41 U.S.C. § 6502 — Required contract terms

Page 166 TITLE 41—PUBLIC CONTRACTS § 6502 Executive Documents EX. ORD. NO. 13126. PROHIBITION OF ACQUISITION OF PRODUCTS PRODUCED BY FORCED OR INDENTURED CHILD LABOR Ex. Ord. No. 13126, June 12, 1999, 64 F.R. 32383, pro- vided: By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to continue the executive branch’s commitment to fighting abusive child labor practices, it is hereby ordered as follows: SECTION. 1. Policy. It shall be the policy of the United States Government, consistent with the Tariff Act of 1930, 19 U.S.C. 1307, the Fair Labor Standards Act [of 1938], 29 U.S.C. 201 et. seq., and the Walsh-Healey Public Contracts Act [Walsh-Healey Act], [former] 41 U.S.C. 35 et seq. [see 41 U.S.C. 6501 et seq.], that executive agen- cies shall take appropriate actions to enforce the laws prohibiting the manufacture or importation of goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part by forced or indentured child labor. SEC. 2. Publication of List. Within 120 days after the date of this order, the Department of Labor, in con- sultation and cooperation with the Department of the Treasury and the Department of State, shall publish in the Federal Register a list of products, identified by their country of origin, that those Departments have a reasonable basis to believe might have been mined, pro- duced, or manufactured by forced or indentured child labor. The Department of Labor may conduct hearings to assist in the identification of those products. SEC. 3. Procurement Regulations. Within 120 days after the date of this order, the Federal Acquisition Regu- latory Council shall issue proposed rules to implement the following: (a) Required Solicitation Provisions. Each solicitation of offers for a contract for the procurement of a prod- uct included on the list published under section 2 of this order shall include the following provisions: (1) A provision that requires the contractor to certify to the contracting officer that the contractor or, in the case of an incorporated contractor, a responsible offi- cial of the contractor has made a good faith effort to determine whether forced or indentured child labor was used to mine, produce, or manufacture any product fur- nished under the contract and that, on the basis of those efforts, the contractor is unaware of any such use of child labor; and (2) A provision that obligates the contractor to co- operate fully in providing reasonable access to the con- tractor’s records, documents, persons, or premises if reasonably requested by authorized officials of the con- tracting agency, the Department of the Treasury, or the Department of Justice, for the purpose of deter- mining whether forced or indentured child labor was used to mine, produce, or manufacture any product fur- nished under the contract. (b) Investigations. Whenever a contracting officer of an executive agency has reason to believe that forced or indentured child labor was used to mine, produce, or manufacture a product furnished pursuant to a con- tract subject to the requirements of subsection 3(a) of this order, the head of the executive agency shall refer the matter for investigation to the Inspector General of the executive agency and, as the head of the executive agency or the Inspector General determines appro- priate, to the Attorney General and the Secretary of the Treasury. (c) Remedies. (1) The head of an executive agency may impose rem- edies as provided in this subsection in the case of a con- tractor under a contract of the executive agency if the head of the executive agency finds that the contractor: (i) Has furnished under the contract products that have been mined, produced, or manufactured by forced or indentured child labor or uses forced or in- dentured child labor in the mining, production, or manufacturing operations of the contractor; (ii) Has submitted a false certification under sub- section 3(a)(1) of this order; or (iii) Has failed to cooperate in accordance with the obligation imposed pursuant to subsection 3(a)(2) of this order. (2) The head of an executive agency, in his or her sole discretion, may terminate a contract on the basis of any finding described in subsection 3(c)(1) of this order for any contract entered into after the date the regula- tion called for in section 3 of this order is published in final. (3) The head of an executive agency may debar or sus- pend a contractor from eligibility for Federal contracts on the basis of a finding that the contractor has en- gaged in an act described in subsection 3(c)(1) of this order. The provision for debarment may not exceed 3 years. (4) The Administrator of General Services shall in- clude on the List of Parties Excluded from Federal Pro- curement and Nonprocurement Programs (maintained by the Administrator as described in the Federal Ac- quisition Regulation) each party that is debarred, sus- pended, proposed for debarment or suspension, or de- clared ineligible by the head of an agency on the basis that the person has engaged in an act described in sub- section 3(c)(1) of this order. (5) This section shall not be construed to limit the use of other remedies available to the head of an execu- tive agency or any other official of the Federal Govern- ment on the basis of a finding described in subsection 3(c)(1) of this order. SEC. 4. Report. Within 2 years after implementation of any final rule under this order, the Administrator of General Services, with the assistance of other execu- tive agencies, shall submit to the Office of Management and Budget a report on the actions taken pursuant to this order. SEC. 5. Scope. (a) Any proposed rules issued pursuant to section 3 of this order shall apply only to acquisi- tions for a total amount in excess of the micro-pur- chase threshold as defined in section 32(f) of the Office of Federal Procurement Policy Act (41 U.S.C. 428(f)). (b) This order does not apply to a contract that is for the procurement of any product, or any article, mate- rial, or supply contained in a product that is mined, produced, or manufactured in any foreign country if: (1) the foreign country is a party to the Agreement on Government Procurement annexed to the WTO Agreement or a party to the North American Free Trade Agreement (‘‘NAFTA’’); and (2) the contract is of a value that is equal to or greater than the United States threshold specified in the Agreement on Government Procurement annexed to the WTO Agreement or NAFTA, whichever is ap- plicable. SEC. 6. Definitions. (a) ‘‘Executive agency’’ and ‘‘agen- cy’’ have the meaning given to ‘‘executive agency’’ in section 4(1) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(1)). (b) ‘‘WTO Agreement’’ means the Agreement Estab- lishing the World Trade Organization, entered into on April 15, 1994. (c) ‘‘Forced or indentured child labor’’ means all work or service (1) exacted from any person under the age of 18 under the menace of any penalty for its non- performance and for which the worker does not offer himself voluntarily; or (2) performed by any person under the age of 18 pursuant to a contract the enforce- ment of which can be accomplished by process or pen- alties. SEC. 7. Judicial Review. This order is intended only to improve the internal management of the executive branch and does not create any rights or benefits, sub- stantive or procedural, enforceable by law by a party against the United States, its agencies, its officers, or any other person. WILLIAM J. CLINTON. § 6502. Required contract terms A contract made by an agency of the United States for the manufacture or furnishing of ma- Page 167 TITLE 41—PUBLIC CONTRACTS § 6503 terials, supplies, articles, or equipment, in an amount exceeding $10,000, shall include the fol- lowing representations and stipulations: (1) MINIMUM WAGES TO BE PAID.—All individ- uals employed by the contractor in the manu- facture or furnishing of materials, supplies, articles, or equipment under the contract will be paid, without subsequent deduction or re- bate on any account, not less than the pre- vailing minimum wages, as determined by the Secretary, for individuals employed in similar work or in the particular or similar industries or groups of industries currently operating in the locality in which the materials, supplies, articles, or equipment are to be manufactured or furnished under the contract, except that this paragraph applies only to purchases or contracts relating to industries that have been the subject matter of a determination by the Secretary. (2) MAXIMUM NUMBER OF HOURS TO BE WORKED IN A WEEK.—No individual employed by the contractor in the manufacture or furnishing of materials, supplies, articles, or equipment under the contract shall be permitted to work in excess of 40 hours in any one week, except that this paragraph does not apply to an em- ployer who has entered into an agreement with employees pursuant to paragraph (1) or (2) of section 7(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 207(b)(1) or (2)). (3) INELIGIBLE EMPLOYEES.—No individual under 16 years of age and no incarcerated indi- vidual will be employed by the contractor in the manufacture or furnishing of materials, supplies, articles, or equipment under the con- tract, except that this section, or other law or executive order containing similar prohibi- tions against the purchase of goods by the Federal Government, does not apply to con- vict labor that satisfies the conditions of sec- tion 1761(c) of title 18. (4) STANDARDS OF PLACES AND WORKING CON- DITIONS WHERE CONTRACT PERFORMED.—No part of the contract will be performed, and no ma- terials, supplies, articles, or equipment will be manufactured or fabricated under the con- tract, in plants, factories, buildings, or sur- roundings, or under working conditions, that are unsanitary, hazardous, or dangerous to the health and safety of employees engaged in the performance of the contract. Compliance with the safety, sanitary, and factory inspection laws of the State in which the work or part of the work is to be performed is prima facie evi- dence of compliance with this paragraph. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3807.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 6502 (matter before par. (1)). 41:35 (matter before subsec. (a) less words related to definition of ‘‘agency of the United States’’). June 30, 1936, ch. 881, § 1 (matter before subsec. (a) less words related to defi- nition of ‘‘agency of the United States’’), (a), 49 Stat. 2036; Pub. L. 103–355, title VII, § 7201(1), Oct. 13, 1994, 108 Stat. 3378. 6502(1) ........ 41:35(a). HISTORICAL AND REVISION NOTES—CONTINUED Revised Section Source (U.S. Code) Source (Statutes at Large) 41:45. June 30, 1936, ch. 881, § 13, formerly § 11, 49 Stat. 2039; renumbered § 12, June 30, 1952, ch. 530, title III, § 301, 66 Stat. 308; renumbered § 13, Pub. L. 104–106, div. D, title XLIII, § 4321(f)(1)(B), Feb. 10, 1996, 110 Stat. 675. 6502(2)–(4) ... 41:35(b)–(d). June 30, 1936, ch. 881, § 1(b)–(d), 49 Stat. 2036; May 13, 1942, ch. 306, 56 Stat. 277; Pub. L. 90–351, title I, § 819(b), formerly § 827(b), as added Pub. L. 96–157, § 2, Dec. 27, 1979, 93 Stat. 1215 and renumbered § 819(b), Pub. L. 98–473, title II, § 609B(f), Oct. 12, 1984, 98 Stat. 2093; Pub. L. 99–145, title XII, § 1241(b), Nov. 8, 1985, 99 Stat. 734; Pub. L. 103–355, title VII, § 7201(1), Oct. 13, 1994, 108 Stat. 3378. In the matter before paragraph (1), the words ‘‘and entered into’’ are omitted as unnecessary. In paragraph (1), the words ‘‘under the contract’’ are substituted for ‘‘used in the performance of the con- tract’’ in 41:35(a) to eliminate unnecessary words and for consistency in the chapter. The words ‘‘Sections 35 to 45 of this title shall apply to all contracts entered into pursuant to invitations for bids issued on or after ninety days from June 30, 1936’’ in 41:45 are omitted as obsolete. In paragraph (2), the words ‘‘under the contract’’ are substituted for ‘‘used in the performance of the con- tract’’ to eliminate unnecessary words and for consist- ency in the chapter. In paragraph (3), the words ‘‘No individual under 16 years of age’’ are substituted for ‘‘no male person under sixteen years of age and no female person under eight- een years of age’’ to reflect the interpretation of this provision subsequent to enactment of civil rights laws such as section 703 of the Civil Rights Act of 1964 (42:2000e–2), as carried out by the Department of Labor through 41 C.F.R. Part 50–201.104. The words ‘‘incarcer- ated individual’’ are substituted for ‘‘convict labor’’ the first time the words appear because the term ‘‘convict labor’’ is ambiguous and may be interpreted to include individuals who are not incarcerated. This would be an inappropriate interpretation because 41:35(c) provides an exception for ‘‘convict labor’’ that satisfies the con- ditions of 18:1761(c) regarding certain non-Federal pris- on work projects. The words ‘‘or production’’ are omit- ted for consistency with the source provisions for para- graphs (1) and (2) and because, in this context, the con- cept of ‘‘production’’ is included in the words ‘‘manu- facture or furnishing’’. The words ‘‘under the contract’’ are substituted for ‘‘included in such contract’’ for con- sistency in the chapter. § 6503. Breach or violation of required contract terms (a) APPLICABLE BREACH OR VIOLATION.—This section applies in case of breach or violation of a representation or stipulation included in a contract under section 6502 of this title. (b) LIQUIDATED DAMAGES.—In addition to dam- ages for any other breach of the contract, the party responsible for a breach or violation de- scribed in subsection (a) is liable to the Federal Government for the following liquidated dam- ages: (1) An amount equal to the sum of $10 per day for each individual under 16 years of age and each incarcerated individual knowingly employed in the performance of the contract. (2) An amount equal to the sum of each un- derpayment of wages due an employee engaged