[House Report 118-899]
[From the U.S. Government Publishing Office]
118th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 118-899
======================================================================
FAIR AND OPEN COMPETITION ACT OF 2023
_______
December 18, 2024.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Comer, from the Committee on Oversight and Accountability,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 1209]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Accountability, to whom was
referred the bill (H.R. 1209) 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, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
CONTENTS
Page
Summary and Purpose of Legislation............................... 3
Background and Need for Legislation.............................. 3
Section-by-Section Analysis...................................... 5
Legislative History.............................................. 6
Committee Consideration.......................................... 7
Roll Call Votes.................................................. 7
Explanation of Amendments........................................ 10
List of Related Committee Hearings............................... 10
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 10
Statement of General Performance Goals and Objectives............ 10
Application of Law to the Legislative Branch..................... 10
Duplication of Federal Programs.................................. 11
Federal Advisory Committee Act Statement......................... 11
Unfunded Mandates Reform Act Statement........................... 11
Earmark Identification........................................... 11
Committee Cost Estimate.......................................... 11
New Budget Authority and Congressional Budget Office Cost
Estimate....................................................... 11
Changes in Existing Law Made by the Bill, as Reported............ 13
Minority Views................................................... 14
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fair and Open Competition Act of
2023'' or the ``FOCA Act of 2023''.
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).
SUMMARY AND PURPOSE OF LEGISLATION
H.R. 1209, the Fair and Open Competition Act (FOCA),
preserves open competition for non-union contractors on federal
and federally funded construction projects by preventing the
mandated use of project labor agreements (PLAs). This
legislation would require that the Federal Acquisition
Regulation (FAR) be revised within 60 days to implement the
Act, preventing the implementation of a Biden administration
policy to mandate the use of PLAs on many federal construction
projects.
BACKGROUND AND NEED FOR LEGISLATION
On February 4, 2022, recycling failed Obama Administration
policy, President Biden issued Executive Order 14063, ``Use of
Project Labor Agreements for Federal Construction
Projects.''\1\ This order required federal contracting agencies
to mandate Project Labor Agreements (PLAs) on federal
construction projects worth $35 million or more, with limited
exceptions.\2\ It further charged the Federal Acquisition
Regulatory Council (FAR Council) to propose within 120 days a
rule to implement the order. PLAs require that union workers
perform all labor on a project.\3\ Twenty-four states have
enacted state-level laws prohibiting government-mandated PLAs
for state, state-assisted, and local construction contracts.
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\1\87 Fed. Reg. 7363 (Feb. 9, 2022); see also H. Rpt. 115-1068 at
2-3 (Dec. 10, 2018) (reviewing Obama Administration policy).
\2\Id.
\3\Id.
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President Biden's order threatens to raise taxpayer costs,
cut non-union workers out of federal projects, and force right-
to-work states to freeze local workers out of cooperative
federal projects--all for the sake of currying favor with labor
unions. As America confronts continued high inflation, this is
exactly the wrong policy to pursue--harming workers, punishing
local economies and states, and increasing already out-of-
control federal spending. Requiring PLAs pursuant to President
Biden's policy would shut well over 80 percent of the U.S.
construction workforce out of work on covered construction
projects, because well over 80 percent of that workforce does
not belong to a union.\4\ Further, studies show that PLAs lead
to increases of twelve to twenty percent in taxpayer-funded
construction costs--harming workers and punishing local
economies and states.\5\
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\4\See, e.g., ``BLS: 87.4% of Construction Industry Does not Belong
to a Union,'' Associated Builders and Contractors (Feb. 2, 2022),
online at BLS: 87.4% of Construction Industry Does Not Belong to a
Union--The Truth About PLAs.
\5\See Vince Vasquez, Dale Glaser, W. Erik Bruvold, Measuring the
Cost of Project Labor Agreements on School Construction in California,
Nat'l Univ. Sys. Inst. for Pol'y Rsch.; William F. Burke, David G.
Tuerck, The Effects of Project Labor Agreements on Public School
Construction in Connecticut, Beacon Hill Inst. for Pub. Pol'y Rsch.
(Jan. 2020); David G. Tuerck, Paul Bachman, Project Labor Agreements
and Financing Public School Construction in Massachusetts, Beacon Hill
Inst. for Pub. Pol'y Rsch. (Dec. 2006); William F. Burke, David G.
Tuerck, The Effects of Project Labor Agreements on Public School
Construction in New Jersey, Beacon Hill Inst. for Pub. Pol'y Rsch.
(Aug. 2019); Paul Bachman, David G. Tuerck, Project Labor Agreements
and Public Construction Costs in New York State, Beacon Hill Inst. at
Suffolk Univ. (April 2006); Paul Bachman, David G. Tuerck, Project
Labor Agreements and the Cost of School Construction in Ohio, Beacon
Hill Inst. for Pub. Pol'y Rsch. (May 2017).
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The anti-competitive policy of E.O. 14063 also has inherent
legal implications, because it is contrary to the terms of the
Competition in Contracting Act (CICA) of 1984, 41 U.S.C.
253.\6\ Indeed, E.O. 14063 is directly in conflict with
President's Biden's own ``Executive Order on Promoting
Competition in the American Economy.''\7\ That order declares a
``fair, open, and competitive marketplace'' to be ``a
cornerstone of the American economy, while excessive market
concentration threatens basic economic liberties, democratic
accountability, and the welfare of workers, farmers, small
businesses, startups, and consumers.''\8\ The order affirms
that ``[f]or workers, a competitive marketplace creates more
high-quality jobs and the economic freedom to switch jobs or
negotiate a higher wage.''\9\ And, the order directs the
``heads of all agencies'' to ``consider using their authorities
to further the policies . . . of this [competition] order, with
particular attention to . . . the influence of any of their
respective regulations . . . on . . . competition in the
industries under their jurisdictions[.]\10\ To require PLAs--
restricting labor-source competition and the number of
contractors and subcontractors who can compete for federal
procurement projects--flies in the face of this open
competition directive.
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\6\See, e.g., 41 U.S.C. 253(a)(1) (``except in the case of
procurement procedures otherwise expressly authorized by statute, an
executive agency in conducting a procurement for property or services .
. . shall obtain full and open competition through the use of
competitive procedures in accordance with this title'') (emphasis
added). In fact, the Competition in Contracting Act requires compliance
with and is a cornerstone of the Federal Acquisition Regulation itself.
See id.
\7\86 Fed. Reg. 36987 (July 14, 2021).
\8\Id., sec. 1, 86 Fed. Reg. at 36987.
\9\Id.
\10\Id., subsec. 5(a), 86 Fed. Reg. at 36992 (emphasis added).
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Notably, Congress kept PLA requirements out of the American
Rescue Plan Act of 2021,\11\ the Infrastructure Investments and
Jobs Act,\12\ and other recent infrastructure legislation.
Congress should follow that precedent now and, through
enactment of H.R. 1209, overturn President Biden's order,
preventing the federal government from discriminating against
contractors based on labor affiliation.
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\11\Pub. L. 117-2 (Mar. 11, 2021).
\12\Pub. L. 117-58 (Nov. 15, 2021).
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SECTION-BY-SECTION ANALYSIS
Sec. 1. Short title
The short title is the ``Fair and Open Competition Act of
2023'' or ``FOCA Act of 2023.''
Section 2. Purposes
The purposes of the Act are to: promote and ensure open
competition on federal and federally funded construction
projects; maintain federal government neutrality toward the
labor relations of federal government contractors; reduce
construction costs; expand job opportunities, especially for
small and disadvantaged businesses; and prevent discrimination
against federal contractors or their employees based their
affiliation or not with unions.
Section 3. Preservation of open competition and Federal Government
neutrality
Subsection (a). Prohibits the head of an agency
(as defined in 5 U.S.C. 105) from requiring or prohibiting a
contractor, subcontractor, bidder, or offeror (or any
construction manager acting on behalf of the Federal
Government) to have an agreement with a labor organization with
respect to that, or another related, construction project.
Further prohibits the head of an agency
from discriminating against a contractor,
subcontractor, bidder, or offeror because of the
presence, or lack thereof, of an agreement with a labor
organization.
Applies the subsection's prohibitions to
contracts awarded after the date of enactment and
subcontracts awarded under such contracts.
Requires that the Federal Acquisition
Regulation be revised to implement the provisions of
the subsection no later than 60 days after the date of
enactment.
Includes a Rule of Construction making
it clear that the Act does not prohibit voluntary
agreements with labor organizations.
Subsection (b). Requires the head of an agency to
ensure that a recipient of a grant or financial assistance, the
parties to a cooperative agreement, or a construction manager
acting on behalf of either entity do not include in their bid
specifications, project agreements, or other controlling
documents do not violate the prohibitions under subsection (a).
Subsection (c). Permits the head of an agency, in
the case of a failure to comply with subsection (a) or (b), to
determine the appropriate legal course of action.
Subsection (d). Allows the head of an agency to
exempt a project, contract, subcontract, grant, or cooperative
agreement from the provisions established under subsections (a)
and (b) if they determine that--
Due to special circumstances, an
exemption is required to avert an imminent threat to
public health or safety, or to serve national security.
Specifies that these special circumstances cannot be
based on the possibility or existence of a labor
dispute.
As of the date of enactment, any such
entity had issued or was party to bid specifications,
project agreements, agreements with a labor
organization, or other controlling documents for the
construction project that would otherwise violate the
provisions established in subsection (a) or (b).
As of the date of enactment, one or more
construction projects subject to the provisions
established under subsection (a) or (b) had already
been awarded prior to enactment of this Act.
Subsection (e). Definitions
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.
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.
The term ``labor organization'' has the
meaning given the term in section 701 of the Civil
Rights Act of 1964 (42 U.S.C. 2000e).
LEGISLATIVE HISTORY
H.R. 1209, the Fair and Open Competition Act (FOCA Act) was
introduced by House Committee on Oversight and Accountability
Chairman James Comer (R-KY) on February 27, 2023. The bill was
referred to the Committee on Oversight and Accountability. The
following Representatives are cosponsors of the bill: Virginia
Foxx (R-NC), Nancy Mace (R-SC), John Moolenaar (R-MI), Scott
Perry (R-PA), Matthew Rosendale (R-MT), Ralph Norman (R-SC),
Randy Weber (R-TX), Mike Johnson (R-LA), Pete Sessions (R-TX),
Jerry Carl (R-AL), Kevin Hern (R-OK), Burgess Owens (R-UT),
Rick Allen (R-GA), Dan Crenshaw (R-TX), Lauren Boebert (R-CO),
William Timmons (R-SC), Ann Wagner (R-MO), Andy Biggs (R-AZ),
Tim Burchett (R-TN), Kat Cammack (R-FL), Alexander Mooney (R-
WV), Lloyd Smucker (R-PA), Steve Womack (R-AR), Joe Wilson (R-
SC), Michael Cloud (R-TX), Jeff Duncan (R-SC), Gary Palmer (R-
AL), Jake Ellzey (R-TX), Byron Donalds (R-FL), Paul Gosar (R-
AZ), Diana Harshbarger (R-TN), Tom McClintock (R-CA), Drew
Ferguson (R-GA), Dan Bishop (R-NC), Jake LaTurner (R-KS), Clay
Higgins (R-LA), Russell Fry (R-SC), Scott DesJarlais (R-TN),
Richard McCormick (R-GA), Daniel Meuser (R-PA), Andy Barr (R-
KY), Russ Fulcher (R-ID), Neal Dunn (R-FL), Tim Walberg (R-MI),
Scott Fitzgerald (R-WI), Eric Burlison (R-MO), David Schweikert
(R-AZ), Ken Calvert (R-CA), Debbie Lesko (R-AZ), Gregory Steube
(R-FL), John Carter (R-TX), Bob Good (R-VA), Scott Franklin (R-
FL), Julia Letlow (R-LA), Doug Lamborn (R-CO), Roger Williams
(R-TX), Andrew Ogles (R-TN), Tracey Mann (R-KS), Barry Moore
(R-AL), Chip Roy (R-TX), Jay Obernolte (R-CA), Michael Guest
(R-MS), Mike Ezell (R-MS), Mary Miller (R-IL), Rick Crawford
(R-AR), Gregory Murphy (R-NC), Marjorie Taylor Greene (R-GA),
Buddy Carter (R-GA), David Rouzer (R-NC), Mike Rogers (R-AL),
Juan Ciscomani (R-AZ), Daniel Webster (R-FL), Lance Gooden (R-
TX), Robert Wittman (R-VA), Troy Nehls (R-TX), Thomas Tiffany
(R-WI), Glenn Grothman (R-WI), Dusty Johnson (R-SD), John
Rutherford (R-FL), Cathy McMorris Rodgers (R-WA), Rudy Yakym
(R-IN), Greg Pence (R-IN), Ben Cline (R-VA), Michelle Steel (R-
CA), Ronny Jackson (R-TX), Brian Babin (R-TX), Robert Aderholt
(R-AL), Glenn Thompson (R-PA), French Hill (R-AR), Brett
Guthrie (R-KY), Pat Fallon (R-TX), Laurel Lee (R-FL), Richard
Hudson (R-NC), Dale Strong (R-AL), Lisa McClain (R-MI), Austin
Scott (R-GA), Wesley Hunt (R-TX), Thomas Massie (R-KY), Ron
Estes (R-KS), Gus Bilirakis (R-FL), Kelly Armstrong (R-ND),
Ashley Hinson (R-IA), Erin Houchin (R-IN), Aaron Bean (R-FL)
Doug LaMalfa (R-CA), Mike Collins (R-GA), Tom Cole (R-OK), Cory
Mills (R-FL), Patrick T. McHenry (R-NC), Jennifer A. Kiggans
(R-VA), Ken Buck (R-CO), Monica De La Cruz (R-TX), Trent Kelly
(R-MS), Elijah Crane (R-AZ), James R. Baird (R-IN), Stephanie
I. Bice (R-OK), Keith Self (R-TX), Jim Banks (R-IN), Cliff
Bentz (R-OR), Tony Gonzalez (R-TX), Carol D. Miller (R-WV), and
Harriet M. Hageman (R-WY). The Committee on Oversight and
Accountability held a hearing on June 14, 2023 which was used
to develop the bill. The Committee considered H.R. 1209 at a
business meeting on July 12, 2023, and ordered the bill as
amended favorably reported by a recorded vote.
The Senate companion to H.R. 1209 is S. 537, which was
introduced by Senator Todd Young (R-IN) on February 27, 2023,
and was referred to the Senate Committee on Homeland Security
and Governmental Affairs.
During prior Congresses, similar bills were considered by
the Committee during the 115th and 114th Congresses and ordered
favorably reported on March 28, 2017, and January 12, 2016,
respectively.\13\
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\13\H. Rpt. 115-1068 at 7 (Dec. 10, 2018).
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COMMITTEE CONSIDERATION
On July 12, 2023, the Committee met in open session and
ordered the bill, H.R. 1209, favorably reported with an
amendment in the nature of a substitute, by a roll call vote of
22-20, a quorum being present.
ROLL CALL VOTES
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the following roll call votes
occurred during the Committee's consideration of H.R. 1209:
The first and only roll call vote was on final passage of
H.R. 1209. The bill was agreed to in a recorded vote of 22-20.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
EXPLANATION OF AMENDMENTS
During Committee consideration of the bill, Representative
James Comer (R-KY), Chairman of the Committee, offered an
amendment in the nature of a substitute that would make certain
technical changes to the bill. The amendment in the nature of a
substitute passed by voice vote.
LIST OF RELATED COMMITTEE HEARINGS
In accordance with House rule XIII, clause 3(c)(6)(A), (1)
the following Committee hearing was related to H.R. 1209 and
used to develop or consider the bill:
On June 14, 2023, the Committee held a hearing titled
``Death by a Thousand Regulations: The Biden Administration's
Campaign to Bury America in Red Tape'' with Mr. Anthony P.
Campau, Principal, Clark Hill Public Strategies; Prof. Casey
Mulligan, University of Chicago; Mr. Adam J. White, Senior
Fellow, American Enterprise Institute, and Co-Executive
Director, the C. Boyden Gray Center for the Study of the
Administrative State, George Mason University Antonin Scalia
Law School; and Prof. Sally Katzen, New York University School
of Law.
(2) The following related hearing was held:
On June 14, 2023, the Committee held a hearing titled
``Death by a Thousand Regulations: The Biden Administration's
Campaign to Bury America in Red Tape'' with Mr. Anthony P.
Campau, Principal, Clark Hill Public Strategies; Prof. Casey
Mulligan, University of Chicago; Mr. Adam J. White, Senior
Fellow, American Enterprise Institute, and Co-Executive
Director, the C. Boyden Gray Center for the Study of the
Administrative State, George Mason University Antonin Scalia
Law School; and Prof. Sally Katzen, New York University School
of Law.
STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE
COMMITTEE
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the Background and Need for
Legislation section above.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals or objectives of this bill are to establish fair and open
competition in federal contracting, prevent discrimination
against non-union workers, and lower taxpayer costs for federal
and federally funded construction projects.
APPLICATION OF LAW TO THE LEGISLATIVE BRANCH
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill does not relate to employment or access to public
services and accommodations in the legislative branch.
DUPLICATION OF FEDERAL PROGRAMS
In accordance with clause 3(c)(5) of rule XIII no provision
of this bill establishes or reauthorizes a program of the
Federal Government known to be duplicative of another Federal
program, a program that was included in any report from the
Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
FEDERAL ADVISORY COMMITTEE ACT STATEMENT
The Committee finds that this legislation does not direct
the establishment of advisory committees within the definition
of Section 5(b) of the appendix to title 5, U.S.C.
UNFUNDED MANDATES REFORM ACT STATEMENT
Pursuant to section 423 of the Congressional Budget Act of
1974 the Committee has included a letter received from the
Congressional Budget Office below.
EARMARK IDENTIFICATION
This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI of the House of Representatives.
COMMITTEE COST ESTIMATE
Pursuant to clause 3(d) of rule XIII of the Rules of the
House of Representatives, the Committee includes below a cost
estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
NEW BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST
ESTIMATE
Pursuant to clause 3(c)(2) of rule XIII of the Rules of the
House of Representatives and section 308(a) of the
Congressional Budget Act of 1974, and pursuant to clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives, the cost estimate prepared by the
Congressional Budget Office and submitted pursuant to section
402 of the Congressional Budget Act of 1974 is as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
H.R. 1209 would prohibit federal agencies working on
construction projects from either requiring or prohibiting the
use of project labor agreements (PLAs) except in specific
circumstances. On February 4, 2022, Executive Order 14063
required all federal agencies to use PLAs on construction
projects of $35 million or more. A PLA is a collective
bargaining agreement that applies to a specific project and is
effective for the duration of that project. Under those
agreements, which typically include provisions regarding wages
and fringe benefits and procedures for resolving labor
disputes, workers generally agree not to strike, and
contractors agree not to lock out workers. H.R. 1209 would
allow contractors and unions working on construction projects
that involve the expenditure of federal funds to voluntarily
negotiate and execute a PLA.
Because of the size of construction projects involved, any
significant change to the process could have a significant
effect on their costs. CBO does not have enough information
from federal sources or union and nonunion contractors to
determine whether the use of PLAs under current law results in
any significant costs or savings to the federal government.
Moreover, because CBO expects that implementing H.R. 1209 would
not significantly change the contracting process or the use of
PLAs, CBO estimates that implementing the bill would not have a
significant effect on the federal budget.
Enacting H.R. 1209 could affect direct spending by some
agencies that are allowed to use fees, receipts from the sale
of goods, and other collections to cover operating costs. CBO
estimates that any net changes in direct spending by those
agencies would be negligible because most of them can adjust
amounts collected to reflect changes in operating costs.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was reviewed by Christina Hawley
Anthony, Deputy Director of Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
The requirements of clause 3(e) of rule XIII of the Rules
of the House of Representatives do not apply to H.R. 1209.
MINORITY VIEWS
Republicans attempt to paint H.R. 1209 as a bill about
instilling fairness and neutrality in the process of awarding
contracts for large federal construction projects, but this
process is already fair and neutral. Committee Democrats
strongly oppose H.R. 1209 because it would waste taxpayer
dollars by limiting the federal government's ability to use
project labor agreements--one of the best tools available to
ensure that large federal construction projects are completed
effectively, efficiently, and safely.
Federal construction projects are highly complex. If not
managed properly, they can experience expensive delays, unsafe
work sites, lengthy disputes, and unethical business practices.
To address these challenges and ensure that taxpayers get the
best return possible on their investments, President Biden
issued Executive Order 14063, which requires the use of project
labor agreements, or PLAs, on federal construction projects
above $35 million.\1\
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\1\White House, Fact Sheet: President Biden Signs Executive Order
to Boost Quality of Federal Construction Projects (Feb. 3, 2022)
(online at www.whitehouse.gov/briefing-room/statements-releases/2022/
02/03/fact-sheet-president-biden-signs-executive-order-to-boost-
quality-of-federal-
construction-projects/).
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The President's executive order is estimated to improve the
return on investment of $262 billion taxpayer dollars and the
working conditions of nearly 200,000 workers on federal
construction projects.\2\ But H.R. 1209 would reverse this
progress and prohibit federal agencies from even considering
the use of PLAs in funding construction contracts--even when
the PLA would save taxpayers' money.
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\2\Id.
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PLAs are an essential tool to promote transparency and
accountability in federal construction projects. These pre-hire
collective bargaining agreements negotiated between
construction unions and employers lay out the terms and
conditions of employment for specific construction projects.
They guard against risk and ensure stability by promoting
fairness and transparency in the execution of a project,
including through compliance with relevant laws and
regulations. PLAs help minimize disputes, ensure safer work
sites, and avoid work disruptions, all of which can cause
expensive delays as a project progresses.
A wide range of research and case studies demonstrate that
PLAs are effective tools to ensure the responsible stewardship
of taxpayer dollars by controlling costs, enhancing efficiency,
ensuring safe and equitable working conditions, and benefitting
local communities. PLAs increase accuracy in budgeting, ensure
that skilled workers are available for the duration of a
project, and protect against disruptions and delays. Contrary
to Republicans' claims, non-union contractors are free to bid
on projects that require PLAs. Workers covered under a PLA are
not required to join a union to work on the project, and PLAs
are legal in right-to-work states.\3\
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\3\The Benefits of Project Labor Agreements Along with the Myths,
Washington Business Journal (Sept. 23, 2021) (online at
www.bizjournals.com/washington/news/2021/09/23/the-benefits-of-plas-
along-with-the-myths.html); Economic Policy Institute, Blog Post:
Project Labor Agreements on Federal Construction Projects Will Benefit
Nearly 200,000 Workers (Feb. 9, 2022) (online at www.epi.org/blog/
project-labor-agreements-on-federal-construction-projects-will-benefit-
nearly-200000-workers/).
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This anti-transparency legislation is in keeping with
Committee Republicans' longstanding efforts to villainize PLAs,
including by claiming that they reduce competition and value
for taxpayers and limit opportunities for local communities.\4\
In fact, PLAs protect taxpayers from the race to the bottom
that incentivizes contractors to underpay and undertrain their
workers, cut corners that threaten project integrity, and bring
in cheaper outside labor instead of providing high-quality jobs
locally.
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\4\Letter from Ranking Member James Comer, Committee on Oversight
and Reform, et al., to the Honorable Shalanda Young, Office of
Management and Budget, et al. (June 16, 2022) (online at https://
oversight.house.gov/wp-content/uploads/2022/06/FAR-Council-Project-
Labor-Agreements-Letter-June-202247.pdf); Committee on Oversight and
Accountability, Press Release: President Biden's Anti-Construction
Policies Raise Taxpayer Costs, Freeze Workers Out of Opportunities (May
16, 2023) (online at https://oversight.house.gov/release/president-
bidens-anti-construction-policies-raise-taxpayer-costs-freeze-workers-
out-of-opportunities/).
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Project labor agreements are public documents that anyone
can review for their fair and sound business strategies. If
Republican have identified specific concerns with actual PLAs,
we invite them to identify those concerns. Absent any specific,
unbiased evidence, we are left to conclude that H.R. 1209 is
simply another example of Republicans' determination to erode
transparency and accountability protections for the public, yet
again putting special interest profits before the well-being of
the people.
Jamie Raskin,
Ranking Member.
[all]