The Percy Amendment gives American-owned bidders a ten percent price advantage when competing for State Department construction projects.  To qualify as American-owned, the statute requires evidence that the bidder has performed “similar construction work in the United States or at a United States diplomatic or consular establishment abroad.”  22 U.S.C. § 302(b)(4)(A).

The State Department regulation implementing the Percy Amendment does not allow for consideration of foreign construction experience.  It states that similar construction work must have been performed in the United States.  DOSAR 652.236-71.  This conflict was the subject of a recent bid protest decision in Perini Management Services, Inc., B-404261, et al. (December 17, 2010).

The State Department awarded a $67 million contract for construction work at the new embassy compound in Iraq.  The awardee received the 10-percent price preference for American-owned companies based on its prior experience outside the United States.  Perini protested to the Government Accountability Office because the RFP and the State Department regulation stated that the price preference would be available only to companies whose similar construction experience was in the United States.  GAO rejected the argument.  It denied the protest because the solicitation and State Department regulation conflicted with the requirements of the statute.  In its words, “[t]he Percy Amendment unambiguously states that projects performed outside the United States may be considered for purposes of determining American-owned status under the statute.”