjeet Singh was a regular visitor to the New Delhi
office of GE Transportation on Rafi Marg during the period the
petitioner worked with General Electric in 2010. During these visits,
Mr Inderjeet Singh remained closeted with Mr Pratyush Kumar and Mr
Ashfaq Nainar for considerable lengths of time. On several occasions,
Mr Inderjeet Singh met Mr Pratyush Kumar alone. Mr Inderjeet Singh
also met the CFO for GE Transportation in India (Ms Himali Arora) and
knew all the employees in GE Transportation's Delhi office well. In
2010, Mr Pratyush Kumar headed GE Transportation's India operations.
He was not responsible for any business activities or sales by GE
Transportation outside India.. The message from Mr John Flannery and
General Electric's US bosses was that without new business from the
Marhowra Project, GE Transportation's India office might be disbanded
or considerably under-sized. The India team of GE Transportation did
not have much business in India in the rail sector where its only
customer was Indian Railways. They were only engaged in a small spare
part supply business (these spares were imported from the US) and had
a small turbocharger refurbishing business. The petitioner was told by
Mr Manish Batra, Vice President (Tax) at GE Corporate India that the
worst performers at GE India were housed in the GE Transportation
India team and that they had an "athanni-chavanni ka business". The
fact that Mr Inderjeet Singh met Mr Pratyush Kumar and was in frequent
touch with the latter in May, June, July and August 2010 shows that Mr
Inderjeet Singh was working for GE Transportation in connection with
General Electric's bids for the Marhowra, Madhepura and Dankuni
tenders. Mr Pratyush Kumar was entirely focussed on the Indian
Railways tenders for the Madhepura, Marhowra and Dankuni Projects. In
2010, Mr Pratyush Kumar job responsibilities at General Electric were
limited to India, so why was he in frequent and regular contact with
Mr Inderjeet Singh, who GE describes as its international sales
representative? What did Mr Inderjeet Singh and Mr Pratyush Kumar
discuss during their interactions in 2010?



142. The above facts establish that General Electric is hiding that
Aartech Consultants India Private Limited had a contract with GE
Transportation in 2010 and that Mr Inderjeet Singh from Aartech was in
regular touch with Mr Pratyush Kumar in connection with General
Electric's bids for the 2010 tenders for the Marhowra, Madhepura and
Dankuni Projects. General Electric's contract with Aartech was not a
bonafide commercial contract but was a contract that General Electric
was using as a conduit to pay bribes and kickbacks to Indian
government officials.



143. General Electric has not addressed any of the evidence adduced
by the Petitioner in connection with her complaint concerning Aartech.
General Electric has also failed to answer any of the questions
raised. Instead General Electric has resorted to a cover-up in its
counter affidavit through fake outrage at the petitioner's complaint
and attempts to discredit the petitioner by smearing her and
questioning her motives.



144. The petitioner has produced internet search results (which are
available on the court record in this petition) that show Aartech
Consultants India Private Limited as a recruitment consulting firm.
Screen shots of these internet search results and of web-pages showing
Aartech as a recruitment firm have been emailed to General Electric
and copies have also been filed in the Delhi High Court in CWP 1280/
2012. Why is General Electric Company's international sales
representative showing up in internet searches in cheap advertisements
for manpower recruitment? This is a red flag that points in the
direction that Aartech Consultants India Private Limited is a shell
company being used to transfer bribes to Indian public officials by
General Electric Company.



145. According to General Electric's own internal compliance
policies and compliance training guidance, such evidence in case of
third party contractors raises a red flag that the third party
contract in question might not be bonafide but instead a vehicle to
transfer bribes and payments that are illegal under the US Foreign
Corrupt Practices Act and to launder such bribes. Yet instead of
acknowledging this evidence, General Electric in its counter affidavit
dared July 3, 2012 makes the following statement: "the Answering
Respondents deny that the purported Internet searches allegedly
conducted by the Petitioner long after her brief consultancy of a few
months with GE India are in any way indicative of money laundering".
It is submitted that these internet searches and search results and
webpages are neither purported nor alleged. Screen shots of these
internet searches have been emailed to Mr Brackett Denniston, the
General Counsel of General Electric Co on his official GE email
address. Printed copies and soft copies of these internet search
results have been produced as part of additional documents filed
before the Delhi High Court in CWP 1280 of 2012 and these have been
duly served on the law-firm AZB that is purportedly claiming to
represent General Electric in CWP 1280/ 2012.



146. It is submitted that General Electric's own internet
reputational searches for Aartech carried out under its own
Independent Third Party Policy in 2010 raised red-flags which among
other reasons prompted the petitioner to withhold approval for the
renewal of this contract in June 2010 acting in her capacity as Legal
Counsel for GE Transportation India. This evidence was available on
General Electric's US servers in 2010 with the work-flow link that was
sent to the petitioner.



147. Can General Electric explain why the International Sales
Representative for GE Transportation (Aartech Consultants India
Private limited) is in the business of providing recruitment services
in India? Can General Electric explain what are the qualifications and
criteria on the basis of which it has appointed Aartech Consultants
India Private Limited as its International Sales Representative? Can
General Electric disclose what services have been provided to General
Electric by Aartech Consultants India Private Limited and what
payments have been made to Aartech by General Electric over the last
12 years?



148. The petitioner has adduced sufficient evidence to support her
complaint that General Electric was using its third party contract
with Aartech to pay bribes and kickbacks to Indian government
officials in order to win the multibillion dollar tender for the
proposed diesel locomotive factory in Marhowra. Yet General Electric
has ignored this evidence and states through a false counter affidavit
that no case is made out for any investigation into Aartech's dealings
with General Electric or with the Indian Railways. It is submitted
that besides the evidence described above which establishes that
General Electric was using Aartech as a conduit for bribes and as a
facilitator of corrupt dealings with Indian government officials,
General Electric's false statements and evasions in its false and
unauthorised counter affidavit provide further confirmation that the
Petitioner's complaint has substance and that General Electric is
still covering up this matter.



149. The petitioner points to a very curious statement in General
Electric's counter-affidavit: "The Answering Respondents further state
that no investigation by the Answering Respondents has revealed any
evidence of the allegations made by the Petitioner in respect of
Aartech". In the very next sentence, the counter affidavit states (to
paraphrase) that the petitioner has not placed on record any proof to
substantiate these complaints and has not made out any case for
investigation into Aartech. These statements are a piece of verbal
sophistry intended to mislead the court and cover-up this matter. The
petitioner's first complaint about Aartech was made in June 2011, four
months after General Electric completed its alleged internal
investigation. So General Electric has admittedly not investigated the
complaint about Aartech. Yet it wants to mislead the court that it has
done so. Therefore the counter affidavit states "no investigation by
the Answering Respondents has revealed any evidence of the allegations
made by the Petitioner in respect of Aartech" It is pointed out that
this sentence does not state that the complaint against Aartech was
investigated, instead it attempts to mislead the court by referring to
unconnected investigations which did not look into the Aartech
complaint. The fact is that despite substantial evidence (as described
in the petitioner's complaints sent to General Electric in June 2010,
in the writ petition, in the rejoinder affidavit dated July 9, 2012
filed by the petitioner in CWP 1280/2012, and hereinabove) that calls
for a full investigation into General Electric's dealings with
Aartech, General Electric has not investigated these complaints.
Instead of an investigation, General Electric has caused false
statements to be made on oath before this court and has obfuscated
facts about its dealings with Aartech. This attempt to obfuscate the
facts and mislead the court about the nature of General Electric's
dealings and its contract with Aartech, confirms that General Electric
has much to hide and is covering up its corrupt association with
Aartech Consultants India Private Limited. These lies in the false
counter affidavit purportedly filed on behalf of General Electric are
further evidence of the need for a full investigation into the use by
General Electric of its third party contract with Aartech for the
payment of bribes and kickbacks. Instead of dealing with the facts and
evidence of corruption and bribes with integrity and honesty, the fake
exhibition of excess outrage by General Electric in its false and
unauthorised counter-affidavit (while not a single fact is adequately
rebutted or even acknowledged and several lies are stated) is a
giveaway of the cover-up General Electric is engaged in.



150. The Petitioner highlights the following

i.
General Electric has admitted that it appointed Aartech as its
international sales representative.

ii.
Aartech is a shell company, with a miniscule bank balance, with no
track record of similar assignments or experience, with a suspicious
internet profile, with no staff, with a residential address as its
office, with a principal (Inderjeet Singh) who has no qualifications
to render him eligible for this role, and who appears to be an
associate of Mr Montek Singh Ahluwalia (both appear to have been
contemporaries at St Stephen's College and would know each other) and
Mr Montek Singh Ahluwalia is not only in a position to but has been
accused by Government of India officials of pushing for award of this
contract to General Electric on favourable terms.

iii.
General Electric has been making payments to Aartech.

iv. The
petitioner was asked to approve the renewal of General Electric's
contract with Aartech, such approvals are the job of in-house counsel
according to General Electric's compliance policies, and now General
Electric in affidavits filed in this writ petition claims that the
petitioner was not an in-house counsel but was merely an external
consultant on a short-term contract. (The petitioner was also asked to
approve a third party contract for General Electric in Pakistan). Why
then was the petitioner asked to approve the renewal of General
Electric's contract with Aartech when this is a job that is supposed
to be performed by in-house counsel at General Electric under General
Electric's supposedly sacrosanct "compliance policies"?

v.
Several well-founded and evidence backed complaints have been made
from several sources (not just the petitioner) that the impugned
tenders are plagued by corruption, tailor-made tenders, manipulated
bid processes and bid documents, huge unjustifiable concessions by the
government, lack of transparency and accountability, mid-way rule
changing, altered and misquoted minutes of government meetings,
allegations of 'bananna republics' and 'con-games', agendas to
compromise the interest of the Railways, allegations of conflict of
interest, allegations of by-passing designated government officials
etc., all pointing towards corruption that has benefited or was
intended to benefit General Electric.

vi.
Most bribes are paid through third parties using fake contracts or
shell companies to transfer payments.

vii. GE
Transportation does not manufacture anything in India or export from
India so it obviously does not need an international sales
representative based in India like Aartech especially when it has
dedicated senior sales staff here.

viii. All
of GE Transportations's sales/ contracts in India are to/with the
Railway Ministry and follow a public tender process so a third party
sales representative like Aartech is not needed.

ix. GE
Transportation India CEO (Pratyush Kumar) is present in India only to
win new business like the Marhowra tender. There is no other business
in India for GE Transportation that would call for a third party sales
representative like Aartech.

x.
General Electric is reluctant to investigate its dealings with Aartech
even in the face of all this evidence.

xi.
General Electric has attempted to subvert these proceedings by using a
lawyer (without a vakalatnama) to file a false counter affidavit
(signed and verified by an unauthorised person) to make false
statements under oath in an attempt to cover up the complaints
concerning Aartech and the complaints of other illegalities.

xii.
Employees/ lawyers of General Electric have had the petitioner drugged
and poisoned and have attempted to have her murdered while
simultaneously smearing her and by trying to false label her mentally
ill.



151. The facts related establish that the petitioner's complaint
that General Electric has paid bribes to Indian government officials
and to Indian public officials using its contract with Aartech
Consultants India Private Limited as a conduit to transfer and launder
these bribes is substantial enough to justify a full investigation.



Issue of tailoring bid documents to assist General Electric to avoid
making necessary disclosures under mandatory GOI guidelines





152. The General Electric bidding entity for both the impugned
tenders, GE Global Sourcing India Private Limited (respondent 7) is a
shell company and only meets the financial and technical eligibility
conditions in the Marhowra and Madhepura RFQs by using the parent
company, General Electric Company as is "Associate".



153. Illegal modifications were made by respondent 4 (with the
collusion of corrupt officials from the Planning Commission and the
Railway Ministry) to the 2010 RFQ for the proposed diesel locomotive
factory with intent to dilute the disclosure requirements mandated by
the Government of India Guidelines for qualification of Bidders
seeking to acquire stakes in Public Sector Enterprises through the
process of disinvestment bearing Office Memorandum No. 6/4/2001DDII
and dated July 13, 2001. These modifications were made at the behest
of General Electric and are intended to assist GE to qualify without
having to comply with the said GOI guidelines. General Electric has
failed to comply with these guidelines in both the 2010 Marhowra and
the 2010 Madhepura tenders.



154. The Government of India, Department of Disinvestment has
issued 'Guidelines for qualification of Bidders seeking to acquire
stakes in Public Sector Enterprises through the process of
disinvestment' vide Office Memorandum No. 6/4/2001DDII dated July 13,
2001. Compliance with these Government of India guidelines is
mandatory for tenders like the tenders for the proposed Madhepura
electric locomotive factory and the proposed Marhowra diesel
locomotive factory. These guidelines are applicable to both the
Marhowra and Madhepura RFQs for 2010.



155. Clause 1.3.2 of the 2010 Marhowra RFQ provides:



"Government of India has issued guidelines (see Appendix-IV) for
qualification of bidders seeking to acquire stakes in any public
sector enterprise through the process of disinvestment. These
guidelines shall apply mutatis mutandis to this Bidding Process. The
Authority shall be entitled to disqualify an Applicant in accordance
with the aforesaid guidelines at any stage of the Bidding Process.
Applicants must satisfy themselves that they are qualified to bid, and
should give an undertaking to this effect in the form at Appendix-I."



Similarly the second paragraph of Clause 1.2.1 of the 2010 Madhepura
RFQ provides:



"Government of India has issued guidelines (see Appendix-V) for
qualification of bidders seeking to acquire stakes in any public
sector enterprise through the process of disinvestment. These
guidelines shall apply mutatis mutandis to this Bidding Process. The
Authority shall be entitled to disqualify an Applicant in accordance
with the aforesaid guidelines at any stage of the Bidding Process.
Applicants must satisfy themselves that they are qualified to bid, and
should give an undertaking to this effect in the form at Appendix-I."



156. These Government of India guidelines provide as follows:



"Government has examined the issue of framing comprehensive and
transparent guidelines defining the criteria for bidders interested in
PSE disinvestment so that the parties selected through competitive
bidding could inspire public confidence. Earlier, criteria like net
worth, experience etc. used to be prescribed. Based on experience and
in consultation with concerned departments, Government has decided to
prescribe the following additional criteria for the
qualification/disqualification of the parties seeking to acquire
stakes in public sector enterprises through disinvestment:



(a) In regard to matters other than the security and integrity of the
country, any conviction by a Court of Law or indictment/ adverse order
by a regulatory authority that casts a doubt on the ability of the
bidder to manage the public sector unit when it is disinvested, or
which relates to a grave offence would constitute disqualification.
Grave offence is defined to be of such a nature that it outrages the
moral sense of the community. The decision in regard to the nature of
the offence would be taken on case to case basis after considering the
facts of the case and relevant legal principles, by the Government of
India.

(b) In regard to matters relating to the security and integrity of the
country, any charge-sheet by an agency of the Government/ conviction
by a Court of Law for an offence committed by the bidding party or by
any sister concern of the bidding party would result in
disqualification. The decision in regard to the relationship between
the sister concerns would be taken, based on the relevant facts and
after examining whether the two concerns are substantially controlled
by the same person/ persons.

(c) In both (a) and (b), disqualification shall continue for a period
that Government deems appropriate.

(d) Any entity, which is disqualified from participating in the
disinvestment process, would not be allowed to remain associated with
it or get associated merely because it has preferred an appeal against
the order based on which it has been disqualified. The mere pendency
of appeal will have no effect on the disqualification.

(e) The disqualification criteria would come into effect immediately
and would apply to all bidders for various disinvestment transactions,
which have not been completed as yet.

(f) Before disqualifying a concern, a Show Cause Notice why it should
not be disqualified would be issued to it and it would be given an
opportunity to explain its position.

(g) Henceforth, these criteria will be prescribed in the
advertisements seeking Expression of Interest (EOI) from the
interested parties. The interested parties would be required to
provide the information on the above criteria, along with their
Expressions of Interest (EOI). The bidders shall be required to
provide with their EOI an undertaking to the effect that no
investigation by a regulatory authority is pending against them. In
case any investigation is pending against the concern or its sister
concern or against its CEO or any of its Directors/ Managers/
employees, full details of such investigation including the name of
the investigating agency, the charge/ offence for which the
investigation has been launched, name and designation of persons
against whom the investigation has been launched and other relevant
information should be disclosed, to the satisfaction of the
Government. For other criteria also, a similar undertaking shall be
obtained along with EOI."



157. In order to enforce compliance with these Guidelines, Appendix
I (Letter comprising the Application for Qualification) of the 2010
RFQ for the proposed diesel locomotive factory at Marhowra requires
certain certifications from Bidders.



158. The relevant paragraphs in Appendix I (Letter comprising the
Application for Qualification) of the 2010 RFQ for the proposed diesel
locomotive factory at Marhowra are the following:



(i) " I/We certify that in the last three years, we/ any of
the Consortium Members have neither failed to perform on any contract,
as evidenced by imposition of a penalty or a judicial pronouncement or
arbitration award, nor been expelled from any project or contract nor
have had any contract terminated for breach on our part." – required
as per paragraph 5 of the Letter comprising the Application for
Qualification.



(ii) "I/ We certify that in regard to matters other than
security and integrity of the country, we have not been convicted by a
Court of Law or indicted or adverse orders passed by a regulatory
authority which could cast a doubt on our ability to undertake the
Project or which relates to a grave offence that outrages the moral
sense of the community." – required as per paragraph 10 of the Letter
comprising the Application for Qualification.



(iii) "I/ We further certify that in regard to matters relating to
security and integrity of the country, we have not been charge-sheeted
by any agency of the Government or convicted by a Court of Law for any
offence committed by us or by any of our Associates." – required as
per paragraph 11 of the Letter comprising the Application for
Qualification.



(iv) "I/ We further certify that no investigation by a regulatory
authority is pending either against us or against our Associates or
against our CEO or any of our Directors/ Managers/ employees that
affects our ability to undertake / execute the Project." – required as
per paragraph 12 of the Letter comprising the Application for
Qualification.



(v) "I/ We further certify that we are not disqualified in
terms of the additional criteria specified by the Department of
Disinvestment in their OM No. 6/4/2001DDII dated July 13, 2001, a copy
of which forms part of the RFQ." – required as per paragraph 13 of the
Letter comprising the Application for Qualification.



(vi) "A statement by the Applicant and each of the members of
its Consortium (where applicable) disclosing material nonperformance
or contractual noncompliance in past projects, contractual disputes
and litigation / arbitration in the recent past that exceed 5% of the
contract value is given below (Attach extra sheets, if necessary)"-
required as per paragraph 7 of Annex I to the Letter comprising the
Application for Qualification.



159. The corresponding paragraphs in Appendix I (Letter comprising
the Application for Qualification) of the 2010 RFQ for the proposed
electric locomotive factory at Madhepura are as follows:



(i) I/ We certify that in the last three years,
we/ any of the Consortium Members or our/ their Associates have
neither failed to perform on any contract, as evidenced by imposition
of a penalty by an arbitral or judicial authority or a judicial
pronouncement or arbitration award, nor been expelled from any project
or contract by any public authority nor have had any contract
terminated by any public authority for breach on our part. - required
as per paragraph 6 of the Letter comprising the Application for
Qualification.



(ii) I/ We certify that in regard to matters other
than security and integrity of the country, we/ any Member of the
Consortium or any of our/ their Associates have not been convicted by
a Court of Law or indicted or adverse orders passed by a regulatory
authority which could cast a doubt on our ability to undertake the
Project or which relates to a grave offence that outrages the moral
sense of the community. - required as per paragraph 11 of the Letter
comprising the Application for Qualification.



(iii) I/ We further certify that in regard to matters relating
to security and integrity of the country, we/ any Member of the
Consortium or any of our/ their Associates have not been
charge-sheeted by any agency of the Government or convicted by a Court
of Law. - required as per paragraph 12 of the Letter comprising the
Application for Qualification.



(iv) I/ We further certify that no investigation by
a regulatory authority is pending either against us/ any Member of the
Consortium or against our/ their Associates or against our CEO or any
of our directors/ managers/ employees. - required as per paragraph 13
of the Letter comprising the Application for Qualification.



(v) I/ We further certify that we are qualified to
submit a Bid in accordance with the guidelines for qualification of
bidders seeking to acquire stakes in Public Sector Enterprises through
the process of disinvestment issued by the GOI vide Department of
Disinvestment OM No. 6/4/2001-DD-II dated 13th July, 2001 which
guidelines apply mutatis mutandis to the Bidding Process. A copy of
the aforesaid guidelines form part of the RFQ at Appendix-V thereof. -
required as per paragraph 14 of the Letter comprising the Application
for Qualification.



(vi) A statement by the Applicant and each of the
Members of its Consortium (where applicable) or any of their
Associates disclosing material non-performance or contractual
non-compliance in past projects, contractual disputes and litigation/
arbitration in the recent past is given below (Attach extra sheets, if
necessary) - required as per paragraph 6 of Annex I to the Letter
comprising the Application for Qualification.



160. Both the 2010 RFQs (and the 2008 RFQs as well) for the
proposed diesel locomotive factory at Marhowra and the proposed
electric locomotive factory at Madhepura, required the Bidders to
comply with and give undertakings and certifications in accordance
with the Government of India Guidelines. Neither General Electric Co.,
nor its principal Indian subsidiary carrying on business in India (GE
India Industrial Private Limited), were in a position to provide the
certifications and disclosures required by the Government of India
guidelines. General Electric Company therefore fronted a shell company
as the Bidder for both the 2010 tenders. This shell company, GE Global
Sourcing India Private Limited had not executed any contracts and
therefore did not need to make any disclosures pertaining to
convictions/ indictments/ adverse orders/ charge-sheets or pending
investigations by a regulatory authority. General Electric Company
used GE Global Sourcing India Private Limited, a shell company, to
front as the applicant for these locomotive tenders because neither
General Electric Co. nor GE India Industrial Private Limited were able
or willing to provide the certifications and disclosures required by
the RFQs and the Government of India Guidelines.



161. Despite using GE Global Sourcing India Private Limited as the
applicant for the impugned tenders, GE still found it difficult to
provide these certifications because the Government of India
Guidelines require certifications on behalf of the Bidder and its
sister concerns. These guidelines also require disclosure of
investigations by regulatory authorities against the Bidder or its
sister concerns or against its CEO or any of its Directors/ Managers/
employees. The disclosure required covers full details of such
investigation including the name of the investigating agency, the
charge/ offence for which the investigation has been launched, name
and designation of persons against whom the investigation has been
launched and other relevant information to the satisfaction of the
Government.



162. To overcome this hurdle, General Electric managed to get the
language of the 2010 RFQ for the proposed diesel locomotive factory at
Marhowra changed and diluted. A comparison of the corresponding
clauses in the 2010 Marhowra RFQ and the 2010 Madhepura RFQ shows how
the language of the 2010 Marhowra RFQ was tailored to enable General
Electric to avoid disclosing any convictions/ indictments/ adverse
orders/ charge-sheets or pending investigations by a regulatory
authority on behalf of the Associates/ sister concerns of the Bidder
and their CEO or Directors/ Managers/ employees.



163. GE Global Sourcing India Private Limited, a wholly-owned
subsidiary of General Electric Co. has listed General Electric Co. as
its Associate in the technical/ RFQ bids for the 2010 tenders for the
Madhepura electric locomotive factory and the Marhowra diesel
locomotive factory and also in its RFQ application for the Dankuni
project (another Indian railways tender that General Electric was
short-listed for).



164. Clause 2.2.8 of the 2010 RFQ for the proposed diesel
locomotive factory at Marhowra defines an Associate as follows and
provides:



"In computing the Technical Capacity and Net Worth of the Applicant/
Consortium members under Clauses 2.2.2, 3.2 and 3.4, the Technical
Capacity and Net Worth of their respective Associates would also be
eligible hereunder.



For purposes hereof, Associate means in relation to the Applicant/
Consortium member, a person who controls, is controlled by, or is
under the common control with such Applicant/ Consortium member (the
"Associate"). As used in this definition, the expression "control"
means, with respect to a person which is a company or corporation, the
ownership, directly or indirectly, of more than 50% (fifty per cent)
of the voting shares of such person, and with respect to a person
which is not a company or corporation, the power to direct the
management and policies of such person, whether by operation of law or
by contract or otherwise."



Clause 2.2.9 (ii) of the 2010 RFQ for the proposed diesel locomotive
factory at Marhowra is also relevant. It provides:



"information supplied by an Applicant (or other constituent member if
the Applicant is a Consortium) must apply to the Applicant or
constituent member named in the Application and not, unless
specifically requested, to other associated companies or firms.
Invitation to submit Bids will be issued only to Applicants whose
identity and/ or constitution is identical to that at
prequalification".



165. The corresponding clauses in the 2010 RFQ for the proposed
electric locomotive factory at Madhepura are Clause 2.2.9 and 2.2.10
(b). Clause 2.2.9 of the 2010 Madhepura RFQ provides:



"In computing the Technical Capacity and Net Worth of the Applicant/
Consortium Members under Clauses 2.2.2, 2.2.4 and 3.2, the Technical
Capacity and the Net Worth of their respective Associates would also
be eligible hereunder.



For purposes of this RFQ, Associate means, in relation to the
Applicant/ Consortium Member, a person who controls, is controlled by,
or is under the common control with such Applicant/ Consortium Member
(the "Associate"). As used in this definition, the expression
"control" means, with respect to a person which is a company or
corporation, the ownership, directly or indirectly, of more than 50%
(fifty per cent) of the voting shares of such person, and with respect
to a person which is not a company or corporation, the power to direct
the management and policies of such person by operation of law."



Clause 2.2.10 (b) of the 2010 Madhepura RFQ provides:



"information supplied by an Applicant (or other constituent Member if
the Applicant is a Consortium) must apply to the Applicant, Member or
Associate named in the Application and not, unless specifically
requested, to other associated companies or firms. Invitation to
submit Bids will be issued only to Applicants whose identity and/ or
constitution is identical to that at pre-qualification".



166. The Madhepura 2010 RFQ was issued on March 2, 2010. The
Marhowra 2010 RFQ was issued on March 23, 2010.



167. The corresponding requirements in Appendix I (Letter
comprising the Application for Qualification) of the 2008 RFQ for the
proposed electric locomotive factory at Madhepura were as follows:



(i) We certify that in the last three years, we/
any of the Consortium Members have neither failed to perform on any
contract, as evidenced by imposition of a penalty or a judicial
pronouncement or arbitration award, nor been expelled from any project
or contract nor have had any contract terminated for breach on our
part. - required as per paragraph 6 of the Letter comprising the
Application for Qualification.



(ii) I/ We certify that in regard to matters other
than security and integrity of the country, we have not been convicted
by a Court of Law or indicted or adverse orders passed by a regulatory
authority which could cast a doubt on our ability to undertake the
Project or which relates to a grave offence that outrages the moral
sense of the community. - required as per paragraph 11 of the Letter
comprising the Application for Qualification.



(iii) I/ We further certify that in regard to matters relating
to security and integrity of the country, we have not been
charge-sheeted by any agency of the Government or convicted by a Court
of Law for any offence committed by us or by any of our Associates. -
required as per paragraph 12 of the Letter comprising the Application
for Qualification.



(iv) I/ We further certify that no investigation by
a regulatory authority is pending either against us or against our
Associates or against our CEO or any of our Directors/ Managers/
employees. - required as per paragraph 13 of the Letter comprising the
Application for Qualification.



(v) I/ We further certify that we are qualified to
submit a Bid in accordance with the guidelines for qualification of
bidders seeking to acquire stakes in Public Sector Enterprises through
the process of disinvestment issued by the GOI vide Department of
Disinvestment OM No. 6/4/2001-DD-II dated 13th July, 2001 which
guidelines apply mutatis mutandis to the Bidding Process. A copy of
the aforesaid guidelines form part of the RFQ at Appendix-IV thereof.
- required as per paragraph 14 of the Letter comprising the
Application for Qualification.



(vi) A statement by the Applicant and each of the
Members of its Consortium (where applicable) disclosing material
non-performance or contractual noncompliance in past projects,
contractual disputes and litigation/ arbitration in the recent past is
given below (Attach extra sheets, if necessary) - required as per
paragraph 6 of Annex I to the Letter comprising the Application for
Qualification.



Clause 2.2.9 of the 2008 Madhepura RFQ defines an 'Associate" and
provides as follows:



"In computing the Technical Capacity and Net Worth of the Applicant/
Consortium Members under Clauses 2.2.2, 2.2.4 and 3.2, the Technical
Capacity and Net Worth of their respective Associates would also be
eligible hereunder. For purposes hereof, Associate means, in relation
to the Applicant/ Consortium Member, a person who controls, is
controlled by, or is under the common control with such Applicant/
Consortium Member (the "Associate"). As used in this definition, the
expression "control" means, with respect to a person which is a
company or corporation, the ownership, directly or indirectly, of more
than 50% (fifty per cent) of the voting shares of such person, and
with respect to a person which is not a company or corporation, the
power to direct the management and policies of such person, whether by
operation of law or by contract or otherwise."



Clause 2.2.10 (ii) of the 2008 Madhepura RFQ provides:



"information supplied by an Applicant (or other constituent Member if
the Applicant is a Consortium) must apply to the Applicant, Member or
Associate named in the Application and not, unless specifically
requested, to other associated companies or firms. Invitation to
submit Bids will be issued only to Applicants whose identity and/ or
constitution is identical to that at pre-qualification".



168. A comparison of the relevant paragraphs from the three RFQs -
the 2008 Madhepura RFQ, the 2010 Madhepura RFQ, and the 2010 Marhowra
RFQ exhibits a curious pattern of tightening and dilution of language
pertaining to the requirements imposed by the above-discussed
Government of India guidelines. The comparison exposes a pattern of
arbitrary modification of language from one RFQ to another. It is
submitted not only are these arbitrary modifications that cannot be
justified, but it cannot be a mere coincidence that the modifications
introduced suited General Electric's requirements and strategy
perfectly and enabled General Electric to avoid making disclosures
that it was unable or unwilling to even though these disclosures were
mandated by the applicable GOI guidelines. The relevant disclosure
requirements in the 2010 Marhowra RFQ were diluted at the instance of
General Electric and because of prohibited lobbying of Indian Railways
and Planning Commission officials by General Electric executives,
employees and agents and pursuant to corrupt dealings between Indian
Railways and Planning Commission officials and General Electric. These
unjustifiable and unlawful changes to the 2010 Marhowra RFQ language
violate (i) the GOI Guidelines for qualification of Bidders seeking to
acquire stakes in Public Sector Enterprises through the process of
disinvestment issued vide Office Memorandum No. 6/4/2001DDII dated
July 13, 2001; (ii) the GOI Guidelines issued by the Ministry of
Finance (F.No. 24(1)/PF.II/07) titled 'Guidelines for
Pre-Qualification of Bidders for PPP Projects'; and (iii) the
Government of India endorsed and recommended model RFQ.



169. Copies of the Guidelines issued by the Ministry of Finance
(F.No. 24(1)/PF.II/07) titled 'Guidelines for Pre-Qualification of
Bidders for PPP Projects' and the Government of India endorsed and
recommended model RFQ have been filed by the petitioner before this
court.





Comparison of relevant paragraphs setting out disclosure requirements
in the 2008 Madhepura RFQ, the 2010 Madhepura RFQ, and the 2010
Marhowra RFQ



2008 Madhepura RFQ

2010 Madhepura RFQ

2010 Marhowra RFQ

Para 6 of Appendix I



Does not have language "or any of our/ their Associates"



Has language "nor have had any contract terminated for breach on our part."

Para 6 of Appendix I



Has language "or any of our/ their Associates"





Has language "nor have had any contract terminated by any public authority

for breach on our part"

Para 5 of Appendix I



Does not have language "or any of our/ their Associates"



Has language "nor have had any contract terminated for breach on our part"

Para 11 of Appendix I



Does not have language "or any of our/ their Associates"

Para 11 of Appendix I



Has language "or any of our/ their Associates"

Para 10 of Appendix I



Does not have language "or any of our/ their Associates"

Para 12 of Appendix I



Has language "we have not been charge-sheeted by any agency of the
Government or convicted by a Court of Law for any offence committed by
us or by any of our Associates"

Para 12 of Appendix I



Has language "we/ any Member of the Consortium or any of our/ their Associates

have not been charge-sheeted by any agency of the Government or convicted by a

Court of Law"

Para 11 of Appendix I



Has language "we have not been charge-sheeted by any agency of the
Government or convicted by a Court of Law for any offence committed by
us or by any of our Associates"

Para 13 of Appendix I



Has language "against us or against our Associates or against our CEO
or any of our Directors/ Managers/ employees".







Does not have language "that affects our ability to undertake /
execute the Project."

Para 13 of Appendix I



Has language "against us/ any Member of the Consortium or against our/
their Associates or against our CEO or any of our directors/ managers/
employees."



Does not have language "that affects our ability to undertake /
execute the Project."

Para 12 of Appendix I



Has language "against us or against our Associates or against our CEO
or any of our Directors/ Managers/ employees."







Has language "that affects our ability to undertake / execute the Project."

Para 14 of appendix I



Has language "I/ We further certify that we are qualified to submit a
Bid in accordance with the guidelines for qualification of bidders
seeking to acquire stakes in Public Sector Enterprises through the
process of disinvestment issued by the GOI vide Department of
Disinvestment OM No. 6/4/2001-DD-II dated 13th July, 2001"

Para 14 of Appendix I



Has language "I/ We further certify that we are qualified to submit a
Bid in accordance with the guidelines for qualification of bidders
seeking to acquire stakes in Public Sector Enterprises through the
process of disinvestment issued by the GOI vide Department of
Disinvestment OM No. 6/4/2001-DD-II dated 13th July, 2001"

Para 13 of Appendix I



Has language "I/ We further certify that we are not disqualified in
terms of the additional criteria specified by the Department of
Disinvestment in their OM No. 6/4/2001DDII dated July 13, 2001"

Para 6 of Annex I to Appendix I



Does not have language "or any of their Associates"



Does not have language "that exceed 5% of the contract value"

Para 6 of Annex I to Appendix I



Has language "or any of their Associates"





Does not have language "that exceed 5% of the contract value"

Para 7 of Annex I to Appendix I



Does not have language "or any of their Associates"



Has language "that exceed 5% of the contract value"

Clause 2.2.10 (ii)



Has language "information supplied by an Applicant (or other
constituent Member if the Applicant is a Consortium) must apply to the
Applicant, Member or Associate named in the Application and not,
unless specifically requested, to other associated companies or firms"

Clause 2.2.10 (b)



Has language "information supplied by an Applicant (or other
constituent Member if the Applicant is a Consortium) must apply to the
Applicant, Member or Associate named in the Application and not,
unless specifically requested, to other associated companies or firms"

Clause 2.2.9 (ii)



Has language "information supplied by an Applicant (or other
constituent member if the Applicant is a Consortium) must apply to the
Applicant or constituent member named in the Application and not,
unless specifically requested, to other associated companies or firms.





170. The comparison between relevant corresponding paragraphs
setting out the disclosure requirements in the 2008 Madhepura RFQ, the
2010 Madhepura RFQ, and the 2010 Marhowra RFQ therefore shows the
following:



(a) The disclosures under paragraph 6 of Appendix 1
were not extended to Associates of the Bidder in the 2008 Madhepura
RFQ. The 2010 Madhepura RFQ was tightened to extend these disclosures
to Associates of Bidders. Curiously, the 2010 Marhowra RFQ also did
not extend these disclosures to Associates of the Bidder.



The 2010 Marhowra RFQ therefore violated the GOI disclosure guidelines.



(b) Required disclosures by Bidders about expulsion from
projects/ contracts and about contract terminations were diluted in
the 2010 Madhepura RFQ by introduction of language that is absent from
the 2008 Madhepura RFQ and the 2010 Marhowra RFQ. Additional language
was introduced to the relevant provision in the 2010 Madhepura RFQ to
limit these disclosures to adverse actions by public authorities.
Disclosures under the 2008 Madhepura RFQ and the 2010 Marhowra RFQ
were not limited in this manner.



The 2010 Madhepura RFQ therefore violated the GOI disclosure guidelines.



(c) Disclosures about convictions, indictments and
adverse orders passed by a regulatory authority did not extend to
Associates of the Bidder in the 2008 Madhepura RFQ. The 2010 Madhepura
RFQ was tightened to extend these disclosures to Associates of
Bidders. Curiously, the 2010 Marhowra RFQ also did not extend these
disclosures to Associates of the Bidder.



The 2010 Marhowra RFQ therefore violated the GOI disclosure guidelines.



(d) Disclosures relating to charge-sheeting in matters
affecting the security and integrity of India were limited to
charge-sheeting of the Bidder in the 2008 Madhepura RFQ. The 2010
Madhepura RFQ was tightened to extend these disclosures to
charge-sheeting of the Bidders, consortium members, and Associates of
the Bidder and of the consortium members. Curiously, these disclosures
under the 2010 Marhowra RFQ were limited to charge-sheeting of the
Bidder and did not extend to charge-sheeting of the Associates of the
Bidder and of the consortium members.



The 2010 Marhowra RFQ therefore violated the GOI disclosure guidelines.



(e) Disclosures about pending investigations by a
regulatory authority were limited to Bidders, their Associates and to
the CEO, Directors, Managers and employees of the Bidder in the 2008
Madhepura RFQ. The 2010 Madhepura RFQ extended these disclosures to
consortium members and Associates of consortium Members. The 2010
Marhowra RFQ not only does not extend the disclosure to consortium
members and Associates of consortium members, but goes even further in
diluting this requirement so as to render it completely meaningless,
inoperative and nugatory. The 2010 Marhowra RFQ inserts language that
limits these disclosures to pending investigations of regulatory
authorities which in the subjective opinion of a Bidder affect its
ability to undertake / execute the Project.



The 2010 Marhowra RFQ therefore violated the GOI disclosure guidelines.



(f) Both the 2008 and the 2010 Madhepura RFQs contain a
positive undertaking by the Bidders that they are qualified to submit
a bid in accordance with the Government of India guidelines. The 2010
Marhowra RFQ however, does not require a positive declaration/
certification that the Bidder is qualified under these guidelines.
Instead the 2010 Marhowra RFQ only requires a negative certification
that the Bidder is not disqualified in terms of the additional
criteria specified by the Government of India guidelines.



The 2010 Marhowra RFQ therefore violated the GOI disclosure guidelines.



(g) The requirement to disclose material non-performance
and contractual non-compliance in past projects and recent contractual
disputes, litigation and arbitration did not extend to Associates of
the Bidder in the 2008 Madhepura RFQ. The 2010 Madhepura RFQ was
tightened to extend these disclosures to Associates of Bidders. The
2010 Marhowra RFQ also did not extend these disclosures to Associates
of the Bidder. And once again the 2010 Marhowra RFQ goes much further
in diluting this disclosure requirement through new language that
seeks to limit these disclosures to those "that exceed 5% of the
contract value". This extra language in paragraph 7 of Annex 1 to
Appendix I the 2010 Marhowra RFQ does not even make logical sense when
read with the rest of this paragraph. The disclosures mandated by this
provision are about material non-performance and contractual
non-compliance in past projects and about recent contractual disputes,
litigation and arbitration. It is not made clear how the limit of 5%
of the contract value applies to events mentioned in this provision.
It appears that this extra language was hurriedly inserted into this
provision and that the dilution of the disclosure requirement was
sought to be protected from scrutiny by not going for an overall
redrafting of this provision. A condition for disclosure was added
that could be subjectively interpreted by the Bidder to mean anything.
This would then protect a Bidder from a charge of non-responsiveness
if subsequently any questions were raised.



The 2010 Marhowra RFQ violated the GOI disclosure guidelines.



(h) Clause 2.2.10 in the 2008 Madhepura RFQ included
general instructions for submitting an application and it provided
that information supplied by an Applicant (or other constituent Member
if the Applicant is a Consortium) must apply to the Applicant, Member
or Associate named in the Application and not, unless specifically
requested, to other associated companies or firms. Thus disclosures
were mandatory for Associates of the Bidder named in the application.
This was also the requirement in the corresponding provision in the
2010 Madhepura RFQ. In the 2010 Marhowra RFQ however, the
corresponding provision states that information need only be supplied
for the Bidder and consortium members. Associates of the Bidder named
in the Application are not covered by this provision. The effect of
this omission in the 2010 Marhowra diesel locomotive factory RFQ is
that this provision could be interpreted to mean that the Bidder was
not required to disclose information for its Associates.



The 2010 Marhowra RFQ therefore violated the GOI disclosure guidelines.





171. It is pointed out that paragraph 12 of Appendix I to the 2010
Marhowra RFQ states that pending investigations by regulatory
authorities are also required for Associates of the Bidder. However,
the introduction of the words "that affects our ability to undertake /
execute the Project" in paragraph 12 of the 2010 Marhowra RFQ renders
the certification requirement useless as any and every bidder could
say (without resort to any external objective standard) that a
particular ongoing regulatory investigation did not affect the ability
of the bidder to execute the project. The introduction of this
subjective element which cannot be objectively verified by the Indian
Railways has reduced this important requirement (that was to be
mandatorily met by all bidders) to a nullity or a mere formal
unverifiable and therefore meaningless statement. It will also be of
interest to see what the corresponding language was in the 2008
Marhowra RFQ.



172. Clause (g) of the aforesaid GOI disclosure guidelines at
Appendix –IV of the 2010 Marhowra RFQ provides:



"The bidders shall be required to provide with their EOI an
undertaking to the effect that no investigation by a regulatory
authority is pending against them. In case any investigation is
pending against the concern or its sister concern or against its CEO
or any of its Directors/ Managers/ employees, full details of such
investigation including the name of the investigating agency, the
charge/ offence for which the investigation has been launched, name
and designation of persons against whom the investigation has been
launched and other relevant information should be disclosed, to the
satisfaction of the Government. For other criteria also, a similar
undertaking shall be obtained along with EOI."



173. The RFQ is equivalent to the EOI (Expression of Interest)
referred to in the above Clause (g). However, the language in
paragraph 12 of the Letter comprising the Application for
Qualification (Appendix-I) in the 2010 Marhowra RFQ does not meet the
mandatory requirement of the above-quoted Clause (g) of the Government
of India's guidelines dated July 13, 2001. It is relevant to ask when
and how was this change introduced into the language of Clause 12 of
the Marhowra 2010 RFQ. This change obviously benefits General Electric
because it enabled General Electric to avoid disclosing pending
investigations by a regulatory authority against General Electric
Company.



174. The above discrepancies and differences in three different
RFQs, all three issued by the Ministry of Railways and all expressly
made subject to compliance with the Government of India 'Guidelines
for qualification of Bidders seeking to acquire stakes in Public
Sector Enterprises through the process of disinvestment' (the GOI
disclosure guidelines), cannot be justified. These give rise to a
reasonable and strong apprehension that some Bidders like General
Electric were being favoured and that the RFQ terms were crafted and
modified by corrupt Planning Commission and Indian Railways officials
to help General Electric in qualifying without making the required
mandatory disclosures.



175. Guidelines were issued by the Ministry of Finance (F.No.
24(1)/PF.II/07) titled 'Guidelines for Pre-Qualification of Bidders
for PPP Projects'. These guidelines along-with an enclosed Government
of India endorsed model RFQ were forwarded by the Ministry of Finance
to several Government of India departments including to the Chairman
of the Railway Board on December 5, 2007. The corresponding
certification and disclosure clauses recommended in the GOI model RFQ
also establish that the certification/ disclosure provisions of the
2010 Marhowra RFQ were diluted to benefit General Electric so as to
enable it to qualify without making the disclosures required by the
GOI disclosure guidelines that were expressly made applicable to the
tender.



176. General Electric has clearly benefited from and taken
advantage of the diluted disclosure requirements under the 2010
Marhowra RFQ.



177. In contrast, General Electric was unable to comply with the
more stringent disclosure requirements in the 2010 Madhepura RFQ.
Therefore, in its technical bid for the 2010 Madhepura RFQ submitted
on May 17, 2012 prepared while the petitioner was working for General
Electric, General Electric limited its disclosures only to those
disclosures ordinarily made by General Electric under US securities
laws to the United States Securities and Exchange Commission (the
SEC). General Electric has therefore not complied with the disclosure/
certification requirements in the 2010 Madhepura RFQ. General
Electric's short-listing/ qualification for the 2010 Madhepura tender
was in violation of the RFQ and the Government of India disclosure
guidelines dated July 13, 2001 and was therefore liable to be set
aside.



178. General Electric has also not complied with the Government of
India disclosure guidelines dated July 13, 2001 in its technical bid
for the 2010 Marhowra RFQ. General Electric has made no disclosures
about the real bidder, General Electric Company, which provides the
requisite net-worth, technical experience, technology, and
intellectual property rights for General Electric's bid that has been
submitted using a shell company (GE Global Sourcing India Private
Limited), a wholly-owned subsidiary that had zero experience of public
contracts or manufacturing.



179. In addition, the dilution of the disclosure/ certification
requirements in the 2010 Marhowra RFQ in violation of the Government
of India guidelines dated July 13, 2001 rendered Global RFQ No.
2010/ME(Proj)/4/ Marhoura / the invitation to bid issued by the
Ministry of Railways unlawful, arbitrary, bad in law and liable to be
quashed.



180. Another important question that arises before this court is
why were the disclosure/ certification requirements tightened/
strengthened in the 2010 Madhepura RFQ over the 2008 Madhepura RFQ?
Was an objection raised within the Government that the 2008 Madhepura
RFQ did not comply with the Government of India guidelines dated July
13, 2001? This would certainly appear to be the case for the changes
made in the 2010 Madhepura RFQ. The question remains why similar
changes were not introduced in the 2010 Marhowra RFQ, which also does
not comply with the GOI disclosure guidelines dated July 13, 2001.



181. As stated above, General Electric was unable/ unwilling to
comply with the more stringent disclosure requirements under the 2010
Madhepura RFQ and was unable/ unwilling to provide the clear
certifications as required by paragraphs 6, 11 and 13 of Appendix I of
that RFQ.



182. Soon after the petitioner started work at General Electric on
April 23, 2010, she was informed that General Electric was unable to
provide the clear certifications as required under the Madhepura RFQ
application due on May 17, 2010. The petitioner was informed that
General Electric would provide conditional/ limited certifications and
would only disclose those adverse events that it was liable to
disclose to the SEC under United States law in routine filings.
Accordingly General Electric made modifications to the relevant
provisions in Appendix I stating that the disclosures were limited to
those ordinarily made to the SEC. The application for qualification/
technical bid submitted by General Electric for the 2010 Madhepura RFQ
on May 17, 2010 therefore contained a modified appendix I and was
liable to be treated as non-responsive because the required
disclosures have not been made. General Electric had therefore not
made the full disclosures required by the 2010 Madhepura RFQ. Even
internally within GE, these modifications to the language of appendix
I were viewed as risky. Despite this failure to comply with the
disclosure requirements under the RFQ and the GOI disclosure
guidelines, General Electric was qualified/ short-listed by the
Railways Ministry for the 2010 Madhepura tender. The fact is that
General Electric was unable/ unwilling to provide the certifications
required under the 2010 Madhepura RFQ and the GOI guidelines dated
July 13, 2001. General Electric's RFQ application for the 2010
Madhepura tender was therefore non-responsive and also in violation of
the aforesaid GOI guidelines dated July 13, 2001. General Electric
should not have been prequalified for this tender by respondent 4.
This is yet another reason why General Electric's bid for this tender
(the 2010 Madhepura tender) was liable to be rejected.



183. The reason General Electric was unable/ unwilling to provide
the certifications required by the 2010 Madhepura RFQ is because
paragraphs 6, 11, 12 and 13 of Appendix I to the RFQ requires
disclosures for the Bidder's Associate. The bidder is as pointed out,
a shell company, GE Global Sourcing India Private Limited (respondent
7). Its Associate for the bid is General Electric Company (respondent
1). General Electric was unable/ unwilling to provide the
certifications and disclosures required by the 2010 Madhepura RFQ
under paragraphs 6, 11, 12 and 13 of Appendix I for General Electric
Company. In its letter comprising the application for Qualification
submitted for the Madhepura electric locomotive factory tender on May
17, 2010, General Electric has added the words "subject to" before
paragraphs 11 and 13 and then provided an explanation that the
disclosures were limited to matters required to be disclosed by
General Electric under SEC guidelines. Disclosures under SEC
guidelines and US securities law are essentially limited to disputes
having a substantial financial impact upon the company. In the case of
General Electric Company, the actual numbers that would have a
significant financial impact work out to be quite high. Also, matters/
disputes considered normal and routine in the course of business do
not require disclosure to the SEC unless they create a significant
potential financial liability. The disclosures required by the GOI
Guidelines for qualification of Bidders seeking to acquire stakes in
Public Sector Enterprises through the process of disinvestment' and by
the GOI recommended model RFQ are more stringent because they meet a
different standard and serve a different purpose. Therefore GE Global
Sourcing India Private Limited had not complied with the 2010
Madhepura RFQ requirement to provide clear certifications or make the
required disclosures. GE Global Sourcing India Private Limited had
also failed to comply with the requirements of the Government of India
'Guidelines for qualification of Bidders seeking to acquire stakes in
Public Sector Enterprises through the process of disinvestment'.
General Electric's technical bid for the 2010 tender for the proposed
electric locomotive factory at Madhepura was therefore non-responsive
and non-compliant.



184. General Electric could have made appropriate disclosures as
part of its technical bid for the Madhepura tender in 2010, but did
not. There are three possible reasons why General Electric did not
make the required disclosures. First, the petitioner was told by Ms
Tara Plimpton and Mr James Winget (both in-house lawyers for GE
Transportation at the relevant time) that it was not possible for
General Electric to compile the information required for these
disclosures from its businesses spread all over the world. Second, the
petitioner also learnt that General Electric had been disqualified/
blacklisted for a tender in a South American country, probably Brazil.
It is possible that General Electric did not want to make disclosures
that could be relied upon by the Railway Ministry to disqualify its
bid. The third reason was that General Electric had made no
disclosures in its 2008/2009 technical bid for the Marhowra tender and
therefore any disclosures made by General Electric for the Madhepura
2010 tender would have raised red flags in the Ministry of Railways as
to why these were not disclosed in 2009. The petitioner came across
this reason in an email written by Mr. Pratyush Kumar to General
Electric executives in GE Transportation's US headquarters.



185. As submitted, the 2010 RFQ for the proposed Marhowra diesel
locomotive factory also did not comply with the GOI 'Guidelines for
qualification of Bidders seeking to acquire stakes in Public Sector
Enterprises through the process of disinvestment'. The disclosure/
certification requirements prescribed in this RFQ were a diluted
version of the disclosure/ certification requirements prescribed by
the GOI disclosure guidelines. This dilution was clearly intended to
benefit General Electric. The 2010 Marhowra RFQ was ultra vires and
violative of the GOI disclosure guidelines as it omitted disclosures/
certifications for "Associates" of the Bidder. As a result, General
Electric avoided making disclosures for General Electric Company
(respondent 1) and the de-facto bidder by using a shell company, GE
Global Sourcing India Private Limited as the applicant. GE Global
Sourcing India Private Limited being a shell company, and having never
manufactured or supplied locomotives or any other product for that
matter, had a clean slate and therefore made no disclosures in its
technical bid for the 2010 Marhowra RFQ submitted on July 12, 2010.
This failure by General Electric to make disclosures about the
de-facto and real Bidder (General Electric Company/ respondent 1)
violated the GOI disclosure guidelines (Guidelines for qualification
of Bidders seeking to acquire stakes in Public Sector Enterprises
through the process of disinvestment).



186. The Global RFQ No. 2010/ME(Proj)/4/Marhoura/RFQ prepared by
the Ministry of Railways, Government of India in March 2010 also
violated the GOI 'Guidelines for qualification of Bidders seeking to
acquire stakes in Public Sector Enterprises through the process of
disinvestment'. The modifications made to this RFQ by Respondent 4 to
dilute the disclosure requirements and to thereby benefit General
Electric were unjustifiable, illegal and ultra-vires. Global RFQ No.
2010/ME(Proj)/4/Marhoura/RFQ was therefore liable to be scrapped.



187. For the reasons set out above, the 2010 Marhowra RFQ and the
2010 Madhepura RFQ were in violation of the Government of India
Guidelines dated July 13, 2001 and also in violation of the Ministry
of Finance Guidelines for Pre-qualification of Bidders for PPP
Projects dated December 5, 2007 and with office memorandum No. F.No.
24(1)/PF.II/07 and were therefore illegal, ultravires and liable to be
quashed/ scrapped.



188. GE Global Sourcing India Private Limited (respondent 7), the
applicant in the 2010 Madhepura electric locomotive factory tender,
the 2010 Marhowra diesel locomotive factory tender, and the 2010
Dankuni tender is a shell company that has been fronted as the
Applicant by General Electric Company to avoid providing the
certifications required by the Government of India Disinvestment
Guidelines (No. 6/4/2001DDII) dated July 13, 2001. GE Global Sourcing
India Private Limited changed its registered office address in late
July 2010 to AIFACS Building, 1 Rafi Marg, New Delhi 110001 India.
Prior to that, the registered office of GE Global Sourcing India
Private Limited was a Mumbai address and the address was "care of" the
office address of another company which was a non-GE entity. Thus the
technical bids submitted by GE Global Sourcing India Private Limited
on May 17, 2010 and on July 2010 contained the registered office
address which began with "C/o" followed by another company's name
which was not a GE company.



189. The petitioner pointed out to Mr. Pratyush Kumar, Mr, Deepak
Adlakha and other members of the GE Transportation team in India in
the week commencing May 10, 2010 that it was inappropriate for GE
Global Sourcing India Private Limited to use another company's office
as its registered office, especially when this entity was bidding for
multi-billion dollar railway tenders. After the petitioner pointed
this out, steps were taken to change the registered office for GE
Global Sourcing India Private Limited and the change was finally
approved in late July 2010. There are internal GE emails dating July
2010 exchanged between the petitioner and General Electric executives
(including Mr. K R Radhakrishnan, the company secretary for GE India
Industrial Private Limited) on the necessity to notify the change in
the registered office of the Applicant to the Ministry of Railways as
required by the RFQs for the three 2010 tenders (i.e., the Madhepura,
Marhowra and Dankuni tenders).



190. That GE Global Sourcing India Private Limited was a shell
company, at least in 2010, is also evident from its memorandum of
association, its object clause and the description of its business
activities. These came to the attention of the petitioner when she was
reviewing the technical bid documents for GE's bid for the Marhowra
diesel locomotive factory tender in late June and early July 2010.
Annex I to the Letter comprising the application for qualification
submitted by GE contained "Details of Applicant". Paragraph 2 of Annex
I asks for a "Brief description of the Company including details of
its main lines of business and proposed role and responsibilities in
this Project." The petitioner recalls that the business of GE Global
Sourcing India Private Limited was described in paragraph 2 of Annex I
as surveying catalogues on the internet or something similar. The
petitioner pointed out to Mr. Ashfaq Nainar that the business
description for the Applicant (GE Global Sourcing India Private
Limited) showed that it was a shell company. Mr. Ashfaq Nainar agreed
that that the Applicant was a shell company but stated that nothing
could be done about this.



191. The petitioner also recalls a conversation in late June 2010,
with Ms. Himali Arora, the then CFO for GE Transportation in India,
and Mr. Ashish Malhotra, a General Electric executive working on the
locomotive tenders, during which Ms. Himali Arora admitted that GE
Global Sourcing India Private Limited's funds being limited could not
be disclosed, and that buying the tender documents (the RFPs) for
these locomotive tenders had depleted the funds in its bank balance.



192. The reason why General Electric has used a shell company to
front as the applicant for these locomotive tenders is because neither
respondent 1 (General Electric Co.), nor respondent 6 (GE India
Industrial Private Limited) were willing/ able to provide the
certifications required by the RFQs to comply with the Government of
India Guidelines for qualification of Bidders seeking to acquire
stakes in Public Sector Enterprises through the process of
disinvestment bearing Office Memorandum No. 6/4/2001DDII and dated
July 13, 2001. In failing to provide the mandated/ required
disclosures and certifications in its technical bids for the 2010 RFQ
for the electric locomotive factory and the 2010 RFQ for the diesel
locomotive factory, and by using a shell company as the Bidder for
this purpose, GE engaged in "fraudulent practices" as defined by
Clause 4.3 (b) and Clause 4.1.3 b) of these RFQs respectively. Both
these clauses define a fraudulent practice thus: "fraudulent practice"
means a misrepresentation or omission of facts or suppression of facts
or disclosure of incomplete facts, in order to influence the Bidding
Process".

193. The affidavit filed by the Railway Ministry on 14 January 2013
confirms that General Electric failed to make the mandatory
disclosures in its technical bids for the 2010 ELF and DLF RFQs and
that this was enabled by tailoring the RFQ language (with the help of
corrupt Railway Ministry and Planning Commission officials) and by
fraudulently using a shell company to front as the bidding entity and
by modifying the language of the disclosure clauses in the technical
bids.





Issue of tailored eligibility criteria for ELF 2010 and 2013 tenders

194. The eligibility criteria prescribed in the 2010 RFQ for the
electric locomotive factory at Madhepura was tailored/ crafted to
specifically permit General Electric to participate in this tender
even though General Electric does not manufacture electric
locomotives.



195. The reply affidavit filed by the Railway Ministry on 14
January 2013 seeks to mislead the court about the government's reasons
for diluting the eligibility criteria for ELF in 2010. This affidavit
also misleads the court that companies which manufacture only diesel
locomotives are somehow also eligible to set up a factory to
manufacture electric locomotives.



196. The new RFQs issued on 6 May 2013 continue to perpetuate these
illegalities and this corruption.



197. Paragraph 27 of Civil Writ Petition 1280 of 2012 states:

"The Electric Locomotive Tender is for setting up a factory to
manufacture electric locomotives in Madhepura in Bihar. General
Electric does not manufacture electric locomotives, yet the
prequalification criteria and technical specifications in the 2010 RFQ
for this tender have been deliberately tailored to allow GE to
pre-qualify for this tender. A comparison of clauses 2.2.2A, 3.2.1 and
3.2.4 in RFQ No. 2010/ Elect. (Dev0 440/1(1) with those in the 2008
RFQ will provide evidence that the 2010 RFQ for the Electric
Locomotive Tender was tailored to allow GE to bid. GE was ineligible
under the 2008 RFQ for Electric Locomotives."



198. A tender for the same project (electric locomotive factory at
Madhepura) was floated in 2008-2009. Under the terms of the 2008 RFQ,
GE was ineligible for this Project and consequently it did not
participate in the 2008/ 2009 tender. Technical bids were submitted by
five companies in 2008 for this Project. These were Alstom (France),
Bombardier (Germany), Siemens (Germany), a consortium comprising
China-based CSR Zhuzhou Electric Loco Works and Monnet International,
and a Japanese consortium comprising Mitsubishi, Kawasaki and Toshiba.
The Ministry of Railways short listed three bidders in 2008 – Alstom,
Bombardier and Siemens. The 2008/2009 tender was eventually cancelled
in February 2009.



199. A new tender for the same project (electric locomotive factory
at Madhepura) was floated in 2010. The eligibility criteria was
modified/ diluted from that prescribed in the 2008 RFQ and the
requirement for previous experience in manufacture/ supply/
maintenance of electric locomotives that was present in the 2008 RFQ
was left out in 2010. These changes/ dilutions benefited only one
party, General Electric and allowed General Electric to participate in
this tender even though it does not manufacture electric locomotives
or even possess the technology to manufacture electric locomotives. At
the same time, new conditions were inserted in the 2010 Madhepura RFQ
aimed at disqualifying the Chinese and Japanese competition.



200. Therefore in 2010, General Electric was rendered eligible to
participate in the Madhepura tender even though it does not
manufacture electric locomotives. Four bidders (Siemens, Alstom,
Bombardier and General Electric) submitted technical bids for the 2010
Madhepura tender on May 17, 2010. All four were shortlisted for stage
2 of the Bid – the financial bid.



201. The following changes were made to the eligibility conditions
in the 2010 Madhepura RFQ with the intent to render General Electric
eligible:



(a) deletion of the requirement that the bidder should
have manufacturing experience of electric locomotives;

(b) deletion of the requirement that the bidder have
capability to manufacture electric locomotives with 1000HP per axle
and experience of supply (sales) of such locomotives; and

(c) deletion of the requirement that the bidder have
maintenance experience for electric locomotives.



201. General Electric does not manufacture electric locomotives and
does not possess the technology to manufacture electric locomotives. A
McKinsey document titled "20100522_Working session_V04.ppt" and dated
May 22, 2010 that has been filed by the Petitioner alongwith her
affidavit dated July 9, 2012 establishes that General Electric does
not possess the technology, the expertise and the experience to
manufacture electric locomotives.



202. The following changes were made to the eligibility conditions
in the 2010 Madhepura RFQ with the intent to render the Japanese and
Chinese competition and other possible bidders (being manufacturers of
electric locomotives using third party technology, even if under valid
licence) ineligible:



i.
introduction of the requirement that the bidder
should have designed an IGBT based propulsion system; and

ii.
prohibition of the use of third party technology even
under valid licence.





203. The changes introduced into the eligibility criteria for the
Madhepura project in the 2010 RFQ resulted in the anomalous situation
where experienced manufacturers of electric locomotives with licensed
technology were barred from participation in the tender; whereas
General Electric which does not manufacture electric locomotives, has
no recent experience or expertise in the manufacture of such
locomotives, and does not possess the technology (whether
self-developed or licensed) to manufacture electric locomotives, was
not only been rendered eligible under the tailored eligibility
criteria in the 2010 Madhepura RFQ but was also short-listed. The
Chinese and Japanese consortia who bid for this project in 2008 were
outright disqualified. The cumulative effect of the modifications to
the eligibility conditions introduced into the 2010 Madhepura RFQ was
that only General Electric, Siemens, Alstom and Bombardier were able
to meet these conditions. No existing Indian manufacturer (for example
BHEL) was eligible.



204. The tailoring of eligibility criteria in the 2010 Madhepura
RFQ aimed at allowing General Electric to submit a bid even though
General Electric does not manufacture electric locomotives, is very
similar to what happened in Pakistan tenders for purchase of
locomotives between 2009 to the present. Very similar allegations of
tailor-made tenders and corruption were made to Pakistani authorities
by other locomotive manufacturers against General Electric and corrupt
Pakistan Railways officials. These complaints were accepted by the
Lahore High Court and by the Pakistan Supreme Court. The tainted
tenders were scrapped and the Pakistan courts have directed Pakistan
Railways to re-tender the procurement of locomotives in a transparent
manner and through international competitive bidding wherein all
international locomotive manufacturers will be invited to make offers
for supply of locomotives. I point out that Mr. Ashfaq Nainar from
General Electric (who the petitioner worked with during her time at
General Electric) was the main sales executive from General Electric
pursuing both the Pakistani and the Indian tenders.



205. For the convenience of the court, the petitioner reproduces
below the relevant clauses on eligibility criteria from the 2008 and
2010 Madhepura RFQs:



Clause 2.2.1 (e) of the 2008 Madhepura RFQ provided:

"The Applicant, in case of a single entity, shall be a manufacturer of
IGBT based Propulsion System and Mechanical System of Electric
Locomotives/High Speed Train Sets, or in the case of a Consortium, the
Lead Member, shall either be a manufacturer of IGBT based Propulsion
System or of Mechanical System of Electric Locomotives/High Speed
Train Set and other member shall be a manufacturer of the other
system."



Clause 2.2.1 (f) of the 2008 Madhepura RFQ provided:

"The Applicant should have the capability of producing electric
locomotives with at least 1, 000 (one thousand) horsepower per axle
and shall have supplied at least 10 (ten) such electric locomotives
during the past 3 (three) years."



Clause 2.2.2 (A) of the 2008 Madhepura RFQ prescribed the Technical
Capacity eligibility criteria:

"Technical Capacity: For demonstrating technical capacity and
experience (the "Technical Capacity"), the Applicant shall, over the
past 5 (five) financial years preceding the Application Due Date,
have:

(i) designed, manufactured and supplied Electric Locomotives
comprising Eligible Projects; and/ or

(ii) designed, manufactured and supplied High Speed Train Sets
comprising Eligible Projects.

such that the sum total of the horse power of the above supplies
exceeds 1,800,000 (one million eight hundred thousand) horse power
(the "Threshold Technical Capability")"



Clause 2.2.3 of the 2008 Madhepura RFQ provided the maintenance
experience required for prequalification:

"Maintenance Experience: The Applicant should have maintained 50
(fifty) or more mainline Electric Locomotives of 4,000 (four thousand)
or higher horse power / High Speed Train Sets , by way of
comprehensive maintenance contract(s), including supply of material
and labour, for a duration of five years or more. In the absence of
such experience, the Applicant shall undertake to enter into a
maintenance agreement with an entity having equivalent experience,
failing which the Agreement shall be liable to termination."



Clauses 3.2 and 3.3 of the 2008 RFQ are also relevant and are set out below:

"3.2 Technical Capacity for purposes of evaluation

3.2.1 Subject to the provisions of Clause 2.2, the following
categories of experience would qualify as Technical Capacity and
eligible experience (the "Eligible Experience") in relation to
eligible projects as stipulated in Clauses 3.2.3 and 3.2.4 (the
"Eligible Projects"):

Category 1: Production and supply of 5 (five) Electric Locomotives of
at least 6,000 (six thousand) horse power each, employing proven IGBT
technology, to a single purchaser.

Category 2: Production and supply of 2 (two) High Speed Train Sets of
at least 6,000 (six thousand) horse power each, employing proven IGBT
technology, to a single purchaser.

Category 3: Production and supply of 5 (five) Electric Locomotives of
at least 4,000 (four thousand) horse power each, employing proven IGBT
technology, to a single purchaser.

Category 4: Production and supply of 2 (two) High Speed Train Sets of
at least 4,000 (four thousand) horse power each, employing proven IGBT
technology, to a single purchaser.

3.2.2 Eligible Experience in respect of each category shall be
measured only for Eligible Projects.

3.2.3 For a project to qualify as an Eligible Project under Categories
1, 2, 3 and 4, the entity claiming experience should have held, in the
company supplying the Electric Locomotives / High Speed Train sets
comprising the Eligible Project, a minimum of 26% equity during the
period for which Eligible Experience is being claimed.

3.2.4 For qualification, the Applicant shall provide details of 2
(two) or more Eligible Projects comprising of Electric Locomotives,
delivering 1,000 (one thousand) horse power or more per axle.

3.2.5 The Applicant shall quote experience in respect of a particular
Eligible Project under any one category only, even though the
Applicant (either individually or along with a member of the
Consortium) may have played multiple roles in the cited project.
Double counting for a particular Eligible Project shall not be
permitted in any form.

3.2.6 Applicant's experience shall be measured and stated in terms of
a score (the "Experience Score"). The Experience Score for a given
category would be one point for each Electric Locomotive or High Speed
Train Sets included in an Eligible Project and then multiplied by the
applicable factor in Table 3.2.6 below. In case the Applicant has
experience across different categories, the score for each category
would be computed as above and then aggregated to arrive at his
Experience Score.



Table 3.2.6: Factors for Experience across categories

Factor

Category 1

1.00

Category 2

1.00

Category 3

0.50

Category 4

0.50





3.2.7 Experience for any activity relating to an Eligible Project
shall not be claimed by two or more Members of the Consortium. In
other words, no double counting by a Consortium in respect of the same
experience shall be permitted in any manner whatsoever.

3.3 Details of Experience

3.3.1 The Applicant should furnish the details of Eligible Experience
for the past 5 (five) years preceding the Application Due date.

3.3.2 The Applicants must provide the necessary information relating
to Technical Capacity as per format at Annex-II of Appendix-I.

3.3.3 The Applicant should furnish the required Project-specific
information and evidence in support of its claim of Technical
Capacity, as per format at Annex-IV of Appendix-I."





206. As stated earlier, General Electric was therefore ineligible
to participate in the 2008 Madhepura RFQ.



207. In the 2010 Madhepura RFQ, Clause 2.2.1 (e) was modified to
read as under:

"The Lead Member of the Consortium or the single entity Applicant, as
the case may be, (including its Associates) shall have designed an
IGBT based Propulsion System of railway locomotives/ High Speed Train
Sets of 4,000 horsepower or more and manufactured the same comprising
Eligible Projects. An Applicant who has procured the design from a
third party (not being an Associate) shall not be eligible hereunder.
In the event that an Applicant has developed its own technology,
following the acquisition of technology from a third party it shall
certify that the proposed technology is its own property and does not
infringe on the intellectual property rights of a third party:
Provided, however, that if such technology was acquired from a third
party within a period of 10 (ten) years prior to the Application Due
Date, the Applicant shall also furnish a certificate from such third
party that it has no intellectual property rights or claims on such
technology."



208. In the 2010 Madhepura RFQ, Clause 2.2.1 (f) was modified to
read as under:

"The Applicant (including its Associates) shall have executed at least
one Eligible Project each in 3 (three) countries."



In the 2010 Madhepura RFQ, Clause 2.2.2 (A) prescribing the Technical
Capacity eligibility criteria was modified to read as under:



"Technical Capacity: For demonstrating technical capacity and
experience (the "Technical Capacity"), the Applicant shall, over the
past 5 (five) financial years preceding the Application Due Date,
have:

(i) designed and produced the railway locomotives, including their
Propulsion Systems, for supply comprising Eligible Projects; and/ or

(ii) designed and produced the High Speed Train Sets, including their
Propulsion Systems, for supply comprising Eligible Projects.

such that the total horse power of the above supplies exceeds
1,800,000 (one million and eight hundred thousand) horse power (the
"Threshold Technical Capacity").

Provided that at least one third of the Threshold Technical Capacity
shall be from Eligible Projects which were supplied at least 2 (two)
years prior to the Application Due Date.

Provided further that the Threshold Technical Capacity shall include
at-least 10 (ten) railway locomotives from Eligible Projects in
Category 1 specified in Clause 3.2.1.

For the avoidance of doubt, in case of Eligible Projects where part
supplies of railway locomotives/High Speed Train Sets were made prior
to the aforesaid period of 5 (five) financial years preceding the
Application Due Date and balance supplies were made in the aforesaid
period, only those railway locomotives/High Speed Train Sets which
were supplied in the aforesaid period of 5 (five) financial years
preceding the Application Due Date shall be considered for computation
of Eligible Projects hereunder."



209. Clauses 3.2 and 3.3 of the 2010 Madhepura RFQ are also
relevant and are set out below:

"Technical Capacity for purposes of evaluation

3.2.1 Subject to the provisions of Clause 2.2, the following
categories of experience would qualify as Technical Capacity and
eligible experience (the "Eligible Experience") in relation to
eligible projects as stipulated in Clauses 3.2.3 and 3.2.4 (the
"Eligible Projects"):

Category 1: Supply of 5 (five) railway locomotives of at least 6,000
(six thousand) horse power each, employing IGBT technology, to a
single purchaser.

Category 2: Supply of 2 (two) High Speed Train Sets of at least 6,000
(six thousand) horse power each, employing IGBT technology, to a
single purchaser.

Category 3: Supply of 5 (five) railway locomotives of at least 4,000
(four thousand) horse power each, employing IGBT technology, to a
single purchaser.

Category 4: Supply of 2 (two) High Speed Train Sets of at least 4,000
(four thousand) horse power each, employing IGBT technology, to a
single purchaser.

3.2.2 Eligible Experience in respect of each category shall be
measured only for Eligible Projects.

3.2.3 For a project to qualify as an Eligible Project under Categories
1, 2, 3 and 4, the entity claiming experience should have held, in the
company supplying the railway locomotives / High Speed Train Sets
comprising the Eligible Project, a minimum of 26% (twenty six per
cent) equity during the period for which Eligible Experience is being
claimed.

3.2.4 For a project to qualify as an Eligible Project under Categories
1, 2, 3 and 4, the Applicant should have produced the railway
locomotives/High Speed Train Sets, including their Propulsion System,
based on a design developed by itself (including an Associate) and not
procured from a third party, as stipulated in Clause 2.2.1 (e).

3.2.5 The Applicant shall quote experience in respect of a particular
Eligible Project under any one category only, even though the
Applicant (either individually or along with a member of the
Consortium) may have played multiple roles in the cited project.
Double counting for a particular Eligible Project shall not be
permitted in any form.

3.2.6 An Applicant's experience shall be measured and stated in terms
of a score (the "Experience Score"). The Experience Score shall be
computed as one point for each railway locomotive or High Speed Train
Set included in an Eligible Project and then multiplied by the
applicable factor in Table 3.2.6 below. In case the Applicant has
experience across different categories, the score for each category
would be computed as above and then aggregated to arrive at its
Experience Score.



Table 3.2.6: Factors for Experience across categories Categories





Factor

Category 1

1.25

Category 2

1.00

Category 3

0.75

Category 4

0.50





3.2.7 Experience for any activity relating to an Eligible Project
shall not be claimed by two or more Members of the Consortium. In
other words, no double counting by a Consortium in respect of the same
experience shall be permitted in any manner whatsoever.



3.3 Details of Experience

3.3.1 The Applicant should furnish the details of Eligible Experience
for the last 5 (five) financial years immediately preceding the
Application Due Date.

3.3.2 The Applicants must provide the necessary information relating
to Technical Capacity as per format at Annex-II of Appendix-I.

3.3.3 The Applicant should furnish the required Project-specific
information and evidence in support of its claim of Technical
Capacity, as per format at Annex – IV of Appendix-I."



Issue of definition of Corrupt Practice in Bid Documents



210. As a result of its influence in the electric division of the
Railway Board, General Electric managed to have the relevant clauses
(dealing with the definition of a corrupt practice) in the 2010 RFQ
for the proposed electric locomotive factory at Madhepura diluted.
Copies of both the 2008 RFQ for the proposed electric locomotive
factory at Madhepura and the 2010 RFQ for the proposed electric
locomotive factory at Madhepura have been filed by the Petitioner. A
comparison of the relevant clauses in the 2008 Madhepura RFQ and the
2010 Madhepura RFQ can be seen in the chart below.



Chart comparing relevant clauses in the Madhepura RFQs for 2008 and 2010



Clause

Madhepura 2008 RFQ

Madhepura 2010 RFQ

2.2.1 (d)

An Applicant shall be liable for disqualification if any legal,
financial or technical adviser of the Authority in relation to the
Project is engaged by the

Applicant in any manner for matters related to or incidental to the Project.

An Applicant shall be liable for disqualification if any legal,
financial or technical adviser of the Authority in relation to the
Project is engaged by the Applicant, its Member or any Associate
thereof, as the case may be, in any manner for matters related to or
incidental to the Project. For the avoidance of doubt, this
disqualification shall not apply where such adviser was engaged by the
Applicant, its Member or Associate in the past but its assignment
expired or was terminated 6 (six) months prior to the date of issue of
this RFQ. Nor will this disqualification apply where such adviser is
engaged after a period of 3 (three) years from the date of commercial
operation of the Project.

Explanation: In case an Applicant is a Consortium, then the term
Applicant as used in this Clause 2.2.1, shall include each Member of
such Consortium.

4.3 (a)

"corrupt practice" means (i) the offering, giving, receiving, or
soliciting, directly or indirectly, of anything of value to influence
the actions of any person connected with the Bidding Process (for
avoidance of doubt, offering of employment to or employing or engaging
in any manner whatsoever, directly or indirectly, any official of the
Authority who is or has been associated in any manner, directly or
indirectly with the Bidding Process or the LOA or has dealt with
matters concerning the Agreement or arising therefrom, before or after
the execution thereof, at any time prior to the expiry of one year
from the date such official resigns or retires from or otherwise
ceases to be in the service of the Authority, shall be deemed to
constitute influencing the actions of a person connected with the
Bidding Process); or (ii) engaging in any manner whatsoever, whether
during the Bidding Process or after the issue of the LOA or after the
execution of the Agreement, as the case may be, any person in respect
of any matter relating to the Project or the LOA or the Agreement, who
at any time has been or is a legal, financial or technical adviser of
the Authority in relation to any matter concerning the Project;

"corrupt practice" means (i) the offering, giving, receiving, or
soliciting, directly or indirectly, of anything of value to influence
the actions of any person connected with the Bidding Process (for
avoidance of doubt, offering of employment to, or employing, or
engaging in any manner whatsoever, directly or indirectly, any
official of the Authority who is or has been associated in any manner,
directly or indirectly, with the Bidding Process or the LOA or has
dealt with matters concerning the Agreement or arising therefrom,
before or after the execution thereof, at any time prior to the expiry
of one year from the date such official resigns or retires from or
otherwise ceases to be in the service of the Authority, shall be
deemed to constitute influencing the actions of a person connected
with the Bidding Process); or (ii) save and except as permitted under
sub clause (d) of Clause 2.2.1, engaging in any manner whatsoever,
whether during the Bidding Process or after the issue of the LOA or
after the execution of the Agreement, as the case may be, any person
in respect of any matter relating to the Project or the LOA or the
Agreement, who at any time has been or is a legal, financial or
technical adviser of the Authority in relation to any matter
concerning the Project;



211. In 2008, Clauses 2.2.1 (d) and 4.3 (a) of the Madhepura RFQ
were identical to Clauses 2.2.1 (d) and 4.1.3 (a) clauses in the 2010
Marhowra RFQ. In 2010, however, Clauses 2.2.1 (d) and 4.3 (a) of the
Madhepura RFQ were diluted to permit a bidder to engage an adviser to
the Indian Railways six months after the end of the adviser's
engagement with the Indian Railways. This kind of diluted ban on
engagement of the advisers retained by the tendering Authority is very
unusual and improper and immediately raises a red flag of corruption.
The stricter version of the clauses found in the 2010 Marhowra RFQ and
the 2008 Madhepura RFQ is the norm. Any deviation from the norm needs
explanation. Further a period of six months between the end of an
adviser's advisory engagement and his/ her dealings with a bidder is
too short a gap and again raises a red flag. The dilution of these
clauses in the 2010 Madhepura RFQ by Respondent 4 is unjustifiable.
These changes were introduced by corrupt officers of Respondent 4 with
the ulterior, corrupt and dishonest intent and motive to benefit GE,
and to allow GE to engage in corrupt dealings with former advisors for
the Project like Mr. Vinod Sharma who had influential links within the
Railways Ministry and the Planning Commission.



212. Clause 2.2.1 (d) of the 2010 Madhepura RFQ even permits the
bidder to engage an adviser to the Indian Railways, after three years
from the date commercial operations for the Project commence. There is
no requirement for even a six month gap in such case. This again is an
unjustifiable dilution of normal RFQ terms, and appears intended to
allow GE to employ corrupt Indian Railways officials (like Mr. Ved
Mani Tiwari) at a later date as quid pro quo for the assistance
rendered by these officials to GE for winning the tender.



213. The new RFQs issued on 6 May 2013 also contain the same defect.



214. The Railway Ministry affidavit dated 16 January 2013 has
produced an amended model RFQ issued by the Ministry of Finance on 18
May 2009. This document also contains a dilution of the consultant
conflict of interest clause. It is submitted that this dilution is
unacceptable, unjustifiable, unlawful, arbitrary and malafide and that
it is intended to promote corruption.



Issue of bigger conspiracy



215. The above facts provide evidence of a deeper conspiracy.
General Electric was principally interested in the diesel locomotive
factory tender. It had lost this tender once already in 2009. In 2010,
General Electric expected competition from EMD (which because of its
acquisition by Caterpillar in 2010 had shown interest in participating
and had access to the required financial and other resources). General
Electric had not managed to find a replacement for Mr. Shakeel Ahmed
who was General Electric's "focal point" within the mechanical
directorate of the Railways Ministry in 2009. General Electric did not
have sufficient clout within the mechanical directorate needed to
influence the bid and the bidding documents. Also, EMD would have kept
a close watch on General Electric's interactions with Railway Ministry
officials in the mechanical directorate.



216. General Electric got around these hurdles by cultivating
Ministry officials in the electric directorate and by influencing the
bid process and the bid documents for the electric locomotive factory
tender. General Electric was not considered a serious bidder for the
electric locomotive factory tender (even though it prequalified) by
the other short-listed bidders (Siemens, Alstom and Bombardier).
General Electric's interactions with Railway officials from the
electric directorate and its influence on the electric locomotive
tender RFQ and RFP would therefore have gone un-noticed or
un-challenged. EMD would not have kept a tab on General Electric's
interactions with the electric directorate or on General Electric's
lobbying for the electric locomotive factory tender.



217. Not being able to or not wanting to appear to influence the
diesel locomotive tender directly (that General Electric was actually
interested in), General Electric took the circuitous route and got
pliant electric directorate officials to introduce favourable changes
to the electric locomotive RFP terms. Once this was achieved, General
Electric could then more easily/ subtly push for the same changes to
be introduced into the diesel locomotive RFP terms invoking the
principle of parity.



218. General Electric was never really interested in bidding for
the electric locomotive factory as General Electric does not make
electric locomotives. General Electric's bid for the electric
locomotive tender was non-serious. This bid's real purpose seems to
have been to create a smoke-screen for General Electric's efforts to
influence the diesel locomotive bid process. However, Mr. Pratyush
Kumar's cultivation of electric directorate officials (like Mr. Ved
Mani Tiwari) was so successful that Mr. Pratyush Kumar started to
pitch for a real bid by GE for the electric locomotive factory. This
is when McKinsey was called in at the end of May 2010 to make
recommendations on whether General Electric should participate in the
electric locomotive factory tender. By mid June 2010, Mr. Jeffrey
Immelt had taken the final decision that General Electric would not
bid for this tender.



219. There is substantial evidence that the bid process and the bid
documents for the two impugned tenders were manipulated and tailored
by Government of India officials from the Planning Commission and the
Railways Ministry with the intent to favour and benefit General
Electric over other bidders and prospective bidders. The evidence also
discloses that General Electric had managed to corrupt Indian Railways
officials in the electric division and was being helped by pliant
officials from that division. As a result, General Electric managed to
have the bid documents pertaining to the 2010 tender for the electric
locomotive factory tailored more easily and extensively than it was
able to manage in respect of the 2010 tender for the diesel locomotive
factory which was being managed by a separate division (the mechanical
division).



Larger public interest issues



220. The petitioner submits that the 2010 tenders and the 2013
tenders for both the Madhepura and the Marhowra locomotive factory
Projects have been tailored to keep Indian potential suppliers for
such locomotives out of the fray. India has been self-sufficient in
locomotive manufacture since independence. The indigenous locomotive
manufacture industry provides jobs to a large number of Indians.
Public sector units like BHEL and Railway Production units like
Chittaranjan Locomotive Works, Diesel Locomotive Works and others
produce high quality locomotives and are continuously working to
improve technology. Recently, DLW has with EMD's assistance
indigenously developed a new high powered locomotive with the latest
technology.



221. While the petitioner does not deny that the Indian Railways's
locomotive needs are likely to increase or that the Indian Railways
must seek technological improvements, the petitioner submits that the
public interest aspects of giving enormous incentives and concessions
to foreign locomotive manufacturers to establish factories in India on
government land with assured long-term orders guaranteed by the
Government of India needs to be examined more closely.



222. The petitioner points out that the proposed locomotive factory
Projects at Marhowra and Madhepura do not involve technology transfer
to the joint venture company in which the GOI will be a party. China
has insisted upon technology transfer in its locomotive supply
contracts with General Electric. The draft contracts for the Madhepura
and Marhowra factories create enormous risks for the Indian Railways
in case disputes arise with the foreign joint venture partner. Even
though the GOI can take over the factories in such case, it will have
no access to the technology needed to continue manufacture of
locomotives in these factories and to continue to maintain the
locomotives already supplied.



223. Further, General Electric plans to use the joint venture
company under these Projects merely as an assembly unit. A substantial
portion of design and manufacturing activities of the technology
intensive components of these locomotives will take place in the
United States. General Electric intends to use its Indian facilities
only for assembly purposes.



224. The Government of India needs to consider the long-term impact
of the proposed Madhepura and Marhowra Projects on the Indian
locomotive industry and the impact on Indian jobs in this sector. How
will the proposed factories at Madhepura and Marhowra affect DLW, CLW,
BHEL and other indigenous potential locomotive suppliers? Do these
factories and long-term supply orders not dis-incentivise BHEL, CLW
and DLW to continue to improve productivity and technology? Will these
locomotive factories at Marhowra and Madhepura not kill the indigenous
locomotive industry? Is it in Indian interest to become so dependent
upon locomotive supplies by a foreign manufacturer? What is the
potential for disputes in the proposed JVs? Are the projected
estimates for locomotive needs by the Indian Railways accurate? If
BHEL or a similar Indian unit were given the opportunity to set up a
factory on Railway land with all the incentives/ concessions being
offered to General Electric, what kind of boost would this give to the
Indian locomotive industry including the potential for export? Should
the huge advantages of the assured Indian Railways market for
locomotives be completely handed over to a single foreign MNC? Is this
in the strategic interest of India from the perspective of boosting
Indian industry? How could this valuable asset (an assured market for
locomotives) be more strategically utilised by the Railway Ministry
and the GOI in Indian interest?



225. While the petitioner is all for open competition and while
international firms like General Electric should be given the
opportunity to participate in such tenders, can the GOI justify
drafting these tender documents so that all Indian potential bidders
are kept out. Also can the GOI justify drafting these tenders so that
many foreign suppliers/ consortiums who are potential suppliers are
also kept out.



226. The Indian Railways is under a lot of financial strain. It
does not have enough funds to even modernise its safety
infrastructure. In such a situation, is it advisable for the GOI to
tie up Indian Railway funds in long-term locomotive purchase
contracts? The GOI could very well ask GE to set up a locomotive
factory on its own and General Electric would be able to participate
in all Indian tenders for locomotive purchases.



227. The DLF and ELF Projects including the new RFQs for these
Projects issued on 6 May 2013 violate the proposed procurement policy
of the Government of India which disapproves of single-source long
term procurement contracts.



Issue of General Electric corruption in Pakistan and use of Petitioner
by General Electric to approve suspicious third party contract



228. The petitioner also points out that General Electric
corruption in India is not an isolated case. General Electric has
faced accusations of corruption in Pakistan locomotive tenders over
the last 4 years. The petitioner submits that she was asked to approve
a third party contract for General Electric in Pakistan and it is very
likely that this contract was used by General Electric to pay bribes
to Pakistan government officials in connection with the Pakistan
locomotive tenders. The petitioner did approve such third party
contract in Pakistan while she was employed by General Electric.



Subversion of writ proceedings and attempt to defeat the ends of
justice and to subvert the rule of law by covering up forgery, fraud,
corruption and bribery and by attempting to protect General Electric
from the lawful consequences of its illegal and corrupt activities/
actions



229. As is clear from the list of dates provided, the combined
effect of the orders of this court and the actions of the PMO, the
Planning Commission, the Railway Ministry, the Finance Ministry, Prime
Minister Manmohan Singh, Finance Minister P Chidambaram, Mr Montek
Singh Ahluwalia and Mr Pavan Bansal is that by the time this matter is
heard on or after 18 July 2013, the new Bidding Process initiated on 6
May 2013 would be complete.



230. This is a clear attempt to defeat the ends of justice, to
subvert the rule of law and to defeat and subvert these writ
proceedings by over-reaching the court.



231. The following questions arise and must be answered by the
Railway Ministry and the PMO who are respondents 4 and 5 respectively.



(i) Is the Prime Minister, Dr Manmohan Singh aware of
these writ proceedings and of the complaints, issues and evidence
before this court in connection with the complaints of corruption,
fraud, forgery, bribery, illegal lobbying, tailoring of bid documents,
and other corrupt, illegal, malafide and improper practices in
connection with the ELF and DLF Projects and the 2010 tenders for
these Projects?

(ii) Is the Finance Minister (Mr P Chidambaram) aware of
these writ proceedings and of the complaints, issues and evidence
before this court in connection with the complaints of corruption,
fraud, forgery, bribery, illegal lobbying, tailoring of bid documents,
and other corrupt, illegal, malafide and improper practices in
connection with the ELF and DLF Projects and the 2010 tenders for
these Projects?

(iii) The petitioner has accused Mr Montek Singh Ahluwalia
of being implicated in the corrupt practices favouring General
Electric in connection with the ELF and DLF Projects and tenders. The
petitioner believes that Mr Montek Singh Ahluwalia is certainly
personally aware of these writ proceedings but a formal answer to this
question is required. Therefore is the Deputy Chairman of the Planning
Commission (Mr Montek Singh Ahluwalia) aware of these writ proceedings
and of the complaints, issues and evidence before this court in
connection with the complaints of corruption, fraud, forgery, bribery,
illegal lobbying, tailoring of bid documents, and other corrupt,
illegal, malafide and improper practices in connection with the ELF
and DLF Projects and the 2010 tenders for these Projects?

(iv) Is Mr Pavan Kumar Bansal (Railway Minister until 3
May 2013) aware of these writ proceedings and of the complaints,
issues and evidence before this court in connection with the
complaints of corruption, fraud, forgery, bribery, illegal lobbying,
tailoring of bid documents, and other corrupt, illegal, malafide and
improper practices in connection with the ELF and DLF Projects and the
2010 tenders for these Projects?

(v) Did Mr Pavan Kumar Bansal (then Railway Minister)
attend the Cabinet meeting on 1 May 2013 at which the decision was
taken to cancel the impugned tenders and to immediately proceed to
issue new RFQs for both the ELF and DLF Projects?

(vi) Is Mr C P Joshi (current Railway Minister) aware of
these writ proceedings and of the complaints, issues and evidence
before this court in connection with the complaints of corruption,
fraud, forgery, bribery, illegal lobbying, tailoring of bid documents,
and other corrupt, illegal, malafide and improper practices in
connection with the ELF and DLF Projects and the 2010 tenders for
these Projects?

(vii) Were Dr Manmohan Singh, Mr P Chidambaram, Mr Montek
Singh Ahluwalia and Mr Pavan Kumar Bansal aware of these writ
proceedings and of the complaints, issues and evidence before this
court in connection with the complaints of corruption, fraud, forgery,
bribery, illegal lobbying, tailoring of bid documents, and other
corrupt, illegal, malafide and improper practices in connection with
the ELF and DLF Projects and the 2010 tenders for these Projects when
the IGOM was constituted on the directions of the Prime Minister, Dr
Manmohan Singh on March 8, 2013 and when the IGOM met and deliberated
on 22 April 2013?

(viii) Were the officers from the Railway Ministry, the
Planning Commission, the PMO and the Finance Ministry who prepared the
detailed background note and other documents considered by the IGOM on
22 April 2013, aware of these writ proceedings and of the complaints,
issues and evidence before this court in connection with the
complaints of corruption, fraud, forgery, bribery, illegal lobbying,
tailoring of bid documents, and other corrupt, illegal, malafide and
improper practices in connection with the ELF and DLF Projects and the
2010 tenders for these Projects? Were the complaints, issues and
evidence raised/ produced in these writ proceedings placed before the
IGOM or included in the detailed background note that was prepared for
the IGOM?

(ix) Which officers prepared the detailed background note
considered by the IGOM on 22 April, 2013?

(x) Who prepared the note submitted by the Railway
Ministry to the Cabinet on 26 April, 2013? Were the complaints, issues
and evidence raised/ produced in these writ proceedings placed before
the Cabinet in the note that was put up by the Railway Ministry for
approval by the Cabinet 26 April, 2013? Did this note mention the
pendency of these writ proceedings?

(xi) Was the Cabinet aware of the pendency of these writ
proceedings on 1 May 2013 when it considered the proposal of the
Railway Ministry and approved the cancellation of the 2010 tenders for
the ELF and DLF and issued directions for issuance of new RFQs for
these two Projects and set 6 May 2013 as the date for the issuance of
the RFQs and 6 July 2013 as the date for the issuance of the RFPs? Was
the Cabinet aware of the complaints, issues and evidence before this
court in connection with the complaints of corruption, fraud, forgery,
bribery, illegal lobbying, tailoring of bid documents, and other
corrupt, illegal, malafide and improper practices in connection with
the ELF and DLF Projects and the 2010 tenders for these Projects, when
it took its decision dated 1 May 2013?

(xii) Does the Railway Ministry intend to issue the 2013
RFQs for the ELF and the DLF to General Electric Company, to GE India
Industrial Private Limited, to GE Global Sourcing India Private
Limited or to any associate company of General Electric Company?

(xiii) Does the Railway Ministry intend to receive bids under
the 2013 RFQs for the ELF and the DLF Projects from General Electric
Company, GE India Industrial Private Limited, GE Global Sourcing India
Private Limited or any other associate company of General Electric
Company?

(xiv) Can the Prime Minister Dr Manmohan Singh, Mr Montek
Singh Ahluwalia, Mr Pavan Kumar Bansal, Mr C P Joshi, Mr P
Chidambaram, the Railway Ministry, the Finance Ministry, the PMO, the
Planning Commission, the Cabinet Secretary and the Union Cabinet
explain the inordinate hurry in issuing new RFQs after cancelling the
2010 tenders without waiting for the outcome of this writ petition and
without a final conclusion being reached on the complaints before this
court of corruption, forgery, bribery, fraud, illegal lobbying and
other illegal activities engaged in by General Electric in connection
with the ELF and DLF Projects and the 2010 tenders for these Projects?

(xv) Can the Prime Minister Dr Manmohan Singh, Mr Montek
Singh Ahluwalia, Mr Pavan Kumar Bansal, Mr C P Joshi, Mr P
Chidambaram, the Railway Ministry, the Finance Ministry, the PMO, the
Planning Commission, the Cabinet Secretary and the Union Cabinet
justify the decision to issue new RFQs to General Electric or its
Associate companies while complaints of corruption, forgery, bribery,
fraud, illegal lobbying, and other illegal activities against General
electric are pending hearing before this Court?

(xvi) Can the PMO (respondent 5) disclose what legal standing
does an Informal Group of Ministers have and who will be liable for
the malafide, arbitrary or unreasonable decision taken by this IGOM in
recommending that new RFQs be issued for the ELF and DLF Projects even
while these writ proceedings are pending hearing?

(xvii) Can the PMO (respondent 5) and the Railway Ministry
(respondent 4) inform the court as to how (in view of the complaints
and evidence against General Electric of corruption, fraud and other
undesirable practices before this court in connection with the 2010
Madhepura and Marhowra tenders), the Government of India proposes to
comply with Clause 4.1.2 of the 2010 Marhowra RFQ which provides:

"Without prejudice to the rights of the Authority under Clause 4.1.1
hereinabove, if an Applicant is found by the Authority to have
directly or indirectly or through an agent, engaged or indulged in any
corrupt practice, fraudulent practice, coercive practice, undesirable
practice or restrictive practice during the Bidding Process, such
Applicant shall not be eligible to participate in any tender or RFQ
issued by the Authority during a period of 2 (two) years from the date
such Applicant is found by the Authority to have directly or
indirectly or through an agent, engaged or indulged in any corrupt
practice, fraudulent practice, coercive practice, undesirable practice
or restrictive practice, as the case may be."

(xviii) Can respondents 4 and 5 (the PMO and the Railway Ministry)
inform the court if they intend to blacklist General Electric and its
associate companies from participating in any Railway tender for a
period of two years?



232. The affidavit of Mr Nihar Ranjan Dash dated 15 May, 2013 also
raises the following questions:



(i) What changes were made to the final bid documents
for the ELF over and above the Cabinet approved PCMA in the 2010
Bidding Process?

(ii) Paragraph 5 of this affidavit states that meetings
of the Empowered Committee were not convened for the DLF in the 2010
tender and that no major changes were introduced into the BID
documents/ PCMA for the DLF Project in 2010.

(iii) Can the Ministry of Railways explain the reference
to Due Diligence in paragraph 5 of this affidavit? What was the
purpose and scope of this Due Diligence and what activities were
undertaken as part thereof?

(iv) Paragraph 6 of this affidavit states that
subsequently the Railway Ministry decided to review the Bid Documents
and to harmonise the Bid Documents of ELF and DLF? There is again a
reference to "internal due diligence" as a result of which revised bid
documents were prepared.

(v) The affidavit dated 15 May 2013 suggests that the
Planning Commission did not agree with the changes to the Bid
documents for ELF and DLF proposed by the Railways and that the IGOM
was constituted by the PMO at the behest of the Planning Commission to
over-rule the Railways on the changes proposed by the Railways as a
result of its due diligence.

(vi) Can the PMO and the Cabinet Secretary explain why the
Planning Commission continues to be permitted to interfere with the
implementation of a Railway Ministry project especially when the
evidence shows that Mr Montek Singh Ahluwalia was/ is favoring the
award of DLF Project to General Electric?

(vii) Can the PMO and the Railway Ministry produce the
entire documents and issues that were placed before this IGOM/?

(viii) Paragraph 8(i) of the affidavit states that the IGOM
decided "inter-alia" that the Railway Ministry will apply to the
Cabinet for approval to revise the eligibility criteria for the RFQs
to be issued over the 2008 and 2010 RFQs and provide reasons for these
revisions. Did the IGOM decide on the proposed revisions to the
eligibility criteria? What are these proposed revisions and why are
these being made?

(ix) Paragraph 8(i) of the affidavit also states that the
IGOM decided that the Railway Ministry will seek Cabinet approval to
process fresh RFQs on account of changes in the scope of work. What
were these changes in the scope of work? Did the IGOM recommend
cancellation of the 2010 tenders and for what reasons?

(x) Paragraph 8(i) of the affidavit also states that the
IGOM took decisions on 13 issues relating to the changes to the Bid
Documents/ PCMAs on which the Planning Commission differed with the
Railway Ministry. What are these 13 issues and what decisions were
taken on these issues by the IGOM and for what reasons?

(xi) This affidavit does not disclose the scope of
deliberations of the IGOM in connection with the ELF and DLF tenders.

(xii) The PMO and the Cabinet Secretariat should be directed
to produce the full record of the deliberations of the IGOM.

(xiii) Paragraph 9 of the affidavit does not mention the
complete contents of the note sent by the Railway Ministry to the
Cabinet for approval. The complete note should be produced before this
court.

(xiv) Paragraph 9 of this affidavit states that the note put
up for approval by the Railway Ministry to the Cabinet interalia
sought approval for cancellation of the pre-qualification carried out
in 2010. What were the reasons and grounds for cancellation of this
pre-qualification? Were the complaints and evidence against General
Electric produced in these writ proceedings considered as relevant
material to cancel the prequalification of General Electric under the
2010 DLF and ELF RFQs? Has the Railway Ministry cancelled General
Electric's prequalification under Clause 4.1.2 of the 2010 Marhowra
RFQ?

(xv) What action does the Railway Ministry intend to take
against General Electric for engaging and using the services of Mr
Vinod Sharma in violation of 4.1.3 (a) of the 2010 Marhowra RFQ?

(xvi) What action does the Railway Ministry intend to take
against General Electric for submitting a tampered and therefore
forged customer certificate (issued by Kazakhstan Railways) with its
technical bid submitted on 12 July 2010 for the 2010 Marhowra RFQ?

(xvii) What were the revised eligibility criteria for the DLF
and the ELF Projects as annexed to the Cabinet note dated 26 April
2013? What are the reasons and grounds for these changes to the
eligibility criteria for the ELF and DLF Projects?

(xviii) Why has the Cabinet in its meeting on 1 May 2013
recommended that the new RFQs be issued by 6 May 2013 and the new RFPs
be issued by 6 July 2013? Was the Cabinet made aware of these writ
proceedings before it made this recommendation?

(xix) The Cabinet Secretary and the PMO must be directed to
produce the full record of the Cabinet's deliberations on the ELF and
DLF Projects in its meeting on 1 May 2013.

(xx) The Railway Ministry should be directed to produce on
record the letters issued to the respondents 7, 13, 14, 15 and 16
informing then about cancellation of the 2010 tenders for the ELF and
DLF Projects.

(xxi) What are the reasons for the cancellation of the 2010
tenders for the ELF and DLF Projects?





233. The petitioner states that a quick glance through the new RFQs
issued on 6 May, 2013 shows that some of the petitioner's objections
have been addressed. However, some new changes have been introduced in
these RFQs merely to defeat the ends of justice and to unlawfully
protect General Electric from the consequences of the complaints that
are before the court in these writ proceedings.



234. The PMO and the Railway Ministry cannot be permitted to
over-reach this court and to subvert these writ proceedings and the
rule of law by going ahead with the plan disclosed in the Railway
affidavit dated 15 May, 2013.



235. The present application therefore seeks an injunction
restraining respondents 4 and 5 from proceeding with the Bidding
Process under the RFQs issued on 6 May 2013 and from issuing the new
RFQs to General Electric Company or to any associate of General
Electric Company and/ or from shortlisting General Electric Company or
to any associate of General Electric Company under the new RFQs until
this writ petition is heard and decided.



236. The documents discussed here (among other evidence) establish
that the terms/ clauses of the RFP for the electric locomotive factory
2010 tender were changed to benefit General Electric. The documents
also establish that officials in the Planning Commission and in the
electric directorate/ division of the Ministry of Railways were
involved in this corrupt activity. In addition, the documents
establish that General Electric had access to pliant and corrupt
officials in the Planning Commission and in the electric directorate
of the Railway Ministry.



237. General Electric has engaged in corrupt and undesirable
practices in respect of the 2009 and 2010 electric and diesel
locomotive tenders. Mr. Vinod Sharma, a former adviser to the Ministry
of Railways for the same Project was advising/ helping/ lobbying for
General Electric. This constituted a corrupt practice. In 2008-2009,
Mr. Shakeel Ahmed was advising and helping General Electric even while
he was handling the diesel locomotive tender for the Indian Railways.
General Electric is being helped by Mr. Gajendra Haldea from the
Planning Commission who, according to news reports in the Outlook
India magazine and the Pioneer newspaper, was responsible for
introducing changes into the bid documents that benefited General
Electric. Mr. Pratyush Kumar of General Electric has had hundreds of
meetings with Mr. Gajendra Haldea. The 2010 diesel locomotive RFQ was
tailored to allow General Electric to prequalify without having to
provide the disclosures/ certifications mandatorily required by the
GOI Guidelines for qualification of Bidders seeking to acquire stakes
in Public Sector Enterprises through the process of disinvestment
bearing Office Memorandum No. 6/4/2001DDII and dated July 13, 2001 and
the Guidelines issued by the Ministry of Finance (F.No.
24(1)/PF.II/07) titled 'Guidelines for Pre-Qualification of Bidders
for PPP Projects' along-with the Government of India endorsed and
recommended model RFQ. Both the 2010 diesel locomotive RFQ and the
2010 electric locomotive RFQ violated these Government of India
guidelines. The 2010 electric locomotive RFQ was tailored to allow
General Electric to prequalify even though General Electric does not
manufacture electric locomotives and by its own admission does not
possess the technology or the expertise. General Electric has had
corrupt contact and help from Mr. Ved Mani Tiwari working in the
electric directorate of the Indian Railways. General Electric modified
its technical bid for the 2010 electric locomotive factory RFQ three
days after the application due date by sending an email with an excel
file containing additional information to Mr. Ved Mani Tiwari's Gmail
account. Various internal General Electric documents establish that
General Electric has lobbied the Planning Commission and Ministry of
Railways officials to influence the bid process and the bid documents.
General Electric had made payments amounting to bribes/ illegal
gratification to Indian Government officials through a third party
contractor called Aartech Consultants India Private Limited. Internal
General Electric documents and published news articles in the Outlook
India magazine and the Pioneer newspaper quoting Railway and Planning
Commission officials establish that the bid documents for the electric
and diesel locomotive tenders were modified in order to benefit
General Electric. Internal General Electric documents reproduced
herein and in the partial rejoinder filed on July 9, 2012 to General
Electric's counter affidavit establish that General Electric was using
its participation in the electric locomotive tender to influence the
bid process and the bid documents in the diesel locomotive tender.



238. The present writ petition was filed on February 29, 2012
assailing the short-listing of Respondent 7 in two multi-billion
dollar global tenders floated by the Ministry of Railways being
tenders (Global RFQ No. 2010/ ME (Proj)/ 4/ Marhoura/RFQ and RFQ No.
2010/ Elect. (Dev0 440/1(1)) for award of bids to set up proposed
diesel and electric locomotive factories with guaranteed long-term
purchase orders at Marhowra and Madhepura respectively. The petitioner
refers to and relies upon the prayers made in this writ petition.



239. The writ petition, affidavits filed by the petitioner, and the
other documents and evidence produced by the Petitioner in court in
this matter, made out a case based upon facts and evidence for this
court to direct the Railway Ministry to scrap both the tenders, i.e.,
the 2010 tender for the diesel locomotive factory at Marhowra and the
2010 tender for the electric locomotive factory at Madhepura. The
latest affidavit of the Railway Ministry filed on 15 May 2013 shows
that these 2010 tenders have been cancelled.



240. The petitioner submits that the facts and evidence detailed
hereinabove and in other documents produced before this court in the
present matter establish a more than prima facie case that General
Electric is liable to be blacklisted from Railway tenders. There
exists sufficient evidence before this court that irrefutably
establishes that General Electric (respondents 1, 6 and 7 herein) has
(through corrupt and collusive means) unlawfully influenced the bid
process and the bid documents for the EL and DLF Projects.





241. The complaints, facts and evidence before the court in these
writ proceedings establish that the General Electric respondents have
engaged in multifarious corrupt, unlawful and improper practices in
connection with the 2008-2009 and 2010 Bidding Processes for the ELF
and DLF Projects. The rule of law demands that these complaints be
addressed and that General Electric be penalised in accordance with
law and the tender documents and be barred from participation in any
Railway tenders for a period of at least two years. This requirement
under the rule of law cannot be avoided by Respondents 4 and 5 by
merely cancelling the impugned tenders and by issuing fresh RFQs. The
conduct of respondents 4 and 5 shows that the intent behind
cancellation of the impugned tenders in this manner is to cover up the
corruption complaints before the court and to protect General Electric
and Railway and Planning Commission officials from the lawful
consequences of their illegal acts. The conduct of respondents 4 and 5
in cancelling the impugned tenders and by initiating new tenders in
this manner without penalising General Electric and without a final
determination of the complaints before the court is malafide,
arbitrary, motivated and unlawful. It is necessary to find out who is
responsible for this conspiracy to protect General Electric from the
lawful consequences of the illegal activities that are impugned in
this writ petition.



242. This application is being made in the interest of justice.



243. This application is a preliminary application being filed
given the urgency in the matter. The petitioner is collecting further
information and reviewing additional documents to expose the
conspiracy of respondents 4 and 5 to shield their corrupt dealings
with General Electric and to save General Electric from being
blacklisted in accordance with law. The petitioner will therefore be
filing additional applications and affidavits.



244. The petitioner has filed an application in this matter (CM
6096/ 2013 ) for recusal by the Bench of Justice Gita Mittal and
Justice Deepa Sharma. This application is pending hearing after being
listed before court on 16 May, 2013. The petitioner is vehemently
pressing for recusal by both Justice Gita Mittal and Justice Deepa
Sharma. The present application is being filed without prejudice to
this pending request for recusal. The present application is being
filed at this time because of the grave urgency in this matter arising
from the existing threat to the petitioner-whistleblower's life, who
is presently in danger, and sleeping in her car parked on public
streets without any protection since 27 February, 2013. The petitioner
once again requests Justice Gita Mittal and Justice Deepa Sharma to
recuse themselves from this matter so that it can be heard by another
Bench.



245. This application is necessary to help protect the petitioner
as it will help prevent the ongoing attempted cover-up of the
petitioner's corruption complaints and the ongoing attempted collusive
subversion of these writ proceedings and the ongoing attempted
elimination of the petitioner-whistleblower.



246. The petitioner submits that this Hon'ble Court summon the
complete records pertaining to the two impugned tenders from the Prime
Minister's Office, the Planning Commission, the Ministry of Finance
and the Ministry of Railways. It is submitted that this Hon'ble Court
peruse the records of all these institutions pertaining to the
impugned tenders for at least the last eight years or more to include
the time period when these projects were initially conceived and
formulated.



247. The decisions taken by the IGOM and the Cabinet to direct the
Railway Ministry to issue new RFQs for ELF and DLF and to complete the
bidding process under these new RFQs by July 2013 is malafide,
arbitrary and unreasonable and violates Article 14 of the Constitution
in view of the pendency of these writ proceedings. These decisions do
not appear to have taken all relevant material (including these writ
proceedings) into consideration.



248. This court is aware that Mr Pavan Bansal who was a member of
the IGOM that has recommended this decision has been sacked by the
Government of India for prima facie corrupt dealings in the first week
of May 2013 very soon after the decision was taken. The CBI has been
tapping the phones of several high level officials in the Railway
Ministry for the last 4-5 months. One member of the Railway Board has
been arrested and several others are under the scanner of the CBI and
are being investigated for corruption. There appears to be a
connection between these CBI actions and these writ proceedings. The
CBI should be asked to file a report stating if it has found any
additional evidence of corruption in connection with the ELF and DLF
tenders as a result of the surveillance and investigations carried out
by it.



249. There is another aspect to this matter that is of great
concern. News reports suggest that since the last few months and
particularly since the end of April, 2013, the Railway Ministry has
been functioning under fear of the CBI. Since the end of April, 2013
and throughout May 2013, the Railway Ministry was almost at a
standstill with most senior officials being wary of being investigated
for corruption. The Railway Minister was sacked soon after 1 May 2013.
The new Railway Minister Mr C P Joshi also has other ministerial
responsibilities and has not taken over full charge at the Railway
Ministry. The entire Railway Board (with the exception of Member
electrical) has/ will be changed due to terms of members coming to an
end. There has been therefore no ministerial oversight in the Railway
Ministry since the end of April 2013. There has also been no oversight
by the Railway Board either.



250. The decision to cancel the tainted 2010 tenders for ELF and
DLF and to issue new RFQs and complete the new Bidding Process in an
inordinate hurry with the clear intent to defeat/ subvert this writ
petition and to help cover up corruption and to protect General
Electric has been clearly timed to take advantage of these unsettling
disturbances within the Railway Ministry.



251. It also appears that the threat of CBI investigation might
have been used to blackmail Railway Officials and to force them to not
oppose this decision that is being pushed by the PMO and the Planning
Commission.



252. Just a few days before he was sacked, news reports described
Mr Pavan Bansal as having stated that the DLW and ELW facilities would
be upgraded and expanded to cater to the growing locomotive demands of
the Railways. His reported statements suggested that the government
might scrap the ELF and DLF Projects. The petitioner wonders if Mr
Pavan Bansal was forced out of the Railway Ministry for not supporting
the ELF and DLF Projects as currently conceived.



253. Given the current scenario and circumstances in the Railway
Ministry. There appears to be complete lack of accountability and
ownership of the new developments within the Railway Ministry and the
Railway Board. Are the Prime Minister Manmohan Singh, the PMO and the
Planning Commission headed by Mr Montek Singh Ahluwalia enforcing
their will by taking advantage of the current turmoil within the
Railway Ministry? Are the ongoing CBI investigations and the threat of
more investigations being used to blackmail Railway officials and/ or
other Bidders by the PMO and the Planning Commission at the behest of
General Electric?



254. Annexed hereto as Annexure P-3 are copies of recent news
reports describing the current turmoil and disruption within the
Railway Ministry and the Railway Board.



255. How can such important decisions that amount to subverting the
rule of law and subverting these writ proceedings and that assist
cover up corruption and protect General Electric be pushed through by
the PMO and the Planning Commission when the Railway Ministry is
essentially rudderless and paralysed. Which department/ ministry of
the Indian government will take responsibility for these decisions to
cancel the 2010 tenders in an attempt to cover up corruption and to
rush through a new bidding process while this court is seized of a
recusal application and while this court is on summer vacation. It is
highlighted that the 2010 tenders were pending for 3 years, so why
this sudden rush now to hurry through a new Bidding Process in just 2
months?



256. The petitioner points out that companies from Canada, the
United States, France, Germany, China, Japan, and several other
countries are interested in the ELF and DLF Projects. Companies
affiliated to Canada, the United States, France and Germany were/ are
adversely affected by the corruption complained of herein and are
parties before this court. The whole world is watching these writ
proceedings. The Government of India through its false affidavits
filed herein and through its latest actions is making a mockery of the
rule of law in trying to so publicly and blatantly cover up corruption
and in trying to subvert the rule of law and these writ proceedings to
protect General Electric from the lawful consequences of its illegal
acts.









PRAYER



It is therefore most respectfully prayed that this Hon'ble Court may
be pleased to:







(a) Stay the decision of the Cabinet dated 1 May 2013 to cancel the
impugned tenders and to issue new RFQs and RFPs for the ELF and DLF
Projects or to proceed with the new Bidding Process for these Projects
until this writ petition is heard and finally decided and until the
complaints made in this writ petition are dealt with in accordance
with law;



(b) Injunct/ restrain respondents 4 and 5 (Railway Ministry and the
Union of India through the PMO) from proceeding further with the bid
process under the two RFQs issued on 6 May 2013 (Global RFQ No.
2013/M/ (W)/ 964/33 dated May, 2013, and Global RFQ No. 2013/Elect
(Dev)/440/7 dated 6 May, 2013) until this writ petition is heard and
finally decided;



(c) Injunct/ restrain respondents 4 and 5 (Railway Ministry and the
Union of India through the PMO) from issuing the RFQ documents for DLF
and ELF (for Global RFQ No. 2013/M/ (W)/ 964/33 dated May, 2013, and
for Global RFQ No. 2013/Elect (Dev)/440/7 dated 6 May, 2013) to
General Electric Company, or to GE India Industrial Private Limited,
or to GE Global Sourcing India Private Limited or to any of their
associate companies and/or from receiving applications for
prequalification under these RFQs from any of these companies or their
associates until this writ petition is heard and finally decided;



(d) Injunct/ restrain respondents 4 and 5 (Railway Ministry and the
Union of India through the PMO) from short-listing General Electric
Company or GE India Industrial Private Limited, or GE Global Sourcing
India Private Limited or any of their associate companies under Global
RFQ No. 2013/M/ (W)/ 964/33 dated May, 2013, and Global RFQ No.
2013/Elect (Dev)/440/7 dated 6 May, 2013 until this writ petition is
heard and finally decided;



(e) Direct the PMO and the Railway Ministry to file separate
affidavits (through the Principal Secretary, PMO and the Chairman of
the Railway Board respectively) answering the questions raised in this
application;



(f) Direct the Railway Ministry to blacklist General Electric
Company, GE India Industrial Private Limited, GE Global Sourcing
India Private Limited and all and any of their associate companies
from participation in any Railway Tenders including (Global RFQ No.
2013/M/ (W)/ 964/33 dated May, 2013, and Global RFQ No. 2013/Elect
(Dev)/440/7 dated 6 May, 2013) for a minimum period of two years;



(g) Pass such other and further orders as this Hon'ble Court may
deem fit and proper.





Place: New Delhi Petitioner in Person

May 30, 2013 Seema Sapra

Rendered homeless since May 30, 2012 as a result of corruption
complaints against General Electric and as a result of the
whistleblower corruption petition (W.P. (C ) 1280/ 2012) and presently
homeless and sleeping in her car since 27 February 2013









---------- Forwarded message ----------
From: Seema Sapra <seema.sapra@googlemail.com>
Date: Tue, Aug 5, 2014 at 7:34 PM
Subject: Complaint to the US Department of Justice, SEC and FBI
against General Electric Company by Seema Sapra, lawyer - WP Civil
1280/2012 a corruption whistle-blower petition in the Delhi High Court
(Seema Sapra v General Electric Company and Others)
To: sanjayjain.chamber@gmail.com, director@aiims.ac.in,
lggc.delhi@nic.in, "rg.dhc@nic.in" <rg.dhc@nic.in>, Bhim Sain Bassi
<cp.bsbassi@nic.in>, joe.kaeser@siemens.com, dch@nic.in,
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"splcp-intandops-dl@nic.in" <splcp-intandops-dl@nic.in>,
"splcp-security-dl@nic.in" <splcp-security-dl@nic.in>,
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<sgofficerk@gmail.com>, lnageshwararao@hotmail.com,
tusharmehta64@yahoo.com, neerajkishankaul@gmail.com, Narasimha
Pamidighantam <psnarasimha@gmail.com>, nandita rao
<knanditarao@gmail.com>
Cc: gurmeharsistani@gmail.com, secy-mci@nic.in, Seema Sapra
<seema.sapra@gmail.com>, Seema Sapra <seemasapra@hotmail.com>


To the concerned officers of the Department of Justice, the SEC and
the FBI of the United States of America,

US federal offences involving and amounting to fraud, obstruction of
justice, perjury, corporate governance fraud and misrepresentation,
filing of false affidavits and authority documents have all been
committed in the name of General Electric Company and for and on its
behalf in connection with Writ Petition No. 1280 of 2012 (Seema Sapra
v General Electric Company and Others) that is awaiting hearing in the
High Court of Delhi at New Delhi, India.

Under the relevant board resolution passed by the Board of General
Electric Company, only designated corporate and operational officers
of the Company can sign and execute powers of attorney and court
pleadings for and on behalf of General Electric Company. Additionally
only the Chairman and Vice Chairman of the Board are authorised to
further delegate such authority on behalf of the Company.

I am a former in-house counsel for GE in India and I filed the
before-mentioned whistleblower legal proceeding in the Delhi High
Court in February 2012 after lawyers for General Electric Company
covered up my complaints of corruption, fraud, forgery, bribes, FCPA
violations etc.

The Delhi High Court issued court notice to General Electric Company
in these judicial proceedings on 7 March 2012.

False and fraudulent authority documents and affidavits have been
filed in these proceedings in the name of General Electric Company.

These include a power of attorney allegedly executed by Mr Alexander
Dimitrief authorising an Indian citizen (Mr K R Radhakrishnan) to sign
powers of attorney, court pleadings including affidavits on behalf of
General Electric Company in these judicial proceedings as its
authorised signatory.

These further include several affidavits and court applications filed
on behalf of General Electric Company in these proceedings by K R
Radhakrishnan and accompanied by affidavits signed by Radhakrishnan
holding himself out as the authorised signatory for General Electric
Company.

Further Radhakrishnan has also signed and filed powers of attorney
purporting to have been executed on behalf of General Electric Company
in these legal proceedings which further purport to appoint Indian
attorneys to represent General Electric Company in these legal
proceedings.

Finally another power of attorney signed and executed by Mr Bradford
Berenson on behalf of General Electric Company authorising
Radhakrishnan to sign court pleadings on behalf of General Electric
Company in these proceedings has also been filed in the Delhi High
Court.

I point out that under the board resolution of General Electric
Company, neither Mr Alexander Dimitrief, nor Mr Bradford Berenson, and
not even Mr Brackett Dennistion, have the authority to authorise Mr K
R Radhakrishnan to sign either court pleadings or power of attorneys
on behalf of General Electric Company.

K R Radhakrishnan is not an employee of General Electric Company and
claims to be employed by an Indian subsiidiary, GE India Industrial
Private Limited.

I also point out that original copies of the powers of attorney
executed by Mr Alexander Dimitrief and Mr Bradford Berenson have not
been filed in court and the documents filed are photocopies and their
authenticity is doubtful.

By this fraud on the Delhi High Court committed in the name of General
Electric Company, Radhakrishnan has been used to file false,
misleading and perjurious affidavits on behalf of General Electric
Company in the Delhi High Court in the said legal proceedings. These
affidavits have been filed with intent to cover up the complaints of
corruption against General Electric Company.

The above facts disclose grave offences that amount to federal crimes
and legal violations under United States law.

The US Department of Justice, the US SEC and the US FBI are also bound
to investigate and prosecute these crimes and violations of US law.

General Electric Company is established under US law and its shares
are publicly traded in the United States.

I request that the US Department of Justice, the US SEC and the US FBI
investigate and prosecute these crimes and violations of US law.

My life remains in danger as a result of my whistle-blowing.

Seema Sapra

--
Seema Sapra









I have uploaded below the Delhi High Court record of pleadings in Writ
Petition (Civil) No. 1280 of 2012 [Seema Sapra vs General Electric
Company and Others].



These can be accessed from the links below.



Seema Sapra







Vol 1

https://drive.google.com/file/d/0BxHBZ8fQxNoQaWV3dENKeDdCbE0/edit?usp=sharing



Vol 2

https://drive.google.com/file/d/0BxHBZ8fQxNoQbGV4TVJsd1htSG8/edit?usp=sharing



Vol 3

https://drive.google.com/file/d/0BxHBZ8fQxNoQNmlicHdubGZMblE/edit?usp=sharing



Vol 4

https://drive.google.com/file/d/0BxHBZ8fQxNoQU1BkbW40b3RMeTA/edit?usp=sharing



Vol 5

https://drive.google.com/file/d/0BxHBZ8fQxNoQcWtQSHoyQzFvYjg/edit?usp=sharing



Vol 5A

https://drive.google.com/file/d/0BxHBZ8fQxNoQTXVDZktsNlA0QkE/edit?usp=sharing



Vol 6

https://drive.google.com/file/d/0BxHBZ8fQxNoQdXc3Ymg2a0pwRFE/edit?usp=sharing



Vol 7

https://drive.google.com/file/d/0BxHBZ8fQxNoQOWdoX3FHbWJzWUE/edit?usp=sharing



Vol 8

https://drive.google.com/file/d/0BxHBZ8fQxNoQeGpoMlVzZmoyMkE/edit?usp=sharing



Vol 9

https://drive.google.com/file/d/0BxHBZ8fQxNoQZG1WVUMtNUx4MVU/edit?usp=sharing



Vol 10

https://drive.google.com/file/d/0BxHBZ8fQxNoQdFVSbGt2bFlfYzg/edit?usp=sharing



Vol 11

https://drive.google.com/file/d/0BxHBZ8fQxNoQN2hNLXg4NzJ3Mjg/edit?usp=sharing



Vol 12

https://drive.google.com/file/d/0BxHBZ8fQxNoQb2JyRGp4eS1HMW8/edit?usp=sharing



Vol 13

https://drive.google.com/file/d/0BxHBZ8fQxNoQM2hKc2l5WVo5UnM/edit?usp=sharing



Vol 14

https://drive.google.com/file/d/0BxHBZ8fQxNoQYmlqT3c5TEJGNmM/edit?usp=sharing



Vol 15

https://drive.google.com/file/d/0BxHBZ8fQxNoQMGxwQVZnYjJ4MEU/edit?usp=sharing



Vol 16

https://drive.google.com/file/d/0BxHBZ8fQxNoQR1dlakY5VHFvTFk/edit?usp=sharing



Vol 17

https://drive.google.com/file/d/0BxHBZ8fQxNoQWko3dkttUjA4NE0/edit?usp=sharing



Vol 18

https://drive.google.com/file/d/0BxHBZ8fQxNoQbXF6ZW1yVERoZVE/edit?usp=sharing



Vol 19

https://drive.google.com/file/d/0BxHBZ8fQxNoQdllLQWx3ODJ2SDQ/edit?usp=sharing



Vol 20

https://drive.google.com/file/d/0BxHBZ8fQxNoQdEx0Tmo4VXpFREk/edit?usp=sharing



Vol 21

https://drive.google.com/file/d/0BxHBZ8fQxNoQSldPUnNIV3BrbHM/edit?usp=sharing



Vol 22

https://drive.google.com/file/d/0BxHBZ8fQxNoQZlBHQzJwRlYxRm8/edit?usp=sharing



Vol 23

https://drive.google.com/file/d/0BxHBZ8fQxNoQa3NhbEJicm9QYVk/edit?usp=sharing



Vol 24

https://drive.google.com/file/d/0BxHBZ8fQxNoQMFBDQ0tTZ2xCckE/edit?usp=sharing



Vol 25

https://drive.google.com/file/d/0BxHBZ8fQxNoQYjZ5YjhvOGdjYVU/edit?usp=sharing



Vol 26

https://drive.google.com/file/d/0BxHBZ8fQxNoQR1YybHVZLUdLb1E/edit?usp=sharing


Vol 27

https://drive.google.com/file/d/0BxHBZ8fQxNoQVW9EQ0RYSkZvZUU/edit?usp=sharing


Vol 28

https://drive.google.com/file/d/0BxHBZ8fQxNoQcEdqVE5ZZmM5MWc/edit?usp=sharing



Vol 29

https://drive.google.com/file/d/0BxHBZ8fQxNoQRVFzYXM3SHZqdXc/edit?usp=sharing



Vol 30

https://drive.google.com/file/d/0BxHBZ8fQxNoQUktCTFNsUm5KeG8/edit?usp=sharing



Vol 31

https://drive.google.com/file/d/0BxHBZ8fQxNoQUUM4bkh0c29XUkU/edit?usp=sharing



Vol 32

https://drive.google.com/file/d/0BxHBZ8fQxNoQNEh1a1E5bE45NHc/edit?usp=sharing