S.Amdt. 1412

SA 1412. Mr. VITTER submitted an amendment intended to be proposed to
amendment SA 1373 proposed by Mr. Reid (for Mr. Byrd (for himself, Mr.
Inouye, and Mrs. Murray)) to the bill H.R. 2892, making appropriations
for the Department of Homeland Security for the fiscal year ending
September 30, 2010, and for other purposes; which was ordered to lie on
the table; as follows:

On page 77, between lines 16 and 17, insert the following:

SEC. 556. GOVERNMENT NEUTRALITY IN CONTRACTING.

(a) Purposes.--It is the purpose of this section to--
(1) promote and ensure open competition on Federal and
federally funded or assisted construction projects;
(2) maintain Federal Government neutrality towards the
labor relations of Federal Government contractors on Federal
and federally funded or assisted 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 Government
contractors or their employees based upon labor affiliation
or the lack thereof, thereby promoting the economical,
nondiscriminatory, and efficient administration and
completion of Federal and federally funded or assisted
construction projects.
(b) Preservation of Open Competition and Federal Government
Neutrality.--
(1) Prohibition.--
(A) General rule.--The head of each executive agency that
awards any construction contract after the date of enactment
of this Act, or that obligates funds pursuant to such a
contract, shall ensure that the agency, and any construction
manager acting on behalf of the Federal Government with
respect to such contract, in its bid specifications, project
agreements, or other controlling documents does not--
(i) require or prohibit a bidder, offeror, contractor, or
subcontractor from entering into, or adhering to, agreements
with 1 or more labor organization, with respect to that
construction project or another related construction project;
or
(ii) otherwise discriminate against a bidder, offeror,
contractor, or subcontractor because such bidder, offeror,
contractor, or subcontractor--

(I) became a signatory, or otherwise adhered to, an
agreement with 1 or more labor organization with respect to
that construction project or another related construction
project; or
(II) refused to become a signatory, or otherwise adhere to,
an agreement with 1 or more labor organization with respect
to that construction project or another related construction
project.

(B) Application of prohibition.--The provisions of this
subsection shall not apply to contracts awarded prior to the
date of enactment of this Act, and subcontracts awarded
pursuant to such contracts regardless of the date of such
subcontracts.
(C) Rule of construction.--Nothing in subparagraph (A)
shall be construed to prohibit a contractor or subcontractor
from voluntarily entering into an agreement described in such
subparagraph.
(2) Recipients of grants and other assistance.--The head of
each executive agency that awards grants, provides financial
assistance, or enters into cooperative agreements for
construction projects after the date of enactment of this
Act, shall ensure that--
(A) the bid specifications, project agreements, or other
controlling documents for such construction projects of a
recipient of a grant or financial assistance, or by the
parties to a cooperative agreement, do not contain any of the
requirements or prohibitions described in clause (i) or (ii)
of paragraph (1)(A); or
(B) 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 subparagraph (A), do not contain any of the
requirements or prohibitions described in clause (i) or (ii)
of paragraph (1)(A).
(3) Failure to comply.--If an executive agency, a recipient
of a grant or financial assistance from an executive agency,
a party to a cooperative agreement with an executive agency,
or a construction manager acting on behalf of such an agency,
recipient or party, fails to comply with paragraph (1) or
(2), the head of the executive agency awarding the contract,
grant, or assistance, or entering into the agreement,
involved shall take such action, consistent with law, as the
head of the agency determines to be appropriate.
(4) Exemptions.--
(A) 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 paragraphs (1) and (2) if the head of such
agency determines that special circumstances exist that
require an exemption in order to avert an imminent threat to
public health or safety or to serve the national security.
(B) Special circumstances.--For purposes of subparagraph
(A), a finding of ``special circumstances'' may not be based
on the possibility or existence of a labor dispute concerning
contractors or subcontractors that are nonsignatories to, or
that otherwise do not adhere to, agreements with 1 or more
labor organization, or labor disputes concerning employees on
the project who are not members of, or affiliated with, a
labor organization.
(C) 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 cooperative agreement, or a construction manager
acting on behalf of any of such entities, may exempt a
particular project from the requirements of any or all

[[Page S7270]]

of the provisions of paragraphs (1) or (3), if the agency
head finds--
(i) that the awarding authority, recipient of grants or
financial assistance, party to a cooperative 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 enactment
of this Act, bid specifications, project agreements,
agreements with one or more labor organizations, or other
controlling documents with respect to that particular
project, which contained any of the requirements or
prohibitions set forth in paragraph (1)(A); and
(ii) that one or more construction contracts subject to
such requirements or prohibitions had been awarded as of the
date of the enactment of this Act.
(5) Federal acquisition regulatory council.--With respect
to Federal contracts to which this section applies, not later
than 60 days after the date of enactment of this Act, the
Federal Acquisition Regulatory Council shall take appropriate
action to amend the Federal Acquisition Regulation to
implement the provisions of this subsection.
(6) Definitions.--In this subsection:
(A) 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.
(B) Executive agency.--The term ``executive agency'' has
the meaning given such term in section 105 of title 5, United
States Code, except that such term shall not include the
Government Accountability Office.
(C) Labor organization.--The term ``labor organization''
has the meaning given such term in section 701(d) of the
Civil Rights Act of 1964 (42 U.S.C. 2000e(d)).
______