Unfair Business Competition Practices In Tenders For Governmen Procurement
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Unfair Business Competition, Tender, Procurement.
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Corresponding Author:
Yuanno Rezky
Email: yuanno@gmail.com
I. INTRODUCTION
As a developing country, Indonesia continues to strive to improve the country's economy. For business players, this provides opportunities and challenges as seen from the growing development of foreign products sold domestically. These challenges and opportunities lead to competition between business actors when several business actors market the same product in the same market. The possibility of unfair business competition will increase along with the increasing competition. Unfair business competition has a negative impact on business actors and consumers, and will also have an impact on the national economy.
The process of procuring goods/services starts from buying and selling goods directly in the market or cash payments, payment and purchase phases, preparation of financial reports for both buyers and sellers, and then bidding. The involvement of several parties in the process of procuring products/services can be used to regulate policies related to the procurement of products/services or can be used as a basis for formulating policies, where ethics, norms, and principles of procurement are needed. Based on Presidential Regulation No. 16 of 2018 concerning the Government Procurement (hereinafter referred to as the Procurement) is the activity of the Procurement by Ministries/Institutions/Regional Apparatuses which are financed by the State Revenue and Expenditure Budget (APBN) and the Regional Revenue and Expenditure Budget (APBD), the process starting from identifying needs, until the handover of the results of the work. The Procurement aims to:
a. produce the right goods/services from every money spent, measured from the aspect of quality, quantity, time, cost, location, and provider;
b. increase the use of domestic products;
c. increase the participation of Micro, Small Business, and Cooperatives;
d. increase the role of national business actors;
e. support the implementation of research and utilization of research products/services;
f. increase the participation of creative industries;
g. realizing economic equality and providing expansion of business opportunities; and improve Sustainable Procurement.
The process of procuring goods and services has several principles that must be used as a reference in its implementation, one of which is the principle of competition. Procurement of goods and services must be carried out through fair competition between suppliers based on equality and the need for goods and services. This enables the procurement of goods and services in a competitive manner and eliminates interference that hinders the emergence of market mechanisms in the implementation of procurement of goods and services.
Procurement must be carried out through fair competition between suppliers based on equality and the need for goods and services. This enables the procurement of goods and services in a competitive manner and eliminates interference that hinders the emergence of market mechanisms in the implementation of procurement. The procurement requires all parties involved in the procurement to behave ethically so as not to influence each other directly or indirectly, causing unfair business competition, as well as avoiding and preventing conflicts of interest between parties directly or indirectly so as to avoid unfair business competition in buying and selling goods/services.
Unfair business competition in the procurement of goods and services is related to Law Number 5 of 1999 concerning Prohibition of Monopolistic Practices and Unfair Business Competition, especially with regard to the provisions stipulated in it that business actors are prohibited from conspiring with other parties to regulate and or determine the tender winner so as to result in unfair business competition.
II. RESEARCH METHODS
This research is a type of normative legal research, namely legal research conducted by examining library materials or secondary data. Normative legal research is also known as doctrinal legal research. In this type of legal research, law is often conceptualized as what is written in law in books or law is conceptualized as a rule or norm which is a benchmark for human behavior that is considered appropriate.
This research is intended to examine the practice of unfair business competition in the Government Procurement of Goods and Services, where to review these problems, the law is used as a basis for norms which include legal principles, norms, rules of legislation, and decisions of the Supervisory Commission of Unfair Competition for the 2019-2021 period.
III. RESULT AND DISCUSSION
1. Conspiracy in the Tender for Government Procurement
Competition in business activities also breathes with commercial activity itself. In principle, everyone has the right to sell or buy goods and services “what”, “with whom”, “how much” and “how to produce”, this is what is called a market economy. With this in mind, the behavior and structure of the market can sometimes be unpredictable, so it is not uncommon for traders to commit fraud, and lead to the death of some traders' efforts.
Fair business competition will have a positive impact on business actors, because it can create incentives or stimuli to increase efficiency, productivity, innovation and product quality. In addition to being profitable for business actors, consumers will certainly benefit from fair business competition, namely lower prices, more choices and increased product quality. On the other hand, if unfair business competition occurs, it will have a negative impact not only on business actors and consumers, but will also have a negative impact on the national economy.
Since the enactment of Law No. 5 of 1999, entrepreneurs have been more careful in making agreements and establishing cooperation in the implementation of certain projects, especially if the project originates from the government. Prior to Law No. 5 of 1999, there was often a lack of transparency in the tender for large-scale projects. This means that before bidding is made, the winner has been determined. The tender was attended by several business actors who worked together to determine the winner. Business actors who are honest and have good qualifications feel they are being treated unfairly. This situation can be caused by collusion between business actors.
The Business Competition Law is a legal instrument that determines how competition should be conducted. Unfair business competition is competition between business actors in carrying out production and or marketing activities of goods and or services which is carried out dishonestly or against the law or hinders business competition. Based on this understanding, it can be seen that competition between business entities in carrying out their activities is contrary to existing regulations and has the potential to hinder fair business competition.
A tender is an offer to submit a price to buy a job, to procure goods, or to provide services. The proposed activity/project owner is based on reasons of effectiveness and efficiency, because it should be submitted to other parties who can carry out the project/activity. The scope of the tender includes: First, the offer to pay the (lowest) price to get the job. Second, offer the (lowest) price for the purchase of goods. Third, offer the (lowest) price for services. When a job is tendered, the winning party in the tender process will buy, obtain or provide the goods/services desired by the project owner, unless otherwise stipulated in the agreement between the tender winner and the project owner.
The purpose of the tender is to provide equal opportunities for all participants to submit bids, thereby producing the lowest possible bid with the maximum possible yield. Every bidder has the same and equal position to realize his interests. Conspiracy in tenders will have a negative impact on business competition because in bidding, the parties involved conspire to arrange several bidders to win the tender. Considering that the determination of the winner must go through a process based on procedures and subject to tender rules. The state will be disadvantaged if there is price manipulation in the supply of development activities as well as the purchase of goods and services from the State Revenue and Expenditure Budget (Anggaran Pendapatan dan Belanja Negara / APBN) and the Regional Revenue And Expenditure Budget (Anggaran Pendapatan dan Belanja Daerah / APBD). Based on Article 22 of the Business Competition Law, the procurement of goods and services through competitive tender has the potential to create unfair competition if the tender is conducted in secret or not transparently. Due to non-transparent bidding, qualified and interested bidders cannot participate. Conditions in a tender like this will be more oriented to certain business actors, thus preventing participants or other business actors from participating. Conspiracy in tenders is an illegal collaboration and is against the law, because the means and results of achieving its objectives violate the law. Conspiracy is carried out by two or more parties to jointly carry out criminal acts/activities or against the law, so that there are 2 (two) elements which constitute a criminal act of accomplices, namely the existence of two or more parties who commit certain acts, and these acts are conspiracy that violates or breaks the law. The definition of conspiracy is regulated in Article 1 Point 8 of the Business Competition Law which has the meaning of a form of cooperation carried out by business actors in tenders with other business actors for the purpose of controlling the relevant market for the interests of the conspiring parties. Conspiracy in business competition is included in this type of agreement. However, the form of conspiracy activities/acts sometimes does not need to be proven by the existence of an agreement, but can be in the form of other activities that cannot be carried out in an agreement.
The formulation in the articles of the Business Competition Law uses the Rule of Reason approach and the Per Se Illegal approach. The Rule of Reason is to emphasize that an alleged act is a violation of business competition law, so law enforcement must consider the circumstances to determine whether the act hinders and causes unfair competition, and law enforcers must show the consequences of negative competitive behavior or substance losses of the competition. While Per Se Illegal is the formulation of terms regarding certain actions that are prohibited to be carried out, which can be proven that the act has been carried out and can be processed legally, without giving real consequences or losses to competition. Article 22 of the Business Competition Law regulates the rules of common sense so that business actors are allowed to conspire with other parties to regulate or determine the winner as long as it does not cause unfair business competition. In the Rule of Reason, the court before determining whether an action is illegal, and needs to consider the factors in the context of the action, and the business reasons for the action.
Tender conspiracy causes the project value for tenders for the government procurement to be higher due to price games carried out by the conspiring parties. Such collusion risks lead to high costs and corruption. The effect of the price game is that the goods and services obtained are of lower quality because the conspiring parties will try to get the goods as cheap as possible by ignoring quality. Other tender participants or business actors who have good qualifications and potential will certainly have difficulty getting the opportunity to participate in the tender and win the tender.
2. Legal Consequences in Tender Conspiracy
2.1. Administrative Sanctions on Business Competition Law
Conspiracy in tenders certainly has legal consequences. This is regulated in the Business Competition Law. Legal consequences in the form of sanctions against conspiracy violations, namely Business Competition Supervisory Commission (Komisi Pengawas Persaingan Usaha / KPPU) has the authority to impose administrative sanctions on business actors who violate the provisions of Article 22, in the form of orders to business actors to stop activities that are proven to cause monopolistic practices and/or cause unfair business competition and/or harm the community; and/or determination of payment of compensation and/or imposition of a fine of a minimum of Rp. 1,000,000,000.00 (one billion rupiah) and a maximum of Rp. 25,000,000,000.00 (twenty five billion rupiah).
2.2. Administrative Sanctions on Business Competition Law Business Competition Law Criminal Sanctions
Violation of conspiracy may be subject to a criminal penalty of a minimum fine of Rp. 5,000,000,000.00 (Five billion rupiah) and a maximum of Rp. 25,000,000,000.00 (twenty five billion rupiah), or imprisonment in lieu of a fine of not more than 5 (five) months. If a business actor refuses to submit the evidence needed in an investigation or refuses to be examined, refuses to provide information needed in an investigation and/or examination, or hinders the investigation and/or examination process, an additional penalty may be imposed in the form of revocation of a business license, or a ban on business actors-who have been proven to have violated this law to occupy the position of directors or commissioners for a minimum of 2 (two) years and a maximum of 5 (five) years, or the termination of certain activities or actions that cause losses to other parties.
2.3. Conspiracy Sanctions in the Presidential Regulation concerning Government Procurement
Sanctions regarding the practice of conspiracy are also regulated in Presidential Regulation Number 16 of 2018 concerning Government Procurement. The actions or actions of the election participants who are subject to sanctions in the implementation of the selection of Providers are indications of conspiring with other participants to regulate the bid price. Acts or actions indicated to conspire in tenders are subject to a sanction of being disqualified from the election, the sanction is disbursement of the guarantee, and put on the Black List for 2 (two) years.
3. KPPU and its Authorities in the Practice of Conspiracy for Government Procurement
To supervise the implementation of the Business Competition Law, a Business Competition Supervisory Commission is formed, hereinafter referred to as the Commission. Commissions are appointed and dismissed by the President with the approval of the House of Representatives (Dewan Perwakilan Rakyat / DPR). Consists of at least 7 (seven) members, including the Chairman and Deputy Chairman with a term of office of 5 (five) years and may be reappointed for the next 1 (one) term of office.
The Commission is tasked with evaluating agreements, business activities, actions of business actors, whether or not there is an abuse of dominant position that may result in monopolistic practices and or unfair business competition. The Commission also has the duty to take action in accordance with the Commission's authority as well as to provide advice and considerations on government policies related to monopolistic practices and or unfair business competition.
The authority of the Commission is to receive reports from the public, conduct research, investigate, and conclude regarding allegations of business activities and or actions of business actors that may result in monopolistic practices and or unfair business competition.
The Commission is also authorized in relation to summoning suspected business actors, presenting witnesses, expert witnesses and anyone deemed aware of a violation of the provisions of this Law and then requesting assistance from investigators if the summoned party is not willing to comply with the Commission's summons, as well as to decide and determine whether or not there is any losses on the part of other business actors or the public and impose sanctions in the form of administrative actions to business actors who violate the provisions of the law.
Judging from its nature, the Commission's decision that imposes administrative sanctions on business actors is called a condemnatoir decision, namely a decision that contains an order that punishes one of the litigants. While the decision which states that certain business actors legally and convincingly violates Article 22 of Law Number 5 of 1999 is called a declaratory decision (declatoir vonnis) is a judge's statement contained in the decision he handed down. The statement is an explanation or determination of a right or title or status. The statement is included in the order or dictum of the decision. In practice, the Commission can only apply administrative sanctions as previously described to business actors involved in tender conspiracy. However, for tender committees from government elements who are proven to be involved in or support the conspiracy, the Commission cannot impose administrative sanctions, but can only provide recommendations to the Government Internal Supervisory Apparatus or the superiors of the tender committee to impose administrative sanctions in accordance with applicable regulations.
The parties who are sentenced to the Commission's Decision in the form of fines and or compensation must pay to the state treasury within 30 days after the decision has permanent legal force. In the event that the business actor does not carry out his obligations within the time limit given, the Commission shall apply for an order of execution to the district court. Furthermore, if the business actors still do not carry out their obligations, the Commission will submit the decision on the execution determination to the Indonesian National Police (Polri) to follow up by conducting an investigation into the non-compliance of the business actors. The impediment to the application of fines is allegedly because business actors consider that the imposition of fines is considered to have the potential to disrupt the business and investment climate, so that it has a counterproductive impact on the national economy. This is often a polemic among business actors who were found guilty by the Commission.
In carrying out the mandate of supervision and implementation of the Business Competition Law, the Commission is authorized to conduct investigations and examinations of business actors, witnesses or other parties either because of reports or without reports of business actors suspected of practicing conspiracy. The following is a table of information related to the decisions of the Commission for the 2019-2020 period:
Table 1.
Cases of Alleged Conspiracy in Tenders Decided by the Commission from 2019 to 2021 relating to Government Procurement
No. Commission Case Decision Reported
Nomor 14/KPPU-L/2019
(Proven in Violating Article 22 of the Business Competition Law)
Violation of Article 22 of the Business Competition Law: Procurement of Business Entities Implementing Government Cooperation Projects with SPAM Business Entities Bandar Lampung City for Fiscal Year 2017. 1. Perusahaan Daerah Air Minum (PDAM) Way Rilau Kota Bandar Lampung, 2. PT Bangun Cipta Kontraktor, 3. PT Bangun Tjipta Sarana.
Nomor 22/KPPU-I/2019
(Proven Partly Violating Article 22 of the Business Competition Law)
Violation of Article 22 of the Business Competition Law: Public Auction for Continuing Work Package Development of Clean Water Distribution Network (Multiyears) North Penajam Paser Regency, East Kalimantan, APBD 2015-2018 Fiscal Year.
PT Rajawali Jaya Sakti Contrindo, 2. PT Perdana Sejahtera Utama, 3. PT Indah Seratama, 4. Kelompok Kerja (POKJA) Unit Layanan Pengadaan (ULP) Barang/Jasa Kabupaten Penajam Paser Utara.
Nomor 26/KPPU-I/2019
(Not proven to have violated Article 22 of the Business Competition Law)
Violation of Article 22 of the Business Competition Law: Auction for the Improvement and Widening of Jalan Tanjung Pandan - Simpang Empat (Package 3) at the Public Works and Spatial Planning Office of the Regional Government of the Bangka Belitung Islands Province APBD for Fiscal Year 2018.
PT Hastomulyo Adiprima, 2. PT Bahana Pratama Konstruksi,
PT Anugrah Bakti Persada, 4. Kelompok Kerja (POKJA) Unit Layanan Pengadaan (ULP) Peningkatan dan Pelebaran Jalan Tanjung Pandan – Simpang Empat (Paket 3).
Nomor 25/KPPU-I/2019
(Not proven to have violated Article 22 of the Business Competition Law)
Violation of Article 22 of the Business Competition Law: Auction for the Improvement and Widening of Jalan Tanjung Pandan - Simpang Empat (Package 2) at the Public Works and Spatial Planning Office of the Regional Government of the Bangka Belitung Islands Province APBD for Fiscal Year 2018. 1.PT Billiton Hero Sukses Cemerlang, 2. PT Keluarga Jaya Anak Sejahtera, 3. Kelompok Kerja (POKJA) Unit Layanan Pengadaan (ULP) Peningkatan dan Pelebaran Jalan Tanjung Pandan – Simpang Empat (Paket 2)
Nomor 24/KPPU-I/2019
(Not proven to have violated Article 22 of the Business Competition Law)
Violation of Article 22 of the Business Competition Law: Auction for the Improvement and Widening of Jalan Tanjung Pandan - Simpang Empat (Package 1) at the Public Works and Spatial Planning Office of the Regional Government of the Bangka Belitung Islands Province APBD for Fiscal Year 2018.
PT Bahana Pratama Konstruks, 2. PT Hastomulya Adiprima, 3. PT Karya Mulia Nugraha, 4. PT Fajarindah Satyanugraha, 5. PT Anugrah Bakti Persada, 6. Kelompok Kerja (Pokja) Unit Layanan Pengadaan (ULP) Peningkatan dan Pelebaran Jalan Tanjung Pandan – Simpang Empat (Paket 1).
Nomor 30/KPPU-I/2019
(Proven Partly Violating Article 22 of the Business Competition Law)
Violation of Article 22 of the Business Competition Law: Tender for the Construction of the Ngajam – Apulea Segment III (Ngajam–Apulea Village) at the SATKER of the Public Works and Spatial Planning Office of the Regional Government of North Halmahera Regency APBD for Fiscal Year 2018 – 2020.
PT. Ikhlas Bangun Sarana, 2. PT Hapsari Nusantara Gemilang, 3. PT Cipta Aksara Perkasa, 4. PT Alfa Adiel, 5. Kelompok Kerja I Unit Layanan Pengadaan Kabupaten Halmahera Utara Tahun 2018 (Pokja I ULP).
Nomor 5/KPPU-I/2020
(Proven in Violating Article 22 of the Business Competition Law)
Violation of Article 22 of the Business Competition Law: Procurement of Phase II Swimming Pool Construction Work, Kandangan District, Hulu Sungai Selatan Regency for Fiscal Year 2017.
PT Cahayahikmah Jayapratama, 2. PT Karya Kandangan Nasional 3. PT Diang Ingsun Mandiri, 4. Kelompok Kerja Unit Layanan Pengadaan Kabupaten Hulu Sungai Selatan pada Pelaksanaan Pekerjaan Pembangunan Gedung Kolam Renang Tahap II Kecamatan Kandangan (Pokja ULP Kab. HSS).
Nomor 4/KPPU-L/2020
(Proven Partly Violating Article 22 of the Business Competition Law)
Violation of Article 22 of the Business Competition Law: Tender for the Work Package for the Construction of the Langsa Regional Referral Hospital, the Work Unit of the Aceh Health Service, Aceh Provincial Government for Fiscal Year 2018.
PT Mina Fajar Abadi, 2. PT Sumber Alam Sejahtera, 3. PT Arafah Alam Sejahtera, 4. PT Betesda Mandiri, 5. PT Eka Jaya Lestari,
PT Adhi Putra Jaya, 7. Pokja Konstruksi–LXXXIX Biro Pengadaan Barang dan Jasa Pemerintah Aceh Tahun Anggaran 2018
Nomor 21/KPPU-I/2020
(Not proven to have violated Article 22 of the Business Competition Law)
Violation of Article 22 of the Business Competition Law: Procurement of the Kota-Tabanggele Boundary Road Development Package at the Kendari City Public Works and Spatial Planning Agency Working Unit for the 2018-2020 Fiscal Year.
PT Anekalaksana Citraprima, 2. PT Rizky Ilham Bersaudara, 3. PT Kendari Siusiu Persada, 4. Kelompok Kerja (POKJA) Konstruksi I Unit Layanan Pengadaan Barang/Jasa (ULP) Kota Kendari Tahun Anggaran 2018.
Nomor 28/KPPU-I/2020
(Proven in Violating Article 22 of the Business Competition Law)
Violation of Article 22 of the Business Competition Law: Procurement of the Paciran Ferry Port Development Package, Lamongan Regency for Fiscal Year 2018.
PT Kurniadjaja Wirabhakti, 2. PT Dian Sentosa, 3. PT Mahakarya Tunggal Abadi, 4. Kelompok Kerja (Pokja) 110 Konstruksi I Unit Pelaksana Teknis Pelayanan Pengadaan Barang/Jasa Dinas Penanaman Modal dan Pelayanan Terpadu Satu Pintu Provinsi Jawa Timur.
Nomor 15/KPPU-L/2020
(Not proven to have violated Article 22 of the Business Competition Law)
Violation of Article 22 of the Business Competition Law: Procurement of Business Entity Cooperation Projects in the Development of a Drinking Water Supply System (SPAM) with a Capacity of 1000 L/S at PDAM Giri Tirta, Gresik Regency, East Java in 2018
Perusahaan Daerah Air Minum (PDAM) Giri Tirta Kabupaten Gresik, 2. PT Pembangunan Perumahan (Persero), Tbk, 3. PT Krakatau Tirta Industri.
Nomor 24/KPPU-I/2020
(Proven in Violating Article 22 of the Business Competition Law)
Violation of Article 22 of the Business Competition Law: Procurement of an Anchor Port Development Work Package in Situbondo Regency for Fiscal Year 2018
PT Perkasa Jaya Inti Persada, 2. PT Kurniadjaja Wirabhakti, 3. PT Duta Ekonomi, 4. Kelompok Kerja (POKJA) 110 Unit Pelaksana Teknis Pelayanan Pengadaan Barang/Jasa Dinas Penanaman Modal dan Pelayanan Terpadu Satu Pintu Provinsi Jawa Timur.
Nomor 36/KPPU-I/2020
(Proven in Violating Article 22 of the Business Competition Law)
Violation of Article 22 of the Business Competition Law: Procurement of Packages for Rehabilitation and Renovation of School Facilities and Infrastructure in Indragiri Hilir District 1 and 2 APBN for Fiscal Year 2019
PT Adhikarya Teknik Perkasa, 2. PT Kalber Reksa Abadi, 3. Kelompok Kerja (Pokja) Pemilihan 14.1 Pengadaan Barang/Jasa Pemerintah di Lingkungan Satker Pelaksanaan Prasarana Permukiman Provinsi Riau Tahun Anggaran 2019.
Nomor 32/KPPU-I/2020
(Proven in Violating Article 22 of the Business Competition Law)
Violation of Article 22 of the Business Competition Law: Procurement of Work Packages for Jalan Sei Saren – Teluk Nilau – Senyerang – Bts. Riau in the Department of Public Works and Public Housing of the Jambi Province Regional Government APBD for Fiscal Year 2017.
PT Sarang Tehnik Canggih, 2. PT Cipayung Bakti Mandiri, 3. Kelompok Kerja (POKJA) Pekerjaan Jasa Konstruksi Bidang Bina Marga Dinas Pekerjaan Umum dan Perumahan Rakyat Provinsi Jambi Pembangunan Jalan Sei Saren – Teluk Nilau – Senyerang – Bts. Riau APBD Tahun Anggaran 2017.
Nomor 35/KPPU-I/2020
(Proven in Violating Article 22 of the Business Competition Law)
Violation of Article 22 of the Business Competition Law: Procurement of Road Construction Work Packages (Acceleration Program) Package 3 (Pelangan-Sp. Pengantap 3) and Package 4 (Pelangan-Sp. Pengantap 4) at the Satker of the Public Works and Spatial Planning Office of West Nusa Tenggara Province APBD Fiscal Year 2017-2018.
PT Metro Lestari Utama, 2. PT Eka Praya Jaya, 3. Kelompok Kerja Konstruksi Tim 51 (Pokja 51) ULP Provinsi Nusa Tenggara Barat, Biro Administrasi Pembangunan dan Layanan Pengadaan Barang/Jasa Pemerintah, Pemerintah Provinsi Nusa Tenggara Barat.
Nomor 25/KPPU-I/2020
(Proven in Violating Article 22 of the Business Competition Law)
Violation of Article 22 of the Business Competition Law: Procurement of Revetment Development Packages and Land Acquisition at Popoh Fishing Port, Tulungagung Regency for Fiscal Year 2017.
PT Cipta Karya Multi Teknik, 2. PT Bangun Konstruksi Persada, 3. PT Wahana Eka Sakti, 4. PT Tiara Multi Teknik, 5. Kelompok Kerja (POKJA) 84 Unit Pelaksana Teknis Pelayanan Pengadaan Barang/Jasa (UPT P2BJ) Dinas Penanaman Modal dan Pelayanan Terpadu Satu Pintu Provinsi Jawa Timur.
From the proceed data on the Commission’s decisions from 2019 to 2020 relating to alleged bid rigging, it can be submitted:
Table 2.
Number of Commission Decisions Based on Reports and Initiatives
KPPU Decisions Year Number of Cases Based on Number of Decisions
Tender Conspiracy Number of Cases
Report Commission's Initiatives
1 5 6 30
2 8 10 25
Table 3.
Number of Commission Decisions Based on Decisions Proven and Unproven Violating Article 22 of the Business Competition Law
Number of Commission Decisions Based on Decision Orders
Year Report Commission's Initiatives
Proven Partly Proven and Partly
Not Not Proven Proven Partly Proven and Partly
Not Not Proven
1 - 3 - 2 -
- 1 - 7 1 1
From the table it can be explained that from 2019 to 2020 there were a total of 55 (fifty five) cases that were submitted to the KPPU, and 16 (sixteen) of them were decisions regarding tender conspiracy, of which 13 (thirteen) decisions were initiatives from the KPPU and a total of 3 (three) decisions came from public reports. The sanctions imposed in these 16 decisions are in the form of fines and prohibitions from participating in tenders.
IV. CONCLUSION
The Conspiracy in tender activities is a practice of unfair business competition, this is due to several business actors in tender activities, making agreements to win bids in tenders held by the government. The majority of tender conspiracy cases have been decided by the Business Competition Supervisory Commission using the Rule of Reason approach.
The act of conspiring is an act that is categorized as an act that is not against the law and hinders unfair business competition. 29% of the violations of Article 22 of the Business Competition Law entered into KPPU for the period 2019 to 2020 and are related to the government procurement.
It is recommended that reports from the public need to be intensified to further enhance supervision from various parties and slowly reduce the potential for business actors to practice conspiracy, so that they do not rely solely on the KPPU's initiative to follow up on alleged conspiracy practices in government procurement.
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LEGISLATION
Law No. 5 of 1999 concerning the Prohibition of Monopolistic Practices and Unfair Business Competition.
Presidential Regulation of the Republic of Indonesia Number 16 of 2018 concerning Government Procurement
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DOI: https://doi.org/10.24815/sklj.v6i2.29119
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