PENERAPAN PENDEKATAN RULE OF REASON TERHADAP PERSEKONGKOLAN TENDER BERDASARKAN UNDANG-UNDANG NO. 5 TAHUN 1999 TENTANG LARANGAN PRAKTIK MONOPOLI DAN PERSAINGAN USAHA TIDAK SEHAT

Abstract

Business conspiracy or conspiracy is a form of cooperation carried out by business
actors with other business actors with the intention of controlling the relevant market for
the interests of the conspiring business actors. The Business Competition Supervision
Commission (KPPU) is tasked with examining alleged violations of Law Number 5 of
1999 concerning the Prohibition of Monopolistic Practices and Unfair Business
Competition, and each decision uses a Per Se Illegal approach and a Rule of Reason
approach. In the case of tender conspiracy, the Commission Council must apply the Rule
of Reason approach in its decision to analyze the case. However, the KPPU's decision
has not been consistent in applying the Rule of Reason approach to the case of tender
conspiracy by the government. Therefore, the research objectives of this thesis are,
firstly, to determine the variation of the application of the Rule of Reason approach to the
KPPU's decision on the procurement of goods/services by the government. Second, to
find out the ideal indicators in the application of the Rule of Reason approach to the
KPPU's decision. This study uses normative/legal research methods to analyze case
studies. This study uses secondary data sources by using primary legal materials,
secondary legal materials, and tertiary legal materials. From the results of the study
there are 2 main things that can be concluded. First, the variation of the application of
the Rule of Reason approach to the KPPU's decision on the procurement of
goods/services by the government is contained in Decision Number 04/KPPU-L/2020,
Decision Number 05/KPPU-I/2020 and Decision Number 35/KPPU-I/2020. Where in the
decision Number 04/KPPU-L/2020 and Decision No.05/KPPU-I/2020 the Rule of Reason
approach has not been implemented perfectly, and in Decision Number 35/KPPU-I/2020
the Rule of Reason approach has been implemented perfectly. Second, the ideal indicator
to apply the Rule of Reason approach is regulated in Article 22 of the 1999 Law on the
Prohibition of Conspiracy, which regulates indications of conspiracy in tenders. In
decision Number 04/KPPU-L/2020 the Commission Council did not apply the Rule of
Reason approach perfectly. In decision Number 05/KPPU-I/2020 the Commission
Council has not implemented the Rule of Reason approach perfectly. In decision Number
35/KPPU-I/2020 The Commission application of the Rule of Reason has been perfect.
Keywords: Rule Of Reason Approach, Tender Conspiracy, KPPU