I 
116TH CONGRESS 
1ST SESSION H. R. 1858 
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 25, 2019 
Mr. BUDD (for himself and Mr. ROONEY of Florida) introduced the following 
bill; which was referred to the Committee on Oversight and Reform 
A BILL 
To preserve open competition and Federal Government neu-
trality towards the labor relations of Federal Government 
contractors on Federal and federally funded construction 
projects, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Fair and Open Com-
petition Act’’ or the ‘‘FOCA Act’’. 
SEC. 2. PURPOSES. 
It is the purpose of this Act to— 
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(1) promote and ensure open competition on 
Federal and federally funded or assisted construc-
tion projects; 
(2) maintain Federal Government neutrality to-
wards the labor relations of Federal Government 
contractors on Federal and federally funded or as-
sisted construction projects; 
(3) reduce construction costs to the Federal 
Government and to the taxpayers; 
(4) expand job opportunities, especially for 
small and disadvantaged businesses; and 
(5) prevent discrimination against Federal Gov-
ernment contractors or their employees based upon 
labor affiliation or the lack thereof, thereby pro-
moting the economical, nondiscriminatory, and effi-
cient administration and completion of Federal and 
federally funded or assisted construction projects. 
SEC. 3. PRESERVATION OF OPEN COMPETITION AND FED-
ERAL GOVERNMENT NEUTRALITY. 
(a) PROHIBITION.— 
(1) GENERAL RULE.—The head of each execu-
tive agency that awards or enters into any construc-
tion contract or that obligates funds pursuant to 
such a contract, shall ensure that the agency, and 
any construction manager acting on behalf of the 
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Federal Government with respect to such contract, 
in its bid specifications, project agreements, or other 
controlling documents does not— 
(A) require or prohibit a bidder, offeror, 
contractor, or subcontractor from entering into, 
or adhering to, agreements with 1 or more 
labor organizations, with respect to that con-
struction project or another related construction 
project; or 
(B) discriminate against or give preference 
to a bidder, offeror, contractor, or subcon-
tractor because such bidder, offeror, contractor, 
or subcontractor— 
(i) becomes a signatory, or otherwise 
adheres to, an agreement with 1 or more 
labor organizations with respect to that 
construction project or another related 
construction project; or 
(ii) refuses to become a signatory, or 
otherwise adhere to, an agreement with 1 
or more labor organizations with respect to 
that construction project or another related 
construction project. 
(2) APPLICATION OF PROHIBITION.—This sub-
section shall apply with respect to— 
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(A) contracts awarded on or after the date 
of the enactment of this Act; and 
(B) subcontracts awarded under such con-
tracts. 
(3) RULE
OF
CONSTRUCTION.—Nothing in 
paragraph (1) may be construed to prohibit a con-
tractor or subcontractor from voluntarily entering 
into an agreement described in such paragraph. 
(4) FEDERAL ACQUISITION REGULATION.—Not 
later than 60 days after the date of the enactment 
of this Act, the Federal Acquisition Regulation shall 
be revised to implement the provisions of this sub-
section. 
(b) RECIPIENTS OF GRANTS AND OTHER ASSIST-
ANCE.—The head of each executive agency that awards 
grants, provides financial assistance, or enters into cooper-
ative agreements for construction projects after the date 
of the enactment of this Act shall ensure that— 
(1) the bid specifications, project agreements, 
or other controlling documents for such construction 
projects of a recipient of a grant or financial assist-
ance, or by the parties to a cooperative agreement, 
do not contain any of the requirements or prohibi-
tions described in subparagraph (A) or (B) of sub-
section (a)(1); or 
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(2) the bid specifications, project agreements, 
or other controlling documents for such construction 
projects of a construction manager acting on behalf 
of a recipient or party described in paragraph (1) do 
not contain any of the requirements or prohibitions 
described in subparagraph (A) or (B) of subsection 
(a)(1). 
(c) FAILURE TO COMPLY.—If an executive agency, 
a recipient of a grant or financial assistance from an exec-
utive agency, a party to a cooperative agreement with an 
executive agency, or a construction manager acting on be-
half of such an agency, recipient, or party, fails to comply 
with subsection (a) or (b), the head of the executive agency 
awarding the contract, grant, or assistance, or entering 
into the agreement involved, shall take such action, con-
sistent with the law, as the head of such agency deter-
mines to be appropriate. 
(d) EXEMPTIONS.— 
(1) IN GENERAL.—The head of an executive 
agency may exempt a particular project, contract, 
subcontract, grant, or cooperative agreement from 
the requirements of 1 or more of the provisions of 
subsections (a) and (b) if the head of such agency 
determines that special circumstances exist that re-
quire an exemption in order to avert an imminent 
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threat to public health or safety or to serve the na-
tional security. 
(2) SPECIAL
CIRCUMSTANCES.—For purposes 
of paragraph (1), a finding of special circumstances 
may not be based on the possibility or existence of 
a labor dispute concerning contractors or sub-
contractors that are nonsignatories to, or that other-
wise do not adhere to, agreements with 1 or more 
labor organizations, or labor disputes concerning em-
ployees on the project who are not members of, or 
affiliated with, a labor organization. 
(3) ADDITIONAL
EXEMPTION
FOR
CERTAIN 
PROJECTS.—The head of an executive agency, upon 
application of an awarding authority, a recipient of 
grants or financial assistance, a party to a coopera-
tive agreement, or a construction manager acting on 
behalf of any of such entities, may exempt a par-
ticular project from the requirements of any or all 
of the provisions of subsection (a) or (b), if the head 
of such agency finds— 
(A) that the awarding authority, recipient 
of grants or financial assistance, party to a co-
operative agreement, or construction manager 
acting on behalf of any of such entities had 
issued or was a party to, as of the date of the 
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enactment of this Act, bid specifications, project 
agreements, agreements with 1 or more labor 
organizations, or other controlling documents 
with respect to that particular project, which 
contained any of the requirements or prohibi-
tions set forth in subsection (a)(1); and 
(B) that 1 or more construction contracts 
subject to such requirements or prohibitions 
had been awarded as of the date of the enact-
ment of this Act. 
(e) DEFINITIONS.—In this section: 
(1) 
CONSTRUCTION
CONTRACT.—The 
term 
‘‘construction contract’’ means any contract for the 
construction, rehabilitation, alteration, conversion, 
extension, or repair of buildings, highways, or other 
improvements to real property. 
(2) EXECUTIVE AGENCY.—The term ‘‘executive 
agency’’ has the meaning given the term ‘‘Executive 
agency’’ in section 105 of title 5, United States 
Code, except that such term does not include the 
Government Accountability Office. 
(3) LABOR ORGANIZATION.—The term ‘‘labor 
organization’’ has the meaning given such term in 
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