---------- Forwarded message ----------
From: Seema Sapra <seema.sapra@googlemail.com>
Date: Fri, 15 Aug 2014 19:10:42 +0530
Subject: 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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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, bjparun.jain@gmail.com,
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
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. I have been exposed to toxic chemicals today also the
entire day since around 9 am in my hotel room at the BMK hotel in
Greater Kailash Enclave -I. The Delhi Police Commissioner has failed
to provide me any protection despite Delhi High Court orders to
provide me protection.
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 th
--
Seema Sapra
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