On September 26, 2013, the Federal Acquisition Regulation (FAR) Council issued proposed regulations that materially affect contractors’ anti-human trafficking-related obligations under Government contracts. See 78 Fed. Reg. 59,317 (Sept. 26, 2013). Implementing an Executive Order and provisions from the National Defense Authorization Act for Fiscal Year 2013, the FAR Council issued proposed amendments to the FAR that extend the current FAR rules prohibiting human trafficking and augment contractor compliance obligations. Separately, the Department of Defense (DOD) issued proposed rules to the Defense Federal Acquisition Regulation Supplement (DFARS) that add to the FAR’s newly-proposed regulations furthering the Government’s anti-human trafficking goals.
Currently, FAR 22.1700-05, Combatting Trafficking in Persons, and its associated contract clause, FAR 52.222-50 expressly address anti-human trafficking efforts. These provisions prohibit contractors, subcontractors, and their employees from engaging in the trafficking of persons, procuring commercial sex acts, and using forced labor in the performance of a contract. FAR 52.222-50 also imposes notification requirements related to violations of these prohibitions and sets forth potential remedies for violations. The proposed FAR and DFARS rules build on these existing FAR provisions and add further contractor and agency contract administration requirements to combat trafficking in persons and related activities.
The proposed amendments to the FAR expressly prohibit contractors, subcontractors, or their employees from engaging in certain activities, including:
- Misleading or fraudulent recruiting practices;
- Charging employees recruitment fees;
- Withholding an employee's identity documentation;
- Failing to pay transportation costs upon the end of employment under certain circumstances;
- Providing or arranging housing for employees that fails to meet host country housing and safety standards; and
- Failing to provide, if required, an employment contract, recruitment agreement, or similar documents in writing in the employee’s native language.
In contrast to the FAR’s current approach, which prohibits trafficking-related conduct “in the performance of [a] contract,” the proposed rules omit such qualifying language and appear to apply to any federal contractor, subcontractor, or employee, irrespective of whether the prohibited conduct occurred in the performance of a Government contract.
In addition, the proposed amendments to the FAR and DFARS add several compliance-driven requirements applicable to contractors:
- A requirement to notify the contracting officer and the agency inspector general of “any credible information” from “any source” of an allegation of human trafficking;
- A requirement for the contractor to “cooperate fully” in providing reasonable access to contractor facilities and staff to allow the Government to investigate and ascertain compliance with the anti-human trafficking regulations;
- For DOD contracts, a requirement to display specific hotline posters relating to employees’ rights in connection with human trafficking; and
A requirement for a compliance plan for those contracts and subcontracts to be performed outside the U.S. that exceed $500,000 (except those contracts or subcontracts for commercial off-the-shelf items) that requires:
- A trafficking awareness program;
- Limitations on the use of recruitment companies;
- A housing plan if the contractor intends to provide or arrange housing; and
- A plan to prevent subcontractors at “any tier” from engaging in human trafficking.
For those entities that are required to provide a compliance plan, yearly certifications are required certifying that a compliance plan is in place and that, to the best of the contractor’s belief, neither the contractor nor any of its subcontractors have engaged in trafficking activities.
Comments on both of the proposed rules are due on or before November 25, 2013