BY THE GRACE OF ALMIGHTY GOD PRESIDENT OF THE REPUBLIC OF INDONESIA,

Transcription

1 PRESIDENTIAL REGULATION OF THE REPUBLIC OF INDONESIA NUMBER 67 OF 2005 REGARDING COOPERATION BETWEEN GOVERNMENT AND BUSINESS ENTITIES IN INFRASTRUCTURE PROVISION BY THE GRACE OF ALMIGHTY GOD PRESIDENT OF THE REPUBLIC OF INDONESIA, Considering : a. Whereas there is an urgent need to make sufficient and sustainable infrastructure available in order to support implementation of the national development within the frame of improving the community s economy and welfare, as well as to increase Indonesia s competitive edge among the global society; b. Whereas in order to accelerate the infrastructure development, it is deemed necessary to take comprehensive measures to create an investment climate that will promote business entities participation in the Infrastructure Provision on the basis of fair business principles; c. Whereas in order to encourage and improve cooperation between the government and business entities in the Infrastructure Provision and the relevant services, it is necessary to protect and secure the interest of the consumers, community, and the business entities in a fair manner; d. Whereas based on the considerations as referred to in points a, b, and c, it is necessary to establish a Presidential Regulation regarding Cooperation Between the Government and Business Entities in 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 Guidance on Procurement of Governmental Goods/Services (State Gazette of the Republic of Indonesia of 2003 Number 120, Supplement of the State Gazette of the Republic of Indonesia 4430) as amended several times most recently by the Presidential

2 Regulation Number 32 of 2005 (State Gazette of the Republic of Indonesia of 2005 Number 36); DECIDES: To establish : PRESIDENTIAL REGULATION REGARDING COOPERATION BETWEEN THE GOVERNMENT AND BUSINESS ENTITIES IN INFRASTRUCTURE PROVISION. CHAPTER I GENERAL PROVISIONS Article 1 The terms used in this Presidential Regulation shall have the following meaning: 1. Minister/Chairman of Institution shall mean the chairman of ministry/institution whose scope of work, duties and responsibilities comprised of the infrastructure sector as regulated under this Presidential Regulation. 2. Head of Region shall mean governor for provincial region, or regent for regency, or mayor for municipal area. 3. Infrastructure Provision shall mean the activity comprising of construction work to develop or improve infrastructure capability and/or the activities of infrastructure management and/or maintenance within the frame of improving the benefits gained from such infrastructure. 4. Business Entity shall mean any private business entities in the form of limited liability companies, State Owned Enterprises (BUMN), Regionally Owned Enterprises (BUMD), and cooperatives. 5. Cooperation Project shall mean the Infrastructure Provision that is carried out through Cooperation Agreement or the issuance of Operation License between Minister/Chairman of the Institution/Head of Region and Business Entity. 6. Cooperation Agreement shall mean any written agreement on Infrastructure Provision between Minister/Chairman of Institution/Head of Region and Business Entity as stipulated through a public bidding. 7. Operation License shall mean any license to Provide Infrastructure granted by Minister/Chairman of Institution/Head of Region to Business Entity as stipulated through bidding.

3 8. Government Support shall mean any support given by Minister/Chairman of Institution/Head of Region to Business Entity within the frame of implementation of Cooperation Project based on Cooperation Agreement. CHAPTER II OBJECTIVE, TYPE, FORM AND PRINCIPLE OF COOPERATION Article 2 (1). Minister/Chairman of Institution/Head of Region may carry out cooperation with Business Entity in Infrastructure Provision. (2). In the implementation of cooperation as referred to in paragraph (1), Minister/Chairman of Institution/Head of Region shall act as principal of the Cooperation Project. Article 3 Cooperation Project on the Infrastructure Provision between Minister/Chairman of Institution/Head of Region with Business Entity shall be carried out for the purpose of: a. meeting financial requirement in a sustainable manner in Infrastructure Provision through mobilization of private funds; b. improving quantity, quality and efficiency of service through fair competition; c. improving quality of management and maintenance in the Infrastructure Provision; d. encouraging utilization of the principle of user paying for services that they receive, or in certain cases taking into consideration the users ability to pay. Article 4 (1). Any cooperation can be entered into with the Business Entity in regard to the following types of infrastructure: a. transportation infrastructure, comprising of sea, river or lake port, airport, railway and railway station; b. road infrastructure, comprising of toll road and toll bridge; c. infrastructure for irrigation, comprising of waterways to transport raw water; d. infrastructure for drinking water, comprising of the structure used to extract raw water, transmission network, distribution network, drinking water processing installation; e. waste water infrastructure comprising of the waste water processing installation, tapping network and main network, and waste facility comprising of transporting and disposal site; f. telecommunication infrastructure, comprising of telecommunication network;

4 g. electricity infrastructure, comprising of generation, transmission or distribution of electricity; and h. oil and natural gas infrastructure comprising of processing, depositing, shipping, transmission, or distribution of oil and natural gas. (2). In relation to the infrastructure as referred to in paragraph (1), cooperation shall be established in accordance with the prevailing laws and regulations in the relevant sector. Article 5 (1). Cooperation between Minister/Chairman of Institution/Head of Region with Business Entity in the Infrastructure Provision as referred to in Article 2 paragraph (1), may be implemented through: a. Cooperation Agreement; or b. Operational License. (2). Form of Cooperation between Minister/Chairman of Institution/Head of Region with Business Entity in the Infrastructure Provision, shall be stipulated by virtue of agreement between Minister/Chairman of Institution/Head of Region with Business Entity to the extent that it is not contradictory to the prevailing laws and regulations. Article 6 Cooperation on the Infrastructure Provision between Minister/Chairman of Institution/Head of Region with Business Entity shall be carried out based on the following principles: a. fair, which means that all of Business Entities participating in the procurement process must receive equal treatment; b. open, which means that all of procurement processes shall be opened for Business Entities that have met the required qualification; c. transparent, which means that all stipulations and information relating to the Infrastructure Provision including any technical administration requirement for selection process, evaluation procedure, and determination on opened Business Entity for all Business Entities and the public in general; d. competition, which means the election of Business Entity through bidding process; e. accountable, which means that the result of Business Entity selection process must be held accountable; f. mutually beneficial, which means that partnership with Business Entity in the Infrastructure Provision shall be carried out based on an equitable terms and conditions thus offering benefits for both parties and the community by taking into consideration the basic needs of the people;

5 g. reciprocal need, which means that partnership with Business Entity in the Infrastructure Provision shall be carried out by virtue of the terms and conditions that takes into consideration the need of both parties; h. mutually supportive, which means that partnership with Business Entity in the Infrastructure Provision shall be carried out with the spirit of mutual support from both parties. CHAPTER III IDENTIFICATION AND DETERMINATION OF PROJECT EXECUTED BY VIRTUE OF COOPERATION AGREEMENT Article 7 (1) Minister/Chairman of Institution/Head of Region shall identify the Infrastructure Provision projects for which cooperation shall be established with Business Entity, by at least taking the following matters into consideration: a. conformity with the national/regional medium term development plan and the infrastructure sector s strategic plan; b. conformity of the project s location with the Regional Spatial Planning; c. interconnection among infrastructure sectors and regional areas; d. cost analysis and social benefit. (2) Every proposed project for which cooperation will be established must be accompanied by: a. a pre-feasibility study; b. cooperation scheme plan; c. project financing plan and the source of fund thereof; and d. cooperation proposal plan comprising of schedule, process and method of evaluation. Article 8 In identifying the project for which cooperation shall be established as referred to in Article 7, Minister/Chairman of Institution/Head of Region shall engage in public consultation. Article 9 (1) Based on outcome of the project identification as referred to in Article 7 and of the public consultation as referred to in Article 8, Minister/Chairman of Institution/Head of Region shall determine priority of projects for which cooperation shall be established in the list of priority projects. (2) The list of project priority as referred to in paragraph (1), shall be declared open for public and be dispersed to the community.

6 CHAPTER IV COOPERATION PROJECT BASED ON INITIATIVE OF BUSINESS ENTITIES Article 10 Business Entities may submit Cooperation on Infrastructure Procurement Project Initiative that is not included in the list of project priority as referred to in Article 9, to Minister/Chairman of Institution/Head of Region. Article 11 (1) Project with respect to Business Entity initiatives must be accompanied by: a. feasibility study; b. cooperation plan; c. project financing plan and the source of fund thereof; and d. cooperation proposal plan comprising of schedule, process and method of evaluation. (2) Project with respect to Business Entity initiatives as referred to in paragraph (1), shall also take into consideration the provisions as referred to in Article 7 paragraph (1). Article 12 (1) Minister/Chairman of Institution/Head of Region shall evaluate the project based on initiative of Business Entity as referred to in Article 11. (2) In term on evaluation as referred to in paragraph (1) the project that is established based on the initiative of Business Entity meets the feasibility requirement, the project that is established based on initiative of Business Entity shall be processed by means of a public bidding in accordance with stipulation under this Presidential Regulation. Article 13 (1) Business Entity whose Cooperation Project initiative is accepted by Minister/ Chairman of Institution/Head of Region shall be compensated. (2) The compensation as referred to in paragraph (1), may take the form of: a. added value; or b. Purchase of Cooperation Project initiative including Intellectual Property Rights that accompany it by Minister/Chairman of Institution/Head of Region or by winner of bidding.

7 Article 14 (1) The added value as referred to in Article 13 paragraph (2) point a, shall be less than 10 % (ten percent) from value of bidding of the initiator and shall be announced publicly before the procurement process. (2) The purchase of Cooperation Project initiative as referred to in Article 13 paragraph (2) point b, shall constitute as reimbursement from Minister/Chairman of Institution/Head of Region or from winner of bidding of the costs spent by Business Entity from whose initiative originated. (3) Amount of the added value as referred to in paragraph (1) and the reimbursement as referred to in paragraph (2), shall be determined by Minister/Chairman of Institution/Head of Region based on the considerations of independent appraiser, prior to the procurement process. BAB V INITIAL TARIFF AND TARIFF ADJUSTMENT Article 15 (1) Initial tariff and the adjustments thereof shall periodically be determined to ascertain the rate of investment return that covers the cost of capital, operational cost and reasonable profit within a certain time period. (2) In term of determination of the initial tariff and adjustments thereof cannot be made in accordance with the stipulations as referred to in paragraph (1), the tariff shall be determined based on users capability level. (3) In term of the tariff determined based on users capability level as referred to in paragraph (2), Minister/Chairman of Institution/Head of Region shall provide compensation so as to obtain a reasonable rate of investment return and profit. (4) Amount of the compensation as referred to in paragraph (3), shall be based on revenues resulted from competition among bidding participants and shall be chosen based on minimum offered range of compensation. (5) Compensation will only be given to Cooperation on Infrastructure Provision Project that holds social interest and benefit, after Minister/Chairman of Institution/Head of Region carries out a complete and comprehensive review of the social benefits. CHAPTER VI

8 RISK MANAGEMENT AND GOVERNMENT SUPPORT Article 16 (1) Risk shall be managed based on the principle of risk allocation between Minister/Chairman of Institution/Head of Region and Business Entity in a sufficient manner by allocating the risk to party who is most capable of controlling the risk within the frame of guaranteeing efficiency and effectiveness in the Infrastructure Provision. (2) The risk management as referred to in paragraph (1) shall be set forth in Cooperation Agreement. Article 17 (1) Government Support to Business Entity shall be carried out with due regard to the principle of management and financial risk control in the State Budget (APBN) or Regional Budget (APBD). (2) The risk control and management as referred to in paragraph (1) shall be carried out by the Minister of Finance or Chairman of the Regional Finance Management Task Unit in term of Government Support is given by Regional Government. (3) In carrying out the duties and functions as referred to in paragraph (2), the Minister of Finance or the Regional Finance Management Task Unit shall be authorized to: a. obtain data and information required from parties relating to Cooperation Project on the Infrastructure Provision that requires Government Support; b. to approve or deny the proposed offering of Government Support to the Business Entity within the frame of the Infrastructure Provision, based on criteria determined by the Minister of Finance in term of Government Support is given by the Central Government, or the Regional Finance Management Task Unit in term of the Government Support given by the Regional Government; c. determine payment procedure for obligations of Minister/Chairman of Institution/Head of Region arising from Infrastructure Provision project in case of reimbursement for intellectual property rights, subsidy payment, and inability to fulfill the Cooperation Agreement. CHAPTER VII PROCEDURE TO PROCURE BUSINESS ENTITY WITHIN THE FRAME OF COOPERATION AGREEMENT Article 18

9 Procurement of Business Entity within the frame of Cooperation Agreement shall be carried out through public bidding. Article 19 Minister/Chairman of Institution/Head of Region shall establish a procurement committee. Article 20 The procedure of procurement as referred to in Article 18, shall comprise of: a. procurement preparation; b. procurement implementation; c. determination of winner; and d. drafting the Cooperation Agreement. Article 21 Minister/Chairman of Institution/Head of Region shall determine the bidding winner based on proposal from the procurement committee. Article 22 The stipulation as referred to in Articles 18, 19, 20, and 21 shall be further regulated under the Attachment to this Presidential Regulation, which constitutes an inseparable part herein. CHAPTER VIII COOPERATION AGREEMENT Article 23 (1) A Cooperation Agreement shall at least comprise of stipulation concerning: a. scope of work; b. term; c. performance bond; d. adjustment tariff and mechanism; e. rights and obligations, including risk allocation; f. standard of service performance; g. prohibition to transfer Cooperation Agreement or share participation in Business Entity holding the Cooperation Agreement prior to the Infrastructure Provision commences commercial operation; h. sanction in case the parties failed to meet provisions of the agreement; i. termination or expiration of the agreement; j. financial report of Business Entity within the frame of implementation of the agreement, audited on an annual basis by an independent auditor, and the announcement of which is published in a nationally circulated printed media;

10 k. mechanism of dispute settlement being arranged in stages, namely deliberation for consensus, mediation, and arbitration/court; l. mechanism of supervision upon Business Entity s performance to implement the agreement; m. infrastructure return and/or the management thereof to Minister/Chairman of Institution/Head of Region; n. force majeure; o. governing law, namely Indonesian law. (2) In term of Infrastructure is provided through land acquisition by Business Entity, the amount of Performance Bond as referred to in paragraph (1) point c, may be determined by calculating the cost spent by Business Entity for the acquisition of the relevant land. (3) Cooperation Agreement shall clearly state the status of ownership of the asset procured during the term of the agreement. Article 24 (1) In no later than 12 (twelve) months after signing Cooperation Agreement, Business Entity shall have already obtained financing for the Cooperation Project. (2) In term of stipulation as referred to in paragraph (1) may not be fulfilled by the Business Entity, Cooperation Agreement shall end and bidding guarantee may be liquidated. Article 25 (1) In term of any delegation of asset management owned or controlled by Minister/ Chairman of Institution/Head of Region to Business Entity for its implementation, the Cooperation Agreement shall stipulate: a. purposes of the asset utilization and prohibition to use asset for purposes other than the agreed ones; b. operational and maintenance responsibilities including payment of tax and other obligations arising due to utilization of asset; c. rights and obligations of parties controlling the asset to supervise and maintain the asset s performance during the period of use; d. prohibition for Business Entity to use the assets as collateral to third parties; e. procedure to transfer and/or return of the assets. (2) In term of Cooperation Agreement provides the transfer of control over the asset by Business Entity during the term of the agreement, the Cooperation Agreement shall provide: a. condition of the assets to be transferred; b. procedure to transfer the assets;

11 c. status of the asset of being free from any security rights or encumbrances when the asset is handed over to Minister/Chairman of Institution/Head of Region; d. status of the assets of being free from any claims from third parties; e. indemnification of Minister/Chairman of Institution/Head of Region from any claims, which may arise after the transfer of assets; f. compensation to Business Entity, which disposes the asset. Article 26 In relation to the use of Intellectual Property Rights, Cooperation Agreement shall set forth guarantee from Business Entity that: a. Intellectual Property Right being used is completely free of any form violations of law; b. Minister/Chairman of Institution/Head of Region will be indemnified from any claim or suit of any third parties in relation to the use of Intellectual Property Rights in providing the Infrastructure; c. Pending the settlement of any ongoing cases due to claim or lawsuit as referred to in point b then: 1). continuity on Infrastructure Provision may consistently be carried out; 2). endeavor the license that the use of Intellectual Property Rights may still be carried out. CHAPTER IX INFRASTRUCTURE PROVISION BY VIRTUE OF AN OPERATION LICENSE Article 27 Business Entity procurement in the Infrastructure Provision by virtue of Operation License shall be carried out through bidding for license. Article 28 The procedure to tender the license as referred to Article 27 shall be further regulated by the Minister/Chairman of the Institution/Head of the Region, by implementing the principle as referred to in Article 6. CHAPTER X TRANSITIONAL PROVISIONS Article 29

12 By the enactment of this Presidential Regulation: 1. Any Cooperation Agreement that has been signed before the enactment of this Presidential Regulation shall continue to be in force; 2. The procurement process that has been carried out and for which a winner has been determined by virtue of the Presidential Decree Number 7 of 1998 regarding Cooperation Between Government and Private Business Entity In Development and/or Infrastructure Management, but a Cooperation Agreement has not been signed, then a Cooperation Agreement shall be made pursuant to this Presidential Regulation; 3. A Cooperation Agreement that has been signed by virtue of the Presidential Decree Number 7 of 1998 regarding Cooperation Between Government and Private Business Entity In Development and/or Infrastructure Management, but the financing thereof has not been fulfilled, then such financing obligation shall be carried out pursuant to the provisions of Article 24 of this Presidential Regulation. CHAPTER XI CLOSING Article 30 At the time when this Presidential commences to be effective, then the Presidential Decree Number 7 of 1998 regarding Cooperation Between Government and Private Business Entity In Development and/or Infrastructure Management, shall be revoked and be declared no longer effective. Article 31 This Presidential Regulation shall commence to be effective on the date of its establishment. Established in Jakarta Dated 9 November 2005 PRESIDENT OF THE REPUBLIC OF INDONESIA, signed DR. H. SUSILO BAMBANG YUDHOYONO

13 Copy conforms to the original, Deputy Cabinet Secretary Legal and Legislation Division signed Lambock V. Nahattands

14 ATTACHMENT: PRESIDENTIAL REGULATION OF THE REPUBLIC OF INDONESIA NUMBER : 67 OF 2005 DATED : 9 NOVEMBER 2005 PROCUREMENT PROCEDURE OF BUSINESS ENTITY IN THE FRAME OF COOPERATION AGREEMENT A. Procurement Planning 1. Minister/Chairman of Institution/Head of Region shall form Procurement Committee; 2. Member of Procurement Committee shall consist of elements who understand: a. procurement procedure; b. substance of the relevant work/activity; c. contract law; d. technical aspect; e. financial aspect; 3. Schedule of procurement implementation: preparation of procurement schedule must allocate enough time for all phase of the procurement process. 4. Self Calculation Price (HPS) must be carried out in a diligent manner. 5. Public bidding document shall at least contain: a. invitation to bidding participants; b. instruction to bidding participant shall at least set forth: 1) general: scope of work, source of fund, requirement and qualification of bidding participant, number of bidding document submitted, and work location inspection; 2) content of the public bidding document, explanation over content of public bidding document, and changes upon content of public bidding document; 3) language required to be used in bidding, offered price stated in writing, proposed currency and method of payment, validity period of the offer, letter of proposal guarantee, proposal of alternative offer by bidding participants, form of offer and signing of the letter of proposal; 4) method of covering and marking envelope of the proposal, deadline of submission, treatment for late proposals, as well as prohibitions on changes and withdrawal of the offers that have been submitted; 5) procedure of bid opening, confidentiality and prohibition, clarification of bidding document, examination on completeness of bidding document, arithmetical correction, conversion to a single currency, proposal evaluation system comprising of criteria, formulation, and evaluation procedure, as well as evaluation on price preference;

15 c. draft on cooperation agreement; d. list of quantity and price; e. technical specification and drawing; f. form of proposal letter; g. form of cooperation; h. form of proposal guarantee letter; i. form of the letter of performance bond; j. a public bidding document must explain the method of how bidding document is submitted. B. Implementation of Procurement: 1. Announcement and Registration of Participants a. procurement Committee shall make general announcement on public bidding; b. content of the announcement shall at least set forth: name and address of Minister/Chairman of Institution/Head of Region who shall conduct public bidding, prepare a summarized detail on job to be carried out, the estimated job value, requirements for bidding participants, venue, date, day and time to pick up public bidding documents; c. in order that the announcement referred to in point a, may reach a wider target in an efficient and accurate manner within the reach of targeted community and entrepreneurs, the announcement is set as follows: bidding/ prequalification announcement shall be made in regional government/ privately owned newspaper and radio broadcast having national/international coverage of readers and listeners. 2. Prequalification comprises of evaluation over: a. business license for the related business field; b. authority to legally sign a contract; c. legal status of company within the understanding that company is not under court s supervision, not bankrupt, its business activity is not suspended, and/or not serving any criminal sanction; d. having experience in similar Infrastructure Procurement Cooperation Project; e. ability to provide facilities and equipments as well as personnel; f. letter of financial support from bank; and g. availability of special equipments, necessary special expert staff, or particular experiences, for special/specific/high tech jobs. 3. Prequalification Procedure: a. announcement of prequalification for public bidding; b. registration and obtaining prequalification document; c. submission of prequalification document by bidding participant; d. evaluation of prequalification document; e. determination of list of bidding participant who passed prequalification by Procurement Committee; f. legalization of prequalification result by Procurement Committee; g. announcement of prequalification result;

16 h. submission of objection by bidding participant who failed prequalification to Minister/Chairman of Institution/Head of Region, if any; i. research and follow up over protest upon result of prequalification; j. re-evaluation by Procurement Committee in case that protest/objection of goods/services provider is proven to be true and announcement of reevaluation result. 4. Preparation of Participant List, Delivery of Invitation and Obtaining Public Bidding Document a. list of bidding participants who will be invited must be legalized by Minister/ Chairman of Institution/Head of Region; b. if there is less than 3 (three) bidding participants who passed prequalification then an announcement and another prequalification process will be carried out by inviting new bidding participant; c. if after a re-announcement of bidding/prequalification, there is no new additional prospective bidding participant or total bidding participants remain less than 3 (three) participants, then Procurement Committee will proceed with public bidding process; d. all prospective bidding participants listed in list of bidding participants must be invited to obtain public bidding document; e. invited bidding participant shall entitle to obtain public bidding document from Procurement Committee. 5. Bidding Presentation (Aanwijzing) a. bidding presentation shall be made on a designated venue and time, in the presence of bidding participants who are listed in list of bidding participants; b. any absent of bidding participants during bidding presentation may not be used as the basis to refuse/disqualify the bidding; c. during public bidding presentation, an explanation must be provided to participants relating to: 1) bidding method; 2) method of bidding submission; 3) documents, which must be enclosed to bidding document; 4) opening agenda of bidding document; 5) method of evaluation; 6) matters that may disqualify bidding; 7) form of cooperation agreement; 8) Terms and procedure of evaluation relating to price preference for the use of domestic products; 9) amount, period of validity and parties who may issue proposal guarantee. d. if deemed necessary, Procurement Committee may provide further explanation by means of site survey; e. provision of explanation on articles of public bidding document in the form of question from participant and answers from Procurement Committee as well as other information including amendments and site survey thereof, must be set forth in a Minutes of Explanation (BAP) signed by Procurement

17 Committee and at least 1 (one) representative of attending participant, and constitutes an inseparable part of public bidding document; f. if in the BAP as referred to in point e contains new information/provisions or a significant amendment that needs to be accommodated, then Procurement Committee must set forth the said matters in an addendum to public bidding document. 6. Delivery and Opening of the Tender document a. methods of delivery and opening of bidding document must comply with provisions required in public bidding document; b. method of submission of bidding document to be used must be explained in presentation session; c. Procurement Committee shall record time, date and venue of receipt of bidding document received through mail on the envelop of the bidding and put it into bidding box/site; d. on the deadline for the submission of bidding document, Procurement Committee opens the meeting to open bidding document, declaring before bidding participant that upon conclusion of the submission of bidding document in a timely manner, refuse bidding document that was late and/or any additional bidding document, and subsequently open any incoming bidding document; e. for bidding submitted by mail but received not punctually, Procurement Committee shall open the envelope of bidding document to determine address of bidding participant and notify any relevant bidding participant of obtaining all of bidding documents. The return of bidding document shall be accompanied by an evidence of delivery and acceptance; f. it is not permitted to change closing time for submission of bidding due to insignificant matters. In case of any change of closing time for submission of bidding, then such changes must be set forth in the addendum of public bidding document and be delivered to all bidding participants; g. opening of bidding document: 1) Procurement Committee ask willingness of at least 2 (two) representatives of bidding participants who are present as witnesses. If there are no witnesses from bidding participants who are present, Procurement Committee shall postpone the opening of bidding document box/container up to a certain time designated by Procurement Committee. If up to the designated deadline, no representative of bidding participant is present, the opening of bidding document box/container shall be carried out before 2 (two) witnesses other than Procurement Committee who are appointed in writing by Procurement Committee; 2) Procurement Committee examines content of bidding document box/ container and calculate amount of envelopes of the incoming bidding (excluding letter of resignation) and if the incoming bidding is less than 3 (three) participants, public bidding shall not be resumed and must be rearranged, and subsequently making re-announcement by inviting new prospective bidding participant; 3) opening of bidding document for every system shall be done as follows:

18 a) Procurement Committee opens the box and envelope I before bidding participant. b) Envelope I containing administration and technical data shall be opened and be made as attachment to minutes of opening for bidding document envelope I. c) Envelope II containing the price data shall be submitted subsequently by bidding participant if it is declared of qualifying technical and administration requirements. 4) Procurement Committee shall examine, disclose and read out before bidding participants the completeness of bidding document, consisting of: a) bidding letter containing period of validity of bidding but does not state bidding price; b) guarantee for original bidding; c) technical bidding document and other supporting document required in public bidding document. 5) Procurement Committee may not disqualify bidding at the opening time of bidding except for non punctual bidding; 6) Procurement Committee shall immediately prepare minutes of opening of bidding document for all incoming bidding; 7) after being read out clearly, minutes shall be signed by presented members of Procurement Committee and 2 (two) representatives of bidding participant appointed validly by bidding participants who are present; 8) In case of postponement of the opening of bidding, then the cause for such postponement must be stated clearly in minutes of opening for bidding (BAPP); 9) BAPP shall be distributed to representatives of bidding participant who are present without attaching any tender document. 7. Bidding evaluation shall be carried out pursuant to the terms provided for in the bidding document. 8. Preparation of Minutes of Bidding Result a. Procurement Committee draws conclusion from result of evaluation set forth in minutes of bidding result (BAHP). BAHP shall accommodate result of bidding implementation, including method of evaluation, the formula used to determination of winners sequence in the form of list of bidding participant. BAHP shall be signed by chairman and all members of Procurement Committee or at least two thirds of the total number of members of the Committee; b. BAHP shall be kept confidential up to signing of the contract; c. BAHP shall contain the following matters: 1) name of all bidding participants and bidding price and/or revised bidding price, from every bidding participant; 2) method of evaluation used; 3) formula used;

19 4) other information deemed necessary relating to bidding implementation; 5) date of preparation of minutes as well as numbers of bidding participants who qualify and not qualify at every phase of evaluation; 6) determination on sequence of 1 (one) prospective winner and 2 (two) reserved candidates. If there is no qualified bidding, BAHP shall include a statement that public bidding has failed, and a second bidding must immediately be carried out. In case there is less than 3 (three) bidding participants who qualify, then such bidding participants may be nominated as the prospective bidding winner. 9. Determination of Bidding Winner a. Procurement Committee determines prospective bidding winner based on result of evaluation; b. Procurement Committee prepares and submits report to Minister/Chairman of Institution/Head of Region to determine Bidding Winner. Such report shall be accompanied by nominated prospective winner and other explanation or statement deemed necessary as material for consideration to adopt a decision. c. Minister/Chairman of Institution/Head of Region shall determine Bidding Winner based on recommendation from Bidding Committee. d. Supporting data that is required to determine Bidding Winner are: 1) Public bidding document, along with addendum (if any); 2) Minutes of Bidding Opening (BAPP); 3) Minutes of Bidding Result (BAHP); 4) Summary of bidding process and tender results; 5) Bidding document of prospective bidding winner and reserved prospective winner that has been initialized by Procurement Committee and 2 (two) representatives of bidding participant; 6) In case of delay in determining Bidding Winner, which caused bidding/ guarantee for bidding expires, then a confirmation shall be provided to all bidding participants to extend letter of bidding and guarantee for bidding. The prospective bidding winner may resign without any sanction. 10. Announcement of Bidding Winner shall be made and notified by Procurement Committee to participants no later than 2 (two) business days after receiving letter determining bidding winner from Minister/Head of Institution/Head of Region. 11. Protest from Bidding Participant a. Bidding participant who object the determination of bidding winner shall be given opportunity to submit written protest no later than within a reasonable time. b. Protest shall be submitted to Minister/Head of Institution/Head of Region, along with proof of any deviation. c. Protest shall be submitted by bidding participants either separately or jointly. 12. Issuance of Decision Letter of Bidding Winner

20 a. Minister/Chairman of Institution/Head of Region shall issue Decision Letter of Bidding Winner as administrator of Cooperation Project, provided that: 1) There is no protest from bidding participant; or 2) Protest, which is addressed to the relevant officer, in fact mistaken, and was received after the lapse of period for such protest. b. Bidding participant who has been decided as winner must accept the decision. If the concerning person resigns and the period of bidding remains valid, the said resignation may only be done based on acceptable reason objectively by Minister/Chairman of Institution/Head of Region, provided that guarantee for bidding submitted by bidding participant shall become state property. c. As for the winner who resigns based on unacceptable reason and which period of validity remains valid, in addition to the fact that guarantee for bidding becomes state property, the winner concerned shall also subject to sanction in the form of prohibition to participate in public bidding of Cooperation Project for a period of 2 (two) years. d. If the first bidding winner that has been decided as the winner resigns, the decision can be done for the second winner in a row (if any), proved that: 1) Decision of the said second bidding winner shall firstly obtain decision from Minister/Head of Institution/Head of Region; 2) period of bidding for the prospective second bidding winner shall remain valid or has been extended. e. If of the prospective second bidding winner has also resigned, then decision over the winner may be done to the prospective winner of the third position in a row (if any), provided that: 1) Decision of the said bidding winner must first obtain decision from Minister/Head of Institution/Head of Region; 2) Period of validity of bidding for the third prospective bidding winner shall remain valid or has been extended; 3) Guarantee for bidding from the second prospective bidding winner shall become state property; 4) If the prospective second bidding winner resigns based on unacceptable reason, then the sanction as referred to in point 12 c may be imposed. f. If the prospective third winner resigns based on unacceptable reason, then the sanction as referred to in point 12 c may be imposed. Subsequently, Procurement Committee shall carry out re-arranged bidding, provided that the guarantee given for bidding from the third prospective bidding winner shall become state property. g. Decision Letter for Winner shall be made no later than 5 (five) business days after the announcement on decision of bidding winner and shall immediately be delivered to bidding winner.

21 h. One of carbon copies of the Decision Letter for Bidding Winner (without enclosure of agreement/contract) shall be delivered at least to the internal supervision unit. 13. Re-arranged Bidding Re-arranged Bidding shall be done based on the following considerations: a. bidding submitted has not met qualifications in bidding documents; b. there are only less than 3 (three) bidding that have met qualifications in bidding documents. PRESIDENT OF THE REPUBLIC OF INDONESIA, signed DR. H. SUSILO BAMBANG YUDHOYONO Copy conforms to the original, Deputy Cabinet Secretary Legal and Legislation Division signed Lambock V. Nahattands