II 

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. 

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’’. 


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1 SEC. 2. PURPOSES. 

2 It is the purpose of this Act to— 

3 (1) promote and ensure open competition on 

4 Federal and federally funded or assisted construc5 tion projects; 

6 (2) maintain Federal Government neutrality to7 wards the labor relations of Federal Government 

8 contractors on Federal and federally funded or as9 sisted construction projects; 

10 (3) reduce construction costs to the Federal 

11 Government and to the taxpayers; 

12 (4) expand job opportunities, especially for 

13 small and disadvantaged businesses; and 

14 (5) prevent discrimination against Federal Gov15 ernment contractors or their employees based upon 

16 labor affiliation or the lack thereof, thereby pro17 moting the economical, nondiscriminatory, and effi18 cient administration and completion of Federal and 

19 federally funded or assisted construction projects. 

20 SEC. 3. PRESERVATION OF OPEN COMPETITION AND FED21 ERAL GOVERNMENT NEUTRALITY. 

22 (a) PROHIBITION.— 

23 (1) GENERAL RULE.—The head of each execu24 tive agency that awards or enters into any construc25 tion contract or that obligates funds pursuant to 

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


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1 any construction manager acting on behalf of the 

2 Federal Government with respect to such contract, 

3 in its bid specifications, project agreements, or other 

4 controlling documents does not— 

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

6 contractor, or subcontractor from entering into, 

7 or adhering to, agreements with 1 or more 

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

10 project; or 

11 (B) discriminate against or give preference 

12 to a bidder, offeror, contractor, or subcon13 tractor because such bidder, offeror, contractor, 

14 or subcontractor— 

15 (i) becomes a signatory, or otherwise 

16 adheres to, an agreement with 1 or more 

17 labor organizations with respect to that 

18 construction project or another related 

19 construction project; or 

20 (ii) refuses to become a signatory, or 

21 otherwise adhere to, an agreement with 1 

22 or more labor organizations with respect to 

23 that construction project or another related 

24 construction project. 


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1 (2) APPLICATION OF PROHIBITION.—This sub2 section shall apply with respect to— 

3 (A) contracts awarded on or after the date 

4 of the enactment of this Act; and 

5 (B) subcontracts awarded under such con6 tracts. 

7 (3) RULE OF CONSTRUCTION.—Nothing in 

8 paragraph (1) may be construed to prohibit a con9 tractor or subcontractor from voluntarily entering 

10 into an agreement described in such paragraph. 

11 (4) FEDERAL ACQUISITION REGULATION.—Not 

12 later than 60 days after the date of the enactment 

13 of this Act, the Federal Acquisition Regulation shall 

14 be revised to implement the provisions of this sub15 section. 

16 (b) RECIPIENTS OF GRANTS AND OTHER ASSIST17 ANCE.—The head of each executive agency that awards 

18 grants, provides financial assistance, or enters into cooper19 ative agreements for construction projects after the date 

20 of the enactment of this Act shall ensure that— 

21 (1) the bid specifications, project agreements, 

22 or other controlling documents for such construction 

23 projects of a recipient of a grant or financial assist24 ance, or by the parties to a cooperative agreement, 

25 do not contain any of the requirements or prohibiVerDate Sep 11 2014 06:24 Mar 07, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S537.IS S537

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1 tions described in subparagraph (A) or (B) of sub2 section (a)(1); or 

3 (2) the bid specifications, project agreements, 

4 or other controlling documents for such construction 

5 projects of a construction manager acting on behalf 

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

7 not contain any of the requirements or prohibitions 

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

9 (a)(1). 

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

11 a recipient of a grant or financial assistance from an exec12 utive agency, a party to a cooperative agreement with an 

13 executive agency, or a construction manager acting on be14 half of such an agency, recipient, or party, fails to comply 

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

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

17 into the agreement involved, shall take such action, con18 sistent with the law, as the head of such agency deter19 mines to be appropriate. 

20 (d) EXEMPTIONS.— 

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

22 agency may exempt a particular project, contract, 

23 subcontract, grant, or cooperative agreement from 

24 the requirements of 1 or more of the provisions of 

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


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1 determines that special circumstances exist that re2 quire an exemption in order to avert an imminent 

3 threat to public health or safety or to serve the na4 tional security. 

5 (2) SPECIAL CIRCUMSTANCES.—For purposes 

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

7 may not be based on the possibility or existence of 

8 a labor dispute concerning contractors or sub9 contractors that are nonsignatories to, or that other10 wise do not adhere to, agreements with 1 or more 

11 labor organizations, or labor disputes concerning em12 ployees on the project who are not members of, or 

13 affiliated with, a labor organization. 

14 (3) ADDITIONAL EXEMPTION FOR CERTAIN

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

16 application of an awarding authority, a recipient of 

17 grants or financial assistance, a party to a coopera18 tive agreement, or a construction manager acting on 

19 behalf of any of such entities, may exempt a par20 ticular project from the requirements of any or all 

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

22 of such agency finds— 

23 (A) that the awarding authority, recipient 

24 of grants or financial assistance, party to a co25 operative agreement, or construction manager 


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1 acting on behalf of any of such entities had 

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

3 enactment of this Act, bid specifications, project 

4 agreements, agreements with 1 or more labor 

5 organizations, or other controlling documents 

6 with respect to that particular project, which 

7 contained any of the requirements or prohibi8 tions set forth in subsection (a)(1); and 

9 (B) that 1 or more construction contracts 

10 subject to such requirements or prohibitions 

11 had been awarded as of the date of the enact12 ment of this Act. 

13 (e) DEFINITIONS.—In this section: 

14 (1) CONSTRUCTION CONTRACT.—The term 

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

16 construction, rehabilitation, alteration, conversion, 

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

18 improvements to real property. 

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

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

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

22 Code, except that such term does not include the 

23 Government Accountability Office. 

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

25 organization’’ has the meaning given such term in 


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

2 U.S.C. 2000e). 

Æ 


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