Amy Hariani
On June 6, 2011, the Government of India announced its purchase of ten C-17 Globemaster III airlifters from Boeing for $4.1 billion. Some hail this announcement as a pivotal turning point in the U.S.-India defense trade relationship, while others say that it is simply one more step in the right direction for increasing defense trade ties between the two nations. Like those in the latter group, Timothy J. Roemer, U.S. Ambassador to India, said, “[f]or India, the [Boeing] sale adds strategic and humanitarian muscle to its defense needs” and that the sale will sustain 23,000 jobs in America. Ambassador Roemer also indicated that the Boeing contract would strengthen political and economic ties between the United States and India and lead to enhanced cooperation on security issues.

Nothing is more telling of a deep and solid partnership than the sharing of defense technology and sale in defense goods. But the strategic and economic alliance that the United States has enjoyed with India is a relatively new relationship and it will surely continue to experience setbacks as the relationship matures. As the friendship between the United States and India matures, and the U.S.-India defense trade grows, it is important to understand the objectives of both countries and how each ally might fulfill the other’s expectations for defense security and cooperation.

THE TURNING POINTS IN THE U.S.-INDIA DEFENSE TRADE RELATIONSHIP

In order to understand the current relationship between the United States and India, it is critical to examine the historical relationship between the two countries. During the Cold War, India aligned itself with Russia and the United States aligned itself with Pakistan. In 1991 these alliances began to shift with the easing of India’s foreign investment restrictions and the end of the Cold War. Throughout the 1990s, India experienced impressive economic growth as New Delhi continued to loosen restrictions on foreign trade and investment. Many credited Finance Minister Manmohan Singh for India’s dramatic growth during this time. As a result of his financial reforms, Mr. Singh became popular with the Indian electorate and was elected Prime Minister in 2004 as a member of the popular Congress Party.

In the early 2000s, Prime Minister Singh and President George W. Bush were quick to form a friendship, especially as President Bush was looking for allies in the region to assist with the U.S. War On Terror and to counter the ever-impending economic threat of China. U.S.-India relations continued to grow and, by July 2005, Prime Minister Singh and President Bush concluded a global partnership and framework agreement to share U.S. nuclear technology. The U.S.-India Civil Nuclear Cooperation Agreement, or the 123 Agreement as the agreement is sometimes called, was seen as a watershed agreement and a turning point for U.S.-India defense trade. After completing the 123 Agreement, the United States and India continued to deepen their friendship and reliance on each other. India wanted access to nuclear technology, and the U.S. wanted to sell it to India. Although India promoted the 123 Agreement as a means of meeting the country’s substantial energy needs, India was simultaneously complaining to the United States that it also was concerned about its security, particularly with respect to nearby neighbors China and Pakistan.

President Barack Obama continued to deepen the U.S.- India defense trade relationship by visiting India in the first half of his current term. During his November 2010 visit, the U.S. President announced his plans to boost trade with India. In so doing, President Obama said he would make “‘fundamental reforms’ to the export controls that guide trade between the two countries….[including] removing several Indian space and defense companies from the entities list, which identifies firms that manufacture products with dual civilian and military purposes and makes it more difficult for them to trade with the United States.” President Obama’s announcement thus concluded another turning point in the U.S.-India defense trade relationship.

To facilitate increased defense trade with India, the U.S. Department of Commerce announced in January 2011 that it was easing export controls on U.S. goods to India by issuing a regulatory Final Rule. The stated objectives of the Final Rule were to realign U.S. export policy toward India to reflect the strategic partnership between the two countries and to expand U.S.-India cooperation in civil space, defense, and other high-technology sectors. Among the changes made in the Final Rule were to remove nine Indian space and defense organizations from the Department of Commerce’s Entity List (a list of foreign end users involved in proliferation activities). Coincident with the issuance of the Final Rule, Commerce Under Secretary Eric L. Hirschhorn stated that the United States would support India’s full membership in the four multilateral export control regimes: the Wassenaar Arrangement, the Nuclear Suppliers Group, the Australia Group, and the Missile Technology Control Regime. By February, 2011 it appeared that there were few obstacles that could stop the growth of the U.S.-India defense trade.

On April 28, 2011, however, the relationship that was otherwise humming along was provided a jolt when the Government of India decided to rule out both of the U.S. companies (Boeing and Lockheed Martin) competing for an $11 billion fighter-jet supply contract for the Indian Air Force (IAF Contract). The exclusion of the U.S. companies from the $11 billion deal – and subsequent awarding of the IAF contract to an EU-based defense supplier – was widely viewed as a setback for the Obama Administration and the ability for India to create a truly meaningful defense relationship with the United States. Ambassador Roemer went so far as to announce that he would resign his post the day after the United States lost its bids to the IAF Contract. While Ambassador Roemer stated that he was leaving India for personal reasons, many in the defense community linked the two events as more than a coincidence. Whatever disappointment existed at the time of the IAF Contract announcement, however, quickly disappeared. In fact, shortly after the IAF Contract announcement, Boeing admitted that it still believed that India presented enormous market opportunities.

Boeing was right, because on June 6, 2011 the U.S. defense trading relationship with India regained its footing when the Government of India awarded Boeing the C-17 Globemaster III contract. Many hailed the contract as evidence that the United States and India were on the path to long-term trade in defense goods. Ron Somers, president of the U.S.-India Business Council (USIBC), stated that the contract was a “testament to India’s appreciation of U.S. technology and confidence in the U.S. as a long-term defence sales partner. This largest-ever Indian purchase of U.S. defence technology, we hope, will be just the beginning of much more to come.” According to news reports, “[o]nce these planes are delivered, India will possess the largest fleet of Globemaster III after the United States.” Ambassador Roemer stated that the deal would “further strengthen the strategic ties between the U.S. and Indian armed forces, leading to enhanced cooperation for a safer and more secure region and world.”

FOR GEOPOLTICAL AND FINANCIAL REASONS, TRADE IN DEFENSE GOODS IS IMPORTANT TO INDIA AND THE UNITED STATES

While commercial trade between the United States and India has progressively improved since the opening of India’s economy in 1991, trade in defense goods signals a new turning point in the U.S.-India partnership. The Boeing C-17 aircraft deal represented the first U.S. military aircraft purchase in India’s history. Although India would like access to enhanced military technology, the United States must remember that India cautions itself against aligning too closely with any single country. In addition, India is currently negotiating a free trade agreement with the European Union and announced on May 12, 2011 that it was entering into Free Trade Agreement negotiations with Australia. Although Free Trade Agreements with the EU and Australia would likely require several years to conclude, these negotiations should signal to the United States that deepening U.S.-India ties run parallel to India’s efforts to develop defense cooperation and trading partnerships with other allies around the world. Therefore, the United States must remember that while India may want defense technology, it does not necessarily need it from the United States.

India must also recognize that the United States demands certain expectations from its relationship with India. The United States is relying heavily on India to fulfill President Obama’s National Export Initiative to double U.S. global exports within five years. Consequently, India should recognize that the United States is relying on India’s promise to boost U.S. exports by purchasing defense and nuclear items from the United States. India should understand that if it fails to perform on its promises, the United States may instead look to other developing nations to promote U.S. exports. India’s delay in living-up to its promises is now evident by India’s nuclear liability law, which has effectively stalled the sale of civilian nuclear technology to India and rendered the 123 Agreement meaningless at the moment. India should seek to understand the U.S. motivations in partnering with India and be honest about its ability to fulfill the American expectations of that partnership.

THE U.S.-INDIA DEFENSE TRADE RELATIONSHIP WILL CONTINUE FOR MANY YEARS TO COME

The trading relationship between the United States and India will continue to grow and prosper as the countries further develop their relationship. But India will not rely on the United States alone to support it defense needs. India will use a multi-ally approach to build its defense arsenal by relying on the United States, the European Union, and other trading partners. As long as the United States understands that India is not going to align itself only to the United States and that India will continue to look out for what is best for India, the trading relationship in defense goods between the two countries will grow and prosper, albeit with setbacks along the way, for years to come.

Amy Stanley Hariani is an associate in the international trade group at King & Spalding LLP, with a particular focus on trade issues with India. She advises in import and export compliance, trade remedies, market access issues, and cases before the World Trade Organization. She can be reached at ahariani@kslaw.com or amyjstanley@gmail.com.

Robb Fipp, Rina Singh, David Stevens

Rising Chinese military power, ongoing tensions with Pakistan, and the creeping obsolescence of Indian military hardware are creating opportunities for Western defense corporations to aggressively enter a market in which they have long played relatively marginal roles. India, the world’s largest arms importer as the recipient of nine percent of international arms transfers between 2006 and 2010, has increased its 2011 defense budget an additional 11.59 percent to $36.03 billion. According to the Stockholm International Peace Research Institute, Russian companies accounted for 82 percent of India’s 2006-2010 imports, but Western firms are poised to make substantial inroads as the Indian government seeks to expand and upgrade its arsenal with cutting-edge technologies. Israel has already developed into a key source of advanced missile systems, and France’s Dassault and the European Aeronautic Defence and Space Company (EADS) are the finalists in the $11 billion Medium Multi-Role Combat Aircraft (MMRCA) tender to replace India’s aging fleet of Soviet-era MiGs. While lingering suspicion of US ties to Pakistan has complicated the positioning of American companies, steady improvements in Indo-US diplomatic relations and recognition of India as a strategic regional partner are likely to bolster market access for US firms.

Despite these shifts, penetrating the Indian defense market remains as difficult as it is potentially rewarding. This article provides an overview of the core challenges that Western defense companies face, along with guidance on how to manage a number of central issues and risks in the Indian defense procurement process. As in many emerging markets, successful entry and operation is contingent on robust information collection permitting companies to identify key decision-makers and credible local partners, monitor their standing with major stakeholders, and track the actions of competitors. The nature of the defense sector, where decision-making can be particularly opaque and secretive, heightens the indispensability of such an approach.

Challenges of the Indian Procurement Process
Entrants into India’s defense sector must overcome a range of bureaucratic, regulatory, and political obstacles that demand patience, vigilance, and a clear understanding of local practices and dynamics. Indian governmental decision-making tends to be lumbering, opaque, and subject to corrupt practices that potentially skew the playing field against Western firms bound by the US Foreign Corrupt Practices Act (FCPA) and similar national and transnational statutes. In addition, while the Indian government has opened procurement to international participants, it remains committed to the development of an indigenous defense industry through local production and technology transfer requirements that necessitate careful management and negotiation.

Defense Procurement Decision-Making
India’s vast and complex bureaucracy impedes streamlined decision-making, and contending interests among the multiple participants in the defense procurement process can subject decisions to particularly lengthy delays. The MMRCA tender is a case in point of the potential for start-and-stop progress. The Indian Air Force (IAF) submitted Requests for Information (RFI) to a range of international defense companies in 2004 but then took three years to issue Requests for Proposals (RFP). Despite projections of delivery in 2011, the government has yet to select a vendor.

Competing sets of actors can potentially enter the process at a number of different stages, exposing defense procurement to incongruent or rival agendas and to shifting criteria that may contribute to tender delays. While the armed services or intelligence agencies typically play leading roles in the evaluation and testing phases, Ministry of Defense (MoD) civil servants with little or no background in technical defense matters often shape RFPs. Particularly for large-scale projects, ultimate purchasing decisions often take place at the cabinet level or within the office of the Prime Minister. In the course of a typical procurement cycle, the basis for decision-making thus often evolves from potentially unrealistic criteria established by functionaries to technical criteria established by professionals, and then on to considerations subject to political and diplomatic pressures. Particularly at this final stage, vested interests can shift the basis of vendor selection away from objective performance to contenders’ political influence and outreach efforts.

Large-Scale Defense Project Procurement Cycle and Key Decision-Makers

Competition and Corruption
India’s emergence as a major market for arms and defense technology has intensified competition for military tenders, reinforcing incentives to capitalize on the underlying opacity of decision-making by resorting to bribery and to bending or breaking regulations regarding the use of agents well-positioned to broker sales. In addition, Western companies may face an uphill battle against Russian and Israeli competitors whose established relationships with procurement officials may tilt tenders in their favor.

Despite a general crackdown on corruption in India, bribery remains a potentially significant factor in the defense sector, where the specialized nature and secretive handling of tenders creates opportunities for vendors to attempt to influence the process through illicit means. As discussed above, the selection procedures on which acquisition decisions depend often are shrouded in mystery or subject to unexplained shifts that underscore the degree to which small groups of officials can shape a tender’s procedural course and outcome. Western companies find themselves at a potential disadvantage as enforcement of India’s own anti-bribery statutes is inconsistent and not all international competitors are subject to the same anti-bribery statutes—such as the FCPA—in their home country or other jurisdictions.

Western defense suppliers entering a complex new market typically hire agents to assist them in minimizing their competitive disadvantages and winning audiences with key figures and bureaucratic entities. In the Indian context, however, reliance on agents can create more problems than it solves. Many former MoD personnel who offer their services as agents served during periods when corruption was an inescapable element of nearly all major acquisition decisions. This background may lead them to rely on a similar approach on behalf of their new employers, with or without the latter’s knowledge or permission, requiring close monitoring of their actions in order to minimize FCPA exposure.

Indian MoD rules further complicate the task of locating suitable agents by prohibiting the payment of success fees to those who assist in winning tenders. This raises the expense and competition involved in hiring agents with proven track records, or pushes companies to hire them in ways that circumvent the standing rules and create potential vulnerability to subsequent tender disqualification. Companies seeking to stay safely within MoD guidelines often are left with a selection of relatively junior agents typically less effective in advocating for projects with key constituencies.

Technology Transfers
Upgrading the technological sophistication of the country’s armaments to compete with regional rivals, including both China and Pakistan, is at the heart of India’s current defense expansion and opening to international defense suppliers. As retired Air Marshal Padamjit Singh Ahluwalia, the former head of India’s Western air command, has explained, “The Soviet Union gave equipment and transferred technology to India at subsidized costs and ensured a steady flow of material free from sanctions in time of conflict.” On this basis, it emerged as India’s preferred supplier. “After the break-up of the Soviet Union, however, the Russians began demanding hard cash for all sales at a time when they were losing their ability to compete with the West technologically. Because it has to pay cash, India now feels that it should shop around for the best technology possible.”

Yet merely providing advanced weaponry is not sufficient to win major defense tenders, as India also seeks access to underlying technologies to maintain and develop its indigenous arms industry. As a result, international defense suppliers seeking to enter India face significant technology transfer requirements that have evolved into key tender selection criteria. Beginning with the MoD’s 2005 Defense Procurement Policy (DPP), suppliers have to meet a 30-percent offset requirement for all defense orders over $66.6 million in value; for the MMRCA RFP, the MoD raised the requirement to 50 percent. Offset conditions often place foreign companies in a position where commercial success depends on transferring sensitive technologies to Indian partners with few or no intellectual property protections, confronting suppliers with difficult choices and underscoring the importance of selecting trustworthy local manufacturing partners. In addition, US or other government prohibitions on the export of certain technologies can limit the tender competitiveness of firms subject to these restrictions.

Keys to Successful Navigation
Successful navigation of the Indian defense sector requires adapting to the local environment. This includes developing a nuanced understanding of Indian decision-making in conjunction with the ability to constrain the activities of competitors through local institutions. Rigorous due diligence of potential partners and agents is also vital to compete effectively while minimizing the danger of running afoul of the FCPA.

Engage Early and Prepare for a Lengthy Process
For companies seeking to enter India’s defense sector, patience is a necessity. Tenders rarely adhere to their initial schedules, and companies must be prepared to stay the course over a long—and potentially elastic—period subject to delays, shifts in criteria, legal proceedings, and retendering. Early engagement in the tender process is key, particularly in the stage between the RFI and the RFP. Companies that wait for the RFP have missed a significant window of opportunity to develop pivotal relationships, gauge or stimulate demand, and shape RFP requirements.

Use Local Regulatory Bodies to Ensure a Level Playing Field
The Indian defense market is potentially conducive to corruption, but companies need not sit back and allow less ethically constrained competitors to capitalize. When there are grounds for concern, companies can petition Indian regulatory and investigative bodies, including the Central Vigilance Committee (CVC) and the Central Bureau of Investigation (CBI), to examine suspicious proceedings. After losing a 2007 Indian military tender for 197 light attack helicopters, US-based Bell Helicopter protested vociferously that EADS had benefitted from preferential treatment. With the backing of the US government, Bell eventually succeeded in bringing its case to the CVC, leading to the retendering of the contract on the grounds that EADS agents had engaged in improper activity and that the company had used a civilian helicopter model in test flights, biasing the trials decidedly in its favor.

Identify Qualified Indian Partners
Partnering with capable and trustworthy Indian companies can reduce international defense suppliers’ reliance on potentially problematic local agents while also facilitating the task of meeting offset requirements. Allowing Indian partners to take a leading role in tender bids naturally strengthens their competitiveness and appeal to Indian authorities. Locating credible local counterparts, however, requires detailed checks on candidates’ technical backgrounds, political connections, and legal and business track records, including indications of their involvement in corruption. Confidence in the competence and trustworthiness of local partners should alleviate some concerns that accompany the transfer of sensitive technologies. Many of the same considerations hold true when companies opt to engage local agents to advance their tender prospects. Due diligence service providers who are familiar with the local lay of the land and have access to independent sources of information can vet potential agents to ascertain their professionalism, effectiveness, political positioning, and potential implication in unethical conduct.

Breaking the Indian Code
Following a long period of relative exclusion, Western suppliers are at an early stage in the process of establishing their brands and mastering the Indian procurement process. While several companies have developed toeholds, there are no indications that any has truly deciphered the Indian puzzle or developed a strong basis of support among key decision-making constituencies. Even within Western companies that have succeeded in winning contracts, business units continue to grapple with the task of translating individual successes into a winning formula. The market remains relatively open and will reward those with the patience and adaptability to meet its challenges.
All authors are affiliated with Veracity Worldwide, a political risk consultancy focused on emerging markets, including the Indian defense sector.
Robb Fipp, Partner and Managing Director, is based in Singapore and can be reached at rfipp@veracityworldwide.com. Rina Singh, Managing Director, is based in New Delhi and can be reached at rsingh@veracityworldwide.com. David Stevens, Associate Director, is based in New York and can be reached at dstevens@veracityworldwide.com.

Robert S. Metzger and Sanjay J. Mullick
India’s transformation as a rising power has been accompanied by significantly increased defense expenditures. Late in February 2011, the Indian Government announced a nearly 12% increase in the defense budget. Of the total defense budget of approximately $36 billion (Rs 164,415 crores for fiscal 2011-12), capital acquisition is to receive 42%, or about $15 billion (Rs 69,199 crores). India may spend as much as $80 billion over the next five years on defense capital acquisition. Homeland or “internal” security represents an additional market opportunity. India is strongly committed to a policy of “indigenization” and self-reliance. In order to satisfy the requirements of the Indian military, and to obtain desired transfer of technology (“ToT”), however, a sizable portion of the defense capital acquisition budget will continue to involve purchases from foreign original equipment manufacturers (“OEMs”).

India makes capital acquisitions of defense equipment via the “Defence Procurement Procedure” (“DPP”), first released publicly in 2006 and subsequently revised periodically. The latest revision was announced by India’s Ministry of Defence (“MOD”) on January 1, 2011. Within the same month, on January 25, 2011, the U.S. Department of Commerce, Bureau of Industry and Security, issued a rule formalizing the first set of U.S. export reforms specific to India. February 2011 marked Aero India 2011, the 8th international aerospace exhibition held by India. Some 675 companies from over 30 countries were in attendance. Since Aero India, the U.S. was disappointed with the exclusion of the two American fighters, the F-16 and F/A-18, from India’s pending $11 billion Medium Multi-Role Combat Aircraft (“MMRCA”) competition. On the other hand, in early June India announced an intention to purchase ten Boeing-made C-17 cargo aircraft for $4.1 billion. Finally, towards the end of June, the U.S. Senate Armed Services Committee requested the Department of Defense to submit a report later this year assessing the current state of U.S.-India security cooperation and recommending ways to enhance it, including possible sale to India of the F-35 Joint Strike Fighter.

The confluence of these events makes this an opportune moment to assess and reflect on the challenges involved in India defense procurement and to forecast the opportunities that can lie ahead for U.S.-India defense and strategic trade if the right steps are taken.

CRITICAL BARRIERS TO GREATER US-INDIA DEFENSE TRADE
A.Suitability of the U.S. Foreign Military Sales Procedure.
Thus far, the majority of U.S. defense sales to India have been accomplished as government-to-government foreign military sales (“FMS”) rather than as direct commercial sales (“DCS”) between a U.S. supplier and the Government of India (“GOI”). Though Boeing’s sale of P-8I maritime aircraft was a DCS sale, FMS has been used by the GOI to make major purchases of U.S. systems, such as the C-130J and, recently, the C-17.

India has reservations about FMS, however. A principal objection is that FMS does not comport with competition requirements of the DPP requiring bids be made on a firm fixed-price basis. Ordinary FMS procedures, in contrast, contemplate an “offer and acceptance” procedure which begins with a Letter of Request (“LOR”) from the government intending to make a purchase. A LOR may request only Price & Availability (“P&A”) data or a formal, ready-to-execute sales offer in the form of a Letter of Agreement (“LOA”). A P&A response is only an estimate of approximate costs and projected availability. An FMS sale is concluded only if there is an LOA, but the LOA itself normally does not contain a firm, fixed price, as the final price for an FMS purchase typically is not known until some time after execution of the LOA, i.e., after the USG negotiates the corresponding supply or service contract with the U.S. supplier.

The DPP also requires tendering companies to commit to a technical field evaluation phase before selection, a procedure not contemplated in the FMS process. Further, a crucial element of any GOI procurement from a foreign source is satisfaction of offset measures. The USG assumes no obligation to administer or satisfy any offset requirements – in FMS deals or otherwise.

There are countervailing considerations which favor FMS, even though aspects of FMS are difficult to align with the DPP requirements General FMS policies recognize that “foreign nations often compete weapon systems procurements.” A competitive solicitation of a foreign government is treated as a LOR triggering the FMS case process. The U.S. response can be a combination of programs (a “hybrid”) which include FMS and DCS elements (and international cooperative agreement as well). Hence, one or more U.S. companies can respond to a solicitation under the DPP using a combination of FMS (for supply of defense articles) and DCS (for training, support equipment, and other services). Offset obligations are independently executed between the purchasing government and the supplier.
Concern as to whether FMS is “competition” reflects largely issues of alignment of U.S. systems to Indian requirements – not differences in philosophy. One objective of “competition” is to assure a public buyer it is paying a reasonable price. Here, the FMS structure is satisfactory. FMS acquisitions are to be conducted under “the same acquisition and contract management procedures” that the U.S. uses for its own acquisitions. Moreover, price and cost justification is required for FMS contracts using the “same principles” as for other U.S. defense contracts. These rules are both well developed and rigorously enforced. Arguably, in FMS purchases, the GOI has a much higher degree of assurance as to the fairness of price, the assurance of delivery of goods at the contract price, and the integrity of the offering process, than realistically can be obtained through a procurement done entirely within the DPP framework.

Another criticism goes to fees and charges that accompany FMS cases. Depending on the particulars, categories of such charges can include an “administrative surcharge,” a “contract administration services (CAS) surcharge,” or a “logistics support charge,” among others. Again, there are reasons behind the U.S. approach which are mutually advantageous rather than self-serving of U.S. interests. And, these charges reflect the real costs of activities which the USG performs for the benefit of a foreign customer.

The USG considers the “support of U.S. origin defense articles critical to the success of the Security Assistance program.” The U.S. prefers a “Total Package Approach” (“TPA”) intended to assure FMS purchasers that they sustain as well introduce new equipment. The TPA includes elements such as training, technical assistance, initial and follow-on support. Considering well-publicized problems that the GOI has experienced with military articles supplied from countries, notably Russia, the commitment of government-backed support has high value. Even so, the USG requires that a “complete sustainability package” must be offered to the purchaser, but purchase of that package is not required.

Actually, therefore, the “hybrid” FMS mechanism presents the GOI with an opportunity to have both the “direct” relationship that it (or the Indian Armed Forces) may desire with the supplier while also having the confidence in a USG contract with the American supplier. An FMS sale does not mean that the foreign purchaser is isolated from the transaction. FMS customers are “encouraged” to participate with U.S. acquisition personnel in discussions with industry to develop technical specifications, establish delivery schedules, identify special warranty or other requirements unique to the FMS customer, and review prices of varying alternatives, quantities and options as needed to make price-performance tradeoffs.

Of great concern for India is the application of export controls and whether goals of transfer of technology can be accomplished. As a matter of policy, U.S. export controls apply equally to FMS as to DCS. However, the USG may determine to sell certain types of more sensitive equipment and technology, such as a new or complex system or service, only through FMS. (A transaction can combine FMS-only and DCS elements.) When the USG executes a response to an FMS LOR, it is the USG which is responsible to coordinate and secure necessary export approval. In practice, this can work faster, and with higher assurance, than when defense supplies services are sold through DCS and a private contractor must secure export authorization. As to transfer of technology, U.S. FMS policies encourage foreign manufacture of U.S. equipment when it is advantageous to assist in maintaining the purchaser’s defense industrial base or in improving general defense capabilities by collaboration.

Taken as a whole, there are objective benefits to India from the FMS process and its employment in combination with DCS. While FMS is not ideally aligned with the DPP, fundamental objectives are substantially similar. It behooves both the USG and the GOI, as well as prospective commercial partners from both countries, to anticipate and work through alignment issues. The USG has mechanisms to facilitate U.S. participation in international competition. These include the coordination of actions necessary to comply with U.S. law as well as working with the foreign government. Both countries would benefit from an initiative to identify recurring issues in the application of FMS to the full scope of prospective GOI requirements, so that recommended practices and representative solutions may be developed in advance of future procurements.

B.Effectiveness of India’s Defence Procurement Procedure
U.S. firms have encountered considerable frustration and delay in attempting to secure business through the DPP. The strengths of the DPP, a rule-driven mechanism, include predictability, regularity and transparency. It provides an objective reference to the requirements and expectations of the MOD and of the process used to establish requirements, secure authorization for acquisition, and then to conduct procurement. Ultimately, however, the effectiveness of a procurement system is measured by whether it succeeds in accomplishing contract award and whether the end user acquires supplies and services which conform to its requirements. In this regard, some of the DPP’s rigors have worked against its effectiveness. One recent article suggested that the GOI has accomplished “more than 70%” of its major defense acquisitions through means which proceed outside the formal procurement process of the DPP, such as inter-government agreement and “fast track” procedures.

The DPP is a “single stage, two-bid” system which posits that there are multiple sources available for a fully developed product for which at least two competitive bids can be obtained. The evaluation method is price-determined, assuming satisfaction of technical requirements. For a procurement to succeed under the DPP, it is best that each specified step, process, and action proceed exactly as prescribed. In the real world, however, this rarely occurs. Thus, the DPP has proven unwieldy, if not unsuited, to situations as have actually emerged while an acquisition is in process, where one or another event is outside the “frame” expected by the DPP.

The preference for formal competition is so strong that it has proven difficult for the MOD to proceed to make an award unless it has two fully compliant tenders under a DPP procurement. Several authorities are available under the DPP to allow for procurement in other than multiple bid situations. These include DPP ¶ 69 (“Single Vendor Situation”), DPP ¶ 71 (“Inter Government Agreement”) and DPP ¶ 73 (“Procurement on Strategic Considerations”). Indian officials have proven wary of using these authorities, however, perhaps out of undue concern that flexible administration of the DPP will expose them to charges of favoritism or corruption. Recent history includes an example of cancellation of a solicitation long in the gestation, for a compelling military requirement, where one competitor decided it would prefer to scuttle the acquisition rather than lose the competition. For its own sake, India needs better measures to avoid and address this situation.

On procurements conducted under the DPP, where bids are deemed to satisfy the technical requirements, a low bidder (the “L1”) is selected for contract negotiation only on the basis of bid price. This also is vulnerable to manipulation – “gaming” – by a potentially unscrupulous bidder. In several reported competitions, the realism of low bids has come into question. In one competition, it is understood that the MOD made “adjustments” to an unrealistically low bid which caused the ostensible “L1” to become the higher priced (and losing) “L2” bidder. The authority for such adjustments, in the DPP, is obscure at best, though the experience demonstrates the need for common sense flexibility in administration. In the U.S., in contrast, price “realism” may be a selection criteria. Bids can be disregarded, or unfavorably reviewed, if the proposed price is not realistic.

The DPP today does not allow for consideration of life cycle costs, though these are obviously most important in understanding the total cost of an acquisition. Nor does the DPP allow for the selection decision to reflect qualitative discriminators such as higher performance and greater mission suitability. No credit is given for exceeding the specifications enumerated in a tender document. In the U.S., acquisition of complex articles and systems usually are acquired through a “best value” approach, in which the source selection authority also considers non-price factors such as better technical performance, lower performance or cost risk, and better past performance credentials.

Moreover, the DPP is poorly suited for acquisitions that call for design and development. It is very difficult for vendors to offer anything other than existing, “off-the-shelf” hardware. This means that when India procures via the DPP it is largely limited to acquisition of what others have already built. The result favors defense public sector undertakings (“DPSUs”) for developmental work and frustrates private sector engagement.

C.Realistic Prospects To Satisfy Offset Requirements
Demands for offsets appear to be the “norm” in international acquisition of defense supplies or services from foreign sources. For India, questions of implementation and administration have importance because a successful foreign seller to India is required to enter into binding contractual obligations for offset commitments which are co-terminus with the period of performance of the main contract.

India’s offset requirements reflect important national policies. Where India purchases from a foreign source (“Buy-Global” or “Buy and Make”), offsets must equal or exceed 30% where the indicative cost of the procurement exceeds approximately $66 million (Rs 300 crores). In certain acquisitions, such as the MMRCA competition, the offset requirement is greater still. The DPP Amendment of 2009, released on November 2, 2009, added an acquisition category for “Buy and Make (Indian)” where RFPs would be released only to Indian firms. Such firms could partner with foreign OEMs, but this procurement category requires a minimum of 50% indigenous content.

Concerns exist as to the ability of Indian industry to “absorb” the offset commitments already made and those which will accompany future foreign purchases. India formerly was very restrictive in classification of transactions qualifying for offset credit. The DPP 2008 allowed discharge of offset obligations only through direct purchase of, or executing export orders for, “defence products and components manufactured by, or services provided by, Indian defence industries, i.e., DPSUs, the Ordinance Factory and private defence industry.” As implemented by DPP 2008, offset obligations could be discharged by direct purchase of services provided by Indian defense industries.

DPP 2011 is a welcome step. It enlarges qualifying “services” to also include testing of products and includes “training services and training equipment, e.g., simulators.” DPP 2011 also eliminated the prior requirement that offsets be “direct” to the defense sector and expands the categories of “eligible” offsets to include internal security and civil aerospace. The expansion of transactions eligible for offset satisfaction represents real progress, but a number of issues left unresolved present opportunities for further clarification and improvement.

Retroactive Application: The ostensible position of the MOD is that the revised offset rules of DPP 2011 apply only to contracts awarded on RFPs issued after the effective date of the new rules. This position might be revisited. As a matter of policy, if the expanded scope of offsets for “new” contracts serves the national interests of India, then the same interests should be served by allowing the policy to apply retroactively, albeit selectively. There are three principal considerations: first, the general interest of the GOI in achieving the industrial objectives of offset rules; second, the specific interest of the GOI in assuring vendors of different size within India that they have real opportunity to participate in offset work; and third, the proposition that “fairness” to OEM competitors should discourage liberalizing offset requirements once a competition has been concluded. Since the offset rules exist for the benefit of the GOI, and confer no rights enforceable by private parties, it should be within the sound discretion of Government officials to take prudent actions in the application of these rules to achieve their fundamental purposes. Hence, for illustration, it would seem appropriate for the GOI to allow application of the DPP 2011 rules to contracts awarded after issuance of the 2011 rules but under RFPs released beforehand.

Credit for Technology Transferred: Today, the DPP does not give any offset credit for accomplished ToT per se, as offset satisfaction is purely a function of cash value of purchased eligible supplies or services, irrespective of technical content. Critical defense and dual-use technologies have “leverage” value after receipt, in that some technologies will enable greater industrial exploitation or have higher job-producing consequences than others. In addition, certain technologies may be comparatively more important for India to acquire from the standpoint of its security objectives. Offset credit should be awarded as promised technology is delivered, and for especially valuable technology the MOD should apply a “multiplier.” That this serves India’s national objectives—of indigenization and technology development—is self-evident. It also serves the interests of India’s foreign sales partners, by affording additional means to perform their contractual offset obligations.

Allow Greater FDI:DPP 2011 allows offset credit for foreign direct investment (“FDI”) in Indian industries “for industrial infrastructure for services, co-development, joint ventures and co-production of eligible products and components” as well as for certain organizations involved in R&D. Today, investment in the defense industry is capped at 26%, reflecting concerns about sovereignty over the national defense industrial base. India will be more successful, in achieving ToT and the ultimate goal of indigenization, if the ceiling is increased, even to 49%, if not more. There are many and serious business considerations which discourage U.S. and other foreign firms from joint venture participation with a 26% cap on FDI. Control over transferred technology, assurance of proper use, and controls on unauthorized dissemination are hard to accomplish from a minority ownership position. Similarly, U.S. firms see minority ownership as making it more difficult to assure compliance with the myriad of U.S., Indian and other national anti-corruption laws.

Enhanced Administration:The DPP 2011 revisions, as concern offsets, are accompanied by many questions of interpretation and application. The MOD should enhance the resources of the Defence Offsets Facilitation Agency (“DOFA”) and clarify its authority to resolve issues of offset application, evaluation, and compliance. DOFA also should establish a collaborative mechanism to receive supplier inputs. DOFA should actively monitor performance of offset contracts, assess the state of capacity absorption, and evaluate and report on the successful implementation of offset arrangements. Today, for all its ambitions, there is little evidence that the offset program has succeeded in bringing high-tech jobs and new industries to India. Having a real-time knowledge base of the functionality of its offset requirements and flexibility in adaptation and application of the rules benefits India. No one benefits, in contrast, from rigid adherence to rules if the consequence is defeat of these important national objectives. Offset rules can be amended and subjected to appropriate exception in a fashion that is transparent and which considers the expectations of all interested parties.

D.Overcoming the “Trust Deficit” Prompted by U.S. Export Controls
U.S. export controls serve important policy objectives but their operation has proved slow and uncertain, causing frustration to India as a prospective purchaser and sometimes resulting in exclusion of U.S. suppliers from opportunities for which they offer superior products and technology. Following nuclear tests in 1998, the U.S. imposed sanctions on both India and Pakistan which included termination of foreign military sales and revocation of licenses for commercial sale of any item on the U.S. Munitions List. These sanctions—not forgotten by contemporary India decision makers—severely impacted U.S.-India defense cooperation. Collectively, the result has been called a “trust deficit,” which still besets the U.S.-India defense relationship.

In 2011, the U.S. has announced three major export reforms favoring India. Just as India’s DPP 2011 represented real progress in some areas, but insufficient accomplishment in others, the 2011 export measures are a step in the right direction, but do not yet achieve enough.

• The U.S. has removed several defense and space-related entities from the Entity List: Bharat Dynamics Limited, and the remaining subordinates of Defense Research and Development Organization (“DRDO”) and the Indian Space Research Organization. The Entity List consists of organizations the U.S. Government has determined are involved in or pose a risk of developing weapons of mass destruction. License requirements continue to apply to an entity removed from the Entity List, but there is no longer a general bar on exports, even if items are not sensitive technology.
• The U.S. has also realigned India in its country groupings, removing it from Country Groups D:2, D:3 and D:4, and adding it to Country Group A:2. This reflects U.S. treatment of India on par with close allies and may facilitate cooperation and partnerships in the commercial space sector, such as space launch vehicles. Addition of India into Country Group A:2 places it into the list of Missile Technology Control Regime (“MTCR”) member states, though India is not formally an MTCR member. This will not remove the existing requirement for a license to export items controlled for missile technology reasons (which applies to all countries except Canada).
• President Obama has also announced U.S. support for India’s full membership in the four multilateral export regimes: the Nuclear Suppliers Group, Missile Technology Control Regime, Australia Group, and Wassenaar Arrangement.

The 2011 export reform initiatives were taken by the U.S. Department of Commerce. Further actions will be required of the Departments of State and Defense. State has a key role, as its jurisdiction encompasses export licensing under the International Traffic in Arms Regulations (“ITAR”), which is the responsibility of the Directorate of Defense Trade Controls. Other key actors on the U.S. side include the Defense Technology Security Administration, which administers technology release policies, and the Defense Security Cooperation Agency, responsible for security cooperation and security assistance and, specifically, for FMS sales.

What India seeks is advance assurance of the technology it will receive, in fact, should it make a contract award for the benefit of or to a U.S. company. Today, it is very difficult for the USG to coordinate among the various interested and assigned agencies and render such assurance. Such doubts affect the willingness of India to consider FMS sales, the eligibility of U.S. firms to make direct sales under the DPP, and the credibility of U.S. firms as prospective partners for industrial cooperation. For U.S. companies to effectively partner with the private sector in India, or work with India’s public sector defense establishment (e.g., DRDO), the U.S. must take positive and specific acts to overcome the lingering concern that U.S. companies cannot give to the GOI, or to industrial partners, positive and timely assurance on technology release. This may require efforts that are “exceptional” in their design for India’s specific needs.

Further India-specific export reforms should be possible. For example, the Commerce Department has indicated it is prepared to remove certain export controls on India that currently are in place on the basis of “Regional Stability” or “Crime Control” reasons. Such controls affect items such as explosives detection equipment and night vision equipment, i.e., homeland security or “internal security” items, which the DPP has now made eligible for offset credit. The convergence of reforms on both the U.S. and Indian side has the potential to catalyze strategic trade between the two countries. However, for the U.S. to take such further steps, reciprocal action on India’s part will be necessary. India may need to tighten its own controls on retransfer. Iterative progress on so-called “enabling” bilateral agreements such as the Communications and Information Security Memorandum of Agreement (known as “CISMOA”) will encourage further U.S. actions.

At a high level, U.S. policy has elevated the importance of both the strategic and commercial relationship with India. From a practical perspective, however, these favorable developments are less than fully recognized by the actual bureaucratic machinery that processes export license applications. For the “strategic partnership” sought by the U.S. to have value to India, the U.S. must demonstrate a consistent pattern of timely technology transfer approvals and deliveries. Doubts as to whether the U.S. is a reliable supplier can be put to rest only by real world results.

CONCLUSION
Indian officials acknowledge that the DPP is a “work in progress” and they appear genuinely receptive to constructive criticism and new ideas. Certain measures should be taken with some immediacy. The defense capital acquisition process takes a long time to reach fruition, and is subject to unpredictable delays and detours and sometimes fails to result in contract award. Vendors incur considerable expense in preparing for competition, in making offset arrangements, and in committing to the field trials which India requires on a “No Cost No Commitment” basis. Vendors will invest and accept the results of a fair competition. But they will not participate if RFPs only occasionally lead to contract award and after interminable delays.

Another issue is how to reconcile India’s enormous public sector defense industry, and the political and economic interests it represents, with the proposition that private sector engagement must increase if India is to achieve defense self sufficiency. There is conflict between the announced objectives to increase private sector involvement and preservation of the prominence of DPSUs. A challenge is to demonstrate through successful “public-private” partnerships that mutually advantageous alliances can be achieved. The autarky which India seeks may require determined national promotion of private sector opportunities and active management of DPSU expectations and roles.
The U.S. has responsibilities as well. These include additional planning and coordination to improve the suitability of FMS as a means by which India can contract with U.S. The U.S. must continue efforts to clarify and simplify its export control regimes, and on a bilateral level must take additional steps to recognize the importance of India as regional power with whom it shares many political and geo-strategic interests. These measures, however, must be respectful of India’s sovereign interests and well-demonstrated aversion to a bilateral relationship which compromises India’s political independence and military autonomy.

Robert S. Metzger is a shareholder at Rogers Joseph O’Donnell,Washington, D.C. and San Francisco, CA, and may be contacted at rmetzger@rjo.com.
Sanjay J. Mullick is counsel at Pillsbury Winthrop Shaw Pittman LLPWashington, D.C., and may be contacted at sanjay.mullick@pillsburylaw.com