II 

115TH CONGRESS 

1ST SESSION S. 622 

To preserve open competition and Federal Government neutrality towards 

the labor relations of Federal Government contractors on Federal and 

federally funded construction projects. 

IN THE SENATE OF THE UNITED STATES 

MARCH 14, 2017 

Mr. FLAKE (for himself, Mr. RISCH, 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 neutrality towards the labor relations of Federal Government 

contractors on Federal and federally funded construction 

projects. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Fair and Open Com5 petition Act’’. 

6 SEC. 2. PURPOSES. 

7 It is the purpose of this Act to— 


SSpencer on DSK4SPTVN1PROD with BILLS
2 

•S 622 IS

1 (1) promote and ensure open competition on 

2 Federal and federally funded or assisted construc3 tion projects; 

4 (2) maintain Federal Government neutrality to5 wards the labor relations of Federal Government 

6 contractors on Federal and federally funded or as7 sisted construction projects; 

8 (3) reduce construction costs to the Federal 

9 Government and to the taxpayers; 

10 (4) expand job opportunities, especially for 

11 small and disadvantaged businesses; and 

12 (5) prevent discrimination against Federal Gov13 ernment contractors or their employees based upon 

14 labor affiliation or the lack thereof, thereby pro15 moting the economical, nondiscriminatory, and effi16 cient administration and completion of Federal and 

17 federally funded or assisted construction projects. 

18 SEC. 3. PRESERVATION OF OPEN COMPETITION AND FED19 ERAL GOVERNMENT NEUTRALITY. 

20 (a) PROHIBITION.— 

21 (1) GENERAL RULE.—The head of each execu22 tive agency that awards any construction contract 

23 after the date of enactment of this Act, or that obli24 gates funds pursuant to such a contract, shall en25 sure that the agency, and any construction manager 


SSpencer on DSK4SPTVN1PROD with BILLS
3 

•S 622 IS

1 acting on behalf of the Federal Government with re2 spect to such contract, in its bid specifications, 

3 project agreements, or other controlling documents 

4 does not— 

5 (A) require or prohibit a bidder, offeror, 

6 contractor, or subcontractor from entering into, 

7 or adhering to, agreements with one or more 

8 labor organizations, with respect to that con9 struction project or another related construction 

10 project; or 

11 (B) otherwise discriminate against a bid12 der, offeror, contractor, or subcontractor be13 cause such bidder, offeror, contractor, or sub14 contractor— 

15 (i) becomes a signatory to, or other16 wise adheres to, an agreement with one or 

17 more labor organizations with respect to 

18 that construction project or another related 

19 construction project; or 

20 (ii) refuses to become a signatory to, 

21 or otherwise adhere to, an agreement with 

22 one or more labor organizations with re23 spect to that construction project or an24 other related construction project. 


SSpencer on DSK4SPTVN1PROD with BILLS
4 

•S 622 IS

1 (2) APPLICATION OF PROHIBITION.—The provi2 sions of this section shall not apply to contracts 

3 awarded prior to the date of enactment of this Act, 

4 and subcontracts awarded pursuant to such con5 tracts regardless of the date of such subcontracts. 

6 (3) RULE OF CONSTRUCTION.—Nothing in 

7 paragraph (1) shall be construed to prohibit a con8 tractor or subcontractor from voluntarily entering 

9 into an agreement described in such paragraph. 

10 (b) RECIPIENTS OF GRANTS AND OTHER ASSIST11 ANCE.—The head of each executive agency that awards 

12 grants, provides financial assistance, or enters into cooper13 ative agreements for construction projects after the date 

14 of enactment of this Act, shall ensure that— 

15 (1) the bid specifications, project agreements, 

16 or other controlling documents for such construction 

17 projects of a recipient of a grant or financial assist18 ance, or by the parties to a cooperative agreement, 

19 do not contain any of the requirements or prohibi20 tions described in subparagraphs (A) and (B) of 

21 subsection (a)(1); or 

22 (2) the bid specifications, project agreements, 

23 or other controlling documents for such construction 

24 projects of a construction manager acting on behalf 

25 of a recipient or party described in paragraph (1) do 


SSpencer on DSK4SPTVN1PROD with BILLS
5 

•S 622 IS

1 not contain any of the requirements or prohibitions 

2 described in subparagraphs (A) and (B) of sub3 section (a)(1). 

4 (c) FAILURE TO COMPLY.—If an executive agency, 

5 a recipient of a grant or financial assistance from an exec6 utive agency, a party to a cooperative agreement with an 

7 executive agency, or a construction manager acting on be8 half of such agency, recipient, or party, fails to comply 

9 with subsection (a) or (b), the head of the executive agency 

10 awarding the contract, grant, or assistance, or entering 

11 into the agreement involved, shall take such action, con12 sistent with law, as the head of the agency determines to 

13 be appropriate. 

14 (d) EXEMPTIONS.— 

15 (1) IN GENERAL.—The head of an executive 

16 agency may exempt a particular project, contract, 

17 subcontract, grant, or cooperative agreement from 

18 the requirements of one or more of the provisions of 

19 subsections (a) and (b) if the head of such agency 

20 determines that special circumstances exist that re21 quire an exemption in order to avert an imminent 

22 threat to public health or safety or to serve the na23 tional security. 

24 (2) SPECIAL CIRCUMSTANCES.—For purposes 

25 of paragraph (1), a finding of ‘‘special cirVerDate Sep 11 2014 04:51 Mar 17, 2017 Jkt 069200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S622.IS S622

SSpencer on DSK4SPTVN1PROD with BILLS
6 

•S 622 IS

1 cumstances’’ may not be based on the possibility or 

2 existence of a labor dispute concerning contractors 

3 or subcontractors that are nonsignatories to, or that 

4 otherwise do not adhere to, agreements with one or 

5 more labor organizations, or a labor dispute con6 cerning employees on the project who are not mem7 bers of, or affiliated with, a labor organization. 

8 (3) ADDITIONAL EXEMPTION FOR CERTAIN

9 PROJECTS.—The head of an executive agency, upon 

10 application of an awarding authority, a recipient of 

11 grants or financial assistance, a party to a coopera12 tive agreement, or a construction manager acting on 

13 behalf of any of such entities, may exempt a par14 ticular project from the requirements of any or all 

15 of the provisions of subsection (a) or (b) if the agen16 cy head finds— 

17 (A) that the awarding authority, recipient 

18 of grants or financial assistance, party to a co19 operative agreement, or construction manager 

20 acting on behalf of any of such entities had 

21 issued or was a party to, as of the date of the 

22 enactment of this Act, bid specifications, project 

23 agreements, agreements with one or more labor 

24 organizations, or other controlling documents 

25 with respect to that particular project, which 


SSpencer on DSK4SPTVN1PROD with BILLS
7 

•S 622 IS

1 contained any of the requirements or prohibi2 tions set forth in subsection (a)(1); and 

3 (B) that one or more construction con4 tracts subject to such requirements or prohibi5 tions had been awarded as of the date of the 

6 enactment of this Act. 

7 (e) FEDERAL ACQUISITION REGULATORY COUN8 CIL.—With respect to Federal contracts to which this sec9 tion applies, not later than 60 days after the date of enact10 ment of this Act, the Federal Acquisition Regulatory 

11 Council shall take appropriate action to amend the Fed12 eral Acquisition Regulation to implement the provisions of 

13 this section. 

14 (f) DEFINITIONS.—In this section: 

15 (1) CONSTRUCTION CONTRACT.—The term 

16 ‘‘construction contract’’ means any contract for the 

17 construction, rehabilitation, alteration, conversion, 

18 extension, or repair of buildings, highways, or other 

19 improvements to real property. 

20 (2) EXECUTIVE AGENCY.—The term ‘‘executive 

21 agency’’ has the meaning given such term in section 

22 133 of title 41, United States Code, except that such 

23 term shall not include the Government Account24 ability Office. 


SSpencer on DSK4SPTVN1PROD with BILLS
8 

•S 622 IS

1 (3) LABOR ORGANIZATION.—The term ‘‘labor 

2 organization’’ has the meaning given such term in 

3 section 701(d) of the Civil Rights Act of 1964 (42 

4 U.S.C. 2000e(d)). 

Æ 


SSpencer on DSK4SPTVN1PROD with BILLS