Corruption case in India against General Electric Company adjourned to 10 November 2014

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The whistleblower corruption case against General Electric Company - Writ Petition (Civil) 1280/ 2012 (in the matter of Seema Sapra v General Electric Company and Others) - is next listed for hearing in the Delhi High Court on 1 December 2014. I have faced vicious retaliation since 2010 including being drugged & poisoned, attempts to murder, homelessness, and deliberate dislocation of my ankle. I am still being poisoned and since September 2013 am being targeted with toxic chemicals/ gases including organophosphates. I am also being tortured. General Electric Company lawyers'who attempted to cover up my corruption complaints want me dead.

Friday, 31 May 2013

Application filed in Delhi High Court in W.P. (C ) 1280/ 2012 in the matter of Seema Sapra v. General Electric Company and Others


In the Hon’ble High Court of Delhi at New Delhi
Civil Writ Jurisdiction
C.M. Appl. No. 7197 of 2013
In
Writ Petition No. 1280 of 2012


IN THE MATTER OF:
Seema Sapra                                                                                        …Petitioner
Versus
General Electric Co. and Others                                                         ….Respondents

An application under section 151, Civil Procedure Code SEEKING INJUNCTIVE RELIEF AND DIRECTIONS from the court TO RESTRAIN RESPONENTS 4 AND 5 from SUBVERTING THESE WRIT PROCEEDINGS

                                                                                    The Petitioner above named
Most Respectfully Showeth:


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

LIST OF DATES

22 Feb 2007
Issue of justification for the ELF and DLF Projects

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

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

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

Mr Montek Singh Ahluwalia is a member of the CCEA.

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

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

Reproduced below is an email that the petitioner received from Ms Ruby Anand on March 9, 2010 forwarding five pdf files that were sent to her by Ms Praveena Yagnambhat (from General Electric) on August 1, 2008. Ms Ruby Anand has in the past served as General Counsel for General Electric in India for about 10 years. The documents attached to this email were the following:
                                            i.            11th July 2008 D Loco Land Lease Agreement
                                          ii.            11th July 2008 D Loco Maintenance Contract
                                        iii.            11th July 2008 D Loco Procurement Contract
                                        iv.            11th July 2008 D Loco RFP Document
                                          v.            11th July 2008 D Loco Shareholders Agreement


The email from Ms Ruby Anand read: 

“From: Ruby Anand <rubysdesk@gmail.com>
Date: Tue, Mar 9, 2010 at 8:35 PM
Subject: See the 5th doc for now - the Loco RFP -issued earlier
To: Seema Sapra <seema.sapra@googlemail.com>



---------- Forwarded message ----------
From: Yagnambhat, Praveena (GE Infra, Transportation) <praveena.yagnambhat@ge.com>
Date: Fri, Aug 1, 2008 at 4:10 PM
Subject: Loco RFP
To: Ruby Anand <rubysdesk@gmail.com>

Dear Ruby

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

Regards
Praveena Yagnambhat
GE Infrastructure -  India
Phone : +91 11 4155 5317
Fax :     +91 11 2335 5969

--
Ruby

Ruby Anand
C-4/7 Safdarjung Development Area
New Delhi- 110016
India

Mobile - +91-9811082215”


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

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

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

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

All that this affidavit dated 14 January 2013 filed by the Railway Ministry in response to CM 19501/ 2012 (in volume 13 of the court record) states on this issue is the following:
“It is pertinent to note that any RFP document is one which is discussed, deliberated and finalized after discussion with several stakeholders and consultants.”

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

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

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

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

22 Sep 2008
RFP for DLF issued to General Electric and to EMD.
5 Feb 2009
Framework and documents including PCMA approved by the Cabinet for the Projects for ELF and DLF

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

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

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

10 Feb 2009
Issue of tailor-made DLF Project and tenders and issue of illegal lobbying by General Electric

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

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

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

16 February 2009
Financial bid for DLF tender received from GE Global Sourcing India Private Limited. EMD, also shortlisted did not bid.

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

23 Feb 2009
Cabinet approved Railway Ministry proposal to set up DLF and ELF Projects as Departmental Production Units of Indian Railways.

23 Feb 2009
Business Standard news report dated February 23, 2009 titled “Railways may scrap diesel loco bid -Railway Board to decide on the matter” published.
This report contained the following statements:
“Also, according to sources in the railways, there also appears to be some technical mistake in the GE bid.
When this was pointed out, however, the company said it was a mathematical error and has agreed, in writing, to accept that the price of its locomotives be lowered by the extent of the error — for all the locos. This adds up to around Rs 300 crore over the life of the project.”

23 Feb 2009
Issue of internal General Electric emails showing that it was lobbying Mr Montek Singh Ahluwalia for the DLF Project

There exist internal General Electric emails from 23 Feb 2009 that Mr Jeffrey Eglash (from General Electric) showed the Petitioner on November 30, 2011 during a meeting at the business centre of the Shangrila hotel in New Delhi. These internal General Electric emails forwarded the 23 February 2009 news report reproduced in the row above, as an attachment to Mr John Rice (Vice Chairman of General Electric Company) and to Mr Karan Bhatia (Legal Counsel at General Electric Company for International Law and Policy)  with a message containing language that approximated “should we let this die”. This internal General Electric email trail also contained language that approximated “should someone talk to Montek or Ronen Sen’. There is therefore an internal GE email trail (seen and read by the petitioner) on the subject of this Business Standard news article dated February 23, 2009 reporting that there was a mistake in General Electric’s financial bid dated 16 February, 2009 and that the Railway Ministry was planning to scrap the Project. [General Electric would have been informed prior to 23 February, 2009 in writing by the Railway Ministry that its bid had been found non-responsive and that the tender was being discharged.]
Yet on 23 February, 2009, internal General Electric emails sent to the Vice Chairman (Mr John Rice) suggested that the news report be allowed to die or that someone from General Electric speak to Montek Singh Ahluwalia or Ronen Sen. General Electric cannot deny these emails seen and read by the petitioner. GE has not issued a denial that an internal GE email sent to John Rice and Karan Bhatia mentioned Montek and Ronen Sen by name and that email was on the subject of the Business Standard Report dated February 23, 2009 and suggested what should be done by GE in response to this report.

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

5 May 2009
Issue of Mr Montek Singh Ahluwalia lobbying for the DLF Project on behalf of General Electric

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

18 May 2009
Issue of Mr Montek Singh Ahluwalia lobbying for the DLF Project on behalf of General Electric

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

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

18 May 2009
Issue of Clause permitting Bidder to use Consultants who have advised the tendering authority

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

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

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

11 Aug 2009
Issue of Mr Vinod Sharma

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

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

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

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

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

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

The petitioner relies upon Clause 4.1.3 (a) of the 2010 Marhowra RFQ which reads:
""corrupt practice" means (i) the offering, giving, receiving, or soliciting, directly or indirectly, of anything of value to influence the actions of any person connected with the Bidding Process (for avoidance of doubt, offering of employment to or employing or engaging in any manner whatsoever, directly or indirectly, any official of the Authority who is or has been associated in any manner, directly or indirectly with the Bidding Process or the LoA or has dealt with matters concerning the Agreement or arising therefrom, before or after the execution thereof, at any time prior to the expiry of one year from the date such official resigns or retires from or otherwise ceases to be in the service of the Authority, shall be deemed to constitute influencing the actions of a person connected with the Bidding Process) or (ii) engaging in any manner whatsoever, whether during the Bidding Process or after the issue of the LOA or after the execution of the Agreement, as the case may be, till commissioning of the factory as per provisions to be specified in the RFP, any person in respect of any matter relating to the Project or the LOA or the Agreement, who at any time has been or is a legal, financial or technical adviser of the Authority in relation to any matter concerning the Project".

Clause 4.0 of the 2010 Marhowra RFQ deals with “Fraud and Corrupt Practices” and Clause 4.1.1 states:
“The Applicants and their respective officers, employees, agents and advisers shall observe the highest standard of ethics during the Bidding Process. Notwithstanding anything to the contrary contained herein, the Authority shall reject an Application without being liable in any manner whatsoever to the Applicant if it determines that the Applicant has, directly or indirectly or through an agent, engaged in corrupt practice, fraudulent practice, coercive practice, undesirable practice or restrictive practice in the Bidding Process.”

Clause 4.1.2 of the 2010 Marhowra RFQ provides:
“Without prejudice to the rights of the Authority under Clause 4.1.1 hereinabove, if an Applicant is found by the Authority to have directly or indirectly or through an agent, engaged or indulged in any corrupt practice, fraudulent practice, coercive practice, undesirable practice or restrictive practice during the Bidding Process, such Applicant shall not be eligible to participate in any tender or RFQ issued by the Authority during a period of 2 (two) years from the date such Applicant is found by the Authority to have directly or indirectly or through an agent, engaged or indulged in any corrupt practice, fraudulent practice, coercive practice, undesirable practice or restrictive practice, as the case may be.”

Clause 4.1.3 d) of the 2010 Marhowra RFQ defines “undesirable practice’. It reads:
“undesirable practice” means (i) establishing contact with any person connected with or employed or engaged by the Authority with the objective of canvassing, lobbying or in any manner influencing or attempting to influence the Bidding Process; or (ii) having a Conflict of Interest”.

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

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

“The Project for which the Applications are being invited pursuant to this RFQ Document shall comprise of the following:
i. setting up a new Mainline Diesel Electric Locomotives factory at Marhowra, Bihar (hereafter referred as the “Site”); and
ii. supplying Mainline Diesel Electric Locomotives to the Authority; and
iii. providing maintenance support for the Mainline Diesel Electric Locomotives procured by the Authority from the new factory.”

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

Clause 2.2.1 (d) of the 2010 Marhowra RFQ reads as follows:
"An Applicant shall be liable for disqualification if any legal, financial or technical adviser of the Authority in relation to the Project is engaged by the Applicant during the Bidding Process or after the issue of the LOA or after the execution of the Agreement, as the case may be, till commissioning of the factory as per provisions to be specified in the RFP, in any manner for matters related to or incidental to the Project.”

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

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

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

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

18 Feb 2010
Issue of Mr Montek Singh Ahluwalia lobbying for the DLF Project on behalf of General Electric

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

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

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

1 May 2010
Issue of illegal lobbying by General Electric

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

12 May 2010
Final version of ELF RFQ issued. 

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

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

20 May 2010
Issue of General Electric email to Gmail account of Railway official three days after technical bids submitted for ELF

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

18 May 2010
and
22 May 2010
Issue of General Electric’s ineligibility for ELF as it does not manufacture electric locomotives, yet ELF Bid Documents tailored to render General Electric eligible. 

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

Slide 3 of the document dated May 22, 2010 titled “20100522_Working session_V04.ppt” lists ‘Key engineering issues identified during initial round of discussions’ between GE and McKinsey. These were listed as:
Can we hire 100 engineers, including 20-30 domain experts, in 3 months time (plus 4 months before LoA for preparations, e.g., CV short-listing)?
Is BHEL’s limited expertise in Liquid cooled IGBT sufficient?
What risk will be posed by the lack of expertise in reliability, vehicle dynamics, system engineering and high voltage circuitry
What risk will be posed by the lack of expertise in E-loco bogey
Can the factory be commissioned in 18-21 months?
What will be the loading cost of higher failure rate (2.04 per fly Vs 1.5)?”

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

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

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

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

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

June 2010
Issue of illegal lobbying by General Electric

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

7 June 2010
Issue of internal General Electric emails/ documents evidencing corruption and illegal lobbying

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

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

“Current estimate of timelines for D-Loco
·         RFQ due: Jul 12
·         Shortlist: Jul 30 – Aug 9
·         RFP Release: Aug 16-31
·         Price bid: Oct 31 – Nov 15
·         LOA: Dec 15-31
·         Appointed Date: Mar 31, ’11 … Clock for deliverables starts then
RFQ Process [Prat/Ash, Jul 12]
·         Pre-Bid held on May 26 … EMD, GE and Phooltas Harsco (a local company from Bihar with no Loco background) attended
·         220 acres of land in possession with 40 pillars for boundary laid out … $4.56MM paid to farmers
·         [As we had anticipated] asked to harmonize with Electric RFQ … final amendments are not yet out … we have the draft
·         So far, keeping Jul 12th submission date
Letter to IR on D-Loco [Prat/Brett/Tara, Jun 15]
Closed item – no 6000HP at 23T/axle
BHEL partnership [Prat/Ash/Brett/Cyrille/, multiple deadlines]
Structure discussed with BHEL [Prat/Brett/Lorenzo]
·         Circle back to them with revised Structure 2 [Prat/Brett, Jun11]
·         Set target price for components supplied from BHEL to GE [Jim Gerson/ Ramesh Mathur, Jun 20]
·         Develop back-to-back terms [Seema Sapra/ Kevin Randall/ Cyrille Petit, Jun 20]
·         Discussion with BHEL with Lorenzo and Dave [June 22]
·         BHEL Board meeting [Last week of June]
·         Negotiations [Prat/Cyrille, Jul-Aug]
RFQ Prep [Ashish Malhotra, India)/Steve Seip, Erie), Jul5]
·         Resolve how to handle CFO certification on networth [Prat/ Monish/ Puneet]
·         Customer certificates …selected few [Steve Seip]
·         Responsiveness requirement [Seema Sapra]
[We will bring BHEL into consortium only after the propulsion % control JV terms are nailed down. But we need to work on consortium agreements now]
·         Joint Bidding agreement with BHEL [Seema Sapra/ James Winget/ Kevin Randall]
·         BHEL RFQ certificates [Seema Sapra / James Winget/ Ashish Malhotra] 
Bharat Forge [Atulya, Sep 15]
·         Identify items they want to quote [Atulya/Ramesh, Jun 15]
·         Get firm quotes with back to back terms [Atulya/ Amol/ Ramesh, Sep 15]
·         Supply agreements with back to back terms [Atulya/ Amol/ Ramesh/ Seema/ Jamie, Oct 1]
Refreshing model / bid [Jim Gerson/ Gaurav Negi/ Monish, Oct 1]
·         EPC quotes for factories and township [Atulya/ Ramesh/ Joel, Jul 15]
·         EHS/ site assessment etc [Atulya/ Ramesh/ Joel, Aug 15]
·         Bengal site assessment for GE or BHEL-GE JV factory [Atulya/ Ramesh/ Joel, Aug 1]
·         Cost validation [Jim Gerson, Aug 15]
·         Discussions with township management vendors [Atulya/ Ramesh/ Joel, Aug 15]
·         Scrub Service model [Alpna/ Gina, sep 15]
·         Run Tollgates [Ashish/ Jim/, various by Oct 15]
Ensure E-Loco concessions get incorporated in D-Loco bid [Prat/ Ash, Sep 15]
Timeline risks
·         EMD asking for more time pending deal closure with Cat
Railway Minister changing”

Two items from this email that establishes corrupt dealings between General Electric executives and Railway and Planning Commission officers need to be highlighted.
The first is
“[As we had anticipated] asked to harmonize with Electric RFQ … final amendments are not yet out … we have the draft”
The second is
“Ensure E-Loco concessions get incorporated in D-Loco bid [Prat/ Ash, Sep 15]”

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

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

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

8 June 2010
Issue of illegal lobbying by General Electric

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

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

Mid June 2010
Issue of illegal lobbying by General Electric and corrupt and prohibited contact with Railway Ministry officials

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

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

There can be no other explanation for the fact of this meeting
.
11 June 2010
RFP draft for ELF 2010 tender issued to shortlisted bidders

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

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

June- July 2010
Issue of illegal lobbying by General Electric and corrupt and prohibited contact with Railway Ministry officials

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

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


“Current estimate of timelines for D-Loco
·         RFQ due: Jul 12 … On track
·         Shortlist: Jul 30 – Aug 9 … Pushing for before Jul 30
·         RFP Release: Aug 16-31 … Pushing for before Jul 30
·         Price bid: Oct 31 – Nov 15 … Pushing for before Oct 30
·         LOA: Dec 15-31
·         Appointed Date: Mar 31, ’11 … Clock for deliverables starts then
RFQ Process [Prat/Ash, Jul 12]
·         Pre-Bid held on May 26 … EMD, GE and Phooltas Harsco (a local company from Bihar with no Loco background) attended
·         220 acres of land in possession with 40 pillars for boundary laid out … $4.56MM paid to farmers
·         [As we had anticipated] asked to harmonize with Electric RFQ … final amendments are not yet out … we have the draft
·         So far, keeping Jul 12th submission date
·         CSR making rounds … unclear if they will bid
Letter to IR on D-Loco [Prat/Brett/Tara, Jun 15] … act after RFQ Submission only if CSR bids
Closed item – no 6000HP at 23T/axle … 2X6000HP Permanently Coupled Co-Co units at 23 Tons / Axle … idea late in the game, unlikely but we are exploring
BHEL partnership [Prat/Ash/Brett/Cyrille/, multiple deadlines]
·         Structure discussed with BHEL [Prat/Brett/Lorenzo] … Done
·         Circle back to them with revised Structure 2 [Prat/Brett, Jun11] … Done
Need Help on the following items which has NOT progressed … must close ASAP to bring BHEL into consortium
·         Set target price for components supplied from BHEL to GE [Jim Gerson/ Ramesh Mathur, Jun 20]
·         Develop back-to-back terms [Seema Sapra/ Kevin Randall/ Cyrille Petit, Jun 20]
·         Discussion with BHEL with Lorenzo and Dave [June 22]
·         BHEL Board meeting [Last week of June]
·         Negotiations [Prat/Cyrille, Jul-Aug]
RFQ Prep [Ashish Malhotra, India)/Steve Seip, Erie), Jul5]
·         Resolve how to handle CFO certification on networth [Prat/ Monish/ Puneet] … Done
·         Customer certificates …selected few [Steve Seip] … Done
·         Responsiveness requirement [Seema Sapra]
[We will bring BHEL into consortium only after the propulsion % control JV terms are nailed down. But we need to work on consortium agreements now] … Done
·         Joint Bidding agreement with BHEL [Seema Sapra/ James Winget/ Kevin Randall] … Will need for consortium agreement BEFORE RFP
·         BHEL RFQ certificates [Seema Sapra / James Winget/ Ashish Malhotra]  … Will need for consortium agreement BEFORE RFP
Bharat Forge [Atulya, Sep 15]
·         Identify items they want to quote [Atulya/Ramesh, Jun 15] … Done
·         Get firm quotes with back to back terms [Atulya/ Amol/ Ramesh, Sep 15]
·         Supply agreements with back to back terms [Atulya/ Amol/ Ramesh/ Seema/ Jamie, Oct 1]
Refreshing model / bid [Jim Gerson/ Gaurav Negi/ Monish, Oct 1] … Need full team Kickoff [Jim]
·         EPC quotes for factories and township [Atulya/ Ramesh/ Joel, Jul 15]
·         EHS/ site assessment etc [Atulya/ Ramesh/ Joel, Aug 15]
·         Bengal site assessment for GE or BHEL-GE JV factory [Atulya/ Ramesh/ Joel, Aug 1]
·         Cost validation [Jim Gerson, Aug 15]
·         Discussions with township management vendors [Atulya/ Ramesh/ Joel, Aug 15]
·         Scrub Service model [Alpna/ Gina, Sep 15]
·         Run Tollgates [Ashish/ Jim/, various by Oct 15]
Ensure E-Loco concessions get incorporated in D-Loco bid [Prat/ Ash, Sep 15]
Timeline risks
·         EMD asking for more time pending deal closure with Cat … EMD told IR that they expect it to close by End of Sep
·         Railway Minister changing”

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

·         Shortlist: Jul 30 – Aug 9 … Pushing for before Jul 30
·         RFP Release: Aug 16-31 … Pushing for before Jul 30
·         Price bid: Oct 31 – Nov 15 … Pushing for before Oct 30
General Electric was lobbying for an expedited bid-process to prevent EMD from being able to submit a bid.

·          CSR making rounds … unclear if they will bid
Letter to IR on D-Loco [Prat/Brett/Tara, Jun 15] … act after RFQ Submission only if CSR bids
General Electric intended to use the tailored IPR clauses in the 2010 DLF RFQ to prevent the Chinese competitor (CSR) from participating in the tender.

Closed item – no 6000HP at 23T/axle … 2X6000HP Permanently Coupled Co-Co units at 23 Tons / Axle … idea late in the game, unlikely but we are exploring
General Electric was lobbying to introduce these changes aimed at keeping other competitors out of the Bidding Process.

Ensure E-Loco concessions get incorporated in D-Loco bid [Prat/ Ash, Sep 15]
Having managed with the help of pliable and corrupt officials from the Planning Commission and the Railway Ministry’s Electrical Engineering Directorate to have favourable terms included in the ELF PCMA (approved by the Cabinet in 2009) even before it was released to the Bidders, General Electric’s ultimate goal was to get these concessions incorporated into the DLF PCMA.
 
Timeline risks
·         EMD asking for more time pending deal closure with Cat … EMD told IR that they expect it to close by End of Sep
General Electric was lobbying for an expedited bid process to prevent a bid from EMD. Having earlier already successfully lobbied for Cabinet approval for a single bidder provision, General Electric was trying to engineer a situation where it would be the sole bidder.

Timeline risks
...
·         Railway Minister changing”
The court should direct Mr Jeffrey Immelt, CEO of General Electric Company to explain on affidavit why a change of the Cabinet Railway Minister was a “risk” to General Electric’s bid.

9 July 2010
Pre-bid meeting held for ELF

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

Issue of shell company

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

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

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

12 July 2010
Issue of internal General Electric emails/ documents evidencing corruption and illegal lobbying

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

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

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

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

The first page of the attachment is a title page which states:
 “GE Transportation
India Diesel Locomotive
12 Jul 2010”

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

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

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

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

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

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

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

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

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

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

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

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

Issue of corrupt dealings between General Electric and Mr Shakeel Ahmed, a Railway official
 The second milestone on this flow-chart is the issuance of the diesel locomotive RFQ (Request for Qualification). The first bullet point states “No focal point in mechanical: Missing Shakeel”. The language used here suggests a contrast with the situation in the electric directorate. This language conveys that Mr Pratyush Kumar (General Electric) had no “focal point” in the “mechanical” directorate of the Railway Board. It also conveys that Mr Pratyush Kumar (General Electric) did have a focal point in the Electric Directorate. In the Mechanical Directorate, however, General Electric was “missing” Shakeel Ahmed. Mr. Shakeel Ahmed was a Railway Ministry official in the Mechanical directorate in 2008-2009, when GE had bid for the diesel locomotive factory project. The language used by Mr. Pratyush Kumar conveys that Mr. Shakeel Ahmed had been General Electric’s “focal point” in the mechanical directorate in 2008-2009. Mr. Shakeel Ahmed was ‘missing’ in 2010 as he had retired. The reference to “focal point” by Mr. Pratyush Kumar is a reference to a pliable and corrupt Railway Official who could be relied upon to favour General Electric and to help deliver the outcomes that General Electric wanted. Just to be clear, the reference to “focal point” is not a reference to the Railway Ministry official designated to accept the tenders and to communicate with the bidders. [The relevant officer named in the 2010 diesel locomotive factory RFQ for this purpose was Mr. Santosh Sinha, Director, (Mech Engg)/Works, Ministry of Railways. See Clause 2.13.3 of the 2010 diesel locomotive factory RFQ.] Mr. Pratyush Kumar confirms in this document that General Electric was “missing” Shakeel Ahmed who General Electric had earlier relied upon for support and help in the Mechanical directorate of the Railway Board. Mr. Pratyush Kumar’s email dated 12 July 2010 confirms that in 2008-2009, during the earlier tender for the same project, General Electric had access to, was in contact with, and obtained help from Mr. Shakeel Ahmed, a Railway Ministry official in the Mechanical directorate.
GE employees corruptly obtained advice and assistance from a Railways Ministry official/ advisor Mr. Shakeel Ahmed during GE’s diesel locomotive bid in 2008-2009.
[The petitioner has independent and personal knowledge of General Electric’s corrupt dealings with Mr Shakeel Ahmed during the 2008-2009 DLF tender. In June 2010, the petitioner was informed of such corrupt dealings by a US based executive (Mr Steve Seip) and a US based lawyer (Mr James Winget) for General Electric. The petitioner, then working as in-house counsel for General Electric, was on a phone-call with Steve Seip and James (Jamie) Winget (both from General Electric) towards the end of June 2010. This phone-call was to discuss certain changes that the petitioner had suggested to the technical prequalification application documents for the diesel locomotive RFQ that was being prepared. Steve Seip opposed the petitioner’s changes and his only reason was that the documents prepared by him were based upon the precedent of the documents that had been submitted by General Electric for its RFQ application for the DLF tender in 2008. The petitioner in her capacity as Legal Counsel for GE Transportation in India disagreed with the draft documents prepared by Steve Seip and supported her recommendations for modifications to these documents upon her interpretation of the RFQ guidelines. After some discussion on this phone-call, the petitioner was able to convince James Winget about her suggestions and it was agreed that the petitioner’s suggestions would be incorporated in the technical bid application to be submitted by General Electric. 
Steve Seip from General Electric then told the petitioner and James Winget on this phone call that the DLF RFQ application that was submitted by General Electric to the Railway Ministry in 2008 had been vetted by Mr. Shakeel Ahmed, a senior official in the Railway Ministry. Mr Steve Seip described the procedure followed for this vetting in detail. He stated that each document contained in GE’s 2008 DLF RFQ application was after drafting, first sent to Mr. Shakeel Ahmed in the Railway Ministry for his approval and was included in General Electric’s RFQ application only after such approval. This RFQ application vetted by Mr Shakeel Ahmed from the Railway Ministry was then submitted by GE Global Sourcing India Private Limited to the Railway Ministry.  
This kind of consultation with and assistance from Mr. Shakeel Ahmed, a Railway Ministry official, who was directly involved in the tender process for the Railway Ministry was a corrupt and undesirable practice under the RFQ and rendered GE for disqualification and blacklisting.
An investigation into these charges will recover documentary evidence from General Electric confirming that a Railway Ministry official, Mr Shakeel Ahmed vetted General Electric’s RFQ application for the DLF Project before it was submitted to the Railway Ministry in 2008. A detailed investigation and the examination of General Electric executives and lawyers (including Mr Steve Seip and Mr James Winget) by investigating authorities will provide additional details and evidence of these corrupt dealings and will also provide evidence of bribes paid by General Electric to Mr Shakeel Ahmed in lieu of his help and evidence of how these bribes were paid.
GE’s corrupt access to and use of Mr. Shakeel Ahmed in 2008-2009 is also recorded in the above internal General Electric email dated July 12, 2010 sent by Pratyush Kumar to a number of persons including to the Petitioner.
The statement “No focal point in mechanical: Missing Shakeel” in the above internal General Electric document establishes and is a written admission by General Electric that in 2008-2009, Mr. Shakeel Ahmed, an official in the Railway Ministry was assisting General Electric in its bid for the DLF Marhowra Project. Mr. Shakeel Ahmed was at that time a high-ranking public official in the Railways Ministry and he was an adviser for the public private partnership projects, which included the Marhowra and Madhepura locomotive factory tenders. Mr. Shakeel Ahmed’s dealings with General Electric and the assistance he rendered to General Electric (including his having vetted General Electric’s bid documents in 2008-2009 as confirmed to the petitioner by Mr Steve Seip and Mr James Winget from General Electric) in its bid to secure the multi-billion dollar diesel locomotive factory tender amount to corrupt practices.

Mr. Shakeel Ahmed’s LinkedIn profile shows that from 2006 till October 2009, he was Executive Director/ Public Private Partnership & Adviser (Projects) for the Indian Railways. His LinkedIn profile describes his job as follows:
“Innovative business models for setting up large Railway Production Units in JV on the basis of Procurement-cum-maintenance Contract developed from scratch.
• Innovative business model for setting up production units on the basis of long term procurement contract developed.
• Preparation of complex two stage bid documents and a host of agreements requiring knowledge of procurement, finance, legal and regulatory issues, taxation, company law provisions, transfer of technology, domain knowledge of manufacturing/maintenance etc.
• Preparation of complex bid documents for appointment of reputed consultants on quality-cum-cost criteria done and consultants appointed.”

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

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

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

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

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

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

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

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

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

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

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

The entries for the ninth work stream “Commercial discussions – customer” read as follows:
Key work streams
Activities
Pitcher – Catcher
India -Erie
Team
Timing
Deliverable
Commercial discussions – customer
RFP terms

Pre-Bid
Ash Nainar – James Gerson
Ash Nainar
Prat Kumar
Dave Tucker
Brett Begole
Russell Stokes
Ongoing …
conclude RFP by Sep 15
E-Loco terms for D-Loco



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

Key work streams
Activities
Pitcher – Catcher
India -Erie
Team
Timing
Deliverable
External stakeholder engagement
Keep the momentum for the bid
Manage environment
Prat Kumar/ John Flannery – Lorenzo Simonelli
John Flannery
Prat Kumar
Ash Nainar
Lorenzo Simonelli
Dave Tucker
Karan Bhatia
Rich Herold
On-going



The date of Mr. Pratyush Kumar’s email is July 12, 2010. On that date, GE had submitted the RFQ for the diesel locomotive factory tender. The RFP for this tender was not issued until 11 October 2010. On 12 July 2010, General Electric was not even a short-listed bidder for the DLF tender. General Electric submitted its application for pre-qualification for this tender only on 12 July 2010. Yet on 12 July 2010, internal General Electric communications record that commercial discussions with the Government of India had been ongoing on the RFP/ PCMA terms even at the Pre-Bid stage and the goal/ deliverable was to have the ELF PCMA concessions incorporated into the DLF PCMA and that the DLF RFP/ PCMA would be concluded by September 15, 2010. These statements in internal General Electric documentation are a clear admission of corrupt activities, illegal lobbying and of corrupt influence on the Bid Process and the Bid documents.
The court should direct a senior officer of General Electric Company to explain on affidavit the statement in this internal General Electric document that the RFP would be concluded by September 15, 2010. Was the decision of the Railway Ministry to conclude the RFP being taken at the behest of and instructions from General Electric? 
On July 12, 2010, Mr. Pratyush Kumar committed to the deliverable “E-Loco terms for D-Loco”, i.e., GE wanted the concessions from the ELF RFP to be incorporated into the DLF RFP. Mr. Pratyush Kumar also stated that discussions with the Railway Ministry on this “deliverable’ were ‘on-going’ and that he expected the RFP to be concluded/ finalised by September 15, 2010. Discussions between the Railway Ministry and the bidders on the DLF RFP terms would formally commence only after the bidders were short-listed/ pre-qualified and after the RFP was issued The RFP was not issued until 11 October 2010. Yet Mr. Pratyush Kumar stated on July 12, 2010 that these discussions were ongoing. These written statements in an internal General Electric document establish that General Electric was in corrupt contact with Indian government officials and was engaged in prohibited lobbying for this tender.

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

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

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

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

6 October 2010
Pre-bid meeting held for ELF. 

8 October 2010
RFP issued for ELF 2010 tender to short-listed bidders

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

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

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

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

It is submitted that the Railway Ministry should be directed to produce the following documents on record in these writ proceedings:
1.      The ELF PCMA approved by the Cabinet in 2009
2.      The draft ELF PCMA/ RFP issued on 11 June 2010
3.      The ELF PCMA/ RFP issued on 8 October 2010

Dates for submission of financial bids for ELF repeatedly postponed.

11 October 2010
RFP issued for DLF 2010 tender to short-listed bidders

Dates for submission of financial bids for DLF repeatedly postponed.

6 Nov 2010
Issue of illegal lobbying by General Electric

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

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

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

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

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

19 January 2011
Pre-bid meeting held for ELF.

14 Mar 2011
Issue of illegal lobbying by General Electric

In March 2011, Mr Jeffrey Immelt again visited India and on 14 March, 2011, a Wall Street Journal article quoted Mr. Immelt as having stated in a public event held in India:
“We have invested for a long period of time for the opportunity to successfully bid on a competitive basis to modernize the railways of India –  it is extremely important to us that that investment gets made,” Mr. Immelt said. “To not even have a chance to bid is frustrating.”
He said, in what appeared to be only a half-joke, that if the company doesn’t get the chance to bid for the contract while he is still at the helm, “my own self-worth would be diminished immensely.”
Just in case anyone in the audience didn’t get the point, he added: “I would like that on the record.”

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

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

30 May 2011
Issue of non-investigation by CVC of complaint of forged customer certificate

Respondent No. 2 (the CVC) registered a complaint bearing No. 107/11.1 acting on the Petitioner’s email dated January 11, 2011 reporting the submission of a forged customer certificate by General Electric with its technical bid for the DLF RFQ on 12 July 2010. A copy of the letter dated May 30, 2011 received by the Petitioner from Respondent No. 2 is attached to the writ petition as Annexure P-5.
The letter dated May 30, 2011 sent to the petitioner by the CVC referred to the petitioner’s email letter dated January 11, 2011 and stated that this email complaint had been registered as complaint no. 107/11/1 and had been forwarded to Mr A K Maitra, Advisor (Vig), Railway Board for investigation and submission of a report. The email complaint sent by the Petitioner on January 11, 2011 stated that the Kazakhstan Railways customer certificate submitted by GE Global Sourcing India Private Limited for the Marhowra RFQ on July 12, 2010 was a tampered and forged document. 

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

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

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

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

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

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

7 March 2012
Notice issued on writ petition and on CM 2770/ 2012 to
General Electric Company – respondent 1
CVC – respondent 2
Delhi Police, respondent 3
Railway Ministry – respondent 4
PMO – respondent 5
GE India Industrial Private Limited – respondent 6
GE Global Sourcing India Private Limited – respondent 7

Writ Petition adjourned to 19 July 2012.

CM 2770/ 2012 adjourned unheard to 9 May 2012.

19 March 2012
Pioneer news story

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The petitioner herself attended 2-3 pre-bid meetings for the ELF/ DLF tenders in 2010 along with General Electric executives. The petitioner recalls the presence of Mr Gajendra Haldea at some of these meetings. Whenever Mr Gajendra Haldea was present for Railway pre-bid meetings he essentially chaired those meetings with all railway officials including railway board members deferring to him. 
      
Mr Gajendra Haldea is a retired bureaucrat and his official engagement is as an advisor to Mr Montek Singh Ahluwalia. Mr Gajendra Haldea’s official position therefore does not confer on him the authority to chair railway pre-bid meetings. Where does Mr Gajendra Haldea derive this informal authority within Indian government processes? It is clear that Mr Gajendra Haldea is merely a representative of Mr Montek Singh Ahluwalia.

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

2 April 2012
Outlook India news story

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

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

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

The Outlook India report stated:

“Change The Rules - Planning Commission bid to change bidding process for two PPP locomotive plants in Bihar rings a bell with similar PPP moves in power, highways, airports. Current PPP projects: Rs 1,166 crore. PPP projects in the pipeline: Rs 99,064 crore.”
           
The news report highlights the involvement of the Planning Commission and Mr. Sam Pitroda in the push behind this privatisation drive. It states:

·         Senior government and railway officials say Dinesh Trivedi’s railway budget was crafted with the major backing of the Planning Commission in a manner not seen during the tenures of previous railway ministers Laloo Prasad Yadav and Mamata Banerjee.
·         Trivedi’s proximity to railway reforms panel head Sam Pitroda is grist for the gossip mills in Rail Bhavan. There are some who view a potential conflict of interest in Pitroda residing at Trivedi’s Delhi home while his house was being readied.
·         Trivedi has gone on record in TV interviews to say that he had approached American investor Warren Buffett to “invest” in railway bonds and promised to clean up the railways to ensure this.
This report exposes the corruption and rule-tweaking in the impugned locomotive factory tenders. The Outlook India article states:
“Experts point out that huge concessions are expected to be granted to attract private investments. Currently, there are over a dozen departments handling various PPP projects. The proposal to have a dedicated railway board member looking at PPPs has been shot down by the new minister. This is unfortunate as there is no transparency or accountability in how these projects are being formulated or operated. All this should set alarm bells ringing.
Apart from genuine fears about corruption and tweaking of rules, there is also the concern that millions of consumers who rely on the railways could end up suffering and paying higher tariffs. …
The controversies have already begun. The basic flaw with the railways following the PPP mode to augment resources for infrastructure development is the lack of a sound model. Currently, the railway ministry is relooking at the proposal for setting up two new locomotive factories in Bihar. During his tenure as railway minister in 1998-99, Nitish Kumar had ordered a feasibility study on increasing locomotive manufacturing capacity in the country for domestic use and exports. “But it was only in 2009 that Laloo Prasad Yadav pushed ahead with the idea of setting up more loco manufacturing units through the PPP mode in Bihar,” says a former railway board member.

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

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

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

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

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

“6. Railway Production Units
It is well known that much of our existing rolling stock, both wagons and locomotives, is outdated and needs to be modernised. The White Paper also makes reference to this as far as wagons are concerned, but the same is equally important for locomotives. This is especially so given the increased importance of energy efficiency in a world which faces challenges due to climate change.
For existing factories for production of rolling stock it is worth delinking them from the Railways as a service provider, and spinning them off into separate public sector units. Railway staff in the existing production units can, if they wish, remain on the rolls of the Railways until they retire, but new staff should be recruited by the corporation as a PSU. Spinning of Railway production units into separate corporations may be resisted because of tax implications but it should be possible to agree with the Finance Ministry to a tax-reimbursement arrangement for the next ten years.
As for new factories, these should be built outside the Railways through strategic partnership with qualified parties who can bring the right technology and can be given incentives to indigenise production. The Railways have seen a great deal of robust investor interest for production of state-of-the-art locomotives and also passenger coaches. However, far too much time has been wasted. We need to bring these initiatives to closure, in order to enhance public confidence in our resolve to modernise the Railways”.

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

Larger public interest issues

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

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

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

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

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

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

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

It is also the obligation of the Indian state to promote Indian industry.  Does the Government of India want India to de-industrialise? Do we want a country where all locomotive manufacturing is carried on by foreign multinationals? India lacks and has been trying to develop the manufacturing capability to manufacture aircraft. Do we also want to lose indigenous capacity to build locomotives?
   
19 July 2012
Writ Petition and CM 2770/ 2012 for stay of the impugned tenders listed before Justice Rajiv Shakdher who adjourned the matter unheard to 12 October 2012. 

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

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

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

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

19 November 2013
Petitioner moved CM 18642/ 2012 seeking interalia issue of notice of the writ petition to the corporate officers of General Electric (respondents 8. 9. 10 and 11), which direction was issued in court but was unclear in the order signed by Justice Rajiv Shakdher.

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

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

26 November 2012
Justice Rajiv Shakdher passed an unsustainable and uncalled for order directing the court registry not to list further applications filed by the Petitioner.

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

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

27 November 2012
First attempt by Prime Minister Manomohan Singh, PMO and Mr Montek Singh Ahluwalia to over-reach this court

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

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

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

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

“5 December 2012
CM 19197/ 2012
1.      In view of the prayers made in the writ petition, we are of the opinion that the writ petition has to be treated as one pertaining to “Tenders” and as per the rules of this Court required to be listed before a Division Bench.
2.      The application stands disposed off directing the Registry that the writ petition should henceforth be listed before the roster bench, on January 23, 2013”. 

6 December 2012
Second attempt by Prime Minister Manomohan Singh, PMO and Mr Montek Singh Ahluwalia to over-reach this court

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

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

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

7 December 2012
Vakalatnamas were filed by Mr Nanju Ganpathy/ AZB & Partners for the three General Electric respondents but these were defective as they did not disclose the source of authority of the signatory.

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

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

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

14 Dec 2012
CM 19683/ 2012 filed by Petitioner for declaration that the vakalatnamas filed on behalf of General Electric respondents on 7 December 2012 were defective and invalid.
This application has not been heard.
17 Dec 2012
CM 19820/ 2012 filed placing on record additional facts in support of CM 19501/ 2012 seeking stay of the 2010 tenders.

17 December 2012
Issue of PMO pressure on Railway Board

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

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

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

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

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

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

Order passed directed as follows:

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

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

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

14 Jan
2013
Reply filed on behalf of Railway Ministry to CM 19501/ 2012.
14 Jan 2013
CM 522/ 2013 filed seeking declaration that vakalatnamas filed on behalf of General Electric respondents on 17 December 2012 are also defective and invalid.
This application has not been taken up for consideration.

15 Jan 2013
Petitioner filed partial rejoinder to Railway reply to CM 19501/ 2012.
16 January 2013
CM No.19501/2012 for stay of the impugned tenders and CM No.19820/2012 (providing additional facts in support of CM 19501/ 2012) listed before court but not heard because Bench stated that it could not devote adequate time to hear the matter. Matter sent to Chief Justice with recommendation to constitute a Special Bench.
Chief Justice rejected the possibility of a Special Bench as infeasible.

23 January 2013
CM No.19501/2012 for stay of the impugned tenders and CM No.19820/2012 (providing additional facts in support of CM 19501/ 2012) listed before court but not heard because Bench released the matter.

24 January 2013
CM No.19501/2012 for stay of the impugned tenders and CM No.19820/2012 (providing additional facts in support of CM 19501/ 2012) listed before court but not heard because Bench released the matter.

30 January 2013
CM No.19501/2012 for stay of the impugned tenders and CM No.19820/2012 (providing additional facts in support of CM 19501/ 2012) listed before court but not heard because Bench released the matter.

1 February 2013
CM No.19501/2012 for stay of the impugned tenders and CM No.19820/2012 (providing additional facts in support of CM 19501/ 2012) listed before court but not heard because Bench released the matter.

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

26-27 February, 2013
Petitioner-whistleblower a woman lawyer starts to sleep in her car at night parking it on public streets because she has no place to stay after her applications for protection, housing, medical treatment, and financial assistance remain unheard.

28 Feb 2013
False, unauthorised and evasive affidavit filed purportedly on behalf of CVC by Mr R V Sinha, who has not produced a vakalatnama on record. 

8 March 2013
Issue of Planning Commission interference in Bid Process for ELF and DLF

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

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

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

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

3 April 2013
Petitioner filed four additional affidavits in the writ petition.

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

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

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

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

3 April 2013
Unauthorised, false and perjurious Sur-rejoinder filed on behalf of General Electric by AZB & Partners purporting to represent the General Electric respondents without proper vakalatnamas.

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

11 April 2013
Writ Petition listed before Registrar.

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

22 April 2013
Issue of third and most outrageous attempt by the Government of India to overreach the court

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

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

26 April 2013
Issue of third and most outrageous attempt by the Government of India to overreach the court

As per Railway affidavit dated 15 May 2013, Railway Ministry submitted note to Cabinet seeking approval for cancellation of 2010 tenders for ELF and DLF, and seeking approval for initiation of new tenders for both ELF and DLF by issuing news RFQs.
 
1 May 2013
Issue of third and most outrageous attempt by the Government of India to overreach the court

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

6 May 2013
Issue of third and most outrageous attempt by the Government of India to overreach the court

New RFQs for ELF and DLF issued by Ministry of Railways

15 May 2013
Issue of third and most outrageous attempt by the Government of India to overreach the court

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

16 May 2013
Issue of third and most outrageous attempt by the Government of India to overreach the court
Affidavit filed by Mr Nihar Ranjan Dash not on the court record. No appearance for the Railway Ministry either by the ASG (Mr Rajiv Mehra) or by the Railway Counsel (Mr R N Singh).

Court not informed of these new developments.

Writ petition adjourned unheard to 18 July 2013.

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

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

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

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

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



Issue of Mr Vinod Sharma  

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

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

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

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

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

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

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

24.  Before examining in detail the contents of the RITES letter dated January 7, 2013, some incomplete facts and dates that emerge from the affidavit of the Railways and the RITES letter are set out below:
(i)                 11-10-2006 – Railway Board approved appointment of RITES and approved engagement of a consultancy firm by RITES. [The RITES letter describes this as a Railway Board letter communicating to RITES “that Railway Board has approved appointment of RITES for providing consultancy services to the Ministry of Railways to engage consultancy firm for advisory on setting up new manufacturing units through International Competitive Bidding under Single Stage Process based on the RFP framed by PPP cell.”.
(ii)               2-3-2007 – RITES engaged PWC as consultant on behalf of the Railway Ministry by issuing letter of award of contract to PWC.
(iii)              6-3-2007 – RITES signed an agreement with PWC on behalf of the Railway Ministry.

25.  The petitioner now turns to the RITES letter dated January 7, 2013 filed with the Railway affidavit dated January 14, 2013 and draws attention to the following:
(i)                 The RITES letter states that the railway board letter dated 11-10-2006; the letter of award dated 2-3-2007 issued to PWC; and the agreement signed with PWC on 6-3-2007 are annexed to the RITES letter as Annexure 1, Annexure 2 and Annexure 3 respectively. However, the copy of the RITES letter placed on record does not contain any of these three documents as annexures.
(ii)               In the opening paragraph, the RITES letter refers to “issues relating to M/s PricewaterhouseCoopers raised by the petitioner” and without elaborating on these and without describing these issues, the RITES letter states that these have been examined.
(iii)             The RITES letter in paragraph (III) state that: “As regards the issue of Mr Vinod Sharma raised by the petitioner, it is brought out that the relevant records have been checked and as per the Technical Proposal – Part II of M/s PwC of December, 2006, the Team Composition of PwC for the consultancy assignment mentioned in Para I above, was as under:-“. The letter then includes a table with 9 names for Technical/ Managerial Staff and a further 7 names as Support Staff. Mr Vinod Sharma’s name is not included in this table.
(iv)             The next statement in the RITES letter is: “Further, at no stage during the currency of the assignment, M/s PwC informed RITES. Ministry of Railways about any change in the team composition.
(v)               The last relevant statement in the RITES letter reads: “Thus from the information furnished by PwC, it is seen that Mr. Vinod Sharma was not a part of the PwC team that worked on the consultancy assignment.” 

26.  A copy of a Railway Ministry document downloaded by the petitioner from the website of the Railway Ministry has been annexed to CM 19501/ 2012 as Annexure P-1. This  document titled “Annexture_1_4.pdf” and downloaded from http://indianrailways.gov.in/railwayboard/uploads/directorate/O&M/Annexture_1_4.pdf. contains the following statement on the role of PwC as the consultant to the Indian Railways for the Marhowra diesel locomotive factory tender:
“Ministry of Railways have appointed a Consultant M/s Price Waterhouse Coopers for advisory on setting up of new unit.
Final report for the first part, which is on strategy, has since been received and the consultant has been given a go-ahead for the second part of the report i.e. bid process management.
A final decision on Joint Venture will be taken based on the response in the bidding process.
Status on selection of developer for setting up new Manufacturing Units in Joint Venture:
Draft Agreements (Procurement contract, maintenance contract and shareholders’ agreement) approved by the Board(MM).
Legally vetted copy of final Land Lease agreement incorporating views of AM/Adviser’s Committee has been submitted by the Consultant (PWC) and put up to Board(ME) for approval.
Legally vetted copy of Procurement Contract has been received from the Consultant. Other draft agreements (Shareholders’ agreement and Maintenance Contract) are under legal vetting with the Consultlant.
Procurement Specialist for validating procurement contract hired by the Consultlant, has started work. Work likely to be completed in a week’s time.
After validation of Procurement Contract and legal vetting of draft agreements, final bid document (RFP) will be put up for approval by Board(MM, FC & CRB) and MR. Likely date of submission is 30-04-2008.
A fresh RFQ based on approval by Planning Commission will be issued shortly.
Further bid process will depnd on the reply to the reference made to the Ministry of Finance.
Bid process is likely to be completed by August, 2008.
The project is expected to be completed in about 2 to 2½ years after CCEA’s approval is obtained for going ahead with bidding process for Joint – Venture.”


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

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

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

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

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

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

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

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

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

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

37.  That an irrelevant and wrong list of names has been reproduced in the RITES letter dated January 7, 2013 with intent to mislead the court and that this list does not establish that Mr Vinod Sharma did not advise the Railway Ministry/ RITES for the Marhowra project is borne out by the following:  
(i)                 The source of this list has not been produced. This court cannot know what this list signifies unless the document it was attached to is placed before court.
(ii)               This list is from a proposal made by PWC and not from the actual contract signed with PWC. The contract with PWC needs to be placed on record so that this court can see what the contract covered, whether this was the relevant contract, and what was the team identified in the contract. Prima facie it appears that the PWC contract referred to in RITES letter dated January 7, 2012 is not the relevant contract with PWC.
(iii)             The list is for a proposal to carry out initial feasibility studies into multiple manufacturing units at the conception stage. Therefore the list included separate technology experts for passenger coaches, wheels, diesel locomotives and electric locomotives. These persons would not be required for a advisory consultancy that drafted and reviewed bid documents for the Marhowra Project, limited to diesel locomotives. Instead the composition of the team that advised Railways/ RITES on drafting and reviewing bid documents for the Marhowra project and which helped Railways/ RITES evaluate the technical and financial bids for the Marhowra Project in 2008-2009 would necessarily be different from the proposed team set out in paragraph III of the RITES letter.

37.  The Railway affidavit states that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

49.  In his alleged affidavit-in-reply verified on 23 March 2013, Mr K R
Radhakrishnan makes the following statement:

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                                              i.      The additional information provided by General Electric to the Railway Ministry on May 20, 2010 through Mr. Ramesh Mathur was liable to be disregarded;
                                                            ii.      The decision to prequalify General Electric for the 2010 electric locomotive tender was liable to be reversed/ set aside;
                                                          iii.      Mr. Ved Mani Tiwari (Railway Ministry), and Mr. Pratyush Kumar and Mr. Ramesh Mathur (General Electric) are liable to be investigated for corruption and punished in accordance with law;
                                                          iv.      General Electric Company and its two Indian subsidiaries (GE India Industrial Private Limited and GE Global Sourcing India Private Limited) are liable to be blacklisted for corrupt and undesirable practices in accordance with law and the 2010 Madhepura RFQ. 


Issue of General Electric lobbying Railway Ministry officials using McKinsey consultants

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

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

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

“---------- Forwarded message ----------
From: Thomas, Peter G (GE Infra, Transportation) <peter.g.thomas@ge.com>
Date: Fri, Jun 4, 2010 at 6:35 PM
Subject: Re: NDA with McKinsey
To: "Plimpton, Tara (GE Transportation, US)" <tara.plimpton@ge.com>, "BeGole, Brett (GE Transportation)" <brett.begole@ge.com>
Cc: seema.sapra@googlemail.com


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

Brett...do you know?
--------------------------
Sent from my BlackBerry Wireless Handheld


----- Original Message -----
From: Plimpton, Tara (GE Transportation, US)
To: Thomas, Peter G (GE Transportation)
Cc: Seema Sapra <seema.sapra@googlemail.com>
Sent: Fri Jun 04 08:18:27 2010
Subject: FW: NDA with McKinsey

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

Tara

-----Original Message-----
From: Sapra, Seema (GE Transportation, Non-GE)
Sent: Friday, June 04, 2010 5:00 AM
To: Winget, James, Legal (GE Transportation, US)
Cc: Plimpton, Tara (GE Transportation, US); Malhotra, Ashish (GE Transportation); Kumar, Prat (GE Transportation); Gerson, James (GE Transportation); Adlakha, Deepak (GE, Corporate)
Subject: FW: NDA with McKinsey

Jamie -

I discussed the NDA issue with Prat and Ashish.

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

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

Thanks,

Seema


-----Original Message-----
From: Gerson, James (GE Transportation)
Sent: Thursday, June 03, 2010 1:16 AM
To: Sapra, Seema (GE Transportation, Non-GE); Kumar, Prat (GE Transportation)
Cc: Negi, Gaurav (Corporate); BeGole, Brett (GE Transportation); Winget, James, Legal (GE Transportation, US); Parisi, Robert D (GE Transportation)
Subject: RE: NDA with McKinsey

Seema

Thank you for the response.

Jim


-----Original Message-----
From: Sapra, Seema (GE Transportation, Non-GE)
Sent: Wednesday, June 02, 2010 8:59 AM
To: Gerson, James (GE Transportation); Kumar, Prat (GE Transportation)
Cc: Negi, Gaurav (Corporate); BeGole, Brett (GE Transportation); Winget, James, Legal (GE Transportation, US); Parisi, Robert D (GE Transportation)
Subject: RE: NDA with McKinsey

Jim,

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


Thanks,
Seema



-----Original Message-----
From: Gerson, James (GE Transportation)
Sent: Wednesday, June 02, 2010 3:42 PM
To: Kumar, Prat (GE Transportation); Sapra, Seema (GE Transportation, Non-GE)
Cc: Negi, Gaurav (Corporate); BeGole, Brett (GE Transportation); Winget, James, Legal (GE Transportation, US); Parisi, Robert D (GE Transportation)
Subject: NDA with McKinsey

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

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

Thanks,

Jim

-----Original Message-----
From: Kumar, Prat (GE Transportation)
Sent: Tuesday, June 01, 2010 8:11 PM
To: Gerson, James (GE Transportation)
Cc: Negi, Gaurav (Corporate); BeGole, Brett (GE Transportation)
Subject:

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

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

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

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


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

72.  The petitioner has produced in CWP 1280 of 2012, two McKinsey documents titled “18052010 Assessing Loco Opportunity v4.ppt” dated May 18, 2010 and “20100522_Working session_V04.ppt” dated May 22, 2010.  These documents are of interest because they also establish that General Electric does not manufacture electric locomotives and does not possess the technology to manufacture electric locomotives. Slide 3 of the document dated May 22, 2010 titled “20100522_Working session_V04.ppt” lists ‘Key engineering issues identified during initial round of discussions’ between GE and McKinsey. These were listed as:
Can we hire 100 engineers, including 20-30 domain experts, in 3 months time (plus 4 months before LoA for preparations, e.g., CV short-listing)?
Is BHEL’s limited expertise in Liquid cooled IGBT sufficient?
What risk will be posed by the lack of expertise in reliability, vehicle dynamics, system engineering and high voltage circuitry
What risk will be posed by the lack of expertise in E-loco bogey
Can the factory be commissioned in 18-21 months?
What will be the loading cost of higher failure rate (2.04 per fly Vs 1.5)?”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                                              i.      The document the petitioner saw in the RFQ compilation on the evening of 9 July 2010 contained a black and white copy of the Kazakhstan certificate. This was the final set that was supposed to have been sent for binding.
                                                            ii.      The bound set that the petitioner saw on 10 July 2010 contained an entirely different document (Kazakhstan certificate) that was in colour and looked like an original leading the petitioner to ask her colleagues at General Electric: “are you guys playing games with me?”
                                                          iii.      Ashish Malhotra (from General Electric) lied to the petitioner and told her  that the coloured document had been present in the set the petitioner looked through on 9 July 2010. This is incorrect. The document the petitioner saw on 9 July 2010 was a black and white document that on the face of it looked like a copy.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

101.    Clause 3.2.1 of the 2010 Marhowra RFQ reads:

“Subject to the provisions of Clause 2.2, the Applicant shall:
a) over the period of last ten (10) years, have manufactured and supplied at least 1000 Mainline Diesel Electric Locomotives and:
i. such Locomotives should comprise at least 2 Variants; a Variant for the purpose of this RFQ Document shall mean a Locomotive with different gauge or with different service application;
ii. the supply of such Locomotives should have been to three (3) or more countries;
iii. 200 or more of such Diesel Electric Locomotives should be of 4000 HP (or higher) with AC-AC 3-phase and IGBT technology; iv. 25 or more of such Diesel Electric Locomotives should be of 6000 HP (or higher)”

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

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

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

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

For gauge variations, the following have been included in the set sent for binding:
Original from Indonesia has been received and has been included. – has a gauge variation plus mixed use (passenger/ freight) – locomotives of 2000 HP capacity

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

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

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

As already indicated to the team,

1. The RFQ language (2.12.2) requires original certs
2. Variant requirement of at least 2 variants – If we are using gauge variations, I interpret the RFQ as requiring at least 3 different gauges. No gauge variation is a zero variant, one different gauge is one variant and 2 different gauges are 2 variants. In D loco last time with the same language we had 3 gauge variations.
…”


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

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

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

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

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

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

“The Applicants shall enclose with its application, to be submitted as per the format at Appendix-I, complete with its Annexes, the following:
i. certificate(s) from its statutory auditors or the concerned customer(s) stating the number of Mainline Diesel Electric Locomotives designed, manufactured and supplied, during the past 5 years as specified in paragraph 2.2.2(A) above. In case a particular job/contract has been jointly executed by the Applicant (as part of a consortium), he should further support his claim for the share in work done for that particular job/ contract by producing a certificate from its statutory auditor or the concerned customer(s);”


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

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

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

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

115.    This note reads:

Central Vigilance Commission
The Commission has perused the investigation report and the comments of the administrative authorities thereon. In agreement with the RB(Vigilance), the Commission would advise closure of the complaint case.
2. Railway Board’s ID No.2011/VC/RB/10-CVC dated 12.08.2011 refers and its file is sent herewith.
                                                                                                            (R.C. Arora)
                                                                                                                                                                Director                                                                              

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“---------- Forwarded message ----------
From: Seema Sapra <seema.sapra@googlemail.com>
Date: Fri, Jun 10, 2011 at 1:11 PM
Subject: FW: Concerns about GE and possible FCPA violations
To: pmosb@pmo.nic.in
Cc: tka.nair@pmo.nic.in, jmg.vc@nic.in, r.sri_kumar@nic.in, mr@rb.railnet.gov.in, dch@nic.in, g.haldea@nic.in, crb@rb.railnet.gov.in, mm@rb.railnet.gov.in, jeffrey.immelt@ge.com, john.flannery@ge.com, "Denniston, Brackett (GE, Corporate)" <brackett.denniston@ge.com>

Dear Sir,
I would to like to share some further concerns about GE Transportation India and corruption. Please see my email below. Thank you.
Yours Sincerely,
Seema Sapra


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


From: Seema Sapra [mailto:seema.sapra@googlemail.com]
Sent: 10 June 2011 12:41
To: 'Denniston, Brackett (GE, Corporate)'; 'Dimitrief, Alexander (GE, Corporate)'
Cc: 'Eglash, Jeffrey C (GE, Corporate)'; jeffrey.immelt@ge.com; john.flannery@ge.com
Subject: Concerns about Aartech Consultants and FCPA
Mr. Denniston/ Mr. Dimitrief,
I want to place on record my concerns about a third party contractor that GE Transportation India was using, an entity called Aartech Consultants. I shared this concern with Mr. Eglash when I spoke with him on 29 November 2010. I asked Mr. Eglash - what did this consultant do for GE? Unsurprisingly, Mr. Dimitrief’s letter of 3 February 2011 does not mention Aartech Consultants.
I first learnt about Aartech Consultants when in June 2010, I received an email asking me to review the documentation for Aartech’s ITP (Independent Third Party) contract that was up for renewal. I reviewed it and found there were reputational red flags that had been identified. Plus Aartech’s application was old and the answers to certain questions were unclear or potentially wrong. I spoke to Himali Arora, the CFO about this. She then pointed out that Aartech had a networth of approx. Rs. 30,000 which was also odd. I discussed the matter with Himali Arora and Ashwani Bhargava, who was handling compliance and was based in Bangalore. I then declined to approve the renewal unless these matters were reviewed and addressed.
The Aartech Consultants representative was one Sikh gentleman who visited the AIFACS office. I was never introduced to him and never spoke with him. On different occasions, I saw him sitting with Prat Kumar, Ash Nainar and Himali Arora. Plus he seemed to know most other GE Transportation employees at AIFACS well.
There is a very distinct possibility that Aartech Consultants was being used to make illegal payments to Indian Railway officials.
I was told by Anand Chidambaram in August that Aartech Consultants had good contacts within the Indian Railways and helped GE move files within the Indian Railways. I was also told that Aartech got a commission of 5% on every deal.
I fail to understand why GE would need an external contractor to help move files in the Indian Railways. GE Transportation India had sufficient human resources to undertake all legitimate interactions with the Indian Railways in GE’s business dealings and tender applications. What services did Aartech Consultants provide?
Even though Aartech Consultants’ contract renewal with GE did not go through in June 2010, the gentleman in question still visited AIFACS. I was told by Ashish Malhotra in August 2010 that despite the non-renewal of Aartech’s contract, GE documentation still showed that Aartech was being paid 5% commission for the turbocharger tender that GE had won. GE was having internal compliance problems with the terms and conditions of this deal and I remember hearing Prat ask Alpna Khera, Himali Arora, Ashish Malhotra and Anand Chidambaram to enlist Aartech Consultants’ support in getting the Indian Railways to relax certain terms, for example, getting the Indian Railways to agree to a liquidated damages provision.
Did you investigate whether any illegal payments were routed through Aartech Consultants by GE? Was there a violation of the Foreign Corrupt Practices Act? What services did Aartech provide? What payments did GE make to Aartech Consultants? Were these justifiable?
Sincerely,
Seema Sapra”

127.    The petitioner sent another email complaint dated June 15, 2011 about FCPA violations by General Electric and the use of a third party contractor (Aartech Consultants India Private Limited) to pay bribes and kickbacks to Indian government officials in exchange for bid manipulation with intent to award the lucrative contract for the proposed diesel locomotive factory to General Electric.
From: Seema Sapra [mailto:seema.sapra@googlemail.com]
Sent: 15 June 2011 09:10
To: pmosb@pmo.nic.in
Cc: tka.nair@pmo.nic.in; jmg.vc@nic.in; r.sri_kumar@nic.in; mr@rb.railnet.gov.in; dch@nic.in; g.haldea@nic.in;crb@rb.railnet.gov.in; mm@rb.railnet.gov.in; jeffrey.immelt@ge.com; john.flannery@ge.com; 'Denniston, Brackett (GE, Corporate)'
Subject: FW: Additional information on Concerns about GE and possible FCPA violations
Dear Sir,
I would like to provide additional information about corrupt activities by GE Transportation in India. Please see attached.
Sincerely,
Seema Sapra


From: Seema Sapra [mailto:seema.sapra@googlemail.com]
Sent: 14 June 2011 18:16
To: ffetf@usdoj.gov;chairmanoffice@sec.gov; help@sec.gov; fcpa.fraud@usdoj.gov; askdoj@usdoj.gov
Cc: jeffrey.immelt@ge.com; john.flannery@ge.com; 'Denniston, Brackett (GE, Corporate)'; 'Dimitrief, Alexander (GE, Corporate)'; 'Eglash, Jeffrey C (GE, Corporate)'; fwarin@gibsondunn.com
Subject: Additional information on Concerns about GE and possible FCPA violations
Dear Madam/ Sir,
Please find attached internet search results for Aartech Consultants, the independent third party contractor that GE Transportation India was using to liaise with the Indian Railways. Aartech Consultants shows up in search results as a recruitment agency.
I emailed about Aartech Consultants on 10 June 2011. (Before I sent my email, I googled “Aartech Consultants”and all the search results described it as a recruitment firm.) When I googled Aartech Consultants again on 13 June, the “recruitment” links did not show up. However, they still show up if you do not enter the full name. Instead there were 3-4 results that now describe Aartech as a business consultancy. Screen shots of these internet search results are attached.
The representative from Aartech Consultants who visited the GE office was Mr. Inderjeet Singh. He does not seem to hold any special qualifications that might have qualified him to provide any consulting services to GE. Plus he seems to be the sole representative and employee.
Thank you,
Seema Sapra”

128.    Paragraph 14 of Civil Writ Petition 1280 of 2012 reads:
“The Petitioner has complained that Respondent No. 6 had entered into a third party contract with an entity called Aartech Consultants India Private Limited (hereafter referred to as Aartech) and that this contract was used to facilitate illegal payments and to pay bribes to Indian government officials. This would amount to offences of corruption under the Prevention of Corruption Act and also constitute a violation of the Unites States’ Foreign Corrupt Practices Act. The Petitioner raised several red flags that call for an investigation. In June/ July 2010, the Petitioner (while still at GE) was asked to review and authorize a renewal of the contract between Respondent 6 and Aartech. The Petitioner found some red flags and deferred authorization until these red flags were addressed. First, Aartech had a total share capital of less than Rs. 50, 000. Second, GE’s routine internet and reputational searches conducted under GE’s internal Third Party Contract Authorisation Policy had found certain reputational red flags. Third, Aartech’s application was outdated and seemed non-compliant. The Petitioner was later told by Mr. Anand Chidambaram, an employee of Respondent 6 that Aartech helped GE move files in the offices of the Indian Railways and received a 5% commission on every contract. The Managing Director of Aartech is one Mr. Inderjit Singh who was the main contact for GE and appeared to be the sole employee/ representative of Aartech. Mr. Inderjit Singh is a graduate and does not have any educational/ professional/ technical qualifications or expertise that would make him qualified to provide business consultancy services to GE in respect of GE’s rail transportation business. Further since leaving GE, the Petitioner found internet search results for Aartech and Mr. Inderjit Singh that featured Aartech as a provider of recruitment consulting services. This raises a red flag suggesting money laundering. Given that other evidence and documents point to several instances of corrupt contact between GE employees and Indian Railways officials, these red flags about a third party contractor (Aartech) call for an investigation into the nature of services being provided by Aartech to GE, into whether payments made to Aartech were inflated and into whether Aartech was acting as a conduit to bribe Indian government officials.”    

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

150.    The Petitioner highlights the following
                                                              i.      General Electric has admitted that it appointed Aartech as its international sales representative.
                                                            ii.      Aartech is a shell company, with a miniscule bank balance, with no track record of similar assignments or experience, with a suspicious internet profile, with no staff, with a residential address as its office, with a principal (Inderjeet Singh) who has no qualifications to render him eligible for this role, and who appears to be an associate of Mr Montek Singh Ahluwalia (both appear to have been contemporaries at St Stephen’s College and would know each other) and Mr Montek Singh Ahluwalia is not only in a position to but has been accused by Government of India officials of pushing for award of this contract to General Electric on favourable terms.
                                                          iii.      General Electric has been making payments to Aartech.   
                                                          iv.      The petitioner was asked to approve the renewal of General Electric’s contract with Aartech, such approvals are the job of in-house counsel according to General Electric’s compliance policies, and now General Electric in affidavits filed in this writ petition claims that the petitioner was not an in-house counsel but was merely an external consultant on a short-term contract. (The petitioner was also asked to approve a third party contract for General Electric in Pakistan). Why then was the petitioner asked to approve the renewal of General Electric’s contract with Aartech when this is a job that is supposed to be performed by in-house counsel at General Electric under General Electric’s supposedly sacrosanct “compliance policies”?
                                                            v.      Several well-founded and evidence backed complaints have been made from several sources (not just the petitioner) that the impugned tenders are plagued by corruption, tailor-made tenders, manipulated bid processes and bid documents, huge unjustifiable concessions by the government, lack of transparency and accountability, mid-way rule changing, altered and misquoted minutes of government meetings, allegations of ‘bananna republics’ and ‘con-games’, agendas to compromise the interest of the Railways, allegations of conflict of interest, allegations of by-passing designated government officials etc., all pointing towards corruption that has benefited or was intended to benefit General Electric.
                                                          vi.      Most bribes are paid through third parties using fake contracts or shell companies to transfer payments.
                                                        vii.      GE Transportation does not manufacture anything in India or export from India so it obviously does not need an international sales representative based in India like Aartech especially when it has dedicated senior sales staff here. 
                                                      viii.      All of GE Transportations’s sales/ contracts in India are to/with the Railway Ministry and follow a public tender process so a third party sales representative like Aartech is not needed.
                                                          ix.      GE Transportation India CEO (Pratyush Kumar) is present in India only to win new business like the Marhowra tender. There is no other business in India for GE Transportation that would call for a third party sales representative like Aartech.
                                                            x.      General Electric is reluctant to investigate its dealings with Aartech even in the face of all this evidence.
                                                          xi.      General Electric has attempted to subvert these proceedings by using a lawyer (without a vakalatnama) to file a false counter affidavit (signed and verified by an unauthorised person) to make false statements under oath in an attempt to cover up the complaints concerning Aartech and the complaints of other illegalities.
                                                        xii.      Employees/ lawyers of General Electric have had the petitioner drugged and poisoned and have attempted to have her murdered while simultaneously smearing her and by trying to false label her mentally ill.
  
151.    The facts related establish that the petitioner’s complaint that General Electric has paid bribes to Indian government officials and to Indian public officials using its contract with Aartech Consultants India Private Limited as a conduit to transfer and launder these bribes is substantial enough to justify a full investigation.

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


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

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

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

155.    Clause 1.3.2 of the 2010 Marhowra RFQ provides:

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

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

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

156.    These Government of India guidelines provide as follows:

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

(a) In regard to matters other than the security and integrity of the country, any conviction by a Court of Law or indictment/ adverse order by a regulatory authority that casts a doubt on the ability of the bidder to manage the public sector unit when it is disinvested, or which relates to a grave offence would constitute disqualification. Grave offence is defined to be of such a nature that it outrages the moral sense of the community. The decision in regard to the nature of the offence would be taken on case to case basis after considering the facts of the case and relevant legal principles, by the Government of India.
(b) In regard to matters relating to the security and integrity of the country, any charge-sheet by an agency of the Government/ conviction by a Court of Law for an offence committed by the bidding party or by any sister concern of the bidding party would result in disqualification. The decision in regard to the relationship between the sister concerns would be taken, based on the relevant facts and after examining whether the two concerns are substantially controlled by the same person/ persons.
(c) In both (a) and (b), disqualification shall continue for a period that Government deems appropriate.
(d) Any entity, which is disqualified from participating in the disinvestment process, would not be allowed to remain associated with it or get associated merely because it has preferred an appeal against the order based on which it has been disqualified. The mere pendency of appeal will have no effect on the disqualification.
(e) The disqualification criteria would come into effect immediately and would apply to all bidders for various disinvestment transactions, which have not been completed as yet.
(f) Before disqualifying a concern, a Show Cause Notice why it should not be disqualified would be issued to it and it would be given an opportunity to explain its position.
(g) Henceforth, these criteria will be prescribed in the advertisements seeking Expression of Interest (EOI) from the interested parties. The interested parties would be required to provide the information on the above criteria, along with their Expressions of Interest (EOI). The bidders shall be required to provide with their EOI an undertaking to the effect that no investigation by a regulatory authority is pending against them. In case any investigation is pending against the concern or its sister concern or against its CEO or any of its Directors/ Managers/ employees, full details of such investigation including the name of the investigating agency, the charge/ offence for which the investigation has been launched, name and designation of persons against whom the investigation has been launched and other relevant information should be disclosed, to the satisfaction of the Government. For other criteria also, a similar undertaking shall be obtained along with EOI.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Clause 2.2.9 of the 2008 Madhepura RFQ defines an ‘Associate” and provides as follows:

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

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

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

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

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


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

2008 Madhepura RFQ
2010 Madhepura RFQ
2010 Marhowra RFQ

Para 6 of Appendix I

Does not have language “or any of our/ their Associates”

Has language “nor have had any contract terminated for breach on our part.”
Para 6 of Appendix I

Has  language “or any of our/ their Associates”


Has language “nor have had any contract terminated by any public authority
for breach on our part”

Para 5 of Appendix I

Does not have language “or any of our/ their Associates”

Has language “nor have had any contract terminated for breach on our part”
Para 11 of Appendix I

Does not have language “or any of our/ their Associates”
Para 11 of Appendix I

Has language “or any of our/ their Associates”
Para 10 of Appendix I

Does not have language “or any of our/ their Associates”

Para 12 of Appendix I

Has language “we have not been charge-sheeted by any agency of the Government or convicted by a Court of Law for any offence committed by us or by any of our Associates”
Para 12 of Appendix I

Has language “we/ any Member of the Consortium or any of our/ their Associates
have not been charge-sheeted by any agency of the Government or convicted by a
Court of Law”

Para 11 of Appendix I

Has language “we have not been charge-sheeted by any agency of the Government or convicted by a Court of Law for any offence committed by us or by any of our Associates”
Para 13 of Appendix I

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



Does not have language “that affects our ability to undertake / execute the Project.”
Para 13 of Appendix I

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

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

Para 12 of Appendix I

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



Has language “that affects our ability to undertake / execute the Project.”
Para 14 of appendix I

Has  language “I/ We further certify that we are qualified to submit a Bid in accordance with the guidelines for qualification of bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment issued by the GOI vide Department of Disinvestment OM No. 6/4/2001-DD-II dated 13th July, 2001”
Para 14 of Appendix I

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

Para 13 of Appendix I

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

Does not have language “or any of their Associates”

Does not have language “that exceed 5% of the contract value”
Para 6 of Annex I to Appendix I

Has language “or any of their Associates”


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

Para 7 of Annex I to Appendix I

Does not have language “or any of their Associates”

Has language “that exceed 5% of the contract value”
Clause 2.2.10 (ii)

Has language “information supplied by an Applicant (or other constituent Member if the Applicant is a Consortium) must apply to the Applicant, Member or Associate named in the Application and not, unless specifically requested, to other associated companies or firms”
Clause 2.2.10 (b)

Has language “information supplied by an Applicant (or other constituent Member if the Applicant is a Consortium) must apply to the Applicant, Member or Associate named in the Application and not, unless specifically requested, to other associated companies or firms”
Clause 2.2.9 (ii)

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



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

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

The 2010 Marhowra RFQ therefore violated the GOI disclosure guidelines.

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

The 2010 Madhepura RFQ therefore violated the GOI disclosure guidelines.

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

The 2010 Marhowra RFQ therefore violated the GOI disclosure guidelines.

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

The 2010 Marhowra RFQ therefore violated the GOI disclosure guidelines.

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

The 2010 Marhowra RFQ therefore violated the GOI disclosure guidelines.

(f)                Both the 2008 and the 2010 Madhepura RFQs contain a positive undertaking by the Bidders that they are qualified to submit a bid in accordance with the Government of India guidelines. The 2010 Marhowra RFQ however, does not require a positive declaration/ certification that the Bidder is qualified under these guidelines. Instead the 2010 Marhowra RFQ only requires a negative certification that the Bidder is not disqualified in terms of the additional criteria specified by the Government of India guidelines.

The 2010 Marhowra RFQ therefore violated the GOI disclosure guidelines.

(g)               The requirement to disclose material non-performance and contractual non-compliance in past projects and recent contractual disputes, litigation and arbitration did not extend to Associates of the Bidder in the 2008 Madhepura RFQ. The 2010 Madhepura RFQ was tightened to extend these disclosures to Associates of Bidders. The 2010 Marhowra RFQ also did not extend these disclosures to Associates of the Bidder. And once again the 2010 Marhowra RFQ goes much further in diluting this disclosure requirement through new language that seeks to limit these disclosures to those “that exceed 5% of the contract value”. This extra language in paragraph 7 of Annex 1 to Appendix I the 2010 Marhowra RFQ does not even make logical sense when read with the rest of this paragraph. The disclosures mandated by this provision are about material non-performance and contractual non-compliance in past projects and about recent contractual disputes, litigation and arbitration. It is not made clear how the limit of 5% of the contract value applies to events mentioned in this provision. It appears that this extra language was hurriedly inserted into this provision and that the dilution of the disclosure requirement was sought to be protected from scrutiny by not going for an overall redrafting of this provision. A condition for disclosure was added that could be subjectively interpreted by the Bidder to mean anything. This would then protect a Bidder from a charge of non-responsiveness if subsequently any questions were raised.

The 2010 Marhowra RFQ violated the GOI disclosure guidelines.

(h)               Clause 2.2.10 in the 2008 Madhepura RFQ included general instructions for submitting an application and it provided that information supplied by an Applicant (or other constituent Member if the Applicant is a Consortium) must apply to the Applicant, Member or Associate named in the Application and not, unless specifically requested, to other associated companies or firms. Thus disclosures were mandatory for Associates of the Bidder named in the application. This was also the requirement in the corresponding provision in the 2010 Madhepura RFQ. In the 2010 Marhowra RFQ however, the corresponding provision states that information need only be supplied for the Bidder and consortium members. Associates of the Bidder named in the Application are not covered by this provision. The effect of this omission in the 2010 Marhowra diesel locomotive factory RFQ is that this provision could be interpreted to mean that the Bidder was not required to disclose information for its Associates.

The 2010 Marhowra RFQ therefore violated the GOI disclosure guidelines.


171.    It is pointed out that paragraph 12 of Appendix I to the 2010 Marhowra RFQ states that pending investigations by regulatory authorities are also required for Associates of the Bidder. However, the introduction of the words “that affects our ability to undertake / execute the Project” in paragraph 12 of the 2010 Marhowra RFQ renders the certification requirement useless as any and every bidder could say (without resort to any external objective standard) that a particular ongoing regulatory investigation did not affect the ability of the bidder to execute the project. The introduction of this subjective element which cannot be objectively verified by the Indian Railways has reduced this important requirement (that was to be mandatorily met by all bidders) to a nullity or a mere formal unverifiable and therefore meaningless statement. It will also be of interest to see what the corresponding language was in the 2008 Marhowra RFQ.

172.    Clause (g) of the aforesaid GOI disclosure guidelines at Appendix –IV of the 2010 Marhowra RFQ provides:

“The bidders shall be required to provide with their EOI an undertaking to the effect that no investigation by a regulatory authority is pending against them. In case any investigation is pending against the concern or its sister concern or against its CEO or any of its Directors/ Managers/ employees, full details of such investigation including the name of the investigating agency, the charge/ offence for which the investigation has been launched, name and designation of persons against whom the investigation has been launched and other relevant information should be disclosed, to the satisfaction of the Government. For other criteria also, a similar undertaking shall be obtained along with EOI.”

173.    The RFQ is equivalent to the EOI (Expression of Interest) referred to in the above Clause (g). However, the language in paragraph 12 of the Letter comprising the Application for Qualification (Appendix-I) in the 2010 Marhowra RFQ does not meet the mandatory requirement of the above-quoted Clause (g) of the Government of India’s guidelines dated July 13, 2001. It is relevant to ask when and how was this change introduced into the language of Clause 12 of the Marhowra 2010 RFQ. This change obviously benefits General Electric because it enabled General Electric to avoid disclosing pending investigations by a regulatory authority against General Electric Company.

174.    The above discrepancies and differences in three different RFQs, all three issued by the Ministry of Railways and all expressly made subject to compliance with the Government of India ‘Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment’ (the GOI disclosure guidelines), cannot be justified. These give rise to a reasonable and strong apprehension that some Bidders like General Electric were being favoured and that the RFQ terms were crafted and modified by corrupt Planning Commission and Indian Railways officials to help General Electric in qualifying without making the required mandatory disclosures.

175.    Guidelines were issued by the Ministry of Finance (F.No. 24(1)/PF.II/07) titled ‘Guidelines for Pre-Qualification of Bidders for PPP Projects’. These guidelines along-with an enclosed Government of India endorsed model RFQ were forwarded by the Ministry of Finance to several Government of India departments including to the Chairman of the Railway Board on December 5, 2007. The corresponding certification and disclosure clauses recommended in the GOI model RFQ also establish that the certification/ disclosure provisions of the 2010 Marhowra RFQ were diluted to benefit General Electric so as to enable it to qualify without making the disclosures required by the GOI disclosure guidelines that were expressly made applicable to the tender.

176.    General Electric has clearly benefited from and taken advantage of the diluted disclosure requirements under the 2010 Marhowra RFQ.

177.    In contrast, General Electric was unable to comply with the more stringent disclosure requirements in the 2010 Madhepura RFQ. Therefore, in its technical bid for the 2010 Madhepura RFQ submitted on May 17, 2012 prepared while the petitioner was working for General Electric, General Electric limited its disclosures only to those disclosures ordinarily made by General Electric under US securities laws to the United States Securities and Exchange Commission (the SEC). General Electric has therefore not complied with the disclosure/ certification requirements in the 2010 Madhepura RFQ. General Electric’s short-listing/ qualification for the 2010 Madhepura tender was in violation of the RFQ and the Government of India disclosure guidelines dated July 13, 2001 and was therefore liable to be set aside.

178.    General Electric has also not complied with the Government of India disclosure guidelines dated July 13, 2001 in its technical bid for the 2010 Marhowra RFQ. General Electric has made no disclosures about the real bidder, General Electric Company, which provides the requisite net-worth, technical experience, technology, and intellectual property rights for General Electric’s bid that has been submitted using a shell company (GE Global Sourcing India Private Limited), a wholly-owned subsidiary that had zero experience of public contracts or manufacturing.

179.     In addition, the dilution of the disclosure/ certification requirements in the 2010 Marhowra RFQ in violation of the Government of India guidelines dated July 13, 2001 rendered Global RFQ No. 2010/ME(Proj)/4/ Marhoura / the invitation to bid issued by the Ministry of Railways unlawful, arbitrary, bad in law and liable to be quashed.

180.    Another important question that arises before this court is why were the disclosure/ certification requirements tightened/ strengthened in the 2010 Madhepura RFQ over the 2008 Madhepura RFQ? Was an objection raised within the Government that the 2008 Madhepura RFQ did not comply with the Government of India guidelines dated July 13, 2001? This would certainly appear to be the case for the changes made in the 2010 Madhepura RFQ. The question remains why similar changes were not introduced in the 2010 Marhowra RFQ, which also does not comply with the GOI disclosure guidelines dated July 13, 2001.

181.    As stated above, General Electric was unable/ unwilling to comply with the more stringent disclosure requirements under the 2010 Madhepura RFQ and was unable/ unwilling to provide the clear certifications as required by paragraphs 6, 11 and 13 of Appendix I of that RFQ.

182.    Soon after the petitioner started work at General Electric on April 23, 2010, she was informed that General Electric was unable to provide the clear certifications as required under the Madhepura RFQ application due on May 17, 2010. The petitioner was informed that General Electric would provide conditional/ limited certifications and would only disclose those adverse events that it was liable to disclose to the SEC under United States law in routine filings. Accordingly General Electric made modifications to the relevant provisions in Appendix I stating that the disclosures were limited to those ordinarily made to the SEC. The application for qualification/ technical bid submitted by General Electric for the 2010 Madhepura RFQ on May 17, 2010 therefore contained a modified appendix I and was liable to be treated as non-responsive because the required disclosures have not been made. General Electric had therefore not made the full disclosures required by the 2010 Madhepura RFQ. Even internally within GE, these modifications to the language of appendix I were viewed as risky. Despite this failure to comply with the disclosure requirements under the RFQ and the GOI disclosure guidelines, General Electric was qualified/ short-listed by the Railways Ministry for the 2010 Madhepura tender. The fact is that General Electric was unable/ unwilling to provide the certifications required under the 2010 Madhepura RFQ and the GOI guidelines dated July 13, 2001. General Electric’s RFQ application for the 2010 Madhepura tender was therefore non-responsive and also in violation of the aforesaid GOI guidelines dated July 13, 2001. General Electric should not have been prequalified for this tender by respondent 4. This is yet another reason why General Electric’s bid for this tender (the 2010 Madhepura tender) was liable to be rejected.    

183.    The reason General Electric was unable/ unwilling to provide the certifications required by the 2010 Madhepura RFQ is because paragraphs 6, 11, 12 and 13 of Appendix I to the RFQ requires disclosures for the Bidder’s Associate. The bidder is as pointed out, a shell company, GE Global Sourcing India Private Limited (respondent 7). Its Associate for the bid is General Electric Company (respondent 1). General Electric was unable/ unwilling to provide the certifications and disclosures required by the 2010 Madhepura RFQ under paragraphs 6, 11, 12 and 13 of Appendix I for General Electric Company. In its letter comprising the application for Qualification submitted for the Madhepura electric locomotive factory tender on May 17, 2010, General Electric has added the words “subject to” before paragraphs 11 and 13 and then provided an explanation that the disclosures were limited to matters required to be disclosed by General Electric under SEC guidelines. Disclosures under SEC guidelines and US securities law are essentially limited to disputes having a substantial financial impact upon the company. In the case of General Electric Company, the actual numbers that would have a significant financial impact work out to be quite high. Also, matters/ disputes considered normal and routine in the course of business do not require disclosure to the SEC unless they create a significant potential financial liability. The disclosures required by the GOI Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment’ and by the GOI recommended model RFQ are more stringent because they meet a different standard and serve a different purpose. Therefore GE Global Sourcing India Private Limited had not complied with the 2010 Madhepura RFQ requirement to provide clear certifications or make the required disclosures. GE Global Sourcing India Private Limited had also failed to comply with the requirements of the Government of India ‘Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment’. General Electric’s technical bid for the 2010 tender for the proposed electric locomotive factory at Madhepura was therefore non-responsive and non-compliant.

184.    General Electric could have made appropriate disclosures as part of its technical bid for the Madhepura tender in 2010, but did not. There are three possible reasons why General Electric did not make the required disclosures. First, the petitioner was told by Ms Tara Plimpton and Mr James Winget (both in-house lawyers for GE Transportation at the relevant time) that it was not possible for General Electric to compile the information required for these disclosures from its businesses spread all over the world. Second, the petitioner also learnt that General Electric had been disqualified/ blacklisted for a tender in a South American country, probably Brazil. It is possible that General Electric did not want to make disclosures that could be relied upon by the Railway Ministry to disqualify its bid. The third reason was that General Electric had made no disclosures in its 2008/2009 technical bid for the Marhowra tender and therefore any disclosures made by General Electric for the Madhepura 2010 tender would have raised red flags in the Ministry of Railways as to why these were not disclosed in 2009. The petitioner came across this reason in an email written by Mr. Pratyush Kumar to General Electric executives in GE Transportation’s US headquarters.

185.    As submitted, the 2010 RFQ for the proposed Marhowra diesel locomotive factory also did not comply with the GOI ‘Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment’. The disclosure/ certification requirements prescribed in this RFQ were a diluted version of the disclosure/ certification requirements prescribed by the GOI disclosure guidelines. This dilution was clearly intended to benefit General Electric. The 2010 Marhowra RFQ was ultra vires and violative of the GOI disclosure guidelines as it omitted disclosures/ certifications for “Associates” of the Bidder. As a result, General Electric avoided making disclosures for General Electric Company (respondent 1) and the de-facto bidder by using a shell company, GE Global Sourcing India Private Limited as the applicant. GE Global Sourcing India Private Limited being a shell company, and having never manufactured or supplied locomotives or any other product for that matter, had a clean slate and therefore made no disclosures in its technical bid for the 2010 Marhowra RFQ submitted on July 12, 2010.  This failure by General Electric to make disclosures about the de-facto and real Bidder (General Electric Company/ respondent 1) violated the GOI disclosure guidelines (Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment).

186.    The Global RFQ No. 2010/ME(Proj)/4/Marhoura/RFQ prepared by the Ministry of Railways, Government of India in March 2010 also violated the GOI ‘Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment’. The modifications made to this RFQ by Respondent 4 to dilute the disclosure requirements and to thereby benefit General Electric were unjustifiable, illegal and ultra-vires.  Global RFQ No. 2010/ME(Proj)/4/Marhoura/RFQ was therefore liable to be scrapped.

187.    For the reasons set out above, the 2010 Marhowra RFQ and the 2010 Madhepura RFQ were in violation of the Government of India Guidelines dated July 13, 2001 and also in violation of the Ministry of Finance Guidelines for Pre-qualification of Bidders for PPP Projects dated December 5, 2007 and with office memorandum No. F.No. 24(1)/PF.II/07 and were therefore illegal, ultravires and liable to be quashed/ scrapped.

188.    GE Global Sourcing India Private Limited (respondent 7), the applicant in the 2010 Madhepura electric locomotive factory tender, the 2010 Marhowra diesel locomotive factory tender, and the 2010 Dankuni tender is a shell company that has been fronted as the Applicant by General Electric Company to avoid providing the certifications required by the Government of India Disinvestment Guidelines (No. 6/4/2001DDII) dated July 13, 2001. GE Global Sourcing India Private Limited changed its registered office address in late July 2010 to AIFACS Building, 1 Rafi Marg, New Delhi 110001 India. Prior to that, the registered office of GE Global Sourcing India Private Limited was a Mumbai address and the address was “care of” the office address of another company which was a non-GE entity. Thus the technical bids submitted by GE Global Sourcing India Private Limited on May 17, 2010 and on July 2010 contained the registered office address which began with “C/o” followed by another company’s name which was not a GE company.

189.    The petitioner pointed out to Mr. Pratyush Kumar, Mr, Deepak Adlakha and other members of the GE Transportation team in India in the week commencing May 10, 2010 that it was inappropriate for GE Global Sourcing India Private Limited to use another company’s office as its registered office, especially when this entity was bidding for multi-billion dollar railway tenders. After the petitioner pointed this out, steps were taken to change the registered office for GE Global Sourcing India Private Limited and the change was finally approved in late July 2010. There are internal GE emails dating July 2010 exchanged between the petitioner and General Electric executives (including Mr. K R Radhakrishnan, the company secretary for GE India Industrial Private Limited) on the necessity to notify the change in the registered office of the Applicant to the Ministry of Railways as required by the RFQs for the three 2010 tenders (i.e., the Madhepura, Marhowra and Dankuni tenders).  

190.    That GE Global Sourcing India Private Limited was a shell company, at least in 2010, is also evident from its memorandum of association, its object clause and the description of its business activities. These came to the attention of the petitioner when she was reviewing the technical bid documents for GE’s bid for the Marhowra diesel locomotive factory tender in late June and early July 2010. Annex I to the Letter comprising the application for qualification submitted by GE contained “Details of Applicant”. Paragraph 2 of Annex I asks for a “Brief description of the Company including details of its main lines of business and proposed role and responsibilities in this Project.” The petitioner recalls that the business of GE Global Sourcing India Private Limited was described in paragraph 2 of Annex I as surveying catalogues on the internet or something similar. The petitioner pointed out to Mr. Ashfaq Nainar that the business description for the Applicant (GE Global Sourcing India Private Limited) showed that it was a shell company. Mr. Ashfaq Nainar agreed that that the Applicant was a shell company but stated that nothing could be done about this.

191.    The petitioner also recalls a conversation in late June 2010, with Ms. Himali Arora, the then CFO for GE Transportation in India, and Mr. Ashish Malhotra, a General Electric executive working on the locomotive tenders, during which Ms. Himali Arora admitted that GE Global Sourcing India Private Limited’s funds being limited could not be disclosed, and that buying the tender documents (the RFPs) for these locomotive tenders had depleted the funds in its bank balance.

192.    The reason why General Electric has used a shell company to front as the applicant for these locomotive tenders is because neither respondent 1 (General Electric Co.), nor respondent 6 (GE India Industrial Private Limited) were willing/ able to provide the certifications required by the RFQs to comply with the Government of India Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment bearing Office Memorandum No. 6/4/2001DDII and dated July 13, 2001. In failing to provide the mandated/ required disclosures and certifications in its technical bids for the 2010 RFQ for the electric locomotive factory and the 2010 RFQ for the diesel locomotive factory, and by using a shell company as the Bidder for this purpose, GE  engaged in “fraudulent practices” as defined by Clause 4.3 (b) and Clause 4.1.3 b) of these RFQs respectively. Both these clauses define a fraudulent practice thus: “fraudulent practice” means a misrepresentation or omission of facts or suppression of facts or disclosure of incomplete facts, in order to influence the Bidding Process”.
193.    The affidavit filed by the Railway Ministry on 14 January 2013 confirms that General Electric failed to make the mandatory disclosures in its technical bids for the 2010 ELF and DLF RFQs and that this was enabled by tailoring the RFQ language (with the help of corrupt Railway Ministry and Planning Commission officials) and by fraudulently using a shell company to front as the bidding entity and by modifying the language of the disclosure clauses in the technical bids.  


Issue of tailored eligibility criteria for ELF 2010 and 2013 tenders
194.    The eligibility criteria prescribed in the 2010 RFQ for the electric locomotive factory at Madhepura was tailored/ crafted to specifically permit General Electric to participate in this tender even though General Electric does not manufacture electric locomotives.  

195.    The reply affidavit filed by the Railway Ministry on 14 January 2013 seeks to mislead the court about the government’s reasons for diluting the eligibility criteria for ELF in 2010. This affidavit also misleads the court that companies which manufacture only diesel locomotives are somehow also eligible to set up a factory to manufacture electric locomotives.

196.    The new RFQs issued on 6 May 2013 continue to perpetuate these illegalities and this corruption.

197.    Paragraph 27 of Civil Writ Petition 1280 of 2012 states:
“The Electric Locomotive Tender is for setting up a factory to manufacture electric locomotives in Madhepura in Bihar. General Electric does not manufacture electric locomotives, yet the prequalification criteria and technical specifications in the 2010 RFQ for this tender have been deliberately tailored to allow GE to pre-qualify for this tender. A comparison of clauses 2.2.2A, 3.2.1 and 3.2.4 in RFQ No. 2010/ Elect. (Dev0 440/1(1) with those in the 2008 RFQ will provide evidence that the 2010 RFQ for the Electric Locomotive Tender was tailored to allow GE to bid. GE was ineligible under the 2008 RFQ for Electric Locomotives.”

198.    A tender for the same project (electric locomotive factory at Madhepura) was floated in 2008-2009. Under the terms of the 2008 RFQ, GE was ineligible for this Project and consequently it did not participate in the 2008/ 2009 tender. Technical bids were submitted by five companies in 2008 for this Project. These were Alstom (France), Bombardier (Germany), Siemens (Germany), a consortium comprising China-based CSR Zhuzhou Electric Loco Works and Monnet International, and a Japanese consortium comprising Mitsubishi, Kawasaki and Toshiba. The Ministry of Railways short listed three bidders in 2008 – Alstom, Bombardier and Siemens. The 2008/2009 tender was eventually cancelled in February 2009.

199.    A new tender for the same project (electric locomotive factory at Madhepura) was floated in 2010. The eligibility criteria was modified/ diluted from that prescribed in the 2008 RFQ and the requirement for previous experience in manufacture/ supply/ maintenance of electric locomotives that was present in the 2008 RFQ was left out in 2010. These changes/ dilutions benefited only one party, General Electric and allowed General Electric to participate in this tender even though it does not manufacture electric locomotives or even possess the technology to manufacture electric locomotives. At the same time, new conditions were inserted in the 2010 Madhepura RFQ aimed at disqualifying the Chinese and Japanese competition.

200.    Therefore in 2010, General Electric was rendered eligible to participate in the Madhepura tender even though it does not manufacture electric locomotives. Four bidders (Siemens, Alstom, Bombardier and General Electric) submitted technical bids for the 2010 Madhepura tender on May 17, 2010. All four were shortlisted for stage 2 of the Bid – the financial bid.  

201.    The following changes were made to the eligibility conditions in the 2010 Madhepura RFQ with the intent to render General Electric eligible:

(a)                deletion of the requirement that the bidder should have manufacturing experience of electric locomotives;
(b)               deletion of the requirement that the bidder have capability to manufacture electric locomotives with 1000HP per axle and experience of supply (sales) of such locomotives; and
(c)                deletion of the requirement that the bidder have maintenance experience for electric locomotives.

201.    General Electric does not manufacture electric locomotives and does not possess the technology to manufacture electric locomotives. A McKinsey document titled “20100522_Working session_V04.ppt” and dated May 22, 2010 that has been filed by the Petitioner alongwith her affidavit dated July 9, 2012 establishes that General Electric does not possess the technology, the expertise and the experience to manufacture electric locomotives.

202.    The following changes were made to the eligibility conditions in the 2010 Madhepura RFQ with the intent to render the Japanese and Chinese competition and other possible bidders (being manufacturers of electric locomotives using third party technology, even if under valid licence) ineligible:

                                                              i.                        introduction of the requirement that the bidder should have designed an IGBT based propulsion system; and
                                                            ii.                        prohibition of the use of third party technology even under valid licence.


203.    The changes introduced into the eligibility criteria for the Madhepura project in the 2010 RFQ resulted in the anomalous situation where experienced manufacturers of electric locomotives with licensed technology were barred from participation in the tender; whereas General Electric which does not manufacture electric locomotives, has no recent experience or expertise in the manufacture of such locomotives, and does not possess the technology (whether self-developed or licensed) to manufacture electric locomotives, was not only been rendered eligible under the tailored eligibility criteria in the 2010 Madhepura RFQ but was also short-listed. The Chinese and Japanese consortia who bid for this project in 2008 were outright disqualified. The cumulative effect of the modifications to the eligibility conditions introduced into the 2010 Madhepura RFQ was that only General Electric, Siemens, Alstom and Bombardier were able to meet these conditions. No existing Indian manufacturer (for example BHEL) was eligible.

204.    The tailoring of eligibility criteria in the 2010 Madhepura RFQ aimed at allowing General Electric to submit a bid even though General Electric does not manufacture electric locomotives, is very similar to what happened in Pakistan tenders for purchase of locomotives between 2009 to the present. Very similar allegations of tailor-made tenders and corruption were made to Pakistani authorities by other locomotive manufacturers against General Electric and corrupt Pakistan Railways officials. These complaints were accepted by the Lahore High Court and by the Pakistan Supreme Court. The tainted tenders were scrapped and the Pakistan courts have directed Pakistan Railways to re-tender the procurement of locomotives in a transparent manner and through international competitive bidding wherein all international locomotive manufacturers will be invited to make offers for supply of locomotives. I point out that Mr. Ashfaq Nainar from General Electric (who the petitioner worked with during her time at General Electric) was the main sales executive from General Electric pursuing both the Pakistani and the Indian tenders.

205.    For the convenience of the court, the petitioner reproduces below the relevant clauses on eligibility criteria from the 2008 and 2010 Madhepura RFQs:

Clause 2.2.1 (e) of the 2008 Madhepura RFQ provided:
“The Applicant, in case of a single entity, shall be a manufacturer of IGBT based Propulsion System and Mechanical System of Electric Locomotives/High Speed Train Sets, or in the case of a Consortium, the Lead Member, shall either be a manufacturer of IGBT based Propulsion System or of Mechanical System of Electric Locomotives/High Speed Train Set and other member shall be a manufacturer of the other system.”

Clause 2.2.1 (f) of the 2008 Madhepura RFQ provided:
“The Applicant should have the capability of producing electric locomotives with at least 1, 000 (one thousand) horsepower per axle and shall have supplied at least 10 (ten) such electric locomotives during the past 3 (three) years.”

Clause 2.2.2 (A) of the 2008 Madhepura RFQ prescribed the Technical Capacity eligibility criteria:
“Technical Capacity: For demonstrating technical capacity and experience (the “Technical Capacity”), the Applicant shall, over the past 5 (five) financial years preceding the Application Due Date, have:
(i) designed, manufactured and supplied Electric Locomotives comprising Eligible Projects; and/ or
(ii) designed, manufactured and supplied High Speed Train Sets comprising Eligible Projects.
such that the sum total of the horse power of the above supplies exceeds 1,800,000 (one million eight hundred thousand) horse power (the “Threshold Technical Capability”)”

Clause 2.2.3 of the 2008 Madhepura RFQ provided the maintenance experience required for prequalification:
“Maintenance Experience: The Applicant should have maintained 50 (fifty) or more mainline Electric Locomotives of 4,000 (four thousand) or higher horse power / High Speed Train Sets , by way of comprehensive maintenance contract(s), including supply of material and labour, for a duration of five years or more. In the absence of such experience, the Applicant shall undertake to enter into a maintenance agreement with an entity having equivalent experience, failing which the Agreement shall be liable to termination.”

Clauses 3.2 and 3.3 of the 2008 RFQ are also relevant and are set out below:
“3.2 Technical Capacity for purposes of evaluation
3.2.1 Subject to the provisions of Clause 2.2, the following categories of experience would qualify as Technical Capacity and eligible experience (the "Eligible Experience") in relation to eligible projects as stipulated in Clauses 3.2.3 and 3.2.4 (the "Eligible Projects"):
Category 1: Production and supply of 5 (five) Electric Locomotives of at least 6,000 (six thousand) horse power each, employing proven IGBT technology, to a single purchaser.
Category 2: Production and supply of 2 (two) High Speed Train Sets of at least 6,000 (six thousand) horse power each, employing proven IGBT technology, to a single purchaser.
Category 3: Production and supply of 5 (five) Electric Locomotives of at least 4,000 (four thousand) horse power each, employing proven IGBT technology, to a single purchaser.
Category 4: Production and supply of 2 (two) High Speed Train Sets of at least 4,000 (four thousand) horse power each, employing proven IGBT technology, to a single purchaser.
3.2.2 Eligible Experience in respect of each category shall be measured only for Eligible Projects.
3.2.3 For a project to qualify as an Eligible Project under Categories 1, 2, 3 and 4, the entity claiming experience should have held, in the company supplying the Electric Locomotives / High Speed Train sets comprising the Eligible Project, a minimum of 26% equity during the period for which Eligible Experience is being claimed.
3.2.4 For qualification, the Applicant shall provide details of 2 (two) or more Eligible Projects comprising of Electric Locomotives, delivering 1,000 (one thousand) horse power or more per axle.
3.2.5 The Applicant shall quote experience in respect of a particular Eligible Project under any one category only, even though the Applicant (either individually or along with a member of the Consortium) may have played multiple roles in the cited project. Double counting for a particular Eligible Project shall not be permitted in any form.
3.2.6 Applicant’s experience shall be measured and stated in terms of a score (the "Experience Score"). The Experience Score for a given category would be one point for each Electric Locomotive or High Speed Train Sets included in an Eligible Project and then multiplied by the applicable factor in Table 3.2.6 below. In case the Applicant has experience across different categories, the score for each category would be computed as above and then aggregated to arrive at his Experience Score.

Table 3.2.6: Factors for Experience across categories

Factor
Category 1
1.00
Category 2
1.00
Category 3
0.50
Category 4
0.50


3.2.7 Experience for any activity relating to an Eligible Project shall not be claimed by two or more Members of the Consortium. In other words, no double counting by a Consortium in respect of the same experience shall be permitted in any manner whatsoever.
3.3 Details of Experience
3.3.1 The Applicant should furnish the details of Eligible Experience for the past 5 (five) years preceding the Application Due date.
3.3.2 The Applicants must provide the necessary information relating to Technical Capacity as per format at Annex-II of Appendix-I.
3.3.3 The Applicant should furnish the required Project-specific information and evidence in support of its claim of Technical Capacity, as per format at Annex-IV of Appendix-I.”


206.    As stated earlier, General Electric was therefore ineligible to participate in the 2008 Madhepura RFQ.

207.    In the 2010 Madhepura RFQ, Clause 2.2.1 (e) was modified to read as under:
“The Lead Member of the Consortium or the single entity Applicant, as the case may be, (including its Associates) shall have designed an IGBT based Propulsion System of railway locomotives/ High Speed Train Sets of 4,000 horsepower or more and manufactured the same comprising Eligible Projects. An Applicant who has procured the design from a third party (not being an Associate) shall not be eligible hereunder. In the event that an Applicant has developed its own technology, following the acquisition of technology from a third party it shall certify that the proposed technology is its own property and does not infringe on the intellectual property rights of a third party: Provided, however, that if such technology was acquired from a third party within a period of 10 (ten) years prior to the Application Due Date, the Applicant shall also furnish a certificate from such third party that it has no intellectual property rights or claims on such technology.”

208.    In the 2010 Madhepura RFQ, Clause 2.2.1 (f) was modified to read as under:
“The Applicant (including its Associates) shall have executed at least one Eligible Project each in 3 (three) countries.”

In the 2010 Madhepura RFQ, Clause 2.2.2 (A) prescribing the Technical Capacity eligibility criteria was modified to read as under:

“Technical Capacity: For demonstrating technical capacity and experience (the “Technical Capacity”), the Applicant shall, over the past 5 (five) financial years preceding the Application Due Date, have:
(i) designed and produced the railway locomotives, including their Propulsion Systems, for supply comprising Eligible Projects; and/ or
(ii) designed and produced the High Speed Train Sets, including their Propulsion Systems, for supply comprising Eligible Projects.
such that the total horse power of the above supplies exceeds 1,800,000 (one million and eight hundred thousand) horse power (the “Threshold Technical Capacity”).
Provided that at least one third of the Threshold Technical Capacity shall be from Eligible Projects which were supplied at least 2 (two) years prior to the Application Due Date.
Provided further that the Threshold Technical Capacity shall include at-least 10 (ten) railway locomotives from Eligible Projects in Category 1 specified in Clause 3.2.1.
For the avoidance of doubt, in case of Eligible Projects where part supplies of railway locomotives/High Speed Train Sets were made prior to the aforesaid period of 5 (five) financial years preceding the Application Due Date and balance supplies were made in the aforesaid period, only those railway locomotives/High Speed Train Sets which were supplied in the aforesaid period of 5 (five) financial years preceding the Application Due Date shall be considered for computation of Eligible Projects hereunder.”

209.    Clauses 3.2 and 3.3 of the 2010 Madhepura RFQ are also relevant and are set out below:
“Technical Capacity for purposes of evaluation
3.2.1 Subject to the provisions of Clause 2.2, the following categories of experience would qualify as Technical Capacity and eligible experience (the "Eligible Experience") in relation to eligible projects as stipulated in Clauses 3.2.3 and 3.2.4 (the "Eligible Projects"):
Category 1: Supply of 5 (five) railway locomotives of at least 6,000 (six thousand) horse power each, employing IGBT technology, to a single purchaser.
Category 2: Supply of 2 (two) High Speed Train Sets of at least 6,000 (six thousand) horse power each, employing IGBT technology, to a single purchaser.
Category 3: Supply of 5 (five) railway locomotives of at least 4,000 (four thousand) horse power each, employing IGBT technology, to a single purchaser.
Category 4: Supply of 2 (two) High Speed Train Sets of at least 4,000 (four thousand) horse power each, employing IGBT technology, to a single purchaser.
3.2.2 Eligible Experience in respect of each category shall be measured only for Eligible Projects.
3.2.3 For a project to qualify as an Eligible Project under Categories 1, 2, 3 and 4, the entity claiming experience should have held, in the company supplying the railway locomotives / High Speed Train Sets comprising the Eligible Project, a minimum of 26% (twenty six per cent) equity during the period for which Eligible Experience is being claimed.
3.2.4 For a project to qualify as an Eligible Project under Categories 1, 2, 3 and 4, the Applicant should have produced the railway locomotives/High Speed Train Sets, including their Propulsion System, based on a design developed by itself (including an Associate) and not procured from a third party, as stipulated in Clause 2.2.1 (e).
3.2.5 The Applicant shall quote experience in respect of a particular Eligible Project under any one category only, even though the Applicant (either individually or along with a member of the Consortium) may have played multiple roles in the cited project. Double counting for a particular Eligible Project shall not be permitted in any form.
3.2.6 An Applicant’s experience shall be measured and stated in terms of a score (the "Experience Score"). The Experience Score shall be computed as one point for each railway locomotive or High Speed Train Set included in an Eligible Project and then multiplied by the applicable factor in Table 3.2.6 below. In case the Applicant has experience across different categories, the score for each category would be computed as above and then aggregated to arrive at its Experience Score.

Table 3.2.6: Factors for Experience across categories Categories
                                                                                                                 
                            

Factor
Category 1
1.25
Category 2
1.00
Category 3
0.75
Category 4
0.50
                                                                                    

3.2.7 Experience for any activity relating to an Eligible Project shall not be claimed by two or more Members of the Consortium. In other words, no double counting by a Consortium in respect of the same experience shall be permitted in any manner whatsoever.

3.3 Details of Experience
3.3.1 The Applicant should furnish the details of Eligible Experience for the last 5 (five) financial years immediately preceding the Application Due Date.
3.3.2 The Applicants must provide the necessary information relating to Technical Capacity as per format at Annex-II of Appendix-I.
3.3.3 The Applicant should furnish the required Project-specific information and evidence in support of its claim of Technical Capacity, as per format at Annex – IV of Appendix-I.”

          Issue of definition of Corrupt Practice in Bid Documents

210.    As a result of its influence in the electric division of the Railway Board, General Electric managed to have the relevant clauses (dealing with the definition of a corrupt practice) in the 2010 RFQ for the proposed electric locomotive factory at Madhepura diluted.  Copies of both the 2008 RFQ for the proposed electric locomotive factory at Madhepura and the 2010 RFQ for the proposed electric locomotive factory at Madhepura have been filed by the Petitioner. A comparison of the relevant clauses in the 2008 Madhepura RFQ and the 2010 Madhepura RFQ can be seen in the chart below.

Chart comparing relevant clauses in the Madhepura RFQs for 2008 and 2010

Clause
Madhepura 2008 RFQ
Madhepura 2010 RFQ

2.2.1 (d)
An Applicant shall be liable for disqualification if any legal, financial or technical adviser of the Authority in relation to the Project is engaged by the
Applicant in any manner for matters related to or incidental to the Project.
An Applicant shall be liable for disqualification if any legal, financial or technical adviser of the Authority in relation to the Project is engaged by the Applicant, its Member or any Associate thereof, as the case may be, in any manner for matters related to or incidental to the Project. For the avoidance of doubt, this disqualification shall not apply where such adviser was engaged by the Applicant, its Member or Associate in the past but its assignment expired or was terminated 6 (six) months prior to the date of issue of this RFQ. Nor will this disqualification apply where such adviser is engaged after a period of 3 (three) years from the date of commercial operation of the Project.
Explanation: In case an Applicant is a Consortium, then the term Applicant as used in this Clause 2.2.1, shall include each Member of such Consortium.
4.3 (a)
“corrupt practice” means (i) the offering, giving, receiving, or soliciting, directly or indirectly, of anything of value to influence the actions of any person connected with the Bidding Process (for avoidance of doubt, offering of employment to or employing or engaging in any manner whatsoever, directly or indirectly, any official of the Authority who is or has been associated in any manner, directly or indirectly with the Bidding Process or the LOA or has dealt with matters concerning the Agreement or arising therefrom, before or after the execution thereof, at any time prior to the expiry of one year from the date such official resigns or retires from or otherwise ceases to be in the service of the Authority, shall be deemed to constitute influencing the actions of a person connected with the Bidding Process); or (ii) engaging in any manner whatsoever, whether during the Bidding Process or after the issue of the LOA or after the execution of the Agreement, as the case may be, any person in respect of any matter relating to the Project or the LOA or the Agreement, who at any time has been or is a legal, financial or technical adviser of the Authority in relation to any matter concerning the Project;
“corrupt practice” means (i) the offering, giving, receiving, or soliciting, directly or indirectly, of anything of value to influence the actions of any person connected with the Bidding Process (for avoidance of doubt, offering of employment to, or employing, or engaging in any manner whatsoever, directly or indirectly, any official of the Authority who is or has been associated in any manner, directly or indirectly, with the Bidding Process or the LOA or has dealt with matters concerning the Agreement or arising therefrom, before or after the execution thereof, at any time prior to the expiry of one year from the date such official resigns or retires from or otherwise ceases to be in the service of the Authority, shall be deemed to constitute influencing the actions of a person connected with the Bidding Process); or (ii) save and except as permitted under sub clause (d) of Clause 2.2.1, engaging in any manner whatsoever, whether during the Bidding Process or after the issue of the LOA or after the execution of the Agreement, as the case may be, any person in respect of any matter relating to the Project or the LOA or the Agreement, who at any time has been or is a legal, financial or technical adviser of the Authority in relation to any matter concerning the Project;

211.    In 2008, Clauses 2.2.1 (d) and 4.3 (a) of the Madhepura RFQ were identical to Clauses 2.2.1 (d) and 4.1.3 (a) clauses in the 2010 Marhowra RFQ. In 2010, however, Clauses 2.2.1 (d) and 4.3 (a) of the Madhepura RFQ were diluted to permit a bidder to engage an adviser to the Indian Railways six months after the end of the adviser’s engagement with the Indian Railways. This kind of diluted ban on engagement of the advisers retained by the tendering Authority is very unusual and improper and immediately raises a red flag of corruption. The stricter version of the clauses found in the 2010 Marhowra RFQ and the 2008 Madhepura RFQ is the norm. Any deviation from the norm needs explanation. Further a period of six months between the end of an adviser’s advisory engagement and his/ her dealings with a bidder is too short a gap and again raises a red flag. The dilution of these clauses in the 2010 Madhepura RFQ by Respondent 4 is unjustifiable. These changes were introduced by corrupt officers of Respondent 4 with the ulterior, corrupt and dishonest intent and motive to benefit GE, and to allow GE to engage in corrupt dealings with former advisors for the Project like Mr. Vinod Sharma who had influential links within the Railways Ministry and the Planning Commission. 

212.    Clause 2.2.1 (d) of the 2010 Madhepura RFQ even permits the bidder to engage an adviser to the Indian Railways, after three years from the date commercial operations for the Project commence. There is no requirement for even a six month gap in such case. This again is an unjustifiable dilution of normal RFQ terms, and appears intended to allow GE to employ corrupt Indian Railways officials (like Mr. Ved Mani Tiwari) at a later date as quid pro quo for the assistance rendered by these officials to GE for winning the tender.

213.    The new RFQs issued on 6 May 2013 also contain the same defect.

214.    The Railway Ministry affidavit dated 16 January 2013 has produced an amended model RFQ issued by the Ministry of Finance on 18 May 2009. This document also contains a dilution of the consultant conflict of interest clause. It is submitted that this dilution is unacceptable, unjustifiable, unlawful, arbitrary and malafide and that it is intended to promote corruption.

Issue of bigger conspiracy

215.    The above facts provide evidence of a deeper conspiracy. General Electric was principally interested in the diesel locomotive factory tender. It had lost this tender once already in 2009. In 2010, General Electric expected competition from EMD (which because of its acquisition by Caterpillar in 2010 had shown interest in participating and had access to the required financial and other resources). General Electric had not managed to find a replacement for Mr. Shakeel Ahmed who was General Electric’s “focal point” within the mechanical directorate of the Railways Ministry in 2009. General Electric did not have sufficient clout within the mechanical directorate needed to influence the bid and the bidding documents. Also, EMD would have kept a close watch on General Electric’s interactions with Railway Ministry officials in the mechanical directorate.

216.    General Electric got around these hurdles by cultivating Ministry officials in the electric directorate and by influencing the bid process and the bid documents for the electric locomotive factory tender. General Electric was not considered a serious bidder for the electric locomotive factory tender (even though it prequalified) by the other short-listed bidders (Siemens, Alstom and Bombardier). General Electric’s interactions with Railway officials from the electric directorate and its influence on the electric locomotive tender RFQ and RFP would therefore have gone un-noticed or un-challenged. EMD would not have kept a tab on General Electric’s interactions with the electric directorate or on General Electric’s lobbying for the electric locomotive factory tender.

217.    Not being able to or not wanting to appear to influence the diesel locomotive tender directly (that General Electric was actually interested in), General Electric took the circuitous route and got pliant electric directorate officials to introduce favourable changes to the electric locomotive RFP terms. Once this was achieved, General Electric could then more easily/ subtly push for the same changes to be introduced into the diesel locomotive RFP terms invoking the principle of parity.

218.    General Electric was never really interested in bidding for the electric locomotive factory as General Electric does not make electric locomotives. General Electric’s bid for the electric locomotive tender was non-serious. This bid’s real purpose seems to have been to create a smoke-screen for General Electric’s efforts to influence the diesel locomotive bid process. However, Mr. Pratyush Kumar’s cultivation of electric directorate officials (like Mr. Ved Mani Tiwari) was so successful that Mr. Pratyush Kumar started to pitch for a real bid by GE for the electric locomotive factory. This is when McKinsey was called in at the end of May 2010 to make recommendations on whether General Electric should participate in the electric locomotive factory tender. By mid June 2010, Mr. Jeffrey Immelt had taken the final decision that General Electric would not bid for this tender.

219.    There is substantial evidence that the bid process and the bid documents for the two impugned tenders were manipulated and tailored by Government of India officials from the Planning Commission and the Railways Ministry with the intent to favour and benefit General Electric over other bidders and prospective bidders. The evidence also discloses that General Electric had managed to corrupt Indian Railways officials in the electric division and was being helped by pliant officials from that division. As a result, General Electric managed to have the bid documents pertaining to the 2010 tender for the electric locomotive factory tailored more easily and extensively than it was able to manage in respect of the 2010 tender for the diesel locomotive factory which was being managed by a separate division (the mechanical division).

Larger public interest issues

220.    The petitioner submits that the 2010 tenders and the 2013 tenders for both the Madhepura and the Marhowra locomotive factory Projects have been tailored to keep Indian potential suppliers for such locomotives out of the fray. India has been self-sufficient in locomotive manufacture since independence. The indigenous locomotive manufacture industry provides jobs to a large number of Indians. Public sector units like BHEL and Railway Production units like Chittaranjan Locomotive Works, Diesel Locomotive Works and others produce high quality locomotives and are continuously working to improve technology. Recently, DLW has with EMD’s assistance indigenously developed a new high powered locomotive with the latest technology.

221.    While the petitioner does not deny that the Indian Railways’s locomotive needs are likely to increase or that the Indian Railways must seek technological improvements, the petitioner submits that the public interest aspects of giving enormous incentives and concessions to foreign locomotive manufacturers to establish factories in India on government land with assured long-term orders guaranteed by the Government of India needs to be examined more closely.

222.    The petitioner points out that the proposed locomotive factory Projects at Marhowra and Madhepura do not involve technology transfer to the joint venture company in which the GOI will be a party. China has insisted upon technology transfer in its locomotive supply contracts with General Electric. The draft contracts for the Madhepura and Marhowra factories create enormous risks for the Indian Railways in case disputes arise with the foreign joint venture partner. Even though the GOI can take over the factories in such case, it will have no access to the technology needed to continue manufacture of locomotives in these factories and to continue to maintain the locomotives already supplied. 

223.    Further, General Electric plans to use the joint venture company under these Projects merely as an assembly unit. A substantial portion of design and manufacturing activities of the technology intensive components of these locomotives will take place in the United States. General Electric intends to use its Indian facilities only for assembly purposes.

224.    The Government of India needs to consider the long-term impact of the proposed Madhepura and Marhowra Projects on the Indian locomotive industry and the impact on Indian jobs in this sector. How will the proposed factories at Madhepura and Marhowra affect DLW, CLW, BHEL and other indigenous potential locomotive suppliers? Do these factories and long-term supply orders not dis-incentivise BHEL, CLW and DLW to continue to improve productivity and technology? Will these locomotive factories at Marhowra and Madhepura not kill the indigenous locomotive industry? Is it in Indian interest to become so dependent upon locomotive supplies by a foreign manufacturer? What is the potential for disputes in the proposed JVs? Are the projected estimates for locomotive needs by the Indian Railways accurate? If BHEL or a similar Indian unit were given the opportunity to set up a factory on Railway land with all the incentives/ concessions being offered to General Electric, what kind of boost would this give to the Indian locomotive industry including the potential for export? Should the huge advantages of the assured Indian Railways market for locomotives be completely handed over to a single foreign MNC? Is this in the strategic interest of India from the perspective of boosting Indian industry? How could this valuable asset (an assured market for locomotives) be more strategically utilised by the Railway Ministry and the GOI in Indian interest?

225.    While the petitioner is all for open competition and while international firms like General Electric should be given the opportunity to participate in such tenders, can the GOI justify drafting these tender documents so that all Indian potential bidders are kept out. Also can the GOI justify drafting these tenders so that many foreign suppliers/ consortiums who are potential suppliers are also kept out.

226.    The Indian Railways is under a lot of financial strain. It does not have enough funds to even modernise its safety infrastructure. In such a situation, is it advisable for the GOI to tie up Indian Railway funds in long-term locomotive purchase contracts? The GOI could very well ask GE to set up a locomotive factory on its own and General Electric would be able to participate in all Indian tenders for locomotive purchases.

227.    The DLF and ELF Projects including the new RFQs for these Projects issued on 6 May 2013 violate the proposed procurement policy of the Government of India which disapproves of single-source long term procurement contracts.

Issue of General Electric corruption in Pakistan and use of Petitioner by General Electric to approve suspicious third party contract

228.    The petitioner also points out that General Electric corruption in India is not an isolated case. General Electric has faced accusations of corruption in Pakistan locomotive tenders over the last 4 years. The petitioner submits that she was asked to approve a third party contract for General Electric in Pakistan and it is very likely that this contract was used by General Electric to pay bribes to Pakistan government officials in connection with the Pakistan locomotive tenders.  The petitioner did approve such third party contract in Pakistan while she was employed by General Electric.

Subversion of writ proceedings and attempt to defeat the ends of justice and to subvert the rule of law by covering up forgery, fraud, corruption and bribery and by attempting to protect General Electric from the lawful consequences of its illegal and corrupt activities/ actions

229.    As is clear from the list of dates provided, the combined effect of the orders of this court and the actions of the PMO, the Planning Commission, the Railway Ministry, the Finance Ministry, Prime Minister Manmohan Singh, Finance Minister P Chidambaram, Mr Montek Singh Ahluwalia and Mr Pavan Bansal is that by the time this matter is heard on or after 18 July 2013, the new Bidding Process initiated on 6 May 2013 would be complete.

230.    This is a clear attempt to defeat the ends of justice, to subvert the rule of law and to defeat and subvert these writ proceedings by over-reaching the court.

231.    The following questions arise and must be answered by the Railway Ministry and the PMO who are respondents 4 and 5 respectively.

(i)                 Is the Prime Minister, Dr Manmohan Singh aware of these writ proceedings and of the complaints, issues and evidence before this court in connection with the complaints of corruption, fraud, forgery, bribery, illegal lobbying, tailoring of bid documents, and other corrupt, illegal, malafide and improper practices in connection with the ELF and DLF Projects and the 2010 tenders for these Projects?
(ii)               Is the Finance Minister (Mr P Chidambaram) aware of these writ proceedings and of the complaints, issues and evidence before this court in connection with the complaints of corruption, fraud, forgery, bribery, illegal lobbying, tailoring of bid documents, and other corrupt, illegal, malafide and improper practices in connection with the ELF and DLF Projects and the 2010 tenders for these Projects?
(iii)             The petitioner has accused Mr Montek Singh Ahluwalia of being implicated in the corrupt practices favouring General Electric in connection with the ELF and DLF Projects and tenders. The petitioner believes that Mr Montek Singh Ahluwalia is certainly personally aware of these writ proceedings but a formal answer to this question is required. Therefore is the Deputy Chairman of the Planning Commission (Mr Montek Singh Ahluwalia) aware of these writ proceedings and of the complaints, issues and evidence before this court in connection with the complaints of corruption, fraud, forgery, bribery, illegal lobbying, tailoring of bid documents, and other corrupt, illegal, malafide and improper practices in connection with the ELF and DLF Projects and the 2010 tenders for these Projects?
(iv)             Is Mr Pavan Kumar Bansal (Railway Minister until 3 May 2013) aware of these writ proceedings and of the complaints, issues and evidence before this court in connection with the complaints of corruption, fraud, forgery, bribery, illegal lobbying, tailoring of bid documents, and other corrupt, illegal, malafide and improper practices in connection with the ELF and DLF Projects and the 2010 tenders for these Projects?
(v)               Did Mr Pavan Kumar Bansal (then Railway Minister) attend the Cabinet meeting on 1 May 2013 at which the decision was taken to cancel the impugned tenders and to immediately proceed to issue new RFQs for both the ELF and DLF Projects?
(vi)             Is Mr C P Joshi (current Railway Minister) aware of these writ proceedings and of the complaints, issues and evidence before this court in connection with the complaints of corruption, fraud, forgery, bribery, illegal lobbying, tailoring of bid documents, and other corrupt, illegal, malafide and improper practices in connection with the ELF and DLF Projects and the 2010 tenders for these Projects?
(vii)           Were Dr Manmohan Singh, Mr P Chidambaram, Mr Montek Singh Ahluwalia and Mr Pavan Kumar Bansal aware of these writ proceedings and of the complaints, issues and evidence before this court in connection with the complaints of corruption, fraud, forgery, bribery, illegal lobbying, tailoring of bid documents, and other corrupt, illegal, malafide and improper practices in connection with the ELF and DLF Projects and the 2010 tenders for these Projects when the IGOM was constituted on the directions of the Prime Minister, Dr Manmohan Singh on March 8, 2013 and when the IGOM met and deliberated on 22 April 2013?
(viii)         Were the officers from the Railway Ministry, the Planning Commission, the PMO and the Finance Ministry who prepared the detailed background note and other documents considered by the IGOM on 22 April 2013, aware  of these writ proceedings and of the complaints, issues and evidence before this court in connection with the complaints of corruption, fraud, forgery, bribery, illegal lobbying, tailoring of bid documents, and other corrupt, illegal, malafide and improper practices in connection with the ELF and DLF Projects and the 2010 tenders for these Projects? Were the complaints, issues and evidence raised/ produced in these writ proceedings placed before the IGOM or included in the detailed background note that was prepared for the IGOM?
(ix)             Which officers prepared the detailed background note considered by the IGOM on 22 April, 2013?
(x)               Who prepared the note submitted by the Railway Ministry to the Cabinet on 26 April, 2013? Were the complaints, issues and evidence raised/ produced in these writ proceedings placed before the Cabinet in the note that was put up by the Railway Ministry for approval by the Cabinet 26 April, 2013? Did this note mention the pendency of these writ proceedings? 
(xi)             Was the Cabinet aware of the pendency of these writ proceedings on 1 May 2013 when it considered the proposal of the Railway Ministry and approved the cancellation of the 2010 tenders for the ELF and DLF and issued directions for issuance of new RFQs for these two Projects and set 6 May 2013 as the date for the issuance of the RFQs and 6 July 2013 as the date for the issuance of the RFPs? Was the Cabinet aware of the complaints, issues and evidence before this court in connection with the complaints of corruption, fraud, forgery, bribery, illegal lobbying, tailoring of bid documents, and other corrupt, illegal, malafide and improper practices in connection with the ELF and DLF Projects and the 2010 tenders for these Projects, when it took its decision dated 1 May 2013?
(xii)           Does the Railway Ministry intend to issue the 2013 RFQs for the ELF and the DLF to General Electric Company, to GE India Industrial Private Limited, to GE Global Sourcing India Private Limited or to any associate company of General Electric Company?
(xiii)         Does the Railway Ministry intend to receive bids under the 2013 RFQs for the ELF and the DLF Projects from General Electric Company, GE India Industrial Private Limited, GE Global Sourcing India Private Limited or any other associate company of General Electric Company?
(xiv)         Can the Prime Minister Dr Manmohan Singh, Mr Montek Singh Ahluwalia, Mr Pavan Kumar Bansal, Mr C P Joshi, Mr P Chidambaram, the Railway Ministry, the Finance Ministry, the PMO, the Planning Commission, the Cabinet Secretary and the Union Cabinet explain the inordinate hurry in issuing new RFQs after cancelling the 2010 tenders without waiting for the outcome of this writ petition and without a final conclusion being reached on the complaints before this court of corruption, forgery, bribery, fraud, illegal lobbying and other illegal activities engaged in by General Electric in connection with the ELF and DLF Projects and the 2010 tenders for these Projects?
(xv)           Can the Prime Minister Dr Manmohan Singh, Mr Montek Singh Ahluwalia, Mr Pavan Kumar Bansal, Mr C P Joshi, Mr P Chidambaram, the Railway Ministry, the Finance Ministry, the PMO, the Planning Commission, the Cabinet Secretary and the Union Cabinet justify the decision to issue new RFQs to General Electric or its Associate companies while complaints of corruption, forgery, bribery, fraud, illegal lobbying, and other illegal activities against General electric are pending hearing before this Court?
(xvi)         Can the PMO (respondent 5) disclose what legal standing does an Informal Group of Ministers have and who will be liable for the malafide, arbitrary or unreasonable decision taken by this IGOM in recommending that new RFQs be issued for the ELF and DLF Projects even while these writ proceedings are pending hearing?
(xvii)       Can the PMO (respondent 5) and the Railway Ministry (respondent 4) inform the court as to how (in view of the complaints and evidence against General Electric of corruption, fraud and other undesirable practices before this court in connection with the 2010 Madhepura and Marhowra tenders), the Government of India proposes to comply with  Clause 4.1.2 of the 2010 Marhowra RFQ which provides:
“Without prejudice to the rights of the Authority under Clause 4.1.1 hereinabove, if an Applicant is found by the Authority to have directly or indirectly or through an agent, engaged or indulged in any corrupt practice, fraudulent practice, coercive practice, undesirable practice or restrictive practice during the Bidding Process, such Applicant shall not be eligible to participate in any tender or RFQ issued by the Authority during a period of 2 (two) years from the date such Applicant is found by the Authority to have directly or indirectly or through an agent, engaged or indulged in any corrupt practice, fraudulent practice, coercive practice, undesirable practice or restrictive practice, as the case may be.”
(xviii)     Can respondents 4 and 5 (the PMO and the Railway Ministry) inform the court if they intend to blacklist General Electric and its associate companies from participating in any Railway tender for a period of two years?

232.    The affidavit of Mr Nihar Ranjan Dash dated 15 May, 2013 also raises the following questions:

(i)                 What changes were made to the final bid documents for the ELF over and above the Cabinet approved PCMA in the 2010 Bidding Process?
(ii)               Paragraph 5 of this affidavit states that meetings of the Empowered Committee were not convened for the DLF in the 2010 tender and that no major changes were introduced into the BID documents/ PCMA for the DLF Project in 2010.
(iii)             Can the Ministry of Railways explain the reference to Due Diligence in paragraph 5 of this affidavit? What was the purpose and scope of this Due Diligence and what activities were undertaken as part thereof?
(iv)             Paragraph 6 of this affidavit states that subsequently the Railway Ministry decided to review the Bid Documents and to harmonise the Bid Documents of ELF and DLF? There is again a reference to “internal due diligence” as a result of which revised bid documents were prepared.
(v)               The affidavit dated 15 May 2013 suggests that the Planning Commission did not agree with the changes to the Bid documents for ELF and DLF proposed by the Railways and that the IGOM was constituted by the PMO at the behest of the Planning Commission to over-rule the Railways on the changes proposed by the Railways as a result of its due diligence.
(vi)             Can the PMO and the Cabinet Secretary explain why the Planning Commission continues to be permitted to interfere with the implementation of a Railway Ministry project especially when the evidence shows that Mr Montek Singh Ahluwalia was/ is favoring the award of DLF Project to General Electric?
(vii)           Can the PMO and the Railway Ministry produce the entire documents and issues that were placed before this IGOM/?
(viii)         Paragraph 8(i) of the affidavit states that the IGOM decided “inter-alia” that the Railway Ministry will apply to the Cabinet for approval to revise the eligibility criteria for the RFQs to be issued over the 2008 and 2010 RFQs and provide reasons for these revisions. Did the IGOM decide on the proposed revisions to the eligibility criteria? What are these proposed revisions and why are these being made?
(ix)             Paragraph 8(i) of the affidavit also states that the IGOM decided that the Railway Ministry will seek Cabinet approval to process fresh RFQs on account of changes in the scope of work. What were these changes in the scope of work? Did the IGOM recommend cancellation of the 2010 tenders and for what reasons?
(x)               Paragraph 8(i) of the affidavit also states that the IGOM took decisions on 13 issues relating to the changes to the Bid Documents/ PCMAs on which the Planning Commission differed with the Railway Ministry. What are these 13 issues and what decisions were taken on these issues by the IGOM and for what reasons?
(xi)             This affidavit does not disclose the scope of deliberations of the IGOM in connection with the ELF and DLF tenders.
(xii)           The PMO and the Cabinet Secretariat should be directed to produce the full record of the deliberations of the IGOM.
(xiii)         Paragraph 9 of the affidavit does not mention the complete contents of the note sent by the Railway Ministry to the Cabinet for approval. The complete note should be produced before this court.
(xiv)         Paragraph 9 of this affidavit states that the note put up for approval by the Railway Ministry to the Cabinet interalia sought approval for cancellation of the pre-qualification carried out in 2010. What were the reasons and grounds for cancellation of this pre-qualification? Were the complaints and evidence against General Electric produced in these writ proceedings considered as relevant material to cancel the prequalification of General Electric under the 2010 DLF and ELF RFQs? Has the Railway Ministry cancelled General Electric’s prequalification under Clause 4.1.2 of the 2010 Marhowra RFQ? 
(xv)           What action does the Railway Ministry intend to take against General Electric for engaging and using the services of Mr Vinod Sharma in violation of 4.1.3 (a) of the 2010 Marhowra RFQ?
(xvi)         What action does the Railway Ministry intend to take against General Electric for submitting a tampered and therefore forged customer certificate (issued by Kazakhstan Railways) with its technical bid submitted on 12 July 2010 for the 2010 Marhowra RFQ?
(xvii)       What were the revised eligibility criteria for the DLF and the ELF Projects as annexed to the Cabinet note dated 26 April 2013? What are the reasons and grounds for these changes to the eligibility criteria for the ELF and DLF Projects?
(xviii)     Why has the Cabinet in its meeting on 1 May 2013 recommended that the new RFQs be issued by 6 May 2013 and the new RFPs be issued by 6 July 2013? Was the Cabinet made aware of these writ proceedings before it made this recommendation?
(xix)         The Cabinet Secretary and the PMO must be directed to produce the full record of the Cabinet’s deliberations on the ELF and DLF Projects in its meeting on 1 May 2013.
(xx)           The Railway Ministry should be directed to produce on record the letters issued to the respondents 7, 13, 14, 15 and 16 informing then about cancellation of the 2010 tenders for the ELF and DLF Projects.
(xxi)         What are the reasons for the cancellation of the 2010 tenders for the ELF and DLF Projects?


233.    The petitioner states that a quick glance through the new RFQs issued on 6 May, 2013 shows that some of the petitioner’s objections have been addressed. However, some new changes have been introduced in these RFQs merely to defeat the ends of justice and to unlawfully protect General Electric from the consequences of the complaints that are before the court in these writ proceedings.

234.    The PMO and the Railway Ministry cannot be permitted to over-reach this court and to subvert these writ proceedings and the rule of law by going ahead with the plan disclosed in the Railway affidavit dated 15 May, 2013.

235.    The present application therefore seeks an injunction restraining respondents 4 and 5 from proceeding with the Bidding Process under the RFQs issued on 6 May 2013 and from issuing the new RFQs to General Electric Company or to any associate of General Electric Company and/ or from shortlisting General Electric Company or to any associate of General Electric Company under the new RFQs until this writ petition is heard and decided.

236.    The documents discussed here (among other evidence) establish that the terms/ clauses of the RFP for the electric locomotive factory 2010 tender were changed to benefit General Electric. The documents also establish that officials in the Planning Commission and in the electric directorate/ division of the Ministry of Railways were involved in this corrupt activity. In addition, the documents establish that General Electric had access to pliant and corrupt officials in the Planning Commission and in the electric directorate of the Railway Ministry.

237.    General Electric has engaged in corrupt and undesirable practices in respect of the 2009 and 2010 electric and diesel locomotive tenders. Mr. Vinod Sharma, a former adviser to the Ministry of Railways for the same Project was advising/ helping/ lobbying for General Electric. This constituted a corrupt practice. In 2008-2009, Mr. Shakeel Ahmed was advising and helping General Electric even while he was handling the diesel locomotive tender for the Indian Railways. General Electric is being helped by Mr. Gajendra Haldea from the Planning Commission who, according to news reports in the Outlook India magazine and the Pioneer newspaper, was responsible for introducing changes into the bid documents that benefited General Electric. Mr. Pratyush Kumar of General Electric has had hundreds of meetings with Mr. Gajendra Haldea. The 2010 diesel locomotive RFQ was tailored to allow General Electric to prequalify without having to provide the disclosures/ certifications mandatorily required by the GOI Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector Enterprises through the process of disinvestment bearing Office Memorandum No. 6/4/2001DDII and dated July 13, 2001 and the Guidelines issued by the Ministry of Finance (F.No. 24(1)/PF.II/07) titled ‘Guidelines for Pre-Qualification of Bidders for PPP Projects’ along-with the Government of India endorsed and recommended model RFQ.  Both the 2010 diesel locomotive RFQ and the 2010 electric locomotive RFQ violated these Government of India guidelines. The 2010 electric locomotive RFQ was tailored to allow General Electric to prequalify even though General Electric does not manufacture electric locomotives and by its own admission does not possess the technology or the expertise. General Electric has had corrupt contact and help from Mr. Ved Mani Tiwari working in the electric directorate of the Indian Railways. General Electric modified its technical bid for the 2010 electric locomotive factory RFQ three days after the application due date by sending an email with an excel file containing additional information to Mr. Ved Mani Tiwari’s Gmail account. Various internal General Electric documents establish that General Electric has lobbied the Planning Commission and Ministry of Railways officials to influence the bid process and the bid documents. General Electric had made payments amounting to bribes/ illegal gratification to Indian Government officials through a third party contractor called Aartech Consultants India Private Limited. Internal General Electric documents and published news articles in the Outlook India magazine and the Pioneer newspaper quoting Railway and Planning Commission officials establish that the bid documents for the electric and diesel locomotive tenders were modified in order to benefit General Electric. Internal General Electric documents reproduced herein and in the partial rejoinder filed on July 9, 2012 to General Electric’s counter affidavit establish that General Electric was using its participation in the electric locomotive tender to influence the bid process and the bid documents in the diesel locomotive tender.

238.    The present writ petition was filed on February 29, 2012 assailing the short-listing of Respondent 7 in two multi-billion dollar global tenders floated by the Ministry of Railways being tenders (Global RFQ No. 2010/ ME (Proj)/ 4/ Marhoura/RFQ and RFQ No. 2010/ Elect. (Dev0 440/1(1)) for award of bids to set up proposed diesel and electric locomotive factories with guaranteed long-term purchase orders at Marhowra and Madhepura respectively. The petitioner refers to and relies upon the prayers made in this writ petition.

239.    The writ petition, affidavits filed by the petitioner, and the other documents and evidence produced by the Petitioner in court in this matter, made out a case based upon facts and evidence for this court to direct the Railway Ministry to scrap both the tenders, i.e., the 2010 tender for the diesel locomotive factory at Marhowra and the 2010 tender for the electric locomotive factory at Madhepura. The latest affidavit of the Railway Ministry filed on 15 May 2013 shows that these 2010 tenders have been cancelled.

240.    The petitioner submits that the facts and evidence detailed hereinabove and in other documents produced before this court in the present matter establish a more than prima facie case that General Electric is liable to be blacklisted from Railway tenders. There exists sufficient evidence before this court that irrefutably establishes that General Electric (respondents 1, 6 and 7 herein) has (through corrupt and collusive means) unlawfully influenced the bid process and the bid documents for the EL and DLF Projects.


241.    The complaints, facts and evidence before the court in these writ proceedings establish that the General Electric respondents have engaged in multifarious corrupt, unlawful and improper practices in connection with the 2008-2009 and 2010 Bidding Processes for the ELF and DLF Projects. The rule of law demands that these complaints be addressed and that General Electric be penalised in accordance with law and the tender documents and be barred from participation in any Railway tenders for a period of at least two years. This requirement under the rule of law cannot be avoided by Respondents 4 and 5 by merely cancelling the impugned tenders and by issuing fresh RFQs. The conduct of respondents 4 and 5 shows that the intent behind cancellation of the impugned tenders in this manner is to cover up the corruption complaints before the court and to protect General Electric and Railway and Planning Commission officials from the lawful consequences of their illegal acts. The conduct of respondents 4 and 5 in cancelling the impugned tenders and by initiating new tenders in this manner without penalising General Electric and without a final determination of the complaints before the court is malafide, arbitrary, motivated and unlawful. It is necessary to find out who is responsible for this conspiracy to protect General Electric from the lawful consequences of the illegal activities that are impugned in this writ petition.

242.    This application is being made in the interest of justice.

243.    This application is a preliminary application being filed given the urgency in the matter. The petitioner is collecting further information and reviewing additional documents to expose the conspiracy of respondents 4 and 5 to shield their corrupt dealings with General Electric and to save General Electric from being blacklisted in accordance with law. The petitioner will therefore be filing additional applications and affidavits.

244.    The petitioner has filed an application in this matter (CM  6096/ 2013 ) for recusal by the Bench of Justice Gita Mittal and Justice Deepa Sharma. This application is pending hearing after being listed before court on 16 May, 2013. The petitioner is vehemently pressing for recusal by both Justice Gita Mittal and Justice Deepa Sharma. The present application is being filed without prejudice to this pending request for recusal. The present application is being filed at this time because of the grave urgency in this matter arising from the existing threat to the petitioner-whistleblower’s life, who is presently in danger, and sleeping in her car parked on public streets without any protection since 27 February, 2013. The petitioner once again requests Justice Gita Mittal and Justice Deepa Sharma to recuse themselves from this matter so that it can be heard by another Bench.

245.    This application is necessary to help protect the petitioner as it will help prevent the ongoing attempted cover-up of the petitioner’s corruption complaints and the ongoing attempted collusive subversion of these writ proceedings and the ongoing attempted elimination of the petitioner-whistleblower.

246.    The petitioner submits that this Hon’ble Court summon the complete records pertaining to the two impugned tenders from the Prime Minister’s Office, the Planning Commission, the Ministry of Finance and the Ministry of Railways. It is submitted that this Hon’ble Court peruse the records of all these institutions pertaining to the impugned tenders for at least the last eight years or more to include the time period when these projects were initially conceived and formulated.

247.    The decisions taken by the IGOM and the Cabinet to direct the Railway Ministry to issue new RFQs for ELF and DLF and to complete the bidding process under these new RFQs by July 2013 is malafide, arbitrary and unreasonable and violates Article 14 of the Constitution in view of the pendency of these writ proceedings. These decisions do not appear to have taken all relevant material (including these writ proceedings) into consideration.

248.    This court is aware that Mr Pavan Bansal who was a member of the IGOM that has recommended this decision has been sacked by the Government of India for prima facie corrupt dealings in the first week of May 2013 very soon after the decision was taken. The CBI has been tapping the phones of several high level officials in the Railway Ministry for the last 4-5 months. One member of the Railway Board has been arrested and several others are under the scanner of the CBI and are being investigated for corruption. There appears to be a connection between these CBI actions and these writ proceedings. The CBI should be asked to file a report stating if it has found any additional evidence of corruption in connection with the ELF and DLF tenders as a result of the surveillance and investigations carried out by it.

249.    There is another aspect to this matter that is of great concern. News reports suggest that since the last few months and particularly since the end of April, 2013, the Railway Ministry has been functioning under fear of the CBI. Since the end of April, 2013 and throughout May 2013, the Railway Ministry was almost at a standstill with most senior officials being wary of being investigated for corruption. The Railway Minister was sacked soon after 1 May 2013. The new Railway Minister Mr C P Joshi also has other ministerial responsibilities and has not taken over full charge at the Railway Ministry. The entire Railway Board (with the exception of Member electrical) has/ will be changed due to terms of members coming to an end. There has been therefore no ministerial oversight in the Railway Ministry since the end of April 2013. There has also been no oversight by the Railway Board either.

250.    The decision to cancel the tainted 2010 tenders for ELF and DLF and to issue new RFQs and complete the new Bidding Process in an inordinate hurry with the clear intent to defeat/ subvert this writ petition and to help cover up corruption and to protect General Electric has been clearly timed to take advantage of these unsettling disturbances within the Railway Ministry.  

251.    It also appears that the threat of CBI investigation might have been used to blackmail Railway Officials and to force them to not oppose this decision that is being pushed by the PMO and the Planning Commission. 

252.    Just a few days before he was sacked, news reports described Mr Pavan Bansal as having stated that the DLW and ELW facilities would be upgraded and expanded to cater to the growing locomotive demands of the Railways. His reported statements suggested that the government might scrap the ELF and DLF Projects.  The petitioner wonders if Mr Pavan Bansal was forced out of the Railway Ministry for not supporting the ELF and DLF Projects as currently conceived.

253.    Given the current scenario and circumstances in the Railway Ministry. There appears to be complete lack of accountability and ownership of the new developments within the Railway Ministry and the Railway Board. Are the Prime Minister Manmohan Singh, the PMO and the Planning Commission headed by Mr Montek Singh Ahluwalia enforcing their will by taking advantage of the current turmoil within the Railway Ministry? Are the ongoing CBI investigations and the threat of more investigations being used to blackmail Railway officials and/ or other Bidders by the PMO and the Planning Commission at the behest of General Electric?

254.    Annexed hereto as Annexure P-3 are copies of recent news reports describing the current turmoil and disruption within the Railway Ministry and the Railway Board.

255.    How can such important decisions that amount to subverting the rule of law and subverting these writ proceedings and that assist cover up corruption and protect General Electric be pushed through by the PMO and the Planning Commission when the Railway Ministry is essentially rudderless and paralysed. Which department/ ministry of the Indian government will take responsibility for these decisions to cancel the 2010 tenders in an attempt to cover up corruption and to rush through a new bidding process while this court is seized of a recusal application and while this court is on summer vacation. It is highlighted that the 2010 tenders were pending for 3 years, so why this sudden rush now to hurry through a new Bidding Process in just 2 months?  

256.    The petitioner points out that companies from Canada, the United States, France, Germany, China, Japan, and several other countries are interested in the ELF and DLF Projects. Companies affiliated to Canada, the United States, France and Germany were/ are adversely affected by the corruption complained of herein and are parties before this court. The whole world is watching these writ proceedings. The Government of India through its false affidavits filed herein and through its latest actions is making a mockery of the rule of law in trying to so publicly and blatantly cover up corruption and in trying to subvert the rule of law and these writ proceedings to protect General Electric from the lawful consequences of its illegal acts.




PRAYER

It is therefore most respectfully prayed that this Hon’ble Court may be pleased to:

  

(a)    Stay the decision of the Cabinet dated 1 May 2013 to cancel the impugned tenders and to issue new RFQs and RFPs for the ELF and DLF Projects or to proceed with the new Bidding Process for these Projects until this writ petition is heard and finally decided and until the complaints made in this writ petition are dealt with in accordance with law;

(b)   Injunct/ restrain respondents 4 and 5 (Railway Ministry and the Union of India through the PMO) from proceeding further with the bid process under the two RFQs issued on 6 May 2013 (Global RFQ No. 2013/M/ (W)/ 964/33 dated May, 2013, and Global RFQ No. 2013/Elect (Dev)/440/7 dated 6 May, 2013) until this writ petition is heard and finally decided;

(c)    Injunct/ restrain respondents 4 and 5 (Railway Ministry and the Union of India through the PMO) from issuing the RFQ documents for DLF and ELF (for Global RFQ No. 2013/M/ (W)/ 964/33 dated May, 2013, and for Global RFQ No. 2013/Elect (Dev)/440/7 dated 6 May, 2013) to General Electric Company, or to GE India Industrial Private Limited, or to GE Global Sourcing India Private Limited or to any of their associate companies and/or from receiving applications for prequalification under these RFQs from any of these companies or their associates until this writ petition is heard and finally decided;

(d)   Injunct/ restrain respondents 4 and 5 (Railway Ministry and the Union of India through the PMO) from short-listing General Electric Company or GE India Industrial Private Limited, or GE Global Sourcing India Private Limited or any of their associate companies under Global RFQ No. 2013/M/ (W)/ 964/33 dated May, 2013, and Global RFQ No. 2013/Elect (Dev)/440/7 dated 6 May, 2013 until this writ petition is heard and finally decided;

(e)    Direct the PMO and the Railway Ministry to file separate affidavits (through the Principal Secretary, PMO and the Chairman of the Railway Board respectively) answering the questions raised in this application;

(f)    Direct the Railway Ministry to blacklist General Electric Company,  GE India Industrial Private Limited, GE Global Sourcing India Private Limited and all and any of their associate companies from participation in any Railway Tenders including (Global RFQ No. 2013/M/ (W)/ 964/33 dated May, 2013, and Global RFQ No. 2013/Elect (Dev)/440/7 dated 6 May, 2013) for a minimum period of two years;

(g)   Pass such other and further orders as this Hon’ble Court may deem fit and proper.


Place: New Delhi                                            Petitioner in Person
May 30, 2013                                                 Seema Sapra
Rendered homeless since May 30, 2012 as a result of corruption complaints against General Electric and as a result of the whistleblower corruption petition (W.P. (C ) 1280/ 2012) and presently homeless and sleeping in her car since 27 February 2013


In the Hon’ble High Court of Delhi at New Delhi
Civil Writ Jurisdiction
C. M. Appl. No.          of 2013
In
Writ Petition No. 1280 of 2012


IN THE MATTER OF:
Seema Sapra                                                                            …Petitioner
versus

General Electric Co. and Others                                             ….Respondents


AFFIDAVIT

I, Seema Sapra, daughter of Late Shri A. R. Sapra, aged 41 years, previously resident of G 4, first floor, Jangpura Extension, New Delhi 110014 and rendered homeless on 30 May 2012 (because of and as a result of the whistleblower complaints of corruption, forgery, bribery, fraud and illegal activities made against General Electric, Montek Singh Ahluwalia, Planning Commission, Railway Ministry and Ministry of Finance and as a result of the whistleblower corruption petition (W.P. (C ) 1280/ 2012) and because of my complaints of sexual harassment against Mr Soli J Sorabjee and Mr Raian Karanjawala) in contempt of this Hon’ble Court’s order dated May 25, 2012 and presently homeless and sleeping in my car since 27 February 2013 do hereby solemnly affirm and state as under:

a.       I am the Petitioner in the present Petition and am well aware of the facts of the case and am competent to file the present affidavit.

b.      I state that the accompanying application under Section 151, Civil Procedure Code seeking directions from the court to prevent the present writ proceedings from being subverted (along with affidavit) has been drafted by me and the facts stated therein are true and correct to my knowledge and nothing material has been concealed there-from and that all annexures to the application are true copies of their respective originals.


DEPONENT



VERIFICATION


Verified at New Delhi on this 30th day of May 2013, that the contents of the above affidavit are true and correct to my knowledge and that nothing material has been concealed therefrom.
                                                                                               


DEPONENT  






In the Hon’ble High Court of Delhi at New Delhi
Civil Writ Jurisdiction
C.M. Appl. No.         of 2013
In
Writ Petition No. 1280 of 2012


IN THE MATTER OF:

Seema Sapra                                                                            …Petitioner
versus

General Electric Co. and Others                                             ….Respondents




INDEX


No.
Particulars
Pages


1
Urgent Application

1


2
Court Fees

2


3
C.M. No.              of 2013 - application under section 151, Civil Procedure Code  seeking directions from the court to prevent the present writ proceedings from being defeated and subverted and seeking consequential injunctive relief (along with affidavit)
3-173




4
Annexure P-1 true copy of the new RFQ issued for the Project for the proposed diesel locomotive factory at Marhowra, being Global RFQ No. 2013/M/ (W)/ 964/33 dated May, 2013



5
Annexure P-2 true copy of the new RFQ issued for the Project for the proposed electric locomotive factory at Madhepura being  Global RFQ No. 2013/Elect (Dev)/440/7 dated 6 May, 2013


6
Annexure P-3 – true copies of recent news reports describing the current turmoil and disruption within the Railway Ministry and the Railway Board









Place: New Delhi                                            Petitioner in Person
May 30, 2013                                                 Seema Sapra
Rendered homeless since May 30, 2012 as a result of corruption complaints against General Electric and as a result of this whistleblower corruption petition (W.P. (C ) 1280/ 2012) and presently homeless and sleeping in her car since 27 February 2013


Note: All 17 respondents have been served with an advance copy of this application by email dated 30 May 2013.

All the prayers are inter-connected and flow from each other. Please list the application before court as it is.




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