On September 26, 2013, the Department of Defense, General Services Administration and the National Aeronautics and Space Administration published a proposed rule in the Federal Register seeking to amend the Federal Acquisition Regulation (“FAR”) to implement recent mandates aimed at stemming human trafficking. In addition to codifying the current zero-tolerance policy against human trafficking, FAR subpart 22.17 would impose additional requirements on all Government contractors and subcontractors for ensuring awareness, compliance and enforcement of this policy.
The proposed rule prohibits federal contractors, contractor employees, subcontractors and subcontractor employees from engaging in any activities related to human trafficking, such as forced labor and prostitution. To this end, the rule would prohibit the following activities in connection with all Government contracts: (1) denying an employee access to his/her identity or immigration documents; (2) using misleading or fraudulent recruitment practices or charging recruitment fees; (3) providing or arranging housing that fails to meet the host country’s housing and safety standards; and (4) failing to provide return transportation or requiring payment for the cost of return transportation for certain employees.
For contracts that are not solely for commercially available off-the-shelf items and where a portion of the contract will be performed overseas, the contractor or successful offeror will be required to develop a compliance plan and issue a certification of compliance at the time the contract is awarded and annually thereafter. The requirements of a compliance plan and certification apply to all subcontracts where the value of the services provided and/or supplies acquired outside the United States exceeds $500,000.
The proposed rule mandates that the contractor compliance plans include “procedures to prevent agents and subcontractors at any tier from engaging in trafficking in persons, and to monitor, detect, and terminate any agents, subcontractors, or subcontractor employees that have engaged in such activities.” To this end, contractors will be required to certify that they have implemented their compliance plan and that, to the best of their knowledge, (1) neither the contractor nor any of its agents, subcontractors or their agents are engaged in human trafficking activities and (2) if abuses have been found, appropriate remedial and referral actions have been taken.
Potential remedies in event of a violation include: (1) removal of employees involved in the allegations from the contract; (2) termination of subcontracts; (3) suspension of contract payments; (4) withholding of award fees; (5) refusal to exercise contract options; (6) termination; or (7) suspension or debarment. Additionally, the Government contracting officer will be required to enter any violations in the Federal Awardee Performance and Integrity Information System.