118 HR 1209 RH: Fair and Open Competition Act of 2023
U.S. House of Representatives
2024-12-18
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Union Calendar No. 734
118th CONGRESS
2d Session
H. R. 1209
[Report No. 118–899]
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) introduced the following bill; which was referred to the Committee on Oversight and Accountability
December 18, 2024
Additional sponsors: Mrs. Rodgers of Washington, Mr. Yakym, Mr. Pence, Mr. Cline, Mrs. Steel, Mr. Jackson of Texas, Mr. Babin, Mr. Aderholt, 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
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
A BILL
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.
1.

Short title
This Act may be cited as the “Fair and Open Competition Act of 2023” or the “FOCA Act of 2023”.
2.

Purposes
It is the purpose of this Act to—
(1)
promote and ensure open competition on Federal and federally funded or assisted construction projects;
(2)
maintain Federal Government neutrality towards the labor relations of Federal Government contractors on Federal and federally funded or assisted construction projects;
(3)
reduce construction costs to the Federal Government and to the taxpayers;
(4)
expand job opportunities, especially for small and disadvantaged businesses; and
(5)
prevent discrimination against Federal Government contractors or their employees based upon labor affiliation or the lack thereof, thereby promoting the economical, nondiscriminatory, and efficient administration and completion of Federal and federally funded or assisted construction projects.
3.

Preservation of open competition and Federal Government neutrality
(a)

Prohibition
(1)

General rule
The head of each executive agency that awards or enters into any construction contract or that obligates funds pursuant to such a contract, shall ensure that the agency, and any construction manager acting on behalf of the Federal Government with respect to such contract, in its bid specifications, project agreements, or other controlling documents does not—
(A)
require or prohibit a bidder, offeror, contractor, or subcontractor from entering into, or adhering to, agreements with 1 or more labor organizations, with respect to that construction project or another related construction project; or
(B)
discriminate against or give preference to a bidder, offeror, contractor, or subcontractor because such bidder, offeror, contractor, or subcontractor—
(i)
becomes a signatory, or otherwise adheres to, an agreement with 1 or more labor organizations with respect to that construction project or another related construction project; or
(ii)
refuses to become a signatory, or otherwise adhere to, an agreement with 1 or more labor organizations with respect to that construction project or another related construction project.
(2)

Application of prohibition
This subsection shall apply with respect to—
(A)
contracts awarded on or after the date of the enactment of this Act; and
(B)
subcontracts awarded under such contracts.
(3)

Rule of construction
Nothing in paragraph (1) may be construed to prohibit a contractor or subcontractor from voluntarily entering into an agreement described in such paragraph.
(4)

Federal acquisition regulation
Not later than 60 days after the date of the enactment of this Act, the Federal Acquisition Regulation shall be revised to implement the provisions of this subsection.
(b)

Recipients of grants and other assistance
The head of each executive agency that awards grants, provides financial assistance, or enters into cooperative agreements for construction projects after the date of the enactment of this Act shall ensure that—
(1)
the bid specifications, project agreements, or other controlling documents for such construction projects of a recipient of a grant or financial assistance, or by the parties to a cooperative agreement, do not contain any of the requirements or prohibitions described in subparagraph (A) or (B) of subsection (a)(1); or
(2)
the bid specifications, project agreements, or other controlling documents for such construction projects of a construction manager acting on behalf of a recipient or party described in paragraph (1) do not contain any of the requirements or prohibitions described in subparagraph (A) or (B) of subsection (a)(1).
(c)

Failure To comply
If an executive agency, a recipient of a grant or financial assistance from an executive agency, a party to a cooperative agreement with an executive agency, or a construction manager acting on behalf of such an agency, recipient, or party, fails to comply with subsection (a) or (b), the head of the executive agency awarding the contract, grant, or assistance, or entering into the agreement involved, shall take such action, consistent with the law, as the head of such agency determines to be appropriate.
(d)

Exemptions
(1)

In general
The head of an executive agency may exempt a particular project, contract, subcontract, grant, or cooperative agreement from the requirements of 1 or more of the provisions of subsections (a) and (b) if the head of such agency determines that special circumstances exist that require an exemption in order to avert an imminent threat to public health or safety or to serve the national security.
(2)

Special circumstances
For purposes of paragraph (1), a finding of special circumstances may not be based on the possibility or existence of a labor dispute concerning contractors or subcontractors that are nonsignatories to, or that otherwise do not adhere to, agreements with 1 or more labor organizations, or labor disputes concerning employees on the project who are not members of, or affiliated with, a labor organization.
(3)

Additional exemption for certain projects
The head of an executive agency, upon application of an awarding authority, a recipient of grants or financial assistance, a party to a cooperative agreement, or a construction manager acting on behalf of any of such entities, may exempt a particular project from the requirements of any or all of the provisions of subsection (a) or (b), if the head of such agency finds—
(A)
that the awarding authority, recipient of grants or financial assistance, party to a cooperative agreement, or construction manager acting on behalf of any of such entities had issued or was a party to, as of the date of the enactment of this Act, bid specifications, project agreements, agreements with 1 or more labor organizations, or other controlling documents with respect to that particular project, which contained any of the requirements or prohibitions set forth in subsection (a)(1); and
(B)
that 1 or more construction contracts subject to such requirements or prohibitions had been awarded as of the date of the enactment of this Act.
(e)

Definitions
In this section:
(1)

Construction contract
The term construction contract means any contract for the construction, rehabilitation, alteration, conversion, extension, or repair of buildings, highways, or other improvements to real property.
(2)

Executive agency
The term executive agency has the meaning given the term Executive agency in section 105 of title 5, United States Code, except that such term does not include the Government Accountability Office.
(3)

Labor organization
The term labor organization has the meaning given such term in section 701 of the Civil Rights Act of 1964 (42 U.S.C. 2000e).
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