Bidding conspiracy
KPPU will appeal the decision of the South Jakarta District Court which won the stronghold of PT COSL Indo and Husky CNOOC Madura Limited (HCML) related to tender conspiracy cases.
On the decision of the South Jakarta District Court ruling on Thursday (27/4), the panel of judges overturned the decision of the Business Competition Supervisory Commission. O3 / KPPU-L / 2016. KPPU's lawyer Nurul Fadilah said that although the court granted the objection to the reported parties I and II, it would not be able to refuse to prove the existence of the conspiracy.
According to him, it has been thought to appeal to the Supreme Court. Of course, there is a cassation direction. However, I will report first.
Meanwhile, PT COSL Indo and Husky-CNOOC Madura Limited (HCML) legal counsel, Teuku Raja Rajuanda from law firm Firmansyah and Co. Said that from the beginning KPPU's decision was judged.
This is because the Commission Council does not consider the facts presented by the witnesses reported. Of course, satisfied, and most importantly the panel of judges overturned the KPPU's decision. We are ready for the further legal process because there is no problem with our tender.
Tender of jack-up drilling services for BD services to support the drilling and completion of operations of Madura BD Structure located off Madura Strait KKS Madura. The estimated value of the project reached US $ 34.62 million.
On October 14, 2016, KPPU Commission Council read the verdict stating Husky CNOOC Madura Limited (Reported I) and PT COSL Indo (Reported II) violated Article 22 of Law no. S / 199. Both were reportedly punished to pay a fine of Rp 12,8 billion, and Rp 11,6 billion. Unsatisfied, the two reportedly filed an objection through the South Jakarta District Court. As a result, the court accepted the two business entities' objections.
Chief Judge Irwan said that no affiliation facts were found as mentioned by KPPU, which resulted in a tender conspiracy.
According to him, based on the witnesses presented by Husky CNOOC and PT COSL Indo in the case 03 / KPPU-L / 2016, showed that there are no unhealthy competition elements since the tender process has been running correctly.
The petitioner's objection can not be blamed on the provisions of Article 22 of Law no. 5 / 1999. The Assembly concludes, is not legally and convincingly proven that the applicant objected to violating the tender rules.
The panel of judges also considers that if Reported I and II violate Article 22 of Law no. 5/1999, then it should see the other party losing his rights.
In Article 22, it is mentioned that business actors are prohibited to conspire with other parties to arrange and or determine the winning bidder so that it can lead to unfair business competition.
Upon granting the objection petition filed with the case number 907 / Pdt.G.KPPU / 2016 / PN.Jkt.Sel, the judges acquitted the complainants of Husky-CNOOC Madura Limited (HCML) and PT COSL Indo from the payment of fines.
RECOMMENDATION
However, with the recommendation of the Commission Assembly to the Special Unit for Upstream Oil and Gas Business Executor (SKK Migas), the judge considered it appropriate, in anticipation of unhealthy competition in the tender process.
The recommendation of the KPPU Commission Assembly shall among others evaluate the procurement rules concerning the relation of ownership of shares between the goods provider and/or service with the user of the goods and/or services in the same tender process. The reason, it can trigger a conspiracy that hampers business competition.
Also, evaluating the tender related to the requirements of the domestic content level (TKDN) is more effective in reflecting its achievement, so that it is not only a statement of sole ability. In the case of a report handled by KPPU last year, the investigators concluded the alleged conspiracy between Husky-CNOOC Madura Limited and PT COSL Indo. The conspiracy can be seen from the affiliation between PT COSL Indo and Husky-CNOOC Madura Limited (HCML).
Besides, KPPU believes that the post bidding actions conducted by the reporters in the bidding process can be categorized as dishonest and unlawful. The reason, in addition to contrary to the provisions in the tender documents, is also not following the regulations.
Post bidding is the amendment, addition, replacement, and/or reduction of qualification assessment documents, tender documents, and/or bidding documents after the deadline for submission of documents is closed.
Bisnis Indonesia, Page-11, Tuesday, May 2, 2017
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