FOCA Act

I 117TH CONGRESS 1ST SESSION H. R. 1284 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 HOUSE OF REPRESENTATIVES FEBRUARY 24, 2021 Mr. BUDD (for himself, Mr. MOOLENAAR, Mr. GAETZ, Mr. PERRY, Mr. BANKS, Mr. STEUBE, Mr. STEWART, Mr. ROSENDALE, Mr. MULLIN, Mr. NORMAN, Mr. HICE of Georgia, Mr. HARRIS, Mr. CAWTHORN, Mr. KELLY of Mississippi, Mr. JACKSON, Ms. MACE, Mr. WEBER of Texas, Mr. CARTER of Texas, Mr. COLE, Mrs. RODGERS of Washington, Mr. CURTIS, Mr. ISSA, Mrs. HINSON, Mr. LATTA, Mr. WITTMAN, Mr. RICE of South Carolina, Mr. JOHNSON of Louisiana, Mr. SESSIONS, Mr. BABIN, Mr. TIFFANY, Mr. SMITH of Missouri, Mr. CARL, Mr. COMER, Mr. LONG, Mr. HERN, Mr. OWENS, Mr. RUTHERFORD, and Mr. ALLEN) introduced the following bill; which was referred to the Committee on Oversight and Reform A BILL To preserve open competition and Federal Government neu- trality 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 Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 00:58 Mar 21, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1284.IH H1284 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 1284 IH SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Fair and Open Com- 2 petition Act’’ or the ‘‘FOCA Act’’. 3 SEC. 2. PURPOSES. 4 It is the purpose of this Act to— 5 (1) promote and ensure open competition on 6 Federal and federally funded or assisted construc- 7 tion projects; 8 (2) maintain Federal Government neutrality to- 9 wards the labor relations of Federal Government 10 contractors on Federal and federally funded or as- 11 sisted construction projects; 12 (3) reduce construction costs to the Federal 13 Government and to the taxpayers; 14 (4) expand job opportunities, especially for 15 small and disadvantaged businesses; and 16 (5) prevent discrimination against Federal Gov- 17 ernment contractors or their employees based upon 18 labor affiliation or the lack thereof, thereby pro- 19 moting the economical, nondiscriminatory, and effi- 20 cient administration and completion of Federal and 21 federally funded or assisted construction projects. 22 SEC. 3. PRESERVATION OF OPEN COMPETITION AND FED- 23 ERAL GOVERNMENT NEUTRALITY. 24 (a) PROHIBITION.— 25 VerDate Sep 11 2014 00:58 Mar 21, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1284.IH H1284 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 1284 IH (1) GENERAL RULE.—The head of each execu- 1 tive agency that awards or enters into any construc- 2 tion contract or that obligates funds pursuant to 3 such a contract, shall ensure that the agency, and 4 any construction manager acting on behalf of the 5 Federal Government with respect to such contract, 6 in its bid specifications, project agreements, or other 7 controlling documents does not— 8 (A) require or prohibit a bidder, offeror, 9 contractor, or subcontractor from entering into, 10 or adhering to, agreements with 1 or more 11 labor organizations, with respect to that con- 12 struction project or another related construction 13 project; or 14 (B) discriminate against or give preference 15 to a bidder, offeror, contractor, or subcon- 16 tractor because such bidder, offeror, contractor, 17 or subcontractor— 18 (i) becomes a signatory, or otherwise 19 adheres to, an agreement with 1 or more 20 labor organizations with respect to that 21 construction project or another related 22 construction project; or 23 (ii) refuses to become a signatory, or 24 otherwise adhere to, an agreement with 1 25 VerDate Sep 11 2014 00:58 Mar 21, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1284.IH H1284 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 1284 IH or more labor organizations with respect to 1 that construction project or another related 2 construction project. 3 (2) APPLICATION OF PROHIBITION.—This sub- 4 section shall apply with respect to— 5 (A) contracts awarded on or after the date 6 of the enactment of this Act; and 7 (B) subcontracts awarded under such con- 8 tracts. 9 (3) RULE OF CONSTRUCTION.—Nothing in 10 paragraph (1) may be construed to prohibit a con- 11 tractor or subcontractor from voluntarily entering 12 into an agreement described in such paragraph. 13 (4) FEDERAL ACQUISITION REGULATION.—Not 14 later than 60 days after the date of the enactment 15 of this Act, the Federal Acquisition Regulation shall 16 be revised to implement the provisions of this sub- 17 section. 18 (b) RECIPIENTS OF GRANTS AND OTHER ASSIST- 19 ANCE.—The head of each executive agency that awards 20 grants, provides financial assistance, or enters into cooper- 21 ative agreements for construction projects after the date 22 of the enactment of this Act shall ensure that— 23 (1) the bid specifications, project agreements, 24 or other controlling documents for such construction 25 VerDate Sep 11 2014 00:58 Mar 21, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1284.IH H1284 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 1284 IH projects of a recipient of a grant or financial assist- 1 ance, or by the parties to a cooperative agreement, 2 do not contain any of the requirements or prohibi- 3 tions described in subparagraph (A) or (B) of sub- 4 section (a)(1); or 5 (2) the bid specifications, project agreements, 6 or other controlling documents for such construction 7 projects of a construction manager acting on behalf 8 of a recipient or party described in paragraph (1) do 9 not contain any of the requirements or prohibitions 10 described in subparagraph (A) or (B) of subsection 11 (a)(1). 12 (c) FAILURE TO COMPLY.—If an executive agency, 13 a recipient of a grant or financial assistance from an exec- 14 utive agency, a party to a cooperative agreement with an 15 executive agency, or a construction manager acting on be- 16 half of such an agency, recipient, or party, fails to comply 17 with subsection (a) or (b), the head of the executive agency 18 awarding the contract, grant, or assistance, or entering 19 into the agreement involved, shall take such action, con- 20 sistent with the law, as the head of such agency deter- 21 mines to be appropriate. 22 (d) EXEMPTIONS.— 23 (1) IN GENERAL.—The head of an executive 24 agency may exempt a particular project, contract, 25 VerDate Sep 11 2014 00:58 Mar 21, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1284.IH H1284 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 1284 IH subcontract, grant, or cooperative agreement from 1 the requirements of 1 or more of the provisions of 2 subsections (a) and (b) if the head of such agency 3 determines that special circumstances exist that re- 4 quire an exemption in order to avert an imminent 5 threat to public health or safety or to serve the na- 6 tional security. 7 (2) SPECIAL CIRCUMSTANCES.—For purposes 8 of paragraph (1), a finding of special circumstances 9 may not be based on the possibility or existence of 10 a labor dispute concerning contractors or sub- 11 contractors that are nonsignatories to, or that other- 12 wise do not adhere to, agreements with 1 or more 13 labor organizations, or labor disputes concerning em- 14 ployees on the project who are not members of, or 15 affiliated with, a labor organization. 16 (3) ADDITIONAL EXEMPTION FOR CERTAIN 17 PROJECTS.—The head of an executive agency, upon 18 application of an awarding authority, a recipient of 19 grants or financial assistance, a party to a coopera- 20 tive agreement, or a construction manager acting on 21 behalf of any of such entities, may exempt a par- 22 ticular project from the requirements of any or all 23 of the provisions of subsection (a) or (b), if the head 24 of such agency finds— 25 VerDate Sep 11 2014 00:58 Mar 21, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1284.IH H1284 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 1284 IH (A) that the awarding authority, recipient 1 of grants or financial assistance, party to a co- 2 operative agreement, or construction manager 3 acting on behalf of any of such entities had 4 issued or was a party to, as of the date of the 5 enactment of this Act, bid specifications, project 6 agreements, agreements with 1 or more labor 7 organizations, or other controlling documents 8 with respect to that particular project, which 9 contained any of the requirements or prohibi- 10 tions set forth in subsection (a)(1); and 11 (B) that 1 or more construction contracts 12 subject to such requirements or prohibitions 13 had been awarded as of the date of the enact- 14 ment of this Act. 15 (e) DEFINITIONS.—In this section: 16 (1) CONSTRUCTION CONTRACT.—The term 17 ‘‘construction contract’’ means any contract for the 18 construction, rehabilitation, alteration, conversion, 19 extension, or repair of buildings, highways, or other 20 improvements to real property. 21 (2) EXECUTIVE AGENCY.—The term ‘‘executive 22 agency’’ has the meaning given the term ‘‘Executive 23 agency’’ in section 105 of title 5, United States 24 VerDate Sep 11 2014 00:58 Mar 21, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1284.IH H1284 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 1284 IH Code, except that such term does not include the 1 Government Accountability Office. 2 (3) LABOR ORGANIZATION.—The term ‘‘labor 3 organization’’ has the meaning given such term in 4 section 701 of the Civil Rights Act of 1964 (42 5 U.S.C. 2000e). 6 Æ VerDate Sep 11 2014 00:58 Mar 21, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\H1284.IH H1284 kjohnson on DSK79L0C42PROD with BILLS