In an effort to achieve significant benefits and reduce any negative environmental impacts throughout the lifecycles of projects, the Deputy for the Development of Strategies and Policies for Government Procured Goods/Services Institutions (“Deputy”) has issued Decree No. 3 of 2024 on the Sustainable Procurement Selection Document Model for Construction Projects (“Decree 3/2024”). Decree 3/2024 has been in force since 19 February 2024.[1]

Generally speaking, Selection Documents (Dokumen Pemilihan) are prepared in order to assist participants in the preparation of their Bid Documents (Dokumen Penawaran) in accordance with Regulation No. 16 of 2018 on Government Procurements of Goods/Services, as amended several times, most recently through the issuance of Regulation No. 12 of 2021. [2]

However, it should be noted that the following provisions are applicable if any discrepancies are discovered:[3]

1. If discrepancies between the requirements as set out in selection documents and listed on the Electronic Procurement System (Sistem Pengadaan Secara Elektronik – “SPSE”) are discovered, then the requirements that are set out in the relevant selection documents should be used;
2. If discrepancies between the requirements set out on a Selection Sheet (Lembar Data Pemilihan – “LDP”) or Qualification Sheet (Lembar Data Kualifikasi – “LDK”) and the provisions also set out on the same LDP as Instructions to Participants (Instruksi Kepada Peserta/IKP) are discovered, then the requirements on either the LDP or LDK may be used.

In order to offer a general understanding of Decree 3/2024, we have limited our discussion to certain matters that specifically relate to the tender process. Our analysis has been divided up into the following sections:

1. Requirements for Tender Participants: Joint Operations;
2. Prohibitions and Sanctions; and
3. Tender Processes.

Requirements for Tender Participants: Joint Operations

Tenders are open to all participants in the form of Sole Proprietorships (Badan Usaha Tunggal) or Joint Operations (Kerja Sama Operasi – “KSO”) that are created prior to the submission of the relevant Bid Documents and that fulfill the qualifications that apply to providers, as outlined in the relevant LDK. For KSO participants, the specifications of any KSO agreements that must be included break down as follows:[4]

Each KSO should comprise three national company members. Moreover, KSO agreements are not allowed to be modified during any tender process. KSO can be formed between businesses that meet various qualification levels. However, it should be noted that the qualifications of the relevant lead firm must be equal to or exceed those of the other KSO members, while the lead firm may have a majority capital share of up to 70%.[5]

In addition, participants in any projects in Papua and West Papua are required to engage in efforts to empower local businesses by including said businesses in KSO and/or any subcontracting.[6]

Prohibitions and Sanctions

In order to ensure compliance with the procurement rules stated therein, Decree 3/2023 determines various prohibitions that, if violated, could result in the imposition of sanctions. These prohibitions and sanctions break down as follows:[7]

In addition to the aforementioned prohibitions, participants must avoid any conflicts of interest, including scenarios in which individuals serve in similar capacities across different entities participating in the same tenders or where appointed providers take on roles as implementers of projects that they previously designed or supervised. Furthermore, participants should not involve government employees in any roles, unless they are on periods of leave that extend beyond the state’s responsibility.[8]

Tender Processes

The procurement tender process, as comprehensively outlined under Decree 3/2024, encompasses several key stages, as broadly summarized in the following flowchart:^[9]

 Finally, in terms of the sustainability aspect, as addressed under Decree 3/2024, assessments of this aspect will be completed with reference to documents that are submitted by participants and that specifically address the use of equipment, materials and labor.

Source : hukumonline.com