II 

117TH CONGRESS 

1ST SESSION S. 403 

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 24, 2021 

Mr. YOUNG (for himself and Mr. SCOTT of South Carolina) 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’’. 

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 or enters into any construc23 tion contract or that obligates funds pursuant to 

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

25 any construction manager acting on behalf of the 


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1 Federal Government with respect to such contract, 

2 in its bid specifications, project agreements, or other 

3 controlling documents does not— 

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

5 contractor, or subcontractor from entering into, 

6 or adhering to, agreements with 1 or more 

7 labor organizations, with respect to that con8 struction project or another related construction 

9 project; or 

10 (B) discriminate against or give preference 

11 to a bidder, offeror, contractor, or subcon12 tractor because such bidder, offeror, contractor, 

13 or subcontractor— 

14 (i) becomes a signatory, or otherwise 

15 adheres to, an agreement with 1 or more 

16 labor organizations with respect to that 

17 construction project or another related 

18 construction project; or 

19 (ii) refuses to become a signatory, or 

20 otherwise adhere to, an agreement with 1 

21 or more labor organizations with respect to 

22 that construction project or another related 

23 construction project. 

24 (2) APPLICATION OF PROHIBITION.—This sub25 section shall apply with respect to— 


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1 (A) contracts awarded on or after the date 

2 of the enactment of this Act; and 

3 (B) subcontracts awarded under such con4 tracts. 

5 (3) RULE OF CONSTRUCTION.—Nothing in 

6 paragraph (1) may be construed to prohibit a con7 tractor or subcontractor from voluntarily entering 

8 into an agreement described in such paragraph. 

9 (4) FEDERAL ACQUISITION REGULATION.—Not 

10 later than 60 days after the date of the enactment 

11 of this Act, the Federal Acquisition Regulation shall 

12 be revised to implement the provisions of this sub13 section. 

14 (b) RECIPIENTS OF GRANTS AND OTHER ASSIST15 ANCE.—The head of each executive agency that awards 

16 grants, provides financial assistance, or enters into cooper17 ative agreements for construction projects after the date 

18 of the enactment of this Act shall ensure that— 

19 (1) the bid specifications, project agreements, 

20 or other controlling documents for such construction 

21 projects of a recipient of a grant or financial assist22 ance, or by the parties to a cooperative agreement, 

23 do not contain any of the requirements or prohibi24 tions described in subparagraph (A) or (B) of sub25 section (a)(1); or 


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1 (2) the bid specifications, project agreements, 

2 or other controlling documents for such construction 

3 projects of a construction manager acting on behalf 

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

5 not contain any of the requirements or prohibitions 

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

7 (a)(1). 

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

9 a recipient of a grant or financial assistance from an exec10 utive agency, a party to a cooperative agreement with an 

11 executive agency, or a construction manager acting on be12 half of such an agency, recipient, or party, fails to comply 

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

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

15 into the agreement involved, shall take such action, con16 sistent with the law, as the head of such agency deter17 mines to be appropriate. 

18 (d) EXEMPTIONS.— 

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

20 agency may exempt a particular project, contract, 

21 subcontract, grant, or cooperative agreement from 

22 the requirements of 1 or more of the provisions of 

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

24 determines that special circumstances exist that re25 quire an exemption in order to avert an imminent 


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1 threat to public health or safety or to serve the na2 tional security. 

3 (2) SPECIAL CIRCUMSTANCES.—For purposes 

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

5 may not be based on the possibility or existence of 

6 a labor dispute concerning contractors or sub7 contractors that are nonsignatories to, or that other8 wise do not adhere to, agreements with 1 or more 

9 labor organizations, or labor disputes concerning em10 ployees on the project who are not members of, or 

11 affiliated with, a labor organization. 

12 (3) ADDITIONAL EXEMPTION FOR CERTAIN

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

14 application of an awarding authority, a recipient of 

15 grants or financial assistance, a party to a coopera16 tive agreement, or a construction manager acting on 

17 behalf of any of such entities, may exempt a par18 ticular project from the requirements of any or all 

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

20 of such agency finds— 

21 (A) that the awarding authority, recipient 

22 of grants or financial assistance, party to a co23 operative agreement, or construction manager 

24 acting on behalf of any of such entities had 

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


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1 enactment of this Act, bid specifications, project 

2 agreements, agreements with 1 or more labor 

3 organizations, or other controlling documents 

4 with respect to that particular project, which 

5 contained any of the requirements or prohibi6 tions set forth in subsection (a)(1); and 

7 (B) that 1 or more construction contracts 

8 subject to such requirements or prohibitions 

9 had been awarded as of the date of the enact10 ment of this Act. 

11 (e) DEFINITIONS.—In this section: 

12 (1) CONSTRUCTION CONTRACT.—The term 

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

14 construction, rehabilitation, alteration, conversion, 

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

16 improvements to real property. 

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

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

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

20 Code, except that such term does not include the 

21 Government Accountability Office. 

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

23 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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