INDIA Law and Practice Contributed by: Alina Arora, Samarth Gupta and Parth Singh, Shardul Amarchand Mangaldas & Co
tion, on bidders from countries sharing a land border with India. 2.11 Transparency and Confidentiality Transparency is the default; security is the excep - tion. Tender notices, corrigenda, and award details for unclassified procurement are published on the Central Public Procurement Portal and the defence e-procurement portal, with certain exemptions (con - fidentiality/national security/classified nature). 2.12 Modification and Termination of Defence Contracts Modification after award is by written amendment signed by both parties and approved at the applica - ble level of delegated financial power. Generally, the contract itself is flexible, including: • option clauses for additional quantities; • repeat orders; • price variation; and • delivery extensions on stated conditions. The standard contract prescribed in the DAP 2020 provides termination grounds such as default, insol - vency, prolonged force majeure, corrupt practice, and false declarations. It also allows the government to terminate for convenience on written notice, with a takeover or compensation mechanism for in-produc - tion goods. 2.13 Challenging Defence Procurement Decisions India does not have a dedicated defence procurement tribunal. Aggrieved bidders typically petition the juris - dictional High Court or the Supreme Court, where a fundamental right is breached. Standing ordinarily lies with tender participants and public interest petitions by non-bidders are entertained sparingly. The court reviews the decision-making process, rather than the commercial merits of the decision – for exam - ple, in the Rafale litigation ( Manohar Lal v Narendra Modi ), the Supreme Court declined to go into pricing or choice of the OEM’s Indian offset partner. Grounds for review are illegality, irrationality, procedural impro - priety, bad faith, and public interest. No standstill applies to the procurement process during pendency
of court proceedings, unless the court specifically grants an interim relief. The usual remedy is for the court to quash the deci - sion and direct reconsideration. Damages are typically not awarded in writ proceedings. 3. Export Controls and Dual-Use Items 3.1 Export Control Legislation and Regulatory Framework Export controls in India operate through the FTDR Act and its allied instruments – ie, the FTP and its Handbook of Procedures 2023 (HBP), which carries the strategic trade control procedures. The FTDR Act imposes controls (including catch-all controls) on the export, transfer, re-transfer, transit and brokering of specified goods, services and technologies. The WMD Act governs activities relating to weapons of mass destruction and their delivery systems and sup - plies the penal provisions applied by the FTDR Act. The Customs Act 1962 provides for border enforce - ment; the Arms Act and Arms Rules govern arms and ammunition; and the Chemical Weapons Convention Act 2000 and the Atomic Energy Act 1962 apply to their respective categories. The licensing and administrative regime of Category 0 (nuclear and nuclear-related) items is governed by the Department of Atomic Energy (DAE); Category 6 (munitions) items by the DDP; and items in other cat - egories by the DGFT. Applications are assessed by an inter-ministerial working group (IMWG) comprising representatives of relevant ministries and departments (including the MEA, the MoD, the DAE, the Depart - ment of Space, and the Cabinet Secretariat). Border enforcement is undertaken by the customs authorities and the Directorate of Revenue Intelligence (DRI). 3.2 Scope of Controls: Military and Dual-Use Lists India maintains a single consolidated control list – ie, the SCOMET list, published as Appendix 3 to Sched - ule 2 of the Indian Trade Classification (Harmonised System) of export and import items. The list is organ - ised into nine categories (0 to 8):
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