The study aims to determine the concept of criminal liability for work group errors in the procurement of goods or services. This research is normative legal research. The Concept of Criminal Liability for Errors of the Working Group in the Procurement of Goods and Services, namely all acts or actions that are illegal That is, that actions or actions in the procurement of goods or services are not in accordance with the laws and regulations starting from the stage of carrying out the preparation and implementation of selection of providers, carrying out preparation and implementation of selection of providers for electronic catalogs, and determining the winner/provider for the selection method. What results in a loss of state loss is a criminal act as stipulated in the law on corruption, namely Article 2 or Article 3 of the Republic of Indonesia Law Number 20 of 2001 concerning the Eradication of Corruption Crime changes to the Republic of Indonesia Law Number 31 of 1999 concerning Eradication Corruption Crime.
So that the procurement of government goods and services can be carried out effectively and efficiently with the principles of fair competition, transparency, openness and fair treatment for all parties, so that the results can be accounted for both in terms of physical, financial and benefits for the smooth functioning of government and community services. dated November 3, 2003, a Presidential Decree of the Republic of Indonesia Number 80 Year 2003 was established concerning guidelines for the implementation of goods and services procurement by the government (State Gazette of the Republic of Indonesia of 2003 Number 120, Supplement to the State Gazette of the Republic of Indonesia Number 4330). The Presidential Decree of the Republic of Indonesia 80 of 2003 revoked the Presidential Decree of the Republic of Indonesia Number 18 Year 2000, concerning Guidelines for the Implementation of Procurement of Goods and Services for Government Agencies (Article 53 of Presidential Decree No. 80 of 2003)
Initially the government regulation on the implementation of the procurement of goods and services was inserted in the Presidential Decree concerning the State Budget (APBN). Only in 2000 was specifically regulated in Presidential Decree Number 18 of 2000 which was later revoked by Presidential Decree 80 of 2003 which made several changes as follows:
Presidential Decree of the Republic of Indonesia Number 61 of 2004 concerning Amendments to the Decree of the President of the Republic of Indonesia Number 80 of 2003 concerning Guidelines for the Implementation of Government Goods/Services Procurement;
Presidential Decree of the Republic of Indonesia Number 32 of 2005, concerning the Second Amendment to the Decree of the President of the Republic of Indonesia Number 80 of 2003 concerning Guidelines for the Implementation of Government Goods/Services Procurement;
Presidential Decree No. 70 of 2005 concerning the Third Amendment to the Decree of the President of the Republic of Indonesia Number 80 of 2003 concerning Guidelines for the Implementation of Government Goods/Services Procurement;
Presidential Decree Number 8 of 2006 concerning the Fourth Amendment to the Decree of the President of the Republic of Indonesia Number 80 of 2003 concerning Guidelines for the Implementation of Government Goods/Services Procurement;
Presidential Decree of the Republic of Indonesia Number 79 of 2006, concerning the Fifth Amendment to the Decree of the President of the Republic of Indonesia Number 80 of 2003 concerning Guidelines for the Implementation of Government Goods/Services Procurement;
Presidential Decree No. 85 of 2006 concerning the Sixth Amendment to the Decree of the President of the Republic of Indonesia Number 80 of 2003 concerning Guidelines for the Implementation of Government Goods/Services Procurement;
Presidential Decree of the Republic of Indonesia Number 95 of 2007, concerning Seventh Amendment to the Decree of the President of the Republic of Indonesia Number 80 of 2003 concerning Guidelines for the Implementation of Government Goods/Services Procurement;
Furthermore, the President of Republic of Indonesia Decree Number 95 of 2007, concerning the Seventh Amendment to the Decree of the President of the Republic of Indonesia Number 80 of 2003 concerning Guidelines for the Implementation of Government Goods/Services Procurement, was revoked and declared not valid from January 1, 2011 after the Presidential Regulation Number 54 In 2010, regarding Government Procurement of Goods/Services, which was established on August 6, 2010, then the First Amendment was made to the Republic of Indonesia Presidential Regulation Number 35 of 2011, Procurement of Government Goods/Services, Second Amendment to Presidential Regulation Number 70 of the Republic of Indonesia 2012, concerning Procurement of Government Goods / Services, Third Amendment to Presidential Regulation of the Republic of Indonesia Number 172 Year 2014, Fourth Amendment to Presidential Regulation of the Republic of Indonesia Number 4 of 2015, and finally amendment to Presidential Regulation Number 16 of 2018 at the same time revoked and stated that the Presidential Regulation of the Republic of Indonesia Number 54 of 2010 does not apply, regarding Procurement of Government Goods/Services.
Changes in legislation related to Government Procurement of Goods / Services substantially have implications for changes in several terms, tasks and functions of structures in the procurement of Government Goods/Services, including: Commitment Making Officials, Procurement Committees, Working Groups and Procurement Service Units.
Procurement of goods and services in large quantities and for the benefit of the state or the people of course must be arranged in such a way. This is intended so that there is no abuse and / or abuse of authority that can harm the state and nation. Therefore, it is fitting for the public to understand all kinds of regulations regarding the procurement of goods or services in order to avoid mistakes in the form of violations of applicable regulations and to monitor if there is fraud in the field of procurement of goods and services.
According to Surahcmin and Suhandi Cahaya that "Corruption techniques or Modus Operandi in the procurement of goods and services are as follows:
The auction for the procurement of goods/services is carried out in a form/ formality with the intention of making joint arrangements to arrange / mark-up the bid price. Administratively, the auction of goods / services is carried out in an "arisan" manner and does not indicate the existence of a fair and competitive competition among the tender participants, which is determined as the winner is the company that gives the largest fee to the employer.
Characteristics of Procurement of Goods / Services Proforma are:
Most work package auctions are mostly followed by the same goods / service providers (as bidders).
Procurement documents, including bid evaluation systems, technical and administrative requirements, and technical specifications of work are arranged in an unclear / adequate manner.
Goods / service providers are inconsistent in compiling details of the budgetary budget in a price bid letter.
Bid price is far above the prevailing price standard.
Letter of price request and its attachments have similarities in numbering patterns and typing patterns.
Bid price letter and attachments printed with the same type of printer and ink.
All supporting documents tend to be photographed in the same place.
The process of implementing the work has begun since the contract has not been signed / the tender process is still ongoing, because the executor of the work has already been identified.
The procurement committee and / or goods / services users try to direct the auction participant partners to become auction winners.
The characteristics of directing these partners are:
Bid evaluation system conducted by the procurement committee is different from the bid evaluation system specified in the procurement document.
Certain partner bidding documents change substantially after clarification by the procurement committee.
Often there are objections from other partners of the bidders that are truly pure or outside the participant group that has been arranged.
From the preparation stage up to the implementation stage, the procurement of goods and services has the potential to cause corruption. In the Law on the Eradication of Corruption Crime, at least 7 (seven) forms of criminal acts can be identified, namely:
Harming state finances against the law or abuse of authority (Article 2 and Article 3);
Bribery (Articles, 5, 6, 11, 12 letters a, b, c, d and Article 13);
Emphasis in office (Article 8 and Article 10);
Extortion (Article 12 letter e, f, g);
Cheating actions (Article 7 and Article 12 letter b);
Conflict of interest in procurement (Article 12 letter i); and
Gratification (Articles 12 B and 12 C).
The tender committee is the first procurement implementing agency formed by Budget Users (PA) or Budget User Proxies (KPA) after all administrative preparations for the activities are determined . By remembering the importance of the role and function of the procurement committee/working group in the procurement of government goods/services, it even determines the success of a procurement of goods / services, mistakes made by the procurement committee/ working group in the procurement of government goods / services are failed and resulted in causing state financial losses.
Often mistakes made by the procurement committee / working group in the procurement of government goods/services. Law enforcement officials (Prosecutors, police and the Corruption Eradication Commission) always view procedural errors as administrative, so that criminal complaints are rarely asked for errors, only commitment makers (PPK), providers of partners and work results inspectors (PPHP) who was made a suspect or defendant to be submitted before the court.
In this case, because there are no norms that explicitly regulate the nature of being against the law against mistakes made by the procurement committee/working group in the procurement of government goods/services. Even though it was proven by these mistakes the country suffered losses in accordance with the Corruption Law. So this raises uncertainties in efforts to eradicate corruption relating to the procurement of goods and services. Whether administrative errors or criminal errors relating to Article 2 or Article 3 of the Republic of Indonesia Law Number 20 Year 2001 concerning Eradication of Corruption Crime changes to Republic of Indonesia Law Number 31 of 1999 concerning Eradication of Corruption Crimes.
Starting from this, the author intends to conduct more comprehensive and in-depth research in the framework of the preparation of the thesis, related to the existence and implementation of duties and functions of working groups in the procurement of government goods / services, and the author gives the title "Working Group Criminal Responsibility In the Process of Tender for Procurement of Government Goods / Services". Based on the above background, research can formulate a problem, namely how the concept of criminal responsibility for working group errors in the procurement of goods or services.
Research is a basic tool in the development of science and technology that aims to express the truth systematically, methodologically and consistently through the research process. An analysis and construction of data that has been collected and processed is necessary.
This research is normative research. Normative legal research is legal research that places law as a building system of norms. The norm system in question is regarding principles, norms, rules of regulations, court decisions, doctrines.
The type of legal material used in this study is Primary legal material has binding legal force consisting of the 1945 Constitution, statutory regulations, and yurusprudence. In this study the legal material used is Law Number 31 of 1999, as amended by Law Number 20 of 2001 concerning the eradication of criminal acts of corruption, Law 16 of 2004 concerning the Prosecutor's Office of the Republic of Indonesia, Regulation of the President of the Republic of Indonesia Number 16 Year 2018 Regarding Procurement of Government Goods / Services, Presidential Decree of the Republic of Indonesia Number 80 of 2003 concerning Government Goods / Services Procurement Guidelines, Decision of the Corruption Court at the Mataram District Court Number: 20 / PID.SUS-TPK / 2015 / PN.MTR. Legal secondary legal material that describes primary legal materials, namely in the form of literature, scientific works to look for concepts, opinion theory that is closely related to the problems studied, tertiary legal materials provide instructions and explanations of primary legal materials and legal material secondary, such as a dictionary (law), an encyclopedia. In this study the techniques and data collection tools used are study documents including study of legal materials consisting of primary legal materials, secondary legal materials and tertiary legal materials to be checked for validity and reliability. Includes laws and regulations related to the procurement of government goods and services, and laws that are not criminal corruption.
The analysis of legal material conducted juridically is by using interpretation. The interpretation used in this
Regarding the stages of procurement of goods and services, Presidential Decree No. 80 of 2003 does not clearly regulate. At first glance it appears that Chapter I, Chapter II, and Chapter III Appendix of Presidential Decree Number 80 of 2003 are stages of procurement of goods and services which include the preparation stage, process stage, and implementation stage, but actually this is not the case if the substance is loaded on each each of these chapters, only Chapter I and Chapter II, contain the stages of procurement of goods and services, while Chapter III contains the implementation of the procurement of goods and services alone.
This is one of the weaknesses of Presidential Decree Number 80 of 2003, therefore it is true that the statement of Yohanes Sogar Simamora states that the presidential decree contains a lot of biases which in the end often lead to differences in interpretation. In other words, that Presidential Decree Number 80 of 2003 can be categorized as bad law, both technically and substantively.
The lack of clarity in the regulation of the procurement of goods and services has implications for the emergence of various versions of the procurement of goods and services, for example Adrian Sutedi divides 15 (fifteen) stages in the procurement of goods and services, namely:
Precision Procurement Stage;
Stage of Committee Formation;
Participant Prequalification Stage;
Stage of Preparation of Tender Documents;
Tender Announcement Stage;
Stage of Tender Document Collection;
Self Estimated Pricing Stage (HPS);
Tender Explanation Stage (Aanwijzing);
Stage of Submission of Bid and Opening of Bid;
Bid Evaluation Stage;
Stage of Announcement of Prospective Winners;
Bidder Disclaimer Stage;
Winner Appointment Stage;
Contract Signing Phase;
Delivery of Goods and Services.
Nur Basuki Minarno divides 9 (nine) stages of procurement of goods and services, namely:
Procurement Planning;
Formation of Committees;
Determination of the Procurement System;
Preparation of Procurement Schedules;
Preparation of Own Estimated Prices (HPS);
Preparation of Procurement Documents;
Procurement Implementation;
Contract Preparation;
Contract Implementation.
Starting from the explanation above, the writer divides 4 (four) stages of procurement of goods and services based on the grouping of activities, namely:
Planning of goods and services management;
Establishment of a procurement committee for goods and services;
Determination of systems for the procurement of goods and services;
Preparation of schedules for procurement of goods and services;
Preparation of Own Estimated Prices (HPS):
Preparation of Procurement Documents for goods and services.
Selection of providers of goods and services;
Determination of providers of goods and services;
Contract preparation phase;
Contract implementation phase.
Procurement of goods and services is essentially an attempt by the government represented by the Commitment Officer (PPK) to obtain the desired goods and services, using certain methods and processes to reach agreement on the price, time and quality of goods and services. So that the essence of the procurement of goods and services can be carried out as well as possible, then both parties defend the Commitment Officer (PPK) and providers of goods and services must be guided by the legal provisions for the procurement of goods and services.
In the previous chapter, it was explained that the legal regulation regarding the procurement of goods and services by the government is a relatively new legal rule whose arrangement began in 2000, namely by Presidential Decree Number 18 Year 2000 which was later replaced by Presidential Decree Number 80 of 2003 seven times the last change was made with Presidential Regulation No. 95 of 2007.
Looking at the procurement of goods and services described above, legal aspects related to the procurement of goods and services can be classified: government administrative aspects, civil law aspects, and criminal law aspects, each activity at a certain stage will carry out certain laws with which is subject to certain legal domains. If the activities at each stage of the procurement of goods and services occur mark up, the element of Corruption Collusion Nepotism, bribery, illegal acts or abuse of authority, it is the realm of criminal law (corruption).
For example, corruption cases in the implementation of Electronic Identity Cards are an example of corruption cases in the procurement of goods and services in Indonesia. The state loss due to corruption in the Electronic Population Identity Card is very large, amounting to 2.3 trillion of the total project funds budgeted at 5.9 trillion. This means that almost 50% of the project's Electronic Identity Card funds have been corrupted. As is the case with corruption of Procurement of Goods and Services that has happened a lot, corruption cases of Electronic Population Sign Cards also involve many parties, both from the private sector namely winners and tender holders, as well as the government who then conspire with the project tender holders.
In Article 1 of the Republic of Indonesia Presidential Regulation Number 16 of 2018, the Election Working Group, hereinafter referred to as the Election Working Group, is human resources determined by the leadership of the Goods / Services Procurement Unit (UKPBJ) to manage the selection of Providers. Whereas in the Presidential Decree Number 80 of 2003 concerning Government Goods / Services Procurement Guidelines, it does not recognize the term Election Working Group, but only recognizes the term Procurement Committee, namely a team appointed by users of goods / services to carry out the selection of providers of goods/services.
Then in Article 13 paragraph 1 the Election working group in the Procurement of Goods/Services as referred to in Article 8 letter e has the following tasks:
carry out preparation and implementation of selection of Providers;
carry out the preparation and implementation of the selection of Providers for electronic catalogs; and
determine the winner of the election / Provider for the selection method:
Tender/Direct Appointment for the Procurement of Goods/Construction Works/Other Services package with a ceiling value of 100,000,000,000.00 (one hundred billion rupiahs); and
Direct Selection / Appointment of the most billion Consultation Services Procurement packages with a Budget Ceiling value of at most 10,000,000,000.00 (ten billion rupiahs).
the working group in the Election referred to in paragraph 1 has 3 (three) members and can be added through consideration of the complexity of the selection of Providers, members of the Election working group as long as it is odd or odd, the provisions are in paragraph 2 and 3. team or expert verse 4.
Whereas the Presidential Decree Number 80 of 2003 concerning Guidelines for the Implementation of Government Goods/Services Procurement, concerning the duties of the procurement committee is not regulated in a separate article but the task of the procurement committee is regulated in several articles, namely:
Article 10 paragraph 1, Procurement Committee must be formed for all procurement with a value above 50,000,000.00 (five thousand rupiahs).
Article 10 paragraph 6 of the procurement committee is a minimum of 3 (three) people who understand the procedures for procurement.
Article 13 paragraph 2 of the procurement committee/officer compiles the Self Estimated Price (HPS) and is determined by the user of goods/services.
Article 14 paragraph 3 Procurement committees/officials must make post-qualification for public procurement/procurement services/other services in a fair, transparent manner, and encourage fair competition by including as many as possible providers of goods / services.
Article 14 paragraph 5 Procurement committees can carry out prequalification for general procurement of procurement/chartering services/other complex services.
Article 14 paragraph 6 Procurement committees/officials are prohibited from adding pre-qualification/post-qualification requirements beyond those stipulated in the provisions of this presidential decree or higher legal provisions.
Article 14 paragraph 10 of the committee/officials of procurement in the pre-qualification / post-qualification process may not prohibit, impede, and limit the participation of prospective procurement/service participants from outside the province/regency/city for procurement of goods/services;
Article 14 paragraph 12 Procurement committees/officials are prohibited from charging or charging any fees for providers of goods / services except the cost of doubling procurement documents.
In carrying out activities, it must be inseparable from planning. Planning is made so that later activities carried out do not deviate too much from the objectives set at the outset. As well with the procurement of goods and services, there needs to be careful and efficient planning before stepping up to provide certain goods and services. On the side of government agencies, the plan for the procurement of goods and services is handled by Budget Users (PA), Budget User Proxies (KPA), and related officials, apparently as described earlier. Before moving on to the method that will be used, the procurement plan will look at the needs in the relevant agencies.
3.
In criminal law, the focus of criminal responsibility is error (schuld). According to Schaffmeister, interpreting errors is inappropriate behavior that can be objectively objected to the culprit. Based on the meaning of the error, it is noted that the error must be in accordance with the appropriate error. That is doing something that should not have been done or not done. Mistakes looking at the relationship between improper conduct and the perpetrator in such a way that the action is his actions.
In connection with the procurement of goods or services, the scope of actions or actions taken by both users of goods or services and providers are all acts or actions that are against the law. That is, that actions or actions in the procurement of goods or services are not in accordance with the laws and regulations starting from the preparation stage to completion or the expiration of the contract. Because criminal law is a public law, there are direct state obligations to protect all rights and interests of users and providers of goods or services.
A review of criminal law in the process of procuring goods or services is that criminal law is applied if there are criminal violations committed by parties, both users and providers of goods or services in the process of procurement of goods/services. This is in accordance with the principle of criminal law "Green straf zonder schuld", there is no penalty without error. So that the Working Group's Errors and Responsibilities in corruption of the procurement of goods and services, are more concerned with actions that are detrimental to the state's finances and whose actions they carry out are related to one another.
In Decision Number 20/Pid.Sus-TPK/2015/PN.Mtr the Corruption Criminal Court at the Mataram District Court, which handed down the verdict to Agus Trias Yatmoko, I Nyoman Adiwijaya, Akhdiyat Furqon, and Dedy Irawan DL. That was true that the defendant could explain that in the activities of the Auction and Direct Appointment in the procurement of Medical Devices in the Individual Health Business Program (UKP) the Regional General Hospital Dr. Soedjono Selong, by the Director of the Selong General Hospital as the Budget User Authority (KPA) (Dr. H. Utun Supria, M.Kes)according to Decree Number: 29/PUKP/RSUD / 2008 dated October 16, 2008 on the basis of consideration, because the defendant has certification in the field procurement of government goods/ services in the L4 category and because the defendant had carried out similar activities as a Commitment Making Officer from 2006 to 2007. So that they were proven legally and convincingly guilty of committing corruption in a joint manner, with imprisonment each for 1 (one) year, and a fine of 50,000.00.00 (fifty million rupiahs), with the provision that if they do not pay a fine, they will be replaced with imprisonment for 2 (two) months each.
Based on the decision, the joint corruption carried out by the Working Group was included in the deletion (delneming). This means that it is included in the element of offense which jointly commits corruption. However, the action can only be said that an act must have State losses incurred. Therefore the responsibility of the working group in the procurement of goods and services relating to State losses is a criminal act as stipulated in the law on corruption. In legal theory, an act can be accounted for if it violates the law can be criminal, namely Article 2 or Article 3 of the Law of the Republic of Indonesia Number 20 of 2001 concerning Eradication of Corruption Crime changes to the Law of the Republic of Indonesia Number 31 of 1999 concerning Eradication of Acts Corruption Crime.
The Concept of Criminal Liability for Errors of the Working Group in the Procurement of Goods and Services, namely all acts or actions that are against the law. That is, that actions or actions in the procurement of goods or services are not in accordance with the laws and regulations starting from the stage of carrying out the preparation and implementation of selection of providers, carrying out the preparation and implementation of selection of providers for electronic catalogs, and determining the winner/provider for the selection method. What results in a loss of state loss is a criminal act as stipulated in the law on corruption, namely Article 2 or Article 3 of the Republic of Indonesia Law Number 20 of 2001 concerning the Eradication of Corruption Crime changes to the Republic of Indonesia Law Number 31 of 1999 concerning Eradication Corruption Crime.