REALIZATION OF SOCIAL JUSTICE IN GOVERNMENT PROCUREMENT OF GOODS AND SERVICES THROUGH THE E-PROCUREMENT UNIT

REALIZATION OF SOCIAL JUSTICE IN GOVERNMENT PROCUREMENT OF GOODS AND SERVICES THROUGH E-PROCUREMENT UNIT

Dr. Merry Tjoanda, SH, MH

Abstract

Government procurement of goods and services is expected to produce the best goods and services needed by State Ministries and Institutions. To obtain the best goods and services, of course, they must be obtained from competent suppliers. The implementation of government procurement tenders for goods and services is inseparable from collusion. Tender rigging results in unfair competition, which is contrary to social justice. Furthermore, it harms the tender committee and the well-intentioned tender participants. Auctions or tenders are conducted openly through Electronic Procurement (abbreviated) eProcurement), so that the process takes place fairly and healthily, so that the winner is truly determined by his/her offer (price and quality of the goods or services submitted).

Keywords: Social Justice, Tender Rigging.

 

A. Introduction

Procurement of goods or services for a company or government agency project often involves a tender process. The tender organizer's goal is to obtain the lowest possible price for goods or services while maintaining the highest possible quality. The primary objective of a tender can be achieved if the process is conducted fairly and equitably, ensuring that the winner is truly determined by the bidder's bid (price and quality of the goods or services submitted). The opposite can occur if collusion occurs during the tender process.

In Indonesian competition law, a tender is defined as an offer to submit a price for a project, procurement of goods, or provision of services. The offer is made by the activity or project owner. For reasons of effectiveness and efficiency, it is preferable to outsource the project to another party with the capability to carry out the project or activity.

The implementation of tenders for the procurement of government goods and services is inextricably linked to collusion. The significant increase in the number of government goods and services requires the government to improve its procurement system to produce the goods and services it needs. Essentially, tenders must adhere to the principles of fairness, transparency, and non-discrimination. Furthermore, tenders must adhere to principles that do not conflict with the principles of fair business competition.

The government and the House of Representatives subsequently issued Law Number 5 of 1999 concerning the Prohibition of Monopolistic Practices and Unfair Business Competition (abbreviated as Law Number 5 of 1999). The most important part of the regulations in Law Number 5 of 1999 is the provision governing tender rigging.

Collusion, as defined by Law Number 5 of 1999, is a prohibited activity. The practice of collusion in tenders is a common practice among both business actors and tender organizers, both at the central and regional levels. Tender collusion often violates the principles of tendering/procurement of goods and services, as stipulated in general competition law.

Presidential Decree No. 54 of 2010 and its amendments also regulate collusion in government procurement of goods and services. The regulation on collusion aims to reduce state losses in the procurement process.

Therefore, the problem raised in this paper is: "Can the principle of social justice be applied in government procurement of goods and services?"

 

B. Discussion

1. Prohibition of Collusion in Competition Law

There is no definite definition of tender rigging (bid rigging). Article 1 number 8 of Law Number 5 of 1999 conceptualizes collusion or business conspiracy as a form of cooperation carried out by business actors with other business actors with the intention of controlling the relevant market for the benefit of the conspiring business actors. Article 22 states: "Business actors are prohibited from colluding with other parties to arrange and determine the winner of the tender so that it can result in unfair business competition."

Based on the provisions of Article 22, it can be seen that the elements of tender collusion are (a) the existence of two or more business actors; (b) the existence of collusion; (c) there is an aim to arrange and/or determine the tender winner (MMPT); and (d) resulting in unfair business competition.

Although Article 22 of Law Number 5 of 1999 prohibits tender rigging, ambiguity in tender implementation has prompted involved or interested parties to file objections to tender decisions (winners). This situation has prompted business actors to report fraud or violations in the tender winner determination process to the KPPU. This is because the tendency in the tender process is to accommodate the interests of certain parties and result in decisions that are detrimental to the parties involved in the tender process. Accommodation of interests can manifest in the form of corruption or bribery, nepotism, or cronyism that grants privileges to certain parties in winning the tender process.

Part IV, Articles 22 to 24 of Law Number 5 of 1999 specifically regulates conspiracy. These provisions include:

1. Business actors are prohibited from colluding with other parties to arrange and/or determine the winner of a tender, which could result in unfair business competition (Article 22).
2. Business actors are prohibited from colluding with other parties to obtain information about their competitors' business activities which are classified as company secrets, which could result in unfair business competition (Article 23).
3. Business actors are prohibited from colluding with other parties to hinder the production and/or marketing of goods and/or services of their competing business actors with the intention of reducing the goods and/or services offered or supplied in the relevant market in terms of quantity, quality or timeliness as required (in Article 24).

The elements of conspiracy in Article 22 of Law Number 5 of 1999 as stated by L. Budi Kagramanto are as follows:[1]:

1. Business actor elements;
2. Elements of collusion;
3. Elements of other parties;
4. Elements that regulate and/or determine the tender winner; and
5. Elements of unfair business competition.

Presidential Decree Number 54 of 2010 and its amendments explain that one of the actions or actions of a goods and services provider that can be subject to sanctions is collusion with other goods and services providers to set bid prices outside the procedures for implementing goods and services procurement, thereby reducing, hindering, minimizing and/or eliminating healthy competition and/or harming others.

Samsul Ramli[2] translate the 5 things related to the indications of conspiracy above as follows:

1. This first indication refers to a violation of the prohibitions stipulated in Law Number 5 of 1999, which addresses prohibited agreements. One of these is oligopoly agreements.
2. The second indication refers to the sentence throughout the offer indicating that the HPS details which should be confidential have been breached or leaked to the provider.
3. The third indication refers more to the prohibition regulated in Article 26 and Article 27 of Law Number 5 of 1999.
4. In the fourth indication, we often find offers originating from one business group or a different group but using the same offer-making personnel.
5. Meanwhile, the fifth indication is that generally the issuer of the bid security issues the guarantee based on the serial number of the issue, so that the collective bid security is used as an indication that the providers who are bidding are under one control."

To ensure proper supervision of business implementation, Law 5 of 1999 mandates the establishment of a commission to safeguard and oversee business competition. This commission is the Business Competition Supervisory Commission (KPPU). The KPPU was established to oversee business actors in carrying out their business activities to prevent monopolistic practices and/or unfair business competition. Collusion is a prohibited activity that falls under the category of unfair business competition.

2. Electronic Procurement Unit as an Effort to Realize the Principle of Social Justice in Government Goods and Services Procurement Contracts

eProcurement as a preventative measure to reduce problems that may arise in the future in the field of government procurement of goods and services, this is implemented by utilizing synergy between LKPP, Construction Work Providers, and Commitment Making Officials as users of construction work services which are then managed by the Electronic Procurement Service (abbreviated as LPSE) through the Electronic Procurement System (abbreviated as SPSE) by optimizing the role and function of the system eProcurement in order to carry out the selection of PBJP construction work providers based on the remaining package capacity held through qualification documents while still paying attention to the principles and principles of contract law.

Electronic procurement of government goods and services or what is known as eProcurement is a government procurement process for goods and services that is carried out electronically, based on a website or the internet, utilizing communication and information technology facilities. According to Indrajit, E-procurement can be interpreted as an application for the implementation of auctions for the procurement of goods and services electronically by utilizing internet-based information technology. In this application E-procurement This displays the entire auction process, from announcements, bidding, selection, to the announcement of the auction winner online. The final mission of the implementation e-procurement This is how the procurement process for goods and services in government works and how to utilize information technology to avoid wasting time and money.[3]

According to the National LPSE, LPSE (especially in Indonesian government institutions) is a work unit formed in all Ministries/Institutions/Regional Work Units/Other Institutions (abbreviated as K/L/D/I) to organize an electronic goods or services procurement service system and facilitate Procurement Service Units (abbreviated as ULP) in carrying out electronic goods or services procurement.

Application eProcurement As a goods and services procurement system, it has principles, as stated in Presidential Decree Number 54 of 2010, these principles are:

1. Efficient, meaning that procurement of goods/services must be carried out using minimum funds and resources to achieve quality and targets within the specified time or using predetermined funds to achieve results and targets with maximum quality;
2. Effective, meaning that procurement of goods and services must be in accordance with the needs and targets that have been set and provide the greatest possible benefits;
3. Transparent, meaning that all provisions and information regarding the procurement of goods/services are clear and can be widely known by interested goods/services providers and the public in general;
4. Open, meaning that procurement of goods and services can be participated in by all providers of goods and services who meet certain requirements/criteria based on clear provisions and procedures;
5. Competitive, meaning that procurement of goods and services must be carried out through healthy competition among as many providers of goods/services as possible that are equal and meet the requirements, so that goods/services can be obtained competitively and there is no intervention that disrupts the creation of a market mechanism in the procurement of goods and services;
6. Fair/non-discriminatory (underlined by the author), means providing equal treatment to all potential providers of goods and services and not aiming to provide benefits to certain parties, while still paying attention to national interests;
7. Accountable, meaning it must comply with the rules and provisions related to the procurement of goods/services so that it can be accounted for.

The purpose of electronic procurement of government goods and services according to Samsul Ramli[4] are as follows:

1. Increase transparency and accountability;
2. Improving market access and healthy business competition;
3. Improve the efficiency level of the procurement process;
4. Support monitoring and audit processes;
5. Fulfilling the need for access to information real-time.

System eProcurement This is expected to improve the performance of existing government institutions, as purchases are made by selecting items within the system, reducing the likelihood of errors. All tenders for the selection of government goods and services are conducted online, making the process effective, efficient, and transparent. eProcurement, procurement agencies get more bid prices and simpler administrative processes, while for goods and service providers, they can expand business opportunities, create healthy business competition, open up business opportunities for anyone and reduce administrative costs.[5] In general, the benefits obtained from the procurement process for goods and services, both conventionally and electronically, are: eProcurement can be seen in the table below

E-tendering includes the process of announcing the procurement of goods and services up to the announcement of the winner by involving the related parties, namely the PPK, ULP/Procurement Officer and Goods and Services Provider. To be able to participate in the auction through the National LPSE application, the company must first register to become a partner on the site provided by LPSE. Through this electronic government procurement process, it is hoped that it will further improve and guarantee the efficiency, effectiveness, transparency, and accountability in the expenditure of state funds. In addition, this electronic government procurement process can also better guarantee the availability of information, business opportunities and opportunities, as well as encourage healthy competition and the realization of aspects of justice (non-discriminatory) for all business actors engaged in the field of government procurement of goods and services.

Based on the provisions of Article 106 paragraph (1) of the Fourth Amendment to Presidential Decree 54 of 2010 which mandates that in its implementation, government procurement of goods and services must be carried out electronically with the removal of the terminology of the word "can" in the previous provisions, however, along with the large number of contracts for the procurement of government goods and services sourced from APBN/APBD funds, this is not accompanied by an increase in the effectiveness and efficiency of the implementation of government procurement of goods and services.

 

C. Conclusion

1. Conclusion

E-Procurement Unit will increase transparency and accountability, improve market access and healthy business competition, and improve the efficiency level of the procurement process, of course indirectly it will also support the monitoring and audit process and fulfill the need for access to information. real-time in order to realize clean and good government in the procurement of government goods and services and minimize the occurrence of tender collusion between business actors/participants and other business actors/tender participants or between business actors/tender participants and tender organizers/committees and realize the principle of social justice.

2. Saran

It is necessary to improve synergy between LKPP, Construction Work Providers, and Commitment Making Officials as users of construction work services which are then managed by LPSE through SPSE by optimizing the role and function of the system. eProcurement in order to carry out the selection of providers of construction work for the procurement of government goods and services. For this reason, supervision and optimization of the system eProcurement must also be taken as a preventive measure to prevent the high number of problems in government procurement of goods and services.

REFERENCES

Arsyad, Maharany, La Ode Suriadi, and Syamsul Anam, 2016, Analysis of Electronic Procurement of Goods and Services (eProcurement) at the Kendari City LPSE, Journal of Economics (JE) Vol.1 (1), April 2016, Halu Oleo University, Kendari.

Jasin, M., AR Zulaiha, EJ Rachman, and N. Ariati, 2007, Preventing Corruption Through eProcurement, Corruption Eradication Commission, Jakarta.

Kagramanto, Lucio Budi, Prohibition on Tender Rigging (Competition Law Perspective), Srikandi, Surabaya.

Ramli, Samsul, 2014, Overcoming Various Problems in Government Procurement of Goods/Services, Vision Media, Jakarta.

——————————–, 2014, Government Goods/Services Procurement Expert Certification, Jakarta, Visimedia.

Law Number 5 of 1999 concerning Prohibition of Monopolistic Practices and Unfair Business Competition

Presidential Regulation Number 54 of 2010 concerning Government Procurement of Goods and Services

 

[1] Lucio Budi Kagramanto, Prohibition on Tender Rigging (Competition Law Perspective), (Lucio Budi Kagramanto I), Srikandi, Surabaya, pp. 99-111.

[2] Samsul Ramli, Overcoming Various Problems in Government Procurement of Goods/Services, Visi Media, Jakarta, 2014. p. 34.

[3] Indrajit, et al., in Maharany Arsyad, La Ode Suriadi, and Syamsul Anam, Analysis of Electronic Procurement of Goods and Services (eProcurement) at the Kendari City LPSE, Journal of Economics (JE) Vol.1 (1), April 2016, Halu Oleo University, Kendari, 2016, p. 2.

[4] Samsul Ramli. 2014, Government Goods/Services Procurement Expert Certification, Jakarta, Visimedia, p. 326.

[5] M. Jasin, AR Zulaiha, EJ Rachman, and N. Ariati, Preventing Corruption Through eProcurement, Corruption Eradication Commission, Jakarta, 2007, p. 13.