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1 PREFACE As a step to accelerate the provision of infrastructure to achieve the targets which included in the National Medium Term Development Plan (RPJMN) , the government has issued Presidential Regulation Number 38 Year 2015 about the Cooperation between Government and Business Entities in Infrastructure Provision. By the time of enactment of this Presidential Regulation, therefore the Presidential Regulation Number 67 Year 2005 and its amendment, with the latest is the Presidential Regulation Number 66 Year 2013, is revoked and declared invalid. i

2 Tabel of Contents Preface i Table of contents ii Public Private Partnership (PPP) iii Presidential Regulation Number 38 Year Regulation Of The Minister Of National Development Planning/Head Of National Development Planning Agency Number 4 Year 2015 Appendix of Regulation Of The Minister Of National Development Planning/Head Of National Development Planning Agency Number 4 Year 2015 Appendices ii

3 PUBLIC PRIVATE PARTNERSHIP (PPP) Definition: PPP is: A cooperation between the government and private sector for infrastructure provision for public interest, WHY PPP? The Purpose of implementing PPP scheme: The implementation refers to the output specification that has been determined by the Minister / Head of Institution / Head of Region / SOE/ROE, Fully or partly utilizing the private sector resources, Considering the risk allocation between the party. To meet the funding needs for Infrastructure Provision in a sustainable manner through the use of private funding. To accomplish Infrastructure Provision with quality, effectiveness, efficiency, accuracy and promtness. To promote the principle that the user pays for the service received, or in certain cases considering the ability of the user to pay. To create an investment environment that promotes the participation of Business Entities in the Infrastructure Provision based on principles of good corporate governance. To provide certainty to the Business Entities about the return on investment in the Infrastructure Provision through periodic payment by government to Business Entity. PPP Principle PARTNERSHIP COMPETITION EFFECTIVENESS BENEFIT RISK CONTROL AND MANAGEMENT EFFICIENCY iii

4 Misconception of PPP PPP is not a transfer of government obligation in the provision of public services. PPP is a financing scheme which undertaken by the private sector to design, build and operate infrastructure projects; Private investment is not a free donation to the government in the provision of public services; PPP is not Privatization of public goods; PPP is not a source of government revenue which would be a burden on society in the provision of public services; PPP is not a government loan/debt to the private sector. iv

5 SUBJECT ON PPP Government as the Contracting Agency Minister/ Head of Institution/ Head of Region or any other party that has been delegated to act on behalf of the Ministry/Institution/Region. Board of Director of SOE / ROE could act as CA in accordance with the existing law and regulation. Project bundling is allowed, in which the Minister/Head of Institution/ Head of Region will act together as the CA by signing a MoU and agreed on who will act as the CA Coordinator. Private Sector State Owned Enterprise (SOE); Regional Owned Enterprise (ROE); Business entity in the form of Indonesian Limited Liability Company (PT); Foreign business entity; Cooperation. v

6 SCOPE OF INFRASTRUCTURE vi

7 HYBRID FINANCING CA could finance a part of the infrastructure provision. The infrastructure provision will still be implemented by the Implementing Business Entity in which the business entity has been chosen through the procurement process. UNSOLICITED PROJECT Criteria for Unsolicited Project: Technically integrated into the master plan of the concerning sector; Economically and financially feasible; and The initiator should have sufficient financial capability to finance the infrastructure provision. Compensation form: (1) 10% value added; (2) Right to match; and (3) Purchase of Cooperation Project initiative including Intellectual Property Rights that accompany it. Under the new Presidential Regulation on PPP the criteria of excluded in the master plan for the concerning sector is no longer exist. Unsolicited project is still eligible for Government Guarantee in accordance to the existing law and regulation vii

8 LAND ACQUISITION Land acquisition for PPP should be done by the Government in accordance to the law and regulation. Land acquisition should be allocated in the State Budget and/or Regional Budget. If the CA is SOE/ROE, the land acquisition should be allocated by SOE/ROE or being funded by the business entity through a cooperation with SOE/ROE. If the project is feasible, the implementing business entity could be asked to reimburse fully or partly of the land acquisition expenses. Procurement for the business entity can only be started after the project location has been determined. viii

9 GOVERNMENT SUPPORT Minister/ Head of Institution/ Head of Region could give Government Support DEFINITION Fiscal contribution and/or other form given by Minister/Head of Institution/Head of Regional and/or Minister of Finance (MOF) in accordance with the law and regulation in order to improve the project s financial feasibility and effectivity. FORMS Viability Gap Fund (VGF) or tax incentive as approved by MOF; and/or Other forms of government support could be given by Minister/Head of Institution/Head of Region as long as in accordance with the laws and regulations. Land acquisition and licensing/permits are no longer considered as Government Support but more as the Government Obligation. Government Guarantee Government could give Government Guarantee for the PPP Project Terms and Conditions Risk control and management over government guarantees is implemented by the Ministry of Finance (MOF). MOF is authorized to: establish the criteria for the provision of Government Guarantee to be given to a PPP; ask and obtain any data and information required from the parties associated with the PPP who are requesting Government Guarantee; establish forms, procedures and mechanisms for the Government Guarantee to be given to PPPs; and stipulate the granting of a Government Guarantee to a Business Entity toward infrastructure provision. Further terms and conditions about forms, procedures and mechanism of Government Guarantee will be regulate by the MOF. Government Guarantee could be given by the MOF through state-owned enterprise for Infrastructure Guarantee with regards to a certain presidential regulation. ix

10 BUDGET ALLOCATION FOR PROJECT PREPARATION AND TRANSACTION & SUCCESS FEE MECHANISM Budget Allocation by Government Minister/Head of Institution/ Head of Region/SOE/ROE allocate budgets for PPP planning, preparation, transaction and project management in accordance with the law and regulation. Success Fee Mechanism Expenses occured during the project preparation could be fully or partly borne by the winning bidder, which include: Transaction cost; Reasonable compensation, in the event of project preparation conducted by business entity/ institution/ international organization based on the success of the project; Other legitimate expenses. Tender mechanism: 1. Procurement; or 2. Direct appointment Procurement or direct appointment are being preceded by Pre Qualification. Direct appointment criteria: TENDER MECHANISM 1. Development of existing infrastructure which has been constructed or operated by the same Implementing Business Entity; 2. The scope of works requirement can only be done by using new technology and the services provider is the sole provider; or 3. Mostly or the whole of the required land for the project is being owned by the Business Entity. x

11 FINANCIAL CLOSE AND COST RECOVERY Financial Close Financial close should be obtain no longer than 12 months after signing Cooperation Agreement and could be extend from time to time if the failure, if failure to obtain funding is not contributable to failure of Business Entity Every extension being given for financial close is not longer than 6 months. Financial close could be done gradually in accordance with the project cycle. Cost Recovery 1. User Charge; and/or 2. Availability Payment. PPP NODES Minister/ Head of Institution/ Head of Region should appoint a unit to act as PPP Node. FUNCTION As an implementing unit under the Government for any activities related with PPP. RESPONSIBILITIES Preparing policies, coordination, synchronization, monitoring and evaluating PPP implementation. xi

12 Disclaimer: This English translation is only for reference purpose. Where there are any discrepancies between original Bahasa Indonesia version and English translation version, the original Bahasa Indonesia version always prevail.

13 PRESIDENT REPUBLIC OF INDONESIA PRESIDENTIAL REGULATION NUMBER 38 YEAR 2015 CONCERNING COOPERATION BETWEEN GOVERNMENT AND BUSINESS ENTITIES IN INFRASTRUCTURE PROVISION WITH THE GRACE OF THE SUPREME GOD THE PRESIDENT OF THE REPUBLIC OF INDONESIA Considering : a. whereas the availability of adequate and sustainable infrastructure is an urgent need, to support the implementation of national development in order to improve the national economy, the welfare of society and the competitiveness of Indonesia in a global context; b. whereas in order to accelerate infrastructure development, it is necessary to take comprehensive steps to create an investment climate that encourages the participation of business entities in the provision of infrastructure based on principles of good corporate governance; c. whereas in order to encourage and improve cooperation between government and business entities in the provision of infrastructure and social services, it is necessary to protect and safeguard the interests of consumers, communities and business entities equitbly; d. whereas based on the considerations referred to in letter a, letter b, and letter c, it is necessary to regulate the Cooperation Between Government and Business Entities in the Provision of Infrastructure so that the cooperation can be done in a broad, expeditious, effective, efficient, comprehensive and sustainable way; e. whereas based on the considerations referred to the letter a, letter b, e. letter c... 1

14 PRESIDENT REPUBLIC OF INDONESIA letter c, and letter d, it is necessary to enact the Presidential Regulation concerning stipulate Cooperation Between Government and Business Entities in the Provision of Infrastructure; In view of : Article 4 Paragraph (1) of the Constitution of the Republic of Indonesia Year 1945; HAS DECIDED TO: Enact : PRESIDENTIAL REGULATION CONCERNING COOPERATION BETWEEN GOVERNMENT AND BUSINESS ENTITIES IN INFRASTRUCTURE PROVISION CHAPTER I GENERAL PROVISIONS Article 1 In this Presidential Regulation what is meant by: 1. Minister/Head of Institution is the head of ministry/head of institution or delegated party to act in representation of the ministry/institution based on the laws and regulations, who has the scope, duty and responsibility in the infrastructure sector regulated in this Presidential Regulation. 2. The Head of the Region is the governor of the province, or regent/mayor of the regency/city or delegated party to represent the relevant head of region based on the laws and regulations. 3. The Government Contracting Agency hereinafter referred to as GCA is the Minister/Head of Institution/Head of Region, or State Owned Enterprise/Regional 2

15 PRESIDENT REPUBLIC OF INDONESIA Owned Enterprise as provider or administrator of the infrastructure based on the laws and regulations. 4. Infrastructure is the technical, physical, hardware, and software system facilities required to provide services to society and to support structural networks that enable the improvement of economic and social development. 5. Infrastructure Provision is the activity that involves construction works aimed at building or improving the infrastructure capacity and/or the infrastructure management and/or infrastructure maintenance activities aimed at improving the usefulness of infrastructure. 6. Public Private Partnership, hereinafter referred to as PPP, is the cooperation between government and Business Entity in infrastructure provision for the public interest in accordance with the specification previously determined by the Minister/Head of Institution/Head of Region/State Owned Enterprise/Regional Owned Enterprise, which partially or fully uses Business Entity s resources, with particular regard to the allocation of risk between the parties. 7. Business Entity is a State Owned Enterprise, Regional Owned Enterprise, private entity in the form of Limited Liability Company, foreign entity, or cooperative. 8. Business Entity that conducts PPP, hereinafter referred to as the Project Company, means a Limited Liability Company established by the winning bidder or directly appointed. 9. Selection means a method to procure a Business Entity for PPP preparation, which involves as many participants as possible through open announcement or invitation. 10. Bidding means a method to procure a Project Company for PPP implementation, which involves as many participants as possible through open announcement or invitation. 11. Direct Appointment means a method to procure a Project Company for PPP implementation, through negotiation with a single participant Government...

16 PRESIDENT REPUBLIC OF INDONESIA 12. Government Support means fiscal and/or other form of support provided by the Minister/Head of Institution/Head of Region and/or minister responsible for administering financial and state asset affairs in accordance with their authority based on the laws and regulations, in order to improve the financial feasibility and effectiveness of a PPP. 13. Viability Support means Government support in the form of financial contribution provided to a PPP Project by the minister responsible for administering financial and state asset affairs. 14. Government Guarantee means financial compensation provided by the minister responsible for administering financial and state asset affairs to the Project Company through a risk allocation scheme for the PPP Project. 15. Infrastructure Guarantee means the granting of a guarantee upon the GCA s financial obligations in accordance with the guarantee agreement. 16. Availability Payment means a periodic payment by the Minister/Head of Institution/Head of Region to the Project Company for the availability of the infrastructure service in accordance with the quality and/or other criteria specified in the PPP agreement. CHAPTER II PURPOSES AND PRINCIPLES OF PPP Article 2 (1) The Minister/Head of Institution/Head of Region may cooperate with a Business Entity in Infrastructure Provision. (2) Public Private Partnership in Infrastructure Provision conducted through PPP scheme is based on the terms and conditions stipulated in this Presidential Regulation. 4

17 PRESIDENT REPUBLIC OF INDONESIA Article 3 The purpose of conductiong PPP is: a. to meet the funding needs for Infrastructure Provisions in a sustainable manner through the use of private funding; b. to accomplish Infrastructure Provision with quality, effectiveness, efficiency, accuracy, and promptness; c. to create an investment environment that promotes the participation of Business Entities in the Infrastructure Provision based on principles of good corporate governance; d. to promote the principle that the user pays for the service received, or in certain cases considering the ability of the user to pay; an/or e. to provide certainty to the Business Entities about the return on investment in the Infrastructure Provision through periodic payment by government to Business Entity. Article 4 PPP is conducted based on the following principles: a. Partnership, meaning that cooperation between government and Business Entities is conducted based on the laws and stipulations that take into account the needs of both parties; b. Benefit, meaning that infrastructure provision is conducted by governments with Business Entities to provide social and economic benefits for society; c. Competition, meaning that the procurement of a Business Entity cooperation partner is conducted fairly, openly and transparently, with consideration to the principle of fair business competition; d. Control and management or risk, meaning that cooperation in Infrastructure Provision is conducted with an assessment of risk, the development of a management strategy, and mitigation of risk; 5 e. Effectiveness...

18 PRESIDENT REPUBLIC OF INDONESIA e. Effectiveness, meaning that cooperation in Infrastructure Provisions is able to accelerate the development as well as increase the quality of infrastructure management and maintenance services; and f. Efficiency, meaning that cooperation in Infrastructure Provision helps meet the funding needs in a sustainable way through the support from private funding. CHAPTER III TYPES OF INFRASTRUCTURE AND FORM OF COOPERATION Article 5 (1) The infrastructure that can be cooperated based on this Presidential Regulation is economic infrastructure and social infrastructure. (2) The types of economic infrastructure and social infrastructure referred to in paragraph (1) include the following: a. Transportation infrastructure; b. Road infrastructure; c. Water resources and irrigation infrastructure; d. Water supply infrastructure; e. Infrastructure for centralized waste water management systems; f. Infrastructure for local waste water management systems; g. Infrastructure for waste management systems; h. Telecommunications and informatics infrastructure; i. Electricity infrastructure; j. Oil and gas and renewable energy infrastructure; k. Energy conservation infrastructure; l. Urban facilities infrastructure; m. Education facilities infrastructure; 6

19 PRESIDENT REPUBLIC OF INDONESIA n. Sports and art facilities and infrastructure; o. Zone infrastructure; p. Tourism infrastructure; q. Health infrastructure; r. Penitentiary Infrastructure; and s. Public Housing infrastructure. (3) PPP can be for infrastructure provision that comprises a combination of 2 (two) or more types referred to in paragraph (2). (4) For the purpose of increasing the feasibility of a PPP and/or providing additional benefits to society, a PPP may involve activities for the provision of commercial facilities. (5) Further provisions regarding other types of economic and social infrastructure may be stipulated by the minister responsible for administering matters in the field of national development planning. CHAPTER IV GOVERNMENT CONTRACTING AGENCY (GCA) Part One Minister/Head of Institution/Head of Region as GCA Article 6 (1) In the implementation of PPP, the Minister/Head of Insititution/Head of Region acts as GCA. (2) The determination of the Minister/Head of Institution/Head of Region as GCA is done in accordance with the legislation in the field of sector. 7 Article 7...

20 PRESIDENT REPUBLIC OF INDONESIA Article 7 (1) In the case of a PPP that combines two (2) or more types of infrastructure, the Ministers/Heads of Institutions/Heads of Regions that have the authority over the cooperated infrastructure sectors based on the legislation will act together as GCA. (2) The Ministers/Heads of Institutions/Heads of Regions that have the authority over the infrastructure sectors which will be in the cooperation as referred to in paragraph (1) will sign a memorandum of understanding regarding the GCA. (3) The memorandum of understanding referred to in paragraph (2) shall at least contain: a. agreement about the party that becomes the coordinator of the GCA; b. agreement regarding the allocation of tasks and budgets for the preparation, transaction, and management of the PPP; and c. the PPP implementation period. Part Two State Owned Enterprise or Regional Owned Enterprise as GCA Article 8 State Owned Enterprises and/or Regional Owned Enterprises may act as GCA, as regulated by the sector s legislation. Article 9 In the case that a State Owned Enterprise and/or a Regional Owned Enterprise acts as GCA, the PPP is implemented through an agreement with the implementing Business Entity. 8

21 PRESIDENT REPUBLIC OF INDONESIA CHAPTER V LAND ACQUISITION Article 10 (1) Land acquisition for a PPP will be carried out by the Government in accordance to the laws and regulations regarding land acquisition for development in the public interest. (2) The source of funding for land acquisition for a PPP is APBN (State Budget) and/ or APBD (Local Government Budget). (3) In the case the GCA is a State Owned Enterprise and/or a Regional Owned Enterprise, the source of funding for land acquisition is from the budget of the State Owned Enterprise /Regional Owned Enterprise or from the Business Entities through cooperation with the concerned State Owned Entreprise/ Regional Owned Enterprise. (4) In the case that the PPP is financially feasible, the implementing Business Entity may repay partly or fully the cost of land acquisition that has been carried out by the Minister/Head of Institution/Head of Region. (5) The provisions referred to in paragraph (4) must be included in the tender documents for the procurement of implementing Business Entity. CHAPTER VI RETURN ON INVESTMENT OF THE BUSINESS ENTITY Article 11 (1) The GCA determines the form of investment return that covers the capital cost, operational cost, and profit of the implementing Business Entity. (2) The returns on investment of the implementing Business Entity in the provision of Infrastructure is sourced from: a. payment... 9

22 PRESIDENT REPUBLIC OF INDONESIA a. payment from the user in the form of tariffs; b. Availability Payment; and/or c. other forms that do not conflict with the legislation. Article 12 (1) In terms of the return on investment of the implementing Business Entitiy from payment by user in the form of tariffs, the GCA will set the initial tariff for infrastructure provision. (2) Initial tariffs and their adjustment are determined to ensure a return on investment that covers capital cost, operational cost, and profit within a determined period of time. (3) In the case that, based on the considerations from the GCA, the tariff referred to in paragraph (2), cannot be determined to return the entire investment by the implementing Business Entity, the tariff can be determined by the capacity of the user. (4) In case that the tariff is determined based on the capacity of the user, the GCA will provide Viability Support so that the implementing Business Entity may get the return on investment referred in paragraph (2). (5) Viability Support as referred in paragraph (4) will only be given to PPPs that have social interest and benefit, after the Minister/Head of Institution/Head of Region has completed a thorough study on the social benefits. Article 13 (1) In the case that the return on investment of the implementing Business Entity is sourced from Availability Payment, the GCA will budget for Availability Service Payment funds for the Infrastructure Provision conducted by implementing Business Entity during the operation period set in the Cooperation Agreement. (2) Budgetary funds for Availability Payment as referred to in paragraph (1), will be calculated considering: 10

23 PRESIDENT REPUBLIC OF INDONESIA a. capital cost; b. operational cost; and/or c. profits of the implementing Business Entity (3) In the event that the implementing Business Entity operates the cooperated infrastructure in accordance with the conditions specified in the PPP agreement, the Minister/Head of Institutuion/Head of Region will make the Availability Payment to the implementing Business Entity, through the budget of the Ministry/ Institution/Regional Government. (4) The GCA will make the Availability Payment to the implementing Business Entity if it fulfills the following conditions: a. the cooperated infrastructure has been built and declared ready to operate; and b. the Minister/Head of Institution/ Head of Region has stated that the infrastructure has met the infrastructure service indicators as set forth in the Cooperation Agreement. (5) Further provisions regarding Availability Payment will be stipulated in the regulations of the ministry responsible for the field of finance and state s wealth and/or the minister responsible for matters of government domestic affairs. CHAPTER VII PPP BASED ON THE INITIATIVE FROM BUSINESS ENTITY Article 14 (1) The Minister/Head of Institution/Head of Region initiates the provision of infrastructure to be cooperated with the Business Entity through a PPP scheme. (2) Notwithstanding the provision in paragraph (1), a Business Entity may submit initiatives to the Minister/Head of Institution/Head of Region. 11 (3) Infrastructure...

24 PRESIDENT REPUBLIC OF INDONESIA (3) Infrastructure Provision that may be initiated by a Business Entity must meet the following criteria: a. technically integrated with the master plan of the sector concerned; b. economically and finacially feasible; and c. the Business Entity that proposes the initiative has adequate financial capability to finance the implementation of the Infrastructure Provision. (4) The Initiator Business Entity shall prepare the feasibility studies for the proposed PPP. (5) The Business Entity that initiates a PPP may be given the following alternatives for compensation: a. additional value of 10% (ten percent); b. the right to bid by the initiating Business Entity in relation with the best bidder (right to match), in accordance with the result of the evaluation of the tender process; or c. the purchase of the PPP initiative, such as the corresponding Intellectual Property Rights by the Minister/Head of Institution/Head of Region or by the winning bidder. (6) The form of compensation referred to in paragraph (2), will be included in the approval by the Minister/Head of Institution/Head of Region. (7) In the case the initiating Business Entity has obtained compensation as referred to in paragraph (5) letters a,b,c, the entire feasibility study and supporting documents, including the corresponding Intellectual Property Rights will become the property of the Minister/Head of Institution/Head of Region. (8) The Minister/Head of Institution/Head of Region may change or make additions to the feasibility study and supporting documents without prior consent from the initiating Business Entity, with regards to the entire feasibility study and supporting documents, including Intellectual Property Rights as referred to in paragraph (7). (9) A PPP initiated by a Business Entity may be given Government Guarantee in accordance with the applicable legislation. 12

25 PRESIDENT REPUBLIC OF INDONESIA CHAPTER VIII GOVERNMENT SUPPORT AND GOVERNMENT GUARANTEE Article 15 (1) The Minister/Head of Institution/Head of Region may give Government Support to a PPP in accordance with the scope of PPP activities. (2) Government Support as referred to in paragraph (1) will be included in the tender documents for the procurement of the implementing Business Entity. Article 16 (1) The Minister responsible for government affairs in the field of finance and state s wealth may agree on the provision of Government Support in the form of Viability Support and/or tax incentives in accordance with the legislation, based on the proposal by the GCA. (2) The form and procedures for Viability Support as referred to in paragraph (1), shall be further regulated by the minister responsible for government affairs in the field of finance and state s wealth. (3) The Minister/Head of Institution/Head of Region may give other forms of Government Support in accordance with the legislation. Article 17 (1) The govenrment may provide Government Guarantee to a PPP. (2) Government Guarantee as referred to in paragraph (1), is given in the form of Infrastructure Guarantee. (3) Government Guarantee is given in accordance with principles of management and control of finacial risk in the State Budget. 13 (4) Control...

26 PRESIDENT REPUBLIC OF INDONESIA (4) Control and management of the risk of the Government Guarantee referred to in paragraph (3) is carried out by the minister responsible for government affairs in the field of finance and state s wealth. (5) The minister referred to in paragraph (4), in carrying out their duties and functions is authorized to: a. establish the criteria for the provision of Government Guarantee to be given to a PPP; b. ask and obtain any data and information required from the parties associated with the PPP who are requesting Government Guarantee; c. establish forms, procedures and mechanisms for the Government Guarantee to be given to PPPs; and d. stipulate the granting of a Government Guarantee to a Business Entity toward infrastructure provision. (6) The Government Guarantee referred to in paragraph (2), shall be included in the tender documents. (7) Further provisions about the forms, procedures and mechanism for Government Guarantee shall be further regulated by the minister responsible for government affairs in the field of finance and state s wealth. Article 18 (1) The Government Guarantee may be given by the minister responsible for government affairs in the field of finance and state s wealth through the state owned company for infrastructure guarantees. (2) Further provisions on Government Guarantee as referred to in paragraph (1) will be regulated by a separate Presidential Regulation. 14

27 PRESIDENT REPUBLIC OF INDONESIA CHAPTER IX PARTIAL FUNDING OF PPP BY GOVERNMENT Article 19 (1) The GCA may finance the provision of Infrastructure in part. (2) The Provision of Infrastructure as referred to in paragraph (1) will be implemented by the implementing Business Entity. (3) The selection of an implementing Business Entity as referred to in paragraph (2) will be carried out through procurement of the implementing Business Entity as set forth in this Presidential Regulation. CHAPTER X PPP PLANNING Part One General Article 20 (1) The Minister/Head of Institution/Head of Region plans the Infrastructure activities to be undertaken in cooperation with Business Entities. (2) PPP Planning comprises, among others: a. identification and determination of PPPs; b. PPP budgeting; and c. PPP categorization. 15 Part...

28 PRESIDENT REPUBLIC OF INDONESIA Part two PPP Identification and Determination Article 21 (1) The Minister/Head of Institution/Head of Region identifies the Infrastructure Provision that will be carried out in cooperation with Business Entities. (2) The identification of the Infrastructure Provision shall consider at least: a. conformity with the National Medium Term Development Plan/Regional Medium Term Development Plan and the infrastructure sector strategic plan; b. c onformity with the Spatial Planning c. linkages between infrastructure sectors and between regions; d. analysis of social costs and benefits; and e. analysis of Value for Money. Article 22 (1) Infrastructure Provision to be carried out in cooperation with Business Entities must be accompanied by a preliminary study. (2) The preliminary study referred to in paragraph (1) will include at least: a. the plan for PPP form b. the plan for project financing scheme and funding sources; and c. the plan for the cooperation proposal, to cover schedule, processes, and evaluation method. Article 23 In the identification of a PPP, the Minister/Head of Institution/Head of Region shall conduct public consultation. 16

29 PRESIDENT REPUBLIC OF INDONESIA Article Based on the result of the preliminary study referred to in Article 22 and the public consultation referred to in Article 23, the Minister/Head of Institution/Head of Region will establish a proposed planning list of PPPs. 2. The proposed planning list of PPPs referred to in paragraph (1) will be submitted by the Ministers/Heads of Institutions/Heads of Regions to the minister in charge of government affairs in the field of national development planning. Article The preparation of the PPP Book shall be based on the proposed lists submitted by the Ministers/Heads of Institutions/Heads of Regions. 2. The determination of the PPP Book will be based on the level of readiness, by the minister responsible for government affairs in the field of national development planning. 3. The PPP Book referred to in paragraph (2) will be published and disseminated to the public. Part Three PPP Budgeting Article 26 The Minister/Head of Institution/Head of Region/State Owned Enterprise/Regional Owned Enterprise will budget funds for planning, preparation, transaction, and management of PPPs in accordance with the legislation. 17 Chapter XI...

30 PRESIDENT REPUBLIC OF INDONESIA CHAPTER XI PPP PREPARATION Part One General Article 27 The Minister/Head of Institution/Head of Region will conduct PPP preparation, comprising at least: a. Pre-feasibility study; b. Government Support and Government Guarantee plan; c. Determination of a mechanism for investment return for the implementing Business Entity; and d. land acquisition for the PPP. Article PPP preparation can be done together with a Business Entity or organizations/ institutions/international organizations in agreement with the Minister/Head of Institution/Head of Region. 2. In the case there are more than one Business Entity or organizations/institutions/ international institutions in relation with in paragraph(1), the Minister/Head of Institution/Head of Region will conduct a selection. 3. Further provisions about procedures for selection in PPP preparation will be determined by the regulations of the institution responsible for government affairs in the field of procurement of goods/services of the government. 18

31 PRESIDENT REPUBLIC OF INDONESIA Article The cost of preparing a PPP with the assistance of a Business Entity or organizations/institutions/international organizations may be paid by means of periodic payment (retainer fee), lump sum, a combination of periodic and lump sum payments, and/or other forms agreed by the Minister/Head of Institution/ Head of Region with Business Entity/organizations/institutions/international organizations. 2. The cost of preparation of a PPP and procurement of a PPP Business Entity partner conducted by the Minister/Head of Institution/Head of Region with Business Entity/organizations/institutions/international organization may be charged to the Business Entity winning the bid, either in part or totally. 3. PPP preparation costs that may be charged to the Business Entity winning the bid include: a. Pre-feasibility study preparation costs; b. Transaction costs; c. The incentive of Business Entity and organization/institution/international organization who perform the PPP preparation, which is paid based on the success of the PPP transaction; and d. Other legitimate costs. Part Two Pre-feasibility Study Article The Minister/Head of Institution/Head of Region will prepare pre-feasibility study for the infrastructure that will be cooperated The...

32 PRESIDENT REPUBLIC OF INDONESIA 2. The Pre feasibility study referred to in paragraph (1), will provide conclusions to, among others, the following issues: a. PPP financing source; b. identification of the contractual, regulatory and institutional framework; c. a draft of the PPP in technical aspects; d. a proposal for Government Support and Government Guarantee required; e. risk identification and mitigation recommendations, corresponding risk allocation; and f. form of return on investment for the implementing Business Entity. Article During the preparation stage of the pre-feasibility study, the Minister/Head of Institution/Head of Region will prepare the following documents: a. environmental study documents; and b. land acquisition planning documents. Part Three Preparation of the PPP Agreement Article The GCA prepares the PPP agreement. 2. The PPP agreement contains, as a minimum, determinations about: a. scope of work; b. period of time of cooperation; c. performance security; d. tariff and adjustment mechanism; 20

33 PRESIDENT REPUBLIC OF INDONESIA e. rights and obligations including risk allocation; f. standards of service performance; g. transfer of shares before the PPP operates commercially; h. sanctions in the event the parties fail to meet the terms of the agreement; i. termination of agreement; j. ownership status of the assets; k. dispute resolution mechanism arranged in stages, namely deliberation and consensus, mediation, and arbitration/court; l. mechanism to monitor performance of the implementing Business Entity in procurement implementation; m. mechanism for variations in the works and/or services; n. step-in right mechanism by the government and lenders; o. use and ownership of the infrastructure assets and/or its management to the GCA; p. return of the infrastructure assets and/or its management to the GCA; q. force majeure; r. claims and warranties of the parties that the PPP agreement is valid and binding in accordance with the laws and regulations; s. use of language in agreement, namely Indonesian Language or if required can be made in Indonesian and English (as official translation), as well as using Indonesian language in dispute settlement in Indonesian Jurisdiction ; and t. applicable law, this is, Indonesian law. 3. The amount of performance security referred to in paragraph (2) letter c will be maximum 5% (five per cent) of the invesment value of the PPP. 4. The transfer of shares of the implementing Business Entity before Infrastructure Provision operates commercially referred to in paragraph (2) letter g, can be done only after approval and in accordance with the criteria estblished by the Minister/Head of Institution/Head of Region/ State Owned Enterprise/Regional Owned Enterprise. 5. The... 21

34 PRESIDENT REPUBLIC OF INDONESIA 5. The Transfer of shares referred to in paragraph (4), must not cause delay to the commencement of operation of the PPP. Article In the event of the handover of the management of assets owned or controlled by Minister/Head of Institution/Head of Region to the implementing Business Entity for the implementation of the PPP, the PPP agreement shall stipulate: a. the purpose of the utilization of the assets and prohibition to utilize the assets for other purposes than those agreed; b. responsibility for operation and maintenance, including tax payment and other liabilities arising from the utilization of the assets; c. the rights and obligations of the party that controls the asset to control and monitor performance of the assets during their utilization; d. prohibition for the implementing Business Entity to pledge the assets as a collateral to a third party; e. procedures for the transfer and/or return of the assets; f. other matters in accordance with the legislation. 2. In the event that the PPP agreement regulates the transfer of the management of assets by the implementing Business Entity during the period of agreement, the PPP agreement shall regulate: a. condition of the assets to be transferred; b. procedures for the transfer of the assets; c. status of the assets, which must be free from any collateral or encumbrance when handed over to the Minister/Head of Institution/Head of Region; d. status of the assets, which must be free from third party s claims; and e. exemption to the Minister/Head of Institution/Head of Region from any claim arising after the transfer of assets. 22

35 PRESIDENT REPUBLIC OF INDONESIA Article 34 In relation to the use of Intellectual Property Rights, the PPP agreement shall contain a guarantee from the implementing Business Entity that: a. The Intellectual Property Rights being used are fully free from any form of violation of the law; b. The Minister/Head of Institution/Head of Region is waived from any claim or lawsuits from any third party relating to the use of Intellectual Property Rights in the Infrastructure Provision; c. In the event of a claim on Intellectual Property Rights as referred to in letter b, then: 1. the continuity of Infrastructure Provision may still be carried out; and 2. the use of Intellectual Property Rights may still continue. CHAPTER XII PPP TRANSACTION Part One Procurement of Implementing Business Entity Article 35 PPP transaction consists of the following activities: a. Procurement of the implementing Business Entity; b. signing of the PPP agreement; and c. fulfillment of financing of the Infrastructure Provision by the implementing Business Entity. 23 Article 36...

36 PRESIDENT REPUBLIC OF INDONESIA Article 36 Procurement of the implementing Business Entity for a PPP will be carried out after obtaining the determination of the location of the land required to execute theppp, except otherwise regulated by the legislation. Article 37 The Minister/Head of Institution/Head of Region will create the committee to procure the implementing Business Entity. Article The procurement of the implementing Business Entity will be conducted through Bidding or Direct Appointment. 2. Bidding or Direct Appointment as referred to in paragraph (1) will be conducted through prequalification. Article Procurement of the implementing Business Entity through Direct Appointment may be conducted if: a. the PPP meets certain conditions; or b. the prequalification of the implementing Business Entity results in one participant. 2. The certain conditions referred to in paragraph (1) letter a are: a. development of infrastructure that has been built and/or operated previously by the same implementing Business Entity; b. the work can only be carried with new technologies and there is a single service provider able to apply them; or 24

37 PRESIDENT REPUBLIC OF INDONESIA c. the implementing Business Entity controls most or all the land required to implement the PPP. Article 40 Further provisions on the procedures for procurement of the implementing Business Entity through Bidding or Direct Appointment as referred to in Article 38, shall be stipulated by the regulations of the institution responsible for government affairs in the field of procurement of government goods/services. Part Two Signing of the PPP Agreement Article 41 The PPP agreement is signed by the GCA with the implementing Business Entity. Part Three Financing Article 42 Maximum within 12 (twelve) months after the implementing Business Entity has signed the PPP agreement, the implementing Business Entity must have obtained financing for the PPP. Article The financing sourced from loans is deemed executed if: a. a loan agreement has been signed to finance the entire PPP; and 25 b. part...

38 PRESIDENT REPUBLIC OF INDONESIA b. part of the loan referred in letter a has been made available to start the construction works. 2. In the event that a PPP is divided into several stages, financing as referred to in paragraph (1) is deemeed executed if: a. a loan agreement to finance one of the stages of the PPP has been signed; and b. part of the loan referred in letter a, has been made available to start the construction works. 3. The time period referred to in Article 42 may be extended over time by the Minister/Head of Institution/Head of Region if failure to obtain financing is not caused by negligence of the implementing Business Entity, in accordance with the criteria determined by the Minister/Head of Institution/Head of Region. 4. Any extension of time by the Minister/Head of Institution/Head of Region as referred to in paragraph (3), will be for a maximum of 6 (six) months. 5. In the event that the time period referred in paragraph (3) or an extention referred to in paragraph (4) could not be met by the implementing Business Entity, then the PPP agreement is deemed terminated and the performance security can be enforced by the Minister/Head of Institution/Head of Region. CHAPTER XIII PPP NODE Article The Minister/Head of Institution/Head of Region will appoint a working unit in the Ministry/Institution/Region as PPP Node. 2. The PPP Node referred to in paragraph (1) has the task to prepare the formulation of policies, synchronization, coordination, monitoring and evaluation of PPP development. 26

39 PRESIDENT REPUBLIC OF INDONESIA CHAPTER XIV TRANSITIONAL PROVISIONS Article With the enactment of this Presidential Regulation: a. PPP agreements signed before the enactment of this Presidential Regulation remain in force; b. Procurement processes of implementing Business Entities that are ongoing and for which a winner has not been established, the subsequent procurement process of implementing Business Entity will be performed in accordance with this Presidential Regulation; c. Procurement Processes of implementing Business Entity that have been completed with a winner established, but the PPP agreement has not yet been signed, the PPP agreement shall be made in accordance with this Presidential Regulation; d. PPP agreements that have been signed, but have not achieved financial close according to the time period stipulated in the PPP agreement, the obligation to get financial close will be carried out in accordance with this Presidential Regulation after the Minister/Head of Institution/Head of Region conducts an evaluation of the implementing Business Entity and the PPP based on the criteria determined by the Minister/Head of Institution/Head of Region; e. PPP agreements that have been signed, but for which land acquisition has not been completed, the process of land acquisition will be adjusted in accordance with this Presidential Regulation, and the Minister/Head of Institution/Head of Region may have modifications to the PPP agreement after conducting an evaluation of the implementing Business Entity and the PPP based on the criteria determined by the Minister/Head of Institution/Head of Region; and f. Transfer of shares before the PPP operates commercially that have been done 27 before...

40 PRESIDENT REPUBLIC OF INDONESIA before the enactment of this Presidential Regulation are declared valid and remain in force. 2. With the enactment of this Presidential Regulation, the implementing regulations of Presidential Regulation Number 67 Year 2015 on Public Private Partnership in Infrastructure Provision as amended several times, recently by Presidential Regulation Number 66 Year 2013 concerning the Third Amendment of Presidential Regulation Number 67 Year 2005 concerning Cooperation between Government and Business Entities in Infrastructure Provision, shall remain in force as long as are not contrary or have not been replaced by a new ones based on the provisions of this Presidential Regulation. CHAPTER XV CLOSING PROVISIONS Article Further Provisions on the procedures for implementation of the cooperation between Government and implemeting Buisness Entities in Infrastructure Provision will be governed by regulations of the ministry responsible for government affairs in the field of national development planning. 2. The Minister/Head of Institution/Head of Region may regulate procedures on the implementation of cooperation between government and implementing Business Entity in accordance with their authority. Article Further Provisions on the procedures of implementation of the cooperation between Government and implementing Buisness Entities in Infrastructure Provision will be determined by the minister responsible for government affairs in the field of national development planning, no later than 30 (thirty) days from the promulgation of this Presidential Regulation. 28

41 PRESIDENT REPUBLIC OF INDONESIA 2. Further provisions on Availability Payment will be determined by the minister responsible for government affairs in the field of finance and state s wealth and minister responsible for government affairs in the field of domestic affairs in accordance with their duties and authority, no later than 30 (thirty) days from the promulgation of this Presidential Regulation. 3. Further provisions on the procurement procedures of implementing Business Entity will be determined by the institution responsible for government affairs in the field of procurement of government goods/ services, no later than 30 (thirty) days from the promulgation of this Presidential Regulation. Article 48 By the time of enactment of this Presidential Regulation, Presidential Regulation Number 67 Year 2005 concerning the Cooperation between Government and Business Entities in Infrastructure Provision as amended several times, recently by Presidential Regulation Number 66 Year 2013 concerning Third Amendment of Presidential Regulation Number 67 Year 2005 concerning Cooperation between Government and Business Entities in Infrastructure Provision, is revoked and declared invalid. 29 Article 49...

42 PRESIDENT REPUBLIC OF INDONESIA Article 49 This Presidential Regulation comes into force from the date of promulgation. For public cognizance, it is hereby ordered that this Presidential Regulation be announced in the State Gazette of the Republic of Indonesia. Enacted in Jakarta on 20 March 2015 THE PRESIDENT OF THE REPUBLIC OF INDONESIA sgd. JOKO WIDODO Promulgated in Jakarta on 20 March 2015 MINISTER OF LAW AND HUMAN RIGHTS REPUBLIC OF INDONESIA sgd. YASONNA H. LAOLY STATE GAZETTE OF THE REPUBLIC OF INDONESIA YEAR 2015 NUMBER 62 30

43 PRESIDENT REPUBLIC OF INDONESIA Issued as true copy CABINET SECRETARIAT OF THE REPUBLIC OF INDONEISA Deputy of Economic sgd. Ratih Nurdiati 31

44 Disclaimer: This English translation is only for reference purpose. Where there are any discrepancies between original Bahasa Indonesia version and English translation version, the original Bahasa Indonesia version always prevail. 32

45 COPY OF REGULATION OF THE MINISTER OF NATIONAL DEVELOPMENT PLANNING/ REPUBLIC OF INDONESIA NUMBER 4 OF 2015 REGARDING IMPLEMENTATION PROCEDURES FOR THE COOPERATION BETWEEN THE GOVERNMENT AND BUSINESS ENTITIES IN THE PROVISION OF INFRASTRUCTURE WITH THE BLESSING OF GOD ALMIGHTY, THE MINISTER OF NATIONAL DEVELOPMENT PLANNING/, Considering : a. Whereas in order to encourage the participation of private entities and the government in the provision and administration of infrastructures and facilities that provide social and economic benefits for the public, the Presidential Regulation Number 38 of 2015 regarding Cooperation Between Government and Business Entitites In Infrastructure Provision has been enacted; 33 b. Whereas...

46 b. Whereas in order to implement the Article 46 paragraph (1) of Presidential Regulation Number 38 of 2015 regarding Cooperation Between Government and Business Entitites In Infrastructure Provision, it is necessary to establish a Regulation of The Minister of National Development Planning/Head of National Development Planning Agency regarding Implementation Procedures for the Cooperation Between The Government And Business Entities In Provision of Infrastructure; Bearing in Mind : 1. Presidential Regulation Number 82 of 2007 regarding the National Development Planning Agency; 2. Presidential Regulation Number 47 of 2015 regarding the National Middle Term Development Plan of ; 3. Presidential Regulation Number 7 of 2015 regarding the Organization of State Ministries; 4. Presidential Regulation Number 38 of 2015 regarding the Cooperation Between Government and Business Entities In Infrastructure Provision; and 5. Regulation of the Minister of National Development Planning/Head of National Development Planning Agency Number PER. 005/M.PPN/10/2007 regarding the Organization and Work Procedures of the Ministry of National Development Planning/National Development Planning Agency as amended several times, the latest by Regulation of the Minister of National Development Planning/Head of National Development Planning Agency Number 3 of

47 HAS DECIDED: ENACTING : REGULATION OF THE MINISTER OF NATIONAL DEVELOPMENT PLANNING/HEAD OF NATIONAL DEVELOPMENT PLANNING AGENCY REGARDING IMPLEMENTATION PROCEDURES FOR THE COOPERATION BETWEEN THE GOVERNMENT AND BUSINESS ENTITIES IN THE PROVISION OF INFRASTRUCTURE. CHAPTER I GENERAL PROVISION Article 1 In this Ministerial Regulation what is meant by: 1. Cooperation Between The Government and Business Entities hereinafter referred to as PPP is the cooperation between government and Business Entity in infrastructure provision for the public interest in accordance with the specification previously determined by the Minister/Head of Institution/Head of Region/State Owned Enterprise/Regional Owned Enterprise, which partially or fully uses Business Entity s resources, with particular regard to the allocation of risk between the parties. 2. Implementation Procedures for PPP hereinafter referred to as General Guidelines are the guidelines on the procedures of cooperation which shall be used as a reference by the government contracting agency in the PPP implementation based on the PPP Agreement. 3. Infrastructure Provision is the activity that involves construction works aimed at building or improving the infrastructure capacity and/or the infrastructure management and/or infrastructure maintenance activities aimed at improving the usefulness of infrastructure. 4. Infrastructure... 35

48 4. Infrastructure is the technical, physical, hardware, and software system facilities required to provide services to society and to support structural networks that enable the improvement of economic and social development. 5. The Government Contracting Agency hereinafter referred to as GCA is the Minister/Head of Institution/Head of Region, or State Owned Enterprise/Regional Owned Enterprise as provider or administrator of the infrastructure based on the laws and regulations. 6. Minister/Head of Institution is the head of ministry/head of institution or delegated party to act in representation of the ministry/institution based on the laws and regulations, who has the scope, duty and responsibility in the infrastructure sector regulated in this Ministerial Regulation. 7. The Head of the Region is the governor of the province, or regent/mayor of the regency/city or delegated party to represent the relevant head of region based on the laws and regulations. 8. Business Entity is a State Owned Enterprise, Regional Owned Enterprise, private entity in the form of Limited Liability Company, foreign entity, or cooperative (koperasi). 9. Special Purpose Company hereinafter referred to as the SPC is a Limited Liabilities Company established by the winning bidder or by direct appointment. 10. Preparation Agency is a Business Entity, national and international institution/ agency/ organization, which provides assistance to and/or financing to the GCA in the preparation or planning stage until the transaction stage. 11. Procurement of the SPC is a procurement of Business Entities in order to deliver the the PPP through tender mechanism or direct appointment. 12. Central Government hereinafter referred to as Government is the President of the Republic of Indonesia holding the power of administration of the State of the Republic of Indonesia as intended in the Constitution of the Republic of Indonesia of Regional Government is the Head of Region as the element of regional government 36

49 agency that leads the implementation of goverment affairs under the authority of autonomous regions. 14. Government Support means fiscal and/or other form of support provided by the Minister/Head of Institution/Head of Region and/or minister responsible for administering financial and state asset affairs in accordance with their authority based on the laws and regulations, in order to improve the financial feasibility and effectiveness of a PPP. 15. Government Guarantee means financial compensation provided by the minister responsible for administering financial and state asset affairs to the Project Company through a risk allocation scheme for the PPP Project. 16. Availability Payment means a periodic payment by the Minister/Head of Institution/Head of Region to the Project Company for the availability of the infrastructure service in accordance with the quality and/or other criteria specified in the PPP agreement. 17. Public Consultation is the interaction process between the Ministry/Head of Institution/Head of Region/Director of State Owned Enterprise/Director of Regional Owned Enterprise and the society, including stakeholders, in order to enhance the transparency, efficiency, accountability and effectiveness of a PPP. 18. Market Sounding is the interaction process to obtain input and interest from the prospective investors, banking and insurance agencies towards the PPP project. 19. Preliminary Study is the initial study conducted by the Ministry/Head of Institution/Head of Region/Director of State Owned Enterprise/Director of Regional Owned Enterprise to provide the description of the requirements for the Infrastructure provision and also its benefits if it is delivered under the cooperation with the SPC through PPP mechanism. 20. Pre-feasibility Study is a study established for the purpose of evaluating the PPP feasibility by considering at least the legal, technical, economic, financial, risk management, environment and social aspects Feasibility...

50 21. Feasibility Study is a study carried out by the candidate PPP Initiator under the Business Entities initiative mechanism to complete the existing Pre-feasibility Study. 22. Success Fee is the cost paid by the GCA that can be charged to the SPC to compensate the Preparation Agency who was involved in the PPP implementation until the achievement of financial close. 23. Minister of National Development Planning/Head of National Development Planning Agency hereinafter referred to as the Minister of Planning, is the minister aministering the government affairs in the field of national development planning. 24. Minister of Finance is the minister administering the government affairs in the field of finance and state assets. 25. Infrastructure Guarantee Business Entity hereinafter referred to as BUPI is a business entity founded by the Government and assigned with the special task to provide infrastructure guarantee in accordance to the existing laws and regulations. 26. PPP Book is the document containing the PPP plans proposed by the Ministry/ Head of Institution/Head of Region and assessed by the Minister of Planning to be determined as Ready to Offer PPP plan and Under Preparation PPP plan. Article 2 The General Guidelines are intended to: a. Provide guidelines for the Minister/Head of Institutional/Head of Region and other stakeholders regarding the procedures of PPP implementation in order to encourage the participation of Business Entities in the Provision of Infrastructure; and b. Provide guidelines for the Minister/Head of Institution/Head of Region to regulate the procedures of PPP implementation that are applicable in their respective authorities. 38

51 CHAPTER II TYPES OF INFRASTRUCTURE Article 3 Infrastructure that can be cooperated under this General Guidance includes: a. transportation infrastructure, among others: 1. provision and/or management of airport facilities and/or services, including supporting facilities such as passengers and cargo terminal; 2. provision and/or management of port facilities and/or services; 3. railway facilities and/or infrastructure; 4. urban mass transportation and road facilities and/or infrastructure; and/or 5. facilities and/or infrastructure for crossing at sea, river, and/or lake. b. road infrastructure, among others: 1. main roads, collector roads and local roads; 2. toll roads; and/or 3. toll bridges. c. water resources and irrigation infrastructure, among others: 1. bulk water carrier pipelines; and/or 2. irrigation networks and water storage infrastructure including its supporting structures, among others reservoir, dam, and weir. d. water supply infrastructure, among others: 1. raw water unit; 2. production unit; and/or 3. distribution unit. e. Infrastructure for centralized water waste management systems, among others: 1. service unit; collection...

52 2. collection unit; 3. processing unit; 4. final disposal unit; and/or 5. water discharge pipeline, and sanitation. f. Infrastructure for local water waste management system, among others: 1. local processing unit; 2. transport unit; 3. sludge treatment unit; 4. final disposal unit; and/or 5. water discharge pipeline, and sanitation. g. Infrastructure for waste management system, among others: 1. transportation; 2. processing; and/or 3. waste final processing. h. telecommunication and informatics infrastructure, among others: 1. telecommunication network; 2. e-government infrastructure; and/or 3. passive infrastructure such as transmission media cable ducts. i. Energy and electricity infrastructure, including renewable energy, among others: 1. electricity infrastructure, among others: a) power plant; b) power transmission; c) main substation; and/or d) power distribution. 2. oil and gas infrastructure, including bio-energy, among others: a) processing; 40

53 b) storage; c) transportation; and/or d) distribution. j. energy conservation infrastructure, among others: 1. main road lighting; and/or 2. energy efficiency. k. urban facilities infrastructure, among others: 1. utility pipeline (tunnel); and/or 2. public market. l. zone (kawasan) infrastructure, among others: 1. science development region, technology and innovation including science and techno park development; and/or 2. industrial zone. m. tourism infrastructure, among others tourism information center (TIC). n. Education facilities, research and development infrastructure, among others: 1. learning facility; 2. laboratory; 3. training center; 4. research center/study center; 5. research and development infrastructures; 6. business incubator; 7. learning gallery; 8. student practice room; 9. library; and/or 10. learning and training supporting facility. o. sport, art and culture facility infrastructure, among others: sport...

54 1. sport stadium/building; and/or 2. art and culture building. p. health infrastructure, among others: 1. hospital, such as hospital building, hospital infrastructure, and medical equipment; 2. basic health service facility, such as building, infrastructure, and medical equipment whether for health center or clinic; and/or 3. health laboratory, such as health laboratory building, health laboratory infrastructure and laboratory equipment. q. penitentiary infrastructure, among others: 1. penitentiary institution; 2. community hall; 3. detention house; 4. consfiscated goods storage and state confiscated goods; 5. temporary child placement institution; 6. child special development institution; and/or 7. penitentiary hospital. r. Public housing infrastructure, among others: 1. social housing for low level; and/or 2. simple flat lease. Article 4 (1) The Minister/Head of Institution/Head of Region may conduct PPP other than the existing type of Infrastructure referred to in Article 3. (2) The Minister/Head of Institution/Head of Region shall submit a proposal for other types of PPP Infrastructure to the Minister of Planning. (3) PPP for other types of Infrastructure as referred to in paragraph (1) may only be conducted upon the issuance of a decision from the Minister of Planning. 42

55 CHAPTER III PPP GOVERNMENT CONTRACTING AGENCY Section One GCA Article 5 (1) The GCA is a Minister/Head of Institution/Head of Region in relation with the PPP implementation. (2) The Minister/Head of Institution/Head of Region as GCA may delegate its rights to a party who is eligible to represent the minister/institution/regional government with the scope, duties and liabilities corresponding to the infrastructure sector in accordance with the laws and regulations. Article 6 The Minister/ Head of Institution/ Head of Region acts as GCA based on the result of the Preliminary Study on the PPP planning stage. Article 7 The Director of a State Owned Enterprise/Regional Owned Enterprise can act as GCA as long as it is regulated by the sectoral laws and regulations. Section Two GCA in Combined PPPs Article 8 (1) A PPP can combine 2 (two) or more types of infrastructure. 43 (2) In...

56 (2) In the event that the combination of 2 (two) or more types of infrastructure as referred to in paragraph (1) involves more than 1 (one) GCA, the Ministers/heads of Institutions/ Heads of Regions of each sector of the infrastructure shall act together as GCA. (3) The Ministers/ Heads of Institutions/ Heads of Regions that have the authority referred to in paragraph (2) shall sign a the memorandum of understanding. (4) The Memorandum of understanding referred to in paragraph (3) contains at least: a. The agreement about which party becomes the GCA coordinator; b. The agreement about the share of dutis and responsibilities for each GCA, including the rights and obligation of each GCA under the PPP Agreement; c. The agreement about budget for planning stage and transaction stage, including PPP management; d. Validity period for the memorandum of understanding; and e. PPP implementation period. (5) The coordinating GCA acting as the party that signs the PPP agreement with the implementing SPV will represent the GCAs as stipulated under the memorandum of understanding. CHAPTER IV PPP HYBRID FINANCING BY GOVERNMENT Article 9 (1) The GCA can partially finance the infrastructure provision. (2) Partial financing of the Infrastructure Provision as referred to in paragraph (1) may be conducted by the GCA together with other Ministers/Institutions/Regions. (3) The financing mechanism referred to in paragraphs (1) and (2) shall be implemented in accordance with the provisions of laws and regulations. 44

57 CHAPTER V PPP IMPLEMENTATION STAGE Article 10 (1) A PPP is implemented in stages, as follows: a. PPP planning; b. PPP preparation; and c. PPP transaction. (2) The Minister/ Head of Institution/ Head of Region will conduct the PPP planning referred to in paragraph (1) letter a. (3) In implementing the PPP planning referred to in paragraph (2), the Minister/Head of Institution/ Head of Region shall conduct Public Consultation. (4) In performing its function as GCA, the Minister/Head of Institution/Head of Region/SOE Director/ROE Director will conduct the PPP preparation and the PPP transaction. (5) In implementing the PPP preparation referred to in paragraph (1) letter b, the GCA shall conduct Public Consultation and may conduct Market Sounding. (6) In implementing the PPP transaction referred to in paragraph (1) letter c, the GCA will conduct Market Sounding. (7) During the PPP implementation stages referred to in paragraph (1), the GCA may conduct supporting activities in parallel that are part of the PPP implementation stages. (8) The supporting activities referred to in paragraph (7) include: a. planning and implementation of land acquisition; b. environmental study; and c. the application for Government Support and/or Government Guarantee. 45 (9) The...

58 (9) The GCA will conduct land acquisition and support the process of licence issuance to administer the PPP in accordance with its competences. CHAPTER VI PPP PLANNING STAGE Article 11 The PPP planning stage consists of the following actitivities: a. preparation of the PPP budget plan; b. identification and determination of PPP; c. budgeting for the PPP planning stage; d. decision to continue/dismiss the PPP plan; e. preparation of the PPP Book; and f. Categorization of PPPs. Article 12 (1) The Minister/Head of Institution/Head of Region shall prepare the budget plan for funding the implementation of PPP in accordance with laws and regulations. (2) The Minister/Head of Institution/Head of Region shall prepare the budget plan referred to in paragraph (1), covering each stage of PPP implementation. (3) The budget plan for implementation of the PPP referred to in paragraph (2) may be sourced from: a. State Budget (APBN) or Regional Budget (APBD); b. Loan/grant; and/or c. Any other sources in accordance with the laws and regulations. 46

59 Article 13 The Minister/Head of Institution/Head of Region/Directors of State Owned Enterprise/ Directors of Regional Owned Enterprise shall budget the funds for the PPP planning stage in accordance with laws and regulations. Article 14 (1) The Minister/Head of Institution/Head of Region will identify the Infrastructure Provisions to be implemented through PPP scheme in accordance with the laws and regulations. (2) As for the identification, the Minister/Head of Institution/Head of Region shall prepare the Preliminary Study and conduct Public Consultation. (3) Based on the result of the Preliminary Study and Public Consultation referred to in paragraph (2), the Minister/Head of Institution/Head of Region shall decide to continue or dismiss the plan for Infrastructure Provisions through PPP mechanism. Article 15 (1) In the event that the results of identification indicate that there is a combination of 2 (two) or more types of infrastructure that involved more than 1 (one) GCA, then the Ministers/Heads of Institutions/Heads of Regions who hold the the authority shall sign a memorandum of understanding. (2) Based on memorandum of understanding referred to in paragraph (1), the GCA coordinator will submit a proposal to combine the 2 (two) or more types of Infrastructure to the Minister of Planning. Article 16 Public Consultation at the PPP planning stage is intended to gain considerations about the benefits and PPP impacts on the public interest. 47 Article 17...

60 Article 17 (1) The Minister of Planning compiles the PPP Book based on: a. the proposals by the Ministers/Heads of Institutions/Heads of Regions/ directors of State Owned Enterprises/directors of Regional Owned Enterprises that indicate the requirement for Government Support and/or Government Guarantee; and b. the result of identification by the Minister of planning based on the national development priorities. (2) The Minister/Head of Institution/Head of Region/director of State Owned Enterprise/director of Regional Owned Enterprise will submit the proposal referred to in paragraph (1) letter a to the Minister of Planning and complete the proposal with supporting documents as described in the appendix of this Ministerial Regulation. (3) The Minister of Planning will perform the screening and assessment of the proposals submitted by the Ministers/Heads of Institutions/Heads of Regions/ directors of State Owned Enterprises/directors of Regional Owned Enterprises referred to in paragraph (1) letter a based on the supporting document referred to in paragraph (2). Article 18 (1) Based on the compilation result referred to in article 17, the Minister of Planning will determine the PPP Book, which consists of: a. Ready to Offer PPPs; and b. Under Preparation PPPs.. (2) The determination of the PPP Book referred to in paragraph (1) is carried out by considering the readiness level of the PPP and the benefits for the public in accordance with the national development plan. (3) The PPP Book referred to in paragraph (1) will take into consideration the 48

61 Government Work Plan and any other planning documents in accordance with the laws and regulations. Article 19 (1) The PPP Book referred to in article 18 shall be updated periodically to be announced and disseminated to the public. (2) The Minister/Head of Institution/Head of Region/director of State Owned Enterprise/director of Regional Owned Enterprise shall submit information about the progress of the PPP periodically at least once a year to the Minister of Planning. (3) The Minister of Planning will carry out an evaluation of the PPP that do not show progress in 2 (two) years since the determination of the PPP Book. CHAPTER VII PPP PREPARATION STAGE Article 20 The Minister/Head of Institution/Head of Region/director of State Owned Enterprise/ director of Regional Owned Enterprise will act as GCA in the PPP preparation stage. Article 21 (1) The GCA shall arrange the budget plan to carry out PPP preparation stage in accordance with the laws and regulations. (2) The PPP Preparation stage contains activities for: a. preparation of the Pre-feasibility Study including the study concerning the SPC s return on investment; b. submission of the Government Support and/or Government Guarantee; and; c. submission to determine the PPP location. (3) The... 49

62 (3) The PPP preparation referred to in paragraph (1) will produce, among others: a. Pre-feasibility study; b. Government Support and/or Government Guarantee plan; c. establishment of the procedures for the return of the SPC s investment; and d. land acquisition for the PPP. Article 22 (1) The GCA may receive assistance from a Preparation Agency in order to perform the PPP preparation. (2) The procurement procedure for the Preparation Agency referred to in paragraph (1) shall be further stipulated by the regulation of the head of the institution that administers government affairs in the policy are of the procurement of government goods/services. Article 23 (1) The PPP preparation study comprises the Pre-feasibility Study activities, which consist of: a. Preparation of the initial Pre-feasibility Study, consisting of: 1. legal and institutional study; 2. technical study; 3. economic and commercial study; 4. environmental and social study; 5. study of cooperation form in infrastructure provision; 6. risk management study; 7. study of Government Support and/or Government Guarantee needs; and 8. study of follow-up issues. b. Preparation of the final Pre-feasibility study, which consist of the data 50

63 adjustments based on the current conditions and updates of the feasibility and readiness of the PPP referred to in paragraph (1) letter a. c. The final Pre-feasibility Study referred to in paragraph (1) letter b also comprises the PPP readiness study, which includes: 1. fulfillment of all requirements of the Pre-feasibility Study including follow-up issues; 2. approval of the PPP by stakeholders; and 3. certainty on whether Government Support and/or Government Guarantee is required or not. (2) During the preparation of the PPP study referred to in paragraph (1), the Ministry/ Institution/Region may determine the content and the depth of the Pre-feasibility Study in accordance with the requirements in their respective sectors. Article 24 (1) During the PPP preparation stage, the GCA will prepare the environmental study documentation. (2) The environmental study documentation referred to in paragraph (1) shall be prepared in accordance to the laws and regulations. Article 25 (1) The GCA shall identify the land requirement for the PPP based on the final Prefeasibility Study. (2) In the event that the identification results indicate the requirement for land acquisition, the GCA shall carry out planning and preparation of the land acquisition documentation to obtain the location approval. (3) In the event that the identification referred to in paragraph (2) includes State or Regional Property, the GCA shall apply for the utilization of State/Regional Property for the PPP implementation based on the laws and regulations. 51 Article 25...

64 Article 26 The GCA will perform Public Consultation during the PPP preparation stage which with the purpose of: a. reviewing the compliance of the social and environmental standards in accordance with the provisions of laws and regulations in the environmental sector; b. obtain inputs regarding public needs related to the PPP; and c. ensure the PPP readiness. Article 27 (1) The GCA may conduct Market Sounding during the PPP preparation stage. (2) The Market Sounding referred to in paragraph (1) is intended to obtain inputs and response from the PPP stakeholders. (3) The stakeholders referred to in paragraph (2) may be from Business Entities/ agencies/institutions/national or international organizations. Article 28 (1) The Minister/Head of Institution/Head of Region and/or Minister of Finance can provide Government Support for the PPP. (2) The Government Support referred to in paragraph (1) can be provided jointly between Ministers/Heads of Institutions/Heads of Regions. (3) The Government Support as referred to in paragraph (2) is in the form of: a. PPP viability support; b. tax incentive; and/or c. other forms in accordance with the laws and regulations. (4) The Ministry of Finance may approve the provisions of Government Support in the form of viability support and/or tax Incentive, in accordance with the prevailing laws and regulations based on the GCA proposal. 52

65 (5) The Government Support referred to in paragraph (1) must be included in the public tender documents. Article 29 (1) A PPP can obtain Government Guarantee. (2) The GCA will submit the Government Guarantee Proposal to the Ministry of Finance through IIGF before completion of the final Pre-feasibility Study for the purpose of guaranteeing the Provision of Infrastructure. (3) Government Guarentee referred to in paragraph (1) must be included in the public tender documents. CHAPTER VIII PPP TRANSACTION STAGE Article 30 Minister/Head of Institution/Head of Region/director of State Owned Enterprise/ director Regional Own Enterprise acting as GCA on PPP transaction stage. Article 31 The PPP Transaction stage comprises the following activities: a. Market Sounding; b. PPP location determination; c. SPC procurement which includes preparation and implementation of SPC procurement; d. signing of PPP agreement; and e. financial close. 53 Article 32...

66 Article 32 (1) The GCA implements the PPP transaction after the fulfillment of the terms and conditions for utilizing the State Property and/or Regional Property for PPP implementation in accordance with the provisions of the laws and regulations. (2) The GCA may be assisted by a Business Entities for the Preparation to perform PPP transaction. (3) The procedures for SPC procurement referred to in paragraph (2) will be further stipulated by the regulations of the head of the institution responsible for government affairs in the policy sector for government procurement of goods/ services. Article 33 (1) The GCA shall perform Market Sounding during the PPP transaction stage. (2) Market Sounding as referred to in paragraph (1) is intended to obtain input, response, and to know the interest of stakeholders in the PPP. (3) Stakeholders referred to in paragraph (2) may be Business Entity s/agencies/ institution/national or international organizations. Article 34 The GCA will perform the procurement of the SPC after obtaining the location determination. Article 35 (1) In order to implement the procurement of the SPC, the GCA shall form a procurement committee. (2) Further provisions regarding the SPC as referred to in Article 31 letter c, will be 54

67 further stipulated by the regulations of the head of the institution responsible for government affairs in the policy sector for government procurement of goods/ services. Article 36 The signing of the PPP agreement is conducted by the GCA and the SPC. Article 37 (1) The SPC is required to achieve financial close at the latest 12 (twelve) month after the PPP agreement has been signed. (2) The period referred to in paragraph (1) may be extended by the GCA if the failure to achieve financial close is not caused by SPC negligence, based on the criteria determined by the GCA and agreed in the PPP agreement. (3) Any extension as referred to in paragraph (2) will be for a maximum period of 6 (six) months. (4) In the event that the extension period referred to in paragraph (3) cannot be met by the SPC, then the PPP agreement will be terminated terminated and the GCA shall have the right to enforce the performance security. Article 38 Financial Close derived from a loan is deemed to have been implemented if: a. The loan agreement has been signed to finance the entire PPP; and b. A part of the loan can be disbursed to start the construction works. 55 Article 39...

68 Article 39 In the event that the PPP is divided into several stages, the fulfillment of the financing is deemed to have been implemented if: a. The loan agreement has been signed to finance one of the PPP stages; and b. A part of the loan for financing one of the PPP stages can be disbursed to start construction works. CHAPTER IX PPP ON THE INITIATIVE OF BUSINESS ENTITIES (1) Business Entities may initiate PPPs. Article 40 (2) The initiative referred to in paragraph (1) may be carried out for the types of Infrastructure regulated in this Ministerial Regulation, unless otherwise regulated by the laws and regulations. (3) The initiative referred to in paragraph 1 shall be submitted to the Minister/Head of Institution/Head of Region accompanied by a Feasibility Study. (4) In the event that a PPP is a cooperation initiated by Business Entities, the initiator shall prepare the environmental study document. (5) A PPP on the initiative of Business Entities shall meet the following requirements: a. being technically integrated with the master plan of the related sector; b. being economically and financially feasible; and c. the Business Entities that submits the initative shall have the financial capability to finance the implementation of infrastructure provision. (6) The procedures for PPP implementation on the initiative of Business Entities are further regulated under the appendix of this Ministerial Regulation. 56

69 CHAPTER X PPP NODE Article 41 (1) The Minister/Head of Institution/Head of Region implementing a PPP will form a PPP node. (2) The PPP node referred to in paragraph (1) can be embeded in an existing working unit at the Ministry/Institution/Region or a new working unit formed by the Ministry/Institution/Region. (3) The PPP node is formed with the purpose of formulation of policies, and/or synchronization and/or supervision, and/or evaluation of the PPP activity. (4) The PPP node is assisted by: a. A PPP team in the implementation of activities for PPP planning stage and transaction stage; and b. A procurement commitee in performing the activities for the procurement of the SPC. (5) The roles and responsibilities of the PPP Team and the procurement committee referred to in article (4) are further regulated under the attachement of this Ministerial Regulation. CHAPTER XI TRANSITIONAL PROVISIONS Article 42 By the promulgation of this Minister Regulation: a. PPPs that have fulfilled the activities of PPP planning stage under the Ministerial Regulation... 57

70 Regulation before this Ministerial Regulation was promulgated, the activities for subsequent stages must be adjusted and follow the provisions as regulated under this Ministerial Regulation. b. PPPs that have fulfilled the preparation of initial Pre-feasibility Study activities and PPP readiness study based on the Ministerial Regulation before this Minister Regulation was promulgated, the final Pre-feasibility Study and subsequent activities must be adjusted and follow the provisions regulated under this Minister Regulation. CHAPTER XII OTHER PROVISIONS Article 43 Further provisions regarding PPP implementation in Infrastucture provision are regulated under the appendix hereof, which forms one unit inseparable from this Ministerial Regulation. CHAPTER XIII CLOSING PROVISION Article 44 By the promulgation of this Ministerial Regulation: a. The regulation of the State Minister of National Development Planning/Head of National Development Planning Agency Number 3 of 2012 regarding General Guidelines for Implementation of Cooperation between the Government and the Business Entity in the Provision of Infrastructure; and b. The regulation of the State Minister of National Development Planning/Head of 58

71 National Development Planning Agency Number 6 of 2012 regarding Procedures for Preparing Public Private Partnership Book, are revoked and declared null and void. Article 45 This Ministerial Regulation shall comes into force from the date of its enactment. In order for this regulation to be known to the general public, this Ministerial Regulation shall be promulgated by its announcement in the official Gazette of the Republic of Indonesia. Enacted in Jakarta date of enactment 29 May 2015 THE STATE MINISTER OF NATIONAL DEVELOPMENT PLANNING/HEAD OF NATIONAL DEVELOPMENT PLANNING AGENCY, ANDRINOF A CHANIAGO 59 Enacted...

72 Enacted in Jakarta date of Enactment 4 June 2015 MINISTER OF JUSTICE AND HUMAN RIGHTS REPUBLIC OF INDONESIA, signed YASONNA H. LAOLY STATE GAZETTE OF THE REPUBLIC OF INDONESIA OF 2015 NUMBER 829 True copy of its original Head of Legal Bureau, Emmy Suparmiatun 60

73 COPY OF THE APPENDIX OF REGULATION OF THE MINISTER OF NATIONAL DEVELOPMENT PLANNING/ NUMBER 4 YEAR 2015 DATE 25 MAY 2015 IMPLEMENTATION PROCEDURES FOR THE COOPERATION BETWEEN THE GOVERNMENT AND BUSINESS ENTITIES IN THE PROVISION OF INFRASTRUCTURE 61

74 CHAPTER I INTRODUCTION A. Background In order to perform the tasks and functions of coordination, synchronization, formulation of policy, monitoring and evaluation, as well as implementation of work related to the national development planning, the Ministry of National Development Planning/National Development Planning Agency needs to take steps to accelerate the provision of infrastructure through cooperation between the government and business entities. Given the mandate by the Presidential Regulation Number 38 of 2015 regarding Cooperation Between Government And Business Entities In Infrastructure Provision, the Government encourages the participation of the private entities, society and Regional Governments in the services and Infrastructure implementation. The Appendix of Minister Regulation regarding Procedures for PPP implementation hereinafter referred to as General Guidelines, is intended to clarify the PPP mechanism with the expansion of the types infrastructure that can be implemented in the form of cooperation based on Presidential Regulation Number 38 of B. Objectives The objectives to determine these General Guidelines are to: 1. provide guidelines for the Minister/Head of Institutional/Head of Region to establish the procedures of PPP implementation which are applicable in their respective authority; 2. provide guidelines for the Minister/Head of Institutional/Head of Region 62

75 toimplement PPP in order to encourage Business Entities participation in the Provision of Infrastructure; 3. provide guidelines for State Owned Enterprises (BUMN), Regional Owned Enterprises (BUMD), private business entities in the form of Limited Liability Companies, foreign legal entities and a union (koperasi) for PPP implementation; and 4. provide information for other stakeholders, including the authority who issues the licenses which are required for the PPP implementation. C. Scope of General Guidelines Scope of General Guidelines consists of the following:: 1. PPP planning stage; 2. PPP preparation stage; 3. PPP transaction stage; and 4. PPP upon the Initiative by Business Entities. D. Definition In this Appendix of the Minister Regulation what is meant by: 1. The Node for Cooperation between the Government and Business Entities hereinafter referred to as the PPP Node is a working unit in the ministry/ institution on a national level or working unit on a regional level, which is newly established or is already attached to a working unit or existing unit, provided with the tasks and functions of drafting policies and/or synchronization and/or coordination on the planning stage and the preparation stage and/or supervision and evaluation of the preparation stage and transaction stage, including management of PPP implementation. 2. PPP Team is a team established by the GCA to assist in the management of 63 PPP...

76 PPP in the preparation stage and the PPP transaction stage, especially onthe determination of the Special Purpose Company so that the financial close can be obtained and fulfilled. The PPP Team coordinates with the PPP Node for such implementation. 3. Procurement Committee is a team established by the GCA, with roles and responsibilities to prepare and carry out the procurement process of the Special Purpose Company in the transaction stage. 4. Multi-Criteria Analysis, hereinafter referred to as the AMK, is a procedure of selection and project rating by using the combination of subjective and objective evaluation from several criteria. 5. Social Benefit Cost Analysis, hereinafter referred to as the ABMS, is a method to measure the value of social and economic contribution from the project on the society and the state overall. 6. Economic Internal Rate of Return, hereinafter referred to as the EIRR, is the level of economic rate of return of the project determined by comparing the socio-economic benefits and economic cost of the project. 7. Economic Net Present Value, hereinafter referred to as the ENPV, is a level of economic rate of return which is calculated by comparing the magnification quantification result of the socio-economic benefits received by the society and the government from the project to the economic cost of the project. 8. Financial Internal Rate of Return, hereinafter referred to as the FIRR, is a level of project finance rate of return which is conducted by comparing revenue to project cost and considering the amount of value of the money factor in the future. 9. Financial Net Present Value, hereinafter referred to as the FNPV, is the current value from the margin between revenue and cost during the time period of the project on the financial level of discount rate. 10. Weighted Average Cost of Capital, hereinafter referred to as the WACC, is a determination of optimal capital cost level by calculating weighted capital average by taking into account the amount of value of money factor in the 64

77 present and in the future. 11. Return On Equityhereinafter referred to as the ROE is the level of rate of return which is obtained upon equity invested in PPP. 12. Debt Service Coverage Ratio, hereinafter referred to as the DSCR, is the level of capability of the shareholder to pay all loan obligations which may be due in the following year. 13. Affiliation is a family relation by marriage and heredity up to the second degree, both horizontally and vertically, a relation between 2 (two) companies in which there is 1 (one) or more of the same member(s) of the board of directors or the board of commissioners, a relation between the company and another party, both directly and indirectly, controls or is controlled by the said company, a relation between 2 (two) companies controlled, both directly and indirectly, by the same party, or a relation between the company and the main shareholder. 14. Prefeasibility Study Documents are the documents prepared by the GCA, the preparation of which is carried out in the PPP transaction stage or by the Prospective Initiator in the approval of the PPP proposal stage upon the Business Entity s Initiative in order to fulfill one of the requirements to obtain the approval letter to carry out the Feasibility Study by the GCA. 15. Feasibility Study Documents are the documents prepared by the Prospective Initiator,the preparation of which is carried out in the approval of PPP proposal stage upon the Business Entity s Initiative to fulfill one of the requirements to obtain the determination letter to act as the initiator from the GCA. 16. Foreign Legal Entity is a business entity which is established based on the law outside the Indonesia jurisdiction. 17. Prospective Initiator is a business entity in the form of limited liability, state owned enterprise ( SOE ), regional owned enterprise ( ROE ), Foreign Legal Entity, and cooperative which submitsthe proposal of the PPP initiative to the Minister/Head of Institution/Head of Region Initiator s...

78 18. Initiator s Business Entity is a Prospective Initiator who has obtained stipulation as a PPP initiator from the GCA. 19. Environmental Impact Analysis (Analisis Mengenai Dampak Lingkungan), hereinafter referred to as AMDAL, is a study concerning the crucial impact of a business and/or activity on the environment which is needed for the decision making process regarding whether to carry out the business and/or activity. 20. Environmental Management Efforts Report and Environmental Monitoring Efforts Report, hereinafter referred to as UKL-UPL are a management and monitoring of the business and/or activity that has no significant impact to the environment needed for the decision making process regarding whether to carry out the business and/or activity. 21. Environmental Permit is a permit given to every person who carries out business and/or activity which are obliged to have AMDAL or UKL-UPL in order to protect and manage the environment as a prerequisite for obtaining business licenses and/or conducting activities. 22. Value for Money is a work measurement of PPP based on the economic, efficiency and effectiveness factors of expenditure value and also the quality of service which will fulfill the needs of society. E. Related Regulations Related regulations are the laws and regulations related to PPP implementation and basic authority for the Ministry of National Development Planning/National Development Planning Agencyto determine the General Guidelines,which among other are as follows: 1. Law Number 11 of 1974 regarding Irrigation. 2. Law Number 12 of 1995 regarding Correctional Facilities. 3. Law Number 36 of 1999 regarding Telecommunication. 4. Law Number 22 of 2001 regarding Oil and Gas. 5. Law Number 18 of 2002 regarding National Observation System, 66

79 Development, Application of Knowledge and Technology. 6. Law Number 20 of 2003 regarding National Education System. 7. Law Number 27 of 2003 regardinggeothermal. 8. Law Number 25 of 2004 regarding National Development Planning Systems. 9. Law Number 38 of 2004 regarding Roads. 10. Law Number 23 of 2007 regarding Railways. 11. Law Number 25 of 2007 regarding Investment. 12. Law Number 26 of 2007 regarding Spatial Planning. 13. Law Number 17 of 2008 regarding Shipping. 14. Law Number 18 of 2008 regarding Waste Management. 15. Law Number 1 of 2009 regarding Aviation. 16. Law Number 10 of 2009 regarding Tourism. 17. Law Number 30 of 2009 regarding Electricity. 18. Law Number 32 of 2009 Protection and Management of Environmental. 19. Law Number 39 of 2009 regarding Special Economic Zones. 20. Law Number 44 of 2009 regarding Hospitals. 21. Law Number of 2012 regarding Land Acquisition for Public Interest. 22. Law Number 12 of 2012 regarding Highest Education. 23. Government Regulation Number 52 of 2000 regarding Implementation of Telecommunication. 24. Government Regulation Number 82 of 2001 regardingwater Quality Management and Water Pollution Control. 25. Government Regulation Number 20 of2004 regardinggovernment Work Plan. 26. Government Regulation Number 15 of 2005 regardingtoll Roadas amended several times with the latest amendmentgovernment Regulation Number 43 of Government...

80 27. Government Regulation Number 40 of 2006 regarding Procedure of Preparation National Development Plan. 28. Government Regulation Number 50 of 2007 regarding Procedure of Regional Cooperation. 29. Government Regulation Number 59 of 2007 regarding Business Activities of Geothermal as amended by Government Regulation Number 64 of Government Regulation Number 1 of 2008 regarding Government Investment. 31. Government Regulation Number 26 of 2008 regarding National Spatial Layout Plan. 32. Government Regulation Number 56 of 2009 regarding Railway Implementation. 33. Government Regulation Number 61 of 2009 regarding Ports. 34. Government Regulation Number 72 of 2009 regarding Railway Traffic and Transportation. 35. Government Regulation Number 20 of 2010 regarding Waters Tranportationas amended by Government Regulations Number 22 of Government Regulation Number 27 of 2012 regarding Environmental Permits. 37. Government Regulation Number 14 of 2012 regarding Business Activities of Electricity Supply as amended by Government Regulation Number 23 of Government Regulation Number 40 of 2012 regarding Development and Preservation of Airport Environmental. 39. Government Regulation Number 81 of 2012 regarding Household Waste and Similar WasteManagement. 40. Government Regulation Number 27 of 2014 regarding State/Regional Owned Asset Management. 41. Presidential RegulationNumber 82 of 2007 regarding National Development Planning Agency. 42. Presidential Regulation Number 24 of 2010 regarding Status, Duty, and 68

81 Function of State Ministry and Organizational Structure, Duty and Function of Echelon I State Ministry as amended several times lastly by Presidential Regulation Number 80 of Presidential Regulation Number 78 of 2010 regarding Guarantee Of Infrastructure In Government Cooperation Project With Business Entity Which Is Done Through Infrastructure Guarantee Agency. 44. Presidential Regulation Number 71 of 2012 regardingland Procurement Process for Public Interest Projectas amended several times, lastly by Presidential Regulation Number 30 of Presidential Regulation Number 75 of 2014 regarding Priority Infrastructure Provision Acceleration. 46. Presidential RegulationNumber 2 of 2015 regarding National Medium Term Development Plan of Presidential Regulation Number7of 2015regardingState Ministry Organization. 48. Presidential Regulation Number 38 of 2015 regarding Cooperation Between Government And Business Entities In Infrastructure Provision. 49. Minister of Environmental Regulation Number 5 of 2008 regarding Working Procedure Apparaiser Commision of Enviromental Impact Assessment. 50. Minister of Home Affair Regulation Number 22 of 2009 regarding Technical Guidelines For Regional Cooperation Procedure. 51. Minister of Finance Number 260/PMK.011 of 2010 regarding Guideline Procedure For Guarantee Infrastructure In Government Cooperation Project With Business Entity. 52. Minister of Environtmental Regulation Number 7 of 2010 regarding Compiler Competency Certification Environmental Impact Assessment Document And Requirement Of Training Competency Institution Compiler Environmental Impact Assessment Document. 53. Minister of Environtmental Regulation Number 5 Tahun 2012 regarding Types of Business and/or Activity Requiring Environmental Impact Assessment Minister...

82 54. Minister of Environtmental Regulation Number 16 Tahun 2012 regarding Guideline For Drafting Environmental Document. 55. Minister of National Development Planning/National Development Planning Agency Regulation Number PER. 005/M.PPN/10/2007 regarding Organizational And Working System Of State Ministry of National Development Planning/National Development Planning Agencyas amended several times, lastly by Minister of National Development Planning/National Development Planning Agency Regulation Number 3 of As well as other regulations that will appear later which includethe amendment of regulations, subtitution of regulations and new regulations related to the PPP implementations. CHAPTER II PPP PLANNING STAGE A. General Provision 1. The objectives of the PPP planning stage areto: a. obtain information regarding Infrastructure Provisions which can be implemented under cooperation with Business Entities based on the National Medium Term Development Plan, Government Working Plan, Strategic Plan and Working Unit on the Ministry/Institution, and/or Regional Medium Term Development Plan and Regional Government Working Plan in accordance with laws and regulations; and to b. support the coordination plan and PPP development plan and also to provide disclosure of information to the public regarding PPP plans. 2. Implementation activity in the planning stage is as follows: a. preparation of the PPP s budget plan; b. identification and determination of the PPP including combinations of 2 (two) or more GCAs; 70

83 c. budgeting for PPP s planning stage; d. Public Consultation; e. the continuance/dismissal of the PPP s plan; f. preparation of the PPP Book; and g. c ategorization of PPP. Supporting activities may be implemented in the planning stage such as activity related to the environmental studies and activity related to land acquisition. B. Preparation of PPP s Budget Plan 1. Minister/Head of Institution/Head of Region prepares budget plan for PPP implementation in accordance with laws and regulations. 2. Preparation of budget plan as referred to in point 1 covers any PPP implementation stages, which consist of: a. PPP planning stage; b. PPP preparation stage; and c. PPP transaction stage. 3. Preparation of budget plan on any PPP implementation stages as referred to in point 2 has the purpose of ensuring the availability of the ministry/institution/ region budget for PPP implementation. C. Identification and PPP Determination 1. PPP Identification which has the potential for cooperation with Business Entities: a. Implemented by Director General/Deputy or SOE Directors for PPP initiated by Central Government. 71 b. Implemented...

84 b. Implemented by Head of Region Unit or ROE Directors for PPP initiated by Regional Government. 2. In the event that a PPP is identified as referred to in point 1, the Direcotrate General/Deputy/Head of Region Unit/SOE Directors/ROE Directors shall prepare the Preliminary Study which at least shall consist of: a. plan of PPP form; b. plan of PPP financing and the source of fund; and c. plan of PPP tenders which consists of schedule, process, and rating procedure. 3. Preliminary Study as referred to in point 2 consists of a study on: a. need analysis; b. compliance criteria; c. deciding factor criteria of Value for Money of business entity participation; d. analysis of revenue potential and project fund scheme; and e. recommendation and follow-up plan. 4. Need Analysis indicator as referred to in point 3 letter a shall consist of: a. confirmation thatthe PPP hasthe technical and economic rationale based on the analysis of any available secondary data; b. confirmation that the PPP has sustained request and measured from insufficiency of service, whether in quantity or quality, based on the analysis ofany available secondary data; and c. confirmation that the PPP has sufficient support from the relevant stakeholders, one of which is through Public Consultation. 5. Compliance criteria as referred to in point 3 letter b shall consist of: a. compliance with the prevailing laws and regulations, including determination of the Minister/Head of Institution/Head of Region/SOE Directors/ROE Directors who will act as a GCA; 72

85 b. PPP compliance with the National/Regional Mid-Term Development Plan and/or Strategic Plan of the Ministry/Institution, Regional Government Working Plan, SOE/ROE business plan; c. PPP location compliance with the Spatial Plan (if needed in accordance with the type of Infrastructure needed to be cooperated); and d. Relating between the infrastructure sector and inter-region (if needed in accordance with the type of Infrastructure needed, to be cooperated). 6. Deciding the factors of criteria for the Value for Money on business entity participation as intended in point 3 letter c, shall consists of: a. private sector having an advantage on PPP implementation including in risk management; b. ensuring the effectiveness, accountability and equitable distribution of service for the long-term; c. transfer of knowledge and technology; and d. ensuring fair competition, transparency, and efficiency in the procurement process. 7. Analysis ofpotentialrevenue and project fund scheme as referred to in point 3 letter d shall consist of: a. user capability to pay; b. fiscal capability of the central government, regional government, SOE/ ROE in conducting PPP; c. other potential revenues; and d. perspective on government support. 8. Recommendation and follow-up plan as reffered to in point 3 letter e shall consist of: a. recommendation of the form of PPP; b. recommendation on the main criteria of the business entities; and c. schedule plan of preparation and PPP transaction activity In...

86 9. In the event that the PPP is a combination of 2 (two) or more types of infrastructure, then the GCA coordinator which has been consented in the memorandum of understanding will then divide the authority and tasks according to the PPP combination. 10. Determination of PPP with potential to cooperate with the Business Entities: a. conducted by the Minister/Head of Institution/SOE Directors for PPP initiated by the Government upon the authority under the laws and regulations; and b. conducted by the Head of Region or ROE Directors for determination of PPP which is initiated by the Regional Government. D. Budgeting for Planning Stage Ministry/Institution/Region/SOE/ROE shall have the budget of the funds for planning activity, at least for the budget of the Preliminary Study preparation and implementation of Public Consultation. E. Public Consultation Public Consultation in the planning stage is conducted by the Minister/Head of Institution/Head of Region/SOE Directors/ROE Directors to discuss the explanation and description in relation with PPP planning so that at least the following responses will be obtained: 1. receiving responses and/or inputs from the stakeholders who are attending Public Consultation; and 2. evaluating the result obtained from the Public Consultation and implementation in on the PPP. F. The Continuance or Dismissal of the PPP s plan on Planning Stage 1. Minister/Head of Institution/Head of Region/SOE Directors/ROE Directors will decide the continuance or dismissal of the PPP s plan based on the identification result as referredto in Part C. 74

87 2. Minister/Head of Institution/Head of Region/SOE Directors/ROE Directors will propose PPP which is stipulated to proceed to the Minister of National Development Plan. 3. Proposal of PPP Planning as referred to in point 2 is attached with supporting documents as follows: a. supporting documents for the PPP proposal in the preparation process consist of: 1) PPP preparation documents; and 2) sheet summary from the PPP preparation documents. b. supporting documents for proposal of ready to offer PPP consist of: 1) Prefeasibility Study Document; 2) sheet summary from Prefeasibility Study Document; and 3) statement letter of principal approval of Government Support and/or Guarantee if needed. G. Establishment of PPP Book 1. The Minister of National Development Planning shall compile the PPP Book. 2. PPP Book as referred to in point 1 is established based on: a. the proposal from the Minister/Head of Institution/Head of Region/ SOE Directors/ROE Directors which that indicate the requirement for Government Support and/or Government Guarantee; and b. the result of identification by the Minister of Planning based on national development priorities. 3. The Minister of National Development Planning will conduct a screening and assesment of an Infrastructure Provision plan to be cooperated through PPP mechanism based on supporting documents as referred to in Part F point Based...

88 4. Based on selection and assesment results as referred to in point 3, the Minister of National Development Planning shall determine PPP Book which shall consist of: a. ready to offer PPP; and b. under preparation PPP. 5. Minister/Head of Institution/Head of Region/SOE Directors/ROE Directors as a GCA will report information regarding PPP progress under preparation and ready to offer PPP to the Minister of National Development Planning at least 1 (one) time every 1 (one) year. 6. Time period to enlist the PPP which is under preparation and ready to offer into the PPP Book is a maximum of 2 (two) years. If in such time period there is no progress, then such PPP project will be evaluated by the Minister of National Development Planning. H. Categorization of PPP 1. PPP is categorized based on its readiness level, which can be: a. ready to offer PPP; and b. under preparation PPP. 2. PPP planning which is proposed as a ready to offer PPP as referred to in point 1 letter a shall fulfill these criteria: a. has obtained certainty regarding PPP readiness, technical compliance, market interest, and option of PPP form; b. has completed environment impact assessment in accordance with laws and regulations; c. has compiled draft output of detailed specification; d. has compiled draft structure of tariff; e. has conducted financial model analysis, allocation and risk mitigation and also granting of Government Support and/or Government Guarantee mechanism, if needed; 76

89 f. has compiled draft of SPC procurement planning considering: 1) potential and interest of Business Entities on PPP; 2) proper planning or implementation of procurement schedule; and 3) determination and readiness of Procurement Committee. g. has compiled draft of PPP agreement; and h. has obtained approval from the GCA for PPP initiated by the Business Entity and consent from the stakeholders regarding such PPP. 3. The proposed PPP planning as a PPP in the preparation process as referred to in point 1 letter b shall fulfill these criteria: a. compliance with National/Regional Mid-Term Development Plan and Strategic Plan of infrastructure sector; b. suitability of the project location which will be cooperated with Spatial Plan; c. relating inter-sector of Infrastructure and inter-region; and d. ownership of document of Preliminary Study. I. Supporting Activity on PPP Planning Stage Supporting activity which may be conducted in the planning stages is as follows: 1. Activity in relation with the environmental impact assesment Minister/Head of Institution/Head of Region/SOE Directors/ROE Directors will conduct preliminary identification that the PPP will implement technology with which the environmental impact may be well managed and sustainable in accordance with literature reference and the relevant study. 2. Activity in relation with land acquisition For PPPs in whichthe location can be predicted, the Minister/Head of Institution/Head of Region/SOE Directors/ROE Directors will conduct identification of observation of location, land area, and estimated price in accordance with laws and regulations. 77 J. Documents...

90 J. Documents in the PPP Planning Stage 1. The documents which shall be prepared in the PPP Planning stage are: a. Reference Framework of Preparation of Procurement Agency, if needed; b. Prefeasibility Study Document; and c. Minutes of Public Consultation. 2. Reference Framework of Preparation of Procurement Agency as intended in point 1 letter a, consists of: a. background and PPP description; b. objective of works; c. scope of consultation services to carry out several feasibility studies which are need/required; d. total personel and qualifications required; e. documents which shall be prepared; f. implementation schedule; and g. estimated amount of budget. 3. Prefeasibility Study Document as referred to in point 1 letter b contains substance which is referred to in General Guidance Part C point Minutes of Public Consultation as referredto in point 1 letter c at least shall consists of: a. list of Public Consultation participants; b. minutes of PPP planning discussion; and c. conclusion and follow-up plan. 78

91 CHAPTER III PPP PREPARATION STAGE A. General Provisions 1. Minister/Head of Institution/Head of Regional/Director of State Owned Company/Director of Regional Owned Company will act as GCA in the Preparation Stage. 2. The GCA shall arrange the budgeting plans to carry out PPP Preparation Stage, as well as the: a. Study compilation of preliminary Pre-feasibility Study; b. Study compilation of Final Feasibility Study; c. Compilation of environmental study, if needed; and, d. Preparation Agency procurement, if needed. 3. PPP Preparation is aiming to study the feasibility of PPP to cooperate with Business Entities. 4. GCA forms the PPP team in the PPP Preparation stage and can be asssisted by the Preparation Agency. 5. PPP team as referred to in number 4 has the role and responsibility of: a. Conducting PPP preparation stage activity including, preliminary Pre-feasibility study and final study of Pre-feasibility Study; b. Conducting PPP transaction stage activity until the achievement of financial close, except the procurement of Special Purpose Company; c. Submitting the report to the GCA periodically through the PPP node; and d. Conducting coordination with the PPP node on its duty implementation. 6. The Scope of work of the Preparation Agency includes: a. Conducting assistance on PPP preparation and transaction; or b. Assisting the GCA in conducting the PPP transaction In...

92 7. In the event that the GCA is assisted by the Preparation Agency, the Preparation Agency cost is paid by retainer fee procedure, the lump sum payment, the combination of retainer fee and lump sum payment, and/or other customs which are agreed upon by the Minister/Head of Institution/ Head of Regional/Director of State Owned Company/Director of Regional Owned Company with Preparation Agency. 8. PPP Preparation Stage shall consist of: a. PPP Preparation Pre-feasibilty Study PPP Pre-feasibilty Study consisting of initial pre-feasibility Study and Final Pre-feasibility Study. 1) The Initial Pre-feasibility study aims to: a) Set goals and obstacles of the PPP; b) Ensure the conformity with the laws and regulations; c) Study role and responsibility of each stakeholder; d) Study techincal options and technology availibility of the goods/ services which are required; e) Identify the best option for PPP forms ; f) Study economic and social benefits from the PPP plan; g) Compile commercial plan which coveres demand, market, structure and financial study; h) Map risks and mitigation measures which are required; i) Preliminarily identify the social and environmentalimpact; j) Set out on the PPP implementation, including legal basis, and further action which is required in realtion to land acquisition and resettlement; k) Identify the needs of Government Support and/or Government Guarantee; and l) Determine the primary problems and their obstacles and the proposal to resolve the problems. 80

93 2) Final Pre-feasibility Study aims to ensure that: a) PPP concept on preliminary Pre-feasibility Study obtains approval from each stakeholder; b) PPP concept on preliminary Pre-feasibility Study has been updated and perfected based on inputs from government, public, business entities, financial institutions, and/or other relevant institutions; c) The proposed request of Goverment Support has been submitted by GCA to Minister/Head of Institution/Head of Regional and/ or Minister of Finance if the results of the preliminary study indicated the need of Government Support for PPP; d) The proposal request for Government Guarantee has been submitted by GCA to BUPI, if the results of preliminary study identified the need of Government Guarantee for PPP; e) The PPP team has been formed and functional f) The plan and schedule of the alignment preparation program including the land acquisition and resettlement program has been prepared, including the budgeting plan draft and the implemantation schedule which have been proposed on the Government Working Plan/Regional Government Working Plan; g) Budgeting plan draft and implementation schedule of environmental study (AMDAL or UKL-UPL) have been proposed on the Government Working Plan/Regional Government Working Plan; and h) Steps to resolve the legal problems have been compiled. b. Public Consultation aims to: 1) Reviewing the compliance of the social and environmental standards in accordance with the provisions of laws and regulations in the environmental sector; 2) Obtain... 81

94 2) Obtain inputs regarding public needs related to the PPP plan; and 3) Ensure PPP readiness. c. Market Sounding aims to obtain inputs and response from PPP the stakeholders. d. Supporting activity, if needed, consists of: 1) Government Support application, which is conducted by following the provisions of the laws and regulations; 2) Government Guarantee application, which is conducted by following the provisions of the laws and regulations; 3) Activity in -relation with the environmental study; and 4) Location determination application for PPP, which aims to obtain PPP location permit by following the provisions of the laws and regulations. B. Pre-feasibility Study Preparation 1. Pre-feasibility Study Preparation is conducted by GCA. 2. Pre-feasibility Study consists of preparation of initial Pre-feasibility Study and final preparation of Pre-feasibility Study. 3. Initial Pre-feasibility Study as referred to in number 2, consists of: a. Legal and institutional study; b. Technical study; c. Economic and commercial study; d. Social and environmental study; e. study of cooperation form in Infrastructure Provisions; f. Risk management study; g. Study of Government Support and/or Government Guarantee needs;and h. Study of follow up issues. 82

95 4. Legal and institutional study as referred to in number 3 letter a, consists of: a. Analysis of the laws, which are carried out with the aim to: 1) Ensure that PPP is implemented in accordance with the laws and regulations related to the aspects of: a) Business Entities establishment; b) investment; c) business competition; d) environtment; e) work safety; f) land acquisition; g) PPP finance, including financing mechanism and revenue; h) PPP permits; i) tax; and j) other related laws and regulations. 2) Determine legal risk and its mitigation strategy; 3) Study the possibility of the perfection of laws and regulations, or issuance of the new laws and regulations; 4) Determine the type of permits/approval required; and 5) Prepare the plan and schedule to fulfill the laws and regulations requirements based on the study on number 4. b. Institutional analysis is carried out by following these steps: 1) Ensure the authorization of Minister/Head of Institution/Head of Regional/Director of State Owned Company/Director of Regional Owned Company as GCA in implementing PPP including PPP determination on a multi infrastructure project; 2) Conduct stakeholders mapping by determining role and responsibilities of the relevant institutions on the PPP implementations; 83 3) Determine...

96 3) Determine role and responsibilities of the PPP team in relation to the preparation of the preliminary Pre-feasibility Study activity, and completion of the final Pre-feasibility Study and determine the reporting system of PPP term to GCA; 4) Determine and prepare the institutional regulations tools; and 5) Determine the terms of reference framework of decision-making. 5. Technical study as referred to in number 3 letter b, consists of: a. Technical analysis, that aims to: 1) Set out the required standard technical operational performance; 2) Consider the alignment alternative, project size, quality, technology and time of the implementation; 3) Determine the required output capacity and operational standard, and preparethe preliminary design that is technically viable; 4) Identify and appraise the required Regional and/or State Owned Assets that are needed and prepare the list of Regional and/or State Owned Assets that will be used for PPP implementation; 5) Identify the availability of the resources for the continuity of PPP, if required; 6) Identify the terms and the input availability at least including human resources, raw materials, services, and accsess to the alignment; 7) Determine the estimation of PPP costs and the assumption of PPP cost calculation; 8) Estimate and determine the revenue, capital cost, operational cost and maintenance cost with a variety of options; 9) Prepare financing plans in accordance with the construction schedule, operational cost estimate, maintenance cost estimate, and PPP sustainable cycle cost; and 10) Identify the minimum service standard. 84

97 b. Alignment preparation includes the track,if required, that is carried out considering: 1) the alignment suitability with the Spatial Plan (RTRW); 2) the alignment suitability with the operational and raw material needs; 3) services and raw material availibility; 4) the proposed alignment condition and suitability with PPP needs; 5) land ownership confirmation and occurance of obstacles; 6) land acquistion cost estimate in variety options; and 7) the plan and schedule of the land acquistion and resettlement implementation program. c. Preliminary design, that consists of the PPP technical basis that is adjusted with the needs and characteristics of each sector; d. Output specification, that includes: 1) minimum services standard that includes quantity, quality and availibility; 2) indicative schedule for construction works and equipment provisions; 3) compliance on environmental, social and safety issues; 4) asset transfer terms in accordance with PPP agreement; and 5) monitoring of arrangements at every stage: a) construction; b) commercial operation; and c) the termination of PPP agreement. 6. Economic and commercial study as referred to in number 3 letter c, covers the following substance: a. Demand analysis. aims to understand the conditions of services user. this Demand analysis is conducted which at least consist of: 1) real demand surveyto obtain an accurate picture of the 85 estimate...

98 estimate of needs, interest, willingness and ability of user to pay, payment performance, and expected level of service; and 2) resource determination and development level of demand with varied scenarios (demand elasticity test). b. market analysis, that aims to determine the level of interest in the industry and competition. This market analysis is conducted which at least consist of: 1) submission of PPP plan to the public in order potential investor to PPP; 2) collecting the responses and potential investor assessment of the feasibility, risk and Government Support and Government Guarantee need for PPP; 3) collecting the response and national and international financial institution assessment and information about other institutions regarding grant potential and an indication of the amount of loan that can be allocated to a PPP; 4) selection of strategy to reduce market risk and increase fair competition in the PPP procurement process; and 5) assessment of the market structure to determine the level of competition in a related sector. c. Structure analysis of PPP revenue that aims to identify the optimal sources of income for PPP by considering the result of market demand analysis, financing ability of the relevant Ministry/Institution/Regional, and the PPP feasibility level during PPP. This revenue structure of PPP analysis at least contains: 1) Balance calculation between cost and PPP revenue during the cooperation period; 86

99 2) Identification of payment/initial rates, adjustment mechanism, basis benchmark in making an adjustment to the parameter used during PPP agreement period; 3) Impact identification to revenue in case the: a) PPP cost runs over; b) PPP construction is completed earlier; and c) PPP refund exceeds the determined maximum level, so it is possible to implement the clawback mechanism; d) Occurrence of providing incentive or withholding payment in relation to obligations fulfillments. d. Social Benefit Cost Analysis (SBCA), that aims to determine the social and economic benefit and the PPP sustainability relating to the effectiveness, timeliness, use of funds, and public resources during PPP period In addition, the SBCA is intended to give the maximum limit of the Government Support amount, so that the net benefit of PPP is greater than the Government Support. This SBCA is conducted by at least containing: 1) the comparison of cost and benefit to the presence or absence of the PPP; 2) the cost as referred to in number 1 is based on constant price, which includes: a) PPP preparation cost; b) capital cost; c) operational cost; d) maintenance cost; and e) other costs as a result of the project. 3) assessment/measurement of project benefit for the public and the country by taking into account at least: 87 a) savings...

100 a) savings by the public; and b) savings obtained by the State Budget/Revenue Budget and Regional Budget. 4) Economic cost determination that is conducted by amending the financial price into the economic price (shadow price) for every input and output based on the appropriate economic conversion factor; 5) economic benefit determination conducted by converting such benefit into quantitative; 6) economic feasibility parameter assessment conducted through EIRR and ENPV by using the discount rate of economic and social; and 7) sensitivity analysis to study the effect of uncertainty of PPP implementation to the economic project feasibility level. e. Financial analysis, conducted by fulfilling the following conditions : 1) financial analysis aims to determine the PPP financial feasibility by using assumptions based on: a) macro-economic information (exchange rate, inflation, and interest rate) that is issued by authorized agencies such as Bank Indonesia and BPS; b) capital cost analysis that covers project cost, interest assumption and cost elevation from PPP; c) operational and maintenance cost ; d) depreciation cost and book value at the end of the concession period; e) calculation of other costs in relation to the PPP including resettlement cost, environment maintenance, permits and management overhead cost; 88

101 f) risk mitigation cost; and g) revenue calculation that is based on the results of demand analysis and revenue structure analysis. 2) Financial analysis is conducted by: a) determining equity and loan ration that will be used in the PPP, in accordance with the general ration used in Indonesia; b) determining the weighted averaged capital cost/wacc in accordance with used equity and loan ratio, level of interest rate, and equity cost; c) determiningthe Financial Internal Rate of Return/FIRR on the PPP; d) determining the debt service coverage ratio (Debt Service Coverage Ratio-DSCR) by calculating the amount of available cash to pay the obligations (primary loan and interest) that will be payable the current year; e) determining the return on equity (Return On Equity - ROE); f) determining the size of FNPV and the method of investment return (payback period); g) displaying the PPP cash flow projection; h) displaying the cash flow projection and profit loss statement of the SPC; i) displaying the PPP sensitivity on variety financial analysis options on rupiah value and/or other foreign currencies that are valued equally with the rupiah; j) determining the form and amount of Government Support; and k) determining the premium of Government Guarantee Social...

102 7. Social and environmental study as referred to in number 3 letter d includes: a. The mandatory environment study for PPP is AMDAL, that conducted by following the conditions as follows: 1) perform screening that aims to: a) determine the important impact potential which might occur from PPP; b) determine the PPP clasification in estimating the impact that would be caused to the environment in accordance with the provisions of the laws and regulations; c) determine the capacity building and training program to implement an environmental protection program, if necessary; d) estimate the incurred cost for permits related to the environmental interest; and e) prepare a plan and schedule to implement the environmental compliance program and implement recording for environmental approval. 2) screening used as a basis of consideration to compile the framework of an environmental impact statement (KA-ANDAL). 3) procedure in conducting the environmental impact study is done in accordance with the provisions of the laws and regulationsin the environmental sector. 4) GCA is responsible for compiling the AMDAL document for the PPP that consists of KA-ANDAL, ANDAL, Environmental Management Planning- Environmental Monitoring Planning as a basis of valuation and environmental permit from Minister/ Head of Regional in accordance with their authority. 90

103 b. Environmental study for PPP that shall have UKL-UPL, is conducted by complying with the following provisions: 1) fill out the summary of initial information that includes: a) initiator identity, namely GCA or Business Entities Initiator Candidates; b) business plan and/or activity; c) the environmental impact that might occur; and d) management program and environmental monitoring. 2) Initial information summary as referred to in number 1), is submitted to: a) The Regent/Mayor, for PPPs located in 1 (one) territory district/city and in the most remote ocean territory 1/3 (one third) of the ocean territory of the provincial authority; b) Governor, for PPP located in more than 1(one) territory of district/city on 1 (one) province; in the inter-district/city; and/or ocean territory in the most remote ocean territory at most 12 (twelve) miles from the shoreline towards the open sea and/or towrds the archpelagic ocean; c) Minister, for PPP located in more than 1(one) province in the territory of Republic of Indonesia that is in dispute with other country; the ocean of more than 12 (twelve) miles of ocean from the shoreline towards the open sea; and/or at the border of the Republic of Indonesia with other country. 2) After checking and stating that there is no lac data filled out, Minister/Governor/Mayor shall issue a reccomendation that should be subsequently submitted to the competent authority as a basis of permit issuance to conduct business or activity in accordance with the laws and regulations on environmental sector. 91 c. Social...

104 c. Social analysis is needed for: 1) determining the PPP social impact to the public and compiling the mitigation plan; 2) determining the institution responsible for land acquisition and resettlement; 3) determining the parties that will imposed by the project and the compensation that will be given, if needed; 4) determining the institution capacity to pay compensation and implementing the resettlement plan, if needed; and 5) determining the training program in order to implement the social protection program to increase the capacity of the imposed society. d. Land acquisition plan and resettlement, following the condition as follows: 1) preparing the land acquisition plan in advance; 2) GCA is responsible for preparing the land acquisition plan which is a requirement to obtain the location determination in accordance with the laws and regulations; 3) Environmental Permit is required to obtain a location determination letter, other than the land acquisition plan document; and 4) Resettlement plan, which is a part of the land acquisition plan, is compiled based on the laws and regulations. PPP forms study on Infrastructure Provisions as referred to in number 3 letter e, following the conditions as follows: a. Selection of PPP forms is conducted by taking into account the following factors: 1) the certainty of the infrastructure availability is right on time; 2) optimization of investment by Business Entities; 3) maximizing the efficiency expected from the infrastructure 92

105 operation by the Business Entities; 4) the ability of Business Entities to conduct transaction; 5) risk allocation; and 6) certainty of the transfer of management skill and technical from private sector to public sector. b. PPP form shall cover at least: 1) PPP scope, covering part of or the whole PPP activity process, namely to finance, design, construct, rehabilitate, operate, maintain, and other; 2) terms and PPP stage; 3) third party involvement identification, namely off-taker, raw material provider, and others; 4) utilization scheme of State Owned Assets and/or Regional Owned Assets during PPP agreement; 5) ownership status of PPP assets during the terms of PPP agreement and assets transfer af ter the termination of PPP agreement; and 6) forms of government participation in PPP Special Purpose Company, namely capital participation or other forms. 8. Risk study as referred to in number 3 letter f, conducted by fulfilling the provisions, is as follows : a. risk analysis aimed to increase the add value for the stakeholder. b. risk analysis conducted by: 1) conducting risk identification; 2) measuring the risk exposure; 3) determining risk allocation; and 4) developing risk mitigation Government...

106 9. Government Support and/or Government Guarantee needs a study as referred to in number 3 letter g, which includes: a. Government Support analysis, that aims to identify whether the Government Support is required or not to increase the PPP financial feasibility. b. government support can be given in the form of: 1) Viability Gap Fund that is further regulated by the Minister of Finance Regulation; 2) tax incentive; and/or 3) Government support in another form in accordance with the laws and regulations. c. Government Guarantee that aims to identify whether the Government Guarantee is required or not that can be given by the Minister of Finance through Indonesia Infrastructure Guarantee Fund/ Badan Usaha Penjaminan Indonesia (BUPI) in accordance with the laws and regulations. 10. The study regarding the issues that need to be followed up as referred to in number 3 letter h, among others: a. identification of the critical issues that must be followed up; b. preparation of a settlement plan for critical issues on letter a, including the completion strategy and person in charge; and c. required period to complete the PPP Preparation. 11. Final Pre-feasibility Study, consisting of an improvement of data to current condition and updating on feasibility and PPP readiness that previously had been included on preliminary Pre-feasibility Study, including the completion of issues that need to be followed up. 94

107 C. Public Consultation GCA determines the Public Consultation that can be conducted in every PPP preparation stage to perform an explanation and elaboration related to PPP and at least producing the following matters: 1. Response acceptance and/or input from the stakeholder who attends the Public Consultation; and 2. Evaluation of the result obtained from Public Consultation and its implementation in the PPP. D. Market Sounding in the Preparation Stage 1. GCA can conduct Market Sounding through one-on-one meetings and PPP promotions with potential investors, national and international financial institutions, and other parties who have an interest in the implementation of PPP; 2. Market Interest Asessment can be conducted more than once. E. Supporting Activity in the Preparation Stage Supporting activity that can be conducted in the preparation stage includes: 1. Activity to obtain Government Support and/or Government Guarantee Activity to obtain Government Support and/or Government Guarantee shall be further regulated in accordance with the laws and regulations that govern the Government Support and/or Government Guarantee. 2. The activity related to the land acquisition a. In the event that the process of the Final Pre-feasibility Study commences, GCA conducts the preparation of land acquisition plan and resettlement. b. During the process of the final Pre-feasibility Study, 95 1) GCA...

108 1) GCA conducts completion of land acquisition preparation documents and resettlement; and 2) GCA commences the process to obtain approval of budget plan and PPP schedule implementataion pursuant to the laws and regulations. 3. Activity related with environment For PPPs that are required to have AMDAL, then in the PPP preparation stage, GCA shall conduct the environment study process by following the AMDAL mechanism as follows: a. announcement regarding activity plan and conducting of the Public Consultation with the public regarding environment in relation to the PPP implementation plan. b. public consultation as referred to in letter a, aiming to pool the information regarding the impact that will be had onthe public around the location of PPP implementation plan, if PPP is implemented. c. During the Final Pre-feasibility Study commencement, GCA shall assist the environmental consultant by beginning to perform the preparation activity of AMDAL or UKL-UPL document. d. In the event that PPP is not required to conduct the AMDAL preparation document, the environmental permit application process can be conducted based on recommendations given by the authorized institution. F. Documents on Preparation Stage 1. The document that shall be prepared during the PPP Preparation stage is the Pre-feasibility Study Document. 2. Pre-feasibility Study Document as referred to in number 1 consists of Preliminary Pre-feasibility Study Document and Final Pre-feasibility Study Document. 3. Pre-feasibility Study Documents contain the result of the study that is conducted in Part B above and equipped with the executive summary. 96

109 CHAPTER IV PPP TRANSACTION STAGE A. General Provision 1. Minister/Head of Institution/Head of Region/Director of State Owned - Enterprise/Director of Regional Owned Enterprise acting as the GCA on PPP transaction stage. 2. GCA ensures the availability of the budget in the PPP transaction stage to cover at least the SPC procurement and land acquisition activity. 3. GCA is assisted by the PPP Team in conducting activities in the transaction stage up until the achievement of financial close, including in the SPC procurement, if necessary. 4. GCA forms the Bidding Committee to conduct the SPC procurement activity on the PPP transaction stage, after completing the Pre-feasibility Document. 5. The role and liability of the Bidding Committee as referred to in number 4, stipulated by the regulations of the head of the institution regulation responsible for government affairs in the policy sector for government procurement of goods/services. 6. Preparation Agency in the transaction stage is: a. Preparation Agency which continues the assignment from the planning stage up until transaction stage as referred to in Chapter III; or b. Preparation Agency appointed to conduct the assignment in the transaction stage. 7. Preparation Agency Fee as referred to in number 6, is paid in the procedure of retainer fee, lump sum, the combination of retainer fee and lump sum, and/ or another procedure agreed upon by Minister/Head of Institution/Head of Region/Director of State Own Company/Director of Regional Owned Enterprise with the Preparation Agency Preparation...

110 8. Preparation Agency can obtain the Success Fee in the event thatthefinancial closeis achieved based on an agreement with the Minister/Head of Institution/ Head of Region/Director of State Own Company/Director of Regional Owned Enterprise. 9. GCA stipulates Success Fee at a maximum of 25 % from the total fee spent by the Preparation Agency. 10. PPP Transaction Stage comprises the following activities: a. Market Sounding; b. PPP location determination; c. SPC Procurement which includes preparation and implementation of SPC procurement; d. Signing of PPP agreement; and e. Financial Close. B. Market Sounding 1. Market Sounding is intended to obtain input, response and to know the interest of stakeholders in the PPP. 2. GCA conducts Market Sounding through one-on-one meetings and PPP promotion with prospective investors, national and international financial institutions, and other potential parties for PPP implementation. 3. Market Sounding can be conducted more than once. 4. Based on the result of the Market Sounding conducted by the GCA, the Bidding Committee can make variation towards the Procurement Document. C. PPP Location Determination 1. GCA ensures the conformity of land acquisition planning and the resettlement document in relation to the PPP plan to obtain location determination. 2. GCA ensures PPP has obtained Environmental Permit. 98

111 3. GCA submits location determination application in accordance with laws and regulations. 4. Location determination for PPP conducted prior to Prequalification of SPC procurement stage. SPC procurement is conducted after location determination for land which is not yet available.however, for the implementation of existing PPPs of state/regional owned land,the Management of State/Regional Owned Asset mechanism needs to be followed in accordance with laws and regulations. D. Procurement of SPC 1. Procurement of SPC consists of preparation and implementation of SPC procurement. 2. Further provision regarding SPC Procurement as referred to in number 1 is regulated through the head of institution regulation which organizes government affairs in the policy sector for the government procurement of goods/services. E. Signing of PPP Agreement 1. The signing of PPP Agreement Implementation a. Winning bidder shall establish SPC, which will sign the PPP Agreement. b. SPC has to be legally established at the latest 6 (six) months after the issuance of the Winning Bidder Determination Letter by the GCA. c. PPP Agreement will be signed by the GCA and SPC, at the latest 40 (forty) working days after the establishment of the SPC. d. PPP Agreement regulates provisions regarding PPP Implementation management. e. PPP Agreement will take effect after all preliminary requirements which are stipulated on the PPP Agreement have been fulfilled by each party. 99 f. Preliminary...

112 f. Preliminary requirements as referred to in letter e, among others, consist of the Government Guarantee approval and consist of permits required for the SPC to implement its business field. g. Financial close is not a preliminary requirement for the PPP Agreement to take effect. h. In the event that all preliminary requirements have been fulfilled, the GCA will issue minutes that state that the PPP Agreement has taken effect. 2. PPP Agreement Implementation Management a. PPP agreement implementation management as referred to in number 1 letter will be implemented with the intention of ensuring services provision, as well as the assurance thateach GCA and SPC right and obligation has been fulfilled in accordance with the agreement on PPP Agreement. b. PPP agreement implementation management as referred to in number 1 is conducted on 4 terms, namely: 1) Preconstruction; 2) Construction; 3) Commercial Operation; and 4) PPP agreement termination period. c. In the implementation of the PPP agreement management activity, GCA ensures that the implementation of thesecurity agreement and recourse agreement does not diverge from agreed provisions. d. PPP node assists GCA in supervising and controlling the implementation of PPP in accordance with the agreed provisions listed on the PPP agreement. e. Pre-construction Period 1) The Implementation management on the preconstruction term begins from the signing of the PPP agreement up until the financial close. 100

113 2) PPP node is in charge of implementing supervision on the PPP agreement implementation and financial close. 3) In the implementing supervision duty as referred to in number 2, the PPP node can be assisted by a PPP team in the imlplementation of activities. f. Construction Period 1) Implementation management on the construction term counts from the commencement of construction up until the PPP project operates commercially. 2) PPP node implements implementation management over: a) new facility plan or explanation of services provided; b) new facility and existing facility merger; c) right to convey issues related to failure and inability of the SPC to fulfill PPP agreement; d) delay or variation of construction schedule; e) construction design variation, if requested by GCA; f) work/operation readiness; g) supervision over the conformity of technical planning with construction implementation; h) issues regarding manpower; and i) risk borne by GCA. 3) If transfer of SPC shares occurs prior to the PPP project operating commercially, the PPP Node can conduct activity which includes: a) criteria stipulation of transfer of shares by GCA which covers: i. transfer of shares should not delay the commencement of PPP operation schedule; and ii. shareholders control whereby the consortium leader shall be prohibited to transfer its shares up until the PPP is comercially operated. b) conduct

114 b) conduct qualifications towards potential new shareholders of SPC which at least fulfill the requirements which stipulated on the SPC tender prequalifiaction implementation; c) submit approval to GCA, if the potential new shareholders have fulfilled all stipulated transfer of shares criteria and fulfilled qualification requirements; and d) prepare transfer of shares approval concept which will be signed by GCA. g. Operation Stage 1) Implementation management on operation period counts since PPP operates commercially up until the termination of the PPP agreement time period. 2) PPP node conducts implementation management towards: a) PPP agreement implementation; and b) supervision of services performance standard in accordance with the PPP agreement. 3) In the event that the supervision of guarantee grants implementation on operation term, PPP Node shall conduct coordination with BUPI. h. PPP Agreement Termination Period 1) Towards the PPP agreement termination period, PPP Node shall consider the following matters: a) re-transfer of assets to GCA (if the form of PPP is allpying transfer option); b) PPP agreement has to specifically regulate conditions of the project desired by the time the PPP agreement period is terminated and the PPP is transfered to GCA; and c) each sector/sub-sector possesses different characteristics, resulting in required consideration towards the situation where the state of infrastructure 102

115 is no longer physically and economically worthy so that rehabilitation or renovation is required. 2) PPP Node conducts asset assessment which covers the following activities: a) research and assessment of all facility/system components which are included on the PPP agreement (assessment conducted towards condition or performance and the remaining time of each component in accordance with the agreed benchmark); b) calculation fee estimation required to operate routine and non-routine maintenance during the remaining time; c) assessment of the availability of spare parts for facility and system which technically may no longer be worthy; d) evaluation of human resources availability owned by GCA; and e) evaluation towards the efficiency of implementation management during cooperation. 3) In terms of the transfer of assets, PPP Node conducts the following activities: a) preparing and submiting examination towards all PPP assets for the purpose of the transfer of asset importance; b) examination and physical facility examination of all equipment for the transfer of asset importance in accordance with PPP agreement; c) administration actions required in accordance with laws and regulations so that all assets are recorded under GCA name; and d) preparation and creation of Minutes of Delivery & Acceptance signed by SPC and GCA. 3. Documents

116 3. Documents on The Implementation of PPP Management a. Documents required to be submitted by the SPC to GCA on the preconstruction term shall consist of: 1) detailed plan of PPP project implementation including detailed engineering design; 2) entire copy of agreement which has been signed by SPC with the third party covering design agreement, engineering procurement construction contract or operation and maintenance contract; 3) administration report; 4) work progress report, particularly in relation with SPC effort to achieve financial close; and 5) Environmental Permit update approval. b. Documents required for submission by SPC to GCA on the construction term shall consist of: 1) administration report; 2) work progress report (monthly report and annual report and/or special report); 3) performance report (monthly report and annual report and/or special report); and 4) annual financial report. c. Documents required for submission by SPC to GCA on the operation term shall consist of: 1) administration report; 2) performance report (monthly report and annual report and/or special report); and 3) annual financial report. d. Documents required for submimssion by SPC to GCA on the PPP termination period shall consist of: 1) latest annual financial report; 104

117 2) asset assessment report; 3) asset assessment minutes; and 4) asset transfer minutes. F. Financial Close 1. Financial Close sourced from loan will be declared accomplished if: a. the loan agreement to fund the entire PPP is signed; and b. part of the loan as referred to in letter a is able to be executed to commence construction work. 2. In the event that PPP is divided into several stages, the financial stages shall be declared implemented in the event of: a. loan agreement to finance one of the PPP stages that has been signed; b. part of the loan as referred to in letter a shall be able to be executed in order to commence the construction works. 3. At the maximum of 12 (twelve) months after SPC signed PPP Agreement, SPC shall have to obtain financing over PPP. 4. Time period as referred to in number 3 can be extended from time to time by GCA if the failure to obtain financing is not caused by SPC negligence, in accordance with criteria stipulated by GCA. 5. Every time period extended by GCA as referred to in number 4 is given with a maximum of 6 (six) months. 6. In the event that the time period as referred to in number 3 and the extended time period as referred to in number 5 cannot be met by SPC, the PPP Agreement shall be terminated and the GCA reserves the rights to execute the performance bond. G. Supporting Activities on Transaction Stage Supporting activities which can be conducted during transaction stage include: Activities...

118 1. Activities related to the Environment a. To complete the Pre-feasibility Document, the GCA is obliged to complete all Environmental Impact Assessment document preparation or fill in the Environmental Monitoring Efforts Report-Environmental Management Efforts Report form. b. Environmental Impact Assessment documents which have been finalized must be submitted to Minister or Head of Region in accordance with their authority through Environmental Impact Assessment Secretariat in central, province, or regency/city in accordance with their authority based on laws and regulations. c. Environmental Monitoring Efforts Report-Environmental Management Efforts Report form which have been filled must be submitted to Minister or Head of Region in accordance with their authority for further base thereccomendation of Environmental Monitoring Efforts Report-Environmental Management Efforts Reportissuance. d. To ensure the obtainment of the environmental feasibility authorization statement or the Environmental Monitoring Efforts Report- Environmental Management Efforts reccomendation from Minister, Governor or Head of Region in accordance with their authority based on laws and regulations. e. To stipulate requirements to be implemented by SPC as mentioned on the environmental feasibility authorization statement or the Environmental Monitoring Efforts Report-Environmental Management Efforts reccomendation and Environmental Permit. 2. Activities related to land acquisition and resettlement a. GCA ensures the availability of budget to procure land acquisition. b. At the commencement of the SPC procurement process, GCA ensures the land acquisiton process has been implemented by the institution organizing the field of land in accordance with laws and regulations. c. Land acquisition for the implementation of PPP which are conducted on state/regional owned land follow laws and regulations concerning management of State Owned Goods/Regional Owned Goods. 106

119 d. GCA utilizes information mentioned in Environmental Monitoring Plan and Environmental Management Plan to settle land acquisition and resettlement programs. e. At the commencement of the SPC procurement initial process, GCA ensures the resettlement program has been conducted, if required. f. At the end of the SPC Procurement process, GCA ensures land acquisition has been conducted by institution organizing the field of land in accordance with laws and regulations. 3. Activities related to Government Support and/or Government Guarantee Activities related to Government Support and/or Government Guarantee further govern in accordance with laws and regulations concerning Government Support and/or Government Guarantee. H. Documents on PPP Transaction Stage 1. Documents in PPP Transaction Stage consist of: a. Government Supportand/or Government Guarantee Approval documents, if required; b. Procurement document; c. PPP Agreement document; d. Security Agreement document, if required; and e. Recourse Agreement document, if required. 2. Government Support and/or Government Guarantee Approval documents as referred to in number 1 letter a, further govern in accordance with laws and regulations concerning Government Support and/or Government Guarantee. 3. Procurement document as referred to in number 1 letter b, further governs in accordance with head of institution regulation which organizes government affairs in the policy sector for the government procurement of goods/services. 4. PPP Agreement document as referred to in number 1 letter c, consists ofthe PPP...

120 following provisions, among others: a. work scope; b. time period; c. performance guarantee; d. tariff and adjustment mechanism; e. rights and obligations including risk allocation; f. service performance standard; g. transfer of shares prior to commercially operated PPP; h. penalty if the parties did not meet agreement requirements; i. termination of agreement; j. asset ownership status; k. dispute resolution mechanism which regulated tiered, namely deliberation, mediation, and arbitration/court; l. SPC performance supervision mechanism in conducting procurement; m. work and/or service variation mechanism; n. rights to takeover by Government and lender mechanism; o. utilization and ownership of infrastructure asset and/or its management to GCA; p. infrastructure asset retrieval and/or its management to GCA; q. force majeure; r. statement and parties guarantee that PPP agreement is valid and binding to the parties and in accordance with laws and regulations; s. language use on agreement, namely Indonesian or if required can be created in Indonesian and English (as official translation), and Indonesian will be used in the dispute resolution within Indonesian law territory; t. PPP agreement implementation management; and u. prevailing law, namely Indonesian law. 5. Security Agreement document as referred to in number 1 letter d, further 108

121 govern in accordance with laws and regulations concerning Government Guarantee. 6. Recourse Agreement as referred to in number 1 letter e, further govern in accordance with laws and regulations concerninggovernment Guarantee. CHAPTER V IMPLEMENTATION PROCEDURES FOR UNSOLICITED PPP PROJECT A. General Provision 1. Business entities may propose PPP initiative by submitting a proposal to the GCA based on the implementation procedures related to an unsolicited PPP. 2. Business Entities proposal as referred to in point 1, shall be evaluated by the GCA prior to the stipulation of an unsolicited PPP. 3. Implementation Procedures for Unsolicited PPPs intend to: a. ensure transparancy and competition in the implementation of SPC procurement based on PPP agreement; b. increase accountability and good governance by GCA in the implementation of unsolicited PPP; and c. ensure Business Entities readiness in preparing an unsolicited PPP proposal by providing guidelines concerning: 1) the purpose of PPP proposal submission; 2) information and required documents of PPP initiative by potential initiator; and 3) stages and steps as well as timeframes in decision-making process of unsolicited PPP proposal approval. 109 B. Approval...

122 B. Approval of Unsolicited PPP Proposal Stage. 1. The Process to obtain approval for Potential Initiator from GCA in order to prepare PPP by completing Pre-feasibility Study Document, consist of 4 (four) activities: a. Potential Initiator conveys letter of intent to submit PPP development proposal to GCA. b. GCA shall assess the PPP Pre-feasibility Study over the following criteria: 1) the project is technically integrated with master plan on related sector; 2) the project is economically and fincancially worthy; and 3) the business Entity who submit the initiative has an adequate financial capability to finance the implementation of Infrastructure Provision. c. GCA shall assess the Potential Initiator by evaluating its capability and track record in preparation, transaction, financing, development, operation and maintenance of PPPs; d. GCA shall make a decision: 1) In the event that the GCA grants approval over PPP Pre-feasibility Study, GCA shall issue an approval letter containing: a) Potential Initiator exclusive rights for a certain period of time to complete PPP Pre-feasibility Study; b) obligation to prepare Pre-feasibility Study and to obey procedures for unsolicited PPPs in accordance with General Guidelines; and c) obligation to convey compensation form proposal. 2) In the event that the PPP Pre-feasibility Study is rejected, the GCA issues a notification letter to the Potential Initiator. 2. Pre-feasibility Study Document provision as referred to in number 1 is the preliminary Pre-feasibility Study provision as referred to in Chapter III section B point After obtaining Pre-feasibility Study approval from GCA, the Potential 110

123 Initiator continues the completion of the Feasibility Study and submits it to the GCA, including the: 1) PPP form plan; 2) project financing plan and source of funds; 3) PPP tender plan which covers schedule, process, and assessment method; 4) environmental study which follows AMDAL mechanism and UKL-UPL Report mechanism in accordance with laws and regulations concerning environmental protection and management; 5) land acquisition and resettlement study which results in land acquisition and resettlement planning documents. 4. Feasibility Study Document provision as referred to in point 3 is the final Pre-feasibility Study provision as referred to in Chapter III section B point Feasibility Study document is the due dilligence document which is prepared by the Potential Initiator as a form of preliminary tender over PPP. 6. Other than submitting the Feasibility Study, the Potential Initiator also submits: a. SPC procurement prequalification eligibility document; and b. SPC procurement document plan. 7. GCA evaluates and profoundly assesses the Feasibility Study Document, with the following criteria: a. economically and financially worthy; and b. does notrequire Government Support of fiscal contributions in the form of financial support. 8. GCA evaluates Potential Initiator qualification based on submitted document. 9. Based on evaluation as referred to in point 7 and point 8, therefore: a. In the event that the Feasibility Study obtains approval from the GCA: 1) GCA issues approval letter which contains: 111 a) Feasibility...

124 a) Feasibility Study approval; b) stipulation of PPP proposal as Unsolicited PPP; c) stipulation of Potential Initiator as Business Entities Initiator; d) stipulation of compensation form; and e) SPC procurement prequalification eligibility. 2) GCA conducts consultation to BUPI in the event that there are indications that Government Guarantee is needed, and communicates Pre-feasibility document to be able to commence the application process to obtain the Government Guarantee. b. In the event that based on GCA assessment the Feasibility Study still needs improvement, the GCA issues a notification letter to the Potential Initiator to conduct improvement as required by GCA; c. In the event that the Feasibility Study improvement obtains approval, the GCA stipulatesthe Potential Initiator as Initiator and considers them to have fulfilled the SPC procurement prequalification requirement; or d. In the event that based on GCA assessment the Feasibility Study does not meet the stipulated criteria, GCA issues a notification letter of PPP proposal rejection to the Potential Initiator. 10. In the event that compensation form stipulated by GCA as referred to in point 9 letter a point 1).d) is a provision of 10 % (ten percents) additional value or right to match in accordance with assessment from the bidding process provision: a. it remains mandatory for the SPC to participate in tender as required on the Procurement Document. b. the entire Feasibility Study along with its supporting documents immidiately become GCA property without receiving a fee or compensation in any form. 11. In the event that the compensation application stipulated by GCA as referred to in point 9 letter a point 1).d) is an unsolicited purchase including the 112

125 accompanying intellectual property rights by GCA or bidding winner, therefore: a. Business Entity Initiator is allowed to participate in tender as required on the Procurement Document which is further governed by the head of institution regulation which organizes government affairs policy sector for the government procurement of goods/services. b. PPP initiative purchase is a reimbursement from the GCA or tender winner for an amount of direct cost in relation to the PPP preparation which had been issued by SPC; c. The amount of cost spent by the SPC stipulated by the GCA based on the assessment conducted by the independent appraiser which was appointed by GCA; d. SPC which has obtained compensation in the form of initiative purchase, is restricted to utilize or reveal a part of as well as the entiredocuments for any purposes to anyone without written approval first from GCA; 12. In terms of land acquisition, the GCA formally prepares the land acquisition process by preparing the budget for land acquisition first in accordance with laws and regulations. 13. GCA submits Feasibility Study Document to BUPI to obtain Government Guarantee in accordance with the mechanism regulated by laws and regulations, if required. C. Unsolicited SPC Procurement Implementation Implementation of unsolicited SPC procurement follows the SPC procurement provision which is regulated by the head of institution regulation which organizes the government affairs policy sector for the government procurement of goods/ services. 113 D. Signing...

126 D. Signing of PPP Agreement Implementation of signing of unsolicited PPP agreement follows the provisions referred to in Chapter IV section E. E. Documents 1. Significant documents resulting from the implementation of unsolicited PPP project are: a. Pre-feasibility Study document. b. AMDAL document or UKL-UPL Report which has been filled out. c. land acquisition and resettlement plan document. d. Feasibility Study document. e. tender demand document. f. PPP agreement document. g. security agreement document. h. recourse agreement document. 2. Feasibility Study document as referred to in point 1 letter d, among others: a. PPP design build plan; b. PPP form plan; c. PPP financing plan and source of funds; and d. PPP tender plan (covers schedule, process, and assessment method). 3. Structure framework and document contents as referred to in number 1 letter b, letter c, letter d, letter f, letter g, letter h, and letter l follows provision as referred to in Chapter IV. 114

127 CHAPTER VI CLOSING This General Guidance is compiled by The Ministry of National Development Planning/National Development Planning Agency as a guidance of PPP implementation in order to encourage the Business Entities participation and guidance for Minister/Head of Institution/Head of Regional in compiling guidance of PPP implementation in accordance with its authorization, so that the infrastructure provisions can be carried out effectively and efficiently. THE STATE MINISTER OF NATIONAL DEVELOPMENT PLANNING/HEAD OF NATIONAL DEVELOPMENT PLANNING AGENCY, ANDRINOF A. CHANIAGO true copy of its original Head Of Legal Bureau, Emmy Suparmiatun 115 Copy...

128 COPY OF APPENDIX MINISTER OF NATIONAL DEVELOPMENT PLANNING/ NUMBER4 OF 2015 DATE 29 MAY 2015 IMPLEMENTATION PROCEDURE OF THE COOPERATION BETWEEN THE GOVERNMENT AND BUSINESS ENTITIES IN PROVISION OF INFRASTRUCTURE 116

129 Appendices 117

130 118

131 119

132 120

133 121

134 122

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