II
116TH CONGRESS
2D SESSION
S. 3448
To provide for certain contracting requirements to promote fair and safe
workplaces, and for other purposes.
IN THE SENATE OF THE UNITED STATES
MARCH 11, 2020
Ms. SMITH (for herself, Mr. BLUMENTHAL, Mr. BROWN, Ms. BALDWIN, Mrs.
FEINSTEIN, Mrs. MURRAY, Mrs. GILLIBRAND, Mr. VAN HOLLEN, Mrs.
SHAHEEN, Mr. MERKLEY, and Mr. DURBIN) introduced the following bill;
which was read twice and referred to the Committee on Health, Edu-
cation, Labor, and Pensions
A BILL
To provide for certain contracting requirements to promote
fair and safe workplaces, and for other purposes.
Be it enacted by the Senate and House of Representa-
1
tives of the United States of America in Congress assembled,
2
SECTION 1. SHORT TITLE.
3
This Act may be cited as the ‘‘Fair Pay and Safe
4
Workplaces Act of 2020’’.
5
SEC. 2. DEFINITIONS.
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In this Act:
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(1) COVERED CONTRACT.—The term ‘‘covered
8
contract’’ means a Federal contract for the procure-
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•S 3448 IS
ment of property or services, including construction,
1
valued in excess of $500,000.
2
(2) COVERED SUBCONTRACT.—The term ‘‘cov-
3
ered subcontract’’—
4
(A) means a subcontract for property or
5
services under a Federal contract that is valued
6
in excess of $500,000; and
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(B) does not include a subcontract for the
8
procurement of commercially available off-the-
9
shelf items.
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(3) EXECUTIVE AGENCY.—The term ‘‘executive
11
agency’’ has the meaning given the term in section
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133 of title 41, United States Code.
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SEC. 3. PURPOSE.
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The purpose of this Act is to—
15
(1) ensure that the purchasing power of the
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Federal Government is employed to raise labor
17
standards,
improve
working
conditions,
and
18
strengthen workers’ bargaining power; and
19
(2) increase efficiency and cost savings in the
20
work performed by parties who contract with the
21
Federal Government by ensuring that they under-
22
stand and comply with labor laws, which are de-
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signed to promote safe, healthy, fair, and effective
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workplaces and increase the likelihood of enhanced
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productivity in the workplace and the timely, pre-
1
dictable, and satisfactory delivery of goods and serv-
2
ices to the Federal Government.
3
SEC. 4. REQUIRED PRE-CONTRACT AWARD ACTIONS.
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(a) DISCLOSURES.—The head of an executive agency
5
shall ensure that the solicitation for a covered contract re-
6
quires the offeror—
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(1) to represent, to the best of the offeror’s
8
knowledge and belief, whether there has been any
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administrative merits determination, arbitral award
10
or decision, or civil judgment, as defined in guidance
11
issued by the Secretary of Labor, rendered against
12
the offeror in the preceding 3 years for violations
13
of—
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(A) the Fair Labor Standards Act of 1938
15
(29 U.S.C. 201 et seq.);
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(B) the Occupational Safety and Health
17
Act of 1970 (29 U.S.C. 651 et seq.);
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(C) the Migrant and Seasonal Agricultural
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Worker Protection Act (29 U.S.C. 1801 et
20
seq.);
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(D) the National Labor Relations Act (29
22
U.S.C. 151 et seq.);
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(E) subchapter IV of chapter 31 of title
1
40, United States Code (commonly known as
2
the ‘‘Davis-Bacon Act’’);
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(F) chapter 67 of title 41, United States
4
Code (commonly known as the ‘‘Service Con-
5
tract Act’’);
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(G) Executive Order 11246 (42 U.S.C.
7
2000e note; relating to equal employment op-
8
portunity);
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(H) section 503 of the Rehabilitation Act
10
of 1973 (29 U.S.C. 793);
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(I) section 4212 of title 38, United States
12
Code;
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(J) the Family and Medical Leave Act of
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1993 (29 U.S.C. 2601 et seq.);
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(K) title VII of the Civil Rights Act of
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1964 (42 U.S.C. 2000e et seq.);
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(L) the Americans with Disabilities Act of
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1990 (42 U.S.C. 12101 et seq.);
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(M) the Age Discrimination in Employ-
20
ment Act of 1967 (29 U.S.C. 621 et seq.);
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(N) title II of the Genetic Information
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Nondiscrimination Act of 2008 (42 U.S.C.
23
2000ff et seq.);
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(O) Executive Order 13658 (79 Fed. Reg.
1
9851; relating to establishing a minimum wage
2
for contractors); or
3
(P) equivalent State laws, as defined in
4
guidance issued by the Secretary of Labor;
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(2) to require each subcontractor for a covered
6
subcontract—
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(A) to represent to the offeror and the en-
8
tity designated by the final rule reissued under
9
subsection (a) of section 7, to the best of the
10
subcontractor’s knowledge and belief, whether
11
there has been any administrative merits deter-
12
mination, arbitral award or decision, or civil
13
judgment, as defined in guidance issued by the
14
Department of Labor, rendered against the
15
subcontractor in the preceding 3 years for viola-
16
tions of any of the labor laws and Executive or-
17
ders listed under paragraph (1); and
18
(B) to update such information every 6
19
months for the duration of the subcontract; and
20
(3) to consider the advice rendered by the enti-
21
ty designated by the final rule reissued under sub-
22
section (a) of section 7 or information submitted by
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a subcontractor pursuant to paragraph (2) in deter-
24
mining whether the subcontractor is a responsible
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source with a satisfactory record of integrity and
1
business ethics—
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(A) prior to awarding the subcontract; or
3
(B) in the case of a subcontract that is
4
awarded or will become effective within 5 days
5
of the prime contract being awarded, not later
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than 30 days after awarding the subcontract.
7
(b) PRE-AWARD CORRECTIVE MEASURES.—
8
(1) IN GENERAL.—A contracting officer, prior
9
to awarding a covered contract, shall, as part of the
10
responsibility determination, provide an offeror who
11
makes a disclosure pursuant to subsection (a) an op-
12
portunity to report any steps taken to correct the
13
violations of or improve compliance with the labor
14
laws and Executive orders listed in paragraph (1) of
15
such subsection, including any agreements entered
16
into with an enforcement agency.
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(2) CONSULTATION.—The executive agency’s
18
Labor Compliance Advisor designated pursuant to
19
section 6, in consultation with relevant enforcement
20
agencies, shall advise the contracting officer whether
21
agreements are in place or are otherwise needed to
22
address appropriate remedial measures, compliance
23
assistance, steps to resolve issues to avoid further
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violations, or other related matters concerning the
1
offeror.
2
(3) RESPONSIBILITY
DETERMINATION.—The
3
contracting officer, in consultation with the executive
4
agency’s Labor Compliance Advisor, shall consider
5
information provided by the offeror under this sec-
6
tion in determining whether the offeror is a respon-
7
sible source with a satisfactory record of integrity
8
and business ethics. The determination shall be
9
based on the guidelines reissued under subsection
10
(b)(1) of section 7 and the final rule reissued under
11
subsection (a) of such section.
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(c) REFERRAL
OF INFORMATION
TO SUSPENSION
13
AND
DEBARMENT
OFFICIALS.—As appropriate, con-
14
tracting officers, in consultation with their executive agen-
15
cy’s Labor Compliance Advisor, shall refer matters related
16
to information provided pursuant to paragraphs (1) and
17
(2) of subsection (a) to the executive agency’s suspension
18
and debarment official in accordance with agency proce-
19
dures.
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SEC. 5. POST-AWARD CONTRACT ACTIONS.
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(a) INFORMATION UPDATES.—The contracting offi-
22
cer for a covered contract shall require that the contractor
23
update the information provided under paragraphs (1)
24
and (2) of section 4(a) every 6 months.
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(b) CORRECTIVE ACTIONS.—
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(1) PRIME CONTRACT.—The contracting officer,
2
in consultation with the Labor Compliance Advisor
3
designated pursuant to section 6, shall determine
4
whether any information provided under subsection
5
(a) warrants corrective action. Such action may in-
6
clude—
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(A) an agreement requiring appropriate re-
8
medial measures;
9
(B) compliance assistance;
10
(C) resolving issues to avoid further viola-
11
tions;
12
(D) the decision not to exercise an option
13
on a contract or to terminate the contract; or
14
(E) referral to the agency suspending and
15
debarring official.
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(2) SUBCONTRACTS.—The prime contractor for
17
a covered contract, in consultation with the Labor
18
Compliance Advisor, shall determine whether any in-
19
formation provided under section 4(a)(2) warrants
20
corrective action, including remedial measures, com-
21
pliance assistance, and resolving issues to avoid fur-
22
ther violations.
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(3) DEPARTMENT OF LABOR.—The Department
24
of Labor shall, as appropriate, inform executive
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agencies of its investigations of contractors and sub-
1
contractors on current Federal contracts for pur-
2
poses of determining the appropriateness of actions
3
described under paragraphs (1) and (2).
4
SEC. 6. LABOR COMPLIANCE ADVISORS.
5
(a) IN GENERAL.—Each executive agency shall des-
6
ignate a senior official to act as the agency’s Labor Com-
7
pliance Advisor.
8
(b) DUTIES.—The Labor Compliance Advisor shall—
9
(1) meet quarterly with the Deputy Secretary,
10
Deputy Administrator, or equivalent executive agen-
11
cy official with regard to matters covered under this
12
Act;
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(2) work with the acquisition workforce, agency
14
officials, and agency contractors to promote greater
15
awareness and understanding of labor law require-
16
ments, including recordkeeping, reporting, and no-
17
tice requirements, as well as best practices for ob-
18
taining compliance with these requirements;
19
(3) coordinate assistance for executive agency
20
contractors seeking help in addressing and pre-
21
venting labor violations;
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(4) in consultation with the Department of
23
Labor or other relevant enforcement agencies, and
24
pursuant to section 4(b) as necessary, provide assist-
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ance to contracting officers regarding appropriate
1
actions to be taken in response to violations identi-
2
fied prior to or after contracts are awarded, and ad-
3
dress complaints in a timely manner, by—
4
(A) providing assistance to contracting of-
5
ficers and other executive agency officials in re-
6
viewing the information provided pursuant to
7
subsections (a) and (b) of section 4 and section
8
5(a), or other information indicating a violation
9
of a labor law in order to assess the serious, re-
10
peated, willful, or pervasive nature of any viola-
11
tion and evaluate steps contractors have taken
12
to correct violations or improve compliance with
13
relevant requirements;
14
(B) helping agency officials determine the
15
appropriate response to address violations of
16
the requirements of the labor laws and Execu-
17
tive orders listed in section 4(a)(1) or other in-
18
formation indicating such a labor violation (par-
19
ticularly serious, repeated, willful, or pervasive
20
violations), including agreements requiring ap-
21
propriate remedial measures, decisions not to
22
award a contract or exercise an option on a
23
contract, contract termination, or referral to the
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executive agency suspension and debarment of-
1
ficial;
2
(C) providing assistance to appropriate ex-
3
ecutive agency officials in receiving and re-
4
sponding to, or making referrals of, complaints
5
alleging violations by agency contractors and
6
subcontractors of the requirements of the labor
7
laws listed in section 4(a)(1); and
8
(D) supporting contracting officers, sus-
9
pension and debarment officials, and other
10
agency officials in the coordination of actions
11
taken pursuant to this subsection to ensure
12
agency-wide consistency, to the extent prac-
13
ticable;
14
(5) as appropriate, send information to agency
15
suspension and debarment officials in accordance
16
with agency procedures;
17
(6) consult with the agency’s Chief Acquisition
18
Officer and Senior Procurement Executive, and the
19
Department of Labor as necessary, in the develop-
20
ment of regulations, policies, and guidance address-
21
ing labor law compliance by contractors and sub-
22
contractors;
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(7) make recommendations to the agency to
1
strengthen agency management of contractor compli-
2
ance with labor laws;
3
(8) publicly report, on an annual basis, a sum-
4
mary of agency actions taken to promote greater
5
labor compliance, including the agency’s response
6
pursuant to this order to serious, repeated, willful,
7
or pervasive violations of the requirements of the
8
labor laws and Executive orders listed in section
9
4(a)(1); and
10
(9) participate in the interagency meetings reg-
11
ularly convened by the Secretary of Labor pursuant
12
to section 7(b)(2)(C).
13
SEC. 7. MEASURES TO ENSURE GOVERNMENT-WIDE CON-
14
SISTENCY.
15
(a) FEDERAL ACQUISITION REGULATION.—
16
(1) IN GENERAL.—Notwithstanding Public Law
17
115–11 (131 Stat. 75) and section 553 of title 5,
18
United States Code, not later than 1 year after the
19
date of enactment of this Act, the Secretary of De-
20
fense, the Administrator of the General Services Ad-
21
ministration, and the Administrator of the National
2
[Text truncated for display. Full text available on Congress.gov.]