I 

115TH CONGRESS 

1ST SESSION H. R. 1552 

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 

MARCH 15, 2017 

Mr. ROSS introduced the following bill; which was referred to the Committee 

on Oversight and Government Reform 

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 ‘‘FOCA Act’’. 

6 SEC. 2. PURPOSES. 

7 It is the purpose of this Act to— 


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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 the enactment of this Act, or that 

24 obligates funds pursuant to such a contract, shall 

25 ensure that the agency, and any construction manVerDate Sep 11 2014 03:19 Mar 21, 2017 Jkt 069200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1552.IH H1552

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1 ager acting on behalf of the Federal Government 

2 with respect to such contract, in its bid specifica3 tions, project agreements, or other controlling docu4 ments 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) otherwise discriminate against or give 

12 preference to a bidder, offeror, contractor, or 

13 subcontractor because such bidder, offeror, con14 tractor, 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 entered into on or after the 

4 date 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.— 

12 With respect to Federal contracts to which this sub13 section applies, not later than 60 days after the date 

14 of the enactment of this Act, the Federal Acquisition 

15 Regulation shall be revised to implement the provi16 sions of this subsection. 

17 (b) RECIPIENTS OF GRANTS AND OTHER ASSIST18 ANCE.—The head of each executive agency that awards 

19 grants, provides financial assistance, or enters into cooper20 ative agreements for construction projects after the date 

21 of the enactment of this Act shall ensure that— 

22 (1) the bid specifications, project agreements, 

23 or other controlling documents for such construction 

24 projects of a recipient of a grant or financial assist25 ance, or by the parties to a cooperative agreement, 


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1 do not contain any of the requirements or prohibi2 tions described in subparagraph (A) or (B) of sub3 section (a)(1); or 

4 (2) the bid specifications, project agreements, 

5 or other controlling documents for such construction 

6 projects of a construction manager acting on behalf 

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

8 not contain any of the requirements or prohibitions 

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

10 (a)(1). 

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

12 a recipient of a grant or financial assistance from an exec13 utive agency, a party to a cooperative agreement with an 

14 executive agency, or a construction manager acting on be15 half of such an agency, recipient, or party, fails to comply 

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

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

18 into the agreement involved, shall take such action, con19 sistent with law, as the head of such agency determines 

20 to be appropriate. 

21 (d) EXEMPTIONS.— 

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

23 agency may exempt a particular project, contract, 

24 subcontract, grant, or cooperative agreement from 

25 the requirements of 1 or more of the provisions of 


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

2 determines that special circumstances exist that re3 quire an exemption in order to avert an imminent 

4 threat to public health or safety or to serve the na5 tional security. 

6 (2) SPECIAL CIRCUMSTANCES.—For purposes 

7 of paragraph (1), a finding of ‘‘special cir8 cumstances’’ may not be based on the possibility or 

9 existence of a labor dispute concerning contractors 

10 or subcontractors that are nonsignatories to, or that 

11 otherwise do not adhere to, agreements with 1 or 

12 more labor organizations, or labor disputes con13 cerning employees on the project who are not mem14 bers of, or affiliated with, a labor organization. 

15 (3) ADDITIONAL EXEMPTION FOR CERTAIN

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

17 application of an awarding authority, a recipient of 

18 grants or financial assistance, a party to a coopera19 tive agreement, or a construction manager acting on 

20 behalf of any of such entities, may exempt a par21 ticular project from the requirements of any or all 

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

23 of such agency finds— 

24 (A) that the awarding authority, recipient 

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1 operative agreement, or construction manager 

2 acting on behalf of any of such entities had 

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

4 enactment of this Act, bid specifications, project 

5 agreements, agreements with 1 or more labor 

6 organizations, or other controlling documents 

7 with respect to that particular project, which 

8 contained any of the requirements or prohibi9 tions set forth in subsection (a)(1); and 

10 (B) that 1 or more construction contracts 

11 subject to such requirements or prohibitions 

12 had been awarded as of the date of the enact13 ment of this Act. 

14 (e) 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 the term ‘‘Executive 

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

23 Code, except that such term does not include the 

24 Government Accountability Office. 


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

2 organization’’ has the meaning given such term in 

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

4 U.S.C. 2000e). 

Æ 


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