SB-1085, As Passed Senate, May 17, 2012

SUBSTITUTE FOR

SENATE BILL NO. 1085

     A bill to amend 2011 PA 98, entitled

"Fair and open competition in governmental construction act,"

by amending the title and sections 5, 7, 9, and 13 (MCL 408.875,

408.877, 408.879, and 408.883) and by adding sections 2 and 8.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

TITLE

     An act to provide for fair and open competition in

governmental construction contracts, grants, tax abatements, and

tax credits; to prohibit requirements for certain terms in

government contracts; and contracts supported through government

grants and tax subsidies and abatements; to prohibit expenditure of

public funds under certain conditions; to prohibit certain terms in

procurement documents for certain expenditures involving public

facilities; and to provide for powers and duties of certain public

officers, employees, and contractors.

     Sec. 2. The legislature intends this act to provide for more

economical, nondiscriminatory, neutral, and efficient procurement

of construction-related goods and services by this state and

political subdivisions of this state as market participants, and

providing for fair and open competition best effectuates this

intent.

     Sec. 5. A governmental unit shall not enter into or expend

funds under a contract for the construction, repair, remodeling, or

demolition of a facility if the contract or a subcontract under the

contract contains any of the following:

     (a) A term that requires, prohibits, encourages, or

discourages bidders, contractors, or subcontractors from entering

into or adhering to agreements with a collective bargaining

organization relating to the construction project or other related

construction projects.

     (b) A term that discriminates against bidders, contractors, or

subcontractors based on the status as a party or nonparty to, or

the willingness or refusal to enter into, an agreement with a

collective bargaining organization relating to the construction

project or other related construction projects.Subject to section

8, a governmental unit awarding a contract after July 19, 2011 for

the construction, repair, remodeling, or demolition of a facility

and any construction manager acting on its behalf shall not, in any

bid specifications, project agreements, or other controlling

documents:

     (a) Require or prohibit a bidder, offeror, contractor, or

subcontractor from entering into or adhering to an agreement with 1

or more labor organizations in regard to that project or a related

construction project.

     (b) Otherwise discriminate against a bidder, offeror,

contractor, or subcontractor for becoming or remaining or refusing

to become or remain a signatory to, or for adhering or refusing to

adhere to, an agreement with 1 or more labor organizations in

regard to that project or a related construction project.

     Sec. 7. A Subject to section 8, a governmental unit shall not

award a grant, tax abatement, or tax credit that is conditioned

upon a requirement that the awardee include a term described in

section 5(a) or (b) in a contract document for any construction,

improvement, maintenance, or renovation to real property or

fixtures that are the subject of the grant, tax abatement, or tax

credit. This section does not prohibit a governmental unit from

awarding a grant, tax abatement, or tax credit to a private owner,

bidder, contractor, or subcontractor who enters into or who is

party to an agreement with a collective bargaining organization, if

being or becoming a party or adhering to an agreement with a

collective bargaining organization is not a condition for award of

the grant, tax abatement, or tax credit, and if the governmental

unit does not discriminate against a private owner, bidder,

contractor, or subcontractor in the awarding of that grant, tax

abatement, or tax credit based upon the status as being or

becoming, or the willingness or refusal to become, a party to an

agreement with a collective bargaining organization.

     Sec. 8. (1) This act does not prohibit a governmental unit

from awarding a contract, grant, tax abatement, or tax credit to a

private owner, bidder, contractor, or subcontractor who enters into

or who is party to an agreement with a labor organization, if being

or becoming a party or adhering to an agreement with a labor

organization is not a condition for award of the contract, grant,

tax abatement, or tax credit, and if the governmental unit does not

discriminate against a private owner, bidder, contractor, or

subcontractor in the awarding of that contract, grant, tax

abatement, or tax credit based upon the status as being or

becoming, or the willingness or refusal to become, a party to an

agreement with a labor organization.

     (2) This act does not prohibit a contractor or subcontractor

from voluntarily entering into or complying with an agreement

entered into with 1 or more labor organizations in regard to a

contract with a governmental unit or funded in whole or in part

from a grant, tax abatement, or tax credit from the governmental

unit.

     Sec. 9. A governmental unit or a construction manager or other

contracting entity acting on behalf of a governmental unit shall

not place any of the terms described in section 5 in bid

specifications, project agreements, or other controlling documents

relating to the construction, repair, remodeling, or demolition of

a facility. Any such included term is void and of no effect.The

head of a governmental unit may exempt a particular project,

contract, subcontract, grant, tax abatement, or tax credit from the

requirements of any or all of the provisions of section 5 or 7 if

the governmental unit finds, after public notice and a hearing,

that special circumstances require an exemption to avert an

imminent threat to public health or safety. A finding of special

circumstances under this section shall not be based on the

possibility or presence of a labor dispute concerning the use of

contractors or subcontractors who are nonsignatories to, or

otherwise do not adhere to, agreements with 1 or more labor

organizations, or concerning employees on the project who are not

members of or affiliated with a labor organization.

     Sec. 13. This act does not do either of the following:

     (a) Prohibit employers or other parties from entering into

agreements or engaging in any other activity protected by the

national labor relations act, 29 USC 151 to 169.

     (b) Interfere with labor relations of parties that are

protected left unregulated under the national labor relations act,

29 USC 151 to 169.