I 

118TH CONGRESS 

1ST SESSION 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. 

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, Mrs. 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. C. 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 

A BILL 

To preserve open competition and Federal Government neutrality towards the labor relations of Federal Government 


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contractors on Federal and federally funded construction 

projects, and for other purposes. 

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’’ or the ‘‘FOCA Act’’. 

6 SEC. 2. PURPOSES. 

7 It is the purpose of this Act to— 

8 (1) promote and ensure open competition on 

9 Federal and federally funded or assisted construc10 tion projects; 

11 (2) maintain Federal Government neutrality to12 wards the labor relations of Federal Government 

13 contractors on Federal and federally funded or as14 sisted construction projects; 

15 (3) reduce construction costs to the Federal 

16 Government and to the taxpayers; 

17 (4) expand job opportunities, especially for 

18 small and disadvantaged businesses; and 

19 (5) prevent discrimination against Federal Gov20 ernment contractors or their employees based upon 

21 labor affiliation or the lack thereof, thereby pro22 moting the economical, nondiscriminatory, and effi23 cient administration and completion of Federal and 

24 federally funded or assisted construction projects. 


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1 SEC. 3. PRESERVATION OF OPEN COMPETITION AND FED2 ERAL GOVERNMENT NEUTRALITY. 

3 (a) PROHIBITION.— 

4 (1) GENERAL RULE.—The head of each execu5 tive agency that awards or enters into any construc6 tion contract or that obligates funds pursuant to 

7 such a contract, shall ensure that the agency, and 

8 any construction manager acting on behalf of the 

9 Federal Government with respect to such contract, 

10 in its bid specifications, project agreements, or other 

11 controlling documents does not— 

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

13 contractor, or subcontractor from entering into, 

14 or adhering to, agreements with 1 or more 

15 labor organizations, with respect to that con16 struction project or another related construction 

17 project; or 

18 (B) discriminate against or give preference 

19 to a bidder, offeror, contractor, or subcon20 tractor because such bidder, offeror, contractor, 

21 or subcontractor— 

22 (i) becomes a signatory, or otherwise 

23 adheres to, an agreement with 1 or more 

24 labor organizations with respect to that 

25 construction project or another related 

26 construction project; or 


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1 (ii) refuses to become a signatory, or 

2 otherwise adhere to, an agreement with 1 

3 or more labor organizations with respect to 

4 that construction project or another related 

5 construction project. 

6 (2) APPLICATION OF PROHIBITION.—This sub7 section shall apply with respect to— 

8 (A) contracts awarded on or after the date 

9 of the enactment of this Act; and 

10 (B) subcontracts awarded under such con11 tracts. 

12 (3) RULE OF CONSTRUCTION.—Nothing in 

13 paragraph (1) may be construed to prohibit a con14 tractor or subcontractor from voluntarily entering 

15 into an agreement described in such paragraph. 

16 (4) FEDERAL ACQUISITION REGULATION.—Not 

17 later than 60 days after the date of the enactment 

18 of this Act, the Federal Acquisition Regulation shall 

19 be revised to implement the provisions of this sub20 section. 

21 (b) RECIPIENTS OF GRANTS AND OTHER ASSIST22 ANCE.—The head of each executive agency that awards 

23 grants, provides financial assistance, or enters into cooper24 ative agreements for construction projects after the date 

25 of the enactment of this Act shall ensure that— 


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1 (1) the bid specifications, project agreements, 

2 or other controlling documents for such construction 

3 projects of a recipient of a grant or financial assist4 ance, or by the parties to a cooperative agreement, 

5 do not contain any of the requirements or prohibi6 tions described in subparagraph (A) or (B) of sub7 section (a)(1); or 

8 (2) the bid specifications, project agreements, 

9 or other controlling documents for such construction 

10 projects of a construction manager acting on behalf 

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

12 not contain any of the requirements or prohibitions 

13 described in subparagraph (A) or (B) of subsection 

14 (a)(1). 

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

16 a recipient of a grant or financial assistance from an exec17 utive agency, a party to a cooperative agreement with an 

18 executive agency, or a construction manager acting on be19 half of such an agency, recipient, or party, fails to comply 

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

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

22 into the agreement involved, shall take such action, con23 sistent with the law, as the head of such agency deter24 mines to be appropriate. 

25 (d) EXEMPTIONS.— 


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

2 agency may exempt a particular project, contract, 

3 subcontract, grant, or cooperative agreement from 

4 the requirements of 1 or more of the provisions of 

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

6 determines that special circumstances exist that re7 quire an exemption in order to avert an imminent 

8 threat to public health or safety or to serve the na9 tional security. 

10 (2) SPECIAL CIRCUMSTANCES.—For purposes 

11 of paragraph (1), a finding of special circumstances 

12 may not be based on the possibility or existence of 

13 a labor dispute concerning contractors or sub14 contractors that are nonsignatories to, or that other15 wise do not adhere to, agreements with 1 or more 

16 labor organizations, or labor disputes concerning em17 ployees on the project who are not members of, or 

18 affiliated with, a labor organization. 

19 (3) ADDITIONAL EXEMPTION FOR CERTAIN

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

21 application of an awarding authority, a recipient of 

22 grants or financial assistance, a party to a coopera23 tive agreement, or a construction manager acting on 

24 behalf of any of such entities, may exempt a par25 ticular project from the requirements of any or all 


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1 of the provisions of subsection (a) or (b), if the head 

2 of such agency finds— 

3 (A) that the awarding authority, recipient 

4 of grants or financial assistance, party to a co5 operative agreement, or construction manager 

6 acting on behalf of any of such entities had 

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

8 enactment of this Act, bid specifications, project 

9 agreements, agreements with 1 or more labor 

10 organizations, or other controlling documents 

11 with respect to that particular project, which 

12 contained any of the requirements or prohibi13 tions set forth in subsection (a)(1); and 

14 (B) that 1 or more construction contracts 

15 subject to such requirements or prohibitions 

16 had been awarded as of the date of the enact17 ment of this Act. 

18 (e) DEFINITIONS.—In this section: 

19 (1) CONSTRUCTION CONTRACT.—The term 

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

21 construction, rehabilitation, alteration, conversion, 

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

23 improvements to real property. 

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

25 agency’’ has the meaning given the term ‘‘Executive 


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1 agency’’ in section 105 of title 5, United States 

2 Code, except that such term does not include the 

3 Government Accountability Office. 

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

5 organization’’ has the meaning given such term in 

6 section 701 of the Civil Rights Act of 1964 (42 

7 U.S.C. 2000e). 

Æ 


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