Executive Summary of Complaint to CVC, copy to PMO, RM, Cabinet Secretariat Secretary/DP, CVO/MOD
Selling of OFB through Corporatisation, A scam in the pipeline, Comments on EOI cum RFP document of MOD, A submission to CVC and CBI for investigation
Government of India has invited an EOI-cum-RFP from India-based consulting agencies on 06-07-2020 to assist the Ministry of Defence in the process of Corporatization of the Ordnance Factories.
A pre-bid meeting with the prospective bidders was held on 20th July 2020 and some clarifications were given in response to the concerns of the bidders. While issuing corrigendum to the documents, not only were incomplete clarifications given, but, most unfortunately, standards were also diluted with a clear eye to benefit some parties, raising doubts about the integrity of officials acting on behalf of the client.
MOD officials have apparently and allegedly resorted to "fraudulent practice" through misrepresentation or omission of facts or disclosure of incomplete facts, in order to influence the Selection Process. From the circumstances surrounding the entire process till date, it can safely be inferred that Officials from Client side have indulged in "undesirable practice" with many favorable amendments to the advantage of vendor, detrimental to the National Interest.
As per Para 2.1.1 of DPM 2009, the Fundamental Principles of Public Buying: Every authority delegated with the financial powers of procuring goods in public interest shall have the responsibility and accountability to bring efficiency, economy, and transparency in matters relating to public procurement and for fair and equitable treatment of suppliers and promotion of competition in public procurement. On examination of the EOI-cum-RFP documents, serious lacunas have been observed, in violation of the guidelines of DPM 2009, GFR 2017, CVC Guidelines and Accounting Guidelines as mandated by ICAI apparently to favour private interests. Thus, the entire case needs investigations to rule out any irregularity as per the Prevention of Corruption Act Guidelines.
Violation of Standard Contract Guidelines of DPM 2009
In the name of EOI-cum-RFP, actually Notice Inviting Tender has been issued without compliance with the DPM 2009 norms. Surprisingly, many of the standard Contract provisions like Risk and Expense clause, Indemnity & Insurance, Warranty & Warranty Bond, Termination of Contract, Arbitration, penalty for use of undue influence, agents/agency commission, etc. are missing in flagrant violation of a normal Contract. Thus, such Contract can be termed ultra vires, which has been done deliberately to promote private interests with mala fide intentions.
It is observed that staggered delivery schedule is allowed without Liquidated Damage clause, which implies that payment can be done without imposing any penalty despite delayed delivery, violating the essence of the Contract, raising questions about the integrity of the concerned officials.
In RFP, Proposed form of contract is not available in violation of Para 6.2.5 (x) ( which says, Proposed form of the contract, including General Conditions of Contract and Special Conditions of Contract should be part of RFP ) of Manual for Procurement of Consultancy &
Other Services, 2017 issued by Government of India, Ministry of Finance, Department of Expenditure . Hence, it is not a valid RFP.
Revision of Contract Amount
There is amendment to the EMD amount from the earlier Rs 5 Lakh to Rs 10 Lakh post - publication of the EOI-cum-RFP document (Increase of EMD implies increase in Project Cost). It indicates that the same has been done at the behest of Vendors after the Pre-Bid Meeting to further their interests so that they get paid the double amount the reasons for which are known only to the client.
It can be seen from the Department of Investment and Public Asset Management that for disinvestment of CONCOR under the Administrative control of Ministry of Railways, 7 number of TRANSACTION ADVISORs quoted for the same for which a presentation was scheduled on 29th November 2019. It is leant that in the current case, only 3 parties have quoted. Thus, there has been deliberate backdoor plan of MOD to restrict the competition, in which they have succeeded, which will help them to achieve the second and subsequent objectives of making OFB sick in collusion with the Consultant and then making a cut from the sale of sick OFB to the private parties.
The EOI has many lauded objectives to transform OFB such as Improvement in the quality of its products, better utilization of capacities and assets of the OFB, optimum utilization of Human Resources, Timely supply to the Armed forces, Higher Exports, Increased turnover/profitability, etc.
It is quite shocking that the sketchy document omits to direct the Consultant to do a logical open-ended questioning and proper diagnosis and allows it to run away with a good report and part changeover to corporate without delivering the outcome, crucial to the intent stated by MOD as creating profitable and self-sustaining arms production system in the country. Such a lousy and ambiguous document has been created with mala fide intentions for private gains, as can be seen through following discussion and elaboration.
The Contract terms have been drafted in a manner in which it clearly depicts a one-sided view of the decision makers. It brings rigidity in the terms. Ideally, the outcomes should be stated by the client and its ‘How’ and ‘Why’ by the consultant. If MOD is confident about the method of Transformation, why at all take the help of the Consultant, wasting public money?
Although Interim reports are asked for each phase, linked to payment., these project based documents submission cannot ensure the course correction, that may be required for a project of such a large magnitude with larger ramifications for the National Interest and Defence Preparedness, as the project goes big bang without any pilot implementation, violating of tenets in Rule 186 of GFR, 2017, for Preparation and Issue of Request for Proposal (RFP), which must include mid-term review.
While the document brings out that the Consultant will work on strategic future growth, optimal operational strategy, organizational restructuring process re-engineering, Transition management, Financing and Legal aspects etc., very little could be found on optimal operational strategy and process re-engineering in the deliverables.
We question the understanding and intent of Client Officials to protect public interest. Is the objective to make huge sum of payment to Consultant, cornering a good kickback without a comprehensive actionable transformation plan ensuring an agile, lean, customer centric, and technology focussed OFB in view of the changing Geo-Political and Market environment to drive Make in India, Skill India, Atmanirbhar Bharat or something else hidden under the carpet for selling prime properties of OFB to private vendors after ensuring that it is sick?
Mismatch between Goals and Deliverables:
The Goals need to be matched with the Deliverables. It seems the officials have chosen some fancy words in Goals without understanding their implications and they have not built a deliverable framework based on the same.
• There is no mention of unleashing new growth potential and innovation in Ordnance Factories in the deliverables. The lack of quantification raises doubt whether it is a ‘feel good statement’ or real goal the client wants to pursue. The integrity of Client Officials becomes suspect.
• Although the Client wants for Improvement in the quality of its products by enabling new entity to follow market-based quality practices, there is no mention about improvement of product quality with a passing reference to Quality management, nor is there any payment linked to such outcome.
• Although the Client wants better utilization of capacities and assets of the OFB factories, it has failed to ask how to achieve better utilization of capacities and assets and how payment will be linked to such outcome.
• Although the Client wants Timely supply to the Armed forces by OFB, neither is there any mention about the same in the deliverables, nor any condition of the payment linked to such outcome.
• Against the goal of Greater incentive for export with ability to retain export profits, the Client has failed to ask the Consultant to outline of such incentive for employees of OFB.
• Although the Client wants to create profitable and self-sustaining arms production system in the country by Corporatisation of OFB, it has failed to direct the Consultant for the same. In case the model suggested by the Consultant fails, there is no penalty provision.
• Although the Client desires that the entity so created will have agility in absorbing TOT, besides forming Joint Venture (JVs) with other countries including acquisition of foreign companies, the client has failed to demand from the Consultant how the latter will help OFB in selection and absorption of TOT and JV in the deliverables and should it fail, what type of penalty will be imposed on the Consultant.
• Although the Client desires that OFB must create surge capacity to meet war requirements, such objective is antithesis to the commercial functioning of OFB as a Corporation. It has not been specified by the Client to ask for suitable model from the Consultant and payment, which will be linked to this part of job.
• Although the Client desires that the project will lead to increased turnover/profitability, neither is there any mention of quantitative expectations of the MOD, nor any payment linked to such outcome.
• Although the client has identified that the project will unleash innovation potential of OFB, it has failed to specify to the Consultant to build R&D capability development of OFB as one of the deliverables and linking payment with the same.
It seems that Goals are incoherent with the deliverables. It is reasonably apprehended that the Consultant will run away with the money without making any substantial improvement or real value addition. A covert and secret understanding between the Clients and the Consultants cannot be ruled out.
Approach and Methodology
Approach and Methodology expected is missing, which is a key success factor in any successful Consultancy project for Transformation from the EOI cum RFP document. In the evaluation criteria, Methodology & Project planning carries 5 marks, which means the Consultant will be free to bring very limited approach, which will be given stamp of approval by MOD. It is shocking that in such projects of National importance, MOD has failed to specify some expectations about approach and methodology, to keep it open-ended raising genuine doubts among the stakeholders about kickbacks without keeping the interests of OFB in mind.
Wrong Estimation of Expenditure and Time
The document Year (Expression of Interest-cum-Request for Proposal (EOI-cum-RFP) vide No. 18(4)/2014/Restructuring of OFB/Director (P&C)/DDP dated 06.07.2020) shows that it was prepared in the year 2014. The same might have been issued in 2020 without consideration of now vastly changed Market Conditions. Time Line for EOI completion is 52 weeks which is not only unrealistic, but debateable based on assessment of Kelkar Committee Part II report, which suggested an interregnum of two years before Corporatisation.
While the project cost has increased post amendment in corrigendum, the duration of the project has not seen commensurate increase, which implies that the Consultant will get double the money by doing same work planned earlier, raising questions about the integrity of the officials.
Lack of Clarity in Terms of Reference (TOR) with mala fide intentions
A per GFR, Rule 185, The TOR should include precise statement of objectives. In Clause
188.8.131.52 of the document, it has been stated that “The TOR/Scope of work mentioned above are indicative and non-restrictive in nature. Other relevant services related to the corporatisation process, not expressly captured in the aforesaid scope of work, which upon being brought to the notice of the Consultant by the DDP, will also form an integral and mandatory part of the TOR”. It implies that MOD is not clear about the objectives and is likely to change it in collusion with the vendor to serve the private interests.
The TOR violates Rule 181 of GFR dealing with the Preparation of scope of the required Consultant, which stipulates: “The Ministries/Departments should prepare in simple and concise language the requirement, objectives and the scope of the assignment.” The Goals of the project are not linked to the deliverables, raising serious doubts about the project and intent of the client officials.
Lack of Due Diligence with Mala fide intention
It is further reported that it seems that there might have already been a pre-selection of the consultant by awarding high marks through this component; the complainant alleged that "The GFR (General Financial Regulations) 2017 in Rule 182 gives guidelines about norms
for estimating reasonable expenditure. The document - EOI-cum-RFP vide No. 18(4)/2014/restructuring of OFB/Director (P&C)/ DP dated 06-07-2020 shows that it was prepared in the year2014. It seems that in all probability, an old document has been used without doing due diligence.
Eligibility Criteria of Consultant
It is reported that for an estimated value of contract ranging from Rs. 2.0 crore to Rs. 5.0 crores, the turnover of the consultant demanded is Rs. 50 Crore. This has been done with a clear eye to favour some Consultant at the cost of elimination of others.
It is seen that in the Eligibility Criteria, it has been mentioned that “Firm should have completed at least 3 valuations in the last 5 years of assets of similar nature of value of Rs. 1000 Cr. or more in each case.” Further, it has been mentioned that past experience in the execution of similar projects in the last 5 years (handling mergers, demergers, amalgamations, post-merger integration, etc. of entities having NAV of at least Rs. 500 Crores). Thus, a deliberate confusion has apparently been created so that MOD is able to select the Consultant of its own choice.
In the second Corrigendum, in the Evaluation Criteria at Para 184.108.40.206, past experience in the execution of Corporatization projects was asked. The Point for it is 5 for 1-2 projects and 10 for >2 projects. However, the period for which such experience will be done has been diluted from 5 Years to 10 Years. This clearly indicates that the Officials under the influence of vendors have done the same with an eye for some particular consultant, which suits them.
For a Value of Contract of Rs 2.0 Crore to Rs 5.0 Crore, requirement of Turnover of Minimum Rs 50 Cr. per annum is violative of CVC guidelines (CTE’S Organisation) OM No.12-02-1-CTE-6 dated the 17th December 2002 on Prequalification criteria (PQ) .
The client has stated that the firm should have completed at least 3 valuations in the last 5 years of assets of similar nature of value of Rs. 1000 Cr. or more in each case. In Parliament, it has been brought out that OFB has more than 60000 acres of Land. So the value of property of OFB will not be less than Rs 1,00,000 crore. Thus, such amount of valuation asked will lead to a selection of poor consultant in violation of CVC guidelines on Prequalification criteria (PQ) (CTE’S Organization) quoted above. The Clients are apparently not concerned with the proper valuation of the contract, which only demonstrates that private interest has prevailed over public interest.
Accountability on Part of MOD:
The Ministry has not indicated the support it will be providing. OFB, which is the main stakeholder must be involved in the process, otherwise, it would tantamount to violating the tenets defined in GFR Rule no 185.
Advantage given to the Consultant due to Performance Guarantee for Limited Period
It is seen that the EOI-cum-RFP states that the Performance Guarantee should be valid for a period of 18 months and the Performance Guarantee shall contain a claim period of three months from the last date of validity. The Consultant has been asked to create a 5-year strategic vision and roadmap, whereas the Bank Guarantee has been asked for a period of 18 Months with three months validity. In all likelihood, the consultant will run away with public money after 1 year and a BG for 18 months, when he is creating a blue print for 5 years, again casting doubts about the integrity of MOD officials.
The payment for the First Phase is 60%, while for the second Phase, it is 40%. Project Management across an organisation will demand more resource commitment in the second phase; hence, cash outgo for the Consultant will be more in the second phase as compared to the first. The success of the first part of Crafting Strategy will be seen in the execution of the second part. Unless payment for the later phase is not more than that of the first phase, the Consultant can prepare a grand strategy, which may not work out, and escape with the chunk of payment without any concrete and sustainable contribution.
The Deliverables in the EOI are Efficiency , Improvement in the quality, Better utilization of capacities and assets of the OFB Factories, Optimum utilization of Human Resources, Timely supply to the Armed Forces, Quantum of Exports done and Increased turnover/profitability. They are measurable. It is unfortunate that the Client has not linked any payment to these outcomes rather than paper based reports, which, in a way, will make the Consultant less accountable and put nation at risk.
Provision of professional liability, upper extent of consultancy fee, payment linked to actual work output, penal clauses for frequent change of staff deployed by the consultant, delay in services, deficiency in services, clauses to deal with professional misconduct, etc. have not been defined violating 9.9.2.(iv) of the Vigilance Manual of CVC, 2017.
Conflict of Interest
There is a serious doubt about having a Conflict of Interest, as the Consultants might be giving its services to MOD for the Corporatisation of OFB. They also might be consulting some of the competitors of OFB who are keen to get a share of business of what OFB is doing. 'Conflict of Interest' in appointment of Consultants and 'Professional Liability' of the Consultants clause has not adhered violating 9.9.2.(iv) of the Vigilance Manual of CVC, 2017.
Ambiguities in Technical Criteria of Evaluation for Favouritism and Nepotism
There are lots of ambiguities in the Technical criteria, which violates the GFR and may create a situation in which there may not be fair play in the award of contract.
In the heading ‘Past experience in execution of similar projects in last 5 years’, there is no mention of India-based experience; other country experience may not be suitable. This may not lead to desired outcome. The selection criteria do not protect public interest. In Past experience in providing consultancy services in Defence sector (global and India): Combined period is 10 years. Is Global other than India? What is the distribution between the two components? Again, the evaluation will be subjective, violating fundamental principles of public buying.
In the Experience criteria, it has not been asked-
• Nature of the Transaction handled but which side was represented – buyer or seller?
• Was the transaction for Government or quasi-Government or private sector?
• The role played in the transaction
• Intricacies experienced in the transactions
• Innovative work done in the transactions
Without the above information, correct assessment of the vendor’s capability cannot be done. It questions the capability and competence of Client Officials which shows that they value private consideration over public interests.
Clarification given post the Pre-Bid vendor meeting is incomplete
Although the Vendors asked a clarification as to how the review of skill levels of the staff would be done on the basis of an exploratory survey/research, MOD has failed to specify that the same has to be done as per Competency Framework laid down by National Training Policy, 2012.
The vendors asked whether they need to amalgamate all the needs of the factories/units under the corporate entity created for it, as the needs of every factory will be different, the stand of the MOD that the same is acceptable is contrary to their proposition of one or multiple PSUs out of OFB. It clearly shows the nexus between the Consultants and MOD.
The vendors asked the kind of advice/assistance in preparation and finalization of opening financial statements. MOD has failed to bring out that the job will not only be for Opening Financial statement i.e. Balance sheet, but it is required for the complete set of financial statements, which are Cash Flow and Profit and Loss statements as per Section 134 of the Companies Act, 2013.
The vendors asked whether public listing of OFB is part of this Project, but the Clients have specified that the same is beyond the scope of this project despite public announcement of Finance Minister on 16.5.2020. It appears that the client would like to split the work in violation of the Accounting Guidelines.
The vendors asked clarity about manufacturing strategy, which is limited to ‘Make and Buy Decision’. The non-concerned officials in MOD who do not understand manufacturing strategy have put their stamp of approval to such limited dimension of work for manufacturing strategy, without including the entire range of development and deployment of manufacturing capabilities, positioning of the products and building competitive advantage for OFB products and creating right portfolio of products unit wise. Ultimately, both MOD and Consultant will be out of scene and OFB will bleed due to lack of proper manufacturing strategy.
The vendors asked clarity about Process reengineering citing that the same is a mammoth exercise. The client has favored the Consultants in defiance of public interest to go only for high level approach, knowing fully well that to create a profitable and self- sustaining arms production system, unleashing new growth potential and innovation in Ordnance Factories, as stated by them in the Goals will not be possible without Process reengineering for unit and corporate level functioning.
In response to the query on proposed locations for establishment of Project Management Office (PMO), the clients have specified that in-person PMO would have to be set up at a place designated by DDP, for Phase 2. We fail to understand how important elements of the projects such as Strategic vision and roadmap and Organization and manpower related matters, to be done in phase–I, will be done by working form a single office location at MOD for a complex organisation like OFB working in many verticals, many locations, many technologies and many cultures without any diagnostics at sites.
In response to vendor’s clarification for fitment of individual employees into the new organization structure and the manpower plan for transformation, the clients have failed to specify that any such employee benefit plan has to be financially viable and can also include ESOP (Employee Stock Option Plan), a sure shot method to get the employee for a change in culture.
Dilution of Standards
It is seen that Certification norms have been diluted in corrigendum to exclude requirement of ISO 9001: 2015 Quality Management System. This has apparently been done to favour some of the Consultants which might have approached MOD, which do not have such qualifications.
Serious issues have been observed in Accounting methods
The clarification of the client that Asset valuation refers to valuation of fixed assets like P&M, land, building, etc. and intangibles such as property rights, etc. is not in line with Rule 211 of General Financial Rules (GFR), which outlines different norms for maintaining (a) fixed assets such as plant, machinery, equipment, furniture, fixtures (b) consumables such as office stationery, chemicals, spare parts, etc. (c) assets of historical/artistic value held by museum/Government Departments.
On physical asset valuation exercise, the clients have failed to demand from the Consultant for creation of an IT-enabled e-Asset Register, as per ‘The Fiscal Responsibility and Budget Management (FRBM) Act’, for its accounting as per Government Accounting Standards Advisory Board (GASAB) guidelines for better accountability, as Fixed assets are one of the most valuable resources of OFB, violating norms laid down by the Ministry of Finance OM bearing F. No. 1(2)-B(AC)/2017 dated 19th July 2018.
In response to vendor’s clarification for preparation of accounting and costing policies (1.4.2 Phase 1 (C) (xviii) (c) of the EOI document), the clients have failed to demand from the Consultant that the same has to adhere to the The Companies (Accounting Standard) Amendment Rules, 2016 dated 30th March 2016, The Accounting norms as per ICAI, Accounting Standards Rules, 2006, Accounting norms as per as per SEBI, Reporting Norms of Accounting as per BSE/NSE. As MOD wants to create JVs, the scope has failed to include that the Consultant must address compliance requirements overseas for such JVs. It is evident that creating JV is a propaganda made by MOD to get sympathy of public so that they can go ahead with their skewed transformation plan without their intent.
Gaps in the Valuation Norms
The Clients have specified that book value-based Market valuation needs to be done by the Consultants in violation of the ICAI guidelines that Valuation norms must comply with the Income Tax Act; SEBI Regulations; or The Insolvency and Bankruptcy Code.
The clarification given by clients on Valuation is contrary to the 30th Report of the Parliamentary Standing Committee on Finance, Chapter 18 of the Manual titled "DISINVESTMENT: POLICY & PROCEDURES", published by the Ministry of Disinvestment in 2001, which mandates that the combination of The 'Discounted Cash Flow' (DCF), The 'Relative valuation' approach and The 'Net asset value' approach will be done to be independent, transparent and free from bias.
Hence, it can be concluded that the clients want to create a poor valuation to aid their objective of valuating OFB’s property improperly, allowing OFB to die due to poor strategic approach to the transformation plan in collusion with the Consultants subsequently to sell OFB’s property at throwaway price.
Voidable Contract with Violation of Public Policy
EOI document asserts that one of the Goals of the Corporatisation is Greater incentive for export with ability to retain export profits. The drive for exports with the added incentive will lead to a situation where it may give boost to Arms brokering via third countries in violation of Article 51 of the Constitution which states that the State shall endeavour to promote international peace and security. This is violation of Wednesbury principle of reasonableness, and decision is free from arbitrariness, bias or mala fide, which allows judicial intervention of executive decisions.
Proposed Change in Service Condition, leading to Voidable Contract Transfer of employees on deputation to a Corporation without their consent is legally not permissible and such a contract is violative of Section 23 of the Indian Contract Act, 1872. The impugned proposed action is also violative of the provisions of Articles 14 and 16 of the Constitution of India as also, Article 311 where the Government employees will forfeit the status of Public Servants and lose the protection under the Constitution, as compared to other similarly placed employees who were selected through All India Civil Services and Engineering Services Examination, thus discriminating against the Civil Servants of OFB.
The proposed action also violates Article 309 of the Constitution in dilution of Recruitment Rules.
The said Contract between MOD and the Consultant will impose 'burden of contract' on OFB employees, which are the 3rd party in violation of doctrine of privity of contract. Since the third party has not given his consent to the contract, therefore, it would be unjust to impose contractual burden upon him. The change in service conditions is one pre-requisite in which consent of the employees of OFB has not been taken a priori.
Transgression of Authority
There has been a jurisdictional excess by DDP without a mandate from the Cabinet, while publishing the EOI-cum-RFP document on 06.07.2020, in deviance from the limited mandate given to MOD based on the Allocation of Business Rules, which cannot be extended to fundamentally change the structure of OFB. The fact that the Cabinet approval has been obtained after the issue of the EOI-cum-RFP document does not absolve the entire action of illegality and vitiation.
It is imperative that there is firm commitment to the sustenance and growth of OFB, which is a National asset created over more than 200 years, contributing substantially to the Defence Preparedness and Self Reliance. It is unfortunate that MOD has not demonstrated any evidence that it is keen to increase the value of the assets through the transformation process, but they are bent upon making a poor execution plan through a Consultant, handing over large sum of public money to the Consultant without getting any benefits due to the poor Contract design, with a clear objective to see that OFB declines and dies so that the property of the OFB can be sold to private parties at a throwaway price.
A reorganization process must be undertaken with sensitivity, strategy, and foresight, considering the fact that lot is at stake for the nation.
Is MOD sending a signal that improved Autonomy, Efficiency, Accountability and Efficiency of supplies are more important than Self Reliance, war time Support, Make in India , Atmanirbhar Bharat, etc. which are the fundamental policy finding little mention in the project TOR and scope, though the question remains whether there is really a deficit of Autonomy, Efficiency, Accountability and Efficiency of supplies, and whether OFB is responsible or the existing eco-system which includes MOD, the holy cow.
Unfortunately, the evidence of competence of client is not demonstrable in the examination of the above EOI-cum-RFP document. The design of payment raises serious concerns about the use of public money, not incentivised sufficiently with the outcome. After a rigorous analysis, we can conclude that the intentions of the goals set by the clients are not evident in the contract design, raising genuine questions about the integrity of the officials. Overall, we conclude that the Officials have not adhered to Rule 21 of GFR 2017, as they have not followed high standards of financial propriety.
The proposal of the Government is against Public Interest for breaking the OFB. More important than the stated objectives of the proposed Corporatisation (Autonomy, Efficiency, Accountability and Efficiency of supplies) are Self-Reliance and Make in India despite fluctuations of order , uneconomic order quantity of Order , which can be taken care of only in a Department structure. One thing is certain: the National Capability of Defence Preparedness will suffer due to the weakening of OFB.
Considering the subjectivity of many conditions, we cannot deny that the design has taken care to extend benefits and favours to some chosen entity.
As such, it is requested to investigate the matter and direct MOD to scrap the EOI-cum- RFP in line with its Para 1.5.6 and suitable action may be taken against incompetent officials, irrespective of their rank, as they have failed to protect public interest.
Submitted in Public Interest