Pertanggungjawaban Perdata dalam Kontrak Pengadaan Barang/Jasa Pemerintah Antara Pejabat Pembuat Komitmen dengan Penyedia Barang dan Jasa Serta Praktiknya dalam Peradilan di Indonesia

Abstract

 Procurement of government's goods/services is one of the supporting elements in the activities of developing a country which functions as a tool to drive the economy of the nation. The utilization of state finances in procurement of government's goods/services needs to adhere to the principles of openness, transparency, accountability, and competition/fair competition, as a form of responsibility for utilizing state budget efficiently and effectively (Value For Money). In procurement process, the violation of government procurement contract is categorized as criminal acts, since this violation causes financial loss to the state. In addition to criminal sanction, an administrative sanction could also be imposed on the parties in government procurement contract. The absence of law governing the limitation of administrative sanction, civil sanction, and criminal sanction causes the fear to state apparatus in performing government procurement, that is an impediment to development. Refer to the background described above, the issues in this study are as follows: How will the procurement of government's goods/services be governed in connection with other legislations in perspective of civil law system? How is the legal liability of the parties in the contract of procurement of government's goods/services as a civil contract which raises different interpretations of the law? What is the court's perspective on the breaching of the contract of procurement of government's goods/services related to the effectiveness of the Presidential Regulation No. 54 of 2010 and it's amendments in the system? How is the legal regulatory system of procurement of government's goods/services in Indonesia in the future providing a better legal protection of the parties? The research methodology used in this research is normative legal research and sociological law research. Normative legal research is intended to examine the principles of law, the level of law synchronization, legal history, and comparative law. Sociological law research is intended to perform the application of the norms of the a legal fact (rechtsfeit). The legal facts meant are the cases of procurement of government's goods/services in the realm of justice in Indonesia. The natures of this research are explorative, explanatory and prescriptive. Explorative research explores the thoughts, concrete legal norms that exist in the judicial decision, seeking legal principles in the procurement of government's goods/services. Explanatory research explains the rules pertaining to the goods/services systemically, the contract procurement of goods/services in form and content, and also the legal considerations and the judge's decision. Prescriptive research is used to plan a change of legal norms in concret becoming law in abstract and a change of Presidential Decree on Procurement of government's goods/services into the bill.

 Procurement of government's goods/services is a system which relates to other laws. Therefore, the procurement of government's goods/services must be viewed holistically by looking at the suitable principles and benefits of procurement of government's goods/services through personality law of the Indonesia. The substance of parties' responsibility to the contract of procurement of government's goods/services, that is the holistic accountability, so that accountability in the procurement contract is civil liability. Legal liability of the parties can be based on criminal liability or administrative liability, if there is a melicious intent before the contract or after the signing of the contract. The Court views that violation of procurement contract of goods/services as a criminal act. The idea of the judge is wrongly used, the idea of judge do not put the legal principles in the procurement of government's goods/services holistically. The judge should have discovered the law (not a law issue). In the future, the legal system of procurement of government's goods/services in Indonesia should accommodate the ideals, the law, the idea of using a deductive way of thinking to avoid misapplying the law of procurement of government's goods/services. The legal system of procurement of government's goods/services must be able to provide benefits legally, economically and politically.