Notes on 41 U.S.C. § 35 : US Code - Notes

Search Notes on 41 U.S.C. § 35 : US Code - Notes

(June 30, 1936, ch. 881, Sec. 1, 49 Stat. 2036; May 13, 1942, ch.
306, 56 Stat. 277; Pub. L. 90-351, title I, Sec. 819(b), formerly
Sec. 827(b), as added Pub. L. 96-157, Sec. 2, Dec. 27, 1979, 93
Stat. 1215; renumbered Pub. L. 98-473, title II, Sec. 609B(f), Oct.
12, 1984, 98 Stat. 2093; Pub. L. 99-145, title XII, Sec. 1241(b),
Nov. 8, 1985, 99 Stat. 734; Pub. L. 103-355, title VII, Sec.
7201(1), Oct. 13, 1994, 108 Stat. 3378.)
AMENDMENTS
1994 - Subsecs. (a) to (e). Pub. L. 103-355 redesignated subsecs.
(b) to (e) as (a) to (d), respectively, and struck out former
subsec. (a) which read as follows: "That the contractor is the
manufacturer of or a regular dealer in the materials, supplies,
articles, or equipment to be manufactured or used in the
performance of the contract;".
1985 - Subsec. (c). Pub. L. 99-145 struck out "eight hours in any
one day or in excess of" before "forty hours".
1979 - Subsec. (d). Pub. L. 90-351, Sec. 827(b), as added by Pub.
L. 96-157, inserted provisions relating to convict labor which
satisfies the conditions of section 1761(c) of title 18.
1942 - Subsec. (c). Act May 13, 1942, inserted proviso.
EFFECTIVE DATE OF 1994 AMENDMENT
For effective date and applicability of amendment by Pub. L. 103-
355, see section 10001 of Pub. L. 103-355, set out as a note under
section 251 of this title.
EFFECTIVE DATE OF 1985 AMENDMENT
Section 1241(c) of Pub. L. 99-145 provided that: "The amendments
made by this section [amending this section and section 328 of
former Title 40, Public Buildings, Property, and Works] shall take
effect on January 1, 1986."
SHORT TITLE
Section 14, formerly section 12, of act June 30, 1936, as added
by Pub. L. 103-355, title X, Sec. 10005(f)(5), Oct. 13, 1994, 108
Stat. 3409, and renumbered by Pub. L. 104-106, div. D, title XLIII,
Sec. 4321(f)(1)(B), Feb. 10, 1996, 110 Stat. 675, provided that:
"This Act [enacting this section and sections 36 to 45 of this
title] may be cited as the 'Walsh-Healey Act'."
EXEMPTIONS TO FEDERAL RESTRICTIONS ON MARKETABILITY OF PRISON MADE
GOODS
Provisions of this section creating exemptions to Federal
regulations on marketability of prison made goods are not
applicable unless representatives of local union central bodies or
similar labor union organizations have been consulted prior to the
initiation of any project qualifying of any exemption created by
this section and such paid inmate employment will not result in the
displacement of employed workers, or be applied in skills, crafts,
or trades in which there is a surplus of available gainful labor in
the locality, or impair existing contracts for services, see
section 819(c) of Pub. L. 90-351, set out as a note under section
1761 of Title 18, Crimes and Criminal Procedure.
EXCEPTIONS AND EXEMPTIONS
7 F.R. 9399 (amending Exemption Order Apr. 21, 1942, 7 F.R.
3003), which exempted female persons under 18 years of age from the
provisions of subsec. (d) of this section, was superseded by 10
F.R. 10438.
CONTRACTING AUTHORITY OF GOVERNMENT AGENCIES IN CONNECTION WITH
NATIONAL DEFENSE FUNCTIONS
Provisions of sections 35 to 45 of this title as applicable to
Government agencies exercising certain contracting authority in
connection with national-defense functions, see section 13 of Ex.
Ord. No. 10789, set out as a note under section 1431 of Title 50,
War and National Defense.
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, provided:
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], 41 U.S.C.
35 et seq., that executive agencies 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 consultation 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, produced, 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 Regulatory 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 product 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 official 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 furnished 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 cooperate fully
in providing reasonable access to the contractor's records,
documents, persons, or premises if reasonably requested by
authorized officials of the contracting agency, the Department of
the Treasury, or the Department of Justice, for the purpose of
determining whether forced or indentured child labor was used to
mine, produce, or manufacture any product furnished 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 contract 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 appropriate, to the Attorney
General and the Secretary of the Treasury.
(c) Remedies.
(1) The head of an executive agency may impose remedies as
provided in this subsection in the case of a contractor 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 indentured child labor in the mining,
production, or manufacturing operations of the contractor;
(ii) Has submitted a false certification under subsection
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 regulation called for in section 3
of this order is published in final.
(3) The head of an executive agency may debar or suspend a
contractor from eligibility for Federal contracts on the basis of a
finding that the contractor has engaged 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 include on the
List of Parties Excluded from Federal Procurement and
Nonprocurement Programs (maintained by the Administrator as
described in the Federal Acquisition Regulation) each party that is
debarred, suspended, proposed for debarment or suspension, or
declared ineligible by the head of an agency on the basis that the
person has engaged in an act described in subsection 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 executive agency or any other
official of the Federal Government 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 executive 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 acquisitions for a total amount
in excess of the micro-purchase 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, material, 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 applicable.
Sec. 6. Definitions. (a) "Executive agency" and "agency" 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 Establishing 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 nonperformance 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 enforcement of which can
be accomplished by process or penalties.
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, substantive or procedural, enforceable by
law by a party against the United States, its agencies, its
officers, or any other person.
William J. Clinton.