[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 41USC35]
TITLE 41--PUBLIC CONTRACTS
CHAPTER 1--GENERAL PROVISIONS
Sec. 35. Contracts for materials, etc., exceeding $10,000;
representations and stipulations
In any contract made and entered into by any executive department,
independent establishment, or other agency or instrumentality of the
United States, or by the District of Columbia, or by any corporation all
the stock of which is beneficially owned by the United States (all the
foregoing being hereinafter designated as agencies of the United
States), for the manufacture or furnishing of materials, supplies,
articles, and equipment in any amount exceeding $10,000, there shall be
included the following representations and stipulations:
(a) That all persons employed by the contractor in the manufacture
or furnishing of the materials, supplies, articles, or equipment used in
the performance of the contract will be paid, without subsequent
deduction or rebate on any account, not less than the minimum wages as
determined by the Secretary of Labor to be the prevailing minimum wages
for persons employed on 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 said contract;
(b) That no person employed by the contractor in the manufacture or
furnishing of the materials, supplies, articles, or equipment used in
the performance of the contract shall be permitted to work in excess of
forty hours in any one week: Provided, That the provisions of this
subsection shall not apply to any employer who shall have entered into
an agreement with his employees pursuant to the provisions of paragraphs
(1) or (2) of subsection (b) of section 207 of title 29;
(c) That no male person under sixteen years of age and no female
person under eighteen years of age and no convict labor will be employed
by the contractor in the manufacture or production or furnishing of any
of the materials, supplies, articles, or equipment included in such
contract, except that this section, or any other law or Executive order
containing similar prohibitions against purchase of goods by the Federal
Government, shall not apply to convict labor which satisfies the
conditions of section 1761(c) of title 18; and
(d) That no part of such contract will be performed nor will any of
the materials, supplies, articles, or equipment to be manufactured or
furnished under said contract be manufactured or fabricated in any
plants, factories, buildings, or surroundings or under working
conditions which are unsanitary or hazardous or dangerous to the health
and safety of employees engaged in the performance of said contract.
Compliance with the safety, sanitary, and factory inspection laws of the
State in which the work or part thereof is to be performed shall be
prima-facie evidence of compliance with this subsection.
(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.
Act Referred to in Other Sections
The Walsh-Healey Act is referred to in section 356 of
