LEGAL ASPECTS OF BUSINESS COMPETITION IN THE PROCUREMENT OF COVID- 19 VACCINE BY BIO FARMA LTD

The purpose of this research is to analyze the exclusion of monopoly by State Owned Enterprises (BUMN) based on the provisions of business competition law in the procurement of the Covid-19 vaccine by Bio Farma (Persero) Ltd. Indonesia is being hit by the Covid-19 outbreak. This condition has had a negative impact in various fields. To overcome this, one of the government's efforts is to bring in vaccines to prevent the spread, and the procurement of vaccines is given to Bio Farma Ltd. There are indications of monopoly actions in the procurement of Covid-19 vaccines by Bio Farma Ltd. This research uses the approach statute approach and conceptual approach. The technique of tracing legal materials uses field study techniques and document studies (library research), as well as study analysis is using qualitative analysis. The results of the research and the discussion show that the procurement process for the Covid-19 vaccine is strictly regulated by the government. Even the quantity, procurement, and distribution are coordinated by the government in this case through the assignment of SOEs (BUMN) as regulated in Presidential Regulation Number 99 of 2020 as amended by Presidential Regulation Number 14 of 2021. The results of the study show that the actions taken by SOEs (BUMN) in this case Bio Farma (Persero) Ltd in procuring the Covid-19 vaccine is included in the excluded monopoly category, because it meets the elements of the provisions in Article 50 paragraph a. Law Number 5 of 1999 concerning Prohibition of Monopolistic Practices and Unfair Business Competition.


INTRODUCTION
Today the whole world has been faced with various health problems that are getting bigger and more complex, one of which is the problem of the epidemiological transition. Epidemiological transitions or changes in disease patterns are conditions where there are changes in disease patterns, where currently infectious diseases are still not well resolved, but on the other hand, noncommunicable diseases continue to increase such as Corona Virus   (Coyne, 2020).

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The Covid-19 outbreak/pandemic has been designated by the World Health Organization (WHO) as a global pandemic and the Government has also designated a non-natural disaster Covid-19 as a national disaster. The government realizes that in the context of dealing with the Covid-19 outbreak/pandemic and maintaining public health, vaccines are needed. Vaccines are the result of biotechnology from viruses. Biotechnology is defined as the use of living organisms to create products, or the use of living organisms to make or change substances. Vaccines are human selfdefense weapons against diseases caused by the virus. By injecting vaccines into the human body, the immune system is stimulated, this is one way to reduce mortality from a deadly disease outbreak (Widjaja, 2020).
The process of procuring the Covid-19 vaccine is strictly regulated by the government with the aim of keeping the vaccination process properly supervised. The Minister of State-Owned Enterprises said that control of vaccines coming to Indonesia or produced only by the government is an effort by the government to ensure that vaccinations are carried out in a measurable and welltargeted manner (Azka, 2020). Even from the number, type and procurement, to distribution, it is  With the indications of monopolistic action for the Covid-19 vaccine, especially in terms of procurement, it is feared to eliminate competition and even indicate the occurrence of monopolistic practices in the procurement of these health products. An industry is said to have a monopoly structure if there is only one producer or seller (single firm) without direct and indirect competitors, both real and potential. The company has no competitors because of the barriers (barrier to entry) for other companies to enter the industry in question (Rokan, 2010). Competition is a general term that can be used for all existing resources.
With the competition, businessmen are forced to produce quality products. Efficiently managed companies will gain large profits and continue to exist, otherwise inefficient companies will experience defeat in business competition, as a logical consequence of perfect competition is the creation of competitive prices and good quality goods, as well as various choices. of a product or service (Usman, 2013).
In daily life, every economic actor who enters the market will go through a competitive process where producers try to calculate ways to improve the quality and service in an effort to win markets and consumers. When this condition can be achieved, the producer or businessman will try to maintain this condition at least to remain an incumbent with a certain market share in the relevant market. The dilemma that occurs is when there is a businessman who succeeds in becoming a monopolist in the market which causes the producer or businessman to be inefficient and able to increase the barriers to entry for their competitors. When this condition occurs, the effect is an ineffective use of resources and can even result in a distorted market (Zihaningrum & Kholil, 2016).

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Based on the description above, there is a norm in the law that temporarily prohibits the practice of granting a monopoly on the procurement of Covid-19 vaccine by Bio Farma (Persero) Ltd, so it is necessary to analyze whether this monopoly action can be classified as an exception regulated in the competition regulations, namely Article 51 Law no. 5 of 1999 which reads as follows: "Monopolies and or concentration of activities related to the production and or marketing of goods and or services that affect the livelihood of many people as well as production branches that are important to the state are regulated by law and organized by business entities. State-owned and/or agency or institution established or appointed by the Government." Regarding the above description, the theory used relating to the state in business competition law is the State Action Doctrine. This theory allows for the right of immunity and exception from competition law in certain circumstances. The exception is given to acts or actions taken by the government to carry out certain activities (Lubis, 2009 Business Competition is to protect competition but without limiting the authority of the State. This theory was later expanded by allowing the granting of a wider exception status to business entities formed by the government which were not even fully government-established entities. This theory is proven to provide many benefits to the government as long as this status is used in accordance with its objectives, especially from an efficiency approach at the national level (Nurhayati, 2011).
Judge Lewis Powel of the United States Supreme Court stated that an action can be categorized as a State Action Doctrine if it meets at least two criteria (Fuady, 2003): (1) Regulations that except an action from the provisions of the Business Competition Law and are indeed in  (Ginting, 2013), which discusses that the provisions for exceptions to monopolistic practices carried out by SOEs as referred to in Article 51 Law No. 5 of 1999 provides limitations that monopoly and or concentration of activities related to the production and or marketing of goods and or services that affect the livelihood of many people as well as production branches that are important for the state carried out by SOEs can only be carried out after being regulated in the form of a law that clearly states the objectives of monopoly and or concentration of activities as well as state control and supervision mechanisms in the implementation of monopoly and or unfair business competition and BUMN will still be the object of Law no. 5 of 1999 so that if in the implementation of its monopoly rights, SOEs are proven to have abused their monopoly power to the detriment of society, the Business Competition Supervisory Commission will take action against them. In addition, Anna Maria Tri Anggraini (Anggraini, 2010) argues that Article 51 of Law

Commission Regulation
Number 5/1999 implies the understanding that the implementation of a monopoly and/or  (August, 2021), pp. 193-209. Tri Utomo Wiganarto, Asenar, Elisantris Gultom 198 concentration of activities by the state on activities related to the production and or marketing of goods and/or services that affect the livelihood of the people, as well as production branches that are important to the state are organized by State-Owned Enterprises (BUMN) and/or agencies or institutions established or appointed by the government. This provision can be interpreted that monopoly is not always prohibited, even in certain cases monopoly by the state in the strategic industrial sector is excluded by a law. Furthermore, Muhammad Insa Ansari (Ansari, 2017) shows that state control of postal activities changes according to the economic system adopted by the ruling government. In the old order, state control over postal activities was very dominant, even the Postal Service, Telegram and Telephone had the authority to carry out a monopoly. During the New Order era, the state's control over the postal sector began to decrease, even during the Reformation era, the state's control over the postal sector was only a regulator. However, during the reformation era, there were a number of state obligations carried out by SOEs in the form of public service obligations to organize posts in remote areas.

RESEARCH METHODS
The research used is normative legal research, namely research used to analyze the law which is seen as patterned community behavior in people's lives who always interact and relate to social aspects. The first step of this research is based on primary data sourced from available information.
Furthermore, secondary data is used in the form of legal materials, which include statutory documents, official documents, books, jurisprudence related to research. This research uses the approach: statute approach, as well as conceptual approach, case approach. The technique of tracing legal materials uses field research and document studies (library research), as well as analysis studies using qualitative analysis. 199

1) The legitimacy of granting a monopoly to SOEs
Article 33 paragraph (2) of the 1945 Constitution stipulates that the production branches which are important for the state and affect the livelihood of the people are controlled by the state.
There are three elements contained in Article 33 paragraph (2), namely production branches that are important to the state, production branches that control the livelihood of many people and the existence of control by the state.
Furthermore, what is meant by production branches that are important to the state are "strategic production activities related to justice, security and national stability that provide welfare for all people". Meanwhile, the branches of production that control the livelihood of many people are "the production of vital goods and services such as water, energy and public transportation" and the production of goods and services that are vital for human life within a certain period of time.
The formulation of the article means that the principle of popular sovereignty has the consequence that the authority to choose the economic system to be implemented is not by the state, but by the people. Sukarno called this principle Economic Democracy. The government has a task to implement the system established by the people as stated in the constitution. This is meant that Constitution also have the consequence that the private sector is not allowed to manage and control an important production branch and control the livelihoods of many people, unless it has received a mandate from the state based on a legal product. Because economic sovereignty is in the hands of the people, the mandate must be in the form of a law.

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The government intervention in monopoly and oligopoly markets aims to influence prices, the quantity produced, and the distribution of income from economic activities. The intervention is carried out in two ways, namely: regulation and anti-monopoly law. However, in order to the fair competition occurs, government intervention is required in the market. The intervention is expected to prevent monopolies, ensure equal opportunities in business and healthy competition, and freedom in selling and buying products based on the principle of efficiency (Akyuwen, 2017).
The exception rule in Law Number 5 of 1999 in Article 50 states: What is excluded from the provisions of this law are: a. actions and or agreements aimed at implementing the applicable laws and regulations; or b. agreements relating to intellectual property rights such as licenses, patents, trademarks, copyrights, industrial product designs, integrated electronic circuits, and trade secrets, as well as agreements relating to franchises; or c. agreement on the determination of technical standards of goods and or services products that do not curb and or hinder competition; or d. an agreement within the framework of an agency whose contents do not contain provisions to resupply goods and or services at a lower price than the agreed price; or e. research cooperation agreements for the improvement or improvement of the standard of living of the wider community; or f. international treaties that have been ratified by the Government of the Republic of Indonesia; or g. agreements and or actions aimed at exports that do not interfere with the needs and or supply of the domestic market; or h. businessman belonging to small businesses; or i. cooperative business activities that specifically aim to serve its members.
In addition, Exceptions in Competition Law may also be granted for reasons of protection to a particular industry or businessman deemed to still require protection. The government needs to provide protection on the grounds that this industry has not been able to face competition due to businessman, such as limited capital, not being able to be efficient, distribution constraints, lack of innovation so that it will not be able to survive in the market. The types of businessmen that fall into this category are cooperatives and small and medium-sized businesses that are included in small home industry businesses on a simple scale. While the provision of protection to certain types of businessmen are generally not only given based on ability, but also by looking at their number in 201 the national economy, whether the number is significant or the majority in a market or not. (Anggraini, 2013).
To Article 50 letter a is a provision that is "exceptions" or "liberations" which is intended to avoid conflicts between various policies that contradict each other but are equally needed in the national economy. This provision also often arises because dynamic economic conditions require

Kanun Jurnal Ilmu Hukum
Legal Aspects of Business Competition in the Procurement of Covid-19 Vaccine by Bio Farma Ltd Vol. 23, Issue 2, (August, 2021), pp. 193-209. Tri Utomo Wiganarto, Asenar, Elisantris Gultom 202 the Government to set exceptions aimed at balancing the control of the production sector which controls the livelihood of the people and providing protection to small-scale entrepreneurs. The provision of special treatment for production branches that control the livelihood of the people to be controlled by the state is expressly regulated in Article 33 paragraph (2) and paragraph (3)  Based on this definition, the centralization of activities basically describes a state of real control over a relevant market which is reflected in its ability to determine prices that can be achieved by one or more businessmen without having to engage in or result in monopolistic practices and or unfair business competition.
Considering the description of the understanding of the elements mentioned above, both monopoly and concentration of activities are not activities prohibited by Law Number 5 of 1999 and can be carried out or achieved by one or more businessmans while still taking into account the principles of fair business competition. However, observing Article 51 of Law Number 5 of 1999, this article is closely related to Article 33 of the 1945 Constitution.
In addition, based on the State Action Doctrinal Theory, it is possible to have immunity rights and exceptions from business competition law in certain circumstances. The exception is given to acts or actions taken by the government to carry out certain activities (Lubis 2009).
Based on the reference to the Indonesian economic system described above, ideally there will be three main businessmen in the Indonesian economy, namely: First, State-Owned Enterprises (BUMN) as bodies representing the state in realizing the mandate of the Constitution to manage and utilize natural resources for the prosperity of all Indonesian people. BUMN is an economic institution that will handle production branches that are important for the state and control the lives of many people.
Second, cooperatives will handle the small and medium business sector, especially the traditional trade sector (retail traders), agriculture, home industry and the like.
Third, the private sector will handle business sectors that have not been handled by SOEs and Cooperatives, such as industries with high technology and capital intensive, including the service business sector which ideally does not include BUMN and Cooperatives such as insurance, banking, transportation, telecommunications.

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Seeing from the formulation of Article 51 and referring to the Guidelines for the Implementation of Article 51 of Law Number 5 of 1999, there are three industries who are justified in conducting monopolies, namely BUMN, bodies or institutions formed by the government, agencies or institutions appointed by the government. In fact, the most frequently mandated to carry out a monopoly are BUMN. Perhaps this is because BUMN is a business entity whose capital, either wholly or partially, directly obtains capital participation from separated state assets. Until now, several production branches are still controlled by the state through BUMN, such as Pertamina and PLN.

Farma (Persero) Ltd
As previously explained, Article 50 letter ( The act and or agreement aims to implement the applicable laws and regulations, but must remain on the principle that the applicable laws and regulations implemented are of a higher or Legal Aspects of Business Competition in the Procurement of Covid-19 Vaccine by Bio Farma Ltd Kanun Jurnal Ilmu Hukum Tri Utomo Wiganarto, Asenar, Elisantris Gultom Vol. 23, Issue 2, (August, 2021), pp. 193-209 205 equal hierarchy. Legislation that is lower than the law is also possible to get exceptions as long as it gets express delegation from the law.
Based on the above elements, related to the procurement of Covid-19 vaccine by Bio Farma (Persero) Ltd, it can be analyzed as follows: First, the element of "the existence of an act and or an agreement". Where there is a Covid-19 Vaccine procurement activity by Bio Farma (Persero) Ltd, therefore this element is fulfilled.
Second, elements of "Aims to Implement". So, from here the author argues that the "aimed at implementing" element is fulfilled based on the first element. various sectoral regulations related to other regulations, even these regulations have existed long before Law no. 5 of 1999 was promulgated. If there is a law that requires a businessman to take an action or carry out an agreement, then the action or agreement will be excluded.
The guidelines stipulate those actions in this case are analogous to activities as regulated in Although the distribution of vaccines to Bio Farma Ltd does not violate Law 5 of 1999, in the logic of this monopoly state, it must ensure the welfare of its people, especially in this case the fulfillment of the right to health. However, it needs to be underlined that this monopoly is not allowed to obstruct the efforts to fulfill people's needs. This precious goal of prospering the people should not turn into the trouble for the people and even make the people miserable.