Central Information Commission
Mr.Rakesh Kumar Dubbudu vs Indian Institute Of Management (Iim), ... on 20 April, 2010
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/A/2009/003128/7504
Appeal No. CIC/SG/A/2009/003128
Right to Information Act 2005 - Section 19
Appellant - Shri Rakesh Kumar Dubbudu
Respondent - Indian Institute of Management, Ahmedabad
Decision announced: 20.4.2010
Facts:
Mr. Rakesh Kumar Dubbudu with the PIO, IIM Ahmedabad filed an RTI Application on 05/09/2009. In this Application he sought information relating to the grant of contract to conduct online CAT to Prometric. He received a reply dated 06/10/2009 from the PIO, IIM Ahmedabad.
Sl. Information Sought PIO's Reply
1. Copy of the tender notice Enclosed.
2. List of companies that put in tenders Enclosed.
for this contract.
3. Copies of all tender documents put in Information is exempt from disclosure
by the various companies. under Section 8(1)(d)
4. Copy of all complete file including
the file noting of the tender
finalization and selection of
Prometric.
5. Copy of the contract document signed
with Prometric.
6. Value of the Contract signed with
Prometric.
7. Copy of the concessional agreements There is no concessional agreement
signed with Prometric. signed with Prometric.
8. Is HRD Ministry funding this The HRD Ministry is not funding this
initiative and providing the contract initiative and not providing the contract
amount? amount.
9. Provide breakup of amount and There is no sharing of the contract
parties that are sharing the contract funding.
funding.
10. Reasons for selection of Prometric. Reasoning of decision does not come
under the ambit of RTI Act.
Page 1 of 13
The matter then came before the Commission, which, vide its Decision No. CIC/SG/C/2009/901424/5291 dated 29/10/2009 had remanded the matter to the First Appellate Authority of IIM Ahmedabad. The First Appellate Authority order noted that the PIO had informed that the CAT Centre had written to the fourteen firms who had applied for the contract asking them to respond if they had any objections if their tender documents were disclosed to the RTI Applicant. Nine firms did not respond and therefore it was assumed that these firms had no objection to parting with this information. Accordingly, the PIO informed applicant Mr. Rakesh Kumar Dubbudu that he could obtain the photocopy of the documents on payment of additional fees of Rs. 1326/-. The PIO informed the applicant that the remaining five firms had categorically stated that the documents relating to them should not be revealed. The technical details, computerization processes laid out and financial modalities are service provider specific and are proprietary information. Therefore, disclosing this information would breach commercial confidentiality, and by providing this information the Institute may be exposed to potential legal action by firms. The Appellate Authority ordered that information on nine service providers who had not responded to the CAT centre query may be given to the applicant once he makes the payment @ Rs.2 page. Regarding other information on the other five service providers, the PIO was requested to take up the matter with the CAT centre keeping in mind the spirit of the Act as well as section 10(1) of the Act.
Hearing held on 22 January 2010:
The following were present Appellant on videoconference form NIC Hyderabad studio:
Mr. Rakesh Kumar Dubbudu;
Respondent on video conference form NIC Ahmedabad, Studio:
Mr. K.S.Joshi, PIO and Prof. Satish Deodhar, Convener of CAT Both parties submitted various arguments. Appellant Mr. Rakesh Kumar Dubbudu referred to a Jharkhand High Court judgment and also stated that there is a larger public interest in getting the information since the CAT exams have been bungled. The Commission asked both to give their points briefly and send them to the Commission.
Submissions received from the parties:
The Commission received submissions from the appellant and the Convenor of the CAT Centre at IIM Ahmedabad. The main points raised in their submissions are: By the Appellant:Page 2 of 13
• The contention of 'IIMA & CAT Center' that the points 3, 4, 5 & 6 fall under Sec 8(1)
(d) is not valid. The Jharkhand High Court Bench in the case State of Jharkhand and Anr.
Vs. Navin Kumar Sinhga and Anr. on 8/8/2007 has categorically stated that the tender documents are public documents once the tender process is finalised. They do not hamper the competitiveness of the parties in any way. The Court held-
"once a decision is taken in the matter of grant of tender, there is no justification to keep it secret. People have a right to know the basis on which the decision has been taken. If tenders are invited by the public authority and on the basis of tender documents, the eligibility of a tender or a bidder is decided, then those tender documents cannot be kept secret, that too, after the tender is decided and work order is issued on the ground that it will amount to disclosure of trade secret or commercial confidence. If the authorities of Government refuse to disclose the document, the very purpose of the Act will be frustrated. Moreover, disclosure of information, sought for by the petitioner, cannot and shall not be a trade secret or commercial confidence; rather disclosure of such information shall be in public interest, inasmuch as it will show the transparency in the activities of the Government"
• Sec 8(1) (d) does not apply in this case since the tender is already finalized and it will in no way effect competitiveness of the bidders. This has been made amply clear in previous CIC judgments, Appeal No CIC/WB/C/2006/00176 and Appeal No.CIC/SM/A/2009/000981 dated 19.01.2009.
• There is huge public interest involved in this case. The 2.41-lakh students who took CAT this year and the public in general have a right to know how and why Prometric was selected and the basis on which the others were rejected. The way CAT was conducted this year and the number of court cases already pending on this matter further strengthen the argument for disclosure.
By the Convenor, CAT:
• The proposals and the contract documents describe in detail the technical and financial strategies of the firms, which are proprietary and confidential in nature. If CAT Centre were to disclose all the information, or, if it were to disclose that information which in its judgment was no proprietary and confidential, then the apprehension is that the firms may not concur with this decision of the Centre. The proposals and the contract documents contain detailed explanations of technical and financial strategies that are cross- referenced within the documents. The CAT Centre may not be in a position to clearly identify and separate that information which would not constitute proprietary and confidential strategies.Page 3 of 13
• Disclosure of final proposal of the selected firm and the contract documents would harm the competitive position of IIMs themselves. Sharing the final proposal of the selected firm and the contract documents, which give the detailed account of different, processed would bring the conduct of CAT in the public domain, benefiting competitors and compromising the brand equity of CAT.
• Disclosure of the information would harm the competitive position of the IIMs. In the absence of maintaining the confidentiality, private institutes would access to IIMs innovative ideas. Other stakeholders in the society would be interested in misusing the confidential information that is being requested for by the Appellant. For example, coaching class industry would certainly like to know more about how IIMs generate questions for the computerised test, how they are securely stored, and what the methodology of delivering them to the candidates is. If the confidentially of such information were violated then that would compromise the ability to discriminate candidates.
• During the selection process of a partner for the computerization of CAT it has become apparent that there are only a few firms in the market who have the specialized knowledge required for the computerization of test development, delivery, and result processing. Given the market dynamics, continued intention of IIMs to hold computerized test, and the possibility of knowing of each other's financial strategies, collusion may emerge among firms when the contract is to be renewed, re-negotiated, or fresh proposals are sought. Revealing rival financial strategies may lead to weak bargaining position for IIMs. As a result, financial considerations may turn out to be expensive for public institutions like IIMs. This certainly will not be in the larger public interest.
A hearing was held in Appeal No. CIC/SG/A/2009/003128 on 22 January 2010. A videoconference was conducted on that day with all concerned parties. The matter was reserved for decision. On consideration of the facts that have come before the Commission during the hearing and through the written submissions received from the parties, the Bench was of the opinion that the matter warrants the constitution of a larger Bench as there is considerable public interest involved and the legal position is not entirely clear-cut.Page 4 of 13
Division Bench then heard the appeal on 23.2.2010 through videoconference. The following were present:
Appellant Shri Rakesh Kumar Dubbudu, Appellant Shri Shirish, Assisting Appellant Respondents Prof. Satish Deodhar, Convener CAT Shri K.S. Joshi, PIO, IIM Ahmedabad Respondent Dr Deodhar, Convener CAT submitted that it is not in the public interest to disclose how the test is conducted. If the coaching classes were to learn of these details, this would disrupt the entire process of the CAT examination structure. Prof Deodhar further submitted that CAT examination is intellectual property of the IIM and if the manner of existing tender offers together with the costs accepted from year to year is known; this could lead to collusion in rising of prices. This Commission has also received a subsequent letter from Convener CAT Shri Satish Deodhar in which he has brought to the notice of the Commission that appellant Shri Rakesh Kumar Dubbudu is an employee of Oracle India (P) Ltd., one of the competition firms, which is the address that he has given in his RTI application. Upon this, Shri Rakesh Kumar Dubbudu took objection accusing respondent of character assassination and stated that he has mentioned that address of Oracle India (P) Ltd. because that is his official address, but as he has clarified in the initial application "this application is in my personal capacity as a citizen of India". In response Prof Deodhar clarified that this fact had been given only for the information of the Commission to make of it as it would and that no accusation was made.
On his part, besides, appellant submitted that in claiming exemption u/s 8(1) (d), CPIO has simply quoted the clause without giving any reasons as to how the information sought would be in violation of sec. 8(1) (d). He also submitted that the claim of respondents that they had written to third party seeking their "no objection" is false because no such claim was made in responding to the initial application. This was done only at the level of Appellate Authority. Appellant Shri Dubbudu further submitted that he would have accepted any substantiated claim for exemption had respondents acted in accordance with sub sec. (1) of Sec. 10, but it would seem that CPIO is not even aware of this provision. Respondent Prof. Deodhar, however, submitted that if ordered so to do, he would re-examine the tender notices and bid received in accordance with sec. 10 but submitted that these are 2700 pages and examination of this bulky source of information would require that he divert his attention from all other work. In his view, Page 5 of 13 disclosure would diminish the value to the public of the present examination system and, therefore, would be against the public interest to disclose.
Information Commissioner Shri Shailesh Gandhi enquired of the respondents whether this system was unique to IIMs to which he received the response that there are other organizations that also rely on the CAT system.
INTERIM DECISION Upon this the Commission found that in the information sought, the impugned response is only with respect to questions 3, 4, 5 & 10. These questions and the PIO's reply to each are as follows:
Sl. Information Sought PIO's reply.
No.
3. Copies of all tender
documents put in by the
various companies
4. Copy of all complete file
including the file noting of the
Information is exempt from
tender finalization and
selection of Prometric. disclosure under sec. 8(1) (d).
5. Copy of the contract document
signed with Prometric
10. Reasons for selection of Reasoning of decision does not
Prometric. come under the ambit of RTI Act.
We have in earlier decision had occasion to rule on the question of disclosure of bids on offer after the contract has been awarded, in light of the exemption allowed u/s 8(1) (d). In the earliest such case, we have held in Complaint No. CIC/WB/C/2006/00176 decided on 13.6.06, as follows:
"A contract with a public authority cannot be categorised as 'confidential' after completion. Even if some confidentiality is involved, public interest in a matter of the nature of the present case will warrant disclosure. Had it been a case of quotations, bid or tender or any other information prior to conclusion of a contract, it could be categorized as trade secret, but once concluded the confidentiality of such transactions cannot be claimed. Any public authority claiming exemption must be put to strictest proof that the exemption is justifiably claimed. This is not so in the present case."
Similarly, our decision in Appeal No. CIC/SM/A/2009/000981 decided on 4.11.09 is as follows:Page 6 of 13
"The Respondent reiterated the same arguments and claimed that the quotations offered by various bidders for the renovation/repair work as well as the bills which were reimbursed to the contractor were in the nature of commercial confidence, the disclosure of which would affect the competitive position of the concerned parties and, therefore, should not be disclosed. We do not at all agree with this line of argument. The tender process cannot remain a confidential affair after the tender is finalized and the successful bidder selected and appointed. When the bidders take part in a tender process, they do so in response to an open public invitation of bids. To argue that their quotation is a confidential transaction between them and the Public Authority even after the tender is finalized is totally contrary to the objective of transparency expressly sought to be promoted by the Government in the area of procurements of goods and services. In fact, such information should be suo moto placed in the public domain by the Public Authority without having to be told to do so. Similarly, the application of an individual for securing a job cannot be a confidential document by itself. If it contains details other than what was strictly excepted as per the recruitment rules for the post, those details can, however, be severed before parting with the document."
In light of the above, and in view of the submissions of both parties before us, we felt that in this case the IIM claiming exemption must in its turn be put to strictest proof that the exemption is justifiably claimed. For this reason, we required to examine the documents. Prof Satish Deodhar, Convener, CAT was, therefore, directed to present these documents before us in Room No. 306, August Kranti Bhawan, Bhikaji Cama Place, Mohammad Pur, New Delhi on 12.4.2010 at 10.00 a.m. to enable us to arrive at a decision on this issue. Reserved in the hearing, this Interim Decision was announced on this 26th day of February, 2010.
In compliance the documents were then presented on 12.4.2010 at CIC chambers. The following are present:
Respondents Prof. Satish Deodhar, Prof. & Convener, CAT Shri K. S. Joshi, E.O. & PIO Subsequent to the last hearing, we have also received a petition from Prof. Satish Deodhar dated 5.2.10 in which he has submitted as follows:
"I would like to reassure you that IIMS always make an honest and sincere effort to respond to RTI queries. In this context, we would be glad to share the following documents:-
1. Pre-qualification proposals by nine service providers who did not respond to us to withhold their proposals (pages 707).
2. Minutes of the meeting held to short-list service providers (pages 5).
3. Minutes of the meeting held for final selection of a service provider including all the appendices except appendix II (pages 9)."Page 7 of 13
The argument that respondent has submitted in refusing the remaining information is as below:
"B 1. Harms competitive position of third parties (Section 8 (1) (d)) a. Five service providers have sent official letters clearly mentioning their reservation for information disclosure. Some clearly allude to harming of their competitive position.
b. Both at the pre-qualification stage and short-listing stage, service providers have printed clear instructions at the bottom of each page of their proposals that the information provided in the pages is private, confidential and proprietary.
B2. Harms competitive position of IIMs (Section 8 (1) (d)) a. Domestic competition: There are quite a few domestic organisations in private sector with their own entrance tests for management education (e.g. XMAT, NMAT, MAT, etc). IIMs certainly do not want them to know the financial and technical strategies followed for CAT computerization as brought out in the proposals and contract documents. Under the garb of RTI public are asymmetrically duty bound. Vis-à-vis domestic private institutions and are completely disarmed in their efforts to retain competitive edge.
b. Foreign competition: International organizations which conduct their own aptitude/ entrance tests for management education (e.g. GMAT) are vying with CAT to capture the Indian educational testing market institutions like IIMs. For example, after establishing their offices in US and UK, GMAT has recently set up its third international office in India. IIMS certainly do not want them to know the financial and technical strategies followed for CAT computerization which are quite India specific. Leads and hints of these strategies get revealed in the proposals and contract documents. Under the garb of RTI, Indian, national, public institutions like IIMs are asymmetrically duty bound vis-à-vis foreign institutions and is completely disarmed in their efforts to retain competitive edge.
B 3. Not Serving (Harming) Larger Public Interest (Section 8 (2)) a. IIMs are established to serve larger interest of society. CAT is conducted to select thousands of innately good candidates and train them for a few years so that they will serve the society. Moreover, CAT scores are also used by 155 non-IIM institutions spread all over India to select many more thousands of candidates who will get training in management education. If CAT processes and computerization strategies become available to stakeholders such as coaching classes and candidates, ability of 155 management institutions and of IIMs in selecting innately good candidates will be thwarted and this is not in the larger public interest. b. As academic institutions, IIMs and their faculty have the responsibility to come up with novel, innovative concepts that will enhance their contribution to society. Computerization of CAT, particularly in the typical Indian market conditions, is one such concept initiated by IIMs. Under the garb of RTI queries, if their ideas get shared with free riding stakeholders of the society (competing testing organizations, coaching classes and candidates), IIMs ability to build ability to intellectual capital in the area will be seriously compromised. This will affect their ability to Page 8 of 13 improve processes to select innately good candidates not only for themselves but for 155 non-IIM member institutions. Public interest is harmed in the process by thwarting improvements in selection process for IIMs and non-IIM member institutions.
c. As public institutions serving the society, IIMs would like to economize on the nations resources. While engaging with private service providers, public institutions serving the society, IIMs would like to economize on the nations resources. While engaging with private service providers, public institutions negotiate hard to get best possible pecuniary and technical benefits and save precious resources for the society. It is important to know that even now the competing service providers who bid for the computerization contract do not know each other's financial or technical strategies. If these are made public, then there is distinct possibility that when the contract is due for renewal or fresh bids, the competing service providers may either collude or will not submit financial proposals as economical as they would have if they had not known the financial strategies of others. In the process additional, precious financial resources of the society would be wasted as the bargaining position of public institutions like IIMs would be weakened due to the disclosure.
B4. Applying Severability is extremely difficult & risky (Section 10 (1)) a. We understand that a public institution may part with those texts of the documents, which can be severed from the ones that are confidential and/ or the eligible for exemption from disclosure. However, in our opinion, disproportionately large and substantive texts are confidential in nature and any attempt to sever such text from about 2500 pages would be extremely difficult and risky.
b. Technical details regarding server and lab security standards, Applying Severability is extremely difficult & risky (Section 10 (1)) c. infrastructure solutions, test centre networking, organizational structure and execution plans, statistical procedures, equations, sealing of scores, phasing and scheduling of test days, description of process to assist in generating thousands of questions ,discussion about ownership of questions ,tests, software Programmes, data collection, key descriptions of specialized personnel and their responsibilities in the execution of project, and candidate care services are highly confidential, and, important are spread and cross-referenced throughout the documents. It is extremely difficult and risky to attempt severing two kinds of information.
d. Details of financial strategies in terms of fees, method and duration of fee collection, pecuniary incentives for psychometric research, project management, question bank development, public relations, and extent of liabilities negotiated by each of the service provider are highly confidential, and importantly, are spread and cross-referenced throughout the documents. It is extremely difficult and risky to attempt severing two kinds of information.
B5. Risk of exposure due to petitioner's work place association. a. Mr. Dubbudu works for the US based multinational firm Oracle and has provided his Oracle address in all his correspondence. It is of interest to know that Oracle has partnered with Pearson to deliver their online certification examination, and, importantly, it is the same Pearson, which lost the IIM contract to Prometric. It is also relevant to know that Oracle had partnered with Prometric in the past for their online tests. Thus, Mr. Page 9 of 13 Dubbudu may or may not represent the firm Oracle in this RTI, however, his association with that work place creates possibilities of harm to competitive position of other service providers. Inadvertent or otherwise. As you are aware, five service providers have written to us about their reservation to share documents and that most of them printed 'confidential and proprietary' message on each page."
The entire case hinges around the subject of computerization of CAT exams. Respondent Prof. Satish Deodhar, Convener, CAT submitted that the competitive position of the party does not end with the award of contract, since contracts are also subject to review. This could compromise the competitive position of the winner of the contract.
Dr. Deodhar also submitted the computerization of the CAT exam is a new experiment and is looked upon with a degree of jealousy by institutions across the world. In this context, he cited the example of US based G-MAT who have recently opened their offices in India and would wish to compete with CAT in supplying computerized examination systems to IIM & other institutions. He also submitted that at the time of the initial response to the application of appellant Shri Dubbudu, he had spoken to the third parties only on the telephone. Subsequently, he had written to third parties and obtained their responses.
The Bench, then proceeded to examine the responses. These are as follows:
1. A.B.C. Assessment Services P. Ltd.
This firm has requested that no information contained in their tender documents should be disclosed.
2. Attest Testing Services Ltd.
This firm has a confidentiality notice enclosed with its tender documents in which it asks for confidentiality except in respect of such information, as is already known.
3. Prometric Testing P. Ltd.
The firm that won the contract has an encompassing objection to the disclosure of any component of the standard document.
4. Eduquity Career Technologies P. Ltd.
This firm has advised that CAT may disclose part of the information selectively.
5. NCS Pearson (India) Ltd.
Page 10 of 13NCS Research has permitted disclosure of such information not classified as confidential.
No response has been received from nine firms, and of which CAT is ready to share the information sought. Of those addressed, as can be seen only five have objected and all of them not comprehensively Respondent Prof. Deodhar submitted that the whole issue has been carefully considered, even though it is without precedent. CAT is a strong supporter of transparency and its functioning has generally been sufficient to meet the highest demands of such an exercise. However, on the question of the highly competitive area of computerization of examinations, although it would be ready to disclose the information, is and as directed by the Commission, he was of the view that this could dangerously compromise the whole examination structure, given the positions of competitive vendors, those using the systems to obtain the best quality of student material and the candidates themselves. Dr. Deodhar was, therefore, sought an opportunity to consult with other experts in the field and to revert to this Commission with the report through Email addressed to [email protected] / [email protected] by or before 20th April, 2010, after which this Commission will be free to issue its decision. This request was agreed to. Prof Deodhar, in an e-mail of has submitted as follows:
In the context of issues related to competitive position of third parties such as the service providers and IIMs [clause 8(1)(d)], larger public interest [clause 8(2)], and severability [clause 10(1)]; in our opinion we will we happy to share the following information to the petitioner:
DOCUMENTS REMARKS PAGES
I. Minutes of the meeting held to
All pages to be provided 5
short-list service providers
II. Minutes of the meeting held for Minutes pages 1-5, Appendix I (2 pages);
final selection of service Appendix III ( 1 page); signature page (1 9
provider page)
III. Contract Documents
Master Service Agreement All pages to be provided 9
Statement of Work Pages 1,2,5-8, 12, 14,and 17 9
IV. Pre-qualification Proposals:
CHK Data Systems All pages to be provided 3
A & S Software Group All pages to be provided 26
Page 11 of 13
CMC Limited All pages to be provided 140
Core Projects and
All pages to be provided 322
Technologies Ltd.
Datamation Consultants
All pages to be provided 107
Private Ltd.
HCL Infosystems Ltd. All pages to be provided 43
National Stock Exchange of
All pages to be provided 24
India Ltd.
Satvat Infosol All pages to be provided 28
Sify Technologies Ltd. All pages to be provided 18
Articles of association: (All 167
pages)proposal text: (pages 1-12 & 49-
200
Attest Testing Services Ltd. 64)
Brochure (All 6 pages)
Proposal text: pages 1,2,4,5, and 14-20
83
NCS Pearson (India) Pvt. Ltd. GMAC candidate profile: (all 72 pages)
Eduquity Career Technologies Brochure: (all 8 pages)
17
Pvt. Ltd. Proposal text: (pages 2-12,16-18,36-38)
Prometric Testing Pvt. Ltd. Proposal text (pages 1-5, 7-9 & 17) 9
ABC Assessment Services Pvt.
All pages to be provided 23
Ltd.
V. Post Short-listing proposals
Aptech Annual Report: (all 117 pages)
Attest Testing Services Ltd. Proposal text (tech; fin): (pages 1-12, 21- 154
29, 153-154, 156; 1-5, 12-19
Proposal text: 1.1-1.6; brochures, about
25 pages; other reference material, about
NCS Pearson (India) Pvt. Ltd. 12 pages; Pearson annual report: (all 108
190
pages); GMAC annual report: (all 15
pages); MeritTrac annual report: (all 36
pages).
Eduquity Career Technologies Proposal text: (pages 1-9, 16-18, 82-84,
24
Pvt. Ltd. 89-93, balance sheet: (4 pages).
Prometric Testing Pvt. Ltd. Proposal text: (i-iv,1-4, 6-11, 14, 75) 16
Total number of pages: 1459
This appeal is accordingly allowed. The information, as agreed, will now be provided to appellant Shri Mr. Rakesh Kumar Dubbudu within ten working days of the receipt of this Decision Notice. But because the refusal of the information in the first instance had been in good faith, there will be no costs.Page 12 of 13
Reserved in the hearing, this decision is announced after receiving the written submissions of respondents on this twentieth day of April 2010. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) (Shailesh Gandhi)
Chief Information Commissioner Information Commissioner
20.4.2010
Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 20.04.2010 Page 13 of 13