§4714 — Title 41 Public Contracts | U.S. Code

Summary

Federal agencies cannot make a person or sole proprietor bidding for a contract give their criminal record before the agency picks the apparent winner. Contractors who get a federal contract must not ask job applicants about criminal records, either by talking or on forms, until after they give a conditional job offer. The rule does not apply if another law already requires checking criminal records before an offer. It also does not apply to jobs that need access to classified information, sensitive law enforcement or national security duties, or other jobs the General Services Administration (GSA) names. GSA, working with the Secretary of Defense, must make rules within 16 months after the Fair Chance to Compete for Jobs Act of 2019 to list more such jobs, considering work with children, sensitive data, or handling money. Those rules must follow Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) and other federal civil rights laws. GSA must publish how applicants can complain about contractor violations. If an agency finds a contractor broke the rule, it must tell the contractor, give 30 days to appeal, and send a written warning. For a second violation, the agency must again notify and allow 30 days to appeal, and may give guidance, require the contractor to say within 30 days what steps it will take, or suspend payment until the contractor shows it is following the rule. A "conditional offer" is a job offer that depends on the results of a criminal record check. "Criminal history record information" has the meaning given in 5 U.S.C. 9201.

Title 41, §4714

Public Contracts — Source: USLM XML via OLRC

(a)(1)Except as provided in paragraphs (2) and (3), an executive agency—

(A)may not require that an individual or sole proprietor who submits a bid for a contract to disclose criminal history record information regarding that individual or sole proprietor before determining the apparent awardee; and

(B)shall require, as a condition of receiving a Federal contract and receiving payments under such contract that the contractor may not verbally, or through written form, request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before the contractor extends a conditional offer to the applicant.

(2)The prohibition under paragraph (1) does not apply with respect to a contract if consideration of criminal history record information prior to a conditional offer with respect to the position is otherwise required by law.

(3)(A)The prohibition under paragraph (1) does not apply with respect to—

(i)a contract that requires an individual hired under the contract to access classified information or to have sensitive law enforcement or national security duties; or

(ii)a position that the Administrator of General Services identifies under the regulations issued under subparagraph (B).

(B)(i)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 Defense, shall issue regulations identifying additional positions with respect to which the prohibition under paragraph (1) shall not apply, giving due consideration to positions that involve interaction with minors, access to sensitive information, or managing financial transactions.

(ii)The regulations issued under clause (i) shall—

(I)be consistent with, and in no way supersede, restrict, or limit the application 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)The Administrator of General Services shall establish and publish procedures under which an applicant for a position with a Federal contractor may submit to the Administrator a complaint, or any other information, relating to compliance by the contractor with subsection (a)(1)(B).

(c)(1)If the head of an executive 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 determination; and

(C)issue a written warning to the contractor that includes a description of the violation and the additional remedies that may apply for subsequent violations.

(2)If the head of an executive agency determines that a contractor that was subject to paragraph (1) has committed a subsequent violation of subsection (a)(1)(B), such head shall notify the contractor, shall provide 30 days after such notification for the contractor to appeal the determination, and, in consultation with the relevant Federal agencies, may take actions, depending on the severity of the infraction and the contractor’s history of violations, including—

(A)providing written guidance to the contractor that the contractor’s eligibility for contracts requires compliance with this section;

(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 compliance with this section.

(d)In this section:

(1)The term “conditional offer” means an offer of employment for a position related to work under a contract that is conditioned upon the results of a criminal history inquiry.

(2)The term “criminal history record information” has the meaning given that term in section 9201 of title 5.

Notes & Related Subsidiaries

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. Title VII of the Act is classified generally to subchapter 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 Employees].”

§4714 Prohibition on criminal history inquiries by contractors prior to conditional offer

Summary

Title 41, §4714

Notes & Related Subsidiaries

Editorial Notes

References in Text

Short Title

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Citations & Metadata