41 U.S.C. § 4714 — Prohibition on criminal history inquiries

Page 153 TITLE 41—PUBLIC CONTRACTS § 4714 ‘‘(1) IN GENERAL.—There is authorized to be appro- priated $3,000,000 for each of fiscal years 2023 through 2033 for the Office of Management and Budget to sup- port the activities of the Federal Acquisition Secu- rity Council. ‘‘(2) TRANSFER AUTHORITY.—The Director of the Of- fice of Management and Budget may transfer funds authorized to be appropriated under paragraph (1) to other Federal agencies for the performance of work for which the funds were authorized.’’ § 4714. Prohibition on criminal history inquiries by contractors prior to conditional offer (a) LIMITATION ON CRIMINAL HISTORY INQUIR- IES.— (1) IN GENERAL.—Except as provided in para- graphs (2) and (3), an executive agency— (A) may not require that an individual or sole proprietor who submits a bid for a con- tract to disclose criminal history record in- formation regarding that individual or sole proprietor before determining the apparent awardee; and (B) shall require, as a condition of receiv- ing a Federal contract and receiving pay- ments under such contract that the con- tractor may not verbally, or through written form, request the disclosure of criminal his- tory record information regarding an appli- cant for a position related to work under such contract before the contractor extends a conditional offer to the applicant. (2) OTHERWISE REQUIRED BY LAW.—The prohi- bition under paragraph (1) does not apply with respect to a contract if consideration of crimi- nal history record information prior to a con- ditional offer with respect to the position is otherwise required by law. (3) EXCEPTION FOR CERTAIN POSITIONS.— (A) IN GENERAL.—The prohibition under paragraph (1) does not apply with respect to— (i) a contract that requires an individual hired under the contract to access classi- fied information or to have sensitive law enforcement or national security duties; or (ii) a position that the Administrator of General Services identifies under the regu- lations issued under subparagraph (B). (B) REGULATIONS.— (i) ISSUANCE.—Not later than 16 months after the date of enactment of the Fair Chance to Compete for Jobs Act of 2019, the Administrator of General Services, in consultation with the Secretary of De- fense, shall issue regulations identifying additional positions with respect to which the prohibition under paragraph (1) shall not apply, giving due consideration to po- sitions that involve interaction with mi- nors, access to sensitive information, or managing financial transactions. (ii) COMPLIANCE WITH CIVIL RIGHTS LAWS.—The regulations issued under clause (i) shall— (I) be consistent with, and in no way supersede, restrict, or limit the applica- tion of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) or other relevant Federal civil rights laws; and (II) ensure that all hiring activities conducted pursuant to the regulations are conducted in a manner consistent with relevant Federal civil rights laws. (b) COMPLAINT PROCEDURES.—The Adminis- trator of General Services shall establish and publish procedures under which an applicant for a position with a Federal contractor may sub- mit to the Administrator a complaint, or any other information, relating to compliance by the contractor with subsection (a)(1)(B). (c) ACTION FOR VIOLATIONS OF PROHIBITION ON CRIMINAL HISTORY INQUIRIES.— (1) FIRST VIOLATION.—If the head of an execu- tive agency determines that a contractor has violated subsection (a)(1)(B), such head shall— (A) notify the contractor; (B) provide 30 days after such notification for the contractor to appeal the determina- tion; and (C) issue a written warning to the con- tractor that includes a description of the violation and the additional remedies that may apply for subsequent violations. (2) SUBSEQUENT VIOLATION.—If the head of an executive agency determines that a contractor that was subject to paragraph (1) has com- mitted a subsequent violation of subsection (a)(1)(B), such head shall notify the con- tractor, shall provide 30 days after such notifi- cation for the contractor to appeal the deter- mination, and, in consultation with the rel- evant Federal agencies, may take actions, de- pending on the severity of the infraction and the contractor’s history of violations, includ- ing— (A) providing written guidance to the con- tractor that the contractor’s eligibility for contracts requires compliance with this sec- tion; (B) requiring that the contractor respond within 30 days affirming that the contractor is taking steps to comply with this section; and (C) suspending payment under the contract for which the applicant was being considered until the contractor demonstrates compli- ance with this section. (d) DEFINITIONS.—In this section: (1) CONDITIONAL OFFER.—The term ‘‘condi- tional offer’’ means an offer of employment for a position related to work under a contract that is conditioned upon the results of a crimi- nal history inquiry. (2) CRIMINAL HISTORY RECORD INFORMATION.— The term ‘‘criminal history record informa- tion’’ has the meaning given that term in sec- tion 9201 of title 5. (Added Pub. L. 116–92, div. A, title XI, § 1123(a)(1), Dec. 20, 2019, 133 Stat. 1610.) Editorial Notes REFERENCES IN TEXT The date of enactment of the Fair Chance to Compete for Jobs Act of 2019, referred to in subsec. (a)(3)(B)(i), is the date of enactment of subtitle B (§§ 1121–1124) of title XI of div. A of Pub. L. 116–92, which was approved Dec. 20, 2019. The Civil Rights Act of 1964, referred to in subsec. (a)(3)(B)(ii)(I), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241. Page 154 TITLE 41—PUBLIC CONTRACTS § 6101 Title VII of the Act is classified generally to sub- chapter VI (§ 2000e et seq.) of chapter 21 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of Title 42 and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 116–92, div. A, title XI, § 1123(a)(3), Dec. 20, 2019, 133 Stat. 1612, provided that: ‘‘Section 4714 of title 41, United States Code, as added by paragraph (1), shall apply with respect to contracts awarded pursuant to solicitations issued after the effective date described in section 1122(b)(2) of this subtitle [effective 2 years after Dec. 20, 2019, see section 1122(b)(2) of Pub. L. 116–92, div. A, title XI, subtitle B, set out as a note under section 9202 of Title 5, Government Organization and Employ- ees].’’ Subtitle II—Other Advertising and Contract Provisions Chapter Sec. 61. Advertising ........................................... 6101 63. General Contract Provisions ........... 6301 65. Contracts for Materials, Supplies, Articles, and Equipment Exceed- ing $10,000 ......................................... 6501 67. Service Contract Labor Standards 6701 CHAPTER 61—ADVERTISING Sec. 6101. Advertising requirement for Federal Govern- ment purchases and sales. 6102. Exceptions from advertising requirement. 6103. Opening of bids. § 6101. Advertising requirement for Federal Gov- ernment purchases and sales (a) DEFINITIONS.—In this section— (1) APPROPRIATION.—The term ‘‘appropria- tion’’ includes amounts made available by leg- islation under section 9104 of title 31. (2) FEDERAL GOVERNMENT.—The term ‘‘Fed- eral Government’’ includes the government of the District of Columbia. (b) PURCHASES.— (1) IN GENERAL.—Unless otherwise provided in the appropriation concerned or other law, purchases and contracts for supplies or serv- ices for the Federal Government may be made or entered into only after advertising for pro- posals for a sufficient time. (2) LIMITATIONS ON APPLICABILITY.—Para- graph (1) does not apply when— (A) the amount involved in any one case does not exceed $25,000; (B) public exigencies require the imme- diate delivery of articles or performance of services; (C) only one source of supply is available and the Federal Government purchasing or contracting officer so certifies; or (D) services are required to be performed by a contractor in person and are— (i) of a technical and professional nature; or (ii) under Federal Government super- vision and paid for on a time basis. (c) SALES.—Except when otherwise authorized by law or when the reasonable value involved in any one case does not exceed $500, sales and con- tracts of sale by the Federal Government are governed by the requirements of this section for advertising. (d) APPLICATION TO WHOLLY OWNED GOVERN- MENT CORPORATIONS.—For wholly owned Govern- ment corporations, this section applies only to administrative transactions. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3801.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 6101(a) ........ 41:5a. Aug. 2, 1946, ch. 744, § 18, 60 Stat. 811. 6101(b)–(d) .. 41:5. R.S. § 3709; Aug. 2, 1946, ch. 744, § 9(a), (c), 60 Stat. 809; June 30, 1949, ch. 288, title VI, § 602(f), formerly title V, § 502(e), 63 Stat. 403, re- numbered title VI, § 602(f), Sept. 5, 1950, ch. 849, §§ 6(a), (b), 8(c), 64 Stat. 583, 591; Pub. L. 85–800, § 7, Aug. 28, 1958, 72 Stat. 967; Pub. L. 93–356, § 1, July 25, 1974, 88 Stat. 390; Pub. L. 98–191, § 9(b), Dec. 1, 1983, 97 Stat. 1332. In subsection (a), before paragraph (1), the words ‘‘In this section’’ are substituted for ‘‘as used in this Act’’ as the probable intent of Congress. Section 9(a) of the Act of August 2, 1946 (ch. 744, 60 Stat. 809) restated 41:5 generally and section 9(c) of the Act, an independent provision, was editorially added as the last paragraph of 41:5. The definitions which apply to ‘‘as used in this Act’’ are probably intended to apply also to 41:5 as re- stated by the Act. The definitions for ‘‘department’’ and ‘‘continental United States’’ are omitted because those terms do not appear in 41:5. In paragraph (1), the words ‘‘section 9104 of title 31’’ are substituted for ‘‘sec- tion 104 of the Government Corporation Control Act, approved December 6, 1945’’ because of section 4(b) of Public Law. 97–258 (31 U.S.C. note prec. 101). In para- graphs (1) and (2), the word ‘‘includes’’ is substituted for ‘‘shall be construed to include’’ and for ‘‘shall be construed as including’’, respectively, to eliminate un- necessary words. In subsection (c), the words ‘‘as authorized by section 29 of the Surplus Property Act of 1944 (50 U.S.C. App. 1638)’’ in section 3709 of the Revised Statutes are omit- ted because section 29 was repealed by section 602(a)(1) of the Federal Property and Administrative Services Act of 1949 (ch. 288, 63 Stat. 399). § 6102. Exceptions from advertising requirement (a) AMERICAN BATTLE MONUMENTS COMMIS- SION.—Section 6101 of this title does not apply to the American Battle Monuments Commission with respect to leases in foreign countries for of- fice or garage space. (b) BUREAU OF INTERPARLIAMENTARY UNION FOR PROMOTION OF INTERNATIONAL ARBITRATION.— Section 6101 of this title does not apply to the Bureau of Interparliamentary Union for Pro- motion of International Arbitration with re- spect to necessary stenographic reporting serv- ices by contract. (c) DEPARTMENT OF STATE.—Section 6101 of this title does not apply to the Department of State when the purchase or service relates to the packing of personal and household effects of Diplomatic, Consular, and Foreign Service offi- cers and clerks for foreign shipment. (d) INTERNATIONAL COMMITTEE OF AERIAL LEGAL EXPERTS.—Section 6101 of this title does not apply to the International Committee of