PRESIDENTIAL REGULATION OF THE REPUBLIC OF INDONESIA NUMBER 13 OF 2010 REGARDING

Transcription

1 PRESIDENTIAL REGULATION OF THE REPUBLIC OF INDONESIA NUMBER 13 OF 2010 REGARDING AMENDMENT UPON PRESIDENTIAL REGULATION NUMBER 67 OF 2005 REGARDING THE COOPERATION BETWEEN THE GOVERNMENT AND THE BUSINESS ENTITY IN THE INFRASTRUCTURE PROVISION BY THE GRACE OF GOD ALMIGHTY PRESIDENT OF THE REPUBLIC OF INDONESIA, Considering : whereas in order to accelerate implementation of infrastructure provision that will be cooperated with Business Entities, it is necessary to amend the Presidential Regulation Number 67 of 2005 regarding the Cooperation between the Government and the Business Entity in the Infrastructure Provision; In view of : 1. Article 4 paragraph (1) of the 1945 Constitution of the Republic of Indonesia; 2. Presidential Decree Number 80 of 2003 regarding Implementing Guideline on Procurement of Government Goods/Services (State Gazette of the Republic of Indonesia of 2003 Number 120, Supplement of State Gazette of the Republic of Indonesia Number 4430) as for several times been amended, lastly by Presidential Regulation Number 95 of 2007; 3. Presidential Regulation Number 67 of 2005 regarding the Cooperation between the Government and the Business Entity in the Infrastructure Provision; DECIDES: To stipulate : PRESIDENTIAL REGULATION REGARDING AMENDMENT UPON PRESIDENTIAL REGULATION NUMBER 67 OF 2005 REGARDING THE COOPERATION BETWEEN THE GOVERNMENT AND THE BUSINESS ENTITY IN THE INFRASTRUCTURE PROVISION. Article I Several provisions in Presidential Regulation Number 67 of 2005 regarding the Cooperation Between the Government and the Business Entity in the Infrastructure Provision are amended as follows:

2 1. Provision of Article 1 point 8 is amended and added with 1(one) new point, namely point 9; so that, Article 1 shall be read as follows: Article 1 1. Minister/Chairman of the Institution shall mean the chairman of the ministry/institution whose scope of work, duties and responsibilities comprised of the infrastructure sector as regulated under this Presidential Regulation. 2. Head of the Region shall mean the governor for a provincial region, or regent for a regency, or mayor for a municipality area. 3. Infrastructure Provision shall mean the activity comprising the construction work to develop or improve the infrastructure capability and/or infrastructure management and/or infrastructure maintenance activity within the framework of improving the benefits gained from such infrastructure. 4. Business Entity shall mean the private business entity in the form of a limited liability company, State Owned Enterprises (BUMN), Regionally Owned Enterprises (BUMD), and cooperatives. 5. Cooperation Project shall mean the Infrastructure Provision that is carried out by virtue of a Cooperation Agreement or issuance of an Operation License between the Minister/Chairman of the Institution/Head of the Region and the Business Entity 6. Cooperation Agreement shall mean the written agreement to Provide Infrastructure between the Minister/Chairman of the Institution/Head of the Region and the Business Entity as stipulated through a public tender. 7. Operation License shall mean the license to Provide Infrastructure granted by the Minister/Chairman of the Institution/Head of the Region to the Business Entity as stipulated during a tender. 8. Government Support shall mean a fiscal or non-fiscal contribution that provided by the Minister/Chairman of Institution/Head of Regional and/or Minister of Finance according to its authority pursuant to the laws and regulations in order to increase financial viability of the Project Cooperation. 9. Government Guarantee shall mean financial compensation and/or other form of compensation that provided by Minister of Finance to the Business Entity through risk allocation scheme for Cooperation Project. 2. Provision of Article 2 is added by 2 (two) new paragraphs, namely paragraph (3) and (4), so that, Article 2 shall be read as follows: Article 2 (1) Minister/Chairman of the Institution/Head of the Region may cooperate with the Business Entity in Providing the Infrastructure. (2) In executing the cooperation as referred to in paragraph (1), the Minister/Chairman of the Institution/Head of the Region shall act as the principal of the Cooperation Project.

3 (3) Should the laws and regulations on related sector infrastructures states that the Infrastructure Provision by the Government is executed and performed by State-Owned Enterprise/Regional-Owned Enterprise; so that, the State-Owned Enterprise/Regional- Owned Enterprise acts as the principal of the Cooperation Project. (4) Provisions that regulate duties and authorities of Minister/Chairman of Institution/Head of Regional stipulated in this Presidential Regulation shall also be applied to the State- Owned Enterprise/Regional-Owned Enterprise as referred to in paragraph (3), except for public duties and authorities of Minister/Chairman of Institution/Head of Regional that shall not be delegated. 3. Provision of Article 4 paragraph (1) is amended so that Article 4 shall be read as follows: Article 4 (1) Type of infrastructure that may be cooperated with the Business Entity consists of: a. transportation infrastructure, comprising airport service, port provision and/or services, railways facilities and infrastructure; b. road infrastructure, comprising toll road and toll bridge; c. irrigation infrastructure, comprising waterways to transport raw water; d. drinking water infrastructure, comprising the structure used to extract raw water, transmission network, distribution network, drinking water processing installation; e. waste water infrastructure, comprising the waste water processing installation, gathering network and main network, and the waste facility comprising the shipping and disposal site; f. telecommunication and informatics infrastructure, comprising telecommunication network and e-government infrastructure; g. electricity infrastructure, comprise generation, including geothermal development, transmission, or distribution of electricity; h. oil and gas infrastructure, comprise transmission and/or distribution of oil and gas. (2) The Infrastructure as referred to in paragraph (1) shall be cooperated pursuant to the applicable laws and regulations in the relevant sector. 4. Provision of Article 10 is amended; so that, Article 10 shall be read as follows: Article 10 Business Entities may propose Cooperation Project initiative on Infrastructure Provision to Minister/Chairman of Institution/Head of Region under the following criteria: a. excluded in the master plan for the concerning sector; b. technically integrated into the master plan of the concerning sector; c. economically and financially feasible; and

4 d. does not need Government Support in the form of fiscal contribution. 5. Provision of Article 13 is amended; so that, Article 13 shall be read as follows: Article 13 (1) Business Entities which acts as initiator of Cooperation Project and has been approved by Minister/Chairman of Institution/Head of Region, will be compensated. (2) The compensation as referred to in paragraph (1) may be in the form of: a. value added; or b. provision of right to change its offer by initiator Business Entities in order to challenge the best offer (right to match) pursuant to result of bidding process evaluation; or c. purchase of Cooperation Project initiative, including intellectual property right by Minister/Chairman of Institution/Head of Region or by bidding winner. d. Provision of compensation as referred to in paragraph (2) shall be mentioned in the approval of Minister/Chairman of Institution/Head of Region. e. Initiator of Cooperation Project that has obtained approval from Minister/Chairman of Institution/Head of Region as referred to in paragraph (2) letters a and b, shall participate bidding process as required in public bidding document. f. Initiator of Cooperation Project that has obtained approval of Minister/Chairman of Institution/Head of Region as referred to in paragraph (2) letter c is not allowed to participate bidding process as required in public bidding document. 6. Provision of Article 14 is amended; so that, Article 14 shall be read as follows: Article 14 (1) The value added as referred to in Article 13 paragraph (2) letter a, shall be of maximum 10% of bidding valuation of the initiator, and shall be clearly stated in bidding document. (2) The amount of cost spent by Initiator Business Entities as referred to in Article 13 paragraph (2) letter c, shall be determined by Minister/Chairman of Institution/Head of Region based on valuation by independent appraiser being appointed by Minister/Chairman of Institution/Head of Region. (3) The purchase of Cooperation Project initiative as referred to in Article 13 paragraph (2) letter c, means reimbursement by Minister/Head of Institution/Head of Region or by bidding winner upon a direct sum of amount related to preparation of the Cooperation Project spent by the initiator Business Entities. (4) The provision of right to change its offer by initiator Business Entities in order to challenge the best offer (right to match) as referred to in Article 13 paragraph (2) letter b, serves as the provision of right to Business Entity which initiates the Cooperation Project to change its offer, if according to the public bidding evaluation, there is another Business Entity which offered better offer. (5) Period for initiator Business Entity to submit the right to make changes as referred to in paragraph (4) shall be no longer than 30 (thirty) days as of the decision date of the best

5 offer from public bidding of Cooperation Project which decided based on criteria of evaluation from the concerning sector." 7. Title of CHAPTER VI is amended; so that, CHAPTER VI shall be read: 8. Provision of Article 17 is deleted. CHAPTER VI RISK MANAGEMENT 9. It is inserted between CHAPTER VI and CHAPTER VII, 1 (one) other Chapter, namely CHAPTER VIA consisting of Articles 17A, 17B, and 17C; so that, CHAPTER VIA shall be read as follows: CHAPTER VIA GOVERNMENT SUPPORT AND GUARANTEE Article 17A (1) Minister/Chairman of Institution/Head of Region may provide Government Support upon the Cooperation Project pursuant to scope of activity of the Cooperation Project. (2) Government Support in the form of fiscal contribution must be stated in the State Budget (APBN) and/or Regional Budget (APBD). (3) Government Support in the form of licensing, land procurement, support in part of construction, and/or other form pursuant to the applicable laws and regulations shall be decided by Minister/Chairman of Institution/Head of Region. (4) Minister of Finance may approve the provision of Government Support in the form of tax incentive based on proposal from Minister/Chairman of Institution/Head of Region. (5) The Government Support must be stated in the public bidding document. (6) Land acquisition as referred to in paragraph (3) shall be conducted by Minister/ Chairman of Institution/Head of Region before Business Entities procurement process. (7) If the Cooperation Project is financially feasible, Business Entity that won bidding may repay the cost for land acquisition that has been conducted by Minister/Chairman of Institution/Head of Region as referred to in paragraph (6) either for some or the whole part, and must be stated in public bidding document. (8) The provision as referred to in paragraphs (6) and paragraphs (7) shall be made if they are not in contradiction to the applicable laws and regulations in the concerning sector. (9) In addition to Government Support as referred to in paragraph (3), the Government may provide Government guarantee upon the Cooperation Project. Article 17B (1) Government Guarantee is granted by considering the principle of financial risk management and control in State Budget (APBN). (2) The risk control and management upon Government Guarantee as referred to in paragraph (1), shall be done by Finance Minster.

6 (3) In carrying out duties and function as referred to in paragraph (2), the Minister of Finance is authorized to: a. determine criteria in providing of Government Guarantee to be provided to the Cooperation Project; b. request and obtain data and information deemed necessary from parties connected to the Cooperation Project being proposed to be given such Government Guarantee; c. approve or refuse proposal for the provision of Government Guarantee to Business Entity in the frame of Infrastructure Provision; d. determine the form and type of Government Guarantee being provided to a Cooperation Project. (4) Government Guarantee to Business Entity shall be mentioned in public bidding document. (5) Further provision on the form, type, and procedure for the provision of Government Guarantee shall be stipulated in the Minister of Finance Regulation. Article 17C (1) Government Guarantee in the form of financial compensation may be given by Minister of Finance through business entities specifically established by the Government for the purpose of guaranteeing infrastructure. (2) Provision on the Government Guarantee provision as referred to in paragraph (1) shall be regulated further in a separate Presidential Regulation. 10. Provision of Article 20 is amended so that Article 20 shall be read as follows: Article 20 Procedure of procurement as referred to in Article 18, shall cover: a. procurement planning; b. procurement implementation. 11. Provision of Article 23 paragraph (1) is amended and added by 1 (one) new paragraph, namely paragraph (4), so that Article 23 shall be read as follows: Article 23 (1) Cooperation Agreement shall at least provide provision on: a. scope of work; b. period; c. performance bond; d. tariff and adjustment mechanism; e. right and obligation, including risk allocation; f. services performance standard; g. transfer of share before Cooperation Project commercially operates; h. sanction if the parties failed to comply with stipulation of agreement; i. cancellation or termination of agreement;

7 j. financial report of Business Entity in the frame of enforcement of agreement, being audited on annual basis by independent auditor, and the announcement thereon in national printed media; k. dispute settlement mechanism, which hierarchically arranged namely deliberation for consensus, mediation, and arbitration/court; l. performance supervision mechanism of Business Entity in implementation of procurement; m. usage and ownership of infrastructure assets; n. return of infrastructure assets and/or their management to Minister/ Chairman of Institution/Head of Region; o. force majeure; p. representation and warranty of parties that Cooperation Agreement binds the parties and already in line with the applicable laws and regulations; q. the use of Indonesian language in Cooperation Agreement. If Cooperation Agreement is signed in more than one language, the Indonesian version shall prevail; r. the prevailing law shall be Indonesian law. (2) If Infrastructure Provision is done by conducting land acquisition by Business Entity, the amount of Performance Guarantee as referred to in paragraph (1) letter c, may be determined by calculating the cost spent by Business Entity for the concerning land acquisition. (3) Cooperation Agreement shall clearly mention ownership status of the assets procured during the term of the agreement. (4) Transfer of share of Business Entity of Cooperation Agreement holder before Infrastructure Provision, commercially operates as referred to in paragraph (1) letter g, may only be conducted upon obtaining approval and based on criteria as determined by Minister/Chairman of Institution/Head of Region, provided that such transfer of share does not postpone schedule of operational commencement of the Cooperation Project. 12. Provision of Article 24 paragraph (2) is amended and be inserted with 2 (two) new paragraphs, namely paragraphs (1a) and (1b), so that Article 24 shall be read as follows: Article 24 (1) Within a period of no longer than 12 (twelve) months after signing Cooperation Agreement, Business Entity shall have already obtain funding upon the Cooperation Project. (1a) The obtaining of such funding as referred to in paragraph (1) shall be declared done if: a. it has already signed the loan agreement to finance all Cooperation Project; and b. as part of the loan as referred to in letter a may be cleared to commence construction works. (1b) The period as referred to paragraph (1) may be extended by Minister/Chairman of Institution/Head of Region no later than 12 (twelve) months, if failure to obtain funding is not contributable to failure of Business Entity pursuant to criteria as determined by Minister/Head of Institution/Head of Region. (2) If the period as referred to in paragraph (1) or the extension period as referred to in paragraph (1b) cannot be met by Business Entity, then the Cooperation Agreement ends

8 and the performance bond may be cleared by Minister/Chairman of Institution/Head of Region. 13. Annexure is amended so that it becomes what is stipulated in the Annex to this Presidential Regulation as inseparable part of this Presidential Regulation. Article II 1. By the enactment of this Presidential Regulation: a. Cooperation Agreement that has been signed before the effective day of this Presidential Regulation shall remain applicable; b. Procurement process of Business Entity, which is undergone and bidding winner has not also been decided, then such process is further conducted pursuant to this Presidential Regulation; c. Procurement process of Business Entity that has been done and the winner has also been decided but the Cooperation Agreement has not been signed; hence, the Cooperation Agreement shall be made pursuant to this Presidential Regulation; d. Cooperation Agreement that has been signed, but the financial closure has not been reached pursuant to the period determined in the Cooperation Agreement, then provision on obligation of financial closure shall be carried out pursuant to this Presidential Regulation after Minister/Chairman of Institution/Head of Region conduct evaluation toward Business Entity and Cooperation Project based on criteria determined by Minister/Chairman of Institution/ Head of Region; e. Cooperation Agreement that has been signed, but the land acquisition has not completely done, then the land acquisition process shall be adjusted based on this Presidential Regulation, and Minister/Chairman of Institution/Head of Region may carry out adjustment upon the Cooperation Agreement after carrying out adjustment upon Business Entity and the Cooperation Agreement concerned under the criteria as determined by Minister/Chairman of Institution/Head of Region. f. The transfer of share before the Cooperation Agreement commercially operates that has been conducted before the enactment of this Presidential Regulation shall be declared valid and remains applicable. 2. This Presidential Regulation shall become effective on the date of this establishment. Copy confirmed to the original Established in Jakarta Dated 28 January 2010 PRESIDENT OF THE REPUBLIK INDONESIA, Signed DR. H. SUSILO BAMBANG YUDHOYONO

9 Deputy Secretary of Cabinet, for Legal Issues, Signed Dr. M. Iman Santoso