Embed Size (px)
DESCRIPTION
IPPC6
Citation preview
Improving the Effectiveness of
Bid Protest Mechanisms Learning from problems of Indonesia’s
public procurement system
Richo A Wibowo
School of Law, Utrecht University [email protected]; [email protected]
Introduction
• Bid protest mechanism has two general procedures:
complaint is submitted to administration. Afterwards, if it
is needed, complaint result can be challenged to legal
accountability forum (court or independent review body).
• Indeed, it is not always clear which
institution should have the competence as “legal accountability forum”.
• Indonesia can be an instance. Appeal
can be submitted to administrative court;
civil court; or business competition
supervisory commission.
http://www.deannashrodes.net/
Problem identifications
• Inconsistencies happen in the implementation.
Sometime administrative court decide to handle the
case; sometime they reject it, because it is seen as
the competence of civil court.
• Same condition as above also applies in civil court.
• The condition become more complicated when
business competition supervisory unit consider itself
has the competence to handle the case
• In brief, those above jeopardize the effectiveness of
the principle of accountability.
Research questions
• Therefore, it is relevant to address questions:
(i) why bid protest mechanisms is less effective in
Indonesia?;
(ii) what should be done to increase its
effectiveness?
• As this problem may happen in other countries, particularly
those which are trying to change their legal tradition, it is also
relevant to address a question:
(iii) what lesson learned can be obtained by other
countries from Indonesia’s experience?
Why this problem can happen?
(1) Loop holes
- Procurement regulation does not mention which
institution should handle this matter.
- Hence, legal reasoning is needed to determine
which institution that should be positioned as legal
accountability forum for bid protest mechanism.
- However, it is an uneasy task, as other related
problems exist (as follow)
www.newsobserver.com
Why this problem can happen?
(2) Unclear situation for conducting legal
interpretation.
Amendment constitution has changed Indonesia’s
legal tradition from common to mixed law. Due to
the lack of legal clarity, it becomes difficult to
define the court competence, because it is less
clear:
• which law that exercising government action;
• how should government is considered: as a
public body that has special power OR as an
ordinary person
Why this problem can happen?
(3) Each option is supported by its own argument.
• Based on administrative court act, it can be handled by
administrative court. Decision for award contract can be
considered as administrative decision;
• According to mixed theory, it can be handled by civil
court. Though procurement cycle process is exercised
by public law, it aims to create a contract which is
exercised by private law);
• Based on the act, business competition supervisory
commission can handle the case, as long as the
content of the complaint shows the nature of unfair
competition
What should be done?
• The proc law should appoint which institution serve as
legal accountability forum for bid protest mechanism »
civil court.
• Reasons: at first, the nature is more regulating
administration (public law); then, it is changed to more
regulate the award winner (private law)
What should be done?
• Reasons (cont):
- Mixed legal system
- Mixed theory » civil court may
also exercise public law whenever
it is relevant
- Civil court is much more
reachable by the justice seeker
than administrative court or
business competition supervisory
body
en.wikipedia.org
*) Indonesia has 414 courts which are spread in each
regencies/cities. It is far more than two other institutions, 28 and 6,
respectively.
Lesson learned
• The shift of legal tradition influences many
aspects. Scholars will need to harmonise
unforeseen tensions which may occur, as above
• The problem above may also happen in other
countries, particularly those which want to shift
their legal traditions.
• Perhaps, Rwanda can be an instance. Due to its
accession in East Africa Community, the
discussion has been arisen in there to shift its
legal tradition from continental to mixed.
Thank you for your kind attention
&
Looking forward for your constructive
comments
Offered questions for discussion
• Does the confusion or overlapping competence
in bid protest mechanism as above also happen
in your country?
– If yes, what should be done? Will the same
approach as offered above be a suitable
alternative?
– If no, why does not the problem above exist in
your country?
