§ 302. — Award of contracts.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 22USC302]
TITLE 22--FOREIGN RELATIONS AND INTERCOURSE
CHAPTER 8--FOREIGN SERVICE BUILDINGS
Sec. 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 Secretary of State, including lease-back or other
agreements, the purpose of which is to obtain the construction,
alteration, or repair of buildings and grounds abroad, when estimated to
exceed $5,000,000, including any contract alternatives or options, shall
be limited, after a determination 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 participation 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 relations 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 contract 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) of this section shall be reduced by 10 per
centum.
(3) A determination of adequacy of competition for purposes of
subsection (a) of this section shall be made after advance publication
by the Secretary of State of the proposed project, and receipt from not
less than two prospective responsible bidders 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) of this section and this
subsection.
(4) Bidder qualification under subsection (a) of this section shall
be determined on the basis of nationality of ownership, the burden of
which shall be on the prospective bidder. Qualification under subsection
(a)(1) of this section shall require evidence of (A) performance 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 established on the
basis of determinations at the time bids are requested.
(c) Contracts for construction, etc., in United States
Contracts for construction, alteration, or repair 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 Authorities 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 contract is being performed who are granted
the right of entry into the United States for that purpose.
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\1\ See References in Text note below.
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(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.
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\2\ So in original. Probably should be ``internationally-agreed-
upon''.
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(May 7, 1926, ch. 250, Sec. 11, as added Pub. L. 98-164, title I,
Sec. 136, Nov. 22, 1983, 97 Stat. 1029; amended Pub. L. 107-228, div. A,
title II, Sec. 206(a), Sept. 30, 2002, 116 Stat. 1364.)
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, Sec. 202(b), 96 Stat.
283, known as the Foreign Missions Act, which is classified principally
to chapter 53 (Sec. 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, Sec. 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''.
Section Referred to in Other Sections
This section is referred to in section 4852 of this title.
