Alleged Tender Conspiracy Proven in the Balige Bypass Development.

KPPU has decided that 4 (four) reported parties of Alleged Violation of Article 22 of Law Number 5 Year 1999 with regard to the Balige Bypass Development at the National Road Implementing Working Unit of Region I of North Sumatra Province Fiscal Year 2017 are proven guilty.

The said conclusion was read out on Tuesday, August 20, 2019 in a hearing with the agenda of the reading out of ruling with regard to Case Number 13/KPPUL/2018 regarding Alleged Violation of Article 22 of Law Number 5 Year 1999 in respect of  the Balige Bypass Development Package at the National Road Fiscal Year 2017.

This case initially began with a report and was then followed up with the pre-investigation phase of alleged violation of Article 22 of Law Number 5 Year 1999 committed by PT Karya Agung Pratama Cipta as Reported Party I, PT Swakarsa Tunggal Mandiri as Reported Party II, PT Anugrah Bahari Sejahtera Mandiri as Reported Party III, and Working Group for the Procurement of Goods/Services of the National Road Implementing Working Unit of Region I of North Sumatra Province Fiscal Year 2017 as Reported Party IV.

The said Balige Bypass Development Work Package at the National Road Implementing Working Unit of Region I of North Sumatra Province amounts to IDR30,000,000,000., (thirty billion rupiah) originating from the State Revenues and Expenditures Budget (APBN) of the Ministry of Public Works and Public Housing Fiscal Year 2017.

After going through a hearing phase by the Commission Panel in assessing, analysing, summing up, and deciding the case based on adequate instruments of proof with regard to whether a violation of Law Number 5 Year 1999 has taken place or not as alleged to have been perpetrated by the Reported Parties in Case Number 13/KPPUL/2018, consequently, the Commissioners Panel has summed up several matters as follows:

1. Whereas the bidding documents submitted by tender participants should have had different contents/narrations/descriptions, spacing formats, and writing formats for any tender participant since the tender participants compete one another in the a quo tender, but the a quo documents based on the hearing facts are the same.
2. Whereas the said companies constitute different legal entities that should have competed one another in the a quo tender, but the hearing facts and proofs show that the action as spelled out above has been conducted deliberately so as to create a pseudo competition bringing about an unfair business competition and obstructing other business actors to rival competitively in the a quo tender.
3. Whereas the Commissioners Panel is of the view that the existence of the same facts and the similarities of the bidding documents among the Reported Parties have proved the existence of a form of communication, coordination, and cooperation among the Reported Parties in the context of the preparation, compiling, as well as same bidding documents in their participations in the a quo tender.
4. Whereas the Commissioners Panel is of the opinion that the non-meticulousness of the Reported Party IV in evaluating the entire bidding documents of the participants resulting in the non-finding of the same facts of the bidding documents and the support letter of the equipment of UD Sumber Mas Diesel and Mister Raya Sirait owned by Reported Party I and Reported Party II the validity of which is doubted constitutes a form of act of omission purposely committed by Reported Party IV.
5. Whereas the Commissioners Panel is of the view that the existence of the action of Reported Party IV of (i) not clarifying the Support Work in the Implementation Method; (ii) not clarifying the main equipment; and (iii) not clarifying the veracity of the Quality Control Manager Personnel of Reported Party I known as never attending any skill training in the field of construction service and never taking care of or possessing a Skill Certificate as Quality Management System Expert constitutes a form of facilitation of Reported Party IV to Reported Party I so as to become the winner of the a quo tender.

In addition to the above, the Commissioners Panel has recommended that the Commission give suggestions and considerations to:

1. The Minister of Public Works and Public Housing (PUPR) as well as the Governor of the Province of North Sumatra to give instruction to the related agencies so that before administering a construction service tender process, it must be ensured that the land to be used for a project has already been acquired and has had a legal force.
2. The Head of Grand Centre for the Implementation of the National Road II of the Province of North Sumatra to:
3. Impose an administrative sanction on Reported Party IV for being proven to have administered a tender process prior to the completion of the land acquisition process and having a legal force.
4. Provide guidance in goods and services procurement processes by way of disseminating and giving technical guidance in an intensive manner to all the planning officials, executors, and supervisors within the related agencies so that the subsequent tenders may be conducted with due observance of the principles of fair competition in accordance with the provision in Article 83 paragraph (1) sub-paragraph e of Presidential Regulation Number 54 Year 2010 and the amendment thereof stating that “A Tender/Direct Appointment fails if (e) a proof/indication of the occurrence of unfair competition is found in the bidding evaluation.”
5. The Team for Guarding and Safeguarding Government and Regional Development (TP4D) of the Province of North Sumatra is to optimize its main duties and functions in the procurement of goods and/or services so that the national strategic projects in the relevant region shall not have a legal problem.