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Focus on Regulation

New Executive Order Mandates FAR Changes to Implement Human Trafficking Protections

On September 25, President Obama unveiled a new executive order which requires changes to the Federal Acquisition Regulation (“FAR”) to prohibit federal contractors, contractor employees, subcontractors, and their employees from engaging in activities related to human trafficking, as defined in the Trafficking Victims Protection Act of 2000 (“TVPA”). The order states that “[a]s the largest single purchaser of goods and services in the world, the United States Government bears a responsibility to ensure that taxpayer dollars do not contribute to trafficking in persons.”

Among other things, the executive order demands FAR amendment to include prohibitions on the following:

1. Use of misleading or fraudulent recruitment practices, such as failing to disclose basic information or making material misrepresentations regarding the key terms and conditions of employment to potential employees (including wages, benefits, work location, costs to the employee, or the hazardous nature of the work);

2. Charging recruitment fees to employees;

3. Destruction, concealment, confiscation, or denial of access by an employee to that employee’s identification documents (such as passports or drivers’ licenses);

4. Failure to pay return transportation costs upon the end of employment for an employee who is not a national of the country in which the work is taking place (unless limited exceptions apply).

Additionally, the FAR Council must draft a new clause for inclusion in solicitations and contracts where the estimated value of the work to be performed outside the US exceeds $500,000. This clause will require contractors and their subcontractors to

1. Maintain a compliance plan that includes an awareness program, a process for reporting violations of the TVPA, a recruitment and wage plan, a housing plan (where necessary), and procedures to prevent any subcontractor from engaging in trafficking in persons.

2. Certify as to the maintenance of the compliance plan and that “neither it nor any of its subcontractors” has engaged in activities prohibited by the TVPA. If violations have occurred, the contractor or subcontractor must certify that it has taken “appropriate remedial and referral actions.”

The order is effective immediately, and the FAR Council and other involved governmental entities (including the Office of Federal Procurement Policy) have 180 days to implement amendments to the FAR. The requirements will apply to all solicitations issued on or after the effective date of the FAR changes.