I 

117TH CONGRESS 

1ST SESSION H. R. 1284 

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 24, 2021 

Mr. BUDD (for himself, Mr. MOOLENAAR, Mr. GAETZ, Mr. PERRY, Mr. 

BANKS, Mr. STEUBE, Mr. STEWART, Mr. ROSENDALE, Mr. MULLIN, Mr. 

NORMAN, Mr. HICE of Georgia, Mr. HARRIS, Mr. CAWTHORN, Mr. 

KELLY of Mississippi, Mr. JACKSON, Ms. MACE, Mr. WEBER of Texas, 

Mr. CARTER of Texas, Mr. COLE, Mrs. RODGERS of Washington, Mr. 

CURTIS, Mr. ISSA, Mrs. HINSON, Mr. LATTA, Mr. WITTMAN, Mr. RICE

of South Carolina, Mr. JOHNSON of Louisiana, Mr. SESSIONS, Mr. 

BABIN, Mr. TIFFANY, Mr. SMITH of Missouri, Mr. CARL, Mr. COMER, 

Mr. LONG, Mr. HERN, Mr. OWENS, Mr. RUTHERFORD, and Mr. ALLEN) 

introduced the following bill; which was referred to the Committee on 

Oversight and 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, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Fair and Open Com3 petition Act’’ or the ‘‘FOCA Act’’. 

4 SEC. 2. PURPOSES. 

5 It is the purpose of this Act to— 

6 (1) promote and ensure open competition on 

7 Federal and federally funded or assisted construc8 tion projects; 

9 (2) maintain Federal Government neutrality to10 wards the labor relations of Federal Government 

11 contractors on Federal and federally funded or as12 sisted construction projects; 

13 (3) reduce construction costs to the Federal 

14 Government and to the taxpayers; 

15 (4) expand job opportunities, especially for 

16 small and disadvantaged businesses; and 

17 (5) prevent discrimination against Federal Gov18 ernment contractors or their employees based upon 

19 labor affiliation or the lack thereof, thereby pro20 moting the economical, nondiscriminatory, and effi21 cient administration and completion of Federal and 

22 federally funded or assisted construction projects. 

23 SEC. 3. PRESERVATION OF OPEN COMPETITION AND FED24 ERAL GOVERNMENT NEUTRALITY. 

25 (a) PROHIBITION.— 


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1 (1) GENERAL RULE.—The head of each execu2 tive agency that awards or enters into any construc3 tion contract or that obligates funds pursuant to 

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

5 any construction manager acting on behalf of the 

6 Federal Government with respect to such contract, 

7 in its bid specifications, project agreements, or other 

8 controlling documents does not— 

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

10 contractor, or subcontractor from entering into, 

11 or adhering to, agreements with 1 or more 

12 labor organizations, with respect to that con13 struction project or another related construction 

14 project; or 

15 (B) discriminate against or give preference 

16 to a bidder, offeror, contractor, or subcon17 tractor because such bidder, offeror, contractor, 

18 or subcontractor— 

19 (i) becomes a signatory, or otherwise 

20 adheres to, an agreement with 1 or more 

21 labor organizations with respect to that 

22 construction project or another related 

23 construction project; or 

24 (ii) refuses to become a signatory, or 

25 otherwise adhere to, an agreement with 1 


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1 or more labor organizations with respect to 

2 that construction project or another related 

3 construction project. 

4 (2) APPLICATION OF PROHIBITION.—This sub5 section shall apply with respect to— 

6 (A) contracts awarded on or after the date 

7 of the enactment of this Act; and 

8 (B) subcontracts awarded under such con9 tracts. 

10 (3) RULE OF CONSTRUCTION.—Nothing in 

11 paragraph (1) may be construed to prohibit a con12 tractor or subcontractor from voluntarily entering 

13 into an agreement described in such paragraph. 

14 (4) FEDERAL ACQUISITION REGULATION.—Not 

15 later than 60 days after the date of the enactment 

16 of this Act, the Federal Acquisition Regulation shall 

17 be revised to implement the provisions of this sub18 section. 

19 (b) RECIPIENTS OF GRANTS AND OTHER ASSIST20 ANCE.—The head of each executive agency that awards 

21 grants, provides financial assistance, or enters into cooper22 ative agreements for construction projects after the date 

23 of the enactment of this Act shall ensure that— 

24 (1) the bid specifications, project agreements, 

25 or other controlling documents for such construction 


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1 projects of a recipient of a grant or financial assist2 ance, or by the parties to a cooperative agreement, 

3 do not contain any of the requirements or prohibi4 tions described in subparagraph (A) or (B) of sub5 section (a)(1); or 

6 (2) the bid specifications, project agreements, 

7 or other controlling documents for such construction 

8 projects of a construction manager acting on behalf 

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

10 not contain any of the requirements or prohibitions 

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

12 (a)(1). 

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

14 a recipient of a grant or financial assistance from an exec15 utive agency, a party to a cooperative agreement with an 

16 executive agency, or a construction manager acting on be17 half of such an agency, recipient, or party, fails to comply 

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

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

20 into the agreement involved, shall take such action, con21 sistent with the law, as the head of such agency deter22 mines to be appropriate. 

23 (d) EXEMPTIONS.— 

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

25 agency may exempt a particular project, contract, 


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1 subcontract, grant, or cooperative agreement from 

2 the requirements of 1 or more of the provisions of 

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

4 determines that special circumstances exist that re5 quire an exemption in order to avert an imminent 

6 threat to public health or safety or to serve the na7 tional security. 

8 (2) SPECIAL CIRCUMSTANCES.—For purposes 

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

10 may not be based on the possibility or existence of 

11 a labor dispute concerning contractors or sub12 contractors that are nonsignatories to, or that other13 wise do not adhere to, agreements with 1 or more 

14 labor organizations, or labor disputes concerning em15 ployees on the project who are not members of, or 

16 affiliated with, a labor organization. 

17 (3) ADDITIONAL EXEMPTION FOR CERTAIN

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

19 application of an awarding authority, a recipient of 

20 grants or financial assistance, a party to a coopera21 tive agreement, or a construction manager acting on 

22 behalf of any of such entities, may exempt a par23 ticular project from the requirements of any or all 

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

25 of such agency finds— 


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1 (A) that the awarding authority, recipient 

2 of grants or financial assistance, party to a co3 operative agreement, or construction manager 

4 acting on behalf of any of such entities had 

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

6 enactment of this Act, bid specifications, project 

7 agreements, agreements with 1 or more labor 

8 organizations, or other controlling documents 

9 with respect to that particular project, which 

10 contained any of the requirements or prohibi11 tions set forth in subsection (a)(1); and 

12 (B) that 1 or more construction contracts 

13 subject to such requirements or prohibitions 

14 had been awarded as of the date of the enact15 ment of this Act. 

16 (e) DEFINITIONS.—In this section: 

17 (1) CONSTRUCTION CONTRACT.—The term 

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

19 construction, rehabilitation, alteration, conversion, 

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

21 improvements to real property. 

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

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

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


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1 Code, except that such term does not include the 

2 Government Accountability Office. 

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

4 organization’’ has the meaning given such term in 

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

6 U.S.C. 2000e). 

Æ 


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