22 U.S.C. § 4852 — Diplomatic construction program

Page 1623 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4852 and equipment pursuant to subsection (a) of this sec- tion shall be treated as a reprogramming of funds under section 2706 of this title and shall not be available for obligation or expenditure except in compliance with the procedures applicable to such reprogramming.’’ 1987—Subsec. (a)(3). Pub. L. 100–204 inserted sentence at end providing that authorizations of appropriations under this paragraph remain available until appropria- tions are made. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Pub. L. 103–236, title I, § 101(c), Apr. 30, 1994, 108 Stat. 388, provided that the amendment made by that section is effective Oct. 1, 1995. EMBASSY SECURITY REQUESTS AND DEFICIENCIES Pub. L. 117–81, div. E, title LII, § 5209, Dec. 27, 2021, 135 Stat. 2357, provided that: ‘‘The Secretary of State shall provide to the appropriate congressional committees, the Committee on Armed Services of the House of Rep- resentatives, and the Committee on Armed Services of the Senate upon request information on physical secu- rity deficiencies at United States diplomatic posts, in- cluding relating to the following: ‘‘(1) Requests made over the previous year by United States diplomatic posts for security upgrades. ‘‘(2) Significant security deficiencies at United States diplomatic posts that are not operating out of a new embassy compound or new consulate com- pound.’’ [For definition of ‘‘appropriate congressional com- mittees’’ as used in section 5209 of Pub. L. 117–81, set out above, see section 5002 of Pub. L. 117–81, set out as a note under section 263c of this title.] CONSTRUCTION SECURITY CERTIFICATION Pub. L. 100–204, title I, § 160, Dec. 22, 1987, 101 Stat. 1356, as amended by Pub. L. 101–246, title I, § 135, Feb. 16, 1990, 104 Stat. 33, provided that: ‘‘(a) CERTIFICATION.—Before undertaking any new construction or major renovation project in any foreign facility intended for the storage of classified materials or the conduct of classified activities, or approving oc- cupancy of a similar facility for which construction or major renovation began before the effective date of this section [Dec. 22, 1987], the Secretary of State, after con- sultation with the Director of Central Intelligence, shall certify to the Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Relations of the Senate that— ‘‘(1) appropriate and adequate steps have been taken to ensure the security of the construction project (including an evaluation of how all security- related factors with respect to such project are being addressed); ‘‘(2) the facility resulting from such project incor- porates— ‘‘(A) adequate measures for protecting classified information and national security-related activi- ties; and ‘‘(B) adequate protection for the personnel work- ing in the diplomatic facility; and ‘‘(3) a plan has been put into place for the continued evaluation and maintenance of adequate security at such facility, which plan shall specify the physical security methods and technical countermeasures nec- essary to ensure secure operations, including any per- sonnel requirements for such purposes. ‘‘(b) AVAILABILITY OF DOCUMENTATION.—All docu- mentation with respect to a certification referred to in subsection (a) and any dissenting views thereto shall be available, in an appropriately classified form, to the Chairman of the Committee on Foreign Affairs of the House of Representatives and the Chairman of the Committee on Foreign Relations of the Senate. ‘‘(c) DIRECTOR OF CENTRAL INTELLIGENCE.—The Direc- tor of Central Intelligence shall provide to the Sec- retary of State such assistance with respect to the im- plementation of this section as the Secretary of State may request. ‘‘(d) DISSENTING VIEWS.—If the Director of Central In- telligence disagrees with the Secretary of State with respect to any project certification made pursuant to subsection (a), the Director shall submit in writing dis- agreeing views to the Secretary of State.’’ [Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director’s capacity as the head of the intelligence com- munity deemed to be a reference to the Director of Na- tional Intelligence. Reference to the Director of Cen- tral Intelligence or the Director of the Central Intel- ligence Agency in the Director’s capacity as the head of the Central Intelligence Agency deemed to be a ref- erence to the Director of the Central Intelligence Agen- cy. See section 1081(a), (b) of Pub. L. 108–458, set out as a note under section 3001 of Title 50, War and National Defense.] REPORT TO CONGRESS ON OBLIGATION OF FUNDS Pub. L. 100–459, title III, § 302, Oct. 1, 1988, 102 Stat. 2207, provided that: ‘‘The Secretary of State shall re- port to the appropriate committees of the Congress on the obligation of funds provided for diplomatic security and related expenses every month.’’ Similar provisions were contained in the following prior appropriation acts: Pub. L. 100–202, § 101(a) [title III, § 302], Dec. 22, 1987, 101 Stat. 1329, 1329–23. Pub. L. 99–500, § 101(b) [title III, § 302], Oct. 18, 1986, 100 Stat. 1783–39, 1783–60, and Pub. L. 99–591, § 101(b) [title III, § 302], Oct. 30, 1986, 100 Stat. 3341–39, 3341–60. § 4852. Diplomatic construction program (a) Preference for United States contractors Notwithstanding section 302 of this title, and where adequate competition exists, only United States persons and qualified United States joint venture persons may be awarded— (1) a diplomatic construction or design project which has an estimated total project value exceeding $25,000,000; and (2) a diplomatic construction or design project which involves technical security, un- less the project involves low-level technology, as determined by the Secretary of State. (b) Exception Subsection (a) shall not apply with respect to any diplomatic construction or design project in a foreign country whose statutes prohibit the use of United States contractors on such projects. The exception contained in this sub- section shall only become effective with respect to a foreign country 30 days after the Secretary of State certifies to the Committee on Foreign Affairs and the Committee on Appropriations of the House of Representatives and the Com- mittee on Foreign Relations and the Committee on Appropriations of the Senate what specific actions he has taken to urge such foreign coun- try to permit the use of United States contrac- tors on such projects, and what actions he shall take with respect to that country as authorized by title II of the State Department Basic Au- thorities Act of 1956 (22 U.S.C. 4301 et seq.; com- monly referred to as the ‘‘Foreign Missions Act’’). (c) Definitions For the purposes of this section— (1) the term ‘‘adequate competition’’ means with respect to a construction or design Page 1624 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4852 project, the presence of three or more quali- fied bidders submitting responsive bids for that project; (2) the term ‘‘United States person’’ means a person which— (A) is incorporated or legally organized under the laws of the United States, includ- ing State, the District of Columbia, and local laws; (B) has its principal place of business in the United States; (C) has been incorporated or legally orga- nized in the United States— (i) for more than 5 years before the issuance date of the invitation for bids or request for proposals with respect to a con- struction project under subsection (a)(1); and (ii) for more than 2 years before the issuance date of the invitation for bids or request for proposals with respect to a con- struction or design project which involves physical or technical security under sub- section (a)(2); (D) has performed within the United States or on a Federal contract abroad ad- ministrative and technical, professional, or construction services similar in complexity, type of construction, and value to the project being bid; (E)(i) employs United States citizens in at least 65 percent of its principal management positions in the United States, (ii) employs United States citizens in more than half of its permanent, full-time posi- tions in the United States, and (iii) will employ United States citizens in at least 65 percent of the supervisory posi- tions on the foreign buildings office project site; and (3) the term ‘‘qualified United States joint venture person’’ means a joint venture in which a United States person or persons owns at least 51 percent of the assets of the joint venture. (d) American minority contractors Not less than 10 percent of the amount appro- priated pursuant to section 4851(a) of this title for diplomatic construction or design projects each fiscal year shall be allocated to the extent practicable for contracts with American minor- ity contractors. (e) American small business contractors Not less than 10 percent of the amount appro- priated pursuant to section 4851(a) of this title for diplomatic construction or design projects each fiscal year shall be allocated to the extent practicable for contracts with American small business contractors. (f) Limitation on subcontracting With respect to a diplomatic construction project, a prime contractor may not subcontract more than 50 percent of the total value of its contract for that project. (Pub. L. 99–399, title IV, § 402, Aug. 27, 1986, 100 Stat. 864; Pub. L. 101–246, title I, § 132, Feb. 16, 1990, 104 Stat. 32; Pub. L. 102–138, title I, § 131, Oct. 28, 1991, 105 Stat. 662; Pub. L. 103–236, title I, § 162(g)(10), Apr. 30, 1994, 108 Stat. 407; Pub. L. 107–228, div. A, title II, § 206(b), Sept. 30, 2002, 116 Stat. 1364; Pub. L. 117–81, div. E, title LII, § 5208, Dec. 27, 2021, 135 Stat. 2357; Pub. L. 118–159, div. G, title LXXII, § 7214, Dec. 23, 2024, 138 Stat. 2536.) Editorial Notes REFERENCES IN TEXT Title II of the State Department Basic Authorities Act of 1956, referred to in subsec. (b), is title II of act Aug. 1, 1956, ch. 841, as added Aug. 24, 1982, Pub. L. 97–241, title II, § 202(b), 96 Stat. 283, known as the For- eign Missions Act, which is classified principally to chapter 53 (§ 4301 et seq.) of this title. For complete classification of title II to the Code, see Short Title note set out under section 4301 of this title and Tables. AMENDMENTS 2024—Subsec. (a). Pub. L. 118–159, § 7214(1), inserted ‘‘be awarded’’ after ‘‘joint venture persons may’’ in in- troductory provisions, struck out ‘‘bid on’’ at begin- ning of pars. (1) and (2), and substituted ‘‘$25,000,000’’ for ‘‘$10,000,000’’ in par. (1). Subsec. (c)(1). Pub. L. 118–159, § 7214(2)(A), substituted ‘‘three’’ for ‘‘two’’. Subsec. (c)(2)(D). Pub. L. 118–159, § 7214(2)(B)(i), sub- stituted ‘‘on a Federal contract abroad’’ for ‘‘at a United States diplomatic or consular establishment abroad’’. Subsec. (c)(2)(E), (F). Pub. L. 118–159, § 7214(2)(B)(ii)–(iv), redesignated subpar. (F) as (E), sub- stituted ‘‘65’’ for ‘‘80’’ in cls. (i) and (iii), and struck out former subpar. (E) which read as follows: ‘‘with respect to a construction project under subsection (a)(1), has achieved total business volume equal to or greater than the value of the project being bid cumulatively over 3 years of the 5-year period before the date specified in subparagraph (C)(i);’’. Subsec. (c)(2)(G). Pub. L. 118–159, § 7214(2)(B)(ii), struck out subpar. (G) which read as follows: ‘‘has the existing technical and financial resources in the United States to perform the contract; and’’. 2021—Subsec. (c)(2)(E). Pub. L. 117–81 substituted ‘‘cu- mulatively over 3 years’’ for ‘‘in 3 years’’. 2002—Subsec. (c)(2)(D). Pub. L. 107–228 inserted ‘‘or at a United States diplomatic or consular establishment abroad’’ after ‘‘United States’’. 1994—Subsec. (a)(2). Pub. L. 103–236 substituted ‘‘Sec- retary of State’’ for ‘‘Assistant Secretary for Diplo- matic Security’’. 1991—Subsec. (a)(1). Pub. L. 102–138, § 131(1), sub- stituted ‘‘$10,000,000’’ for ‘‘$5,000,000’’. Subsec. (a)(2). Pub. L. 102–138, § 131(2), amended par. (2) generally. Prior to amendment, par. (2) read as fol- lows: ‘‘bid on a diplomatic construction or design project which involves physical or technical security, unless the project— ‘‘(A) involves nonsophisticated, low-level tech- nology, as determined by the Assistant Secretary for Diplomatic Security; ‘‘(B) is for the design or construction of a facility that does not process or store classified material; and ‘‘(C) does not exceed a total value of $500,000.’’ 1990—Subsec. (a)(2). Pub. L. 101–246 amended par. (2) generally. Prior to amendment, par. (2) read as follows: ‘‘bid on a diplomatic construction or design project which involves physical or technical security.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–236 applicable with re- spect to officials, offices, and bureaus of Department of State when executive orders, regulations, or depart- mental directives implementing the amendments by sections 161 and 162 of Pub. L. 103–236 become effective, Page 1625 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4858 1 See References in Text note below. or 90 days after Apr. 30, 1994, whichever comes earlier, see section 161(b) of Pub. L. 103–236, as amended, set out as a note under section 2651a of this title. CONSTRUCTION OF UNITED STATES EMBASSY IN OTTAWA Pub. L. 101–246, title I, § 125, Feb. 16, 1990, 104 Stat. 27, provided that: ‘‘Section 402(a) of the Diplomatic Secu- rity Act (22 U.S.C. 4852(a)) shall not apply to the con- struction or renovation of the United States Embassy in Ottawa, Canada.’’ § 4853. Security requirements for contractors Not later than 90 days after August 27, 1986, the Secretary of State shall issue regulations to— (1) strengthen the security procedures appli- cable to contractors and subcontractors in- volved in any way with any diplomatic con- struction or design project; and (2) permit a contractor or subcontractor to have access to any design or blueprint relating to such a project only in accordance with those procedures. (Pub. L. 99–399, title IV, § 403, Aug. 27, 1986, 100 Stat. 865.) § 4854. Qualifications of persons hired for diplo- matic construction program In carrying out the diplomatic construction program referred to in section 4851(a) of this title, the Secretary of State shall employ as pro- fessional staff (by appointment, contract, or otherwise) only those persons with a dem- onstrated specialized background in the fields of construction, construction law, or contract management. In filling such positions, the Sec- retary shall actively recruit women and mem- bers of minority groups. (Pub. L. 99–399, title IV, § 404, Aug. 27, 1986, 100 Stat. 865.) § 4855. Cost overruns Any amount required to complete any capital project described in the Department of State’s Supplemental Diplomatic Security Program, as justified to the Congress for the respective fiscal year, which is in excess of the amount made available for that project pursuant to section 4851(a)(1) or (3) 1 shall be treated as a reprogram- ming of funds under section 2706 of this title and shall not be available for obligation or expendi- ture except in compliance with the procedures applicable to such reprogrammings. (Pub. L. 99–399, title IV, § 405, Aug. 27, 1986, 100 Stat. 865.) Editorial Notes REFERENCES IN TEXT Section 4851(a)(3) of this title, referred to in text, was repealed by Pub. L. 103–236, title I, § 101(c), Apr. 30, 1994, 108 Stat. 388. § 4856. Efficiency in contracting (a) Bonuses and penalties The Director of the Office of Foreign Buildings shall provide for a contract system of bonuses and penalties for the diplomatic construction program funded pursuant to the authorizations of appropriations provided in this subchapter. Not later than 3 months after August 27, 1986, the Director shall submit a report to the Con- gress on the implementation of this section. (b) Surety bonds and guarantees The Director of the Office of Foreign Buildings shall require each person awarded a contract for work under the diplomatic construction pro- gram to post a surety bond or guarantee, in such amount as the Director may determine, to as- sure performance under such contract. (Pub. L. 99–399, title IV, § 406, Aug. 27, 1986, 100 Stat. 866; Pub. L. 109–472, § 8, Jan. 11, 2007, 120 Stat. 3556.) Editorial Notes REFERENCES IN TEXT This subchapter, referred to in subsec. (a), was in the original ‘‘this title’’, meaning title IV of Pub. L. 99–399, which enacted this subchapter and amended sections 300, 2349aa–4, 3929, and 3929a of this title, former section 208 of Title 3, The President, section 5315 of Title 5, Government Organization and Employees, and sections 2 and 11 of the Inspector General Act of 1978, Pub. L. 95–452, formerly set out in the Appendix to Title 5 (see 5 U.S.C. 402, 424). For complete classification of title IV of Pub. L. 99–399 to the Code, see Tables. AMENDMENTS 2007—Subsec. (c). Pub. L. 109–472 struck out subsec. (c). Text read as follows: ‘‘No person doing business with Libya may be eligible for any contract awarded pursuant to this Act.’’ Statutory Notes and Related Subsidiaries AUTHORITY OF SECRETARY OF STATE Except as otherwise provided, Secretary of State to have and exercise any authority vested by law in any official or office of Department of State and references to such officials or offices deemed to refer to Secretary of State or Department of State, as appropriate, see section 2651a of this title and section 161(d) of Pub. L. 103–236, set out as a note under section 2651a of this title. § 4857. Advisory Panel on Overseas Security Not later than 90 days after August 27, 1986, the Secretary of State shall submit a report to the Congress on the implementation of the 91 recommendations contained in the final report of the Advisory Panel on Overseas Security. If any such recommendation has been rejected, the Secretary shall provide the reasons why that recommendation was rejected. (Pub. L. 99–399, title IV, § 407, Aug. 27, 1986, 100 Stat. 866.) § 4858. Training to improve perimeter security at United States diplomatic missions abroad (a) Training It is the sense of Congress that the President should use the authority under chapter 8 of title II of the Foreign Assistance Act of 1961 [22 U.S.C. 2349aa et seq.] (relating to antiterrorism assistance) to improve perimeter security of United States diplomatic missions abroad.