Fair and Open Competition Act or the FOCA Act
This bill prohibits federal construction contracts or controlling documents for federally supported construction projects from requiring or prohibiting project labor agreements. Such documents also may not discriminate against or give preference to a bidder or contractor who signs or refuses to sign a project labor agreement.
An agency may exempt a project from this prohibition to avert an imminent threat to public health or safety or to serve the national security.
[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 403 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
1st Session
S. 403
To preserve open competition and Federal Government neutrality towards
the labor relations of Federal Government contractors on Federal and
federally funded construction projects, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 24, 2021
Mr. Young (for himself and Mr. Scott of South Carolina) introduced the
following bill; which was read twice and referred to the Committee on
Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To preserve open competition and Federal Government neutrality towards
the labor relations of Federal Government contractors on Federal and
federally funded construction projects, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fair and Open Competition Act'' or
the ``FOCA Act''.
SEC. 2. PURPOSES.
It is the purpose of this Act to--
(1) promote and ensure open competition on Federal and
federally funded or assisted construction projects;
(2) maintain Federal Government neutrality towards the
labor relations of Federal Government contractors on Federal
and federally funded or assisted construction projects;
(3) reduce construction costs to the Federal Government and
to the taxpayers;
(4) expand job opportunities, especially for small and
disadvantaged businesses; and
(5) prevent discrimination against Federal Government
contractors or their employees based upon labor affiliation or
the lack thereof, thereby promoting the economical,
nondiscriminatory, and efficient administration and completion
of Federal and federally funded or assisted construction
projects.
SEC. 3. PRESERVATION OF OPEN COMPETITION AND FEDERAL GOVERNMENT
NEUTRALITY.
(a) Prohibition.--
(1) General rule.--The head of each executive agency that
awards or enters into any construction contract or that
obligates funds pursuant to such a contract, shall ensure that
the agency, and any construction manager acting on behalf of
the Federal Government with respect to such contract, in its
bid specifications, project agreements, or other controlling
documents does not--
(A) require or prohibit a bidder, offeror,
contractor, or subcontractor from entering into, or
adhering to, agreements with 1 or more labor
organizations, with respect to that construction
project or another related construction project; or
(B) discriminate against or give preference to a
bidder, offeror, contractor, or subcontractor because
such bidder, offeror, contractor, or subcontractor--
(i) becomes a signatory, or otherwise
adheres to, an agreement with 1 or more labor
organizations with respect to that construction
project or another related construction
project; or
(ii) refuses to become a signatory, or
otherwise adhere to, an agreement with 1 or
more labor organizations with respect to that
construction project or another related
construction project.
(2) Application of prohibition.--This subsection shall
apply with respect to--
(A) contracts awarded on or after the date of the
enactment of this Act; and
(B) subcontracts awarded under such contracts.
(3) Rule of construction.--Nothing in paragraph (1) may be
construed to prohibit a contractor or subcontractor from
voluntarily entering into an agreement described in such
paragraph.
(4) Federal acquisition regulation.--Not later than 60 days
after the date of the enactment of this Act, the Federal
Acquisition Regulation shall be revised to implement the
provisions of this subsection.
(b) Recipients of Grants and Other Assistance.--The head of each
executive agency that awards grants, provides financial assistance, or
enters into cooperative agreements for construction projects after the
date of the enactment of this Act shall ensure that--
(1) the bid specifications, project agreements, or other
controlling documents for such construction projects of a
recipient of a grant or financial assistance, or by the parties
to a cooperative agreement, do not contain any of the
requirements or prohibitions described in subparagraph (A) or
(B) of subsection (a)(1); or
(2) the bid specifications, project agreements, or other
controlling documents for such construction projects of a
construction manager acting on behalf of a recipient or party
described in paragraph (1) do not contain any of the
requirements or prohibitions described in subparagraph (A) or
(B) of subsection (a)(1).
(c) Failure To Comply.--If an executive agency, a recipient of a
grant or financial assistance from an executive agency, a party to a
cooperative agreement with an executive agency, or a construction
manager acting on behalf of such an agency, recipient, or party, fails
to comply with subsection (a) or (b), the head of the executive agency
awarding the contract, grant, or assistance, or entering into the
agreement involved, shall take such action, consistent with the law, as
the head of such agency determines to be appropriate.
(d) Exemptions.--
(1) In general.--The head of an executive agency may exempt
a particular project, contract, subcontract, grant, or
cooperative agreement from the requirements of 1 or more of the
provisions of subsections (a) and (b) if the head of such
agency determines that special circumstances exist that require
an exemption in order to avert an imminent threat to public
health or safety or to serve the national security.
(2) Special circumstances.--For purposes of paragraph (1),
a finding of special circumstances may not be based on the
possibility or existence of a labor dispute concerning
contractors or subcontractors that are nonsignatories to, or
that otherwise do not adhere to, agreements with 1 or more
labor organizations, or labor disputes concerning employees on
the project who are not members of, or affiliated with, a labor
organization.
(3) Additional exemption for certain projects.--The head of
an executive agency, upon application of an awarding authority,
a recipient of grants or financial assistance, a party to a
cooperative agreement, or a construction manager acting on
behalf of any of such entities, may exempt a particular project
from the requirements of any or all of the provisions of
subsection (a) or (b), if the head of such agency finds--
(A) that the awarding authority, recipient of
grants or financial assistance, party to a cooperative
agreement, or construction manager acting on behalf of
any of such entities had issued or was a party to, as
of the date of the enactment of this Act, bid
specifications, project agreements, agreements with 1
or more labor organizations, or other controlling
documents with respect to that particular project,
which contained any of the requirements or prohibitions
set forth in subsection (a)(1); and
(B) that 1 or more construction contracts subject
to such requirements or prohibitions had been awarded
as of the date of the enactment of this Act.
(e) Definitions.--In this section:
(1) Construction contract.--The term ``construction
contract'' means any contract for the construction,
rehabilitation, alteration, conversion, extension, or repair of
buildings, highways, or other improvements to real property.
(2) Executive agency.--The term ``executive agency'' has
the meaning given the term ``Executive agency'' in section 105
of title 5, United States Code, except that such term does not
include the Government Accountability Office.
(3) Labor organization.--The term ``labor organization''
has the meaning given such term in section 701 of the Civil
Rights Act of 1964 (42 U.S.C. 2000e).
<all>
Introduced in Senate
Read twice and referred to the Committee on Homeland Security and Governmental Affairs.
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