Analisa Praktik Pinjam Pakai Badan Usaha dalam Pengadaan Tender Barang dan Jasa (Studi Putusan KPPU No. 04/KPPU-L/2020)

Abstract

Tender conspiracy is regulated in Article 22 of Law Number 5 of 1999, damaging the quality of the ecosystem for the procurement of goods and services. Currently, business actors are still found borrowing to use business entities or commonly known as borrowing flags. Borrowing to use, lending-use or other agreements, either called agreements (nominaat) or unnamed agreements(inominaat), are agreements that commonly occur and are allowed in Indonesia. This thesis uses a normative juridical research method, which refers to legal norms and is carried out through literature study. This is a descriptive research using a descriptive qualitative method to analyze the data. The research results find that both nominaat and inominaat agreements are a form of horizontal conspiracy, constituting an unlawful act if used during the procurement of goods and services, in this case violating Article 22 of Law Number 5 of 1999 and Articles 6 and 7 of Presidential Decree No. 16 of 2018 as amended by Presidential Decree no. 12 of 2021. In the KPPU decision no. 04/KPPU-L/2020, the commission council does not categorize the practice of borrowing and lending business entities carried out by Reported Parties I, II, III, IV, V, VI as horizontal conspiracy. The Commission Council should have considered the existence of confessions and evidence that explain the fact that borrowing and lending practices occurred among tender participants and should have punished all tender participants for violations of Article 22 of Law Number 5 of 1999.