[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 537 Introduced in Senate (IS)]

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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 referred to the 
        Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fair and Open Competition Act'' or 
the ``FOCA Act''.

SEC. 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.

SEC. 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).
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