Summary
# Fair and Open Competition Act (S. 537) - Plain English Translation
## WHAT THIS BILL DOES
This bill prevents federal agencies and construction companies receiving federal money from requiring or blocking workers from joining labor unions or union agreements. The bill aims to keep competition open and fair when the federal government pays for construction projects.
## WHO IT AFFECTS
Federal agencies that award construction contracts, construction companies bidding on federal projects, construction subcontractors, companies that receive federal grants for construction, parties involved in federal cooperative agreements (partnerships between organizations), and construction managers working for the federal government.
## KEY PROVISIONS
* Federal agencies cannot require construction companies to sign union agreements or ban them from signing union agreements on federal construction projects (Sec. 3(a)(1)(A))
* Federal agencies cannot favor or punish construction companies based on whether they sign or refuse to sign union agreements (Sec. 3(a)(1)(B))
* Agencies that give out grants or financial assistance for construction projects must ensure their project documents follow the same rules about not requiring or banning union agreements (Sec. 3(b))
* Federal agencies must update their purchasing rules within 60 days to follow this law (Sec. 3(a)(4))
* Agency leaders can exempt projects only if emergency public health, safety or national security threats exist, but labor disputes do not count as a reason for exemption (Sec. 3(d)(1) and (d)(2))
## WHAT CHANGES
If this becomes law, federal construction projects cannot include requirements that force workers into unions or prevent them from joining unions. Construction companies bidding on federal work will no longer face penalties or preferences based on union membership. Agencies will have to remove any existing project language that requires or bans union agreements on new construction contracts and future subcontracts.
## IMPORTANT DEFINITIONS
* **Construction contract:** Any contract to build, fix, alter, extend or repair buildings, highways or other permanent structures (Sec. 3(e)(1))
* **Labor organization:** Not specified in bill text (references existing definition from Civil Rights Act of 1964)
* **Executive agency:** Not specified in bill text (references existing definition from federal law)
## EFFECTIVE DATE
Not specified in bill text
II
118TH CONGRESS
1ST SESSION
S. 537
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 27, 2023
Mr. YOUNG (for himself, Mr. BUDD, Mr. CRAMER, Mr. RISCH, Mr. WICKER,
Mr. HOEVEN, Mrs. BLACKBURN, Mr. SCOTT of Florida, Mr. PAUL, Mr.
SCOTT of South Carolina, Mr. CRAPO, Mr. LEE, Mr. GRASSLEY, Mr.
TILLIS, Mr. CORNYN, Mr. HAGERTY, Mr. CRUZ, Mr. MARSHALL, and Mr.
TUBERVILLE) introduced the following bill; which was read twice and re-
ferred to the Committee on Homeland Security and Governmental Affairs
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
SECTION 1. SHORT TITLE.
3
This Act may be cited as the ‘‘Fair and Open Com-
4
petition Act’’ or the ‘‘FOCA Act’’.
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SEC. 2. PURPOSES.
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It is the purpose of this Act to—
2
(1) promote and ensure open competition on
3
Federal and federally funded or assisted construc-
4
tion projects;
5
(2) maintain Federal Government neutrality to-
6
wards the labor relations of Federal Government
7
contractors on Federal and federally funded or as-
8
sisted construction projects;
9
(3) reduce construction costs to the Federal
10
Government and to the taxpayers;
11
(4) expand job opportunities, especially for
12
small and disadvantaged businesses; and
13
(5) prevent discrimination against Federal Gov-
14
ernment contractors or their employees based upon
15
labor affiliation or the lack thereof, thereby pro-
16
moting the economical, nondiscriminatory, and effi-
17
cient administration and completion of Federal and
18
federally funded or assisted construction projects.
19
SEC. 3. PRESERVATION OF OPEN COMPETITION AND FED-
20
ERAL GOVERNMENT NEUTRALITY.
21
(a) PROHIBITION.—
22
(1) GENERAL RULE.—The head of each execu-
23
tive agency that awards or enters into any construc-
24
tion contract or that obligates funds pursuant to
25
such a contract, shall ensure that the agency, and
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•S 537 IS
any construction manager acting on behalf of the
1
Federal Government with respect to such contract,
2
in its bid specifications, project agreements, or other
3
controlling documents does not—
4
(A) require or prohibit a bidder, offeror,
5
contractor, or subcontractor from entering into,
6
or adhering to, agreements with 1 or more
7
labor organizations, with respect to that con-
8
struction project or another related construction
9
project; or
10
(B) discriminate against or give preference
11
to a bidder, offeror, contractor, or subcon-
12
tractor because such bidder, offeror, contractor,
13
or subcontractor—
14
(i) becomes a signatory, or otherwise
15
adheres to, an agreement with 1 or more
16
labor organizations with respect to that
17
construction project or another related
18
construction project; or
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(ii) refuses to become a signatory, or
20
otherwise adhere to, an agreement with 1
21
or more labor organizations with respect to
22
that construction project or another related
23
construction project.
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(2) APPLICATION OF PROHIBITION.—This sub-
1
section shall apply with respect to—
2
(A) contracts awarded on or after the date
3
of the enactment of this Act; and
4
(B) subcontracts awarded under such con-
5
tracts.
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(3) RULE
OF
CONSTRUCTION.—Nothing in
7
paragraph (1) may be construed to prohibit a con-
8
tractor or subcontractor from voluntarily entering
9
into an agreement described in such paragraph.
10
(4) FEDERAL ACQUISITION REGULATION.—Not
11
later than 60 days after the date of the enactment
12
of this Act, the Federal Acquisition Regulation shall
13
be revised to implement the provisions of this sub-
14
section.
15
(b) RECIPIENTS OF GRANTS AND OTHER ASSIST-
16
ANCE.—The head of each executive agency that awards
17
grants, provides financial assistance, or enters into cooper-
18
ative agreements for construction projects after the date
19
of the enactment of this Act shall ensure that—
20
(1) the bid specifications, project agreements,
21
or other controlling documents for such construction
22
projects of a recipient of a grant or financial assist-
23
ance, or by the parties to a cooperative agreement,
24
do not contain any of the requirements or prohibi-
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tions described in subparagraph (A) or (B) of sub-
1
section (a)(1); or
2
(2) the bid specifications, project agreements,
3
or other controlling documents for such construction
4
projects of a construction manager acting on behalf
5
of a recipient or party described in paragraph (1) do
6
not contain any of the requirements or prohibitions
7
described in subparagraph (A) or (B) of subsection
8
(a)(1).
9
(c) FAILURE TO COMPLY.—If an executive agency,
10
a recipient of a grant or financial assistance from an exec-
11
utive agency, a party to a cooperative agreement with an
12
executive agency, or a construction manager acting on be-
13
half of such an agency, recipient, or party, fails to comply
14
with subsection (a) or (b), the head of the executive agency
15
awarding the contract, grant, or assistance, or entering
16
into the agreement involved, shall take such action, con-
17
sistent with the law, as the head of such agency deter-
18
mines to be appropriate.
19
(d) EXEMPTIONS.—
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(1) IN GENERAL.—The head of an executive
21
agency may exempt a particular project, contract,
22
subcontract, grant, or cooperative agreement from
23
the requirements of 1 or more of the provisions of
24
subsections (a) and (b) if the head of such agency
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determines that special circumstances exist that re-
1
quire an exemption in order to avert an imminent
2
threat to public health or safety or to serve the na-
3
tional security.
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(2) SPECIAL
CIRCUMSTANCES.—For purposes
5
of paragraph (1), a finding of special circumstances
6
may not be based on the possibility or existence of
7
a labor dispute concerning contractors or sub-
8
contractors that are nonsignatories to, or that other-
9
wise do not adhere to, agreements with 1 or more
10
labor organizations, or labor disputes concerning em-
11
ployees on the project who are not members of, or
12
affiliated with, a labor organization.
13
(3) ADDITIONAL
EXEMPTION
FOR
CERTAIN
14
PROJECTS.—The head of an executive agency, upon
15
application of an awarding authority, a recipient of
16
grants or financial assistance, a party to a coopera-
17
tive agreement, or a construction manager acting on
18
behalf of any of such entities, may exempt a par-
19
ticular project from the requirements of any or all
20
of the provisions of subsection (a) or (b), if the head
21
of such agency finds—
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(A) that the awarding authority, recipient
23
of grants or financial assistance, party to a co-
24
operative agreement, or construction manager
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•S 537 IS
acting on behalf of any of such entities had
1
issued or was a party to, as of the date of the
2
enactment of this Act, bid specifications, project
3
agreements, agreements with 1 or more labor
4
organizations, or other controlling documents
5
with respect to that particular project, which
6
contained any of the requirements or prohibi-
7
tions set forth in subsection (a)(1); and
8
(B) that 1 or more construction contracts
9
subject to such requirements or prohibitions
10
had been awarded as of the date of the enact-
11
ment of this Act.
12
(e) DEFINITIONS.—In this section:
13
(1)
CONSTRUCTION
CONTRACT.—The
term
14
‘‘construction contract’’ means any contract for the
15
construction, rehabilitation, alteration, conversion,
16
extension, or repair of buildings, highways, or other
17
improvements to real property.
18
(2) EXECUTIVE AGENCY.—The term ‘‘executive
19
agency’’ has the meaning given the term ‘‘Executive
20
agency’’ in section 105 of title 5, United States
21
Code, except that such term does not include the
22
Government Accountability Office.
23
(3) LABOR ORGANIZATION.—The term ‘‘labor
24
organization’’ has the meaning given such term in
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section 701 of the Civil Rights Act of 1964 (42
1
U.S.C. 2000e).
2
Æ
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