Good Corporate Governance and Tender Conspiracy in Perceptions of Business Competition in Indonesia

Abstract

The prohibition of conspiring in determining the winner of a tender is regulated in Article 22 of Law Number 5 of 1999 concerning the Prohibition of Monopolistic Practices and Unfair Business Competition. The essence of Article 22 of Law No. 5 of 1999 contains the intent, that business actors are prohibited from entering into agreements that result in Tender Conspiracy. It implies that the content that is contrary to Good Corporate Governance is very strong. The engagement as regulated in Article 1338 of the KHPdt has guaranteed freedom of contract which has become the inherent principle in the context of civil law. This principle means that anyone can enter into an agreement, whether it has been or has not been regulated in the Act (Article 1338 of the Criminal Code). The agreement that has been made between the parties applies as a law that binds the makers. Tender Conspiracy is basically an agreement between business actors/tender participants. However, tender conspiracy causes losses to certain parties other than the conspiring parties. others to regulate and or determine the winner of the tender so that it may result in unfair business competition. The clause in Article 22 of Law No. 5 of 1999 contains the stelsel Rule of Reason. The freedom of contact as regulated in Article 1338 of the KHUPdt here deals with the prohibition of engaging in an engagement which contains conspiracy as regulated in Article 22 of Law Number 5 of 1999 and also with Article 1320 concerning the conditions for a valid agreement, namely agreement, skill, a certain thing, a lawful cause. Tender conspiracy is the basic principle of violating the principles of good corporate governance.