CA Amresh Vashisht
As per Clause 6 of Part I of First Schedule of the Chartered Accountant Act as under:
“Clause (6): solicits clients or professional work either directly or indirectly by circular, advertisement, personal communication or interview or by any other means: Provided that nothing herein contained shall be construed as preventing or prohibiting-
(i) Any chartered accountant from applying or requesting for or inviting or securing professional work from another chartered accountant in practice.
(ii) A member from responding to tenders or enquiries issued by various users of professional services or organizations from time to time and securing professional work as a consequence;”
This clauses (i) & (ii) were not there till 2006. Those who are responsible for these changes are the real culprit. The beginning of tendering from 2006 has ended the brotherhood among the professionals and our fraternity has started lobbying, fraudulent human ways and methods to secure the tenders. The lack of will power to fight this menace is not getting any space in the council working. In the last three years, they have failed to take any concrete policy on the same.
Let’s see how this problem cropped up and nurtured by our own leaders. As early as in 1984, a set of proposals for amendments in the Chartered Accountants Act, 1949, was forwarded to the Central Government for its consideration and approval. The same was returned by the Government in August, 1992 for making an overall review of the said proposals, At the relevant time, the Perspective Planning Group (PPG) constituted by the Council .The PPG submitted its Report to the Council in December, 1992. Thereafter, the Council in June, 1993, reviewed the proposals submitted to the Central Government in 1984 along with submission of new proposals in October, 1993, The discussion were still there till March, 2001.However, in October, 2001, the Central Government requested the ICAI to reconsider the latter’s proposal among other things the changes being brought about by WTO related developments etc.
Again in March, 2002 a Working Group constituted for review of amendments in the Chartered Accountants Act, 1949 and the Regulations framed there under. The Working Group was asked to make its recommendations .From 2003 onward the process of amendment has started. It was led by the present Finance Minister Arun Jaitely who was Law Minister at that time. The amendments were also carrying for dilution of autonomy of ICAI and were having the hardest amendments. Thank GOD, The final shape only came out when the UPA 1 came in to power which carried the amendments with sympathetic approach. With these amendments, the undercutting and tendering was allowed. With these amendments the Council also secured blind powers to punish any member who in their opinion disrepute the profession. It is being used against the whistle blowers of the institute but it was never tried against those who quoted Re 1 or Rs 2 as audit fee per entity.
The relaxation in responding the tenders was glorified as achievement for council. While forwarding the Code of Ethics 11th edition the then President CA Ved Jain wrote “Whether the notification imposing ceiling on non-audit fees, norms relaxing the criteria in responding to tenders of government agency or similar organizations or permitting the members to publish passport size photograph in their website, the Council, at its own wisdom, appreciated the changing scenario in the world order and the emerging opportunities of the profession.’’
However in practical, with the start up of legalize backing of council in tendering, the problems started from day one. There were many representations from the CA firms about the games being played by their own professional brothers. Our firms started the cut throat competition and criminally cohobate the authorities to put the abnormal conditions so that majority may go out for auditing the institutions. Many representation from members forced PDC to take up the issue. The 187th Meeting of the Professional Development Committee held on 14th July, 2009 has taken up the cause of tendering by way of collecting the data and to make a policy on the matter. A pace was set to analyze the kind of tenders which are being floated in the market and response thereof, the office has sent survey letters to all those whose tenders have been hosted in the PD Portal since 2008 requesting for following details:
- Application Money, if any. If yes, please state the amount
- Security Deposit, if any. If yes, please state the amount
- of applications received from the tender
- Range of fees quoted by bidder
- Lowest Bid
- Highest Bid
- Whether the assignment was allotted to lowest bidder (Yes/No). If No, reasons for non allotment of assignment to lowest bidder
- In case, not through tendering/ bidding process, the assignment fees paid to the CA/ Firm appointed for the purpose.
However the unwillingness at the part of PDC has resulted in ZERO response from the firms and authorities. No further action was seen in the matter. Though the president desired again and again that Ethical Standard Board should develop suitable guidelines to curb all the ills of this practice and while framing guidelines, the following may be considered:
a. Wherever any tender violates or compels a chartered accountants to violate the Code of Ethics, chartered accountant should not only abstain from doing so but should also report the same to the Institute for taking further necessary action.
b. Some way may be devised to ensure implementation of engagement and Standard on Quality Control and Code of Ethics in conduct of various assignments.
c. While formulating the approved guidelines, the recommendatory scale of fees may also be kept in view and it should be emphasized that the chartered accountants and firms thereof may be motivated / inspired to follow the recommendatory scale of fees while quoting for various tenders, advertisements and circulars, etc.
d. The President had also directed that Ethical Standards Board may propose guidelines with a view to streamline the prevalent practice while responding to tenders etc. and enhance the image of the profession. Nothing came out from the assurances of the council.
A legal opinion from the office of the Solicitor General clearly mentioned that ICAI can formulate the guidelines to control the tenders for chartered accountant services. As per the office note No. 29-CA/Law/NDM-663 dated 20th August, 2009 received from Legal Section containing opinion received from Shri Parag P. Tripathi, Additional Solicitor General of India there is no bar at the part of ICAI to make such guidelines. The recommendations of PDC Requirement of earnest or deposit money while responding to tenders or enquiries issued by various users of professional services or organisation from time to time have been taken up by the Council in its 291st Meeting on December, 2009 decided to refer the matter to the Ethical Standards Board.
However Ethical Standard Board vide its office note no. 29-CA/ESB-337/2009 dated 27th January, 2010 mentioned that the matter was placed before the 109th meeting of Ethical Standards Board held on 5th January,2010. The Board decided that the responding to tenders, advertisements, circulars and other enquiries by chartered accountants and firms is purely a contractual matter and as such there is no need to draft any guidelines in this regard.
The professional Development Committee was looking after the overall development of this menace. The 189th Meeting of the Professional Development Committee held on 11th March, 2010 at New Delhi considered the matter and declare that :-
A chartered accountant is a professional rendering specialized services (not dealing in a commodity which can be treated as per its quality/quantity) and not quoting or bidding for any property/asset etc. which require him to pay anything at the end of the day. The PD Portal of the Committee regularly host various tenders/opportunities available for chartered accountants/firms thereof on its own website and the same are also mailed to all the members through daily knowledge capsule. The Committee authorized the Chairman to do the needful. The Chairman has opined that if there is a huge (abnormal) difference between the lowest quote received for a tender (on which the tender is ultimately allotted) and the next lowest quote, then peer review of the said assignment and/or concerned chartered accountants/firm thereof can be ordered. The committee later on forwarded the note to peer review board. Thus a decision was made and directed the office to frame guidelines to be followed by firms while responding to tenders subsequently to be forwarded to ESB and then to Council for approval.
A delegation from Institute met Shri P. C. Chaturvedi, Secretary, Ministry of Labour and Employment on July 8, 2010 and presented an approach paper dealing with the major schemes run by the Ministry and the role CA’s can play in areas like accrual accounting, internal audit, etc. Shri Chaturvedi , the then secretary expressed his grave concern on the tendering process for utilizing the services of Chartered Accountants and emphasized that L-1, i.e. lowest bidder, cannot be the sole criteria of selecting a professional for a qualitative job. He urged the Institute to look into the matter and ensure that tendering process, which is gradually becoming an exploitation tool in the hands of allotting authorities, should not become an obstacle for the qualitative performance of the chartered accountants. It was in perfect tune with the Planning Commission note that CA services are not products hence no tender can be invited.
In view of the legal opinion that the Institute can formulate guidelines under Clause(6) of Part I of First Schedule to the Chartered Accountants Act, a office note was sent to ESB to include ethical considerations while preparing the Draft Guidelines to streamline the process of response to various tenders, advertisement, circulars, or enquiries by chartered accountants and firms.
1. A clause requiring members to respond to “tenders” only in case there is no condition of depositing earnest money/security etc. for making application. Many tenders require applicant to pay along with the application (request for proposal), earnest money or security deposit. A chartered accountant is a professional rendering specialized services (not dealing in a commodity which can be treated as per its quality/quantity) and not quoting or bidding for any property/asset etc. which require him to pay anything at the end of the day.
2. A clause requiring that members should respond only in case the scope of work is indicated clearly because it has been observed that most of the tenders are not clear as to the scope of work to be performed in the proposed engagement which at times is a potential source of dispute between the parties involved.
3. A clause requiring that a member may respond to “tenders” only in case of conditions specified in the tender are generic in nature. Many a times, authorities do have restrictive clauses like turnover of the firm, number of partners, number of chartered accountants in the firm, etc. in their tenders which allow only certain specified firms to apply for such tenders.
4. Whenever any tender invites chartered accountants to respond which may involves violation of the Code of Ethics, a member should not respond but also report the same to the Institute for taking further necessary action.
5. The re-commendatory scale of fees to be used as a benchmark by member while quoting for tenders be incorporated in the guidelines.
6. A clause may be incorporated to ensure implementation of Quality Control and Engagement Standards and Code of Ethics in conduct of various assignments. The inclusion of such a clause is required only in case the same is not covered elsewhere including Code of Ethics.
For years, no council member has tried to explore any possibility to get rid of this menace. No one has tried to put a responsibility clause to all such deals where the capability of the bidder in all respect to perform fully the contract requirements and the integrity and reliability to assure performance of the contract obligation. None has tried to put some restriction to such practice for inadequate tenders bearing prices too low. No one has tried to put some restrictions where bidders appear to have no resources to complete the work.
The only work on this menace surfaced during the tenure of CA Amarjeet Chopra as president .Meeting held with the respective departments, authorities and it was taking a final shape that this menace shall be dealt finally. But as always happen, our leaders don’t follow their predecessor’s foot step and took their own step forward. The movement against tendering died with the demitting of office of president by Amarjeet Chopra.
As a President, CA Amarjeet Chopra has taken a lead to curb this malpractice. Interesting news has appeared in the year 2010 which suggested that the government is likely to ask all departmental enterprises and agencies, such as the National Highways Authority of India (NHAI), to dispense with the system of tender-based appointment of internal auditors. Instead, the Comptroller and Auditor General of India (CAG) and the Institute of Chartered Accountants of India (ICAI) will jointly finalise a panel of eligible audit firms for different categories of projects and entities, based on the project size, number of locations and turnover. For each category, there will be a fixed fee and the agencies will be free to select any auditor from the panel.
For instance, the CAG-ICAI team will formulate eligibility criteria for audit firms to participate in auditing projects that come under various categories such as: up to Rs 100 crore, Rs 100-200 crore and Rs 200-500 crore, and empanel firms for each sector. The minimum fee for each sector will also be fixed by the joint mechanism that will be set up by CAG and ICAI. This, government officials said, will help reduce instance of unhealthy auditing practices. ICAI has been complaining that many of its members are quoting unrealistically low amounts and this opens up the possibility of them colluding with the agency whose projects are being audited. Hence some agreed points surfaced.
a. Government agencies like NHAI may be asked to stop tender-based appointment of auditors
b. CAG, ICAI to prepare a panel of eligible auditing firms
c. ICAI says many of its members were quoting unrealistically low fees to win auditing assignments
d. Agencies to select auditors from panel at pre-determined fees
Thus the institute had raised the issue with CAG and other government agencies, such as the Planning Commission, seeking a change in norms. It had pointed out that agencies such as NHAI and the Organizing Committee for Commonwealth Games were following the system of awarding audit work to firms that quoted the lowest fees, known as L1 in official parlance.
CA Amarjeet Chopra, the then president of ICAI quoted in the National Daily that “We have raised our concerns about issues such as deposit of earnest money and the system of L1 tenders, as chartered accountants’ are professionals whose services cannot be sought in that manner acceptance of lowest tender is not desirable in all the cases, as there could be compromise on (auditing) quality”.
CAG, officials had in turn discussed the matter with the Planning Commission, which has said that it is not averse to the proposal. The new mechanism is expected to be in place over the next six months but unfortunately years passed , nothing came out from a 32 member ICAI council. After a gap of three years , tender again appeared in The Chartered Accountant, an official mouth piece of ICAI in JULY 2013, through CA Subodh Agarwal , President message which talked about the inappropriate response to tenders and mention that It has been observed that some members quote abnormally low fee while responding to tenders, which gives birth to a suspicion over the seriousness and quality of their delivery. We had decided in 2010 that if there is a huge (abnormal) difference between the lowest quote received against a tender (on which the tender is ultimately allotted) and the next lowest quote, then peer review of the said assignment and/ or concerned chartered accountants/CA firm thereof can be ordered. The Council later had decided in December 2010 that a cost-sheet be maintained by members of the Institute responding to tenders and accepting professional work, incorporating the details of cost, personnel, hours, etc., which the Institute may call for and refer to for various purposes. I will urge our members to keep these decisions in mind while responding to a tender.
But nothing has resulted in any concrete guidelines or instruction to deal this menace. The Ethical Standard Board prescribed requirement about tendering and gave firm opinion that Interference with the practices prevailing for requirement of requirement of EMD/ Deposit is not required. However on having received complaint /instance of exorbitant EMD/DEPOSIT, the ethical Standard Board may look into the matter on case to case basis, Further, a cost sheet be maintained by members of the Institute responding to tenders, incorporating details of the costs being incurred therein having regard to number of persons involved, hours to be spent, etc, so that the same may be called for by the Institute for perusal.
It still very far to see a clause restricting members to respond to “tenders” only in case there is no condition of depositing earnest money/security etc. for making application. Still tenders require applicant to pay along with the application earnest money or security deposit. Abnormal conditions are day by day getting strength and more and more firms are being kicked out of the auditing.
ICAI suggestion many years ago that the CAG could fix the fees scheme wise and choose auditors for these schemes district wise and has also provided the Planning Commission and the official auditor with a list of chartered accountant firms across the country. The institute has also suggested that audit work be made subject to peer review by a designated reviewer, with a view to controlling the quality of audit of social schemes and government projects.
It is based on the concept that a larger and more diverse group of people will usually find more weaknesses and errors in a work or performance and will be able to make a more impartial evaluation of it rather than just the person or group responsible for creating the work or reviewing the performance.
As to its later significance. I can see all sorts of ways it could have been used.. Shattered by the member’s greed, symbolically indicating their insincerity … Shattering on its own as value falls. Many dramatic possibilities… But, so far as I recall, none of them ever happened. I think the idea didn’t pan out and ICAI just dropped it.
(About the Author- Author was Member of ICAI- Regional Research Committee 2013-14 and ICAI- Committee For Direct Taxes 2011-12 and can be reached at email email@example.com or on phone Phone: 0 1 2 1-2 6 6 1 9 4 6. Cell: 9 8 3 7 5 1 5 4 3 2 having office at 1 1 5, Chappel Street, Meerut Cantt, UP, INDIA)