Académique Documents
Professionnel Documents
Culture Documents
INTRODUCTION
1.1 Background
the government to its people. The existence of such adequate infrastructures hold a
crucial role not only as a tool to improve the economy, but also as part the basic
will attract investors, both local and foreign investor, to come invest their money in
budget to develop infrastructures from its National Budget. It increases 11, 77% of
the allocation on the 2013 Revised-National Budget (APBN-P) which was IDR 188
Transportation in the amount of IDR 32,5 trillion, Ministry of Energy and Natural
Resources in the amount of IDR 11,5 trillion, and Ministry of Education and Culture
in the amount of IDR 46,5 trillion.1 This number, however, is still not enough to
1
Asnawi Khaddaf, “Anggaran Infrastruktur 2014 Tembus Rp 200 Triliun”, from
http://microsite.metrotvnews.com/metronews/read/2014/02/09/2/214374/Anggaran-
Infrastruktur-2014-Tembus-Rp200-Triliun, (accessed at 29 September 2014)
1
the concept of public private partnership in the provision of infrastructure due to
(BAPPENAS), the fund needed for the infrastructure project during 2010-2014 is
IDR 1,429 trillion2. From that amount of money, the government can only afford to
provide IDR 511 trillion, which means there are gap in the amount of IDR 918
trillion that the government must fill in order to ensure the continuation of the
development of infrastructure. The public private partnership fills nearly half of the
gap which is IDR 407 trillion and the remaining gap are filled by community
responsibility3.
target of providing 100% of Indonesian citizen access to clean water by 2019, the
total investment needed is IDR 274,80 trillion while the allocation fund from the
National Budget will only cover IDR 90,70 trillion or 33% of the total investment4.
It is expected that the remaining gap can be covered from sources other than the
National Budget, one of them throughout the public private partnership scheme.
between the Government and the Business Entities in the Provision of Infrastructure
2
Dr. Ir. Gunawan Adji, MT, The Smart Handbook of Public Private Partnership: Konsep dan Praktik
Meningkatakan Investasi di Sektor Infrastruktur, Jakarta: Rene Publisher, p. 59
3
Ibid.
4
Direktorat Pengembangan Air Minum, “Investasi Pengembangan SPAM Masih Bergantung Pada
Dana Pemerintah” from http://www.ditpam-pu.org/berita-431-investasi-pengembangan-spam-
masih-bergantung-pada-dana-pemerintah.html (accessed January 6, 2015)
2
(“PR 67/2005”) jo. its amendments. The type of infrastructure services as defined
in such presidential regulation will depend on the needs and the offers that come
from the government. They are divided as the following5 (“Types of Cooperation”):
(a) transportation (sea, river or lake harbor, airports, railways and train
station);
(d) drinking water (building of raw water intake point, transmission lines,
(e) waste water (waste water treatment plant, collection networks and main
(h) oil and gas (processing, storage, transportation, transmission or oil and
gas distributions).
The public private partnership, factually, has been implemented since 1987
in the development of toll road that involved PT Marga Mandala Sakti. However,
the public private partnership has not yet widely applied at that current situation6.
The concept of public private partnership in Indonesia was originally first regulated
5
Praptono Djunedi. “Implementasi Public-Private Partnerships dan Dampaknya ke APBN”, Warta
Anggaran Edisi 6 Tahun 2007, p. 1-2
6
Dr. Ir. Gunawan Adji, MT, op.cit., p. 26
3
the occurrence of capital flight or where the capital was all gone abroad. Tackling
the situation, President Soeharto issued the President Decree Number 7 of 1998 on
Infrastructure.7 However, Indonesia couldn’t resist the effect of economy crisis and
eventually sacrificed the fund allocation for infrastructure and therefore such
One year earlier, government of Jakarta Province had applied the concept
Jaya (which was later acquired and changed its name to PT Aetra Air Jakarta) a 25-
year water concession in Jakarta. The two companies were granted different service
region with Palyja serving the western part of Jakarta and Thames serving the
eastern part of Jakarta.8 The initiative was taken due to the inability of PAM Jaya
to optimize its operation after receiving US$ 92 Million loan to improve their
operation for 20 years. World Bank as the lender later recommended a privatization
commanding the Minister of Public Work at that time Radinal Moochtar to conduct
cooperation with private parties. Eventually after signing the 600 pages of
concession agreement on June 1997, the transfer of operation from PAM Jaya to
7
Dr. Iwan E. Joesoef, SH., Sp.N., M.Kn. “Sejarah Perkembangan Kerjasama Pemerintah dan Swasta
dalam Pembangunan Jalan Tol di Indonesia” from
http://hukuminfrastrukturjalantol.blogspot.com/2012/07/sejarah-perkembangan-
kerjasama.html (accessed at September 1, 2014)
8
Husnullah Pangeran. “Urgensi Konsesi Infrastruktur Air Minum Indonesia”. from
http://infradevma.blogspot.com/2014/08/urgensi-konsesi-infrastruktur-air-minum.html
(accessed at 29 September 2014)
4
the private parties (Palyja and Thames) occurred on February 1998. 9 Both Palyja
and Thames (which was later acquired and changed its name to PT Aetra Air
Jakarta) are the first step of the involvement of private party in the development of
party in the development of water supply system under Law No. 7 of 2004 on Water
provides the development of water supply system in Indonesia which becomes the
“(1) The fulfillment of raw water requirement for household drinking water
purposes as referred to in Article 34 paragraph (1)10 shall be carried out by
means of developing the water supply system.
(2) The development of the water supply system as referred to in paragraph
(1) shall become the responsibilities of the Government and the regional
government.
(3) The state owned enterprises and/or local owned enterprises shall carry
out the development of water supply system.
(4) Cooperatives, private enterprises, and the community may participate
in the development of water supply system”
develop a water supply system through a state owned enterprise and/or local owned
enterprise, the government may invite cooperatives, private enterprises, and the
9
Andreas Hartono. ”Menjadi Saksi soal Privatisasi Air Jakarta” from
http://www.andreasharsono.net/2014/02/menjadi-saksi-di-pengadilan-soal.html (accessed at
September 12, 2014).
10
Article 34 paragraph (1) stipulates the development of water resources in the river area is
intended to improve the expediency/ benefit of the function of water resources to fulfill the need
of raw water for household, farming, industry, tourism, defense, mining, energy, transportation,
and for other needs.
5
community to also participate in developing the water supply system. The goals of
provider; and
The above goals are in line with the goals of Millennium Development Goals where
Indonesia took part as the member particularly on goal number seven which is
without sustainable access to safe drinking water by 2015 as its specific target12.
supply system through public private partnership, this concept continues to gain
articles, both printed and digital, which elaborate the cooperation scheme, type and
view and relate them as a privatization of nation’s vital object. The Article 33
“(3) The land, waters, and the natural resources within shall be under the
powers of the State and shall be used to the greatest benefit of the people.”
11
Ibid, Pasal 40 ayat (5).
12
Seafield Research and Development Services. “Millennium Development Goals and Targets”.
from http://www.srds.co.uk/mdg/8-goals.htm (accessed September 12, 2014).
6
Under the state control rights over those land, waters and natural resources,
the state shall guarantee the rights for every citizen to get waters for the fulfillment
of their daily needs by performing water management. The fact, however, shows
that most areas across Indonesia still face the difficulties to the availability and
access of clean water13. According to the World Bank on 2006, only 108 million
people out of 230 million people in Indonesia or more or less 47 percent who have
(more than half) do not have access to clean water. The World Water Forum in Den
Haag on March 2000 predicted Indonesia will be one among the countries that will
suffer for water crisis in 202515. Whereas, the fact shows that 6 percent of the water
potential in the world or 21 percent of the potential of water in Asia are located in
Indonesia. An ironical situation for a water-rich country where its people are unable
to enjoy such assets. The main cause is the weakness of the government through its
water management. This triggers imbalances between the need of water for daily
13
Anton Chrisbiyanto, “Indonesia Butuh Air Bersih”. from
http://nasional.sindonews.com/read/862939/18/indonesia-butuh-air-bersih (accessed
November 3, 2014).
14
Stevy Thioritz, “Kajian Solusi Krisis Air Bersih,”Jurnal Ilmiah Teknik Elektro, Informatika, Mesin &
Sipil”, Vol.4 No.1: 1-2
15
Ibid
7
DEVELOPMENT OF WATER SUPPLY SYSTEM ACCORDING TO
INDONESIAN LAW”
In accordance with the background that has been described above, the
question:
2. Describe the role of the government during the cooperation with the
8
1. Academically, this reasearch is expected to be used as referrence for future
particular and all law students accross the nations in general, particularly in
a. Conceptual approach, the research uses law principles, both positive law
research.
prevailing laws with a different degree that regulate the same issue and
horizontally that analyzes the prevailing laws with the same degree that
9
In this research the author uses normative legal research to identify the
concept and legal principle used to regulate the implementation of public private
partnership particularly on the development of water supply system and see the
synchronization with other laws such as Water Resources Law, PR 67/2005 jo. its
(MR 12/2010).
The types of data that the researcher is using in this research are:
a) Primary sources of laws, which is the related prevailing laws with the
b) Secondary sources of laws, which is the sources of laws that are in line
and linkages to the primary sources of law and may assist in giving
c) Tertiary sources of laws, which is the source of law that may improve
16
Peter Mahmud Marzuki, Penelitian Hukum, Jakarta: Kencana Prenada Media Group, p. 141
17
Ibid.
18
Ibid.
10
Meanwhile the primary data that the researcher is using is coming from an
interview with Bahtera Novinda S.H, a legal specialist of private company who
For the ease of understanding towards this research, either for the author in
term of writing and the readers in term of reading, the author prepares the
CHAPTER 1. INTRODUCTION
systematic writing.
SYSTEM
condition of water supply sytsem along with the involvement of private party in
along with the conditionally consitutional term from constitutional court, the
supply system, government and private party as subject of an agreement, and the
system.
11
CHAPTER 3. IMPLEMENTATION OF PUBLIC PRIVATE PARTNERSHIP IN
the determination of private party according the provisions of the laws starts from
study, the transaction of the cooperation project and the execution management of
the cooperation agreement. Also the stages on the implementation of public private
Providing the roles of the government during the cooperation period, the
determination of tariff along with its adjustment based on the prevailing law, the
CHAPTER 5. CLOSING
Becomes the closing of the research that contains the conclusions and
laws.
12
CHAPTER 2
entity and a private party, under which : (a) private party undertakes government
function for specified period of time, (b) the private party receives compensation
for performing the function, directly or indirectly, (c) the private party is liable for
the risks arising from performing the function and, (d) the public facilities, land or
other resources may be transferred or made available to the private party19. This
definition provides four elements of a public private partnership. The first element
is the situation where the private party take-over the role of government for a
specified period of time. It means during the cooperation period, the private party
would conduct any actions necessary to run the infrastructure that is being
cooperated. It, however, does not necessarily mean that the government has no
longer role in the agreement. During the cooperation period, the government acts
as the regulatory body to determine the tariff, issue related regulation, or any
19
Praptono Djunaedi, Op.cit., page 1 as quoted from Parente, William J., “Public Priavate
Partnerships” in Workshop on “Fundamental Principles and Techniques for Effective Public
Private Partnerships in Indonesia”, Jakarta, 2006
13
required action in relation to the cooperation.20 The second element that William J.
Parente highlighted is the compensation that the private party receives after
performing the function, both directly and indirectly. The compensation commonly
differs based on the agreement between the parties (government and private). In the
third element William J. Parente stressed that any risks arising during the
cooperation period between the government and private party is under the
responsibility of the private party. The last element shows the rights of private party
during the cooperation period, such as the resources or facilities given to them.
works to build or uprate the capacity of the infrastructure and also to operate and
maintain the infrastructure to increase its benefits22. The government in this matter
“GCA”), meanwhile the business entities mentioned are private entities in form of
20
Dwinanta Utama, “Prinsip dan Strategi Penerapan Public Private Partnership Dalam Penyediaan
Infrastruktur Transportasi, Jurnal Sains dan Teknologi Indonesia Vol. 12, No.3, 2010 page 1
21
The author will only focus on the cooperation between the GCA and private party based on the
Public Private Partnership theme.
22
Indonesia, PR 67/2005, Presidential Regulation Number 67 of 2005 on Public Private Partnership
in the Provision of Infrastructure, Article 1 number 3.
23
Ibid, Article 1 number 4
24
Ibid, Article 3.
14
a. suffice the financing requirement sustainably in the provision of
competition;
infrastructure;
d. encourage the use of user pay for the service received principle, or in
concession permit25. The form of the cooperation project will be determined based
on the agreement between the GCA and the entity to the extent that it is not contrary
b. openness, means the entire procurement process is open for Entity that
c. transparent, means all the terms and information related to the provision
25
Ibid, Article 1 number 5
26
Ibid., Article 5
27
Ibid., article 6
15
d. accountable, means the result of the Entity election shall be accounted
for;
conditions thus giving the advantages for both parties and the public by
f. mutual need, means the partnership with the Entity in the Provision of
both parties.
“(2) Production branches which are important for the state and which affect
the livelihood of the people at large shall be controlled by the state.
(3) The land and water and the natural resources contained therein shall be
controlled by the state and shall be used for the greatest prosperity of
the people.”
The definition of state’s control right is also provided in Article 2 of Law Number
16
contained therein, are at the highest hierarchical level controlled by the
State in its capacity as the whole people’s organization of powers.
(2) The state’s control right as referred to in paragraph (1) of this Article
confers the authority:
a. to regulate and administer the allocation, use, supply, and
maintenance of the earth, water, and airspace;
b. to determine and regulate legal relationships between people and
the earth, water, and airspace;
c. to determine and regulate legal relationships among people as well
as legal acts concerning the earth, water, and airspace.
(3) The powers which are derived from the state’s control right as referred
to in paragraph (2) of this article shall be used to achieve the utmost
prosperity in terms of democracy, welfare, and freedom for the society
and legal State of Indonesia which is independent, sovereign, just, and
prosperous.
(4) The authority to implement the state’s control right as referred to above
can be delegated, as required, and provided that it is not contrary to the
national interest, to Autonomous Regions and to adat-law communities
by way of a Government Regulations.
the year of 1945. It happens as the interpretations to the state’s control right has
never been the same28. According to Mohammad Hatta, controlled by the state does
not necessarily mean that the state itself turns to be entrepreneur, businessman, or
ondernemer. It is precisely correct to say that state’s power is in making rules for
the smoothness of economy, rules that prohibit the exploitation of the weak by the
28
J. Ronald Mawuntu, “Konsep Penguasaan Negara Berdasarkan Pasal UUD 1945 Dan Putusan
Mahkamah Konstitusi, “Jurnal Universitas Sam Ratulangi”, Fakultas Hukum, Vol.XX/No.3/April-
Juni/2012: 15-17
29
Ibid
30
Ibid
17
1. Control is sort of state ownership, meaning that the state through its
government is the only authorized party to determine the rights over it,
businesses.
regarding Judicial Review of Water Resources Law interpreted that the state’s
control right is not in the sense of owning, but it means that the state formulates the
right toward the important production branches and controlling many of the public
private parties to participate, to the extent that the five roles of the state/ government
as stated at the above are fulfilled and also the government and local government is
Along with the interpretation of Dr. Mohammad Hatta which was later
31
Ibid, p.19
18
declared that the state enterprise sector is to manage the paragraph (2) and (3) of
Article 33 of 1945 Constitution and in the financing of the state enterprise is funded
by the government, if the government does not have enough fund to finance, it may
ask for domestic and foreign loans and if the situation shows there is still not enough
fund after asking for domestic and foreign loans, it may be conducted together with
Spesifically for the judicial review on Water Resources Law filed by group
is a new discovery of the law made by the Constitutional Court in the framework
of interpretating the provision of written law (in this term it refers to Water
Resources Law) to the 1945 Constitution. Under the court’s ruling on the review of
32
Prof. A. Mukthie Fadjar, “Pasal 33 UUD 1945, HAM, dan UU SDA,” Jurnal Konstitusi Volume 2
Nomor 2 (September 2005) : 7.
33
See Constitutional Court Decision Number 058-059-060-063/PUU-II/2004 and Number
008/PUU-III/2005 regarding Judicial Review of Water Resources Law, p. 495
34
Yance Arizona, Skripsi: “Penafsiran Mahkamah Konstitusi Terhadap Pasal 33 Undang-Undang
Dasar Negara Republik Indonesia Tahun 1945 (Perbandingan Putusan Dalam Perkara Nomor 001-
021-022/PUU-I/2003 Mengenai Pengujian Undang-Undang Nomor 20 Tahun 2002 tentang
Ketenagalistrikan dengan Putusan Perkara Nomor 058-059-060-063/PUU-II/2004 dan 008/PUU-
III/2005 Mengenai Pengujian Undang-Undang Nomor 7 Tahun 2004 tentang Sumber Daya Air)”,
2007, p. 129
19
atau alasan putusan. Sehingga, apabnila Undang-undang a quo dalam
pelaksanaan ditafsirkan lain dari maksud sebagaimana termuat dalam
pertimbangan Mahkamah di atas, maka terhadap Undang-undang a quo
tidak tertutup kemungkinan untuk diajukan kembali (Conditionally
Consitutional”)”
The above highlight of the court’s ruling leads to a base to determine the
ruling are35:
again; and
d. The requirement for the re-examination of the related law is if the law in
The combination of the four elements above, according to Yance Arizona (2007),
provision of certain law(s) is not contrary to the 1945 Consitution to the extent that
the institution (government) in enforcing the related law complies with the
conditions given by the Consitutional Court. If the conditions are not fulfilled or
otherwise interpreted differently, the related law may still be re-examined by the
Consitutional Court.
35
Ibid.
20
2.4 Privatization in Indonesia
privatization, they will cease to be the owner of the entity or business. In Indonesia,
particularly related to taxes and public outcome and encourage private finance to
point of view, the objectives of privatization are to expand the market power and
increase competition; reduce the measurement of public sector and open new
market for private fund39. Meanwhile on political point of view, the objectives of
36
The Economic Times, “Definition of ‘Privatization’” from
http://economictimes.indiatimes.com/definition/privatization (accessed 8 October 2014)
37
Iman Santoso, “Kebohongan Privatisasi” from
http://ekonomi.kompasiana.com/bisnis/2013/10/05/kebohongan-privatisasi-597867.html
(accessed 8 October 2014).
38
Dewi Hanggraeni, “Apakah Privatisasi BUMN Solusi yang Tepat Dalam Meningkatkan Kinerja?
Article from Manajemen Usahawan Indonesia No. 6 Tahun 2009, page 27
39
Ibid., page 28
40
Ibid.,
21
3. Gain political support to fulfill the industrial demand and create more
privatization which among them are: (i) Public offering, sales of BUMN shares
through capital market; (ii) Direct placement, strategic sale, private placement,
trade sale. It means the sales of BUMN shares to other party is through negotiation,
generally through tender process; (iii) Management buyout (MBO), meaning the
ongoing effort or through selling the assets; (v) Sales of asset, separating the
BUMN’s troubled assets and selling it to the private party; (vi) Voucher scheme,
affordable price, which is later to be shifted with BUMN shares; (vii) Concession,
it means leasing the asset for a long term and therefore the holder of the concession
is entitled to run the business and is obliged to maintain the asset as well as to add
the asset if necessary; (viii) Leasing, means granting of right to operate a group of
asset for a short period of time, but the owner remains responsible to maintain and
add the asset; (ix) Management contract, a quite similar to the concept of Leasing
but the management cost will be based on the performance; (x) Contracting out,
providing opportunities for the private sector through a contract to conduct certain
functions; (xi) Employee Share Ownership Plan (ESOP), means the shares are
granted to the employee; and (xii) Privatization Trust Fund, means the ownership
using the privatization trust fund where the shares management are given by the
22
government to the trust fund that will manage the portfolios, receive the dividend,
The law that regulates the management of water is Water Resources Law,
Supply System (“GR 16/2005”) and four of its implementing regulations which are
Water Supply System (“MR 18/2007”), and Minister of Public Works Regulation
through Water Supply System Development and Support Body (hereinafter referred
achieving the goals of the regulation on the development of water supply system in
41
Ministry of Public Works, Minister of Public Works Regulation Number 12/PRT/M/2010 on
Guidelines on Business Cooperation for the Development of Water Supply System (MR 12/2010),
Official Gazette of Republic of Indonesia of 2010 Number 682, Attachment Chapter 1 paragraph
2.
23
order to give a maximum benefit for the country and the greatest prosperity of the
people42.
42
BPPSPAM (BPPSPAM 1), Tugas dan Fungsi BPP SPAM, from
http://www.bppspam.com/index.php?option=com_content&view=article&id=47&Itemid=57
(accessed October 20, 2014).
43
BPPSPAM (BPPSPAM 2), “KPS yang Telah Beroperasi”, from
http://bppspam.com/index.php?option=com_content&view=article&id=59%3Akps-yang-telah-
beroperasi&catid=43%3Akps&Itemid=71 (accessed at November 3, 2014).
24
Eastern Part of Jakarta
US$ 225 25 years (1997 PT Aetra Air
8 Concession
million – 2022) Jakarta
-6500 ℓ/sec
O & M in Contract PT Tirta
25 years (1998-
9 Cisadane Cisadane/ PT
2023)
-3000 ℓ/sec Traya
Concession in
Bintang Heiten
Tangerang City US$ 2,5 25 years (1997-
10 Jaya/Gadang
Residential Area million 2022)
Berhad
-50 ℓ/sec
BOT Lippo Karawaci US$ 10 25 years (1999- Lippo
11
-50 ℓ/sec million 2024) Karawaci
BOO Bintaro Jaya US$ 10 Pembangunan
12 1990
-100 ℓ/sec million Jaya
Concession Cikampek US$ 0,5 25 years (2000-
13 PT WATTS
-60 ℓ/sec million 2025)
BOO Bekasi (Kemang
US$ 10 PT Kemang
14 Pratama) 1993
million Pratama
-50 ℓ/sec
BOO Hunday
15 Industrial Estate US$ 5 million 1994 PT Hunday
-50 ℓ/sec
BOO Kota Legenda
US$ 2,5 PT Cikarang
16 (Residential Area) 1995
million Permai
-25 ℓ/sec
BOO Bukit Indah
US$ 10
17 Cikarang (Residential 1998 PT Bukit Indah
million
and Industrial Area)
BOT Subang
US$ 2,5 20 years (2005-
18 -50 ℓ/sec PT MLD
million 2025)
25
Uprating Gajah
20 years (2005- PT Tirta Gajah
19 Mungkur US$ 2 million
2025) Mungkur
-400 ℓ/sec to 600 ℓ/sec
BOT Bawean US$ 10
20 2004 APAC INTI
-250 ℓ/sec million
BOT Kabupaten -US$ 2,5
Sidoarjo million -(1998-2023) -PT Vivendi
21
-200 ℓ/sec -US$3,5 -(2005-2023) -PT Hanarida
-450 ℓ/sec million
BOT Badung US$ 10 25 years (1999- PT Tirtha
22
-300 ℓ/sec million 2020) Artha Buana
BOT Samarinda 25 years (2004-
23 US$ 5 million PT WATTS
-400 ℓ/sec 2029)
BT Banjarmasin 5 years (2005-
24 US$ 5 million PT Adhi Karya
-500 ℓ/sec 2010)
Table 1 Current PPP Operation in Indonesia (KPS yang Telah Beroperasi)
The above samples are public private partnership implementation in the
12/2010. The first sample of the implementation of public private partnership under
the regency of Tangerang and PT Aetra Air Tangerang44 offering a ready to drink
water from the water crane45. The 25 (twenty-five) years partnership in form of
44
Antaranews, “Aetra Air Tangerang Hanya Kenakan Tarif Rp4,5” from
http://banten.antaranews.com/berita/17941/aetra-air-tangerang-hanya-kenakan-tarif-rp45
(accessed December 11, 2014)
45
Aetra Air Tangerang, “Era Baru Air Layak Minum Di Tangerang” from http://www.aat.co.id/5-
highlight-ERA+BARU+AIR+LAYAK+MINUM+DI+TANGERANG.html (accessed December 11,2014)
26
concession agreement between the regency of Tangerang and PT Aetra Air
After a total failure in 1998 in promoting the public private partnership, the
government of Indonesia took a series of major steps to refine the public private
67/2005 jo. its amendments acts as the general guidelines for the public private
partnership for all types of infrastructure, meanwhile the guideline for the
responsibility of the central and local government. Both central and local
adequate water supply system will increase the fulfillment of rights to clean water.
Therefore the involvement of cooperatives, private entities, and the society, are
46
BPPSPAM (BPPSPAM 3), “Warga Akan Nikmati Air Bersih”, from
http://www.bppspam.com/index.php?option=com_content&view=article&id=85:warga-akan-
nikmati-air-bersih&catid=34:bam (accessed December 11, 2014)
47
Ministry of National Development Planning/National Development Planning Agency, Public –
Private Partnerships Infrastructure Projects Plan In Indonesia, Jakarta: Bappenas, 2013, page vii
27
restricted only on the circumstances where the government is unable to develop the
water supply system by themselves and the government is also enabled to conduct
however, where fifty-three percent of the Indonesian citizen do not have access to
clean water49 along with the goal number seven of the Millennium Development
Goals, where Indonesia takes part, which is to halve the proportion of people
system is inevitable.
Water Resources Law regarding the legality of the involvement of private party in
the development of water supply system. The involvement of this private party is
through the cooperation with the government whose guidelines are regulated under
(3) and Article 64 paragraph (8) of GR 16/200551. It regulates the whole process of
the cooperation in the development of water supply system starting from the
48
Constitutional Court Decision Number 058-059-060-063/PUU-II/2004 and Number 008/PUU-
III/2005 regarding Judicial Review of Water Resources Law, op.cit, p.494
49
Stevy Thioritz, loc.cit
50
Seafield Research and Development Services, loc.cit
51
Article 37 paragraph (3) of GR 16/2005 states ”Dalam hal BUMN atau BUMD sebagaimana
dimaksud pada ayat (2) tidak dapat meningkatkan kuantitas dan kualitas pelayanan SPAM di
wilayah pelayanannya, BUMN atau BUMD atas persetujuan dewan pengawas/komisaris dapat
mengikutsertakan koperasi, badan usaha swasta, dan/atau masyarakat dalam penyelenggaraan
di wilayah pelayanannya.”
Article 64 paragraph (8) of GR 16/2005 states “Pedoman tentang tata cara pelelangan dan
penyusunan perjanjian penyelenggaraan, serta tata cara penyerahan aset sebagaimana
dimaksud pada ayat (4), ayat (5), ayat (6), dan ayat (7) diatur lebih lanjut dengan Peraturan
Menteri”.
28
planning of the cooperation project, preparation of pre-Feasibility Study52 of
boards who are assigned to carry out the authorities in the sense of public law
(government bodies) and is only authorized upon the award of clear authority
approved by the public law; and (ii) Legal entities which have the authority to act
for and on behalf of the state to carry out the legal actions according to the private
law53. Public law means the law that regulate the relationship between the state and
state instruments or the relationship between the state and the citizens. Meanwhile
the private law means the law that regulates the relationship between one person to
52
Feasibility Study (Studi Kelayakan), according to Business Dictionary, is an analysis and evaluation
of a proposed project to determine if it (i) is technically feasible; (ii) is feasible within the
estimated cost; and (iii) will be profitable. Feasibility study is conducted where large sums are at
stake.
53
Iwan E.Joesoef, “Perjanjian Pengusahaan Jalan Tol (PPJT) Sebagai Kontrak Bisnis Berdimensi
Publik Antara Pemerintah Dengan Investor (Swasta) Dalam Proyek Infrastruktur, Jurnal Magister
Hukum Vol.2 No.1, Februari 2000, p. 43-44.
29
to the 1945 Constitution54. In running the government, the president is assisted by
the ministers who are appointed and dismissed by the president himself 55. Each
the local government consists of local government level I and loval government
level II, which are Governor, Regent, or Mayor and local instrument as the elements
of local government. The local government is entitled to issue local regulation and
In acting as the public legal entity, the government is entitled to regulate the
people by issuing various laws and regulations. In the other hand, on the
circumstance where the government is acting as private legal entity, the government
is not entitled to issue a binding public policy. As a private legal entity the
government may enter into a legal relationship with other legal subject to form a
legal action in the sense of private law is when a state owned enterprises (“SOE”)
in a national level or local owned enterprises (“LOE”), whose all or majority of its
shares belongs to the state through a direct share subscription that comes from the
other legal entity. There are two types of SOE, which are59:
54
Article 4 of the 1945 Constitution states “President of the Republic of Indonesia shall hold the
power of government in accordance with the Consitution.” Indonesia, 1945 Constitution, art 4.
55
Article 17 paragraph (1) and (2) of 1945 Constitutiion.
156 Indonesia, Second Amendment to the 1945 Consitutiton, art 18 paragraph (6)
57
Joesoef, op.cit., p. 53
58
Indonesia, State Owned Enterprise Law, Law Number 19 of 2003, State Gazette Number 70 of
2003, Supplement to State Gazette Number 4297, art 1 number 1. (hereinafter shall be referred
to as “State Owned Enterprises Law”)
59
There used to be three types of SOE, which are public company (Perum), perusahaan jawatan
(Perjan), and perusahaan perseroan (Persero). Article 93 paragraph (1) of Law Number 19 of 2003
30
1. Public Company (Perusahaan Umum “Perum”)
Perum is the type of SOE whose all of its capital belong to the state and not
divided into shares, which is intended to the public benefit in the form of
procurement of high quality goods and/or services and also to seek profits
quality goods and/or services for the public benefit which is affordable for the
people, the Perum is applying the healthy company principle 61. The Perum
to the President attached with the considerations that have been reviewed by
Persero is a SOE in the form of limited liability, whose capitals is divided into
shares where all or at least 51% (fifty-one percent) of its shares belong to the
state which main goal is to seek profit66. Persero is also subject to Law Number
on State Owned Enterprises states that within 2 (two) years following the implementation of this
law, all SOE in the form of Perjan shall transform into Perum or Persero. Ibid, art 93
60
Ibid, art 1 number 4
61
Ibid, art 36 paragraph (1)
62
Ibid, art 35 paragraph (2)
63
Technical Minister is the minister who has the authority to regulate sectorial policy where the
SOE is doing its business. Ibid, art 1 number 6.
64
Ibid, art 35 paragraph (1)
65
Badan Usaha, “Perusahaan Umum (Perum)”, from http://badanusaha.com/perusahaan-umum-
perum (accessed November 26, 2014)
66
State Owned Enterprise Law, op.cit., art 1 number 2
31
40 of 2007 on Limited Liabilities (“Limited Liabilities Law”)67 because it is in
the form of limited liability. Public Persero68 also shall comply with the
by Minister to the President attached with the considerations that have been
intended to70 (i) provide high-quality and strong competitiveness goods and/or
services and (ii) seek for profit in order to increase the company value. The
Meanwhile the form of business entity in the local government level is Local
Local Government:
Form of Local-Owned Enterprises, there are two form of LOE which are:
67
The provision of Article 11 of State Owned Enterprise Law regulates that all provisions and
principle of Law Number 1 of 1995 on Limited Liabilities apply to Persero, but as of the issuance
of Law Number 40 of 2007 on Limited Liabilities, the old version is revoked. Therefore Persero is
subject to Law Number 40 of 2007 on Limited Liabilities by the laws. Ibid, art 11.
68
Article 1 number 3 of State Owned Enterprise Law defines Public Persero as “Persero whose
capital and the amount of its shareholders meet certain criteria or Persero that performs public
offering in accordance with the prevailing laws in capital market. Ibid, art 1 number 3.
69
Ibid, art 10 paragraph (1) and (2).
70
Ibid, art 12
32
1. Local Company (Perusahaan Daerah “PD”)
1962 on Local Company whose all or part of its capital belongs to separated
established with a local regulation, (ii) all or part of its capitals come from
separated local wealth, unless otherwise regulated by the prevailing laws; (iii)
its business purpose is to seek profit as the fund for local development, (iv) led
(v) the existence of a board of local company whose duties and authorities are
further regulated under government regulation and (vi) the highest authority is
not on the annual general meeting shareholders but under the head of local
establishment with a local regulation, the local company will get the status as
legal entities after receiving the legalization from the authorized institution
71
Damang SH, “Perusahaan Daerah”, from http://www.negarahukum.com/hukum/perusahaan-
daerah.html (accessed November 26, 2014)
72
Indonesia, Local Company Law, Law Number 5 of 1962 on Local Companies, State Gazette No.
10 of 1962, Supplement to State Gazette Number 2387, art 5 paragraph (2).
73
Ibid, art 2
33
Indonesia are PDAM, PD Pasar Jaya, Bank Pembangunan Daerah, PD Rumah
Potong Hewan.
2. Limited Liability
LOE in the form of limited liability shall be subject to the provisions of Limited
accordance with the provisions of the Limited Liabilities Law. Considering its
status as a limited liability company, this type of LOE issues number of shares
in which the possession of the shares may be obtained by the local government,
local company, private parties and the society with a bigger composition
possessed by the local government and local company76. During the operation,
the local company may be transformed into a limited liability form by the
limited liability, and (iii) making a notarial deed as the establishment of limited
liability.
74
The provision on article 3 of Minister of Home Affairs Regulation Number 3 of 1998 on the Legal
Form of Local Owned Enterprises stipulates that the local company in the form of limited liability
is subject to Law Number 1 of 1995 on Limited Liabilities, but as of the issuance of Law Number
40 of 2007 on Limited Liabilities, the old version of the limited liabilities law is revoked. Therefore
LOE is subject to Law Number 40 of 2007 on Limited Liabilities by the laws.
75
Ministry of Home Affairs, Regulation on the Legal Form of Local Owned Enterprises, Minister of
Home Affairs Regulation Number 3 of 1998 on the Legal Form of Local Owned Enterprises, art 3
paragraph (2).
76
Ibid, art 8
77
Ibid, art 4
34
From the above explanation it may be concluded that the government as the
1. Central government, which is the president, including the ministry and central
2. Local government, which means the level I local government (governor), level
The business entities in Indonesia are classified into legal entities and non-
legal entities78. These are in line with the provision of Article 5 paragraph (1) and
(2) of Law Number 25 of 2007 on Investment that stipulates that the domestic
businesses, for the foreign investment, however, must be in the form of limited
liability based on the Indonesian law, unless otherwise regulated by the laws79.
Pursuant to the provisions of the prevailing laws, the private entities that are mostly
1. Limited Liabilities
78
Bimo Prasetio, Pamela Permatasari, Fetroki Rhomanda, dan Dwinanda Febriany, “Jenis-jenis
Badan Usaha dan Karakteristiknya” from
http://www.hukumonline.com/klinik/detail/lt4f51947253585/jenis-jenis-badan-usaha-dan-
karakteristiknya (accessed November 27, 2014)
79
Indonesia, Investment Law, Law Number 25 of 2007 on Investment, State Gazette Number 67 of
2007, Supplement to State Gazette Number 4724. Art 5 paragraph (1) and (2).
80
Under several regulations that regulate the cooperation between the government and private
parties, such as GR 13/2010, MR 12/2010, Minister of National Development Planning/Head of
National Development Planning Agency Regulation Number 4 of 2010 on General Guidelines for
the Implementation of the Cooperation Between the Government and Business Entities in the
Provisions of Infrastructure. (“MR 4/2010”), the private entities that may enter into an
agreement with the government are limited liabilities, cooperatives, SOE, and LOE.
35
According to Limited Liabilities Law, limited liability company means a legal
divided into shares and which fulfils the requirements stipulated under the
Limited Liabilities Law and its implementing regulations. In order to gain the
status as a legal entity and be able to start its business, the process that needs to
be done are:
1) Obtaining an establishment deed from the notary that contains the article of
company81;
2) At the latest of 60 (sixty) days as from the date on which the deed of
application to the Minister of Law and Human Rights to obtain the Minister
of Law and Human Rights’ Decree with regard to the ratification of the
services82;
3) Minister of Law and Human Rights will conduct the registration of the
4) In 14 (fourteen) days after the issuance of the Minister Decree, the Minister
81
Indonesia, Limited Liabilities Law, Law Number 40 of 2007 on Limited Liabilities, State Gazette
Number 106, Supplement to State Gazette Number 4756. Art 8 paragraph (1)
82
Ibid, art 9 and art 10
83
Ibid, art 29 paragraph (1)
84
Ibid, art 30
36
The limited liability company will obtain the status as the legal entity on the
issuance date of the Minister of Law and Human Rights Decree regarding the
legalization of legal entity85. Under the notarial deed of establishment and the
legalization of it from the minister decree, the limited liability company must
apply for other legal document of the company such as Business Domicile
(Tanda Daftar Perusahaan) and Business License (Izin Usaha)86 to enable the
2. Cooperatives
entity, with the separation of the wealth of its members as the capital to run the
business, that fulfills the aspiration and the mutual needs in the economic,
social, and culture sectors in accordace with the values and principle of the
cooperative87 and aims to improve the prosperity of its member in particular and
in this matter is the family principle89. Along with a limited liability company,
85
Ibid, art 7 paragraph (4)
86
Bimo Prasetio and Dwinanda Febriary, “Prosedur Perizinan Usaha Kecil”, from
http://www.hukumonline.com/klinik/detail/lt4ec1e7d00cf43/prosedur-perizinan-usaha-kecil
(accessed December 2, 2014).
87
Indonesia, Law On Coopeartives, Law Number 17 of 2012 on Cooperatives, State Gazette Number
212 of 2007, Supplement to State Gazette Number 5355. Art 1 number 1.
88
Ibid, art 4
89
Ibid, art 3
37
establishment in Indonesian language and obtain the legalization as legal entity
2.8 The Definition and the Coverage of Public Private Partnership in the
Provision of Infrastructure
Public infrastructure can be defined as facilities which are necessary for the
functioning of the economy and society91. In general, the public infrastructure can
infrastructure means all infrastructures that are considered to be essential for day-
to-day economic activity, such as transportation facilities and utility networks (for
infrastructures that are considered essentials for the structure of society, such as
90
Ibid, art 9
91
E.R. Yescombe, Public-Private Partnership: Principle of Policy and Finance, Oxford: Butterworth-
Heinemann, 2012, p.1
92
Ibid.
93
Ibid.
94
Ibid.
95
Ibid.
38
usefulness of infrastructure96 with the types of infrastructure as described in Types
Indonesia and the above definition that covers the development of water supply
system is economic hard and soft infrastructure because it covers the physical
facilities and also services. The provision of this infrastructure is conducted through
the provision of infrastructure between the GCA and business entity which is
stipulates that other than GCA, the director of SOE or LOE98 who are calling to
public bidding99.
96
Indonesia, Presidential Regulation Number 13 of 2010 on Amendment to Presidential Regulation
Number 67 of 2005 on Cooperation Between the Government and Business Entity in the Provision
of Infrastructure, art 1 number 3
97
Ibid, art 1 number 5
98
Ministry of Public Works (MR 12/2010), op.cit., art 1 number 15
99
Indonesia (PR 13/2010), op.cit art 1 number 6
100
Rina Kartika Sari, Thesis: “Klausa Imbalan Dalam Perjanjian Kerjasama Antara Pemerintah
Dengan Swasta: Studi Kasus Perjanjian Kerjasama Antara PDAM DKI Jakarta Dengan PT Aetra Air
Jakarta, 2011, p. 26-29 as quoted from Edward Farquharson et al., How to Engage With The
39
1. Management and Lease Contract
Under the management and lease contract, the private party takes over the
management of the government’s business entity for certain period of time, but
the ownership of the infrastructure project and decision to invest remain under
where the government pay the private party to operate the facility (public
b. Lease contract, which means the form of public private partnership where
the government leases the asset to the private party with certain amount of
payment and the private party is responsible for the operational risks.
2. Concessions
Under the concession form, the private party takes over the management of the
government’s business entity during the period of time given, where during
such time the private party is entitled to operate the facilities of the
infrastructures and therefore shall be responsible for the investment risks. The
partnership the private party rehabilitates the existing facility, then operate
it afterwards and also maintain the facility at its own risks during the
cooperation period in which at the end of the concession the private party
Private Sector in Public Private Partnership in Emerging Markets, Washington DC: the World
Bank, 2011 p. 149-151
40
b) Rehabilitate, Lease or Rent, and Transfer (RLT), in which under this form
of partnership the private party rehabilitates the existing facility at its own
risks, then the private party leases the facility from the government and also
operate and maintain the facility during the cooperation period at its own
public private partnership where the private party builds additional facility
rehabilitate the existing asset, then operate and maintain it at the same time
at its own risks during the cooperation period to be handed over at the end
3. Greenfield Projects
The cooperation on the greenfield project means the private or a joint venture
public-private builds and operate a new facility. The types of greenfield projects
are as follows:
a) Build, Lease and Transfer (BLT), which means the form of public private
partnership where the private party is building a new facility at its own risks,
the facility from the government and operate the facility at its own risk until
the end of the cooperation period. The government under this form of
41
partnership generally provides revenue bond101 by giving a long term
b) Build, Operate and Transfer (BOT), which means the form of public private
partnership where the private party builds a new facility at its own risks,
operating the facility at its own risks, and hand it over to the government at
the end of the cooperation period. The private party may or may not have the
asset during the cooperation period. The government under this form of
c) Merchant, which means the form of public private partnership where the
government does not provide any revenue bond and therefore the private
party bears with the construction, operation and the market risks of the
d) Rental, which means the form of public private partnership where the
electrical utility or the government hires a power plant that is movable from
the private party for period between 1 to 15 years. The private party locates
101
Revenue bonds are bonds that are backed by the revenue generated by the specific project
being financed by the bond issue. In other words, the money raised by the bond offering finances
the project, and the project – once complete – generates the revenues to pay the interest and
principal on the bonds. Anonymous, “What Are Revenue Bonds?”, from
http://news.morningstar.com/classroom2/course.asp?docId=5394&page=2 (accessed
December 4, 2014)
102
Minimum revenue guarantee is given because the public private partnership infrastructure
project can be very risky due to high initial investment costs and construction risks, high
operating and maintenance costs and long-term concession periods when private partners need
to gain enough revenue for the repayment of all costs and for their profit. The concept of
minimum revenue guarantee presents one of the most attractive solution for this risky
infrastructure public private partnership project where the private partner’s revenues are based
on the usage of a built infrastructure and the government grants to the private party a minimum
level of revenues for a concession period. Real Options Consulting Ltd., “The Minimum Revenue
Guarantee Concept”, from http://www.realoptions.eu/minimum-revenue-guarantee-concept/
(accessed December 4, 2014)
42
and operate the facility at its own risks during the cooperation period. The
purchase agreement, for example the agreement about the purchase of power
4. Divestitures
Under the cooperation in the divestitures form, the private party purchases the
stocks of SOE through the sales of assets, public offering or mass privatization
a) Full, where the government sell 100% shares of SOE to the private party
b) Partial, where the government sell a portion of SOE shares to private party
(operator, investor and others). The role of private party herein indicates or
does not indicate the management of the facility by the private party.
According to E.R. Yescombe, the more useful way to classify the form of
public private partnership is based on the nature of the service and risk transfer
inherent in the cooperation agreement103. Under this basis, the public private
partnership can be split into two main categories which are usage-based and
is mostly applied105. Under this form of partnership, the government grants the
private party the right to design, build (or rehabilitate or expand), maintain, operate
and finance the government’s infrastructure for certain period106. During the
103
E.R.Yescombe, op.cit., p.13
104
Ibid.
105
Rina Kartika Sari, op.cit., p.30-31
106
Ibid.
43
cooperation period, all operational responsibility including but not limited to design
risks, financing, construction, operational and also the risks of asset demand usage
are under the responsibility of the private party107. The private party will receive
the return from the usage of the facility. The sample of the implementation of public
transportation (toll road, airports, harbor, railways and others), water supply system,
to its involvement in the usage-based form, which are designing, financing, building
is under the usage-based form, the payment received by the private party from the
government as return is usually from the end-user (i.e. toll road user or water
costumer), in the other hand, the private party – under the availability-based – will
receive the payment from the government based its service or availability (or
The partnership or cooperation form shall reflect the allocation risks, financing
107
Ibid.
108
E.R. Yescombe loc.cit.
109
Rina Kartika Sari, loc.cit.
110
Ibid.
44
responsibility and the management status of asset being cooperated111. The
1) Build, operate transfer contract, covers the entire water supply system
infrastructure up to the service and tariff invoice to the customers or only for
2) Other partnership form in accordance with the prevailing laws that regulate the
infrastructure.
In general, the ministry of public works through BPP SPAM states that there
are basically six modalities of public private partnership with numerous variations
and combinations according to the aims and scopes if requires activities113. Those
five modalities are (i) service management, (ii) management contract, (iii) lease
contract, (iv) build, operate, transfer (BOT), (v) rehab, operate, transfer (ROT) and
(vi) concession contract. The selection of the form that will be used in the
3) Transfer of technical and management skill from the private party to the public
sector.
111
Ministry of Public Works (MR 12/2010), op.cit., attachment p.9
112
Ibid.
113
Ministry of Public Works-BPP SPAM, Indonesia Water Supply: Infrastructure Public Private
Partnership Opportunities, Jakarta: BPP SPAM, 2010, p.9
114
Ibid
45
The MR/2010 stipulates that there are two types of partnership in the development
system with the network system and treatment technology in the area, region or
district that has not been covered with the organizing SOE or LOE’s water
improve the quantity and quality of service in the development of water supply
the most common types of public private partnership that are applied in Indonesia
by referring to the table from BPP SPAM above are concession and BOT. The form
that will be selected usually taking into consideration to one or more of the
following matters118:
1. The party that will be responsible for the project risks; if the private party is the
one that is responsible, the implementation form will be concession. But if the
government bears with all the risks (i.e. payment for the private party from the
115
Rina Kartika Sari, op.cit., p. 42-43
116
Ministry of Public Works (MR 12/2010), op.cit., art 6
117
Ibid., art 24
118
Rina Kartika Sari, op.cit., p.43-44
46
2. The current condition of the project prior to the cooperation; if the physical
usually BOT/BTO, however if there are already assets or facilities of the project
in which the private party only adds several asset, the implementation form is
usually concession;
3. The ownership of the assets following the cooperation period; if the assets of
the asset remain at the private party possession the implementation form would
be BOO119.
4. The payment system received by the private party; if the payment is directly
received from the user or group of user and government, the implementation
5. The private party scope of work; if the scope of works involves physical
development the type of form can be in the form of BOT, BTO or BLT.
However if the scope of works only covers asset management without any
contract.
119
BOO, stands for Build, Own, Operate, is a type of public private partnership in which a
government entity sells to a private party the right to construct a project according to agreed
design specifications and to operate the project for a specified time, but unlike BOT concept the
private party owns the project and does not have to transfer it to the government entity at the
end of the term. US Practical Law, “Build, Own, Operate (BOO)”, from
http://us.practicallaw.com/4-501-4896 (accessed December 8, 2014)
47
CHAPTER 3
As of 2013, the proportion of the people of Indonesia who have the safe
access to drinking water have reached 67, 7%120. The government of Indonesia
plans to increase the achievement up to 100% in 2019 under the National Medium-
which are government, local government, private party and the society121. The
current existing condition and water coverage target on year 2019 are described as
follows:
67,7
100
65,1
63,5
44,2
46,5
48,8
48,7
48,3
48,3
47,8
47,7
47,7
47,6
37,5
50
0
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
Year
Table 2. Existing Condition and Water Coverage Target122
120
Pusat Komunikasi Publik Kementrian Pekerjaan Umum, “Target 100 Persen Capaian Akses Air
Minum pada 2019” http://pu.go.id/berita/9790/Target-100-Persen-Capaian-Akses-Air-Minum-
pada-2019 (accessed December 15, 2014)
121
Ibid.
122
Source: Ir. Tamin M. Zakaria Amin, M.Sc, MBA (Head of BPPSPAM) Slide Presentation,
“Pengembangan Sitem Penyediaan Air Minum Di Indonesia 2015-2019”
48
The GCA is enforcing the cooperation project of the public private partnership in
project, the GCA conducts identification and selection to the potential project to be
done under cooperation project. The process of identification and selection of the
b. The suitability of the location of the project with the Spatial Plan125;
123
Ministry of Public Works (MR 12/2010), op.cit., art 12
124
Ministry of Public Works (MR 12/2010), op.cit., attachment p. 2-3
125
According to Minister of Public Works Number 16/PRT/M/2009 on Guidelines for the
Preparation of Regional Spatial Plan, Spatial Plan means the result of the spatial planning in the
area which because an integral geography along with all the relevant element which boundary
and system are determined based on administrative aspect.
126
Indonesia (PR 67/2005), op.cit., art 8-9
49
the understanding and agreement in the land procurement plan for the development
and public consultation will determine the project priority and will be declared
publicly128.
between the parties; and (iii) a cooperation project that ensures the greatest benefit
components as follows130:
1. Legal Study
regulations. The stages in conducting the institutional analysis covers: (i) ensure
the authority of GCA in conducting the cooperation project; (ii) determine the
working unit, as well as the roles and responsibilities of the working unit, and
the reporting system; (iii) determine and prepare the institutional regulation
body; (iv) determine the type of licenses/approvals necessary; and (v) ensure
that the cooperation project is executed in accordance with the prevailing laws
and regulations.
127
Indonesia, Land Procurement For The Development of Public Interests Law, Law Number 2 of
2012, State Gazette Number 22 of 2012, Supplement to State Gazette Number 5280, art 1
number 8.
128
Indonesia (PR 67/2005), loc.cit.
129
Ministry of Public Works (MR 12/2010), op.cit., attachment p. 3-11
130
Ibid.
50
2. Technical Study
prepare the appropriate preliminary plan technically; identify and appraise the
assets necessary and prepare the list of government assets that will be used for
the project; estimate and determine the revenue, capital expenditure (Capex),
market analysis, financial analysis, and tariff analysis. The social cost-benefit
to the effectivity, punctuality, use of funds and public resources during the
project period.
service; appraise the approximate demand and capability of the user to pay,
required standard services and payment performance; determine the sources and
level of demands with various scenarios; do the survey on the interests of the
51
Tariff analysis aims to review the policy of tariff determination, adjustment
to identify the risks and allocate them to the most capable party to deal with the
issue.
The form of cooperation must reflect the risks allocation, the party responsible
for financing and the status of cooperation assets management. The type of form
guarantee aims to reduce the risks for business entity. The government
131
The business entity responsible for the infrastructure guarantee fund in Indonesia is PT
Penjaminan Infrastruktur Indonesia (Persero) (also known as Indonesia Infrastructure Guarantee
Fund), a state-owned enterprise established to response the need for adequate assurance
against the political risks inherent in infrastructure investment.
52
7. Procurement of Business Entity Plan
procurement, appraisal form and the criteria in evaluating the bidding document
as well as the procurement process, and (iii) plan for the stages on the
The term sheet of cooperation agreement contains various terms and conditions
done by the business entity, the period of the cooperation agreement as well as
tariff and the duration as well as its adjustment mechanism, investment plan,
majeure events, warranties of the parties, language usage, and the prevailing
begins with the plan of procurement of business entity. The plan of procurement of
consisting of chairman, vice chairman, secretary and also acts as member, and
132
Ministry of Public Works (MR 12/2010), op.cit., attachment p. 15-18
53
several members. The members of procurement committee must come from the
background that understand, know and master at the procurement procedures, scope
water supply system, technical aspects and financial aspects. Every member of
will have to arrange for the schedule for the procurement of business entity by
taking into consideration an enough time allocation to conduct all the stages on
prepare for the concept for the announcement of the procurement meanwhile the
GCA performs the market sounding in order to get input and identify the interests
of potential investors to the cooperation project being offered. The market sounding
can be performed through a seminar, workshop or through a road show. The result
of the market sounding by GCA can be used as reference for the procurement
cooperation project. The calculation of owner estimate covers the investment costs
133
Ibid.
134
Ibid.
135
Ibid.
54
supervision costs, operational and maintenance costs as well as the land acquisition
costs (if any)136. The calculation of owner estimate shall consider the things that
may affect the cooperation project. Upon the completion of the calculation, the
GCA will determine the owner estimate made by the procurement committee.
Having completed the owner estimate, the next stage that follows is the
detais138:
invitation to the bidder and general procurement provision that shall cover140:
136
Ibid.
137
Ibid.
138
Ibid.
139
Ibid.
140
Ibid.
55
c. prevailing language in the bidding document, the writing of bidding price,
bidding currency, the validity period of the bidding, bid bond, bidding form and
d. the cellophane and tagging of the bidding document cover, submission deadline
also prohibition of changing and withdrawal of the bidding document that has
been submitted;
f. evaluation system of the bidding document that covers criteria, formulation and
evaluation guidelines;
committee based on the term sheet of the cooperation agreement which has been
l. form of cooperation plan and the business form based on the study results to the
cooperation project;
56
n. form of bid bond141 in bank guarantee issued by a national bank or foreign bank
that has a branch in Indonesia along with the amount of bid bond in form of
foreign bank that has a branch in Indonesia along with the amount of
project;
p. non-disclosure agreement signed by the bidder, declaring that the content of the
bidding document can be used by the bidder for purpose other than participating
party without prior written approval from the procurement committee; and
contain the name and address of GCA who will conduct the procurement of
141
Bid bond is a form of security offered by a bidder to the party soliciting the bid which guarantees
that the bidder will enter into a contract within a specified period of time and will furnish any
required performance and labor and material bonds. University of Colorado, “Bid Bond”, from
http://www.colorado.edu/engineering/civil/db/DBS/glossary.cgi?word=Bid+Bond (accessed
December 22, 2014).
142
Performance bond is a bond issued by a surety company which guarantees the client that if the
contractor fails to complete the project in accordance with the terms of construction agreement
(in this term means cooperation agreement), the surety company will either complete the
contract itself, or arrange for a client-approved contractor to complete the contract. University
of Colorado, “Performance Bond”, from
http://www.colorado.edu/engineering/civil/db/DBS/glossary.cgi?word=Performance+Bond
(accessed December 22, 2014)
143
Ministry of Public Works (MR 12/2010), op.cit., attachment p. 18-38
57
business entity, brief description of the cooperation project, cooperation project
estimation value and the requirement of the bidder candidate, and the place, date
and time to take the PQ Document144. The sample announcement of PQ for water
Having taken the PQ Document, the bidder shall submit the PQ Document back to
144
Ibid.
145
Source BPPSPAM, from http://www.bppspam.com/files/Pengumuman%20KPS.pdf (accessed
December 22, 2014)
146
Ministry of Public Works (MR 12/2010), loc.cit
58
the procurement committee at the determined date147. The procurement committee
will evaluate and clarify the PQ Document in order to determine the list of bidders
who pass the prequalification148. If the bidders who pass the prequalification are
less than 3 (three) participant, the procurement committee will conduct re-
there is no additional bidders who pass the re-prequalification or the total bidders
are less than 3 (three) participant, the procurement committee may proceed to the
procurement committee. The bidders who do not pass the prequalification are
(seven) days following the announcement date and the procurement committee will
following page153:
147
Ibid.
148
Ibid.
149
Ibid.
150
Ibid.
151
Ibid.
152
Ibid.
153
Source: Indonesia Investment Coordinating Board (BKPM), from
http://www.bkpm.go.id/contents/news_detail/106901/Announcement+of+the+Pre-
Qualification+Result+for+the+41+MLD+Bulk+Water+Supply+Public+Private+Partnership+%28PP
P%29+Project+in+Bandar+Lampung+%28%E2%80%9CBandar+Lampung+PPP+Project%E2%80%
9D%29#.VJjLCsjts (accessed December 23, 2014)
59
Picture 2. Announcement of PQ Result on Bandar Lampung Water Supply System Project.
Having declared passing the prequalification, the bidders will continue their
journey in the bidding process. The bidders must collect the bidding documents
60
in the bidding document154. The bidding document consists of 2 (two) covers in
which each covers contains related document. The cover number I contains
financial documents. The administrative documents consists of: (i) Proposal Letter,
signed by the directors of the bidder, (ii) Bid Bond, (iii) Company Structures, (iv)
The technical documents contains the proposal in running the project from
the bidder that consist of: (i) technical proposal of the project, (ii) technical
development plan, (iii) operational and management system plan, (iv) investment
and operational financial plan, (v) project financial analysis, (vi) capability on
financial capacity, (vii) performance standard, (viii) tariff structures, (xi) public
relation concept, (x) recruitment and development of human resources, and (xi)
plan in terms of financial projection of the bidder if selected as the winner of the
procurement process. The financial documents consist of156: (i) projection of capital
costs, (vi) projection of costumers relation costs, (vii) projection of profit and loss,
(viii) projection of balance sheet, (ix) projection of project cash flow, (x) projection
of investor cash flows, and (xi) projection of debt payment schedule. The financial
154
Ministry of Public Works (MR 12/2010), loc.cit
155
Ibid.
156
Ibid.
61
document also contains of tariff calculation or other remuneration or rental fund or
other costs that have been calculated in accordance with the written guidelines of
the bidding documents157. The bidding documents are directly submitted by the
bidder to the procurement committee at the place, date and time that have been
Following the submission of the bidding documents from the bidders, the
procurement committee will determine the potential winner from the evaluation
result159. The procurement committee will make and convey the report to the GCA
to determine the business entity as the winner of the procurement160. The report
must contain with the suggestion on who the winner and the reserve winner will be,
along with the explanation and other information deemed necessary to be used as
considerations for the GCA in making the decision161. If the GCA does not agree
with the suggestion of the procurement committee, the GCA must conduct a
official announcement board and all the bidders will be informed by the
procurement committee at the latest of 2 (two) working days after the issuance of
157
Ibid.
158
Ibid.
159
Ibid.
160
Ibid.
161
Ibid.
162
Ibid.
62
the approval on the winner of the procurement163. If there are bidders who object
with the determination of the winning bidder, the objections shall be delivered at
the latest of 7 (seven) days as of the announcement date 164. The objection must be
attached with evidences on the occurrence of the irregularities165. The GCA issue
under the conditions: (i) no objections from the bidders; or (ii) the objections
received the GCA during the objection period are unsubstantiated or the objections
The winning bidder must establish a business entity that will sign the
cooperation agreement no later than 6 (six) months after the issuance of the letter
The cooperation agreement will be signed by both GCA and the business entity and
the cooperation agreement169. In the event that all conditions precedent have been
fulfilled, the GCA will issue minutes on the effectivity of the cooperation
matters171:
163
Ibid.
164
Ibid.
165
Ibid.
166
Ibid.
167
Ibid.
168
Among the conditions precedents in the water supply system project are the issuance of
government guarantee and all the permits that the business entity requires to conduct its
business have been obtained.
169
Ministry of Public Works (MR 12/2010), op.cit., p. 38-40
170
Ibid.
171
Ibid.
63
b. Scope of Investment Activity
1) Legal basis as the basis of the cooperation
2) Definition to certain terms
3) Definition and Interpretations
4) The entire scope of cooperation detail
5) Scope of duties for each party
c. Conditions precedent
d. The Terms of Cooperation Agreement
1) Effective Date
2) The Terms
3) Extension
e. Performance Bond
f. Tariff and its Adjustment Mechanism
1) Tariff formulation
2) Tariff determination
3) Its adjustment mechanism
g. Rights and Obligations
h. Performance Standards
i. Investment Activity Plan, including its implementation stages
j. Restriction on assignment of equity participations to the business entity
k. Sanctions
l. Termination of the Cooperation
m. Reports
n. Settlement of Disputes
o. Supervision
p. Investment Return
q. Force Majeure Events
r. The Prevailing Laws, which means the Indonesian laws
s. Statements and Warranties
t. Audit
u. Transfer of Assets
v. Confidentiality
w. Amendment to agreement
x. Indemnify
y. Prevailing language
z. Miscellaneous
Air Tangerang becomes the first implementation of public private partnership in the
64
development of water supply system following the issuance of PR 67/2005172. PT
Aetra Air Tangerang is the subsidiary of Acuatico Pte. Ltd., the winner bidder of
the procurement of business entity for a IDR 520,7 billion water supply system
project that covers the water services on five districts, namely Sepatan, Pasar
Kemis, Cikupa, Balaraja, and Jayanti173. The Tangerang public private partnership
in water supply system becomes one of the reliable project on the Masterplan for
by the government of Tangerang Regency two weeks after that on October 10,
2006176. The public consultation involved the society and the regional house of
172
BPPSPAM (BPPSPAM 4), “Wapres Budiono Resmikan IPA Sepatan KPS Air Minum Kab.
Tangerang” from
http://bppspam.com/index.php?option=com_content&view=article&id=659:wapres-budiono-
resmikan-ipa-sepatan-kps-air-minum-kab-tangerang&catid=50:kegiatan-bppspam (accessed
December 24, 2014)
173
KPS (Kemitraan Sarana dan Prasarana), Program 10 Juta Sambungan Air Minum, Sixth Edition,
Jakarta: Infrastructure Reform Sector Development Program (IDRP) Bappenas, 2008, p.13-14
174
BPPSPAM (BPPSPAM 5), “Air Siap Minum untuk Tangerang Berkualitas dan Berkelanjutan” from
http://www.bppspam.com/images/aetra.pdf (accessed December 24, 2014)
175
Ibid.
176
KPS (Kemitraan Sarana dan Prasaran), loc.cit
177
Ibid.
178
BPPSPAM 5, loc.cit.
65
occurred for 14 (fourteen) days and on 23 March 2007, the announcement of the
bidder who passed the prequalification was issued by a Tangerang Regent Decree
Number 690/23-KPS/2007179. The bidders who passed the prequalification were (1)
PT Tirta Bangun Pacibaja and Consortium, (2) Asian Utilities Pte.Ltd. and
Dextam180.
The submission of the bidding documents by the bidders who passed the
Balaraja and Jayanti District, Tangerang Regency. The signatory of the cooperation
agreement was signed on 4 August 2008 and effective as of 4 October 2009 as all
of the conditions precedent have been fulfilled182. The Tangerang Regency water
liters/second183.
179
Ibid.
180
Ibid.
181
Ibid.
182
Ibid.
183
Ibid.
66
CHAPTER 4
INDONESIA
GCA are divided into two, covering the supervision and evaluation and
The supervision and evaluation during the cooperation period aims to: (i)
ensure the operation of the project complies with the prevailing laws, (ii) ensure
that the result of the implementation is in line with the cooperation agreement,
particularly as necessary for the tariff adjustment, (iii) handle various changes or
problems that may arise, and (iv) anticipate the transfer asset to the government (if
any)184. Therefore the supervision and evaluation will be conducted in every stage
supervision and evaluation, the GCA establishes a supervision and evaluation team
184
Coordinating Ministry for Economic Affairs, Kerjasama Pemerintah dan Swasta (KPS): “Panduan
Bagi Investor Dalam Investasi Di Bidang Infrastruktur”, Jakarta: Kementrian Koordinator Bidang
Perekonomian, 2010, p.28
185
Ibid.
67
(hereinafter shall be referred to as “Team”)186. The team will be established during
and evaluation, the team must prepare the supervision and evaluation plan by
a. partnership approach, means the team must not involve in the implementation
of cooperation project;
cooperation agreement based on the things that must be supervised during the
cooperation agreement until the financial close has been obtained189. The team
entity and the preparation process of the terms of reference of environmental impact
186
Ministry of Public Works (MR/2010), op.cit., art 22
187
Ibid, attachment p.41-46
188
Ibid.
189
Ibid.
68
analysis (AMDAL)190. The business entity, at this stage of supervision and
engineering design;
2) the entire copies of the agreements that have been signed by the business entity
and any other third party, covering the engineering procurement construction
3) administration reports;
license; and
6) as built drawing.
The supervision and evaluation during the construction begins as of the start
conducts the supervision and evaluation towards: (i) design of the new facility, (ii)
the consolidation between the new facility and the existing facilities, (iii) site access
and rights to deliver the issue related to the failure and inability of the business
entity to fulfill the cooperation agreement, (iv) the delay or change of the
construction schedule, (v) variation to the construction design (if required by GCA),
(vi) the readiness of the work/operation, (vii) supervision toward the suitability
190
Ibid.
191
Ibid.
192
Ibid.
69
between the technical plan and the enforcement of construction, (viii) property and
planning, (ix) labor issues, and (x) the risks borne by GCA. The business entity, at
this stage of supervision and evaluation, must submit to the GCA documents such
as administrative report, work advanced report (monthly report and annual report
and/or special report), performance report (monthly report and annual report and/or
of the cooperation agreement194. The Team conducts the supervision and evaluation
entity, at this stage of supervision and evaluation, must submit to the GCA
documents such as administrative report, work advanced report (monthly report and
annual report and/or special report), performance report (monthly report and annual
Team must consider the transfer of assets to the government and the cooperation
agreement must specifically regulate the desired project condition upon the
to the GCA196. The Team then must value the asset by: (i) research and appraise all
the system components included in the cooperation agreement, (ii) calculate the
193
Ibid.
194
Ibid.
195
Ibid.
196
Ibid.
70
costs estimation necessary for the next routine and non-routine operation and
maintenance, (iii) value the availability of parts for the facilities and system which
is technically not feasible, (iv) conduct the evaluation on the availability of human
resources possessed by GCA, and (v) conduct the evaluation to the efficiency on
Beside conducting asset valuation, the Team also (i) prepares and applies for
examination/testing permit towards all the assets of the cooperation project for the
benefit of transfer of asset, (ii) tests and examines the physical facilities and all the
equipment for the benefit of transfer of asset in accordance with the cooperation
agreement, and (iv) prepare the hand over minutes signed by GCA and business
entity198.
Despite the cooperation project will be run by the business entity during the
cooperation period, the tariff determination will be under the responsibility of the
relevant GCA in which for Tangerang Regency water supply system project would
project, the tariff is determined under Governor of DKI Jakarta Regulation Number
197
Ibid.
198
Ibid.
71
that the water services provided by the business entity must be affordable for all
groups of people.
For Drinking Water Tariff Regulation On Drinking Water Local Company (“MR
(six) principles, namely (i) affordability and justice, (ii) service quality, (iii) cost
recovery, (iv) water usage efficiency, (v) transparency and accountability, and (vi)
raw water protection199. The principle of affordability and justice means that the
water tariff must be affordable by the purchasing power of the society who has the
same income with the regional minimum wage and also the tariff is achieved
groups of customers200. The service quality principle means that the tariff is
determined by considering the balance of the service quality level received by the
customers201. The cost recovery principle means that the income PDAM (or the
business entity under cooperation with other party) must fulfill the cost recovery
principle to cover the basic cost added by reasonable profit level202. The water usage
by charging the customers whose water consumptions exceed the drinking water
199
Ministry of Home Affairs, Minister of Home Affairs Regulation Number 23 of 2006 on Technical
Guidelines and Manuals For Drinking Water Tariff Regulation On Drinking Water Local Company
(MR 23/2006), art 2
200
Ibid, art 3
201
Ibid, art 4
202
Ibid, art 5
203
Ibid, art 6
72
calculation and determination of tariff must be done transparently and accountably
tariff to the stakeholders and listening to the relevant aspirations in relation to the
raw water principle aims to protect and preserve the function of water sources for a
Having considered the above principles, the tariff will be determined by the
recommendation after receiving the approval from regulatory body206. The tariff
will be adjusted annually with indexation formula calculating (i) the annual
inflation index rate at the relevant year issued by the authorized government agency,
(ii) loan interest expenses, and/or (iii) other parameters according to the cooperation
head of local government through the regulatory body. In the event where the head
of local government refuses the tariff adjustment proposed by the PDAM directors
which has been approved by the regulatory body based on the transparent and
accountable principle, the local government must do its best effort to subsidize the
laws208.
204
Ibid, art 7
205
Ibid, art 8.
206
Regulatory body means the regulatory body of PDAM. Ibid, art 21
207
Ibid, art 22
208
Ibid, art 24
73
4.1.3 The Government Roles and Responsibilities During the Cooperation
Period Linked to the State’s Control Right According to Article 33 of
1945 Constitution
As described earlier, the interpretation of state’s control right by
constitutional court interpreted the state’s control right as not in the sense of state
owning the natural resources, but in the sense that the state formulates the policy
the important production branches and controlling many of the public needs, as well
as to natural resources, do not deny the possibility for a private partyy to participate,
to the extent that the five roles of the state/ government as stated at the above are
fulfilled and the participation of the private party will not eradicate these five roles
of the government.
supply project, the government of Tangerang Regency has conducted its duties in
209
Ibid, p.19
74
Tangerang Regency established an independent regulatory body called Badan
in order to ensure the occurance of the service and supply of water that meets the
supply system thourgh the public private partnership scheme does not eradicate the
the private party helps the acceleration of the provision of water supply system in
Indonesia to achieve
four) access of water in their place. The data from BPPSPAM as quoted on Water
Dialogues (2009) shows the water losses in Indonesia that year reached 39%,
experiencing a slightly increase compared to the year 2006 which was 38,61%. As
a first sample, the involvement of private party (PT Adhya Tirta Batam) who is
210
Aetra Air Tangerang, “Bupati Lantik Badan Pengatur Proyek Penyediaan Pelayanan Air Minum
Kabupaten Tangerang”, from http://www.aat.co.id/40-highlight-
Bupati+Tangerang+Lantik+Badan+Pengatur+Proyek+Penyediaan+dan+Pelayanan+Air+Minum+K
abupaten+Tangerang.html (accessed January 9, 2015)
75
under cooperation with PDAM Tirta Pakuan Bogor City shows the water losses
Picture 3. Level of Water Losses PDAM Tirta Pakuan vs. PT Adhya Tirta Batam
(Source: PDAM Tirta Pakuan and ATB)
one of the best water company with the least water losses in the world compared to
Singapore and Japan at 2,93% in 2014212. These two samples show the positive
Indonesia.
211
The Water Dialogues Indonesia, Review for Private Sector Participation In Water and Sanitation
in Indonesia: With A Particular Emphasis On Review on Drinking Water Supply with and without
Public Private Partnership Scheme in Indonesia (Case Study: PDAM Tirta Pakuan Kota Bogor vs
PT Adhya Tirta Batam), Bandung: The Water Dialougues Indonesia, p.27
212
Kementerian Pekerjaan Umum, “BPPSPAM Minta PT Aetra Jakarta Terus Berinovasi” from
http://www.pu.go.id/berita_satminkal/go/1148/badan-pendukung-pengembangan-sistem-
penyediaan-air-minum/bppspam-minta-pt-aetra-jakarta-terus-berinovasi (accessed January 6,
2015)
76
In addition to the effectiveness towards the participation of private party in
the development of water supply system in term of water losses, the Jakarta water
supply project which are run by Palyja and Aetra will not get the tariff increased
untill the end of the concession agreement between either Palyja or Aetra and PAM
Jaya DKI Jakarta which is 2022213. The water customers in Jakarta will be charged
Drinking Water Tariff Adjustment Semester I, Year 2007. It shows the commitment
of the private party to focus on the quality of water as well as its service and proves
that the private party is not only investing for profit seeking but also helping the
quality.
Lastly, the cooperation scheme with the private party through the public
private partnership also ensure that the private party that win the bidding process is
the one that offers the best quality service with the technology and proffesial
particular, where PT Aetra Air Tangerang offers a ready to drink water directly
from the water crane at home by using an up to date technology necessary in the
access on drinking water on 2019 is getting closer, with the current condition of
213
Nawasis, “Asyik Tarif Air Minum Tidak Naik Sampai 2022” from http://www.nawasis.com/air-
minum/asyik-tarif-air-minum-tidak-naik-sampai-2022 (accessed January 6, 2015)
77
only having around 67% according to Table 2, the government should have
intensified the development of water supply system in all possible legal ways
according to the provisions of law including through public private partnership. The
current condition, however, shows that several strategic water supply project in
Indonesias are lacks of clarity. According to Bahtera Novinda, there are three issues
There are currently two strategic water supply system projects that have
and Bogor Regency project. The Bandar Lampung poject has started its
bidding process in 2012, but according to Bahtera Novinda there hasn’t been
The government continues stalling for time with no reasons, whereas the
Bandar Lampung and the people of Bandar Lampung begin to suffer for
drinking water crisis as they still rely on the limited well water 215. As for
Bogor Regency water project, despite having determined the winning bidder
the GCA has not yet performed any negotiation with the business entity in
the range of 1987 to 2014, PDAM Tirta Kahuripan Bogor Regency can only
214
Based on the Interview with Bahtera Novinda, SH, a legal specialist at PT Acuatico Air Indonesia
a company engaging in water infrastructure through public private partnership scheme, on
December 30, 2014
215
Retno Kusuma Putri, “Warga Kesulitan Air Bersih Bisa Lapor BPBD Bandar Lampung”, from
http://www.duajurai.com/bandar-lampung/warga-kesulitan-air-bersih-bisa-lapor-bpbd-bandar-
lampung/ (accessed January 7, 2015)
78
cover 16,24% of its service area which means approximately 83,76% of
people in that PDAM coverage area who do not have access to drinking
water.
Other than the two water supply projects above, one mega project which is
Umbulan water supply project with capacity of 4000 ℓ/second amd targeting
project that has begin in 2012, however, along with Bandar Lampung and
committee once said that the winning bidder will be determined in 2012216,
very important to provide protection to the private party as the investor for
crucial role for the private party in the event where the the above events
216
Bisnis Indonesia, “Pemenang Tender Spam Umbulan Diumumkan Mei“, from
http://industri.bisnis.com/read/20120104/45/58740/pemenang-tender-spam-umbulan-
diumumkan-mei (accessed January 7, 2015)
79
optional which means the government is not obliged to provide the
The last issues that may hamper the implementation of public private
parntership in the development of water supply sytem is the project that the
GCA offers to the private party is not feasible. It means the involvement of
private party will result nothing but big losses due to the uncertain condition
from local PDAM. This issue appears on Lamongan Regency water supply
system project with a targeted capacity of 200 ℓ/second in which there are
The existence of these issues ultimately will trigger to result the investors to
pull their participation to the project and eventually delay the execution of the water
supply project. If each local governments as the GCA is commitment to the goal of
achieving the 100% goals to provide water to all people in Indonesia, they should
learn from the Tangerang Regency water supply sytem project that has provided
satisfying results.
80
CHAPTER 5
CLOSING
5.1 Conclusion
has begun in 1998, but the first implementation of public private partenrship in the
guideline for eight public private partnership projects which are: (i) transportation
(sea, river or lake harbor, airports, railways and train station), (ii) road (toll road
and toll bridge), (iii) irrigation (raw water carrier channel, (iv) drinking water
(building of raw water intake point, transmission lines, distribution networks, water
treatment plant), (v) waste water (waste water treatment plant, collection networks
and main networks) as well as waste facilities (transport and place for disposal),
transmission and electricity distribution) and (viii) oil and gas (processing, storage,
through public private partnership shall comply to the Minister of Public Works
81
Regulation Number 12/PRT/M/2010 on Guidelines on Business Cooperation for
and based on the legal analysis which have been explained in this research
water supply system, the author argues that the involvement of private party in the
development of water supply system through public private partnership has been in
line with the prevailing laws and does not eradicate and interfere the state’s control
definitely will assist the government to achive the RPJMN target to ensure 100%
of Indonesian citizen to have access to clean water, on the circumstance that the
government also improve the performance of PDAM in the region which do not
offer the cooperation with private party. During its implementation, however, there
are obstacles that delay the implementation of public private partnership which
eventually may affect the achivement of such target, which are (i) the project takes
too much time and the uncertainty during the procurement process, (ii) the absence
82
5.2 Suggestion
Based on the above explanation, the author will provide some suggestions
1. Central government
and does not eradicate the state’s control right as commanded in Article
33 of 1945 Constitution.
2. Local government
in order to adopt the good points and learn from any errors arising during
project.
with its own local potential prior to offering the project to the private
party.
83
To increase the participation of the society in the development of water
system.
3. Business Entity
To do its best effort in providing the best water service with affordable
4. Society
84
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________, Government Regulation Number 16 of 2005 on Development of Water
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