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Title 41 — Public Contracts — § 701. Drug-free workplace requirements for Federal contractors

Summary

This page reproduces pages 175 and 176 of Title 41 of the United States Code, chapter 10, Drug-free workplace, including § 701, Drug-free workplace requirements for Federal contractors, and part of § 702 for Federal grant recipients. Under § 701, no person other than an individual may be awarded a Federal contract above the simplified acquisition threshold, other than for commercial items, unless it agrees to provide a drug-free workplace: publishing a statement prohibiting unlawful drug activity, establishing a drug-free awareness program, requiring employees to report a workplace drug conviction no later than 5 days after it, and notifying the contracting agency within 10 days. Contracts are subject to suspension of payments or termination, and contractors to debarment not to exceed 5 years. The notes say the chapter was enacted as the Drug-Free Workplace Act of 1988.

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Page 175                              TITLE 41—PUBLIC CONTRACTS                                            § 701

       CHAPTER 10—DRUG-FREE WORKPLACE                          by, any employee who is so convicted, as re-
                                                               quired by section 703 of this title; and
Sec.
701.       Drug-free workplace requirements for Federal
                                                                 (G) making a good faith effort to continue
            contractors.                                       to maintain a drug-free workplace through
702.       Drug-free workplace requirements for Federal        implementation of subparagraphs (A), (B),
            grant recipients.                                  (C), (D), (E), and (F).
703.       Employee sanctions and remedies.                 (2) Requirement for individuals
704.       Waiver.
705.       Regulations.                                        No Federal agency shall enter into a con-
706.       Definitions.                                     tract with an individual unless such individual
707.       Construction of chapter.                         agrees that the individual will not engage in
                                                            the unlawful manufacture, distribution, dis-
§ 701. Drug-free workplace requirements for Fed-
                                                            pensation, possession, or use of a controlled
    eral contractors
                                                            substance in the performance of the contract.
(a) Drug-free workplace requirement                       (b) Suspension, termination, or debarment of
  (1) Requirement for persons other than indi-                 contractor
      viduals                                               (1) Grounds for suspension, termination, or de-
    No person, other than an individual, shall be                barment
  considered a responsible source, under the                   Each contract awarded by a Federal agency
  meaning of such term as defined in section                shall be subject to suspension of payments
  403(8) of this title, for the purposes of being           under the contract or termination of the con-
  awarded a contract for the procurement of any             tract, or both, and the contractor thereunder
  property or services of a value greater than              or the individual who entered the contract
  the simplified acquisition threshold (as de-              with the Federal agency, as applicable, shall
  fined in section 403(11) of this title) by any            be subject to suspension or debarment in ac-
  Federal agency, other than a contract for the             cordance with the requirements of this section
  procurement of commercial items (as defined               if the head of the agency determines that—
  in section 403(12) of this title), unless such per-            (A) the contractor violates the require-
  son agrees to provide a drug-free workplace                  ments of subparagraph (A), (B), (C), (D), (E),
  by—                                                          or (F) of subsection (a)(1) of this section; or
      (A) publishing a statement notifying em-                   (B) such a number of employees of such
    ployees that the unlawful manufacture, dis-                contractor have been convicted of violations
    tribution, dispensation, possession, or use of             of criminal drug statutes for violations oc-
    a controlled substance is prohibited in the                curring in the workplace as to indicate that
    person’s workplace and specifying the ac-                  the contractor has failed to make a good
    tions that will be taken against employees                 faith effort to provide a drug-free workplace
    for violations of such prohibition;                        as required by subsection (a) of this section.
      (B) establishing a drug-free awareness pro-
                                                            (2) Conduct of suspension, termination, and de-
    gram to inform employees about—
                                                                 barment proceedings
        (i) the dangers of drug abuse in the work-
      place;                                                   (A) If a contracting officer determines, in
        (ii) the person’s policy of maintaining a           writing, that cause for suspension of pay-
      drug-free workplace;                                  ments, termination, or suspension or debar-
        (iii) any available drug counseling, reha-          ment exists, an appropriate action shall be ini-
      bilitation, and employee assistance pro-              tiated by a contracting officer of the agency,
      grams; and                                            to be conducted by the agency concerned in
        (iv) the penalties that may be imposed              accordance with the Federal Acquisition Reg-
      upon employees for drug abuse violations;             ulation and applicable agency procedures.
                                                               (B) The Federal Acquisition Regulation shall
         (C) making it a requirement that each em-
                                                            be revised to include rules for conducting sus-
       ployee to be engaged in the performance of
                                                            pension and debarment proceedings under this
       such contract be given a copy of the state-
                                                            subsection, including rules providing notice,
       ment required by subparagraph (A);
                                                            opportunity to respond in writing or in person,
         (D) notifying the employee in the state-
                                                            and such other procedures as may be necessary
       ment required by subparagraph (A), that as
                                                            to provide a full and fair proceeding to a con-
       a condition of employment on such contract,
                                                            tractor or individual in such proceeding.
       the employee will—
           (i) abide by the terms of the statement;         (3) Effect of debarment
         and                                                   Upon issuance of any final decision under
           (ii) notify the employer of any criminal         this subsection requiring debarment of a con-
         drug statute conviction for a violation oc-        tractor or individual, such contractor or indi-
         curring in the workplace no later than 5           vidual shall be ineligible for award of any con-
         days after such conviction;                        tract by any Federal agency, and for partici-
                                                            pation in any future procurement by any Fed-
         (E) notifying the contracting agency with-
                                                            eral agency, for a period specified in the deci-
       in 10 days after receiving notice under sub-
                                                            sion, not to exceed 5 years.
       paragraph (D)(ii) from an employee or other-
       wise receiving actual notice of such convic-       (Pub. L. 100–690, title V, § 5152, Nov. 18, 1988, 102
       tion;                                              Stat. 4304; Pub. L. 103–355, title IV, § 4104(d), title
         (F) imposing a sanction on, or requiring         VIII, § 8301(f), Oct. 13, 1994, 108 Stat. 3342, 3397;
       the satisfactory participation in a drug           Pub. L. 104–106, div. D, title XLIII, §§ 4301(a)(3),
       abuse assistance or rehabilitation program         4321(i)(13), Feb. 10, 1996, 110 Stat. 656, 677.)
§ 702                                     TITLE 41—PUBLIC CONTRACTS                                        Page 176

                       AMENDMENTS                                        (ii) the grantee’s policy of maintaining a
   1996—Subsec. (a)(1). Pub. L. 104–106, § 4321(i)(13), sub-           drug-free workplace;
stituted ‘‘(as defined in section 403(12) of this title)’’ for           (iii) any available drug counseling, reha-
‘‘as defined in section 403 of this title’’ in introductory            bilitation, and employee assistance pro-
provisions.                                                            grams; and
   Pub. L. 104–106, § 4301(a)(3)(A), substituted ‘‘agrees to’’           (iv) the penalties that may be imposed
for ‘‘has certified to the contracting agency that it                  upon employees for drug abuse violations;
will’’ in introductory provisions.
   Subsec. (a)(2). Pub. L. 104–106, § 4301(a)(3)(B), sub-              (C) making it a requirement that each em-
stituted ‘‘individual agrees’’ for ‘‘contract includes a             ployee to be engaged in the performance of
certification by the individual’’.                                   such grant be given a copy of the statement
   Subsec. (b)(1). Pub. L. 104–106, § 4301(a)(3)(C), redesig-        required by subparagraph (A);
nated subpar. (B) as (A), struck out ‘‘such certification              (D) notifying the employee in the state-
by failing to carry out’’ after ‘‘contractor violates’’, re-
                                                                     ment required by subparagraph (A), that as
designated subpar. (C) as (B), and struck out former
subpar. (A) which read as follows: ‘‘the contractor or               a condition of employment in such grant,
individual has made a false certification under sub-                 the employee will—
section (a) of this section;’’.                                          (i) abide by the terms of the statement;
   1994—Subsec. (a)(1). Pub. L. 103–355 substituted                    and
‘‘greater than the simplified acquisition threshold (as                  (ii) notify the employer of any criminal
defined in section 403(11) of this title) by any Federal               drug statute conviction for a violation oc-
agency, other than a contract for the procurement of                   curring in the workplace no later than 5
commercial items as defined in section 403 of this                     days after such conviction;
title,’’ for ‘‘of $25,000 or more from any Federal agency’’
in introductory provisions.                                             (E) notifying the granting agency within
                                                                     10 days after receiving notice of a conviction
          EFFECTIVE DATE OF 1996 AMENDMENT
                                                                     under subparagraph (D)(ii) from an employee
  For effective date and applicability of amendment by               or otherwise receiving actual notice of such
Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set            conviction;
out as a note under section 251 of this title.                          (F) imposing a sanction on, or requiring
          EFFECTIVE DATE OF 1994 AMENDMENT                           the satisfactory participation in a drug
  For effective date and applicability of amendment by               abuse assistance or rehabilitation program
Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set           by, any employee who is so convicted, as re-
out as a note under section 251 of this title.                       quired by section 703 of this title; and
                                                                        (G) making a good faith effort to continue
                     EFFECTIVE DATE
                                                                     to maintain a drug-free workplace through
  Section 5160 of Pub. L. 100–690 provided that: ‘‘Sec-              implementation of subparagraphs (A), (B),
tions 5152 and 5153 [enacting this section and section 702           (C), (D), (E), and (F).
of this title] shall be effective 120 days after the date of
the enactment of this subtitle [Nov. 18, 1988].’’                  (2) Individuals
                                                                     No Federal agency shall make a grant to any
                       SHORT TITLE
                                                                   individual unless such individual agrees as a
  Section 5151 of Pub. L. 100–690 provided that: ‘‘This            condition of such grant that the individual
subtitle [subtitle D (§§ 5151–5160) of title V of Pub. L.          will not engage in the unlawful manufacture,
100–690, enacting this chapter] may be cited as the
                                                                   distribution, dispensation, possession, or use
‘Drug-Free Workplace Act of 1988’.’’
                                                                   of a controlled substance in conducting any
CONSISTENCY OF REGULATIONS WITH INTERNATIONAL                      activity with such grant.
 OBLIGATIONS OF UNITED STATES; EXTRATERRITORIAL
                                                                 (b) Suspension, termination, or debarment of
 APPLICATION
                                                                     grantee
  Section 4804 of Pub. L. 100–690 required that regula-            (1) Grounds for suspension, termination, or de-
tions promulgated by agency heads be consistent with
international obligations of United States, prior to re-
                                                                        barment
peal by Pub. L. 103–447, title I, § 103(b), Nov. 2, 1994, 108        Each grant awarded by a Federal agency
Stat. 4693.                                                        shall be subject to suspension of payments
                                                                   under the grant or termination of the grant,
§ 702. Drug-free workplace requirements for Fed-
                                                                   or both, and the grantee thereunder shall be
    eral grant recipients
                                                                   subject to suspension or debarment, in accord-
(a) Drug-free workplace requirement                                ance with the requirements of this section if
  (1) Persons other than individuals                               the agency head of the granting agency or his
    No person, other than an individual, shall re-                 official designee determines, in writing, that—
  ceive a grant from any Federal agency unless                          (A) the grantee violates the requirements
  such person agrees to provide a drug-free                          of subparagraph (A), (B), (C), (D), (E), (F), or
  workplace by—                                                      (G) of subsection (a)(1) of this section; or
                                                                        (B) such a number of employees of such
      (A) publishing a statement notifying em-
                                                                     grantee have been convicted of violations of
    ployees that the unlawful manufacture, dis-
                                                                     criminal drug statutes for violations occur-
    tribution, dispensation, possession, or use of
                                                                     ring in the workplace as to indicate that the
    a controlled substance is prohibited in the
                                                                     grantee has failed to make a good faith ef-
    grantee’s workplace and specifying the ac-
                                                                     fort to provide a drug-free workplace as re-
    tions that will be taken against employees
                                                                     quired by subsection (a)(1) of this section.
    for violations of such prohibition;
      (B) establishing a drug-free awareness pro-                  (2) Conduct of suspension, termination, and de-
    gram to inform employees about—                                     barment proceedings
        (i) the dangers of drug abuse in the work-                   A suspension of payments, termination, or
      place;                                                       suspension or debarment proceeding subject to


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