On March 2, 2015, new anti-human trafficking rules applicable to government contractors went into effect. (New requirements applicable to Department of Defense (DoD) contractors, available here, went into effect on January 29, 2015.) While government contracts have been subject to anti-human trafficking provisions for some time, these revised requirements, which implement Executive Order 13627 and parts of the National Defense Authorization Act for Fiscal Year 2013, include a new certification provision, mandatory reporting obligations, involvement of suspending and debarring officials in the review of reported violations, full cooperation with agency investigations, and publication of violations on FAPIIS, among other changes.
It is important that contractors recognize that all new contracts are subject to many of these new requirements, available here, and ID/IQ contracts will be modified to include them in future orders. If they have not already done so, contractors should promptly determine which of the new requirements they are subject to and, if necessary, revise compliance policies and procedures accordingly.
The key new contract provision, FAR 52.222-50, Combating Trafficking in Persons (March 2, 2015), which will appear in all new solicitations and contracts, prohibits contractors, their employees, and agents, from engaging in a number of practices, including, among others:
- Procuring commercial sex acts during the period of performance of the contract;
- Using forced labor in the performance of the contract;
- Destroying, concealing, confiscating, or otherwise denying access by an employee to the employee’s identity or immigration documents;
- Use of misleading or fraudulent recruiting practices;
- Use of recruiters who do not comply with local labor laws in the country in which the recruiting takes place;
- Charging employees recruitment fees;
- Failure to provide return transportation or pay for the cost of return transportation upon the end of employment for employees who are not nationals of the country in which the work is taking place and who were brought to that country for the purpose of working on a government contract or subcontract; and
- Providing or arranging housing that fails to meet the host country housing and safety standards
Contractors must notify employees and agents of these requirements, as well as penalties for violations. In addition, contractors must take appropriate action against employees, agents or subcontractors for violations, and must provide immediate notice to the contracting officer and Inspector General of credible evidence from any source of a violation by an employee, agency or subcontractor. Importantly, the new human trafficking requirements must be flowed down to subcontracts at all levels.
More stringent requirements for a compliance plan and certification apply to acquisitions of goods to be acquired outside the United States and services to be performed outside the United States where the estimated value is greater than $500,000. Although the heightened requirements do not apply to commercial off the shelf, or “COTS,” items, if any portion of a contract is for non-COTS items or for services outside the United States with a value more than $500,000, that portion of the contract is covered.
While each compliance plan must be appropriate to the size and complexity of the contract and the nature and scope of the activities, the new FAR provisions contain minimum requirements that every compliance plan must contain, including:
- An awareness program informing employees about the anti-trafficking policy and rules;
- A process for employees to report activity inconsistent with the policy prohibiting trafficking persons;
- A recruitment and wage plan that only permits the use of recruitment companies with trained employees;
- A housing plan that ensures contractor-provided housing meets local housing and safety standards; and
- Procedures to prevent agents and subcontractors at any tier and any dollar value from engaging in trafficking in persons as well as monitor, detect and terminate any agent or subcontractor that has done so.
The contractor must post the relevant components of the compliance plan in the workplace and on its website no later than the start of contract performance.
In addition, the certification provision, found at FAR 52.222-56, Certification Regarding Trafficking in Persons Compliance Plan, requires a contractor to certify prior to award and annually thereafter that: (1) it has implemented an anti-human trafficking compliance plan and corresponding procedures to prevent, monitor and detect human trafficking violations; and (2) it has performed due diligence on its agents and subcontractors and taken remedial actions, if necessary. Because this certification requirement, along with the compliance plan requirement, flows down to subcontracts for goods acquired outside the US or services performed outside the US valued at over $500,000, prime contractors must obtain the certification from subcontractors prior to award and annually thereafter.