FOCA Act

II 116TH CONGRESS 1ST SESSION S. 907 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 MARCH 27, 2019 Mr. YOUNG (for himself and Mr. PERDUE) 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 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’’. 5 SEC. 2. PURPOSES. 6 It is the purpose of this Act to— 7 VerDate Sep 11 2014 22:15 Apr 02, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S907.IS S907 kjohnson on DSK79L0C42 with BILLS 2 •S 907 IS (1) promote and ensure open competition on 1 Federal and federally funded or assisted construc- 2 tion projects; 3 (2) maintain Federal Government neutrality to- 4 wards the labor relations of Federal Government 5 contractors on Federal and federally funded or as- 6 sisted construction projects; 7 (3) reduce construction costs to the Federal 8 Government and to the taxpayers; 9 (4) expand job opportunities, especially for 10 small and disadvantaged businesses; and 11 (5) prevent discrimination against Federal Gov- 12 ernment contractors or their employees based upon 13 labor affiliation or the lack thereof, thereby pro- 14 moting the economical, nondiscriminatory, and effi- 15 cient administration and completion of Federal and 16 federally funded or assisted construction projects. 17 SEC. 3. PRESERVATION OF OPEN COMPETITION AND FED- 18 ERAL GOVERNMENT NEUTRALITY. 19 (a) PROHIBITION.— 20 (1) GENERAL RULE.—The head of each execu- 21 tive agency that awards or enters into any construc- 22 tion contract or that obligates funds pursuant to 23 such a contract, shall ensure that the agency, and 24 any construction manager acting on behalf of the 25 VerDate Sep 11 2014 22:15 Apr 02, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S907.IS S907 kjohnson on DSK79L0C42 with BILLS 3 •S 907 IS Federal Government with respect to such contract, 1 in its bid specifications, project agreements, or other 2 controlling documents does not— 3 (A) require or prohibit a bidder, offeror, 4 contractor, or subcontractor from entering into, 5 or adhering to, agreements with 1 or more 6 labor organizations, with respect to that con- 7 struction project or another related construction 8 project; or 9 (B) discriminate against or give preference 10 to a bidder, offeror, contractor, or subcon- 11 tractor because such bidder, offeror, contractor, 12 or subcontractor— 13 (i) becomes a signatory, or otherwise 14 adheres to, an agreement with 1 or more 15 labor organizations with respect to that 16 construction project or another related 17 construction project; or 18 (ii) refuses to become a signatory, or 19 otherwise adhere to, an agreement with 1 20 or more labor organizations with respect to 21 that construction project or another related 22 construction project. 23 (2) APPLICATION OF PROHIBITION.—This sub- 24 section shall apply with respect to— 25 VerDate Sep 11 2014 22:15 Apr 02, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S907.IS S907 kjohnson on DSK79L0C42 with BILLS 4 •S 907 IS (A) contracts awarded on or after the date 1 of the enactment of this Act; and 2 (B) subcontracts awarded under such con- 3 tracts. 4 (3) RULE OF CONSTRUCTION.—Nothing in 5 paragraph (1) may be construed to prohibit a con- 6 tractor or subcontractor from voluntarily entering 7 into an agreement described in such paragraph. 8 (4) FEDERAL ACQUISITION REGULATION.—Not 9 later than 60 days after the date of the enactment 10 of this Act, the Federal Acquisition Regulation shall 11 be revised to implement the provisions of this sub- 12 section. 13 (b) RECIPIENTS OF GRANTS AND OTHER ASSIST- 14 ANCE.—The head of each executive agency that awards 15 grants, provides financial assistance, or enters into cooper- 16 ative agreements for construction projects after the date 17 of the enactment of this Act shall ensure that— 18 (1) the bid specifications, project agreements, 19 or other controlling documents for such construction 20 projects of a recipient of a grant or financial assist- 21 ance, or by the parties to a cooperative agreement, 22 do not contain any of the requirements or prohibi- 23 tions described in subparagraph (A) or (B) of sub- 24 section (a)(1); or 25 VerDate Sep 11 2014 22:15 Apr 02, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S907.IS S907 kjohnson on DSK79L0C42 with BILLS 5 •S 907 IS (2) the bid specifications, project agreements, 1 or other controlling documents for such construction 2 projects of a construction manager acting on behalf 3 of a recipient or party described in paragraph (1) do 4 not contain any of the requirements or prohibitions 5 described in subparagraph (A) or (B) of subsection 6 (a)(1). 7 (c) FAILURE TO COMPLY.—If an executive agency, 8 a recipient of a grant or financial assistance from an exec- 9 utive agency, a party to a cooperative agreement with an 10 executive agency, or a construction manager acting on be- 11 half of such an agency, recipient, or party, fails to comply 12 with subsection (a) or (b), the head of the executive agency 13 awarding the contract, grant, or assistance, or entering 14 into the agreement involved, shall take such action, con- 15 sistent with the law, as the head of such agency deter- 16 mines to be appropriate. 17 (d) EXEMPTIONS.— 18 (1) IN GENERAL.—The head of an executive 19 agency may exempt a particular project, contract, 20 subcontract, grant, or cooperative agreement from 21 the requirements of 1 or more of the provisions of 22 subsections (a) and (b) if the head of such agency 23 determines that special circumstances exist that re- 24 quire an exemption in order to avert an imminent 25 VerDate Sep 11 2014 22:15 Apr 02, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S907.IS S907 kjohnson on DSK79L0C42 with BILLS 6 •S 907 IS threat to public health or safety or to serve the na- 1 tional security. 2 (2) SPECIAL CIRCUMSTANCES.—For purposes 3 of paragraph (1), a finding of special circumstances 4 may not be based on the possibility or existence of 5 a labor dispute concerning contractors or sub- 6 contractors that are nonsignatories to, or that other- 7 wise do not adhere to, agreements with 1 or more 8 labor organizations, or labor disputes concerning em- 9 ployees on the project who are not members of, or 10 affiliated with, a labor organization. 11 (3) ADDITIONAL EXEMPTION FOR CERTAIN 12 PROJECTS.—The head of an executive agency, upon 13 application of an awarding authority, a recipient of 14 grants or financial assistance, a party to a coopera- 15 tive agreement, or a construction manager acting on 16 behalf of any of such entities, may exempt a par- 17 ticular project from the requirements of any or all 18 of the provisions of subsection (a) or (b), if the head 19 of such agency finds— 20 (A) that the awarding authority, recipient 21 of grants or financial assistance, party to a co- 22 operative agreement, or construction manager 23 acting on behalf of any of such entities had 24 issued or was a party to, as of the date of the 25 VerDate Sep 11 2014 22:15 Apr 02, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S907.IS S907 kjohnson on DSK79L0C42 with BILLS 7 •S 907 IS enactment of this Act, bid specifications, project 1 agreements, agreements with 1 or more labor 2 organizations, or other controlling documents 3 with respect to that particular project, which 4 contained any of the requirements or prohibi- 5 tions set forth in subsection (a)(1); and 6 (B) that 1 or more construction contracts 7 subject to such requirements or prohibitions 8 had been awarded as of the date of the enact- 9 ment of this Act. 10 (e) DEFINITIONS.—In this section: 11 (1) CONSTRUCTION CONTRACT.—The term 12 ‘‘construction contract’’ means any contract for the 13 construction, rehabilitation, alteration, conversion, 14 extension, or repair of buildings, highways, or other 15 improvements to real property. 16 (2) EXECUTIVE AGENCY.—The term ‘‘executive 17 agency’’ has the meaning given the term ‘‘Executive 18 agency’’ in section 105 of title 5, United States 19 Code, except that such term does not include the 20 Government Accountability Office. 21 (3) LABOR ORGANIZATION.—The term ‘‘labor 22 organization’’ has the meaning given such term in 23 VerDate Sep 11 2014 22:15 Apr 02, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S907.IS S907 kjohnson on DSK79L0C42 with BILLS 8 •S 907 IS section 701 of the Civil Rights Act of 1964 (42 1 U.S.C. 2000e). 2 Æ VerDate Sep 11 2014 22:15 Apr 02, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\S907.IS S907 kjohnson on DSK79L0C42 with BILLS