Federal

FOCA Act of 2023

Source: Congress.gov · 2,117 words in original text

What This Bill Does

This bill prevents federal agencies from requiring or prohibiting construction contractors from joining labor unions on federal or federally funded building projects. The bill aims to keep the federal government neutral on labor issues and maintain open competition among contractors. ##

Who It Affects

- Federal agencies that award construction contracts - Construction contractors and subcontractors - Recipients of federal grants or financial assistance for construction - Construction managers working on federal projects - Small and disadvantaged businesses bidding on federal construction work ##

Key Provisions

- Federal agencies cannot require contractors to sign labor union agreements or prohibit them from doing so when bidding on federal construction projects. (Sec. 3(a)(1)(A)) - Federal agencies cannot discriminate against or favor contractors based on whether they join a labor union or refuse to join one. (Sec. 3(a)(1)(B)) - These rules apply to all construction contracts awarded after the bill becomes law and to subcontracts under those contracts. (Sec. 3(a)(2)) - The Federal Acquisition Regulation (a set of rules for how the government buys things) must be updated within 60 days of the bill becoming law to include these new requirements. (Sec. 3(a)(4)) - Agencies can exempt specific projects only if there is an immediate threat to public health, safety, or national security, but labor disputes cannot be used as a reason for exemption. (Sec. 3(d)(1) and (d)(2)) ##

What Changes

If this bill becomes law, federal agencies must stop including requirements or prohibitions about labor union membership in their bid specifications and project agreements for construction work. Contractors who currently have union agreements on existing projects awarded before this bill becomes law may continue those agreements under certain circumstances. ##

Important Definitions

- **Construction contract**: Any agreement to build, fix, or improve buildings, highways, or other structures on land. (Sec. 3(e)(1)) - **Executive agency**: Federal government departments and agencies, but not the Government Accountability Office. (Sec. 3(e)(2)) - **Labor organization**: A group formed to represent workers' interests in employment matters. (Sec. 3(e)(3)) ##

Effective Date

Not specified in bill text. The bill states requirements apply to contracts "awarded on or after the date of the enactment of this Act," but no specific enactment date is provided.

IB Union Calendar No. 734 118TH CONGRESS 2D SESSION H. R. 1209 [Report No. 118–899] 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 27, 2023 Mr. COMER (for himself, Ms. FOXX, Ms. MACE, Mr. MOOLENAAR, Mr. PERRY, Mr. ROSENDALE, Mr. NORMAN, Mr. WEBER of Texas, Mr. JOHNSON of Louisiana, Mr. SESSIONS, Mr. CARL, Mr. HERN, Mr. OWENS, Mr. ALLEN, Mr. CRENSHAW, Ms. BOEBERT, Mr. TIMMONS, Mrs. WAGNER, Mr. BIGGS, Mr. BURCHETT, Mrs. CAMMACK, Mr. MOONEY, Mr. SMUCKER, Mr. WOMACK, Mr. WILSON of South Carolina, Mr. CLOUD, Mr. DUNCAN, Mr. PALMER, Mr. ELLZEY, Mr. DONALDS, Mr. GOSAR, Mrs. HARSHBARGER, Mr. MCCLINTOCK, Mr. FERGUSON, Mr. BISHOP of North Carolina, Mr. LATURNER, Mr. HIGGINS of Louisiana, Mr. FRY, Mr. DESJARLAIS, Mr. MCCORMICK, Mr. MEUSER, Mr. BARR, Mr. FULCHER, Mr. DUNN of Florida, Mr. WALBERG, Mr. FITZGERALD, Mr. BURLISON, Mr. SCHWEIKERT, Mr. CALVERT, Mrs. LESKO, Mr. STEUBE, Mr. CARTER of Texas, Mr. GOOD of Virginia, Mr. SCOTT FRANKLIN of Florida, Ms. LETLOW, Mr. LAMBORN, Mr. WILLIAMS of Texas, Mr. OGLES, Mr. MANN, Mr. MOORE of Alabama, Mr. ROY, Mr. OBERNOLTE, Mr. GUEST, Mr. EZELL, Mrs. MILLER of Illinois, Mr. CRAWFORD, Mr. MURPHY, Ms. GREENE of Georgia, Mr. CARTER of Georgia, Mr. ROUZER, Mr. ROGERS of Alabama, Mr. CISCOMANI, Mr. WEBSTER of Florida, Mr. GOODEN of Texas, Mr. WITTMAN, Mr. NEHLS, Mr. TIFFANY, Mr. GROTHMAN, Mr. JOHNSON of South Dakota, and Mr. RUTHERFORD) in- troduced the following bill; which was referred to the Committee on Over- sight and Accountability VerDate Sep 11 2014 06:31 Dec 19, 2024 Jkt 059200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H1209.RH H1209 kjohnson on DSK7ZCZBW3PROD with $$_JOB 2 •HR 1209 RH DECEMBER 18, 2024 Additional sponsors: Mrs. RODGERS of Washington, Mr. YAKYM, Mr. PENCE, Mr. CLINE, Mrs. STEEL, Mr. JACKSON of Texas, Mr. BABIN, Mr. ADER- HOLT, Mr. THOMPSON of Pennsylvania, Mr. HILL, Mr. GUTHRIE, Mr. FALLON, Ms. LEE of Florida, Mr. HUDSON, Mr. STRONG, Mrs. MCCLAIN, Mr. AUSTIN SCOTT of Georgia, Mr. HUNT, Mr. MASSIE, Mr. ESTES, Mr. BILIRAKIS, Mr. ARMSTRONG, Mrs. HINSON, Mrs. HOUCHIN, Mr. BEAN of Florida, Mr. LAMALFA, Mr. COLLINS, Mr. COLE, Mr. MILLS, Mr. MCHENRY, Mrs. KIGGANS of Virginia, Mr. BUCK, Ms. DE LA CRUZ, Mr. KELLY of Mississippi, Mr. CRANE, Mr. BAIRD, Mrs. BICE, Mr. SELF, Mr. BANKS, Mr. BENTZ, Mr. TONY GONZALES of Texas, Mrs. MILLER of West Virginia, and Ms. HAGEMAN VerDate Sep 11 2014 06:31 Dec 19, 2024 Jkt 059200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6652 E:\BILLS\H1209.RH H1209 kjohnson on DSK7ZCZBW3PROD with $$_JOB 3 •HR 1209 RH DECEMBER 18, 2024 Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed [Strike out all after the enacting clause and insert the part printed in italic] [For text of introduced bill, see copy of bill as introduced on February 27, 2023] VerDate Sep 11 2014 06:31 Dec 19, 2024 Jkt 059200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6652 E:\BILLS\H1209.RH H1209 kjohnson on DSK7ZCZBW3PROD with $$_JOB 4 •HR 1209 RH A BILL To preserve open competition and Federal Government neu- trality towards the labor relations of Federal Government contractors on Federal and federally funded construction projects, and for other purposes. VerDate Sep 11 2014 06:31 Dec 19, 2024 Jkt 059200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6652 E:\BILLS\H1209.RH H1209 kjohnson on DSK7ZCZBW3PROD with $$_JOB 5 •HR 1209 RH 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 Competi- 4 tion Act of 2023’’ or the ‘‘FOCA Act of 2023’’. 5 SEC. 2. PURPOSES. 6 It is the purpose of this Act to— 7 (1) promote and ensure open competition on 8 Federal and federally funded or assisted construction 9 projects; 10 (2) maintain Federal Government neutrality to- 11 wards the labor relations of Federal Government con- 12 tractors on Federal and federally funded or assisted 13 construction projects; 14 (3) reduce construction costs to the Federal Gov- 15 ernment and to the taxpayers; 16 (4) expand job opportunities, especially for small 17 and disadvantaged businesses; and 18 (5) prevent discrimination against Federal Gov- 19 ernment contractors or their employees based upon 20 labor affiliation or the lack thereof, thereby promoting 21 the economical, nondiscriminatory, and efficient ad- 22 ministration and completion of Federal and federally 23 funded or assisted construction projects. 24 VerDate Sep 11 2014 06:31 Dec 19, 2024 Jkt 059200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6203 E:\BILLS\H1209.RH H1209 kjohnson on DSK7ZCZBW3PROD with $$_JOB 6 •HR 1209 RH SEC. 3. PRESERVATION OF OPEN COMPETITION AND FED- 1 ERAL GOVERNMENT NEUTRALITY. 2 (a) PROHIBITION.— 3 (1) GENERAL RULE.—The head of each executive 4 agency that awards or enters into any construction 5 contract or that obligates funds pursuant to such a 6 contract, shall ensure that the agency, and any con- 7 struction manager acting on behalf of the Federal 8 Government with respect to such contract, in its bid 9 specifications, project agreements, or other controlling 10 documents does not— 11 (A) require or prohibit a bidder, offeror, 12 contractor, or subcontractor from entering into, 13 or adhering to, agreements with 1 or more labor 14 organizations, with respect to that construction 15 project or another related construction project; or 16 (B) discriminate against or give preference 17 to a bidder, offeror, contractor, or subcontractor 18 because such bidder, offeror, contractor, or sub- 19 contractor— 20 (i) becomes a signatory, or otherwise 21 adheres to, an agreement with 1 or more 22 labor organizations with respect to that con- 23 struction project or another related con- 24 struction project; or 25 VerDate Sep 11 2014 06:31 Dec 19, 2024 Jkt 059200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6203 E:\BILLS\H1209.RH H1209 kjohnson on DSK7ZCZBW3PROD with $$_JOB 7 •HR 1209 RH (ii) refuses to become a signatory, or 1 otherwise adhere to, an agreement with 1 or 2 more labor organizations with respect to 3 that construction project or another related 4 construction project. 5 (2) APPLICATION OF PROHIBITION.—This sub- 6 section shall apply with respect to— 7 (A) contracts awarded on or after the date 8 of the enactment of this Act; and 9 (B) subcontracts awarded under such con- 10 tracts. 11 (3) RULE OF CONSTRUCTION.—Nothing in para- 12 graph (1) may be construed to prohibit a contractor 13 or subcontractor from voluntarily entering into an 14 agreement described in such paragraph. 15 (4) FEDERAL ACQUISITION REGULATION.—Not 16 later than 60 days after the date of the enactment of 17 this Act, the Federal Acquisition Regulation shall be 18 revised to implement the provisions of this subsection. 19 (b) RECIPIENTS OF GRANTS AND OTHER ASSIST- 20 ANCE.—The head of each executive agency that awards 21 grants, provides financial assistance, or enters into coopera- 22 tive agreements for construction projects after the date of 23 the enactment of this Act shall ensure that— 24 VerDate Sep 11 2014 06:31 Dec 19, 2024 Jkt 059200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6203 E:\BILLS\H1209.RH H1209 kjohnson on DSK7ZCZBW3PROD with $$_JOB 8 •HR 1209 RH (1) the bid specifications, project agreements, or 1 other controlling documents for such construction 2 projects of a recipient of a grant or financial assist- 3 ance, or by the parties to a cooperative agreement, do 4 not contain any of the requirements or prohibitions 5 described in subparagraph (A) or (B) of subsection 6 (a)(1); or 7 (2) the bid specifications, project agreements, or 8 other controlling documents for such construction 9 projects of a construction manager acting on behalf of 10 a recipient or party described in paragraph (1) do 11 not contain any of the requirements or prohibitions 12 described in subparagraph (A) or (B) of subsection 13 (a)(1). 14 (c) FAILURE TO COMPLY.—If an executive agency, a 15 recipient of a grant or financial assistance from an execu- 16 tive agency, a party to a cooperative agreement with an 17 executive agency, or a construction manager acting on be- 18 half of such an agency, recipient, or party, fails to comply 19 with subsection (a) or (b), the head of the executive agency 20 awarding the contract, grant, or assistance, or entering into 21 the agreement involved, shall take such action, consistent 22 with the law, as the head of such agency determines to be 23 appropriate. 24 (d) EXEMPTIONS.— 25 VerDate Sep 11 2014 06:31 Dec 19, 2024 Jkt 059200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6203 E:\BILLS\H1209.RH H1209 kjohnson on DSK7ZCZBW3PROD with $$_JOB 9 •HR 1209 RH (1) IN GENERAL.—The head of an executive 1 agency may exempt a particular project, contract, 2 subcontract, grant, or cooperative agreement from the 3 requirements of 1 or more of the provisions of sub- 4 sections (a) and (b) if the head of such agency deter- 5 mines that special circumstances exist that require an 6 exemption in order to avert an imminent threat to 7 public health or safety or to serve the national secu- 8 rity. 9 (2) SPECIAL CIRCUMSTANCES.—For purposes of 10 paragraph (1), a finding of special circumstances 11 may not be based on the possibility or existence of a 12 labor dispute concerning contractors or subcontractors 13 that are nonsignatories to, or that otherwise do not 14 adhere to, agreements with 1 or more labor organiza- 15 tions, or labor disputes concerning employees on the 16 project who are not members of, or affiliated with, a 17 labor organization. 18 (3) ADDITIONAL EXEMPTION FOR CERTAIN 19 PROJECTS.—The head of an executive agency, upon 20 application of an awarding authority, a recipient of 21 grants or financial assistance, a party to a coopera- 22 tive agreement, or a construction manager acting on 23 behalf of any of such entities, may exempt a par- 24 ticular project from the requirements of any or all of 25 VerDate Sep 11 2014 06:31 Dec 19, 2024 Jkt 059200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\H1209.RH H1209 kjohnson on DSK7ZCZBW3PROD with $$_JOB 10 •HR 1209 RH the provisions of subsection (a) or (b), if the head of 1 such agency finds— 2 (A) that the awarding authority, recipient 3 of grants or financial assistance, party to a co- 4 operative agreement, or construction manager 5 acting on behalf of any of such entities had 6 issued or was a party to, as of the date of the 7 enactment of this Act, bid specifications, project 8 agreements, agreements with 1 or more labor or- 9 ganizations, or other controlling documents with 10 respect to that particular project, which con- 11 tained any of the requirements or prohibitions 12 set forth in subsection (a)(1); and 13 (B) that 1 or more construction contracts 14 subject to such requirements or prohibitions had 15 been awarded as of the date of the enactment of 16 this Act. 17 (e) DEFINITIONS.—In this section: 18 (1) CONSTRUCTION CONTRACT.—The term ‘‘con- 19 struction contract’’ means any contract for the con- 20 struction, rehabilitation, alteration, conversion, exten- 21 sion, or repair of buildings, highways, or other im- 22 provements to real property. 23 (2) EXECUTIVE AGENCY.—The term ‘‘executive 24 agency’’ has the meaning given the term ‘‘Executive 25 VerDate Sep 11 2014 06:31 Dec 19, 2024 Jkt 059200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6203 E:\BILLS\H1209.RH H1209 kjohnson on DSK7ZCZBW3PROD with $$_JOB 11 •HR 1209 RH agency’’ in section 105 of title 5, United States Code, 1 except that such term does not include the Govern- 2 ment Accountability Office. 3 (3) LABOR ORGANIZATION.—The term ‘‘labor or- 4 ganization’’ has the meaning given such term in sec- 5 tion 701 of the Civil Rights Act of 1964 (42 U.S.C. 6 2000e). 7 VerDate Sep 11 2014 06:31 Dec 19, 2024 Jkt 059200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\H1209.RH H1209 kjohnson on DSK7ZCZBW3PROD with $$_JOB Union Calendar No. 734 118TH CONGRESS 2D SESSION H. R. 1209 [Report No. 118–899] A BILL To preserve open competition and Federal Govern- ment neutrality towards the labor relations of Federal Government contractors on Federal and federally funded construction projects, and for other purposes. DECEMBER 18, 2024 Reported with an amendment, committed to the Com- mittee of the Whole House on the State of the Union, and ordered to be printed VerDate Sep 11 2014 06:31 Dec 19, 2024 Jkt 059200 PO 00000 Frm 00012 Fmt 6651 Sfmt 6651 E:\BILLS\H1209.RH H1209 kjohnson on DSK7ZCZBW3PROD with $$_JOB

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