Analisis PMK No. 40/2024 tentang Penggunaan Barang Milik Negara  

Subject Matter and Jurisdiction

This memorandum addresses the regulatory framework for the use of State-Owned Goods (Barang Milik Negara or BMN) under the Ministry of Finance Regulation No. 40/2024. The jurisdiction is the Republic of Indonesia, where this regulation is applicable.

Facts of the Case

• Regulation Overview: PMK No. 40/2024 establishes procedures for the utilization of BMN, replacing the previous regulation PMK No. 246/PMK.06/2014 and its amendments.
• Authority: The Ministry of Finance is the principal authority managing BMN.
• Scope: The regulation covers all aspects of BMN usage, including assignment, operation by third parties, and interim usage.

Research Parameters

• Primary Sources: PMK No. 40/2024, relevant statutes such as Peraturan Pemerintah (PP) No. 27/2014 and its amendment PP No. 28/2020.
• Secondary Sources: Commentaries on BMN management and usage, legal treatises on Indonesian administrative law.

Analysis

1. Procedures for BMN Usage

General Provisions:

• Definition: BMN includes all items acquired through the state budget or other legitimate means (Article 1).
• Usage Limitation: BMN usage is restricted to the duties and functions of ministries/agencies (Article 3).
• Submission: Ministries must submit unused BMN to the Ministry of Finance (Article 4).

Specific Procedures:

• Assignment of Usage: BMN usage is formalized through written requests to the Ministry of Finance, including detailed documentation of ownership and acquisition (Article 11).
• Approval: The Ministry of Finance conducts thorough research before approval, ensuring completeness and correctness of the application (Article 13).
• Registration: Approved BMN usage is recorded in the official inventory (Article 15).

2. Responsibilities and Authorities

Ministry of Finance (MoF):

• Policy Setting: The MoF sets policies and approves or denies BMN usage requests (Article 6).
• Supervision: The MoF supervises BMN usage, ensuring compliance with regulations (Article 6).

User Entities:

• Compliance: User entities must adhere to MoF policies and manage BMN in line with their operational needs (Article 7).
• Reporting: Entities are required to report BMN usage to the MoF and ensure proper documentation (Article 7).

3. Operation by Third Parties

Authorization:

• Application: User entities can request BMN usage by third parties, subject to MoF approval (Article 19).
• Criteria: The BMN must support public service, education, research, or cultural functions, among others (Article 19).
• Restrictions: Third parties cannot transfer or mortgage the BMN (Article 19).

Financial Aspects:

• Compensation: Under certain conditions, third parties may be required to compensate the state for BMN usage (Article 20).
• Cost Bearing: The cost of BMN maintenance and security can be shared between user entities and third parties (Article 19).

4. Compliance and Enforcement

Monitoring:

• Audits: The MoF may audit BMN usage and require additional documentation or clarifications (Article 13).
• Sanctions: Non-compliance can result in administrative sanctions, including the revocation of BMN usage rights (Article 6).

Ethical Considerations:

• Transparency: All processes and decisions must be transparent and adhere to ethical standards (General Provision).
• Confidentiality: Sensitive information related to BMN usage must be kept confidential (General Provision).

5. Noteworthy Definitions under PMK No. 40/2024

• Barang Milik Negara (BMN): BMN refers to all items purchased or acquired at the expense of the State Budget (Anggaran Pendapatan dan Belanja Negara or APBN) or through other legitimate means (Article 1). BMN can include tangible assets such as land, buildings, vehicles, and equipment, as well as intangible assets like intellectual property and financial instruments.
• Pengelola Barang: The term “Pengelola Barang” refers to officials who are authorized and responsible for setting policies, guidelines, and overseeing the management of BMN (Article 1). The Pengelola Barang, typically the Minister of Finance, plays a critical role in approving, supervising, and controlling the use of BMN.
• Pengguna Barang: “Pengguna Barang” are officials who have the authority to use BMN in accordance with their official duties and functions (Article 1). Pengguna Barang must ensure that BMN is used efficiently and in line with the intended purposes, report usage, and maintain proper documentation.
• Pengguna Barang Eminen and Kolaborator:
  • Eminen: Officials who use BMN in shared operations and manage the administration of jointly used BMN (Article 1).
  • Kolaborator: Officials authorized to use shared BMN based on agreements with Pengelola Barang, without direct administrative responsibilities (Article 1).
• Kuasa Pengguna Barang: Heads of work units or officials appointed by Pengguna Barang to use and manage BMN within their control effectively (Article 1). These officials ensure that BMN is utilized according to the relevant regulations and operational needs.
• Pihak Lain: Thirdparties other than ministries/agencies or regional governments authorized to operate BMN (Article 1).
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6. Detailed Procedures for Third Parties Wishing to Borrow BMN

General Overview:

Third parties wishing to borrow BMN must follow a structured procedure to ensure transparency and proper management. The process involves application, approval, and compliance stages, each with specific requirements and documentation.

Application Process:

• Submission of Request: Third parties must submit a written request to the relevant Pengguna Barang (Article 24).
  • Data Required:
    • Description of the BMN to be borrowed.
    • Purpose and duration of the borrowing.
    • Details of the third party requesting the BMN.
• Supporting Documents: The application must include:
  • For BMN: Copies of ownership and acquisition documents (Article 11).
  • For Third Party: Letter of intent or agreement from the third party outlining their commitment to use the BMN for the specified purpose and duration (Article 24).

Approval Process:

• Review by Pengguna Barang:
  • Initial Review: The Pengguna Barang conducts an initial review to ensure the completeness and correctness of the application (Article 13).
  • Compliance Check: Verification that the request aligns with the duties and functions of the requesting party and the BMN (Article 13).
• Recommendation to Pengelola Barang:
  • Recommendation Letter: The Pengguna Barang sends a recommendation letter to the Pengelola Barang (MoF) for final approval (Article 24).
  • Supporting Evidence: The letter must include all supporting documents and a justification for the recommendation (Article 24).

Final Approval by Pengelola Barang:

• Comprehensive Review: The MoF reviews the application, ensuring compliance with regulatory requirements (Article 13).
• Decision Issuance: The MoF issues a decision on the application, including terms and conditions for the borrowing (Article 14).

Usage and Compliance:

• Agreement Signing: Upon approval, a formal agreement outlining the terms of borrowing, responsibilities, and conditions must be signed by both parties (Article 24).
• Periodic Reporting: The borrowing party must provide regular reports on the status and usage of the BMN to the Pengguna Barang (Article 19).
• Return of BMN: At the end of the borrowing period, the BMN must be returned in the agreed condition. Any changes or damages must be reported and rectified (Article 19).

Financial and Maintenance Responsibilities:

• Maintenance Costs: The borrowing party is typically responsible for the maintenance and security of the BMN during the borrowing period (Article 19).
• Financial Compensation: If applicable, the borrowing party may need to provide financial compensation for the use of the BMN (Article 20).

7. Types of BMN

8. Eligible Third Parties for Borrowing BMN

9. Penetapan Status Penggunaan Barang Milik Negara oleh Pengelola Barang

The process of determining the status of the usage of State-Owned Goods (BMN) by the Pengelola Barang is crucial for ensuring proper management and accountability. The procedure is as follows:

Application for Status Determination:

• Submission: The user entity (Pengguna Barang) submits a formal request to the Pengelola Barang (Ministry of Finance) to determine the status of BMN usage (Article 11).
  • Content: The request must include detailedinformation about the BMN, including its description, current condition, intended use, and any supporting documentation of ownership and acquisition.

Verification and Research:

• Initial Review: The Pengelola Barang conducts an initial review of the application to ensure completeness and correctness (Article 13).
  • Documentation Check: Verification of the ownership documents, acquisition records, and any other relevant information.
  • Field Inspection: If necessary, the Pengelola Barang may conduct a field inspection to verify the physical condition and location of the BMN.

Recommendation Process:

• Internal Review: The Pengelola Barang conducts a thorough internal review, which includes:
  • Assessment: Evaluating the necessity and appropriateness of the proposed usage of the BMN.
  • Compliance Check: Ensuring that the proposed usage complies with the relevant laws, regulations, and policies.
• Committee Evaluation: A designated committee within the Pengelola Barang reviews the findings and provides a recommendation for the status determination (Article 13).

Approval and Issuance:

• Decision: Based on the committee’s recommendation, the Pengelola Barang makes a final decision on the status of the BMN usage (Article 14).
  • Approval: If approved, the Pengelola Barang issues an official decree (SK) specifying the status and conditions of the BMN usage.
  • Rejection: If rejected, the Pengelola Barang provides a detailed explanation for the rejection and may offer guidance for resubmission.

Registration and Documentation:

• Inventory Update: The approved status of BMN usage is recorded in the official inventory system maintained by the Pengelola Barang (Article 15).
  • Documentation: All related documents, including the decree, application, and supporting evidence, are archived for future reference and auditing purposes.

Monitoring and Compliance:

• Regular Reporting: The user entity is required to submit regular reports on the status and usage of the BMN to the Pengelola Barang (Article 19).
  • Contents: Reports should include updates on the condition of the BMN, compliance with the approved usage conditions, and any incidents or issues encountered.
• Audits and Inspections: The Pengelola Barang may conduct periodic audits and inspections to ensure continued compliance with the approved usage status (Article 13).
  • Sanctions: Non-compliance can result in administrative sanctions, including the revocation of the usage status and retrieval of the BMN.

Conclusion and Recommendations

• Conclusion: PMK No. 40/2024 provides a comprehensive framework for determining the status of BMN usage, ensuring proper management, accountability, and compliance.
• Recommendations: User entities should ensure that their applications for BMN usage status are complete and accurate, maintain regular communication with the Pengelola Barang, and adhere strictly to the approved usage conditions.

Comparison Table: Previous vs. Current Regulations

Confidentiality and Ethical Considerations

• Maintain confidentiality: Handle all BMN-related information with strict confidentiality.
• Adhere to ethical standards: Ensure all procedures comply with ethical standards in public administration.

This memorandum provides a comprehensive review of PMK No. 40/2024, addressing key regulatory changes and their implications for BMN management. The detailed analysis aims to guide legal and administrative professionals in effectively navigating and complying with the new regulation.