Rules Issued to Combat Human Trafficking

By Hughes, James A. | National Defense, March 2015 | Go to article overview

Rules Issued to Combat Human Trafficking


Hughes, James A., National Defense


On Jan. 29, the Federal Acquisition Regulatory Council issued its final rule amending the federal acquisition regulations to strengthen protections against trafficking in persons in federal contracts. The final rule implements Executive Order 13627 (Sept. 25, 2012) and Title XVII of the National Defense Authorization Act for fiscal year 2013. It goes into effect March 2, and will require contracting officers to modify, on a bi-lateral basis, existing indefinite-delivery/indefinite-quantity contracts to include the clause for future anticipated orders.

The final rule applies to all federal contracts regardless of tier, contract type, or contract value and bars contractors and subcontractors from: destroying, concealing, confiscating or otherwise denying access by an employee to his or her identity or immigration documents; using misleading or fraudulent recruitment practices; charging employees recruitment fees; providing or arranging housing that fails to meet the host country housing and safety standards; and failing to provide return transportation or requiring payment for the cost of return transportation for certain employees.

These policies, stated in FAR 22.1700 and 52.222-50, must be flowed down to all subcontractors, and contracts performed outside the United States of more than $500,000 will now require a compliance plan and annual certifications of compliance.

This note only highlights the final rule. The final rule and the FAR Council discussion and analysis can be found at 80 Fed. Reg. 4967 issued on Jan. 29.

Here are key provisions of the new rule.

All contracts performed outside the United States exceeding $500,000 will require the successful offeror to certify, pre-award, an implemented compliance plan to prevent any prohibited trafficking in persons activities and to monitor, detect and terminate subcontractors engaging in such prohibited activities. The offeror must further certify annually--after conducting due diligence --that to the best of its knowledge neither it nor any of its proposed agents, subcontractors or their agents have engaged in any such activities. The prohibited activities are described in FAR 52.222-50(b).

Compliance plans are mandatory for contracts performed outside the United States that were more than $500,000 in value, and must be appropriate to the contract's nature, scope, size and complexity.

At a minimum, the compliance plan must include: an awareness program to inform contractor employees about the law prohibiting trafficking-related activities; a reporting process for employees to report, without fear of retaliation, activity inconsistent with these policies; a recruitment and wage plan that prohibits recruitment fees paid by the employee and ensures that wages comply with host-country laws; a housing plan that ensures that contractor-furnished housing meets host country housing and safety standards; and procedures to prevent violations by agents and subcontractors and to monitor, detect and terminate any agents, subcontracts or subcontractor employees that have engaged in such activities at any tier and any dollar amount.

Contractors must include the substance of the clause at FAR 52. …

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