22 U.S.C. § 302 — Award of contracts

Page 290 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 301 proceeds derived from dispositions, payments, or gifts under subsec. (a) toward acquisition, construction, or other purposes authorized by this chapter, as in the judgment of the Secretary may best serve the Govern- ment’s interest, for former provision for application of proceeds of sales toward purchase and construction, furnishing, and preservation of other properties. 1963—Pub. L. 88–94 struck out ‘‘with the concurrence of the Foreign Service Buildings Commission,’’ after ‘‘Government,’’ and ‘‘, as in the judgment of the Com- mission may best serve the Government’s interest’’ after ‘‘Foreign Service building fund’’. Statutory Notes and Related Subsidiaries TERMINATION OF REPORTING REQUIREMENTS For termination, effective May 15, 2000, of provisions in subsec. (b) of this section relating to the Secretary reporting transactions annually to Congress, see sec- tion 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 129 of House Document No. 103–7. § 301. Lease or rental arrangements of not less than ten years; approval by Secretary; dele- gation of authority; information to Congress (a) Leases Notwithstanding the provisions of this chapter or any other Act, no lease or other rental ar- rangement for a period of less than ten years, and requiring an annual payment in excess of $100,000 shall be entered into by the Secretary of State for the purpose of renting or leasing of- fices, buildings, grounds, or living quarters for the use of the Foreign Service abroad, unless such lease or other rental arrangement is ap- proved by the Secretary. The Secretary may del- egate his authority under this section only to the Deputy Under Secretary of State for Admin- istration or to the Director of the Office of For- eign Buildings. The Secretary shall keep the Congress fully and currently informed with re- spect to leases or other rental arrangements ap- proved under this section. (b) Advance payments for long-term leases and lease purchase The Secretary may, subject to the availability of appropriations, make advance payments for long-term leases and lease-purchase agreements, if the Secretary or his designee determines, in each case, that such payments are in the inter- est of the United States Government in carrying out the purposes of this chapter. (May 7, 1926, ch. 250, § 10, as added Pub. L. 89–636, § 4, Oct. 10, 1966, 80 Stat. 882; amended Pub. L. 102–138, title I, § 115(a), (b), Oct. 28, 1991, 105 Stat. 655; Pub. L. 117–263, div. I, title XCVII, § 9709, Dec. 23, 2022, 136 Stat. 3919.) Editorial Notes AMENDMENTS 2022—Subsec. (a). Pub. L. 117–263 substituted ‘‘$100,000’’ for ‘‘$50,000’’. 1991—Pub. L. 102–138 designated existing provisions as subsec. (a), inserted heading, substituted ‘‘$50,000’’ for ‘‘$25,000,’’, and added subsec. (b). 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. § 302. Award of contracts (a) Eligibility limitation for construction, etc., abroad Eligibility for award of contracts under this chapter or of any other contract by the Sec- retary of State, including lease-back or other agreements, the purpose of which is to obtain the construction, alteration, or repair of build- ings and grounds abroad, when estimated to ex- ceed $5,000,000, including any contract alter- natives or options, shall be limited, after a de- termination that adequate competition will be obtained thereby, to (1) American-owned bidders and (2) bidders from countries which permit or agree to permit substantially equal access to American bidders for comparable diplomatic and consular building projects, except that partici- pation may be permitted by or limited to host- country bidders where required by international agreement or by the law of the host country or where determined by the Secretary of State to be necessary in the interest of bilateral rela- tions or necessary to carry out the construction project. (b) Foreign laws and regulations; competitive status and adequacy; bidder qualifications (1) Generally applicable laws and regulations pertaining to licensing and other qualifications to do business in the country in which the con- tract is to be performed shall not be deemed a limitation of access for purposes of this section. (2) For purposes of determining competitive status, bids qualifying under subsection (a)(1) shall be reduced by 10 per centum. (3) A determination of adequacy of competi- tion for purposes of subsection (a) shall be made after advance publication by the Secretary of State of the proposed project, and receipt from not less than two prospective responsible bid- ders of intent to submit a bid or proposal. If competition is not determined to be adequate, contracts may be awarded without regard to subsection (a) and this subsection. (4) Bidder qualification under subsection (a) shall be determined on the basis of nationality of ownership, the burden of which shall be on the prospective bidder. Qualification under sub- section (a)(1) shall require evidence of (A) per- formance of similar construction work in the United States or at a United States diplomatic or consular establishment abroad, and (B) either (i) ownership in excess of fifty percent by United States citizens or permanent residents, or (ii) incorporation in the United States for more than three years and employment of United States citizens or permanent residents in more than half of the corporation’s permanent full- time professional and managerial positions in the United States. (5) Qualification under this section shall be es- tablished on the basis of determinations at the time bids are requested. Page 291 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 304 1 See References in Text note below. 2 So in original. Probably should be ‘‘internationally-agreed- upon’’. (c) Contracts for construction, etc., in United States Contracts for construction, alteration, or re- pair in the United States for or on behalf of any foreign mission (as defined in section 202(a)(4) 1 of title II of the State Department Basic Au- thorities Act of 1956 (22 U.S.C. 4302(a)(4)) may, pursuant to the authority of that title [22 U.S.C. 4301 et seq.], only be awarded to or performed by bidders qualifying under subsection (a) (1) or (2) or by nationals of the country for which the con- tract is being performed who are granted the right of entry into the United States for that purpose. (d) Discretionary determinations by Secretary of State Determinations under this section shall be committed to the discretion of the Secretary of State. (e) Termination of requirements This section shall cease to be effective when the Secretary of State determines that there are internationally-agree-upon 2 rules in effect on bidding for construction contracts. (May 7, 1926, ch. 250, § 11, as added Pub. L. 98–164, title I, § 136, Nov. 22, 1983, 97 Stat. 1029; amended Pub. L. 107–228, div. A, title II, § 206(a), Sept. 30, 2002, 116 Stat. 1364.) Editorial Notes REFERENCES IN TEXT Title II of the State Department Basic Authorities Act of 1956, referred to in subsec. (c), 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. Section 202(a)(4) of title II was redesignated section 202(a)(3), and former section 202(a)(5) was redesignated section 202(a)(4), by Pub. L. 103–236, title I, § 162(o)(1), Apr. 30, 1994, 108 Stat. 409. For complete classification of title II to the Code, see Short Title note set out under section 4301 of this title and Tables. AMENDMENTS 2002—Subsec. (b)(4)(A). Pub. L. 107–228 inserted ‘‘or at a United States diplomatic or consular establishment abroad’’ after ‘‘United States’’. § 303. Repealed. Pub. L. 114–323, title VII, § 715(a)(1), Dec. 16, 2016, 130 Stat. 1946 Section, act May 7, 1926, ch. 250, § 12, as added Pub. L. 105–277, div. G, subdiv. B, title XXII, § 2215, Oct. 21, 1998, 112 Stat. 2681–814, required Secretary of State to submit annual report on overseas surplus properties. § 304. Biannual report on overseas capital con- struction projects (a) In general Not later than 180 days after December 27, 2021, and every 180 days thereafter until the date that is 4 years after such date, the Secretary shall submit to the appropriate congressional committees and the Committees on Appropria- tions of the Senate and the House of Representa- tives a comprehensive report regarding all ongo- ing overseas capital construction projects and major embassy security upgrade projects. (b) Contents Each report required under subsection (a) shall include the following with respect to each ongoing overseas capital construction project and major embassy security upgrade project: (1) The initial cost estimate as specified in the proposed allocation of capital construction and maintenance funds required by the Com- mittees on Appropriations for Acts making ap- propriations for the Department of State, for- eign operations, and related programs. (2) The current cost estimate. (3) The value of each request for equitable adjustment received by the Department to date. (4) The value of each certified claim received by the Department to date. (5) The value of any usage of the project’s contingency fund to date and the value of the remainder of the project’s contingency fund. (6) An enumerated list of each request for adjustment and certified claim that remains outstanding or unresolved. (7) An enumerated list of each request for equitable adjustment and certified claim that has been fully adjudicated or that the Depart- ment has settled, and the final dollar amount of each adjudication or settlement. (8) The date of estimated completion speci- fied in the proposed allocation of capital con- struction and maintenance funds required by the Committees on Appropriations not later than 45 days after the date of the enactment of an Act making appropriations for the Depart- ment of State, foreign operations, and related programs. (9) The current date of estimated comple- tion. (c) Initial report The first report required under subsection (a) shall include an annex regarding all embassy construction projects and major embassy secu- rity upgrade projects completed during the 10- year period ending on December 16, 2016, includ- ing, for each such project, the following: (1) The initial cost estimate. (2) The amount actually expended on the project. (3) Any additional time required to complete the project beyond the initial timeline. (4) Any cost overruns incurred by the project. (Pub. L. 114–323, title I, § 118, Dec. 16, 2016, 130 Stat. 1912; Pub. L. 115–94, § 2(b), Dec. 18, 2017, 131 Stat. 2038; Pub. L. 117–81, div. E, title LII, § 5203(a), Dec. 27, 2021, 135 Stat. 2353.) Editorial Notes CODIFICATION Section was enacted as part of the Department of State Authorities Act, Fiscal Year 2017, and not as part of the Foreign Service Buildings Act, 1926, which com- prises this chapter. AMENDMENTS 2021—Pub. L. 117–81, § 5203(a)(1), substituted ‘‘Bian- nual report on overseas capital construction projects’’