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Percy Amendment, 22 U.S.C. 302:  10 percent price reduction for American-owned offerors

Comptroller General - Key Excerpts

The protester argues that the agency failed to follow DOSAR sect. 652.236-71 and the terms of the RFP when it concluded that FE JV was American-owned for purposes of applying the 10-percent price preference under the Percy Amendment. The protester asserts that the agency's conclusion was in error because: (1) FE JV's construction projects identified as similar were performed outside the United States, and (2) FE JV's construction projects are dissimilar in value, complexity, and type to the construction services procured here. Perini's Comments, Nov. 15, 2010, at 11.

The agency reports that the DOSAR clause included in the solicitation had not been updated to reflect the current provisions of the Percy Amendment, which was revised to allow consideration of similar projects performed not only in the United States but also at diplomatic or consular establishment abroad. The agency asserts that FE JV's construction projects meet the requirements of the Percy Amendment, and therefore the agency's conclusions that the projects were similar to the effort here are reasonable. Agency Response, Nov. 19, 2010, at 6, 8-9.

It is well-settled that when a statutory language provides an unambiguous expression of the intent of Congress, the unambiguous intent of Congress must be given effect. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); Mission Critical Solutions, B-401057, May 4, 2009, 2009 CPD para. 93 at 6. Further, a regulation must be interpreted so as to harmonize with and not further conflict with the objective of the statute it implements. Trustees of Indiana University v. United States, 618 F.2d. 736, 739 (Ct. Cl. 1980).

The DOSAR regulation, recited in the RFP, makes clear that "[t]his solicitation is subject to [the Percy Amendment], as amended (22 U.S.C. [sect.] 301)." The Percy Amendment unambiguously states that projects performed outside the United States may be considered for purposes of determining American-owned status under the statute. Although it is true that the DOSAR clause recited in the solicitation misstates the Percy Amendment as defining American-owned firms as those that perform work in the United States, the language in the clause does not provide a basis for the agency to ignore the clear intent of Congress as set forth in the statute itself. To the extent the regulation may be interpreted as conflicting with the statue, the statute must be given effect. See Trustees of Indiana University v. United States, 618 F.2d. 736. Accordingly, we find reasonable the agency's consideration of FE JV's construction projects performed outside the United States at diplomatic or consular establishments.

With regard to the protester's argument that the agency unreasonably relied on FE JV's prior construction efforts that were dissimilar in value, complexity, and type of construction, we find the agency's analysis unobjectionable. The Percy Amendment does not provide a definition for "similar construction work," but the DOS implementing regulation required that offerors show the similarity of their projects to the work procured here by describing the location, complexity, type of construction, and value of "one or more" projects. As stated above, the contracting officer reviewed the 11 projects listed by FE JV and determined that at least 2 were similar, based on the offeror's description of the location, complexity, type, and value of the project. The contracting officer also relied upon a prior Percy Amendment review that afforded Framaco (the American partner of FE JV) "American-owned" status for a project with an estimated value of $175 to $200 million, which is significantly higher in value than this project. Under these circumstances, we find no basis to question the reasonableness of the contracting officer's determination that FE JV's construction experience was similar to the requirements here.

In sum, the record shows that the agency complied with the Percy Amendment and appropriately applied that 10-percent price preference to FE JV's proposal during the evaluation.

The protest is denied.  (Perini Management Services, Inc., B-404261; B-404261.2; B-404261.3; B-404261.4, December 17, 2010)  (pdf)

Comptroller General - Listing of Decisions

For the Government For the Protester
Perini Management Services, Inc., B-404261; B-404261.2; B-404261.3; B-404261.4, December 17, 2010  (pdf)  


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