§ 4852. — Diplomatic construction program.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 22USC4852]
TITLE 22--FOREIGN RELATIONS AND INTERCOURSE
CHAPTER 58--DIPLOMATIC SECURITY
SUBCHAPTER IV--DIPLOMATIC SECURITY PROGRAM
Sec. 4852. Diplomatic construction program
(a) Preference for United States contractors
Notwithstanding section 302 of this title, and where adequate
competition exists, only United States persons and qualified United
States joint venture persons may--
(1) bid on a diplomatic construction or design project which has
an estimated total project value exceeding $10,000,000; and
(2) bid on a diplomatic construction or design project which
involves technical security, unless the project involves low-level
technology, as determined by the Secretary of State.
(b) Exception
Subsection (a) of this section shall not apply with respect to any
diplomatic construction or design project in a foreign country whose
statutes prohibit the use of United States contractors on such projects.
The exception contained in this subsection shall only become effective
with respect to a foreign country 30 days after the Secretary of State
certifies to the Committee on Foreign Affairs and the Committee on
Appropriations of the House of Representatives and the Committee on
Foreign Relations and the Committee on Appropriations of the Senate what
specific actions he has taken to urge such foreign country to permit the
use of United States contractors on such projects, and what actions he
shall take with respect to that country as authorized by title II of the
State Department Basic Authorities Act of 1956 (22 U.S.C. 4301 et seq.;
commonly referred to as the ``Foreign Missions Act'').
(c) Definitions
For the purposes of this section--
(1) the term ``adequate competition'' means with respect to a
construction or design project, the presence of two or more
qualified bidders submitting responsive bids for that project;
(2) the term ``United States person'' means a person which--
(A) is incorporated or legally organized under the laws of
the United States, including State, the District of Columbia,
and local laws;
(B) has its principal place of business in the United
States;
(C) has been incorporated or legally organized in the United
States--
(i) for more than 5 years before the issuance date of
the invitation for bids or request for proposals with
respect to a construction project under subsection (a)(1) of
this section; and
(ii) for more than 2 years before the issuance date of
the invitation for bids or request for proposals with
respect to a construction or design project which involves
physical or technical security under subsection (a)(2) of
this section;
(D) has performed within the United States or at a United
States diplomatic or consular establishment abroad
administrative and technical, professional, or construction
services similar in complexity, type of construction, and value
to the project being bid;
(E) with respect to a construction project under subsection
(a)(1) of this section, has achieved total business volume equal
to or greater than the value of the project being bid in 3 years
of the 5-year period before the date specified in subparagraph
(C)(i);
(F)(i) employs United States citizens in at least 80 percent
of its principal management positions in the United States,
(ii) employs United States citizens in more than half of its
permanent, full-time positions in the United States, and
(iii) will employ United States citizens in at least 80
percent of the supervisory positions on the foreign buildings
office project site; and
(G) has the existing technical and financial resources in
the United States to perform the contract; and
(3) the term ``qualified United States joint venture person''
means a joint venture in which a United States person or persons
owns at least 51 percent of the assets of the joint venture.
(d) American minority contractors
Not less than 10 percent of the amount appropriated pursuant to
section 4851(a) of this title for diplomatic construction or design
projects each fiscal year shall be allocated to the extent practicable
for contracts with American minority contractors.
(e) American small business contractors
Not less than 10 percent of the amount appropriated pursuant to
section 4851(a) of this title for diplomatic construction or design
projects each fiscal year shall be allocated to the extent practicable
for contracts with American small business contractors.
(f) Limitation on subcontracting
With respect to a diplomatic construction project, a prime
contractor may not subcontract more than 50 percent of the total value
of its contract for that project.
(Pub. L. 99-399, title IV, Sec. 402, Aug. 27, 1986, 100 Stat. 864; Pub.
L. 101-246, title I, Sec. 132, Feb. 16, 1990, 104 Stat. 32; Pub. L. 102-
138, title I, Sec. 131, Oct. 28, 1991, 105 Stat. 662; Pub. L. 103-236,
title I, Sec. 162(g)(10), Apr. 30, 1994, 108 Stat. 407; Pub. L. 107-228,
div. A, title II, Sec. 206(b), Sept. 30, 2002, 116 Stat. 1364.)
References in Text
Title II of the State Department Basic Authorities Act of 1956,
referred to in subsec. (b), 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. 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. (c)(2)(D). Pub. L. 107-228 inserted ``or at a United
States diplomatic or consular establishment abroad'' after ``United
States''.
1994--Subsec. (a)(2). Pub. L. 103-236 substituted ``Secretary of
State'' for ``Assistant Secretary for Diplomatic Security''.
1991--Subsec. (a)(1). Pub. L. 102-138, Sec. 131(1), substituted
``$10,000,000'' for ``$5,000,000''.
Subsec. (a)(2). Pub. L. 102-138, Sec. 131(2), amended par. (2)
generally. Prior to amendment, par. (2) read as follows: ``bid on a
diplomatic construction or design project which involves physical or
technical security, unless the project--
``(A) involves nonsophisticated, low-level technology, as
determined by the Assistant Secretary for Diplomatic Security;
``(B) is for the design or construction of a facility that does
not process or store classified material; and
``(C) does not exceed a total value of $500,000.''
1990--Subsec. (a)(2). Pub. L. 101-246 amended par. (2) generally.
Prior to amendment, par. (2) read as follows: ``bid on a diplomatic
construction or design project which involves physical or technical
security.''
Change of Name
Committee on Foreign Affairs of House of Representatives treated as
referring to Committee on International Relations of House of
Representatives by section 1(a) of Pub. L. 104-14, set out as a note
preceding section 21 of Title 2, The Congress.
Effective Date of 1994 Amendment
Amendment by Pub. L. 103-236 applicable with respect to officials,
offices, and bureaus of Department of State when executive orders,
regulations, or departmental directives implementing the amendments by
sections 161 and 162 of Pub. L. 103-236 become effective, or 90 days
after Apr. 30, 1994, whichever comes earlier, see section 161(b) of Pub.
L. 103-236, as amended, set out as a note under section 2651a of this
title.
Construction of United States Embassy in Ottawa
Section 125 of Pub. L. 101-246 provided that: ``Section 402(a) of
the Diplomatic Security Act (22 U.S.C. 4852(a)) shall not apply to the
construction or renovation of the United States Embassy in Ottawa,
Canada.''
