Page 1159 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4852

CODIFICATION

Section is comprised of section 401 of Pub. L. 99–399.

Subsecs. (a)(2) and (h)(2) of section 401 of Pub. L. 99–399

amended sections 2349aa–4 and 300, respectively, of this

title.

AMENDMENTS

1994—Subsec. (a)(3). Pub. L. 103–236, §101(c), struck

out heading and text of par. (3). Text read as follows:

‘‘There is authorized to be appropriated for the Department of State for ‘Acquisition and Maintenance of

Buildings Abroad’ for each of the fiscal years 1988

through 1990, $417,962,000 to carry out diplomatic security construction, acquisition, and operations pursuant

to the Department of State’s Supplemental Diplomatic

Security Program. Authorizations of appropriations

under this paragraph shall remain available until the

appropriations are made.’’

Subsec. (c). Pub. L. 103–236, §122(b), struck out heading and text of subsec. (c). Text read as follows:

‘‘Amounts made available for capital projects pursuant

to subsection (a) of this section shall be treated as a reprogramming of funds under section 2706 of this title

and shall not be available for obligation or expenditure

except in compliance with the procedures applicable to

such reprogramming.’’

Subsec. (h)(3). Pub. L. 103–236, §122(b), struck out

heading and text of par. (3). Text read as follows:

‘‘Amounts made available for furniture, furnishings,

and equipment pursuant to subsection (a) of this section shall be treated as a reprogramming of funds under

section 2706 of this title and shall not be available for

obligation or expenditure except in compliance with

the procedures applicable to such reprogramming.’’

1987—Subsec. (a)(3). Pub. L. 100–204 inserted sentence

at end providing that authorizations of appropriations

under this paragraph remain available until appropriations are made.

CHANGE OF NAME

Committee on Foreign Affairs of House of Representatives treated as referring to Committee on International Relations of House of Representatives by section 1(a) of Pub. L. 104–14, set out as a note preceding

section 21 of Title 2, The Congress.

EFFECTIVE DATE OF 1994 AMENDMENT

Section 101(c) of Pub. L. 103–236 provided that the

amendment made by that section is effective Oct. 1,

1995.

CONSTRUCTION SECURITY CERTIFICATION

Section 160 of Pub. L. 100–204, as amended by Pub. L.

101–246, title I, §135, Feb. 16, 1990, 104 Stat. 33, provided

that:

‘‘(a) CERTIFICATION.—Before undertaking any new

construction or major renovation project in any foreign

facility intended for the storage of classified materials

or the conduct of classified activities, or approving occupancy of a similar facility for which construction or

major renovation began before the effective date of this

section [Dec. 22, 1987], the Secretary of State, after consultation with the Director of Central Intelligence,

shall certify to the Committee on Foreign Affairs [now

Committee on International Relations] of the House of

Representatives and the Committee on Foreign Relations of the Senate that—

‘‘(1) appropriate and adequate steps have been

taken to ensure the security of the construction

project (including an evaluation of how all securityrelated factors with respect to such project are being

addressed);

‘‘(2) the facility resulting from such project incorporates—

‘‘(A) adequate measures for protecting classified

information and national security-related activities; and

‘‘(B) adequate protection for the personnel working in the diplomatic facility; and

‘‘(3) a plan has been put into place for the continued

evaluation and maintenance of adequate security at

such facility, which plan shall specify the physical

security methods and technical countermeasures necessary to ensure secure operations, including any personnel requirements for such purposes.

‘‘(b) AVAILABILITY OF DOCUMENTATION.—All documentation with respect to a certification referred to in

subsection (a) and any dissenting views thereto shall be

available, in an appropriately classified form, to the

Chairman of the Committee on Foreign Affairs [now

Committee on International Relations] of the House of

Representatives and the Chairman of the Committee on

Foreign Relations of the Senate.

‘‘(c) DIRECTOR OF CENTRAL INTELLIGENCE.—The Director of Central Intelligence shall provide to the Secretary of State such assistance with respect to the implementation of this section as the Secretary of State

may request.

‘‘(d) DISSENTING VIEWS.—If the Director of Central Intelligence disagrees with the Secretary of State with

respect to any project certification made pursuant to

subsection (a), the Director shall submit in writing disagreeing views to the Secretary of State.’’

REPORT TO CONGRESS ON OBLIGATION OF FUNDS

Pub. L. 100–459, title III, §302, Oct. 1, 1988, 102 Stat.

2207, provided that: ‘‘The Secretary of State shall report to the appropriate committees of the Congress on

the obligation of funds provided for diplomatic security

and related expenses every month.’’

Similar provisions were contained in the following

prior appropriation acts:

Pub. L. 100–202, §101(a) [title III, §302], Dec. 22, 1987,

101 Stat. 1329, 1329–23.

Pub. L. 99–500, §101(b) [title III, §302], Oct. 18, 1986, 100

Stat. 1783–39, 1783–60, and Pub. L. 99–591, §101(b) [title

III, §302], Oct. 30, 1986, 100 Stat. 3341–39, 3341–60.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4852, 4854, 4855,

4860 of this title.

§ 4852. Diplomatic construction program

(a) Preference for United States contractors

Notwithstanding section 302 of this title, and

where adequate competition exists, only United

States persons and qualified United States joint

venture persons may—

(1) bid on a diplomatic construction or design project which has an estimated total

project value exceeding $10,000,000; and

(2) bid on a diplomatic construction or design project which involves technical security,

unless the project involves low-level technology, as determined by the Secretary of

State.

(b) Exception

Subsection (a) of this section shall not apply

with respect to any diplomatic construction or

design project in a foreign country whose statutes prohibit the use of United States contractors on such projects. The exception contained

in this subsection shall only become effective

with respect to a foreign country 30 days after

the Secretary of State certifies to the Committee on Foreign Affairs and the Committee on

Appropriations of the House of Representatives

and the Committee on Foreign Relations and

the Committee on Appropriations of the Senate

what specific actions he has taken to urge such

foreign country to permit the use of United

States contractors on such projects, and what

actions he shall take with respect to that coun-
§ 4853 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE Page 1160

try as authorized by title II of the State Department Basic Authorities Act of 1956 (22 U.S.C.

4301 et seq.; commonly referred to as the ‘‘Foreign Missions Act’’).

(c) Definitions

For the purposes of this section—

(1) the term ‘‘adequate competition’’ means

with respect to a construction or design

project, the presence of two or more qualified

bidders submitting responsive bids for that

project;

(2) the term ‘‘United States person’’ means a

person which—

(A) is incorporated or legally organized

under the laws of the United States, including State, the District of Columbia, and

local laws;

(B) has its principal place of business in

the United States;

(C) has been incorporated or legally organized in the United States—

(i) for more than 5 years before the issuance date of the invitation for bids or request for proposals with respect to a construction project under subsection (a)(1) of

this section; and

(ii) for more than 2 years before the issuance date of the invitation for bids or request for proposals with respect to a construction or design project which involves

physical or technical security under subsection (a)(2) of this section;

(D) has performed within the United

States administrative and technical, professional, or construction services similar in

complexity, type of construction, and value

to the project being bid;

(E) with respect to a construction project

under subsection (a)(1) of this section, has

achieved total business volume equal to or

greater than the value of the project being

bid in 3 years of the 5-year period before the

date specified in subparagraph (C)(i);

(F)(i) employs United States citizens in at

least 80 percent of its principal management

positions in the United States,

(ii) employs United States citizens in more

than half of its permanent, full-time positions in the United States, and

(iii) will employ United States citizens in

at least 80 percent of the supervisory positions on the foreign buildings office project

site; and

(G) has the existing technical and financial resources in the United States to perform the contract; and

(3) the term ‘‘qualified United States joint

venture person’’ means a joint venture in

which a United States person or persons owns

at least 51 percent of the assets of the joint

venture.

(d) American minority contractors

Not less than 10 percent of the amount appropriated pursuant to section 4851(a) of this title

for diplomatic construction or design projects

each fiscal year shall be allocated to the extent

practicable for contracts with American minority contractors.

(e) American small business contractors

Not less than 10 percent of the amount appropriated pursuant to section 4851(a) of this title

for diplomatic construction or design projects

each fiscal year shall be allocated to the extent

practicable for contracts with American small

business contractors.

(f) Limitation on subcontracting

With respect to a diplomatic construction

project, a prime contractor may not subcontract

more than 50 percent of the total value of its

contract for that project.

(Pub. L. 99–399, title IV, §402, Aug. 27, 1986, 100

Stat. 864; Pub. L. 101–246, title I, §132, Feb. 16,

1990, 104 Stat. 32; Pub. L. 102–138, title I, §131,

Oct. 28, 1991, 105 Stat. 662; Pub. L. 103–236, title

I, §162(g)(10), Apr. 30, 1994, 108 Stat. 407.)

REFERENCES IN TEXT

Title II of the State Department Basic Authorities

Act of 1956, referred to in subsec. (b), is title II of act

Aug. 1, 1956, ch. 841, as added Aug. 24, 1982, Pub. L.

97–241, title II, §202(b), 96 Stat. 283, known as the Foreign Missions Act, which is classified principally to

chapter 53 (§4301 et seq.) of this title. For complete

classification of title II to the Code, see Short Title

note set out under section 4301 of this title and Tables.

AMENDMENTS

1994—Subsec. (a)(2). Pub. L. 103–236 substituted ‘‘Secretary of State’’ for ‘‘Assistant Secretary for Diplomatic Security’’.

1991—Subsec. (a)(1). Pub. L. 102–138, §131(1), substituted ‘‘$10,000,000’’ for ‘‘$5,000,000’’.

Subsec. (a)(2). Pub. L. 102–138, §131(2), amended par.

(2) generally. Prior to amendment, par. (2) read as follows: ‘‘bid on a diplomatic construction or design

project which involves physical or technical security,

unless the project—

‘‘(A) involves nonsophisticated, low-level technology, as determined by the Assistant Secretary for

Diplomatic Security;

‘‘(B) is for the design or construction of a facility

that does not process or store classified material; and

‘‘(C) does not exceed a total value of $500,000.’’

1990—Subsec. (a)(2). Pub. L. 101–246 amended par. (2)

generally. Prior to amendment, par. (2) read as follows:

‘‘bid on a diplomatic construction or design project

which involves physical or technical security.’’

CHANGE OF NAME

Committee on Foreign Affairs of House of Representatives treated as referring to Committee on International Relations of House of Representatives by section 1(a) of Pub. L. 104–14, set out as a note preceding

section 21 of Title 2, The Congress.

EFFECTIVE DATE OF 1994 AMENDMENT

Amendment by Pub. L. 103–236 applicable with respect to officials, offices, and bureaus of Department of

State when executive orders, regulations, or departmental directives implementing the amendments by

sections 161 and 162 of Pub. L. 103–236 become effective,

or 90 days after Apr. 30, 1994, whichever comes earlier,

see section 161(b) of Pub. L. 103–236, as amended, set out

as a note under section 2651a of this title.

CONSTRUCTION OF UNITED STATES EMBASSY IN OTTAWA

Section 125 of Pub. L. 101–246 provided that: ‘‘Section

402(a) of the Diplomatic Security Act (22 U.S.C. 4852(a))

shall not apply to the construction or renovation of the

United States Embassy in Ottawa, Canada.’’

§ 4853. Security requirements for contractors

Not later than 90 days after August 27, 1986,

the Secretary of State shall issue regulations

to—