interim amendment 2010-001 27sept2010

8/12/2019 Interim Amendment 2010-001 27sept2010

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Millennium Challenge Corporation

Interim Amendment

Notice 2010-001September 27, 2010


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Interim Amendment Notice -, September ,

MCC/MCA Procurement Community

. Procurement Notices

MCC issues notices from time to time to inform all MCC and MCA Staff (including agents and implementing

entities) of changes to the MCC Program Procurement Guidelines (PPG) and the Standard Bidding Documents

(SBDs). Tis is an Interim Amendment Notice issued in accordance with Part of the PPG. Te changes indicated

in this Interim Amendment Notice are effective as set out in the section entitled Effectiveness and Application of

Amendment below. Te changes made by the Interim Amendment will be incorporated into the PPG and the

SBDs during their next formal revisions. Tis Interim Amendment Notice will also be posted on MCCs website.

. MCC Program Procurement Guidelines

MCC and MCA Staff are to immediately implement the changes to the MCC Program Procurement Guidelinesdescribed in Attachment Material Interim Amendment -.

Rationale for the Material Interim AmendmentMCC-funded procurements embrace international transparent, competitive bidding in the interest of value

for money. MCC is authorized by the United States Congress to provide grant assistance to fund economic

growth and poverty reduction investments, with program procurements conducted using open, fair, and competi-

tive procedures in a transparent manner. Tis authority is consistent with delivering effective aid. ransparency

and open competition in procurement lead to the best value for taxpayer money and stretches MCCs resources.

Open competition also expands the possibility for U.S. companies to bid on projects funded by other donors as

well. As a result, companies from countries have won MCC-funded contracts. Te nationality of competing

firms varies significantly by region and sector. Countries historical ties, proximity, and common language with a

region generally correlate to firms from that country having a greater presence in the region. However, no single

nations companies have dominated MCC contracting.

MCC is revising the MCC Program Procurement Guidelines to ensure a level playing field for commercial

firms from all countries. Trough this Procurement Notice, MCC is revising its guidelines to exclude govern-

ment-owned enterprises (GOEs) from competing for MCC-funded contracts, except in certain cases. As MCCs

program portfolio matures, the agency has observed that more GOEs are winning contracts. Noting that GOEs

often compete with some form of support from their home government, MCC is taking this action to help ensure a

level playing field for commercial firms from all countries to compete for MCC-funded contracts.


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Interim Amendment Notice -, September ,

Effectiveness and Application of the AmendmentAs with all changes to the MCC Program Procurement Guidelines, this revision will apply prospectively to all future

procurement actions.

Contracts awarded to GOEs prior to the revision of the guidelines will remain in place.

Procurement processes where an IFB or RFP has already been issued with a closing date on or before

October , are not affected by this revision and may proceed under the previous guidelines that

permitted participation by GOEs. For procurements with bids or proposals due on or after October ,

, the MCAs will issue an amendment to the bidding documents incorporating the changes specified in

Attachment .

For procurements where the pre-qualification or short listing phase has been completed, but the IFB or RFP

has not been issued, the changes specified in Attachment will be incorporated into the IFB and RFP before

release. GOEs that qualified for either the pre-qualified list or shortlist will be informed that they are nolonger eligible to compete for the procurement due to the change in MCC procurement policy.

Te restriction on the eligibility of GOEs will not apply to Government-owned educational, research, and statistical

institutions and other technical units of government not formed primarily for a commercial or business purpose.

Tis approach will not eliminate any countrys non-GOE, commercial firms from competing for and winning MCC-

funded contracts.

Consistent with the PPG, MCA Entities may request a waiver of this restriction, on a case-by-case basis, in the inter-

est of overall program implementation. In all cases, a request for a waiver must be reviewed and approved by MCC

in the manner set forth in the Interim Amendment.

. Standard Bidding Documents

MCC and MCA Staff are to immediately implement the changes to the MCC Program Procurement Guidelines

described in Attachments through .

Patrick Fine

Vice President, Department of Compact Operations



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MCC Program Procurement

Guidelines (10/23/2009 Version)

Material Interim

Amendment

2010-001September 27, 2010


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Material Interim Amendment -, September ,

Tis Material Interim Amendment modifies the October , version of the MCC Program Procurement

Guidelines (PPG). Te changes indicated in this amendment will be effective as set out in the section entitled

Effectiveness and Application of Amendment above. Te changes will be incorporated into a future revision of

the PPG.

MCC and MCA staff shall make the following changes to their copies of the PPG and insert the table found at the

end of Attachment . Te changes may be made by inserting change pages to the documents or by marking the

change to the appropriate table or paragraph. A copy of this Material Interim Amendment is to be maintained by

the MCA Procurement Director and the MCA Procurement Agents in a file/binder for use as a reference by staff

and auditors.

. RAIONALE for Amendment

a. MCC-funded procurements embrace international transparent, competitive bidding in the inter-

est of value for money.

MCC is authorized by the United States Congress to provide grant assistance to fund economic

growth and poverty reduction investments, with program procurements conducted using open,

fair, and competitive procedures in a transparent manner. Tis authority is consistent with deliver-

ing effective aid. ransparency and open competition in procurement lead to the best value for

taxpayer money and stretches MCCs resources.

b. Tis Amendment will help ensure a level playing field for commercial firms from all countries.

As MCCs program portfolio matures, the agency has observed that more GOEs are winning

contracts. Noting that GOEs often compete with some form of support from their home govern-

ment, MCC is taking this action to help ensure a level playing field for commercial firms from all

countries to compete for MCC-funded contracts.

. AMENDMENS

a. Section P.A..(c) of the MCC Program Procurement Guidelines is amended by striking the existing

text and replacing it with the following:

Te eligibility of Government-Owned Enterprises to offer goods, works, and non-consultant

services for MCC-funded Projects will be determined in accordance with Part , Government-

Owned Enterprises, of these Guidelines.

b. Section P.A.. of the MCC Program Procurement Guidelines is amended by adding the following

to the end of the first paragraph of the existing section, just before the sentence Te use of Force

Account may be justified where:


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For purposes of these Guidelines Force Account and the units that carry out Force Account

activities will be defined solely as the Force Account units of the Government of the MCA Entitys

country.

c. Section P.B..(b) of the MCC Program Procurement Guidelines is amended by striking the existing


Te eligibility of Government-Owned Enterprises to offer consultant services for MCC-funded

Projects will be determined in accordance with Part , Government-Owned Enterprises, of these

Guidelines.

d. Section P.B..(c) of the MCC Program Procurement Guidelines is amended by striking the existing


Reserved.

e. Te MCC Program Procurement Guidelines are amended by inserting Annex of this Amendment

as a new Part of the Guidelines.

. GENERAL PROVISIONS

a. Except as expressly amended by this Amendment, all of the terms and conditions of the MCC

Program Procurement Guidelines remain unamended and shall remain in full force and effect in ac-

cordance with their terms. Tis Amendment shall be limited as provided for herein, and shall not be

deemed to be a waiver of, amendment of, consent to, or modification of any other term or provisionof the MCC Program Procurement Guidelines.

b. On and after the date of the Procurement Notice associated with this Amendment, each reference

in the MCC Program Procurement Guidelines to these Guidelines, and any other reference to the

MCC Program Procurement Guidelines will, unless otherwise stated, be construed to refer to the

MCC Program Procurement Guidelines as amended by this Amendment.


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Annex

Part . Government-Owned Enterprises

P. Defined TermsFor the purposes of these provisions, the terms set forth below are defined as follows:

P.. Government-Owned Enterprise or GOE is any enterprise established for a commercial or business

purpose that is owned and/or controlled by a Government (whether directly or indirectly).

P.. Government means one or more governments, including any agency, instrumentality, subdivision orother unit of government at any level of jurisdiction (national or subnational).

P.. owned means a majority or controlling interest (whether by value or voting interest) of the shares or

other ownership interest of the entity is owned (whether directly or indirectly and whether through

fiduciaries, agents or other means).

P.. controlled by necessarily is determined on a case-by-case basis, but means material support for or the

power by any means to control an enterprise (regardless of (i) the level of ownership, or (ii) whether or

not the power is exercised). Indicative criteria relevant to determining whether an enterprise is con-

trolled by a Government include, but are not limited to, the following:

a. whether a Government holds a direct or indirect controlling interest in the enterprises capital or

voting rights;

b. the extent to which the enterprise receives subsidies and other support from a Government;

c. whether a Government has granted to the enterprise any special or exclusive legal or economic rights

or benefits that may alter the competitiveness of the enterprises goods, works or services in a com-

mercial market or otherwise influence the enterprises business decisions; and

d. the extent to which a Government has the power to direct or decide significant matters affecting the

enterprise including, but not limited to, the following matters:

i. the reorganization, merger, or dissolution of the enterprise or the formation or acquisition of a

subsidiary or other affiliate of the enterprise;


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ii. any sale, lease, mortgage, pledge, or other transfer of any of the principal assets of the enterprise,

whether tangible or intangible, and whether or not in the ordinary course of business;

iii. the closing, relocation, or substantial alteration of the production, operational, or other material

activities of the enterprise;

iv. the execution, termination, or non-fulfillment by the enterprise of material contracts; and

v. the appointment or dismissal of managers, directors, officers or senior personnel or other partici-

pation in the management or control of the enterprise.

Additional evidence of control may be found in the organizational history of the enterprise regardless of

its current status. In some cases a GOE may be privatized or otherwise reorganized in such manner that

it loses its status as a GOE. In other cases, a GOE may purportedly have been privatized, but continue to

receive subsidies or other forms of support from a Government to such a degree that it can effectively beconsidered to be controlled by the Government.

P.. Force Account and the units that carry out Force Account activities have the meaning specified in sec-

tion P.A.. of these Guidelines.

P. Eligibility of Government-Owned EnterprisesP.. Government-Owned Enterprises are not eligible to compete for MCC-funded contracts. Accordingly,

GOEs (i) may not be party to any MCC-funded contract for goods, works, or services procured through

an open solicitation process, limited bidding, direct contracting, or sole source selection; and (ii) may not

be pre-qualified or shortlisted for any MCC-funded contract anticipated to be procured through these

means.

P... Tis prohibition does not apply to Government-owned Force Account units, educational institutions

and research centers, or any statistical, mapping or other technical entities not formed primarily for

a commercial or business purpose, or where a waiver is granted by MCC in accordance with Part ,

Amendments and Waivers, of these Guidelines.

P... Notwithstanding section P.. of Part , Amendment and Waivers, of these Guidelines, any waiver of the

provisions of this Part will be granted by the Vice President for Compact Operations with the concur-

rence of the Vice President and General Counsel and the Vice President for Policy and Evaluation and

following notice to the Office of the Chief Executive Officer.


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P. Compliance and PenaltiesP.. Each entity submitting a bid or proposal, or participating in any pre-qualification or shortlisting process,

for any MCC-funded contract must make, as part of its bid or proposal, a certification, in form and

substance satisfactory to MCC, that it is not a GOE. Tis certification will include the completion of a

checklist/questionnaire based upon the definition of owned and the criteria set out in the definition of

controlled by in section P. above and will include any supporting documentation as MCC may, from

time to time, require.

P.. As part of an MCA Entitys obligation to confirm eligibility of entities in connection with the exami-

nation of bids for procurements for goods, works and non-consultant services and of proposals for

consultant services for any MCC-funded contract, the MCA Entity will review the certification and

any supporting material submitted by each entity submitting a bid or proposal in accordance with the

immediately preceding clause P... If the procurement begins with a pre-qualification of bidders or

shortlisting of consultants, the MCA Entity will have the same obligation to confirm eligibility of each

entity qualified or shortlisted.

P.. Prior to announcing the winning bidder or consultant in a procurement related to any MCC-funded con-

tract, or any list of pre-qualified bidders or shortlisted consultants in respect of a contemplated procure-

ment related to any MCC-funded contract, the MCA Entity will verify the eligibility of such bidder(s) or

consultant(s) with MCC. MCC will maintain a database (internally, through subscription services, or

both) of known GOEs and each winning or pre-qualified bidder and winning or shortlisted consultant

will be compared against the database and subject to such further due diligence as MCC may determine

necessary under the circumstances, prior to the winning bidder or consultant being announced.

P.. Any violation of the provisions of this Part by any entity submitting a bid or proposal, or participating

in any pre-qualification or shortlisting process, for any MCC-funded contract may be deemed a fraudu-

lent practice for purposes of these Guidelines and any other applicable MCC policy or guidance, includ-

ing MCCs Policy on Preventing, Detecting and Remediating Fraud and Corruption in MCC Operations.

P.. Any entity that is determined by MCC to have organized itself, subcontracted any part of its MCC-

funded contract, or otherwise associated itself with any other entity for thepurpose of, or with the actual

or potential effect of, avoiding or otherwise subverting the provisions of this Part may be deemed to

be a GOE for all purposes of these and other provisions of these Guidelines.

P.. Any reasonable allegation that any entity submitting a bid or proposal for any MCC-funded contract

has violated the provisions of this Part shall be subject to review in a bid challenge in accordance with

these Guidelines and the MCA Entitys Bid Challenge System.


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Insert the following Index of Interim Amendments in the front of copies of the PPG.

MCC Program

Procurement Guidelines(// Version)

Index of Interim Amendments

Interim Amendment Issue Date

- (Material Interim Amendment) September ,


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Attachment :

Standard Bidding Document ChangesTe following changes shall be made to the English versions of the SBDs posted on the MCC website. MCAsusing the French and Spanish versions of the SBDs should make equivalent changes to those SBDs. In the attach-

ments below, where there is a reference saying [Attached to this Form], please insert the text fromAttachment

(Government-Owned Enterprise Certification).

. Procurement of Consultant Services

a. Replace text in .. of the Instructions to Consultants with the GOE Provision (Attachment of this

Notice)

b. Replace Tech Form : Technical Proposal Submission Formwith text inAttachment of this Notice

. Procurement of Goods and Services

a. Replace . of the Instructions to Bidders with the GOE Provision (Attachment of this Notice)

b. ReplaceBSF: Bid Submission FormwithBSFandBSF.inAttachment of this Notice

c. ReplaceBSFandBSFwith the formsBSFandBSFinAttachment of this Notice

. Procurement of Small Works


b. Replace bid form: Qualification Informationwith text inAttachment of this Notice

. Procurement of Large Works


b. ReplaceB. Bidder Information Forms; Bidder Information Sheetwith text inAttachment of this

Notice

c. Replace Joint Venture Information Sheet with form inAttachment of this Notice

. Procurement of Design/Build Works

http://www.mcc.gov/documents/guidance/amend-2010-001-04-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-04-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-03-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-05-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-03-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-06-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-08-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-03-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-07-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-03-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-08-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-08-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-03-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-03-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-08-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-08-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-03-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-07-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-03-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-08-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-06-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-03-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-05-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-03-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-04-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-04-ppg.docx


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b. ReplaceB. Bidder Information Forms; Bidder Information Sheetwith text inAttachment of this

Notice

c. Replace Joint Venture Information Sheet with form inAttachment of this Notice

. Pre-qualification of Works

a. Replace . of the Instructions to Applicants with the new GOE Provision (Attachment of this

Notice)

b. Replace forms ELI . and ELI . with text inAttachment of this Notice
http://www.mcc.gov/documents/guidance/amend-2010-001-08-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-08-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-03-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-09-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-09-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-03-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-08-ppg.docxhttp://www.mcc.gov/documents/guidance/amend-2010-001-08-ppg.docx