I 111th CONGRESS 2d Session H. R. 6262 IN THE HOUSE OF REPRESENTATIVES September 29, 2010 Mr. Hare (for himself, Mr. Michaud, Mr. Hastings of Florida, Ms. Moore of Wisconsin, Ms. Kaptur, Mr. Grijalva, and Mr. Filner) introduced the following bill; which was referred to the Committee on Oversight and Government Reform, and in addition to the Committee on Armed Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To stimulate job creation by directing Federal procurement to domestic sources, to ensure the enforcement of domestic sourcing requirements, to prohibit the procurement of sweatshop goods by the United States, and for other purposes.

1.

Short title

This Act may be cited as the Jobs Through Procurement Act.

2.

Findings

Congress finds the following: (1)United States Government procurement from domestic manufacturers is vital to economic recovery, and subcontractors should be bound by the same domestic sourcing requirements as prime contractors. (2)The Berry Amendment and the Buy American Act are not implemented as intended by Congress when contractors procure significant amounts of goods from subcontractors that obtain such goods from nondomestic sources. (3)The United States Government should not procure goods manufactured or produced in facilities that do not comply with core labor standards, as defined under the laws of the United States and the Declaration on Fundamental Principles and Rights at Work of the International Labour Organization. (4)Workplaces that violate core labor standards are commonly referred to as sweatshops, and workers have a right to be free of sweatshop working conditions. (5)Subjecting workers to sweatshop conditions is morally offensive to United States citizens as taxpayers and investors, and is degrading to workers. (6)Prohibiting the procurement of sweatshop goods, regardless of the source of the goods, is consistent with the international obligations of the United States because the prohibition applies equally to domestic and foreign products and avoids any discrimination among foreign sources of competing products.

3.

Strengthening enforcement of domestic sourcing requirements

(a)

Buy American Act amendment

Section 2 of the Buy American Act (41 U.S.C. 10a) is amended by adding at the end the following new subsection: (c)

Applicability to contracts and subcontracts for procurement of commercial items

This section is applicable to contracts and subcontracts for the procurement of commercial items notwithstanding section 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 430). . (b)

Contract clause required for prime contracts

(1)

Berry Amendment compliance clause in defense contracts

The Secretary of Defense shall prescribe regulations to require that each contract of the Department of Defense for the procurement of services shall contain a clause ensuring compliance in the procurement of goods by the contractor with section 2533a of title 10, United States Code (popularly known as the Berry Amendment), regardless of whether any goods to be furnished under the contract are specified at the time of the contract. (2)

Buy American Act compliance clause in all Federal contracts

The Federal Acquisition Regulation shall be revised to require that each contract of the Federal Government for the procurement of services shall contain a clause ensuring compliance in the procurement of goods by the contractor with the Buy American Act (41 U.S.C. 10a et seq.), regardless of whether any goods to be furnished are specified at the time of the contract. (c)

Contract clause required for subcontractors

(1)

Berry Amendment compliance

The Secretary of Defense shall prescribe regulations to require that each contract of the Department of Defense shall contain a clause that requires the contractor to include a clause in any subcontract (at any tier) that has a value in excess of $100,000 under the contract ensuring compliance in the procurement of goods by the subcontractor with section 2533a of title 10, United States Code (popularly known as the Berry Amendment). (2)

Buy American Act compliance

The Federal Acquisition Regulation shall be revised to require that each contract of the Federal Government shall contain a clause that requires the contractor to include a clause in any subcontract (at any tier) that has a value in excess of $100,000 under the contract ensuring compliance in the procurement of goods with the Buy American Act (41 U.S.C. 10a et seq.). (d)

Berry Amendment and Buy American Act training

(1)

Acquisition workforce

The Secretary of Defense shall ensure that each member of the acquisition workforce who participates in contracts for services under which a subcontract for the procurement of manufactured or produced goods may be awarded receives training on compliance with section 2533a of title 10, United States Code (popularly known as the Berry Amendment), and the Buy American Act (41 U.S.C. 10a et seq.). (2)

Contractor providing services

The Secretary of Defense shall ensure that any contractor that has been awarded a contract by the Department of Defense to provide services and under which a subcontract for the procurement of manufactured or produced goods may be awarded receives training on compliance with section 2533a of title 10, United States Code (popularly known as the Berry Amendment), and the Buy American Act (41 U.S.C. 10a et seq.). (e)

Certification required for domestic source

Any offeror or contractor that is required to comply with section 2533a of title 10, United States Code (popularly known as the Berry Amendment), or the Buy American Act (41 U.S.C. 10a et seq.) shall certify compliance with such section or such Act and submit to the contracting officer the name of the manufacturer or producer and the address of the manufacturing or production location of all materials, or domestic end products in the case of commercially available off-the-shelf items, including the name of the manufacturer or producer and the address of the manufacturer or production location.

4.

Government procurement of sweatshop goods prohibited

(a)

Amendment to Federal Property and Administrative Services Act of 1949

Title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.) is amended by adding at the end the following new section:

318.

Prohibition on procurement of sweatshop goods and related requirements

(a)

Definitions

In this section: (1)

Core labor standards

(A)

In general

The term core labor standards means, with respect to employees— (i)the right of association; (ii)the right to organize and bargain collectively; (iii)a prohibition on the use of any form of forced or compulsory labor; (iv)a prohibition on discrimination which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; (v)a prohibition of the worst forms of child labor, including all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage, serfdom, and forced or compulsory labor, and work which, by its nature and circumstances in which it is carried out, is likely to harm the health, safety, or morals of children; (vi)a minimum age for the employment of children that is not less than the age of completion of compulsory schooling and not less than 15 years; and (vii)acceptable conditions of work with respect to wages, hours of work, and occupational safety and health. (B)

Additional definitions

For purposes of subparagraph (A): (i)

Acceptable conditions

The term acceptable conditions shall be determined by the laws, regulations, or competent authority of the country in which the labor is performed, except that wages paid shall be no less than the amount sufficient to maintain a standard of living necessary for health, and the general well-being of workers and their families, as determined under clauses (ii) and (iii). (ii)

United States wages

For labor performed in the United States, the wages paid shall not be less than the minimum wage required under section 6 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206), or other applicable statute. (iii)

Wages for other nations

For labor performed in a country other than the United States, the wages paid shall be determined by the Bureau of International Labor Affairs of the United States Department of Labor. (2)

Covered contract

The term covered contract means a contract for a total amount in excess of the micro-purchase threshold, as that term is defined in section 32(f) of the Office of Federal Procurement Policy Act (41 U.S.C. 428(f)). (3)

Sweatfree purchasing consortium

The term Sweatfree Purchasing Consortium means an organization consisting of and for Federal, State, and local government agencies with a mission of ending public purchasing from sweatshops and helping its members make purchases of goods that are not sweatshop goods more effectively and less expensively than any single agency could accomplish on its own. (4)

Sweatshop good

The term sweatshop good means all goods, wares, articles, and merchandise manufactured or produced wholly or in part in violation of core labor standards, as defined in subsection (a). (b)

Bid specifications and preaward procedures

The agency head shall ensure that each bid or proposal submitted for a covered contract includes the following: (1)A list of each subcontractor and production facility to be used in the performance of the covered contract, including company names, owners or officers, complete physical addresses, and the primary business purpose. (2)A certification that each facility listed pursuant to paragraph (1) complies with the core labor standards, or that the contractor has complied with the requirements of subsection (c)(4). (3)If the product is to be manufactured or produced by a third party, a certification that the bidder will purchase the product under terms, including prices and delivery dates, that support and enable the manufacturing or production of the product in a manner that is consistent with core labor standards. (c)

Contractual requirement

The agency head shall ensure that each covered contract entered into by the agency for the procurement of goods includes a clause that requires the contractor— (1)to comply with the requirements of this section; (2)to update the list of subcontractors and production facilities to be used in the performance of the covered contract as needed and to furnish a copy of this section to each subcontractor and require each production facility to affirm that it will comply with core labor standards; (3)to ensure that workers who will manufacture or produce the goods to be provided under the covered contract are informed of the requirements of this section; (4)not later than 30 days after having actual or constructive knowledge of any instance of noncompliance with core labor standards in a facility manufacturing or producing goods to be provided under the covered contract, to— (A)disclose the noncompliance to the relevant agency; and (B)submit to the relevant agency a written corrective action plan, that will become part of the covered contract; (5)not later than 120 days after the submission of the corrective action plan under paragraph (4)(B), or before receipt of half the total remaining value of the covered contract, whichever occurs first, to implement the corrective action plan; and (6)to cooperate fully in providing reasonable access to the contractor’s records, persons, or premises if requested by the contracting agency, the Department of Labor, or the Department of Justice for the purpose of determining whether any good provided under the covered contract is a sweatshop good. (d)

Request for payment

Each request for payment by a contractor under a covered contract shall be considered to be a recertification by the contractor as described in subsections (b)(2) and (b)(3). (e)

Investigations

(1)

In general

Not later than 14 days after the receipt of an allegation of a violation of this section, the agency head shall refer the matter for investigation to the Inspector General of the agency and, as the agency head or the Inspector General determines appropriate, to the Attorney General and the Secretary of Labor if any of the following apply: (A)A contracting officer has independent knowledge that a contractor or a subcontractor has labor policies or practices that are not consistent with core labor standards. (B)An individual files a written complaint directly with the contracting agency that the contractor or subcontractor, to the best of the individual’s knowledge, has labor policies or practices that are not consistent with core labor standards. (C)A contracting officer or the agency head receives any other information providing a reasonable basis for believing that a contractor or subcontractor has labor policies or practices that are not consistent with core labor standards. (2)

Notification

The agency head shall notify the relevant contractor of the allegations and the investigation, including any preliminary findings or recommendations, not later than 90 days after the referral of the matter for investigation under paragraph (1). (3)

Agency cooperation

The agency may cooperate with Federal, State, and local government agencies participating in a Sweatfree Purchasing Consortium (in this section, referred to as Consortium) by notifying the Consortium not later than 14 days after receiving any referral of a matter for investigation under paragraph (1), and may share the findings of any investigation and remedies imposed with the Consortium. (4)

Investigation by the Consortium

If the contractor is a provider of goods to any agency participating in the Consortium, the agency head of the referring agency or its Inspector General, may, notwithstanding any other provision of law, enter into an agreement with the Consortium to conduct the investigation. (f)

Remedies

(1)

In general

The agency head may impose remedies as provided in this subsection if the agency head finds that the contractor has done any of the following: (A)Submitted a false certification under this section. (B)Failed to cooperate with an investigation under this section. (C)Failed to implement a corrective action plan submitted under subsection (c)(4)(B). (2)

Termination of contract

The agency head may terminate a covered contract on the basis of a finding of a violation under paragraph (1). (3)

Suspension of performance

The agency head, on the basis of a finding that the contractor has committed a violation under paragraph (1), may refuse to take delivery of, or pay for, sweatshop goods. (4)

Debarment and suspension

The agency head may suspend a contractor, for a period of not more than 3 years, from eligibility for Federal contracts on the basis of a finding that the contractor has committed a violation under paragraph (1). (5)

Inclusion on list of parties excluded from Federal procurement and nonprocurement programs

The Administrator of General Services shall include on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs maintained by the Administrator under part 9 of the Federal Acquisition Regulation each contractor that is debarred, suspended, proposed for debarment or suspension, or declared ineligible by the agency head on the basis that the contractor has committed a violation under paragraph (1). (6)

Remedies not exclusive

This section shall not be construed to limit other remedies which may be available under United States law. (g)

Advisory board

(1)

Establishment

There is established a board to be known as the Procurement Advisory Board (in this section, referred to as the Board) to oversee and consider issues relating to the implementation and enforcement of this section and to make recommendations relating to such implementation and enforcement. (2)

Collaboration with the Consortium

The Board may collaborate with the Consortium in carrying out the Board’s activities under paragraph (1). (3)

Membership

The Board shall be composed of 7 members appointed by the President as follows: (A)Three members from the Department of Defense. (B)One member from the Department of Labor. (C)Three members who are members of a labor organization as defined in section 2(5) of the National Labor Relations Act (29 U.S.C. 152(5)) or a Joint Labor Management Cooperative Committee established pursuant to section 205A of the Labor Management Relations Act, 1947 (29 U.S.C. 175a). (h)

Phase-In

(1)

Year one

During the first full fiscal year after the effective date of this section, this section shall be enforced only with respect to purchases and contracts for apparel, garments, and corresponding accessories, materials, supplies, or equipment. (2)

Year two

During the second full fiscal year after the effective date of this section, each agency head, in consultation with the Board established under subsection (g), shall select procurement categories (other than apparel, garments, and corresponding accessories, materials, supplies, or equipment) based on the feasibility of implementation and may set phase-in goals and timetables of up to one year for such categories in order to achieve compliance with the requirements of this section.

. (b)

Effective date

The amendment made by this section shall take effect 180 days after the date of the enactment of this Act.

5.

Rule of construction

Nothing in this Act, or the amendments made by this Act, shall be construed to preempt any law of a State or political subdivision of a State that establishes higher wages or labor standards for the mining, production, or manufacture of any good, ware, article, or merchandise purchased by the State or political subdivision of a State than those provided for in this Act.