From: seemasapra@hotmail.com
To: kimac@sec.gov; pearsonw@sec.gov; manvelianf@sec.gov; bentsend@sec.gov; deanl@sec.gov; wilnerb@sec.gov; buchholzs@sec.gov; roe@sec.gov; choij@sec.gov; kellyru@sec.gov; heinken@sec.gov; mckennas@sec.gov; leejen@sec.gov; scarlatom@sec.gov; escalantek@sec.gov; semlerm@sec.gov; kellycr@sec.gov; pilgrimn@sec.gov; wadleyd@sec.gov; olivera@sec.gov; beardt@sec.gov; yuns@sec.gov; ocallaghans@sec.gov; jensena@sec.gov; huntingtonf@sec.gov; rinaldim@sec.gov; roessnerm@sec.gov; longoa@sec.gov; maj@sec.gov; harperr@sec.gov; moric@sec.gov; wadhwas@sec.gov; sansonej@sec.gov; marcusd@sec.gov; mccolet@sec.gov; bingers@sec.gov; boujoukosj@sec.gov; mcglynnb@sec.gov; axelrodd@sec.gov; pawp@sec.gov; shieldska@sec.gov; dickem@sec.gov; tashjianr@sec.gov; leachr@sec.gov; kreuzkampk@sec.gov; jonesmarc@sec.gov; brownn@sec.gov; orourkek@sec.gov; cohenma@sec.gov; simpsons@sec.gov; englandt@sec.gov; john.hughes@usdoj.gov; williamsml@sec.gov; fraserb@sec.gov; kaufmanj@sec.gov; fcpa.fraud@usdoj.gov; chairmanoffice@sec.gov; president@whitehouse.gov; seema.sapra@gmail.com
Subject: General Electric Company FCPA, obstruction of justice & impersonation fraud US SEC complaint TCR1439646785831 & whistleblower being poisoned
Date: Fri, 18 Sep 2015 13:58:07 +0000
Complaint made to US SEC against General Electric Company on 15 August 2015 - TCR - Reference Number: TCR1439646785831
Note - I have censored my address in the form below but it has been provided in the TCR form submitted to the SEC
TCR Submitted Successfully - Reference Number: TCR1439646785831
Tell us about your complaint
Please select the option that best describes your complaint
Bribery of, or improper payments to, foreign officials (Foreign Corrupt Practices Act Violations)
Please select the specific category that best describes your complaint
Bribery of foreign officials
Provide additional details about your complaint:
Former General Electric in-house counsel Seema Sapra filed a legal proceeding in the Delhi High Court (Writ Petition Civil No. 1280 of 2012) against General Electric Company and two Indian subsidiaries (GE India Industrial Private Limited and GE Global Sourcing India Private Limited). The Delhi High Court issued notice in this matter to General Electric Company, GE India Industrial Private Limited and GE Global Sourcing India Private Limited on 7 March 2012. A copy of the Delhi High Court order dated 7 March 2012 can be viewed on the Delhi High Court website at http://delhihighcourt.nic.in/
When did you become aware of the alleged conduct? (mm/dd/yyyy)
08/10/2010
When did the alleged conduct begin? (mm/dd/yyyy)
06/01/2010
Is the alleged conduct ongoing?
Yes
Has the individual or firm acknowledged the alleged conduct?
No
What is the source of your information? You may select more than one
Conversations; Internal business documents; Publicly available information; SEC filings;
Have you taken any action regarding your complaint? You may select more than one
Complained to firm; Complained to other regulator; Complained to SEC; Complained to law enforcement; Legal action;
Who did you contact and what action did you take?
I have emailed the SEC, the US DOJ, the FBI. I sued General Electric Company in the Delhi High Court.
Who are you complaining about?
Are you complaining about an individual or a firm?
Firm
Select the title that best describes the individual or firm that you are complaining about:
Publicly held company
Firm Name:
General Electric Company
Street Address:
3135 Easton Turnpike
City:
Fairfield
State / Province:
Connecticut
Zip / Postal Code:
CT 06828-0001
Country:
USA
Telephone:
Are you or were you associated with the individual or firm when the alleged conduct occurred?
Yes
How are you or were you associated with the individual or firm you are complaining about?
I was working as in-house legal counsel in India helping GE Transportation (US) bid for Indian Rail contracts
Products involved
Select the type of product involved in your complaint:
Other
Please select the category that best describes your security product:
Other
For other, please provide more information:
Indian rail tenders
Enter the product name(s):
locomotives
About you
*Are you submitting this tip, complaint or referral pursuant to the SEC's whistleblower program?
Yes
*Are you submitting this tip, complaint or referral anonymously? Being able to contact you for further information or clarification may be helpful.
No
**Are you represented by an attorney in connection with your submission?
No
Submitter Information
Title:
Ms.
**First Name:
Seema Sapra
**Last Name:
Sapra
Street Address:
XX
Address (Continued):
XXXXXX Road
City:
New Delhi
State / Province:
Delhi
Zip / Postal Code:
1100011
Country:
India
Mobile Telephone:
00919582716748
Email Address:
What is the best way to contact you?
Select the profession that best represents you:
Attorney
Whistleblower Declarations
*1. Are you, or were you at the time you acquired the original information you are submitting to us, a member, officer, or employee of the Department of Justice, the Securities and Exchange Commission, the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision, the Public Company Accounting Oversight Board, any law enforcement organization, or any national securities exchange, registered securities association, registered clearing agency, or the Municipal Securities Rulemaking Board?
No
*2. Are you, or were you at the time you acquired the original information you are submitting to us, a member, officer, or employee of a foreign government, any political subdivision, department, agency, or instrumentality of a foreign government, or any other foreign financial regulatory authority as that term is defined in Section 3(a)(52) of the Securities Exchange Act of 1934 (15 U.S.C. §78c(a)(52))?
No
*3. Did you acquire the information being submitted to us through the performance of an engagement required under the federal securities laws by an independent public accountant?
No
*4. Are you submitting this information pursuant to a cooperation agreement with the SEC or another agency or organization?
No
*5. Are you a spouse, parent, child, or sibling of a member or employee of the SEC, or do you reside in the same household as a member or employee of the SEC?
No
*7a. Are you submitting this information before you (or anyone representing you) received any investigative request, inquiry, or demand that relates to the subject matter of your submission from the SEC, Congress, or any other federal, state, or local authority, any self regulatory organization, or the Public Company Accounting Oversight Board?
Yes
*8a. Are you currently a subject or target of a criminal investigation, or have you been convicted of a criminal violation, in connection with the information you are submitting to the SEC?
No
*9a. Did you acquire the information being provided to us from any person described in questions 1 through 8?
No
10. Identify with particularity any documents or other information in your submission that you believe could reasonably be expected to reveal your identity, and explain the basis for your belief that your identity would be revealed if the documents were disclosed to a third party.
I do not wish to keep my identity public. I have already made my identity as a whistleblower public.
*I declare under penalty of perjury under the laws of the United States that the information contained in this submission is true, correct, and complete to the best of my knowledge, information, and belief. I fully understand that I may be subject to prosecution and ineligible for a whistleblower award if, in my submission of information, my other dealings with the SEC, or my dealings with another authority in connection with a related action, I knowingly and willfully make any false, fictitious, or fraudulent statements or representations, or use any false writing or document knowing that the writing or document contains any false, fictitious, or fraudulent statement or entry.
Agree
In-house counsel and lawyers for General Electric Company substituted a fake representative/ signatory in a corruption legal case in India as part of an obstruction of justice conspiracy and in the process violated General Electric Company's own Board Resolution on who can represent the Company in Court. The Question is will the United States' SEC, the Department of Justice, and the FBI allow General Electric Company lawyers to violate the Company's own board resolution with impunity in India?
Former General Electric in-house counsel Seema Sapra filed a legal proceeding in the Delhi High Court (Writ Petition Civil No. 1280 of 2012) against General Electric Company and two Indian subsidiaries (GE India Industrial Private Limited and GE Global Sourcing India Private Limited).
The Delhi High Court issued notice in this matter to General Electric Company, GE India Industrial Private Limited and GE Global Sourcing India Private Limited on 7 March 2012. A copy of the Delhi High Court order dated 7 March 2012 can be viewed on the Delhi High Court website at http://delhihighcourt.nic.in/
Instead of appearing before the Delhi High Court in this matter through properly authorized and competent person/s, General Electric Company lawyers and executives (including General Counsel Brackett Denniston, and GE in-house lawyers Alexander Dimitref, Bradford Berenson, and Jeffrey Eglash), caused this legal proceeding to remain hidden from General Electric Company and caused an Indian subsidiary employee K R Radhakrishnan to impersonate as the authorized signatory/ representative of General Electric Company before the Delhi High Court in these legal proceedings between 2012 and 2015 using fraudulent and forged authority documents on behalf of General Electric Company. With the help of this fraud, and using other dishonest, corrupt and illegal means, General Electric Company is attempting to cover up the corruption and FCPA complaints against it in connection with its bids for two Indian Railway tenders - the tenders for the proposed diesel locomotive factory in Marhowra and the tenders for the proposed electric locomotive factory in Madhepura.
Under Indian law, a lawyer representing a Party to a judicial proceeding must produce on the court record a duly executed 'vakalatnama', which is a specialized form of a Power of Attorney granted by the Party to the lawyer to represent it in Court. Under Indian law, a lawyer cannot appear for a Party in judicial proceedings without producing a duly executed vakalatnama in his favor by the client.
Further under Indian law, in case the party to the judicial proceeding is a corporate entity, then the authorized signatory/ representative of the corporate entity who executes the vakalatnama and other court pleadings on behalf of such corporate entity, must produce on the court record the documentation that establishes such person as the duly authorized signatory and representative of the corporate entity for such legal proceedings.
From July 2012 to March 2012, an Indian citizen named K R Radhakrishnan has unlawfully and fraudulently impersonated as the authorized signatory and representative of General Electric Company before the Delhi High Court in Writ Petition Civil No. 1280/ 2012. K R Radhakrishnan is neither an officer nor employee of General Electric Company. He claims to be the Company Secretary of GE India Industrial Private Limited which is a wholly owned Indian subsidiary of General Electric Company. K R Radhakrishnan has purported to execute vakalatnamas (Powers of Attorney) and court affidavits/ pleadings on behalf of General Electric Company which were filed in the Delhi High Court on behalf of General Electric Company.
Under the Board Resolution No.10855 of General Electric Company listing out the persons who are entitled to execute documents on behalf of General Electric Company (including Powers of Attorney and Court pleadings), K R Radhakrishnan was not entitled to act as authorized signatory of General Electric Company before the Delhi High Court and was not entitled to execute any Powers of Attorney or Court pleadings on behalf of General Electric Company. This Board Resolution of General Electric Company can be read at https://drive.google.com/file/
According to General Electric Company's Board Resolution No. 10855, only officers of the Company are authorized to execute documents on behalf of the General Electric Company. Further important documents like Powers of Attorney or Court Pleadings can only be executed by senior corporate officers of General Electric Company or by designated operational officers of the Company. Further such corporate or operational officers of General Electric Company have no power to further delegate document signing authority on others. An outsider to General Electric Company, like K R Radhakrishnan is not authorized to execute Powers of Attorney or Court Pleadings on behalf of General Electric Company.
So how did K R Radhakrishnan execute and file Vakalatnamas and Court Pleadings on behalf of General Electric Company in the Delhi High Court in Civil Writ Petition No. 1280 of 2012 - in the matter of Seema Sapra v. General Electric Company and Others.
The Court record for Writ Petition Civil No. 1280/ 2012 can be found at http://seemasapra.blogspot.in/
For more on General Electric corruption in India in connection with the Indian Rail tenders for the proposed diesel locomotive factory at Marhowra and the proposed electric locomotive factory at Madhepura, see
http://geimpersonationfraud.
http://gecorruption.blogspot.
http://gemarhowracorruption.
http://
http://gecorruptionpart2.
http://gecorruptionpart3.
http://gecorruptionpart4.
http://gecorruptionpart5.
http://seemasapra.blogspot.
Bribes to foreign government officials are often paid by companies through third party contractors or consultants.
Unmistakable red flag and hot smoking gun, why would General Electric Company appoint Aartech Consultants as its international sales representative and enter into an international sales representative agreement with Aartech Consultants India Private Limited?
General Electric Company has since the last 10 years been trying to secure a multi-billion USD contract from the Indian Rail Ministry to sell diesel locomotives.
In June and July 2010, Seema Sapra an attorney in India working then as in-house legal counsel for General Electric in India and advising the GE Transportation team in its efforts to bid for Indian Rail contracts including the tenders for the proposed diesel locomotive factory at Marhowra and the proposed electric locomotive factory at Madhepura was asked to review and approve the renewal of a third party contractor/ consultant contract between General Electric and an Indian privately held company called Aartech Consultants Private Limited.
As the in-house attorney for General Electric, Seema Sapra came across certain red flags concerning this entity Aartech Consultants and its contract with General Electric. She therefore recorded her view in writing that these red flags needed to be addressed and reviewed before entering into a renewal of the contract between General Electric and Aartech Consultants and she at that time refused to approve the renewal of this contract.
The lawyer, Seema Sapra was viciously targeted during her time in General Electric as she became an obstacle to corruption by General Electric executives and a threat to them. Baffled by why she was being targeted, she resigned from her position but then decided to stay back in order to raise compliance concerns formally to General Electric Company. In an attempt to silence her and cover up her concerns, her contract was suddenly terminated without cause during the initial stages of her making written complaints to the GE Ombudsman and General Counsel and during an ongoing and incomplete compliance investigation.
Attorney Seema Sapra has complained that General Electric Company was using (and is perhaps still using) its contract with Aartech Consultants to transfer bribes to Indian public officials in exchange for assistance in winning the contract for the proposed diesel locomotive factory in Marhowra. This is not only established by the facts which have emerged but also supported by a very crude attempt by GE lawyers to cover up this complaint by procuring the filing of a false and unauthorized affidavit in the Delhi High Court. General Electric Company has till date failed to investigate this complaint.
The core relevant facts are the following:
About Aartech Consultants India Private Limited:
"Aartech Consultants India Private Limited is a Private Company incorporated on 01 December 1995. It is classified as Indian Non-Government Company and is registered at Registrar of Companies, Delhi. Its authorized share capital is Rs. 500,000 and its paid up capital is Rs. 100,000.It is involved in OTHER BUSINESS ACTIVITIES
Aartech Consultants India Private Limited's Annual General Meeting (AGM) was last held on 29 September 2014 and as per records from Ministry of Corporate Affairs (MCA), its balance sheet was last filed on 31 March 2014.
Directors of Aartech Consultants India Private Limited are Inderjeet Singh and Davinder Kaur.
Aartech Consultants India Private Limited's Corporate Identification Number is (CIN) U74899DL1995PTC074285 and its registration number is 74285.Its Email address is ravinder_jhatta@hotmail.com and its registered address is N - 5 GREENPARK MAIN, NEW DELHI - 110016, Delhi INDIA.
Current status of Aartech Consultants India Private Limited is - Active." source https://www.zaubacorp.com/
Admittedly and easily established by documentary evidence which is within the control of General Electric Company are the following:
General Electric had until 2010 (and perhaps continues to have) a contractual relationship with an Indian owned privately held company called Aartech Consultants Private Limited.
Attorney Seema Sapra refused to sanction the renewal of this contract in June/ July 2010 due to red flags and compliance concerns as then in-house legal counsel of General Electric.
Aartech Consultants is a small privately held firm with a minuscule paid up capital, with an elderly husband and wife as its only directors and officers, Mr Inderjeet Singh has no special professional or educational qualifications or business/ consulting expertise, his wife Ms Davinder Kaur is a housewife and the only other director, the registered office of Aartech Consultants is also the residential address of Mr Inderjeet Singh and his wife, the company has no website, it appears to be a small-time supplier of rail parts to the Indian Railways based upon some data online, it has a debt charge of Rs. 10 crore - a thousand times its paid up capital,
Given Mr Inderjeet Singh's background he appears to be known personally to both Dr Manmohan Singh, the Indian Prime Minister from 2004 till 2014 and to Mr Montek Singh Ahluwalia, the Deputy Chairman of the Planning Commission during the same period when the Marhowra diesel locomotive factory Project coveted by General Electric was conceived. Wikileaks US Embassy cables show that Dr Manmohan Singh as PM was actively assisting General Electric in the creation of this Project. Internal Government of India documents, news reports, and supporting evidence establish that Montek Singh Ahluwalia was helping General Electric in not only winning this contract but was also instrumental in tailoring the contract terms to benefit General Electric Company.
Mr Inderjeet Singh was a frequent visitor to the office of the GE Transportation team in India headed by Pratyush Kumar. Pratyush Kumar was almost exclusively working on securing the Marhowra diesel locomotive contract for GE.
The contract between GE and Aartech Consultants involved GE Transportation, the request for renewal approval sent to in-house GE Counsel Seema Sapra in June 2010 came from the executive assistant to then GE Transportation General Counsel Tara Plimpton. The business approvals for the renewal of this contract were given by General Electric Company executives David Tucker and Ashfaq Nainar working for the US business unit GE Transportation.
The attorney Seema Sapra faced with a life threat from General Electric executives and lawyers filed a legal proceeding in the Delhi High Court being Writ Petition Civil No. 1280/ 2012. The Delhi High Court issued notice in this matter to General Electric Company, GE India Industrial Private Limited and GE Global Sourcing India Private Limited on 7 March 2012. A copy of the Delhi High Court order dated 7 March 2012 can be viewed on the Delhi High Court website at http://delhihighcourt.nic.in/
Instead of appearing before the Delhi High Court in this matter through properly authorized and competent person/s, General Electric Company lawyers and executives (including General Counsel Brackett Denniston, and GE in-house lawyers Alexander Dimitref, Bradford Berenson, and Jeffrey Eglash), caused this legal proceeding to remain hidden from General Electric Company and caused an Indian subsidiary employee K R Radhakrishnan to impersonate as the authorized signatory/ representative of General Electric Company before the Delhi High Court in these legal proceedings between 2012 and 2015 using fraudulent and forged authority documents on behalf of General Electric Company. With the help of this fraud, and using other dishonest, corrupt and illegal means, General Electric Company is attempting to cover up the corruption and FCPA complaints against it in connection with its bids for two Indian Railway tenders - the tenders for the proposed diesel locomotive factory in Marhowra and the tenders for the proposed electric locomotive factory in Madhepura. For more details on this fraud, obstruction of justice and attempted cover-up see http://geimpersonationfraud.
In this proceeding, an affidavit was filed by K R Radhakrishnan purporting to be an affidavit on behalf of General Electric Company wherein it was admitted that "GE India" has an International Sales Representative Agreement with Aartech Consultants India Private Limited.
Note first that the record will show that the dealings between Aartech Consultants and General Electric were between Aartech Consultants and GE Transportation (both in the United States and India).
Second, and here is the unmistakable red flag and smoking gun, why would General Electric Company appoint Aartech Consultants as its international sales representative and enter into an international sales representative agreement with Aartech Consultants India Private Limited?
A Baker & McKenzie publication states the following on the use of third party contractors by companies to pay bribes to public officials:
"According to a recent global fraud survey, approximately 90 percent of reported FCPA cases involve third parties acting for or on behalf of a company, including (typically) business development agents, consultants, distributors, advisors, sales affiliates, and other intermediaries. FCPA enforcement actions brought by DOJ and SEC demonstrate that third parties are frequently used to facilitate or conceal the payment of bribes to foreign government officials in all types of international business transactions."
According to the Association of Corporate Counsel:
"In FCPA jargon, an "intermediary" is a third party who assists the company in some aspect of its foreign business. The government assumes you have conducted reasonable due diligence background investigations on your intermediaries and have determined they are not involved in corruption. It is important to understand who your intermediaries are, how many you have, why you are using them, and who in your company has authority to enter into a contract with them.
Understand that intermediaries do not shield your company from liability – they create liability. 90% of FCPA cases brought by the US government involve conduct by 3rd parties. In most cases employees of the US company knew their foreign intermediaries were involved in illegal payments, and frequently company employees worked with and directed the intermediaries to circumvent company policy and violate the law.
Some intermediaries represent vastly more risk than others. Sales agents, lobbyists and joint ventures are at the top of the risk list. Distributors or resellers who receive variable pricing or variable discounts also represent very high risk. Obviously an intermediary who is also a government employee (or is a close relative of a government official)or an intermediary company that is owned or managed by a foreign government official represents high risk."
Source http://www.acc.com/
For more on General Electric corruption in India in connection with the Indian Rail tenders for the proposed diesel locomotive factory at Marhowra and the proposed electric locomotive factory at Madhepura, see
http://geimpersonationfraud.
http://gecorruption.blogspot.
http://gemarhowracorruption.
http://
http://gecorruptionpart2.
http://gecorruptionpart3.
http://gecorruptionpart4.
http://gecorruptionpart5.
http://seemasapra.blogspot.
Reproduced below is an extract from an application dated May 2013 filed against General Electric Company in the Delhi High Court which application was disposed off by the Judge without a decision on merits, after General Electric Company lawyers corrupted and subverted the proceedings (for this see http://geimpersonationfraud.
This application numbered as Civil Miscellaneous Application No. 7197/ 2013 in Writ Petition Civil No. 1280/ 2012 is available at https://docs.google.com/file/
"Issue of payment of bribes by General Electric using a third party contractor called Aartech Consultants India Private Limited
125. It is submitted that there are facts and evidence which prima facie establish the need for an investigation by the CBI under the Prevention of Corruption Act and by United States federal authorities (under the Foreign Corrupt Practices Act) as to whether General Electric has paid bribes or illegal payments at any time in the last twelve years to any public official in India in connection with its efforts to get a government contract to supply locomotives to the Indian Railways. Besides the facts and evidence described above, there is evidence that touches directly upon the likelihood that bribes have been paid by General Electric to public officials and that in particular, a third party (a shell company named Aartech Consultants India Private Limited) has been used as the conduit to transfer these bribes and to launder the bribe-money on behalf of the recipients.
126. The petitioner sent the following complaint on June 10, 2011 describing payment of bribes and FCPA violations by General Electric in India involving a third party contract with an entity called Aartech Consultants Private Limited.
"---------- Forwarded message ----------
From: Seema Sapra <seema.sapra@googlemail.com>
Date: Fri, Jun 10, 2011 at 1:11 PM
Subject: FW: Concerns about GE and possible FCPA violations
To: pmosb@pmo.nic.in
Cc: tka.nair@pmo.nic.in, jmg.vc@nic.in, r.sri_kumar@nic.in, mr@rb.railnet.gov.in, dch@nic.in, g.haldea@nic.in, crb@rb.railnet.gov.in, mm@rb.railnet.gov.in, jeffrey.immelt@ge.com, john.flannery@ge.com, "Denniston, Brackett (GE, Corporate)" <brackett.denniston@ge.com>
Dear Sir,
I would to like to share some further concerns about GE Transportation India and corruption. Please see my email below. Thank you.
Yours Sincerely,
Seema Sapra
______________________________
From: Seema Sapra [mailto:seema.sapra@
Sent: 10 June 2011 13:08
To: ffetf@usdoj.gov; chairmanoffice@sec.gov;help@
Cc: jeffrey.immelt@ge.com;john.
Subject: Concerns about GE and possible FCPA violations
Dear Madam/ Sir,
Some further evidence about GE corruption in India.
Thank you,
Seema Sapra
______________________________
From: Seema Sapra [mailto:seema.sapra@
Sent: 10 June 2011 12:41
To: 'Denniston, Brackett (GE, Corporate)'; 'Dimitrief, Alexander (GE, Corporate)'
Cc: 'Eglash, Jeffrey C (GE, Corporate)'; jeffrey.immelt@ge.com; john.flannery@ge.com
Subject: Concerns about Aartech Consultants and FCPA
Mr. Denniston/ Mr. Dimitrief,
I want to place on record my concerns about a third party contractor that GE Transportation India was using, an entity called Aartech Consultants. I shared this concern with Mr. Eglash when I spoke with him on 29 November 2010. I asked Mr. Eglash - what did this consultant do for GE? Unsurprisingly, Mr. Dimitrief's letter of 3 February 2011 does not mention Aartech Consultants.
I first learnt about Aartech Consultants when in June 2010, I received an email asking me to review the documentation for Aartech's ITP (Independent Third Party) contract that was up for renewal. I reviewed it and found there were reputational red flags that had been identified. Plus Aartech's application was old and the answers to certain questions were unclear or potentially wrong. I spoke to Himali Arora, the CFO about this. She then pointed out that Aartech had a networth of approx. Rs. 30,000 which was also odd. I discussed the matter with Himali Arora and Ashwani Bhargava, who was handling compliance and was based in Bangalore. I then declined to approve the renewal unless these matters were reviewed and addressed.
The Aartech Consultants representative was one Sikh gentleman who visited the AIFACS office. I was never introduced to him and never spoke with him. On different occasions, I saw him sitting with Prat Kumar, Ash Nainar and Himali Arora. Plus he seemed to know most other GE Transportation employees at AIFACS well.
There is a very distinct possibility that Aartech Consultants was being used to make illegal payments to Indian Railway officials.
I was told by Anand Chidambaram in August that Aartech Consultants had good contacts within the Indian Railways and helped GE move files within the Indian Railways. I was also told that Aartech got a commission of 5% on every deal.
I fail to understand why GE would need an external contractor to help move files in the Indian Railways. GE Transportation India had sufficient human resources to undertake all legitimate interactions with the Indian Railways in GE's business dealings and tender applications. What services did Aartech Consultants provide?
Even though Aartech Consultants' contract renewal with GE did not go through in June 2010, the gentleman in question still visited AIFACS. I was told by Ashish Malhotra in August 2010 that despite the non-renewal of Aartech's contract, GE documentation still showed that Aartech was being paid 5% commission for the turbocharger tender that GE had won. GE was having internal compliance problems with the terms and conditions of this deal and I remember hearing Prat ask Alpna Khera, Himali Arora, Ashish Malhotra and Anand Chidambaram to enlist Aartech Consultants' support in getting the Indian Railways to relax certain terms, for example, getting the Indian Railways to agree to a liquidated damages provision.
Did you investigate whether any illegal payments were routed through Aartech Consultants by GE? Was there a violation of the Foreign Corrupt Practices Act? What services did Aartech provide? What payments did GE make to Aartech Consultants? Were these justifiable?
Sincerely,
Seema Sapra"
127. The petitioner sent another email complaint dated June 15, 2011 about FCPA violations by General Electric and the use of a third party contractor (Aartech Consultants India Private Limited) to pay bribes and kickbacks to Indian government officials in exchange for bid manipulation with intent to award the lucrative contract for the proposed diesel locomotive factory to General Electric.
"From: Seema Sapra [mailto:seema.sapra@
Sent: 15 June 2011 09:10
To: pmosb@pmo.nic.in
Cc: tka.nair@pmo.nic.in; jmg.vc@nic.in; r.sri_kumar@nic.in; mr@rb.railnet.gov.in; dch@nic.in; g.haldea@nic.in;crb@rb.
Subject: FW: Additional information on Concerns about GE and possible FCPA violations
Dear Sir,
I would like to provide additional information about corrupt activities by GE Transportation in India. Please see attached.
Sincerely,
Seema Sapra
______________________________
From: Seema Sapra [mailto:seema.sapra@
Sent: 14 June 2011 18:16
To: ffetf@usdoj.gov;chairmanoffice
Cc: jeffrey.immelt@ge.com; john.flannery@ge.com; 'Denniston, Brackett (GE, Corporate)'; 'Dimitrief, Alexander (GE, Corporate)'; 'Eglash, Jeffrey C (GE, Corporate)'; fwarin@gibsondunn.com
Subject: Additional information on Concerns about GE and possible FCPA violations
Dear Madam/ Sir,
Please find attached internet search results for Aartech Consultants, the independent third party contractor that GE Transportation India was using to liaise with the Indian Railways. Aartech Consultants shows up in search results as a recruitment agency.
I emailed about Aartech Consultants on 10 June 2011. (Before I sent my email, I googled "Aartech Consultants"and all the search results described it as a recruitment firm.) When I googled Aartech Consultants again on 13 June, the "recruitment" links did not show up. However, they still show up if you do not enter the full name. Instead there were 3-4 results that now describe Aartech as a business consultancy. Screen shots of these internet search results are attached.
The representative from Aartech Consultants who visited the GE office was Mr. Inderjeet Singh. He does not seem to hold any special qualifications that might have qualified him to provide any consulting services to GE. Plus he seems to be the sole representative and employee.
Thank you,
Seema Sapra"
128. Paragraph 14 of Civil Writ Petition 1280 of 2012 reads:
"The Petitioner has complained that Respondent No. 6 had entered into a third party contract with an entity called Aartech Consultants India Private Limited (hereafter referred to as Aartech) and that this contract was used to facilitate illegal payments and to pay bribes to Indian government officials. This would amount to offences of corruption under the Prevention of Corruption Act and also constitute a violation of the Unites States' Foreign Corrupt Practices Act. The Petitioner raised several red flags that call for an investigation. In June/ July 2010, the Petitioner (while still at GE) was asked to review and authorize a renewal of the contract between Respondent 6 and Aartech. The Petitioner found some red flags and deferred authorization until these red flags were addressed. First, Aartech had a total share capital of less than Rs. 50, 000. Second, GE's routine internet and reputational searches conducted under GE's internal Third Party Contract Authorisation Policy had found certain reputational red flags. Third, Aartech's application was outdated and seemed non-compliant. The Petitioner was later told by Mr. Anand Chidambaram, an employee of Respondent 6 that Aartech helped GE move files in the offices of the Indian Railways and received a 5% commission on every contract. The Managing Director of Aartech is one Mr. Inderjit Singh who was the main contact for GE and appeared to be the sole employee/ representative of Aartech. Mr. Inderjit Singh is a graduate and does not have any educational/ professional/ technical qualifications or expertise that would make him qualified to provide business consultancy services to GE in respect of GE's rail transportation business. Further since leaving GE, the Petitioner found internet search results for Aartech and Mr. Inderjit Singh that featured Aartech as a provider of recruitment consulting services. This raises a red flag suggesting money laundering. Given that other evidence and documents point to several instances of corrupt contact between GE employees and Indian Railways officials, these red flags about a third party contractor (Aartech) call for an investigation into the nature of services being provided by Aartech to GE, into whether payments made to Aartech were inflated and into whether Aartech was acting as a conduit to bribe Indian government officials."
129. In its purported counter affidavit dated July 3, 2012 filed in Civil Writ Petition 1280 of 2012, General Electric has admitted that "GE India" has an International Sales Representative Agreement with Aartech Consultants India Private Limited. General Electric further states in the said counter affidavit that its agreement with Aartech is a "bonafide commercial contract completely unrelated to the Indian Railway tenders in question". General Electric describes its dealings with Aartech as an "innocent act of GE's Indian affiliate contracting with a local Indian business on matters completely unrelated" to the Madhepura, Marhowra and Dankuni Projects/ tenders. I state that General Electric is again misrepresenting facts and except for the admission that it has had dealings with Aartech, these statements in General Electric's counter-affidavit are lies and intended to cover up the petitioner's complaints without any kind of investigation. Mr K R Radhakrishnan, who has filed the false counter affidavit purportedly on behalf of GE without authority documents has committed perjury by stating these blatant falsehoods on oath.
130. In August 2010, while the petitioner was still employed by General Electric, she had looked at the third party contracts that GE Transportation had entered into globally. All these contracts (which were mandatorily required by internal General Electric policies to go through a rigorous compliance review process under and in accordance with a written and detailed Independent Third Party Contract General Electric Policy document) were listed on the webpage of the internal General Electric website that was used by the GE Transportation legal team. The contract between General Electric and Aartech Consultants was listed under these contracts on GE Transportation's Legal Team website. This website is maintained by the office of the General Counsel for GE Transportation based in Erie, Pennsylvania in the United States and is hosted on General Electric's US servers.
131. In its counter affidavit dated July 3, 2012 filed in CWP 1280 of 2012, General Electric states that GE India has entered into an International Sales Representative Agreement with Aartech Consultants India Private Limited. The counter affidavit further describes this contract as "GE's Indian affiliate contracting with a local Indian business". These statements are false. The contract between General Electric and Aartech was a contract between GE Transportation (a business unit of General Electric Company, a US corporation) and Aartech, otherwise this contract would not be available on the US website of GE Transportation.
132. Some background as to how General Electric's business in India is organised is required. Until recently, General Electric's business in India was not consolidated into an India unit. The Indian business unit was set up only after Mr John Flannery was sent to India at the end of 2009. The actual business reorganisation into an India business unit did not formally take place until July 2010. Therefore during the months of May, June and July 2010 when the petitioner was working for GE Transportation in India, she was reporting on a functional basis (legal) to the General Counsel for GE Transportation, who at that time was Ms. Tara Plimpton. The petitioner was reporting on a business basis to Mr Pratyush Kumar, who was employed by General Electric Co. or by GE International and who in turn reported to Mr Lorenzo Simonelli, the CEO of GE Transportation. The second most senior GE Transportation executive based in the New Delhi office of GE Transportation was Mr Ashfaq Nainar, who was also employed by the parent company, General Electric Co. and who reported to Mr David B. Tucker of GE Transportation.
133. The petitioner was asked to review and approve the renewal of General Electric's contract with Aartech in June 2010 as Legal Counsel for GE Transportation in India. The request for approval of this contract was not sent to the petitioner by GE India's corporate office in Gurgaon or by GE India employees working for GE Transportation in the General Electric office at Rafi Marg, New Delhi. Instead the request emanated from the Erie-based headquarters of GE Transportation in the United States. The petitioner was sent an internet work flow link on the General Electric US website where the existing contract with Aartech was uploaded along with the results of the third party contract due diligence processes and the approvals (with justification) already obtained from the business and commercial executives who in General Electric language "owned" this contract. (For the record, the petitioner had not been given access to the website for GE India as she did not require this access for her work. The petitioner had been given access rights to the US website of GE Transportation). The petitioner was asked to review all this documentation and give the approval for a renewal of Aartech's contract in her capacity as GE Transportation's Legal Counsel for India. The business and commercial approvals for the renewal of Aartech's contract were given by Mr David Tucker and Mr Ashfaq Nainar. Mr David Tucker and Mr Ashfaq Nainar had made the commercial case for General Electric to renew the contract with Aartech. Both Mr David Tucker and Mr Ashfaq Nainar are employees of General Electric Co. and are part of GE Transportation. Mr David B. Tucker is Vice President, Global Sales Operations for GE Transportation, a business unit of General Electric Company. This contract between General Electric and Aartech was therefore a contract between GE Transportation in the United States and Aartech Consultants India Private Limited. It was this contract that was being used by General Electric as a conduit to make illegal payments as bribes to Indian government officials.
134. In an attempt to cover up the petitioner's complaint, Mr K R Radhakrishnan has lied under oath in General Electric's purported counter affidavit when he states that the contract with Aartech was an innocent business contract between GE India and a local Indian business (Aartech). Mr K R Radhakrishnan does not name which GE company signed the contract with Aartech. Instead he uses the vague term "GE India". If the contract with Aartech that was up for renewal in June 2010 was a contract with "GE India", then this contract would not have been sent to the petitioner for renewal approval by GE Transportation in the US and neither would Mr David Tucker or Mr Ashfaq Nainar have been involved in giving business and commercial approvals for such renewal. Instead of coming clean and owning up to an evidence-backed corruption and FCPA complaint that requires investigation, General Electric has attempted to cover-up and bury the issue.
135. What is absolutely clear is that GE Transportation had entered into a third party contract with Aartech before 2010 and this contract was subsequently being considered for renewal in June 2010.
136. To further expose the lies in General Electric's counter affidavit in its attempt to cover-up the complaint regarding its contract with Aartech, it is pointed out that the said counter affidavit states that the contract with Aartech is unrelated to the Indian Railway tenders. The counter affidavit states that General Electric has an international sales representative agreement with Aartech, but it evasively does not disclose what business or product this agreement covers.
137. The petitioner was told in August 2010 by Mr Anand Chidambaram (Chidambaram Balakrishnan) a General Electric executive with the GE Transportation India team that Mr Inderjeet Singh, the managing director of Aartech Consultants India Private Limited used to be or was a small supplier to Indian Railways and therefore had good contacts within Indian Railways and helped General Electric 'move government files'. The LinkedIn profile for Mr Inderjeet Singh, the managing director at Aartech Consultants India Private Limited, shows his industry as "Transportation/Trucking/
138. Why would GE Transportation appoint Aartech Consultants India Private Limited or Mr Inderjeet Singh as its International Sales Representative? Mr Inderjeet Singh has a graduate degree from St Stephen's College. Neither he nor Aartech have any international business experience in the rail sector. Mr Inderjeet Singh has no professional or technical qualifications that would qualify him to act as GE Transportation's international sales representative. GE Transportation has a large sales team spread all over the world wherever GE Transportation's customers are. Why would GE Transportation need to appoint a small supplier to Indian Railways as its international sales representative?
139. In an attempt to cover-up its murky and corrupt dealings with Aartech Consultants India Private Limited, General Electric in its false counter-affidavit dated July 3, 2012 in CWP 1280/2012 has avoided replying to or even acknowledging any of the facts or evidence presented by the petitioner, and instead has made vague, evasive and false statements. General Electric has not disclosed which General Electric company signed the contract with Aartech or which industry sector or product was serviced by the international sales representative contract with Aartech.
140. All that the said counter affidavit states is that General electric's agreement with Aartech is "completely unrelated to the Indian Railway tenders in question". This statement is false and constitutes another instance of perjury by Mr K R Radhakrishnan who has filed the counter affidavit on behalf of General Electric. While the written contract between GE Transportation and Aartech might not mention the multi-billion dollar Indian Railway tenders for the Madhepura, Marhowra and Dankuni Projects, General Electric's admission that it appointed Aartech as its international sales representative confirms that the third party contract between General Electric and Aartech was used to bribe Indian Railways officials and to pay kickbacks to Indian government officials in exchange for and as quid pro quo for the manipulation of bid processes and bid documents as part of a criminal conspiracy to award the contract for the Marhowra locomotive factory Project to General Electric.
141. Mr Inderjeet Singh was a regular visitor to the New Delhi office of GE Transportation on Rafi Marg during the period the petitioner worked with General Electric in 2010. During these visits, Mr Inderjeet Singh remained closeted with Mr Pratyush Kumar and Mr Ashfaq Nainar for considerable lengths of time. On several occasions, Mr Inderjeet Singh met Mr Pratyush Kumar alone. Mr Inderjeet Singh also met the CFO for GE Transportation in India (Ms Himali Arora) and knew all the employees in GE Transportation's Delhi office well. In 2010, Mr Pratyush Kumar headed GE Transportation's India operations. He was not responsible for any business activities or sales by GE Transportation outside India.. The message from Mr John Flannery and General Electric's US bosses was that without new business from the Marhowra Project, GE Transportation's India office might be disbanded or considerably under-sized. The India team of GE Transportation did not have much business in India in the rail sector where its only customer was Indian Railways. They were only engaged in a small spare part supply business (these spares were imported from the US) and had a small turbocharger refurbishing business. The petitioner was told by Mr Manish Batra, Vice President (Tax) at GE Corporate India that the worst performers at GE India were housed in the GE Transportation India team and that they had an "athanni-chavanni ka business". The fact that Mr Inderjeet Singh met Mr Pratyush Kumar and was in frequent touch with the latter in May, June, July and August 2010 shows that Mr Inderjeet Singh was working for GE Transportation in connection with General Electric's bids for the Marhowra, Madhepura and Dankuni tenders. Mr Pratyush Kumar was entirely focussed on the Indian Railways tenders for the Madhepura, Marhowra and Dankuni Projects. In 2010, Mr Pratyush Kumar job responsibilities at General Electric were limited to India, so why was he in frequent and regular contact with Mr Inderjeet Singh, who GE describes as its international sales representative? What did Mr Inderjeet Singh and Mr Pratyush Kumar discuss during their interactions in 2010?
142. The above facts establish that General Electric is hiding that Aartech Consultants India Private Limited had a contract with GE Transportation in 2010 and that Mr Inderjeet Singh from Aartech was in regular touch with Mr Pratyush Kumar in connection with General Electric's bids for the 2010 tenders for the Marhowra, Madhepura and Dankuni Projects. General Electric's contract with Aartech was not a bonafide commercial contract but was a contract that General Electric was using as a conduit to pay bribes and kickbacks to Indian government officials.
143. General Electric has not addressed any of the evidence adduced by the Petitioner in connection with her complaint concerning Aartech. General Electric has also failed to answer any of the questions raised. Instead General Electric has resorted to a cover-up in its counter affidavit through fake outrage at the petitioner's complaint and attempts to discredit the petitioner by smearing her and questioning her motives.
144. The petitioner has produced internet search results (which are available on the court record in this petition) that show Aartech Consultants India Private Limited as a recruitment consulting firm. Screen shots of these internet search results and of web-pages showing Aartech as a recruitment firm have been emailed to General Electric and copies have also been filed in the Delhi High Court in CWP 1280/ 2012. Why is General Electric Company's international sales representative showing up in internet searches in cheap advertisements for manpower recruitment? This is a red flag that points in the direction that Aartech Consultants India Private Limited is a shell company being used to transfer bribes to Indian public officials by General Electric Company.
145. According to General Electric's own internal compliance policies and compliance training guidance, such evidence in case of third party contractors raises a red flag that the third party contract in question might not be bonafide but instead a vehicle to transfer bribes and payments that are illegal under the US Foreign Corrupt Practices Act and to launder such bribes. Yet instead of acknowledging this evidence, General Electric in its counter affidavit dared July 3, 2012 makes the following statement: "the Answering Respondents deny that the purported Internet searches allegedly conducted by the Petitioner long after her brief consultancy of a few months with GE India are in any way indicative of money laundering". It is submitted that these internet searches and search results and webpages are neither purported nor alleged. Screen shots of these internet searches have been emailed to Mr Brackett Denniston, the General Counsel of General Electric Co on his official GE email address. Printed copies and soft copies of these internet search results have been produced as part of additional documents filed before the Delhi High Court in CWP 1280 of 2012 and these have been duly served on the law-firm AZB that is purportedly claiming to represent General Electric in CWP 1280/ 2012.
146. It is submitted that General Electric's own internet reputational searches for Aartech carried out under its own Independent Third Party Policy in 2010 raised red-flags which among other reasons prompted the petitioner to withhold approval for the renewal of this contract in June 2010 acting in her capacity as Legal Counsel for GE Transportation India. This evidence was available on General Electric's US servers in 2010 with the work-flow link that was sent to the petitioner.
147. Can General Electric explain why the International Sales Representative for GE Transportation (Aartech Consultants India Private limited) is in the business of providing recruitment services in India? Can General Electric explain what are the qualifications and criteria on the basis of which it has appointed Aartech Consultants India Private Limited as its International Sales Representative? Can General Electric disclose what services have been provided to General Electric by Aartech Consultants India Private Limited and what payments have been made to Aartech by General Electric over the last 12 years?
148. The petitioner has adduced sufficient evidence to support her complaint that General Electric was using its third party contract with Aartech to pay bribes and kickbacks to Indian government officials in order to win the multibillion dollar tender for the proposed diesel locomotive factory in Marhowra. Yet General Electric has ignored this evidence and states through a false counter affidavit that no case is made out for any investigation into Aartech's dealings with General Electric or with the Indian Railways. It is submitted that besides the evidence described above which establishes that General Electric was using Aartech as a conduit for bribes and as a facilitator of corrupt dealings with Indian government officials, General Electric's false statements and evasions in its false and unauthorised counter affidavit provide further confirmation that the Petitioner's complaint has substance and that General Electric is still covering up this matter.
149. The petitioner points to a very curious statement in General Electric's counter-affidavit: "The Answering Respondents further state that no investigation by the Answering Respondents has revealed any evidence of the allegations made by the Petitioner in respect of Aartech". In the very next sentence, the counter affidavit states (to paraphrase) that the petitioner has not placed on record any proof to substantiate these complaints and has not made out any case for investigation into Aartech. These statements are a piece of verbal sophistry intended to mislead the court and cover-up this matter. The petitioner's first complaint about Aartech was made in June 2011, four months after General Electric completed its alleged internal investigation. So General Electric has admittedly not investigated the complaint about Aartech. Yet it wants to mislead the court that it has done so. Therefore the counter affidavit states "no investigation by the Answering Respondents has revealed any evidence of the allegations made by the Petitioner in respect of Aartech" It is pointed out that this sentence does not state that the complaint against Aartech was investigated, instead it attempts to mislead the court by referring to unconnected investigations which did not look into the Aartech complaint. The fact is that despite substantial evidence (as described in the petitioner's complaints sent to General Electric in June 2010, in the writ petition, in the rejoinder affidavit dated July 9, 2012 filed by the petitioner in CWP 1280/2012, and hereinabove) that calls for a full investigation into General Electric's dealings with Aartech, General Electric has not investigated these complaints. Instead of an investigation, General Electric has caused false statements to be made on oath before this court and has obfuscated facts about its dealings with Aartech. This attempt to obfuscate the facts and mislead the court about the nature of General Electric's dealings and its contract with Aartech, confirms that General Electric has much to hide and is covering up its corrupt association with Aartech Consultants India Private Limited. These lies in the false counter affidavit purportedly filed on behalf of General Electric are further evidence of the need for a full investigation into the use by General Electric of its third party contract with Aartech for the payment of bribes and kickbacks. Instead of dealing with the facts and evidence of corruption and bribes with integrity and honesty, the fake exhibition of excess outrage by General Electric in its false and unauthorised counter-affidavit (while not a single fact is adequately rebutted or even acknowledged and several lies are stated) is a giveaway of the cover-up General Electric is engaged in.
150. The Petitioner highlights the following
i. General Electric has admitted that it appointed Aartech as its international sales representative.
ii. Aartech is a shell company, with a miniscule bank balance, with no track record of similar assignments or experience, with a suspicious internet profile, with no staff, with a residential address as its office, with a principal (Inderjeet Singh) who has no qualifications to render him eligible for this role, and who appears to be an associate of Mr Montek Singh Ahluwalia (both appear to have been contemporaries at St Stephen's College and would know each other) and Mr Montek Singh Ahluwalia is not only in a position to but has been accused by Government of India officials of pushing for award of this contract to General Electric on favourable terms.
iii. General Electric has been making payments to Aartech.
iv. The petitioner was asked to approve the renewal of General Electric's contract with Aartech, such approvals are the job of in-house counsel according to General Electric's compliance policies, and now General Electric in affidavits filed in this writ petition claims that the petitioner was not an in-house counsel but was merely an external consultant on a short-term contract. (The petitioner was also asked to approve a third party contract for General Electric in Pakistan). Why then was the petitioner asked to approve the renewal of General Electric's contract with Aartech when this is a job that is supposed to be performed by in-house counsel at General Electric under General Electric's supposedly sacrosanct "compliance policies"?
v. Several well-founded and evidence backed complaints have been made from several sources (not just the petitioner) that the impugned tenders are plagued by corruption, tailor-made tenders, manipulated bid processes and bid documents, huge unjustifiable concessions by the government, lack of transparency and accountability, mid-way rule changing, altered and misquoted minutes of government meetings, allegations of 'bananna republics' and 'con-games', agendas to compromise the interest of the Railways, allegations of conflict of interest, allegations of by-passing designated government officials etc., all pointing towards corruption that has benefited or was intended to benefit General Electric.
vi. Most bribes are paid through third parties using fake contracts or shell companies to transfer payments.
vii. GE Transportation does not manufacture anything in India or export from India so it obviously does not need an international sales representative based in India like Aartech especially when it has dedicated senior sales staff here.
viii. All of GE Transportations's sales/ contracts in India are to/with the Railway Ministry and follow a public tender process so a third party sales representative like Aartech is not needed.
ix. GE Transportation India CEO (Pratyush Kumar) is present in India only to win new business like the Marhowra tender. There is no other business in India for GE Transportation that would call for a third party sales representative like Aartech.
x. General Electric is reluctant to investigate its dealings with Aartech even in the face of all this evidence.
xi. General Electric has attempted to subvert these proceedings by using a lawyer (without a vakalatnama) to file a false counter affidavit (signed and verified by an unauthorised person) to make false statements under oath in an attempt to cover up the complaints concerning Aartech and the complaints of other illegalities.
xii. Employees/ lawyers of General Electric have had the petitioner drugged and poisoned and have attempted to have her murdered while simultaneously smearing her ...
151. The facts related establish that the petitioner's complaint that General Electric has paid bribes to Indian government officials and to Indian public officials using its contract with Aartech Consultants India Private Limited as a conduit to transfer and launder these bribes is substantial enough to justify a full investigation."
General Electric Company committed a defined corrupt practice while bidding for the 2010 tender for the Indian Railways Project for a proposed diesel locomotive factory at Marhowra, Bihar.
In 2009-2010, GE executives engaged the services of a man called Vinod Sharma, who had earlier advised the Indian Railway Ministry on the very same Project and on an earlier tender for the same Project in 2008-2009 in which GE participated but which was cancelled when GE made a mistake in the financial bid submitted by it.
Vinod Sharma, a retired Railway Ministry official, was employed/ consulting with PricewaterhouseCoopers in 2008-2009. PricewaterhouseCoopers was engaged by the Indian Rail Ministry for advice and consultancy on this Project including on the 2008-2009 tender for this Project. Vinod Sharma was part of the PricewaterhouseCoopers team advising the India Rail Ministry for this Project.
GE executives (Pratyush Kumar then with GE Transportation and Ashfaq Nainar with GE Transportation) were aware that Vinod Sharma had advised the Indian Rail Ministry on this Project and was part of the team that had prepared the Project documents, the bid contracts for the 2008-2009 tender for the Project, and had evaluated GE's 2008-2009 bid for this Project for the Indian Government. Yet, GE executives knowingly engaged the services of Vinod Sharma for advice on GE's bid for the same Project in 2010.
This created a serious conflict of interest situation which was defined in the 2010 bid documents as a "corrupt practice" and which rendered General Electric liable for disqualification from the 2010 tender and also liable for mandatory blacklisting from all Indian Rail contracts for a period of two years.
Attorney Seema Sapra, who was employed as in-house legal counsel for GE Transportation and was based in India and was advising on GE's 2010 bid, blew the whistle on this corrupt practice by GE executives. General Electric executives and lawyers have not only failed to investigate this corrupt practice but have put into effect an obstruction of justice conspiracy to cover this up.
The attorney Seema Sapra faced with a life threat from General Electric executives and lawyers filed a legal proceeding in the Delhi High Court being Writ Petition Civil No. 1280/ 2012. The Delhi High Court issued notice in this matter to General Electric Company, GE India Industrial Private Limited and GE Global Sourcing India Private Limited on 7 March 2012. A copy of the Delhi High Court order dated 7 March 2012 can be viewed on the Delhi High Court website at http://delhihighcourt.nic.in/
Instead of appearing before the Delhi High Court in this matter through properly authorized and competent person/s, General Electric Company lawyers and executives (including General Counsel Brackett Denniston, and GE in-house lawyers Alexander Dimitref, Bradford Berenson, and Jeffrey Eglash), caused this legal proceeding to remain hidden from General Electric Company and caused an Indian subsidiary employee K R Radhakrishnan to impersonate as the authorized signatory/ representative of General Electric Company before the Delhi High Court in these legal proceedings between 2012 and 2015 using fraudulent and forged authority documents on behalf of General Electric Company. With the help of this fraud, and using other dishonest, corrupt and illegal means, General Electric Company is attempting to cover up the corruption and FCPA complaints against it in connection with its bids for two Indian Railway tenders - the tenders for the proposed diesel locomotive factory in Marhowra and the tenders for the proposed electric locomotive factory in Madhepura. For more details on this fraud, obstruction of justice and attempted cover-up see http://geimpersonationfraud.
In this proceeding, an affidavit was filed by K R Radhakrishnan purporting to be an affidavit on behalf of General Electric Company wherein it was admitted that that "GE India did in fact enter into a written relationship with Mr Sharma's company, Essvee Consultants, effective August 11, 2009". General Electric in the same affidavit has also admitted that Vinod Sharma did work for PricewaterhouseCoopers and therefore for the Indian Rail Ministry for the 2008 Marhowra tender.
There is no record of a company registered in India with the name Essvee Consultants. So how did GE India enter into a written relationship with a Company called Essvee Consultants in 2009? This again raises a red flag about the dubious nature of the relationship between General Electric on the one hand and Vinod Sharma on the other. This also raises an FCPA red flag in that the contract between GE and Vinod Sharma was most likely used by GE to facilitate the transfer of bribes to Indian public officials.
The Court record for Writ Petition Civil No. 1280/ 2012 can be found at http://seemasapra.blogspot.in/
Though Writ Petition Civil No. 1280/ 2012 has been disposed off (as GE executives and lawyers subverted these legal proceedings in an obstruction of justice conspiracy), the complaints against General Electric including the complaint regarding Vinod Sharma have not been investigated or decided.
For more on General Electric corruption in India in connection with the Indian Rail tenders for the proposed diesel locomotive factory at Marhowra and the proposed electric locomotive factory at Madhepura, see
http://geimpersonationfraud.
http://gecorruption.blogspot.
http://gemarhowracorruption.
http://
http://gecorruptionpart2.
http://gecorruptionpart3.
http://gecorruptionpart4.
http://gecorruptionpart5.
http://seemasapra.blogspot.
General Electric executives corruptly obtained advice and assistance from a Railways Ministry official/ advisor Mr. Shakeel Ahmed during GE's bid for this Project in 2008-2009
Attorney Seema Sapra who was working as in-house counsel for GE Transportation in India in 2010 obtained independent and personal knowledge of General Electric's corrupt dealings with Mr Shakeel Ahmed during the 2008-2009 Marhowra tender.
In June 2010, Attorney Seema Sapra was informed of such corrupt dealings by a US based GE executive (Mr Steve Seip) and a US based lawyer (Mr James Winget) for General Electric (both were working then with GE Transportation). Seema Sapra, then working as in-house counsel for General Electric, was on a phone-call with Steve Seip and James (Jamie) Winget towards the end of June 2010. This phone-call was to discuss certain changes that Sapra had suggested to GE's technical prequalification application documents for the 2010 Marhowra tender that were under preparation. Steve Seip initially opposed the changes proposed 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 Marhowra tender in 2008. Sapra in her capacity as Legal Counsel for GE Transportation in India disagreed with the draft documents prepared by Steve Seip and pressed for her recommendations for modifications to these documents based upon her interpretation of bid documents. After some discussion on this phone-call, Sapra was able to convince James Winget about her suggestions and it was agreed that Sapra's suggestions would be incorporated in the technical bid application to be submitted by General Electric.
Steve Seip from General Electric then told Seema Sapra and James Winget on this phone call that the Marhowra bid application that was submitted by General Electric to the Indian Railway Ministry in 2008 had been vetted by Mr. Shakeel Ahmed, then a senior Government of India public 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 Marhowra bid application was after drafting, first sent to Mr. Shakeel Ahmed in the Indian Railway Ministry for his approval and was included in General Electric's bid application only after such approval. This bid application vetted by Mr Shakeel Ahmed from the Indian Railway Ministry was then submitted by General Electric to the Indian 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 defined as such under the bid documents 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 bid application for the Marhowra 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 an internal General Electric email dated July 12, 2010 sent by Pratyush Kumar to a number of persons including to Attorney Seema Sapra.
A copy of this email is part of the court documents in Writ Petition Civil No. 1280/ 2012 filed before the Delhi High Court. Pages 222-228 of the Delhi High Court record in this case containing a copy of this internal General Electric email can be accessed at https://docs.google.com/file/
This email was 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 part of the Delhi High Court public record in Writ Petition Civil No. 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 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 second milestone on this flow-chart is the issuance of the Marhowra Project tender 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 of the Indian Railway Ministry. This language conveys that General Electric had no "focal point" in the "mechanical" directorate of the Railway Board. It also conveys that General Electric did have a focal point in the Electric Directorate of the Railway Board.
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 Marhowra 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 Indian Railway Board's 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 Indian 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 Marhowra diesel locomotive factory tender RFQ for this purpose was Mr. Santosh Sinha, Director, (Mech Engg)/Works, Ministry of Railways. See Clause 2.13.3 of the 2010 Marhowra 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.
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 Indian Railway Ministry assisted General Electric in its bid for the 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 Attorney Seema Sapra by Mr Steve Seip and Mr James Winget (from General Electric) in its bid to secure the multi-billion dollar diesel locomotive factory tender was nothing but corruption.
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 worked as Chairman cum Managing Director of Hindustan Copper Limited since October 2009. Mr Shakeel Ahmed was under investigation by the Indian Central Bureau of Investigation for corruption during his tenure at Hindustan Copper.
Attorney Seema Sapra, who was employed as in-house legal counsel for GE Transportation and was based in India and was advising on GE's 2010 bid, blew the whistle on this corrupt practice by GE executives. General Electric executives and lawyers have not only failed to investigate this corrupt practice but have put into effect an obstruction of justice conspiracy to cover this up.
The attorney Seema Sapra faced with a life threat from General Electric executives and lawyers filed a legal proceeding in the Delhi High Court being Writ Petition Civil No. 1280/ 2012. The Delhi High Court issued notice in this matter to General Electric Company, GE India Industrial Private Limited and GE Global Sourcing India Private Limited on 7 March 2012. A copy of the Delhi High Court order dated 7 March 2012 can be viewed on the Delhi High Court website at http://delhihighcourt.nic.in/
Instead of appearing before the Delhi High Court in this matter through properly authorized and competent person/s, General Electric Company lawyers and executives (including General Counsel Brackett Denniston, and GE in-house lawyers Alexander Dimitref, Bradford Berenson, and Jeffrey Eglash), caused this legal proceeding to remain hidden from General Electric Company and caused an Indian subsidiary employee K R Radhakrishnan to impersonate as the authorized signatory/ representative of General Electric Company before the Delhi High Court in these legal proceedings between 2012 and 2015 using fraudulent and forged authority documents on behalf of General Electric Company. With the help of this fraud, and using other dishonest, corrupt and illegal means, General Electric Company is attempting to cover up the corruption and FCPA complaints against it in connection with its bids for two Indian Railway tenders - the tenders for the proposed diesel locomotive factory in Marhowra and the tenders for the proposed electric locomotive factory in Madhepura. For more details on this fraud, obstruction of justice and attempted cover-up see http://geimpersonationfraud.
The Court record for Writ Petition Civil No. 1280/ 2012 can be found at http://seemasapra.blogspot.in/
Though Writ Petition Civil No. 1280/ 2012 has been disposed off (as GE executives and lawyers subverted these legal proceedings in an obstruction of justice conspiracy), the complaints against General Electric including the complaint regarding Shakeel Ahmed have not been investigated or decided.
For more on General Electric corruption in India in connection with the Indian Rail tenders for the proposed diesel locomotive factory at Marhowra and the proposed electric locomotive factory at Madhepura, see
http://geimpersonationfraud.
http://gecorruption.blogspot.
http://gemarhowracorruption.
http://
http://gecorruptionpart2.
http://gecorruptionpart3.
http://gecorruptionpart4.
http://gecorruptionpart5.
http://seemasapra.blogspot.
Issue of General Electric having access to unreleased and confidential Indian Railways Marhowra Project Draft Bid Documents in 2008
Reproduced below is an email that Attorney Seema Sapra received from Ms Ruby Anand on March 9, 2010 forwarding five pdf files that were sent to the latter by Ms Praveena Yagnambhat (from General Electric) on August 1, 2008. Ruby Anand has in the past served as General Counsel for General Electric in India for about 10 years. She had ceased to be employed as GE India's General Counsel by August 1, 2008.
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 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 Seema Sapra received from Ruby Anand on March 9, 2010 has been attached as Annexure P-2 to the rejoinder affidavit filed by Sapra on July 23, 2012 in Writ Petition Civil No. 1280/2012 before the Delhi High Court. This document is the Railway Ministry draft RFP (Request for Proposal) for the 2008-2009 tender for the diesel locomotive factory Project at Marhowra. Similarly, the other four documents attached to 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.
These documents are the following:
11th July 2008 D Loco Shareholders Agreement.pdf
11th July 2008 D Loco Land Lease Agreement.pdf
11th July 2008 D Loco Maintenance Contract.pdf
11th July 2008 D Loco Procurement Contract.pdf
11th July 2008 D Loco RFP Document.pdf
All the five documents above are confidential draft bid documents from the Marhowra Project tender from 2008 which were never officially released by the Indian Rail Ministry nor officially shared either with General Electric or EMD, the two bidders for this Project. How did General Electric enter into possession of these confidential Government of India documents?
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 confidential draft documents for the 2008-2009 Marhowra Project tender? How did General Electric get access to these documents on or before August 1, 2008? Who gave these confidential and non-public documents to General Electric?
These internal Railway Ministry documents (still in draft form) were obviously obtained by General Electric illegally before they were officially finalized 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 in Writ Petition Civil 1280/ 2012 does not offer any explanation about how General Electric came to possess a copy of the confidential draft of the Marhowra Project RFP on 1 August 2008, when this RFP was formally released to Bidders only on 22 September 2008. The other bidder apart from General Electric, another US firm EMD did not have access to these draft bid documents, so how did General Electric get access?
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 in Writ Petition Civil 1280/ 2012) 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 confidential draft Bid Documents for the Marhowra tender on 1 August 2008, before these were formally 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 Marhowra diesel locomotive factory Project has been created/ tailor-made at the behest of and for General Electric. General Electric has since before 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 Montek Singh Ahluwalia and his aide Gajendra Haldea).
Attorney Seema Sapra, who was employed as in-house legal counsel for GE Transportation and was based in India and was advising on GE's 2010 bid, blew the whistle on this corruption by GE executives. General Electric executives and lawyers have not only failed to investigate this corrupt practice but have put into effect an obstruction of justice conspiracy to cover this up.
The attorney Seema Sapra faced with a life threat from General Electric executives and lawyers filed a legal proceeding in the Delhi High Court being Writ Petition Civil No. 1280/ 2012. The Delhi High Court issued notice in this matter to General Electric Company, GE India Industrial Private Limited and GE Global Sourcing India Private Limited on 7 March 2012. A copy of the Delhi High Court order dated 7 March 2012 can be viewed on the Delhi High Court website at
http://delhihighcourt.nic.in/
Instead of appearing before the Delhi High Court in this matter through properly authorized and competent person/s, General Electric Company lawyers and executives (including General Counsel Brackett Denniston, and GE in-house lawyers Alexander Dimitref, Bradford Berenson, and Jeffrey Eglash), caused this legal proceeding to remain hidden from General Electric Company and caused an Indian subsidiary employee K R Radhakrishnan to impersonate as the authorized signatory/ representative of General Electric Company before the Delhi High Court in these legal proceedings between 2012 and 2015 using fraudulent and forged authority documents on behalf of General Electric Company. With the help of this fraud, and using other dishonest, corrupt and illegal means, General Electric Company is attempting to cover up the corruption and FCPA complaints against it in connection with its bids for two Indian Railway tenders - the tenders for the proposed diesel locomotive factory in Marhowra and the tenders for the proposed electric locomotive factory in Madhepura. For more details on this fraud, obstruction of justice and attempted cover-up see http://geimpersonationfraud.
The Court record for Writ Petition Civil No. 1280/ 2012 can be found at http://seemasapra.blogspot.in/
Though Writ Petition Civil No. 1280/ 2012 has been disposed off (as GE executives and lawyers subverted these legal proceedings in an obstruction of justice conspiracy), the complaints against General Electric including the complaint regarding corrupt procurement of confidential draft bid documents by General Electric have not been investigated or decided.
For more on General Electric corruption in India in connection with the Indian Rail tenders for the proposed diesel locomotive factory at Marhowra and the proposed electric locomotive factory at Madhepura, see
http://geimpersonationfraud.
http://gecorruption.blogspot.
http://gemarhowracorruption.
http://
http://gecorruptionpart2.
http://gecorruptionpart3.
http://gecorruptionpart4.
http://gecorruptionpart5.
http://seemasapra.blogspot.
Reproduced below is an extract from an application dated May 2013 filed against General Electric Company in the Delhi High Court which application was disposed off by the Judges without a decision on merits, after General Electric Company lawyers corrupted and subverted the proceedings (for this see http://geimpersonationfraud.
This application numbered as Civil Miscellaneous Application No. 7197/ 2013 in Writ Petition Civil No. 1280/ 2012 is available at https://docs.google.com/file/
It is clear from what follows below that General Electric Company executives and in particular Pratyush Kumar and Ashfaq Nainar corrupted Indian public officials working on the tender documents and procured unlawful changes to tender documents to enable General Electric Company to bid for Indian rail tenders using a shell company (GE Global Sourcing India Private Limited) and with intent to avoid having to make mandatory disclosures about General Electric Company to the Government of India. The only beneficiary of the unlawful changes to the tender documents described below in paragraph 169 of the extract was General Electric Company. The other bidders for the Madhepura Project in 2010 were Siemens, Alstom and Bombardier whereas the other bidder for the Marhowra Project in 2010 was the Caterpillar subsidiary EMD.
"Issue of tailoring bid documents to assist General Electric to avoid making necessary disclosures under mandatory GOI guidelines
152. The General Electric bidding entity for both the impugned tenders, GE Global Sourcing India Private Limited (respondent 7) is a shell company and only meets the financial and technical eligibility conditions in the Marhowra and Madhepura RFQs by using the parent company, General Electric Company as is "Associate".
153. Illegal modifications were made by respondent 4 (with the collusion of corrupt officials from the Planning Commission and the Railway Ministry) to the 2010 RFQ for the proposed diesel locomotive factory with intent to dilute the disclosure requirements mandated by the Government of India Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment bearing Office Memorandum No. 6/4/2001DDII and dated July 13, 2001. These modifications were made at the behest of General Electric and are intended to assist GE to qualify without having to comply with the said GOI guidelines. General Electric has failed to comply with these guidelines in both the 2010 Marhowra and the 2010 Madhepura tenders.
154. The Government of India, Department of Disinvestment has issued 'Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment' vide Office Memorandum No. 6/4/2001DDII dated July 13, 2001. Compliance with these Government of India guidelines is mandatory for tenders like the tenders for the proposed Madhepura electric locomotive factory and the proposed Marhowra diesel locomotive factory. These guidelines are applicable to both the Marhowra and Madhepura RFQs for 2010.
155. Clause 1.3.2 of the 2010 Marhowra RFQ provides:
"Government of India has issued guidelines (see Appendix-IV) for qualification of bidders seeking to acquire stakes in any public sector enterprise through the process of disinvestment. These guidelines shall apply mutatis mutandis to this Bidding Process. The Authority shall be entitled to disqualify an Applicant in accordance with the aforesaid guidelines at any stage of the Bidding Process. Applicants must satisfy themselves that they are qualified to bid, and should give an undertaking to this effect in the form at Appendix-I."
Similarly the second paragraph of Clause 1.2.1 of the 2010 Madhepura RFQ provides:
"Government of India has issued guidelines (see Appendix-V) for qualification of bidders seeking to acquire stakes in any public sector enterprise through the process of disinvestment. These guidelines shall apply mutatis mutandis to this Bidding Process. The Authority shall be entitled to disqualify an Applicant in accordance with the aforesaid guidelines at any stage of the Bidding Process. Applicants must satisfy themselves that they are qualified to bid, and should give an undertaking to this effect in the form at Appendix-I."
156. These Government of India guidelines provide as follows:
"Government has examined the issue of framing comprehensive and transparent guidelines defining the criteria for bidders interested in PSE disinvestment so that the parties selected through competitive bidding could inspire public confidence. Earlier, criteria like net worth, experience etc. used to be prescribed. Based on experience and in consultation with concerned departments, Government has decided to prescribe the following additional criteria for the qualification/disqualification of the parties seeking to acquire stakes in public sector enterprises through disinvestment:
(a) In regard to matters other than the security and integrity of the country, any conviction by a Court of Law or indictment/ adverse order by a regulatory authority that casts a doubt on the ability of the bidder to manage the public sector unit when it is disinvested, or which relates to a grave offence would constitute disqualification. Grave offence is defined to be of such a nature that it outrages the moral sense of the community. The decision in regard to the nature of the offence would be taken on case to case basis after considering the facts of the case and relevant legal principles, by the Government of India.
(b) In regard to matters relating to the security and integrity of the country, any charge-sheet by an agency of the Government/ conviction by a Court of Law for an offence committed by the bidding party or by any sister concern of the bidding party would result in disqualification. The decision in regard to the relationship between the sister concerns would be taken, based on the relevant facts and after examining whether the two concerns are substantially controlled by the same person/ persons.
(c) In both (a) and (b), disqualification shall continue for a period that Government deems appropriate.
(d) Any entity, which is disqualified from participating in the disinvestment process, would not be allowed to remain associated with it or get associated merely because it has preferred an appeal against the order based on which it has been disqualified. The mere pendency of appeal will have no effect on the disqualification.
(e) The disqualification criteria would come into effect immediately and would apply to all bidders for various disinvestment transactions, which have not been completed as yet.
(f) Before disqualifying a concern, a Show Cause Notice why it should not be disqualified would be issued to it and it would be given an opportunity to explain its position.
(g) Henceforth, these criteria will be prescribed in the advertisements seeking Expression of Interest (EOI) from the interested parties. The interested parties would be required to provide the information on the above criteria, along with their Expressions of Interest (EOI). The bidders shall be required to provide with their EOI an undertaking to the effect that no investigation by a regulatory authority is pending against them. In case any investigation is pending against the concern or its sister concern or against its CEO or any of its Directors/ Managers/ employees, full details of such investigation including the name of the investigating agency, the charge/ offence for which the investigation has been launched, name and designation of persons against whom the investigation has been launched and other relevant information should be disclosed, to the satisfaction of the Government. For other criteria also, a similar undertaking shall be obtained along with EOI."
157. In order to enforce compliance with these Guidelines, Appendix I (Letter comprising the Application for Qualification) of the 2010 RFQ for the proposed diesel locomotive factory at Marhowra requires certain certifications from Bidders.
158. The relevant paragraphs in Appendix I (Letter comprising the Application for Qualification) of the 2010 RFQ for the proposed diesel locomotive factory at Marhowra are the following:
(i) " I/We certify that in the last three years, we/ any of the Consortium Members have neither failed to perform on any contract, as evidenced by imposition of a penalty or a judicial pronouncement or arbitration award, nor been expelled from any project or contract nor have had any contract terminated for breach on our part." – required as per paragraph 5 of the Letter comprising the Application for Qualification.
(ii) "I/ We certify that in regard to matters other than security and integrity of the country, we have not been convicted by a Court of Law or indicted or adverse orders passed by a regulatory authority which could cast a doubt on our ability to undertake the Project or which relates to a grave offence that outrages the moral sense of the community." – required as per paragraph 10 of the Letter comprising the Application for Qualification.
(iii) "I/ We further certify that in regard to matters relating to security and integrity of the country, we have not been charge-sheeted by any agency of the Government or convicted by a Court of Law for any offence committed by us or by any of our Associates." – required as per paragraph 11 of the Letter comprising the Application for Qualification.
(iv) "I/ We further certify that no investigation by a regulatory authority is pending either against us or against our Associates or against our CEO or any of our Directors/ Managers/ employees that affects our ability to undertake / execute the Project." – required as per paragraph 12 of the Letter comprising the Application for Qualification.
(v) "I/ We further certify that we are not disqualified in terms of the additional criteria specified by the Department of Disinvestment in their OM No. 6/4/2001DDII dated July 13, 2001, a copy of which forms part of the RFQ." – required as per paragraph 13 of the Letter comprising the Application for Qualification.
(vi) "A statement by the Applicant and each of the members of its Consortium (where applicable) disclosing material nonperformance or contractual noncompliance in past projects, contractual disputes and litigation / arbitration in the recent past that exceed 5% of the contract value is given below (Attach extra sheets, if necessary)"- required as per paragraph 7 of Annex I to the Letter comprising the Application for Qualification.
159. The corresponding paragraphs in Appendix I (Letter comprising the Application for Qualification) of the 2010 RFQ for the proposed electric locomotive factory at Madhepura are as follows:
(i) I/ We certify that in the last three years, we/ any of the Consortium Members or our/ their Associates have neither failed to perform on any contract, as evidenced by imposition of a penalty by an arbitral or judicial authority or a judicial pronouncement or arbitration award, nor been expelled from any project or contract by any public authority nor have had any contract terminated by any public authority for breach on our part. - required as per paragraph 6 of the Letter comprising the Application for Qualification.
(ii) I/ We certify that in regard to matters other than security and integrity of the country, we/ any Member of the Consortium or any of our/ their Associates have not been convicted by a Court of Law or indicted or adverse orders passed by a regulatory authority which could cast a doubt on our ability to undertake the Project or which relates to a grave offence that outrages the moral sense of the community. - required as per paragraph 11 of the Letter comprising the Application for Qualification.
(iii) I/ We further certify that in regard to matters relating to security and integrity of the country, we/ any Member of the Consortium or any of our/ their Associates have not been charge-sheeted by any agency of the Government or convicted by a Court of Law. - required as per paragraph 12 of the Letter comprising the Application for Qualification.
(iv) I/ We further certify that no investigation by a regulatory authority is pending either against us/ any Member of the Consortium or against our/ their Associates or against our CEO or any of our directors/ managers/ employees. - required as per paragraph 13 of the Letter comprising the Application for Qualification.
(v) I/ We further certify that we are qualified to submit a Bid in accordance with the guidelines for qualification of bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment issued by the GOI vide Department of Disinvestment OM No. 6/4/2001-DD-II dated 13th July, 2001 which guidelines apply mutatis mutandis to the Bidding Process. A copy of the aforesaid guidelines form part of the RFQ at Appendix-V thereof. - required as per paragraph 14 of the Letter comprising the Application for Qualification.
(vi) A statement by the Applicant and each of the Members of its Consortium (where applicable) or any of their Associates disclosing material non-performance or contractual non-compliance in past projects, contractual disputes and litigation/ arbitration in the recent past is given below (Attach extra sheets, if necessary) - required as per paragraph 6 of Annex I to the Letter comprising the Application for Qualification.
160. Both the 2010 RFQs (and the 2008 RFQs as well) for the proposed diesel locomotive factory at Marhowra and the proposed electric locomotive factory at Madhepura, required the Bidders to comply with and give undertakings and certifications in accordance with the Government of India Guidelines. Neither General Electric Co., nor its principal Indian subsidiary carrying on business in India (GE India Industrial Private Limited), were in a position to provide the certifications and disclosures required by the Government of India guidelines. General Electric Company therefore fronted a shell company as the Bidder for both the 2010 tenders. This shell company, GE Global Sourcing India Private Limited had not executed any contracts and therefore did not need to make any disclosures pertaining to convictions/ indictments/ adverse orders/ charge-sheets or pending investigations by a regulatory authority. General Electric Company used GE Global Sourcing India Private Limited, a shell company, to front as the applicant for these locomotive tenders because neither General Electric Co. nor GE India Industrial Private Limited were able or willing to provide the certifications and disclosures required by the RFQs and the Government of India Guidelines.
161. Despite using GE Global Sourcing India Private Limited as the applicant for the impugned tenders, GE still found it difficult to provide these certifications because the Government of India Guidelines require certifications on behalf of the Bidder and its sister concerns. These guidelines also require disclosure of investigations by regulatory authorities against the Bidder or its sister concerns or against its CEO or any of its Directors/ Managers/ employees. The disclosure required covers full details of such investigation including the name of the investigating agency, the charge/ offence for which the investigation has been launched, name and designation of persons against whom the investigation has been launched and other relevant information to the satisfaction of the Government.
162. To overcome this hurdle, General Electric managed to get the language of the 2010 RFQ for the proposed diesel locomotive factory at Marhowra changed and diluted. A comparison of the corresponding clauses in the 2010 Marhowra RFQ and the 2010 Madhepura RFQ shows how the language of the 2010 Marhowra RFQ was tailored to enable General Electric to avoid disclosing any convictions/ indictments/ adverse orders/ charge-sheets or pending investigations by a regulatory authority on behalf of the Associates/ sister concerns of the Bidder and their CEO or Directors/ Managers/ employees.
163. GE Global Sourcing India Private Limited, a wholly-owned subsidiary of General Electric Co. has listed General Electric Co. as its Associate in the technical/ RFQ bids for the 2010 tenders for the Madhepura electric locomotive factory and the Marhowra diesel locomotive factory and also in its RFQ application for the Dankuni project (another Indian railways tender that General Electric was short-listed for).
164. Clause 2.2.8 of the 2010 RFQ for the proposed diesel locomotive factory at Marhowra defines an Associate as follows and provides:
"In computing the Technical Capacity and Net Worth of the Applicant/ Consortium members under Clauses 2.2.2, 3.2 and 3.4, the Technical Capacity and Net Worth of their respective Associates would also be eligible hereunder.
For purposes hereof, Associate means in relation to the Applicant/ Consortium member, a person who controls, is controlled by, or is under the common control with such Applicant/ Consortium member (the "Associate"). As used in this definition, the expression "control" means, with respect to a person which is a company or corporation, the ownership, directly or indirectly, of more than 50% (fifty per cent) of the voting shares of such person, and with respect to a person which is not a company or corporation, the power to direct the management and policies of such person, whether by operation of law or by contract or otherwise."
Clause 2.2.9 (ii) of the 2010 RFQ for the proposed diesel locomotive factory at Marhowra is also relevant. It provides:
"information supplied by an Applicant (or other constituent member if the Applicant is a Consortium) must apply to the Applicant or constituent member named in the Application and not, unless specifically requested, to other associated companies or firms. Invitation to submit Bids will be issued only to Applicants whose identity and/ or constitution is identical to that at prequalification".
165. The corresponding clauses in the 2010 RFQ for the proposed electric locomotive factory at Madhepura are Clause 2.2.9 and 2.2.10 (b). Clause 2.2.9 of the 2010 Madhepura RFQ provides:
"In computing the Technical Capacity and Net Worth of the Applicant/ Consortium Members under Clauses 2.2.2, 2.2.4 and 3.2, the Technical Capacity and the Net Worth of their respective Associates would also be eligible hereunder.
For purposes of this RFQ, Associate means, in relation to the Applicant/ Consortium Member, a person who controls, is controlled by, or is under the common control with such Applicant/ Consortium Member (the "Associate"). As used in this definition, the expression "control" means, with respect to a person which is a company or corporation, the ownership, directly or indirectly, of more than 50% (fifty per cent) of the voting shares of such person, and with respect to a person which is not a company or corporation, the power to direct the management and policies of such person by operation of law."
Clause 2.2.10 (b) of the 2010 Madhepura RFQ provides:
"information supplied by an Applicant (or other constituent Member if the Applicant is a Consortium) must apply to the Applicant, Member or Associate named in the Application and not, unless specifically requested, to other associated companies or firms. Invitation to submit Bids will be issued only to Applicants whose identity and/ or constitution is identical to that at pre-qualification".
166. The Madhepura 2010 RFQ was issued on March 2, 2010. The Marhowra 2010 RFQ was issued on March 23, 2010.
167. The corresponding requirements in Appendix I (Letter comprising the Application for Qualification) of the 2008 RFQ for the proposed electric locomotive factory at Madhepura were as follows:
(i) We certify that in the last three years, we/ any of the Consortium Members have neither failed to perform on any contract, as evidenced by imposition of a penalty or a judicial pronouncement or arbitration award, nor been expelled from any project or contract nor have had any contract terminated for breach on our part. - required as per paragraph 6 of the Letter comprising the Application for Qualification.
(ii) I/ We certify that in regard to matters other than security and integrity of the country, we have not been convicted by a Court of Law or indicted or adverse orders passed by a regulatory authority which could cast a doubt on our ability to undertake the Project or which relates to a grave offence that outrages the moral sense of the community. - required as per paragraph 11 of the Letter comprising the Application for Qualification.
(iii) I/ We further certify that in regard to matters relating to security and integrity of the country, we have not been charge-sheeted by any agency of the Government or convicted by a Court of Law for any offence committed by us or by any of our Associates. - required as per paragraph 12 of the Letter comprising the Application for Qualification.
(iv) I/ We further certify that no investigation by a regulatory authority is pending either against us or against our Associates or against our CEO or any of our Directors/ Managers/ employees. - required as per paragraph 13 of the Letter comprising the Application for Qualification.
(v) I/ We further certify that we are qualified to submit a Bid in accordance with the guidelines for qualification of bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment issued by the GOI vide Department of Disinvestment OM No. 6/4/2001-DD-II dated 13th July, 2001 which guidelines apply mutatis mutandis to the Bidding Process. A copy of the aforesaid guidelines form part of the RFQ at Appendix-IV thereof. - required as per paragraph 14 of the Letter comprising the Application for Qualification.
(vi) A statement by the Applicant and each of the Members of its Consortium (where applicable) disclosing material non-performance or contractual noncompliance in past projects, contractual disputes and litigation/ arbitration in the recent past is given below (Attach extra sheets, if necessary) - required as per paragraph 6 of Annex I to the Letter comprising the Application for Qualification.
Clause 2.2.9 of the 2008 Madhepura RFQ defines an 'Associate" and provides as follows:
"In computing the Technical Capacity and Net Worth of the Applicant/ Consortium Members under Clauses 2.2.2, 2.2.4 and 3.2, the Technical Capacity and Net Worth of their respective Associates would also be eligible hereunder. For purposes hereof, Associate means, in relation to the Applicant/ Consortium Member, a person who controls, is controlled by, or is under the common control with such Applicant/ Consortium Member (the "Associate"). As used in this definition, the expression "control" means, with respect to a person which is a company or corporation, the ownership, directly or indirectly, of more than 50% (fifty per cent) of the voting shares of such person, and with respect to a person which is not a company or corporation, the power to direct the management and policies of such person, whether by operation of law or by contract or otherwise."
Clause 2.2.10 (ii) of the 2008 Madhepura RFQ provides:
"information supplied by an Applicant (or other constituent Member if the Applicant is a Consortium) must apply to the Applicant, Member or Associate named in the Application and not, unless specifically requested, to other associated companies or firms. Invitation to submit Bids will be issued only to Applicants whose identity and/ or constitution is identical to that at pre-qualification".
168. A comparison of the relevant paragraphs from the three RFQs - the 2008 Madhepura RFQ, the 2010 Madhepura RFQ, and the 2010 Marhowra RFQ exhibits a curious pattern of tightening and dilution of language pertaining to the requirements imposed by the above-discussed Government of India guidelines. The comparison exposes a pattern of arbitrary modification of language from one RFQ to another. It is submitted not only are these arbitrary modifications that cannot be justified, but it cannot be a mere coincidence that the modifications introduced suited General Electric's requirements and strategy perfectly and enabled General Electric to avoid making disclosures that it was unable or unwilling to even though these disclosures were mandated by the applicable GOI guidelines. The relevant disclosure requirements in the 2010 Marhowra RFQ were diluted at the instance of General Electric and because of prohibited lobbying of Indian Railways and Planning Commission officials by General Electric executives, employees and agents and pursuant to corrupt dealings between Indian Railways and Planning Commission officials and General Electric. These unjustifiable and unlawful changes to the 2010 Marhowra RFQ language violate (i) the GOI Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment issued vide Office Memorandum No. 6/4/2001DDII dated July 13, 2001; (ii) the GOI Guidelines issued by the Ministry of Finance (F.No. 24(1)/PF.II/07) titled 'Guidelines for Pre-Qualification of Bidders for PPP Projects'; and (iii) the Government of India endorsed and recommended model RFQ.
169. Copies of the Guidelines issued by the Ministry of Finance (F.No. 24(1)/PF.II/07) titled 'Guidelines for Pre-Qualification of Bidders for PPP Projects' and the Government of India endorsed and recommended model RFQ have been filed by the petitioner before this court.
Comparison of relevant paragraphs setting out disclosure requirements in the 2008 Madhepura RFQ, the 2010 Madhepura RFQ, and the 2010 Marhowra RFQ
2008 Madhepura RFQ
2010 Madhepura RFQ
2010 Marhowra RFQ
Para 6 of Appendix I
Does not have language "or any of our/ their Associates"
Has language "nor have had any contract terminated for breach on our part."
Para 6 of Appendix I
Has language "or any of our/ their Associates"
Has language "nor have had any contract terminated by any public authority
for breach on our part"
Para 5 of Appendix I
Does not have language "or any of our/ their Associates"
Has language "nor have had any contract terminated for breach on our part"
Para 11 of Appendix I
Does not have language "or any of our/ their Associates"
Para 11 of Appendix I
Has language "or any of our/ their Associates"
Para 10 of Appendix I
Does not have language "or any of our/ their Associates"
Para 12 of Appendix I
Has language "we have not been charge-sheeted by any agency of the Government or convicted by a Court of Law for any offence committed by us or by any of our Associates"
Para 12 of Appendix I
Has language "we/ any Member of the Consortium or any of our/ their Associates
have not been charge-sheeted by any agency of the Government or convicted by a
Court of Law"
Para 11 of Appendix I
Has language "we have not been charge-sheeted by any agency of the Government or convicted by a Court of Law for any offence committed by us or by any of our Associates"
Para 13 of Appendix I
Has language "against us or against our Associates or against our CEO or any of our Directors/ Managers/ employees".
Does not have language "that affects our ability to undertake / execute the Project."
Para 13 of Appendix I
Has language "against us/ any Member of the Consortium or against our/ their Associates or against our CEO or any of our directors/ managers/ employees."
Does not have language "that affects our ability to undertake / execute the Project."
Para 12 of Appendix I
Has language "against us or against our Associates or against our CEO or any of our Directors/ Managers/ employees."
Has language "that affects our ability to undertake / execute the Project."
Para 14 of appendix I
Has language "I/ We further certify that we are qualified to submit a Bid in accordance with the guidelines for qualification of bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment issued by the GOI vide Department of Disinvestment OM No. 6/4/2001-DD-II dated 13th July, 2001"
Para 14 of Appendix I
Has language "I/ We further certify that we are qualified to submit a Bid in accordance with the guidelines for qualification of bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment issued by the GOI vide Department of Disinvestment OM No. 6/4/2001-DD-II dated 13th July, 2001"
Para 13 of Appendix I
Has language "I/ We further certify that we are not disqualified in terms of the additional criteria specified by the Department of Disinvestment in their OM No. 6/4/2001DDII dated July 13, 2001"
Para 6 of Annex I to Appendix I
Does not have language "or any of their Associates"
Does not have language "that exceed 5% of the contract value"
Para 6 of Annex I to Appendix I
Has language "or any of their Associates"
Does not have language "that exceed 5% of the contract value"
Para 7 of Annex I to Appendix I
Does not have language "or any of their Associates"
Has language "that exceed 5% of the contract value"
Clause 2.2.10 (ii)
Has language "information supplied by an Applicant (or other constituent Member if the Applicant is a Consortium) must apply to the Applicant, Member or Associate named in the Application and not, unless specifically requested, to other associated companies or firms"
Clause 2.2.10 (b)
Has language "information supplied by an Applicant (or other constituent Member if the Applicant is a Consortium) must apply to the Applicant, Member or Associate named in the Application and not, unless specifically requested, to other associated companies or firms"
Clause 2.2.9 (ii)
Has language "information supplied by an Applicant (or other constituent member if the Applicant is a Consortium) must apply to the Applicant or constituent member named in the Application and not, unless specifically requested, to other associated companies or firms.
170. The comparison between relevant corresponding paragraphs setting out the disclosure requirements in the 2008 Madhepura RFQ, the 2010 Madhepura RFQ, and the 2010 Marhowra RFQ therefore shows the following:
(a) The disclosures under paragraph 6 of Appendix 1 were not extended to Associates of the Bidder in the 2008 Madhepura RFQ. The 2010 Madhepura RFQ was tightened to extend these disclosures to Associates of Bidders. Curiously, the 2010 Marhowra RFQ also did not extend these disclosures to Associates of the Bidder.
The 2010 Marhowra RFQ therefore violated the GOI disclosure guidelines.
(b) Required disclosures by Bidders about expulsion from projects/ contracts and about contract terminations were diluted in the 2010 Madhepura RFQ by introduction of language that is absent from the 2008 Madhepura RFQ and the 2010 Marhowra RFQ. Additional language was introduced to the relevant provision in the 2010 Madhepura RFQ to limit these disclosures to adverse actions by public authorities. Disclosures under the 2008 Madhepura RFQ and the 2010 Marhowra RFQ were not limited in this manner.
The 2010 Madhepura RFQ therefore violated the GOI disclosure guidelines.
(c) Disclosures about convictions, indictments and adverse orders passed by a regulatory authority did not extend to Associates of the Bidder in the 2008 Madhepura RFQ. The 2010 Madhepura RFQ was tightened to extend these disclosures to Associates of Bidders. Curiously, the 2010 Marhowra RFQ also did not extend these disclosures to Associates of the Bidder.
The 2010 Marhowra RFQ therefore violated the GOI disclosure guidelines.
(d) Disclosures relating to charge-sheeting in matters affecting the security and integrity of India were limited to charge-sheeting of the Bidder in the 2008 Madhepura RFQ. The 2010 Madhepura RFQ was tightened to extend these disclosures to charge-sheeting of the Bidders, consortium members, and Associates of the Bidder and of the consortium members. Curiously, these disclosures under the 2010 Marhowra RFQ were limited to charge-sheeting of the Bidder and did not extend to charge-sheeting of the Associates of the Bidder and of the consortium members.
The 2010 Marhowra RFQ therefore violated the GOI disclosure guidelines.
(e) Disclosures about pending investigations by a regulatory authority were limited to Bidders, their Associates and to the CEO, Directors, Managers and employees of the Bidder in the 2008 Madhepura RFQ. The 2010 Madhepura RFQ extended these disclosures to consortium members and Associates of consortium Members. The 2010 Marhowra RFQ not only does not extend the disclosure to consortium members and Associates of consortium members, but goes even further in diluting this requirement so as to render it completely meaningless, inoperative and nugatory. The 2010 Marhowra RFQ inserts language that limits these disclosures to pending investigations of regulatory authorities which in the subjective opinion of a Bidder affect its ability to undertake / execute the Project.
The 2010 Marhowra RFQ therefore violated the GOI disclosure guidelines.
(f) Both the 2008 and the 2010 Madhepura RFQs contain a positive undertaking by the Bidders that they are qualified to submit a bid in accordance with the Government of India guidelines. The 2010 Marhowra RFQ however, does not require a positive declaration/ certification that the Bidder is qualified under these guidelines. Instead the 2010 Marhowra RFQ only requires a negative certification that the Bidder is not disqualified in terms of the additional criteria specified by the Government of India guidelines.
The 2010 Marhowra RFQ therefore violated the GOI disclosure guidelines.
(g) The requirement to disclose material non-performance and contractual non-compliance in past projects and recent contractual disputes, litigation and arbitration did not extend to Associates of the Bidder in the 2008 Madhepura RFQ. The 2010 Madhepura RFQ was tightened to extend these disclosures to Associates of Bidders. The 2010 Marhowra RFQ also did not extend these disclosures to Associates of the Bidder. And once again the 2010 Marhowra RFQ goes much further in diluting this disclosure requirement through new language that seeks to limit these disclosures to those "that exceed 5% of the contract value". This extra language in paragraph 7 of Annex 1 to Appendix I the 2010 Marhowra RFQ does not even make logical sense when read with the rest of this paragraph. The disclosures mandated by this provision are about material non-performance and contractual non-compliance in past projects and about recent contractual disputes, litigation and arbitration. It is not made clear how the limit of 5% of the contract value applies to events mentioned in this provision. It appears that this extra language was hurriedly inserted into this provision and that the dilution of the disclosure requirement was sought to be protected from scrutiny by not going for an overall redrafting of this provision. A condition for disclosure was added that could be subjectively interpreted by the Bidder to mean anything. This would then protect a Bidder from a charge of non-responsiveness if subsequently any questions were raised.
The 2010 Marhowra RFQ violated the GOI disclosure guidelines.
(h) Clause 2.2.10 in the 2008 Madhepura RFQ included general instructions for submitting an application and it provided that information supplied by an Applicant (or other constituent Member if the Applicant is a Consortium) must apply to the Applicant, Member or Associate named in the Application and not, unless specifically requested, to other associated companies or firms. Thus disclosures were mandatory for Associates of the Bidder named in the application. This was also the requirement in the corresponding provision in the 2010 Madhepura RFQ. In the 2010 Marhowra RFQ however, the corresponding provision states that information need only be supplied for the Bidder and consortium members. Associates of the Bidder named in the Application are not covered by this provision. The effect of this omission in the 2010 Marhowra diesel locomotive factory RFQ is that this provision could be interpreted to mean that the Bidder was not required to disclose information for its Associates.
The 2010 Marhowra RFQ therefore violated the GOI disclosure guidelines.
171. It is pointed out that paragraph 12 of Appendix I to the 2010 Marhowra RFQ states that pending investigations by regulatory authorities are also required for Associates of the Bidder. However, the introduction of the words "that affects our ability to undertake / execute the Project" in paragraph 12 of the 2010 Marhowra RFQ renders the certification requirement useless as any and every bidder could say (without resort to any external objective standard) that a particular ongoing regulatory investigation did not affect the ability of the bidder to execute the project. The introduction of this subjective element which cannot be objectively verified by the Indian Railways has reduced this important requirement (that was to be mandatorily met by all bidders) to a nullity or a mere formal unverifiable and therefore meaningless statement. It will also be of interest to see what the corresponding language was in the 2008 Marhowra RFQ.
172. Clause (g) of the aforesaid GOI disclosure guidelines at Appendix –IV of the 2010 Marhowra RFQ provides:
"The bidders shall be required to provide with their EOI an undertaking to the effect that no investigation by a regulatory authority is pending against them. In case any investigation is pending against the concern or its sister concern or against its CEO or any of its Directors/ Managers/ employees, full details of such investigation including the name of the investigating agency, the charge/ offence for which the investigation has been launched, name and designation of persons against whom the investigation has been launched and other relevant information should be disclosed, to the satisfaction of the Government. For other criteria also, a similar undertaking shall be obtained along with EOI."
173. The RFQ is equivalent to the EOI (Expression of Interest) referred to in the above Clause (g). However, the language in paragraph 12 of the Letter comprising the Application for Qualification (Appendix-I) in the 2010 Marhowra RFQ does not meet the mandatory requirement of the above-quoted Clause (g) of the Government of India's guidelines dated July 13, 2001. It is relevant to ask when and how was this change introduced into the language of Clause 12 of the Marhowra 2010 RFQ. This change obviously benefits General Electric because it enabled General Electric to avoid disclosing pending investigations by a regulatory authority against General Electric Company.
174. The above discrepancies and differences in three different RFQs, all three issued by the Ministry of Railways and all expressly made subject to compliance with the Government of India 'Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment' (the GOI disclosure guidelines), cannot be justified. These give rise to a reasonable and strong apprehension that some Bidders like General Electric were being favoured and that the RFQ terms were crafted and modified by corrupt Planning Commission and Indian Railways officials to help General Electric in qualifying without making the required mandatory disclosures.
175. Guidelines were issued by the Ministry of Finance (F.No. 24(1)/PF.II/07) titled 'Guidelines for Pre-Qualification of Bidders for PPP Projects'. These guidelines along-with an enclosed Government of India endorsed model RFQ were forwarded by the Ministry of Finance to several Government of India departments including to the Chairman of the Railway Board on December 5, 2007. The corresponding certification and disclosure clauses recommended in the GOI model RFQ also establish that the certification/ disclosure provisions of the 2010 Marhowra RFQ were diluted to benefit General Electric so as to enable it to qualify without making the disclosures required by the GOI disclosure guidelines that were expressly made applicable to the tender.
176. General Electric has clearly benefited from and taken advantage of the diluted disclosure requirements under the 2010 Marhowra RFQ.
177. In contrast, General Electric was unable to comply with the more stringent disclosure requirements in the 2010 Madhepura RFQ. Therefore, in its technical bid for the 2010 Madhepura RFQ submitted on May 17, 2012 prepared while the petitioner was working for General Electric, General Electric limited its disclosures only to those disclosures ordinarily made by General Electric under US securities laws to the United States Securities and Exchange Commission (the SEC). General Electric has therefore not complied with the disclosure/ certification requirements in the 2010 Madhepura RFQ. General Electric's short-listing/ qualification for the 2010 Madhepura tender was in violation of the RFQ and the Government of India disclosure guidelines dated July 13, 2001 and was therefore liable to be set aside.
178. General Electric has also not complied with the Government of India disclosure guidelines dated July 13, 2001 in its technical bid for the 2010 Marhowra RFQ. General Electric has made no disclosures about the real bidder, General Electric Company, which provides the requisite net-worth, technical experience, technology, and intellectual property rights for General Electric's bid that has been submitted using a shell company (GE Global Sourcing India Private Limited), a wholly-owned subsidiary that had zero experience of public contracts or manufacturing.
179. In addition, the dilution of the disclosure/ certification requirements in the 2010 Marhowra RFQ in violation of the Government of India guidelines dated July 13, 2001 rendered Global RFQ No. 2010/ME(Proj)/4/ Marhoura / the invitation to bid issued by the Ministry of Railways unlawful, arbitrary, bad in law and liable to be quashed.
180. Another important question that arises before this court is why were the disclosure/ certification requirements tightened/ strengthened in the 2010 Madhepura RFQ over the 2008 Madhepura RFQ? Was an objection raised within the Government that the 2008 Madhepura RFQ did not comply with the Government of India guidelines dated July 13, 2001? This would certainly appear to be the case for the changes made in the 2010 Madhepura RFQ. The question remains why similar changes were not introduced in the 2010 Marhowra RFQ, which also does not comply with the GOI disclosure guidelines dated July 13, 2001.
181. As stated above, General Electric was unable/ unwilling to comply with the more stringent disclosure requirements under the 2010 Madhepura RFQ and was unable/ unwilling to provide the clear certifications as required by paragraphs 6, 11 and 13 of Appendix I of that RFQ.
182. Soon after the petitioner started work at General Electric on April 23, 2010, she was informed that General Electric was unable to provide the clear certifications as required under the Madhepura RFQ application due on May 17, 2010. The petitioner was informed that General Electric would provide conditional/ limited certifications and would only disclose those adverse events that it was liable to disclose to the SEC under United States law in routine filings. Accordingly General Electric made modifications to the relevant provisions in Appendix I stating that the disclosures were limited to those ordinarily made to the SEC. The application for qualification/ technical bid submitted by General Electric for the 2010 Madhepura RFQ on May 17, 2010 therefore contained a modified appendix I and was liable to be treated as non-responsive because the required disclosures have not been made. General Electric had therefore not made the full disclosures required by the 2010 Madhepura RFQ. Even internally within GE, these modifications to the language of appendix I were viewed as risky. Despite this failure to comply with the disclosure requirements under the RFQ and the GOI disclosure guidelines, General Electric was qualified/ short-listed by the Railways Ministry for the 2010 Madhepura tender. The fact is that General Electric was unable/ unwilling to provide the certifications required under the 2010 Madhepura RFQ and the GOI guidelines dated July 13, 2001. General Electric's RFQ application for the 2010 Madhepura tender was therefore non-responsive and also in violation of the aforesaid GOI guidelines dated July 13, 2001. General Electric should not have been prequalified for this tender by respondent 4. This is yet another reason why General Electric's bid for this tender (the 2010 Madhepura tender) was liable to be rejected.
183. The reason General Electric was unable/ unwilling to provide the certifications required by the 2010 Madhepura RFQ is because paragraphs 6, 11, 12 and 13 of Appendix I to the RFQ requires disclosures for the Bidder's Associate. The bidder is as pointed out, a shell company, GE Global Sourcing India Private Limited (respondent 7). Its Associate for the bid is General Electric Company (respondent 1). General Electric was unable/ unwilling to provide the certifications and disclosures required by the 2010 Madhepura RFQ under paragraphs 6, 11, 12 and 13 of Appendix I for General Electric Company. In its letter comprising the application for Qualification submitted for the Madhepura electric locomotive factory tender on May 17, 2010, General Electric has added the words "subject to" before paragraphs 11 and 13 and then provided an explanation that the disclosures were limited to matters required to be disclosed by General Electric under SEC guidelines. Disclosures under SEC guidelines and US securities law are essentially limited to disputes having a substantial financial impact upon the company. In the case of General Electric Company, the actual numbers that would have a significant financial impact work out to be quite high. Also, matters/ disputes considered normal and routine in the course of business do not require disclosure to the SEC unless they create a significant potential financial liability. The disclosures required by the GOI Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment' and by the GOI recommended model RFQ are more stringent because they meet a different standard and serve a different purpose. Therefore GE Global Sourcing India Private Limited had not complied with the 2010 Madhepura RFQ requirement to provide clear certifications or make the required disclosures. GE Global Sourcing India Private Limited had also failed to comply with the requirements of the Government of India 'Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment'. General Electric's technical bid for the 2010 tender for the proposed electric locomotive factory at Madhepura was therefore non-responsive and non-compliant.
184. General Electric could have made appropriate disclosures as part of its technical bid for the Madhepura tender in 2010, but did not. There are three possible reasons why General Electric did not make the required disclosures. First, the petitioner was told by Ms Tara Plimpton and Mr James Winget (both in-house lawyers for GE Transportation at the relevant time) that it was not possible for General Electric to compile the information required for these disclosures from its businesses spread all over the world. Second, the petitioner also learnt that General Electric had been disqualified/ blacklisted for a tender in a South American country, probably Brazil. It is possible that General Electric did not want to make disclosures that could be relied upon by the Railway Ministry to disqualify its bid. The third reason was that General Electric had made no disclosures in its 2008/2009 technical bid for the Marhowra tender and therefore any disclosures made by General Electric for the Madhepura 2010 tender would have raised red flags in the Ministry of Railways as to why these were not disclosed in 2009. The petitioner came across this reason in an email written by Mr. Pratyush Kumar to General Electric executives in GE Transportation's US headquarters.
185. As submitted, the 2010 RFQ for the proposed Marhowra diesel locomotive factory also did not comply with the GOI 'Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment'. The disclosure/ certification requirements prescribed in this RFQ were a diluted version of the disclosure/ certification requirements prescribed by the GOI disclosure guidelines. This dilution was clearly intended to benefit General Electric. The 2010 Marhowra RFQ was ultra vires and violative of the GOI disclosure guidelines as it omitted disclosures/ certifications for "Associates" of the Bidder. As a result, General Electric avoided making disclosures for General Electric Company (respondent 1) and the de-facto bidder by using a shell company, GE Global Sourcing India Private Limited as the applicant. GE Global Sourcing India Private Limited being a shell company, and having never manufactured or supplied locomotives or any other product for that matter, had a clean slate and therefore made no disclosures in its technical bid for the 2010 Marhowra RFQ submitted on July 12, 2010. This failure by General Electric to make disclosures about the de-facto and real Bidder (General Electric Company/ respondent 1) violated the GOI disclosure guidelines (Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment).
186. The Global RFQ No. 2010/ME(Proj)/4/Marhoura/RFQ prepared by the Ministry of Railways, Government of India in March 2010 also violated the GOI 'Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment'. The modifications made to this RFQ by Respondent 4 to dilute the disclosure requirements and to thereby benefit General Electric were unjustifiable, illegal and ultra-vires. Global RFQ No. 2010/ME(Proj)/4/Marhoura/RFQ was therefore liable to be scrapped.
187. For the reasons set out above, the 2010 Marhowra RFQ and the 2010 Madhepura RFQ were in violation of the Government of India Guidelines dated July 13, 2001 and also in violation of the Ministry of Finance Guidelines for Pre-qualification of Bidders for PPP Projects dated December 5, 2007 and with office memorandum No. F.No. 24(1)/PF.II/07 and were therefore illegal, ultravires and liable to be quashed/ scrapped.
188. GE Global Sourcing India Private Limited (respondent 7), the applicant in the 2010 Madhepura electric locomotive factory tender, the 2010 Marhowra diesel locomotive factory tender, and the 2010 Dankuni tender is a shell company that has been fronted as the Applicant by General Electric Company to avoid providing the certifications required by the Government of India Disinvestment Guidelines (No. 6/4/2001DDII) dated July 13, 2001. GE Global Sourcing India Private Limited changed its registered office address in late July 2010 to AIFACS Building, 1 Rafi Marg, New Delhi 110001 India. Prior to that, the registered office of GE Global Sourcing India Private Limited was a Mumbai address and the address was "care of" the office address of another company which was a non-GE entity. Thus the technical bids submitted by GE Global Sourcing India Private Limited on May 17, 2010 and on July 2010 contained the registered office address which began with "C/o" followed by another company's name which was not a GE company.
189. The petitioner pointed out to Mr. Pratyush Kumar, Mr, Deepak Adlakha and other members of the GE Transportation team in India in the week commencing May 10, 2010 that it was inappropriate for GE Global Sourcing India Private Limited to use another company's office as its registered office, especially when this entity was bidding for multi-billion dollar railway tenders. After the petitioner pointed this out, steps were taken to change the registered office for GE Global Sourcing India Private Limited and the change was finally approved in late July 2010. There are internal GE emails dating July 2010 exchanged between the petitioner and General Electric executives (including Mr. K R Radhakrishnan, the company secretary for GE India Industrial Private Limited) on the necessity to notify the change in the registered office of the Applicant to the Ministry of Railways as required by the RFQs for the three 2010 tenders (i.e., the Madhepura, Marhowra and Dankuni tenders).
190. That GE Global Sourcing India Private Limited was a shell company, at least in 2010, is also evident from its memorandum of association, its object clause and the description of its business activities. These came to the attention of the petitioner when she was reviewing the technical bid documents for GE's bid for the Marhowra diesel locomotive factory tender in late June and early July 2010. Annex I to the Letter comprising the application for qualification submitted by GE contained "Details of Applicant". Paragraph 2 of Annex I asks for a "Brief description of the Company including details of its main lines of business and proposed role and responsibilities in this Project." The petitioner recalls that the business of GE Global Sourcing India Private Limited was described in paragraph 2 of Annex I as surveying catalogues on the internet or something similar. The petitioner pointed out to Mr. Ashfaq Nainar that the business description for the Applicant (GE Global Sourcing India Private Limited) showed that it was a shell company. Mr. Ashfaq Nainar agreed that that the Applicant was a shell company but stated that nothing could be done about this.
191. The petitioner also recalls a conversation in late June 2010, with Ms. Himali Arora, the then CFO for GE Transportation in India, and Mr. Ashish Malhotra, a General Electric executive working on the locomotive tenders, during which Ms. Himali Arora admitted that GE Global Sourcing India Private Limited's funds being limited could not be disclosed, and that buying the tender documents (the RFPs) for these locomotive tenders had depleted the funds in its bank balance.
192. The reason why General Electric has used a shell company to front as the applicant for these locomotive tenders is because neither respondent 1 (General Electric Co.), nor respondent 6 (GE India Industrial Private Limited) were willing/ able to provide the certifications required by the RFQs to comply with the Government of India Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment bearing Office Memorandum No. 6/4/2001DDII and dated July 13, 2001. In failing to provide the mandated/ required disclosures and certifications in its technical bids for the 2010 RFQ for the electric locomotive factory and the 2010 RFQ for the diesel locomotive factory, and by using a shell company as the Bidder for this purpose, GE engaged in "fraudulent practices" as defined by Clause 4.3 (b) and Clause 4.1.3 b) of these RFQs respectively. Both these clauses define a fraudulent practice thus: "fraudulent practice" means a misrepresentation or omission of facts or suppression of facts or disclosure of incomplete facts, in order to influence the Bidding Process".
193. The affidavit filed by the Railway Ministry on 14 January 2013 confirms that General Electric failed to make the mandatory disclosures in its technical bids for the 2010 ELF and DLF RFQs and that this was enabled by tailoring the RFQ language (with the help of corrupt Railway Ministry and Planning Commission officials) and by fraudulently using a shell company to front as the bidding entity and by modifying the language of the disclosure clauses in the technical bids."
For more on General Electric corruption in India in connection with the Indian Rail tenders for the proposed diesel locomotive factory at Marhowra and the proposed electric locomotive factory at Madhepura, see
http://geimpersonationfraud.
http://gecorruption.blogspot.
http://gemarhowracorruption.
http://
http://gecorruptionpart2.
http://gecorruptionpart3.
http://gecorruptionpart4.
http://gecorruptionpart5.
http://seemasapra.blogspot.
General Electric Company does not manufacture electric locomotives. Its business unit GE Transportation is a leading manufacturer of diesel locomotives.
After extensive lobbying and bribes by General Electric Company, the Indian Rail Ministry conceived of a tailor-made Project for General Electric - a multi-billion USD contract to set up a diesel locomotive factory in Marhowra, Bihar along with guaranteed long-term purchase orders.
At the same time, a parallel Project for a multi-billion USD contract to set up an electric locomotive factory in Madhepura, Bihar was also conceived by the Indian Rail Ministry.
Both these Projects were first tendered in 2008-2009 when General Electric Company participated in the diesel locomotive factory Project but not in the electric locomotive factory Project for obvious reasons - General Electric does not manufacture electric locomotives.
In April 2010, Attorney Seema Sapra was recruited as in-house counsel for GE Transportation in India to advise GE on its bids for the Marhowra and Madhepura Projects. Both these Projects were being re-tendered iin 2010, as the 2008-2009 tenders were unsuccessful.
During her time at GE and after she became a whistle-blower, Sapra unearthed a conspiracy by General Electric Company under which it participated in the 2010 tender for electric locomotives for the sole purpose of corruptly influencing the tender terms, conditions and process for the tender for diesel locomotives.
Soon after starting work at GE, in May 2010, Sapra was asked to review the bid documents for GE's application for the RFQ due on 17 May 2010 for the electric loco Project. Sapra was surprised to find that the tender documents were being prepared by persons not authorized or qualified to do this under GE rules. These persons were Praveena Yagnambhat, the executive assistant to Pratyush Kumar who was leading GE Transportation In India and by an engineer based in Bangalore who had no well-defined role in the GE Transportation India team. No one from GE Transportation in the US was involved in this preparation which was completely contrary to GE's business procedures.
Pratyush Kumar and Ashfaq Nainar submitted a technical bid for the electric loco Project on 17 May 2010 on behalf of General Electric Company using a shell company GE Global Sourcing India Private Limited as the bidding entity.
Towards the beginning of June 2010, Pratyush Kumar and Ashfaq Nainar informed people at GE Transportation and GE Corporate that GE had been short-listed by the Indian Rail Ministry as a bidder for the electric loco Project.
Sapra then learnt from colleagues at GE Transportation in the US (and in particular from James Winget) that GE Transportation in the US was opposed to GE's participation in the bid for the electric loco factory Project. Sapra learnt that Pratyush Kumar would make a pitch for GE's participation in the electric loco Project directly to the GE CEO Jeffrey Imment in June 2010 on a visit to the US and Immelt would take the final call.
Sapra then learnt from colleagues in GE Transportation in the US that Jeff Immelt had finally decided that GE would not bid further for the Madhepura electric loco Project.
Despite this, Sapra was surprised to learn that Pratyush Kumar was proceeding with the tender process for the electric loco factory Project. Not only did Pratyush Kumar's team in India purchase the the RFP documents for this tender but also continued to participate in further pre-bid meetings organized by the Indian Rail Ministry along with the other bidders shortlisted for this Project, - Siemens, Alstom and Bombardier.
Sapra alerted GE Transportation executives in the US that Pratyush Kumar was proceeding with GE's participation in the Electric loco tender despite Immelt's decision that GE would not bid for this Project. Sapra was advised by James Winget that she was not to do further work on this Project even if asked to do so by Pratyush Kumar.
At this time Sapra is certain that Pratyush Kumar started having her drugged.
So why was Pratyush Kumar pushing for GE to bid in the 2010 electric loco Indian Rail tender even though GE does not manufacture electric locos and why was he continuing with GE's participation in this tender in 2010 even though Immelt himself had decided that Ge would not bid further?
Sapra unraveled this mystery and used internal GE documents, her personal interactions with GE executives, public government of India records and news reports to establish that Pratyush Kumar and Ashfaq Nainar were using GE's participation in the 2010 Madhepura electric loco tender for the sole purpose of influencing the bid documents, bid terms and conditions and bid process for the Marhowra diesel loco tender in which General Electric is actually interested.
For more on General Electric corruption in India in connection with the Indian Rail tenders for the proposed diesel locomotive factory at Marhowra and the proposed electric locomotive factory at Madhepura, see
http://geimpersonationfraud.
http://gecorruption.blogspot.
http://gemarhowracorruption.
http://
http://gecorruptionpart2.
http://gecorruptionpart3.
http://gecorruptionpart4.
http://gecorruptionpart5.
http://seemasapra.blogspot.
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