Category Archives: Defence Law

Indian Defence Market

India’s new defence policy opens up $100 billion market.   India is a tenth largest
defence buyer in the world with an estimated 2.5% of the global defence expenditure.  A recent report puts India’s defence expenditure in the range of USD 32 billion which is set to rise to USD 42 billion by 2015.  The capital expenditure on new weapons platforms will also rise from the current USD 13.04
billion to 19.02 billion in 2015.  For the XII five year plan (2012 -2017), India’s expenditure on weaponry is pegged at USD 120 billion.

Since 2001,  the defence industry had been liberalised and opened for private sector with participation upto 100% and allowing foreign direct investment upto 26%.  The private sector defence supplier is composed of around 5000 companies.  It accounts for around 20% Indian defence market in value terms and the rest of requirements are met through import.  The government has set the target to procure its 70% requirement from indigenous supplier.

Homeland Security Market

India’s homeland security agencies, which primarily consist of the paramilitary forces, state and central police forces and the intelligence agencies, function under the aegis of the Indian Ministry of Home Affairs (MHA). As maintenance of law and order is a state subject, all 28 Indian states maintain considerable police, armed police and special police forces. Provisioning and procurement of all items for the modernization of central police forces is handled by the Police Modernization Division (PMD) of MHA. The Indian Government through MHA is likely to spend over $ 7.5 billion and state governments close to $ 2 billion on the modernization of their police and para-military organizations in the next 3-5 years. The bulk of the expenditures will be on arms, ammunition, transport, communication equipment, bullet proof jackets, and explosive handling devices.

India Defense Market

India is one of the world’s fastest-growing defense/ security equipment market, recently India was ranked as the world’s fastest-growing security equipment market. India will be spending $30 billion in the next five years and further $100 billion over the next decade. India offers tremendous opportunities for U.S. defense and technology companies in aerospace, government contracting, and homeland security. But to meaningfully participate in the India defense opportunity, one must understand and be prepared to navigate through some nuanced and complex terrains.

The security equipment are purchased by each department, state police, Airforce, Army and Navy based on their requirements. Every purchase order is done through the public bidding process comprising of technical and price bid. The final decision is taken by the committee formed for the purpose of the purchase of specific equipment. The bid documents contain the detailed specification of the equipments and the process for participating in the bid.

Indian government has revised the purchase policy to encourage the local Indian companies to manufacture and develop the technology. The Defence Procurement Procedure (DPP), which governs procurement by the Indian Ministry of Defence (MOD). The DPP sets out the Government of India’s (GOI) policies for every step in the procurement process, from acquisition planning to preparing requests for proposal (RFPs). Compliance with the DPP is essential to competing effectively for Indian defense contracts.

In November 2009, the MOD amended the DPP and added an important fourth procurement category called ‚Buy & Make (Indian).‛ Under Buy & Make (Indian), the RFP will be issued only to Indian vendors, who in turn can decide what foreign suppliers to involve. This is intended to more effectively incentivize technology transfer and co-development in India.

Buy & Make (Indian) is aimed at helping promote indigenous capabilities by driving technology transfer, joint ventures, licensed production and in-country manufacture. The MOD has not yet publicly indicated which projects will be designated Buy & Make (Indian), but for those which are so designated, Indian bidders will be in control of the process. Thus, non-Indian companies that wish to participate in this category of procurement should think ahead about identifying prospective Indian partners and crafting collaborative arrangements that can satisfy these requirements.

There are various of reasons why agents may be necessary in defense and homeland security bidding. Bidders without an institutional presence in-country may believe it is particularly necessary to have third parties acting on their behalf. But one needs to proceed with caution under the Indian defense procurement rules on agency. The Indian government is particularly sensitive to the role of agents in defense procurement. Penalties for non-compliance can include disqualification from the procurement, cancellation of the contract, and debarment from future bidding.

Indian Defence Offset Policy

Indian Defense Offset policy provisions will apply to all Capital Acquisitions categorized as ‘Buy(Global)’, i.e., Outright Purchase from foreign/Indian vendor, or ‘Buy and Make with Transfer of Technology’, i.e., Purchase from foreign vendor followed by Licensed Production, where the indicative cost in the Request For Proposal (RFP) is Rs 300 crore (USD 75 million) or more.

Initially, a uniform offset of 30% of the indicative cost of the acquisition in ‘Buy(Global)’ category acquisitions and 30% of the foreign exchange component in ‘Buy and Make’ category acquisitions will be the minimum required value of the offset. Based on a review of the experience of implementing these provisions, the minimum offset percentage for the following two years will be prescribed with the approval of the Defence Acquisition Council.

The DAC may, after due deliberation, also prescribe varying offset percentages above 30% for different classes of cases or for individual cases depending upon the factors involved such as strategic importance of the acquisition or technology, enhanced ability of Indian defence industry to absorb the offset, export potential generated, etc.

These provisions will also apply with appropriate modifications to ‘Buy’ and ‘Buy and Make with TOT’ components for warship construction where the value of individual contracts is Rs 300 crore or more. In such cases, references to the acquisition wing will mean the DDP or shipyard which is building the ship and procuring the system or sub-systems.

Defence Offset Obligations

For the purpose of defence purchases made under the DPP 2006, offset obligations shall be discharged directly by any combination of the following methods:

Direct purchase of, or executing export orders for, defence products and components manufactured by, or services provided by, Indian defence industries, i.e., Defence Public Sector Undertakings, the Ordnance Factory Board, and any private defence industry manufacturing these products or components under an industrial licence granted for such manufacture. For the purpose of defence offset, “services” will mean maintenance, overhaul, upgradation, life extension, engineering, design, testing, defence related software or quality assurance services.

Direct foreign investment in Indian defence industries for industrial infrastructure for services, co-development, joint ventures and co-production of defence products.

Direct foreign investment in Indian organisations engaged in research in defence R & D as certified by Defence Offset Facilitation Agency (DOFA).

The Indian defence industries or organisations concerned are here after referred to as the Indian offset partner.

The offset obligations are to be fulfilled coterminous within the period of the main contract.

All offset offers which satisfy the minimum eligibility conditions will be placed on par and no preference will be given for any extra amount offered.

The advisability of giving additional weights to offers having multiplier effects in terms of exports generated or building indigenous capability in strategic technology products, or other issues may be considered after reviewing the experience of implementing the above policy.

Defence Offset Facilitation Agency

The Ministry of Defence will establish a ‘Defence Offset Facilitation Agency’ (DOFA) under the DDP as a single window agency to:

Facilitate implementation of the offsets policy.
Assist in vetting offset proposals technically.
Assist in monitoring the offset provisions.
Suggest improvements in the policy and procedures.
Interact with Headquarters Integrated Defence staff and Service Headquarters.
Advise, in consultation with the Headquarters Integrated Defence staff, Services and Defence Research and Development Organisation, areas in which offsets will be preferred.
Promote exports of defence products and services.
Provide advisory clarifications on the policy and procedures (in consultation with the Acquisition wing wherever necessary).

Read complete article at Defense Offset Policy India