Federal Acquisition Regulation; Ending Trafficking in Persons, 4967-4992 [2015-01524]

Agencies

• DEPARTMENT OF DEFENSE
• General Services Administration
• National Aeronautics and Space Administration

[Federal Register Volume 80, Number 19 (Thursday, January 29, 2015)]
[Rules and Regulations]
[Pages 4967-4992]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-01524]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 2, 9, 12, 22, 42, and 52

[FAC 2005-80; FAR Case 2013-001; Item I; Docket 2013-0001; Sequence No. 
1]
RIN 9000-AM55


Federal Acquisition Regulation; Ending Trafficking in Persons

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to strengthen protections against 
trafficking in persons in Federal contracts. These changes are intended 
to implement Executive Order (E.O.) 13627, entitled ``Strengthening 
Protections Against Trafficking in Persons in Federal Contracts,'' and 
title XVII of the National Defense Authorization Act for Fiscal Year 
2013.

DATES: Effective: March 2, 2015.
    Applicability: Contracting officers shall modify, on a bilateral 
basis, existing indefinite-delivery/indefinite-quantity contracts to 
include the clause for future orders, if additional orders are 
anticipated.

FOR FURTHER INFORMATION CONTACT: Ms. Cecelia L. Davis, Procurement 
Analyst, at 202-219-0202, for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at 202-501-4755. Please cite FAC 2005-80, FAR Case 2013-
001.

SUPPLEMENTARY INFORMATION:

I. Table of Contents

I. Table of Contents
II. Background
III. Discussion and Analysis
    A. Summary of Significant Changes to the Proposed Rule
    B. Analysis of Public Comments
    Introduction: General Support for the Rule
    1. Applicability
    2. Definition or Clarification of Terms (FAR 22.1702, 22.1703, 
52.222-50, and 52.222-56)
    3. Policy Prohibitions (FAR 22.1703(a) and 52.222-50(b))
    4. Compliance Plan/Certification (FAR 22.1703(d) (now at 
Paragraph (c)), 52.222-50(h), and 52.222-56)
    5. Full Cooperation (FAR 22.1703(d) and 52.222-50(g))
    6. Violations and Remedies (FAR 22.1704 and 52.222-50(e) and 
(f))
    7. Posting in the Federal Awardee Performance and Integrity 
Information System (FAPIIS)
    8. Harmonize With Contractor Code of Business Ethics and Conduct 
(FAR Subpart 3.10 and 52.203-13)
    9. Training
    10. Other
    11. Paperwork Reduction Act
    12. Regulatory Flexibility
IV. Determinations
V. Executive Orders 12866 and 13563
VI. Regulatory Flexibility Act
VII. Paperwork Reduction Act

II. Background

    The United States has long had a policy prohibiting Government 
employees and contractor personnel from engaging in trafficking in 
persons activities, including severe forms of trafficking in persons. 
``Severe forms of trafficking in persons'' is defined in section 103 of 
the Trafficking Victims Protection Act of 2000 (TVPA) (22 U.S.C. 7102) 
to include the recruitment, harboring, transportation, provision, or 
obtaining of a person for labor or services, through the use of force, 
fraud, or coercion for the purpose of subjection to involuntary 
servitude, peonage, debt bondage, or slavery, and sex trafficking.
    FAR subpart 22.17 strengthens the efficacy of the policy 
prohibiting trafficking in persons by codifying trafficking-related 
prohibitions for Federal contractors and subcontractors. It provides 
for the use of a clause that requires contractors and subcontractors to 
notify Government employees of trafficking in persons violations and 
puts parties on notice that the Government may impose remedies, 
including termination, for failure to comply with the requirements. 
Recent studies of trafficking in persons, including findings made by 
the Commission on Wartime Contracting and agency Inspectors General, as 
well as testimony provided at congressional hearings, have identified a 
need for additional steps to prohibit trafficking in Government 
contracting--including regulatory action.
    E.O. 13627, entitled ``Strengthening Protections Against 
Trafficking in Persons in Federal Contracts,'' issued on September 25, 
2012 (77 FR 60029, October 2, 2012), and title XVII, entitled ``Ending 
Trafficking in Government Contracting,'' of the National Defense 
Authorization Act (NDAA) for Fiscal Year (FY) 2013 (Pub. L. 112-239, 
enacted January 2, 2013) create a stronger framework to eliminate 
trafficking in persons from Government contracts. The E.O. and statute 
provide new policies applicable to all contracts that prohibit 
contractors and subcontractors from engaging in prohibited practices 
such as 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; and providing or arranging housing that 
fails to meet the host country housing and safety standards. 
Additionally, the E.O. and statute provide new policies for contracts 
performed outside the United States that exceed $500,000, including a 
requirement for a compliance plan and annual certifications.
    Contractors and subcontractors are reminded of their 
responsibilities associated with H-1B, H-2A, and H-2B Programs or 
Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and 
should act accordingly. Nothing in this rule shall be construed to 
permit a contractor or subcontractor from failing to comply with any 
provision of any other law, including, for example, the requirements of 
the MSPA, as amended, 29 U.S.C. 1801, et seq. and the Immigration and 
Nationality Act, in particular nonimmigrants entering the country under 
8 U.S.C. 1101(a)(15)(H)(i)(b) (``H-1B Program''), 8 U.S.C. 
1101(a)(15)(H)(ii)(a) (``H-2A Program''), or 8 U.S.C. 1101(a)(15)(H) 
(ii)(b) (``H-2B Program''). The requirements of these programs were not 
incorporated into the FAR because this rule is implementing a specific 
statute and E.O. which are separate and apart from the immigration laws 
cited and because all of the responsibilities that employers have under 
H-1B, H-2A, and H-2B Programs or MSPA are already enumerated in law and 
separate regulations.
    The Federal Acquisition Regulatory Council, on March 5, 2013, 
sponsored a public meeting and request for comment on the 
implementation of E.O. 13627 and title XVII of the NDAA for FY 2013. 
Feedback from that meeting has been

[[Page 4968]]

used to help inform the development of regulations and other guidance 
to implement the E.O. and new statutory provisions and to strengthen 
existing prohibitions on trafficking in persons.
    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 78 FR 59317 on September 26, 2013, to implement E.O. 13627 
and title XVII of the NDAA for FY 2013. This final rule amends the FAR 
to promote the United States policy prohibiting trafficking in persons 
activities and creates a stronger framework and additional requirements 
for awareness, compliance, and enforcement--to prevent trafficking in 
persons in Government contracts. Twenty respondents submitted comments 
on the proposed rule.

III. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the public comments in the 
development of the final rule. A discussion of the comments is provided 
as follows:

A. Summary of Significant Changes to the Proposed Rule

     Revised FAR 9.104-6, Federal Awardee Performance and 
Integrity Information System (FAPIIS), to notify contractors that any 
information about a subcontractor is posted to the record of the prime 
contractor; however, prime contractors will have the opportunity to 
post in FAPIIS any mitigating factors or information.
     Revised FAR 22.1701, Applicability and 52.222-50, 
Combating Trafficking in Persons, to clarify the applicability of the 
subpart.
     Revised FAR 22.1702, Definitions, and FAR 52.222-50, 
Combating Trafficking in Persons, to add the definitions of ``agent,'' 
``subcontract,'' and ``subcontractor.''
     Revised FAR 22.1703, Policy, and FAR 52.222-50, Combating 
Trafficking in Persons, to--
    [cir] Require contractors to use recruiters that comply with local 
labor laws of the country in which the recruiting takes place;
    [cir] Require contractors to provide employees with a work document 
if it is required by law or contract;
    [cir] Clarify the certification and compliance plan requirements, 
including the posting and submission of the plan;
    [cir] Clarify contractor and subcontractor requirements for 
disclosing information to the agency Inspector General and cooperating 
fully in an investigation; and
    [cir] Remove the requirement for contractors to interview employees 
suspected of being victims or witnesses of trafficking in persons. 
Clarify the requirement to provide them return transportation.
     Revised FAR 22.1704, Violations and remedies, and FAR 
52.222-50 to--
    [cir] Clarify contracting officer actions upon receipt of credible 
information of a trafficking in persons violation;
    [cir] Provide for an administrative proceeding upon receipt of a 
report from the agency Inspector General that provides support for the 
allegations with regard to violation of trafficking in person policies;
    [cir] Clarify in FAR 22.1704 that if the administrative proceeding 
is conducted by the suspending and debarring official, he or she may 
use the suspension and debarment procedures in FAR subpart 9.4, and 
continues to have suspending and debarring authority;
    [cir] Provide that imposition of remedies by the contracting 
officer shall occur after a final determination that an allegation is 
substantiated, although the suspending and debarring official has the 
authority, at any time before or after the final determination as to 
whether the allegations are substantiated, to use the suspension and 
debarment procedures in FAR subpart 9.4 to suspend, propose for 
debarment, or debar the contractor, if appropriate; and
    [cir] Clarify mitigating and aggravating factors that the 
contracting officer may consider, including whether the contractor has 
taken appropriate action for violations such as reparation to victims 
and whether the contractor failed to abate a violation or enforce 
requirements of its compliance plan (also affects FAR 52.222-50(f)).
     Revised FAR 42.1503(h) to--
    [cir] Require entry of substantiated allegations into FAPIIS; and
    [cir] Clarify that the information to be posted in FAPIIS in 
accordance with FAR 42.1503(h)(1) will be available to the public.
     Revised FAR 52.222-50 to--
    [cir] Require contractors to notify agents as well as employees 
about the policy prohibiting trafficking in persons described in FAR 
52.222-50(b), and actions that will be taken for violations;
    [cir] Add a State Department Web site link for further information, 
including examples of awareness programs;
    [cir] Add a requirement for a compliance plan to include making 
available to all workers the hotline number for the Global Human 
Trafficking Hotline, and its email address;
    [cir] Clarified the contractor's responsibility to post the 
compliance plan at the worksite or on its Web site.

B. Analysis of Public Comments

Introduction: General Support for the Rule
    Comment: Half of the respondents expressed explicit support for the 
proposed rule. For example, one respondent expressed its continued 
support for the Government's efforts to eradicate trafficking in 
persons and modern day slavery. Another respondent stated that the 
proposed amendments to the FAR are ``overall great steps to ensure the 
protection of potential victims of trafficking.''
    Response: Noted.
1. Applicability
a. Applicability to Commercial Items and COTS Items
    Comment: Several respondents commented on the applicability of the 
rule to commercial items and commercially available off-the-shelf 
(COTS) items. Respondents also commented on inclusion of FAR 52.222-50 
in all solicitations and contracts, and inclusion in FAR 52.212-5 for 
acquisition of commercial items. One respondent noted that the proposed 
rule would amend FAR 12.301 to add FAR 52.222-56 in all solicitations 
prescribed in FAR 22.1705(b), including those for commercial items and 
COTS items. According to the respondent, this is a blanket application 
of the certification requirements, particularly to COTS items 
domestically.
    Response: The rule does apply to the acquisition of commercial 
items, including COTS items. However, COTS items are exempt from the 
requirements for a compliance plan and the certification. Although the 
clause at 52.222-50 is included in each solicitation and contract, 
including for the acquisition of COTS items, and flows down to all 
subcontracts, COTS items are exempt from the compliance plan and 
certification requirements.
    The provision at FAR 52.222-56 is only included in solicitations 
that may meet the requirement for applicability of the certification 
requirement, i.e., it is possible that at least $500,000 of the 
contract may be performed outside the United States and the acquisition 
is not entirely for COTS items. The provision has been revised in the 
final rule to clarify that it only imposes a requirement on the 
apparently successful offeror if any portion of the contract is for 
purchase of supplies, other than COTS items, to be acquired outside the 
United States or services to

[[Page 4969]]

be performed outside the United States, and that portion of the 
contract has an estimated value that exceeds $500,000.
    The Councils note that E.O. 13627 applies to all contracts except 
at Sec. 2, paragraph (a)(3) where it expressly specifies that the 
requirements in section 2(a)(2) of the E.O. (relating to compliance 
plan and certification) shall not apply to contracts or subcontracts 
for COTS items. The Councils also note that both title XVII of the NDAA 
for FY 2013 and 22 U.S. Code Chapter 78--Trafficking Victims 
Protection, are silent on the applicability of the statute to 
commercial contracts in general and COTS items in particular.
    In accordance with 41 U.S.C. 1906 and 1907, the FAR Council has 
determined that it is not in the best interest of the Government to 
exempt contracts for the acquisition of commercial items from the 
requirements of title XVII of the NDAA for FY 2013, and the 
Administrator for Federal Procurement Policy has determined that it is 
not in the best interest of the Government to exempt acquisitions of 
COTS items from the requirements of title XVII of the NDAA for FY 2013, 
except for the requirements for certification and a compliance plan.
    Comment: Several respondents recommended eliminating the COTS item 
exclusion or ensuring that the exclusion does not apply to commercial 
services, only to supply items, because this is where the unskilled 
labor force is most vulnerable.
    Response: By definition, COTS items do not include services (see 
FAR 2.101).
    Comment: One respondent stated that the exemptions for contracts 
for COTS items could be interpreted to apply to base-support 
operations, which is a pernicious source of human trafficking in 
Government contracting.
    Response: Base-support operations contracts are not primarily COTS 
items. COTS items are a small sub-set of commercial items and do not 
include services. Any COTS items on a contract for base-support 
services will only be exempt from the requirements for a compliance 
plan and certification.
b. Thresholds and Flowdown Requirement (FAR 52.222-50(i))
    Comment: Two respondents asked for clarification of the flowdown to 
subcontracts. The respondents objected to application of the flowdown 
on very low dollar subcontracts, and recommended application only above 
the micro-purchase threshold.
    One respondent pointed out that the clause must be flowed down at 
any dollar level, but questioned whether the paragraph (h) requirements 
for a certification and compliance plan only apply if the portion of 
the contract performed overseas exceeds $500,000. One respondent 
recommended that contractors and subcontractors should be required to 
have a compliance plan and certify if the value of the contract or 
subcontract exceeds $500,000, even if only a portion is conducted 
outside the United States.
    Some respondents were concerned about flowing down the clause at 
FAR 52.222-50 to subcontracts at every tier, regardless of dollar 
value, as being too burdensome.
    One respondent objected to the subcontract certification flowdown 
being set at $500,000, and recommended that the requirement apply to 
all service contracts that exceed $25,000 and flow down to all 
subcontracts. The respondent pointed out that there are service 
subcontracts overseas which are below the $500,000 level, which the 
respondent recommends be covered. Another respondent noted that 
contractors would break subcontracts into smaller dollar amounts to 
avoid the $500,000 threshold. The respondent recommended that the 
requirement apply to all contracts and subcontracts exceeding $500,000 
if any portion is conducted outside the United States.
    Response: The thresholds are set in the statute and the E.O. The 
final rule at FAR 52.222-50(h)(1) clarifies that the paragraph 
(requiring a compliance plan and certification) applies to any portion 
of the contract that (i) is for supplies, other than COTS items, 
acquired outside the United States, or services to be performed outside 
the United States, and (ii) has an estimated value that exceeds 
$500,000. The flow-down to subcontracts at FAR 52.222-50(i) has a 
similar clarification. For subcontracts that do not require a 
compliance plan or certification, the clause expresses how the policy 
prohibiting trafficking in persons works (e.g., no recruitment fees, no 
confiscating passports, no material misrepresentations about salary and 
work location), and requires full cooperation with agency 
investigations. With these clarifications, the Councils do not consider 
these anti-trafficking steps to be overly burdensome.
c. Editorial Comments on Applicability
    Comment: One respondent recommended revising FAR 22.1701 for 
clarity, deleting the commas after the phrase ``value of the supplies 
to be acquired'' and after the phrase ``services required to be 
performed.''
    Response: The section has been restructured for clarity, and a 
corresponding change made at FAR 52.222-50(i).
    Comment: One respondent recommended that FAR 22.1703(d) should 
read: ``Except for contracts and subcontracts for commercially 
available off-the-shelf items, where the estimated value of the 
supplies to be acquired or the services required to be performed under 
the contract outside the United States exceeds $500,000--'', and then 
delete the applicability language in FAR 22.1703(d)(1).
    Response: The final rule has been revised at former paragraph 
(d)(1) (now paragraph (c)(1)) to clarify its applicability to the 
apparent successful offeror.
    Comment: One respondent noted that the phrase ``if applicable'' at 
FAR 52.222-50(i)(2) is ambiguous and should be clarified to explain 
whether a contractor should require the subcontractor compliance plan 
only in support of a CO's request or should the contractor always 
require submittal of the plan when the plan is ``applicable.''
    Response: The text at FAR 52.222-50(i)(2) has been clarified, that 
if any subcontractor is required by this clause to submit a 
certification, the Contractor shall require submission prior to the 
award of the subcontract and annually thereafter.
d. Foreign Military Sales
    Comment: One respondent asked if foreign military sales would be 
covered.
    Response: The FAR does not address foreign military sales. Under 
the Defense Federal Acquisition Regulation Supplement, the contracting 
officer is required to conduct foreign military sale acquisitions under 
the same acquisition and contract management procedures used for other 
defense acquisitions (see 48 CFR 225.7301(b)).
2. Definition or Clarification of Terms (FAR 22.1702, 22.1703, 52.222-
50, and 52.222-56)
a. ``Abuses''
    Comment: One respondent recommended clarifying the term ``abuses'' 
as it is used at FAR 22.1703(d)(1)(ii), 52.222-50(h)(5)(ii)(B) and 
52.222-56 by adding after ``abuses'' the explanatory phrase ``relating 
to any of the prohibited activities identified in FAR 52.222-50(b).'' 
The respondent also noted that the term is used in the E.O. but not 
further defined and is not used in the statute.
    Response: The final rule has been revised to incorporate this 
recommendation. (Note that paragraph FAR 22.1703(d) is now paragraph 
(c).)

[[Page 4970]]

b. ``Agent''
    Comment: Several respondents recommended defining the term 
``agent''. One respondent recommended use of the definition in the 
clause at FAR 52.203-13, Contractor Code of Business Ethics.
    Response: The final rule incorporates at FAR 22.1702 and FAR 
52.222-50 the definition of ``agent'' used in 52.203-13. The term has 
not been added to FAR 2.101, because this definition is not necessarily 
applicable to the term as it is used in multiple locations throughout 
the FAR, without definition.
c. ``Due Diligence''
    Comment: Some respondents requested clarification and/or definition 
of the term ``due diligence'' at FAR 22.1703(d)(3), 52.222-
50(h)(5)(ii), 52.222-56.
    Response: The Councils note that the level of ``due diligence'' 
required depends on the particular circumstances. This is a business 
decision, requiring judgment by the contractor.
d. ``Procurement of Commercial Sex Act''
    Comment: One respondent requested more precise definitions of 
``procurement'' and ``sex act.''
    Response: The term ``commercial sex act'' is defined in FAR 22.1702 
and the prohibition of its procurement was not added or affected by the 
changes in this case but was already in FAR 22.1703(a)(2) and 52.222-
50(b)(2) since 2006, based on 22 U.S.C. 7102 and 7104. The Councils do 
not believe that additional definitions are necessary.
e. ``Subcontract''
    Comment: One respondent requested a definition of ``subcontract,'' 
and recommended use of the definition at FAR 44.101.
    Response: This definition has been incorporated in the final rule, 
along with the definition of ``subcontractor,'' consistent with the 
definition of those terms at FAR 3.1001.
3. Policy Prohibitions (FAR 22.1703(a) and 52.222-50(b))
a. Identity or Immigration Documents (FAR 22.1703(a)(4) and 52.222-
50(b)(4))
    Comment: One respondent expressed strong support for the 
requirements of FAR 22.1703(a)(4), which prohibits contractors from 
destroying, concealing, confiscating, or otherwise denying access by an 
employee to the employee's identity or immigration documents. The 
respondent noted that this requirement gives the employee greater 
autonomy while working on the contract, and reduces the worker's 
vulnerability to possible exploitation.
    Response: Noted.
    Comment: One respondent recommended conducting spot checks on and 
off-site of contractor workplaces in Middle Eastern countries to ensure 
that contractor employees have both their civilian ID and passports.
    Response: The final rule requires contractors to cooperate fully in 
providing reasonable access to their facilities and staff (both inside 
and outside the United States) to allow contracting agencies and other 
responsible enforcement agencies to conduct audits, investigations, or 
other actions to ascertain compliance with the Trafficking Victims 
Protection Act (22 U.S.C. chapter 78), E.O. 13627, or any other 
applicable law or regulation establishing restrictions on trafficking 
in persons. This general auditing and compliance requirement allows an 
agency to evaluate workplace conditions and suspected trafficking in 
persons violations within the terms of the contract where it identifies 
the greatest needs.
    Comment: One respondent recommended creating a database of owners 
and managers of companies that have been withholding passports, and 
prohibiting further Government business with those companies in 
violation.
    Response: FAR 22.1704(b) requires contracting officers to notify, 
in accordance with agency procedures, the agency Inspector General, the 
agency debarring and suspending official, and if appropriate, law 
enforcement officials with jurisdiction over the alleged offense, of 
credible information regarding violations. The section also requires 
the contracting officer to include in FAPIIS any allegation 
substantiated by the agency Inspector General in its report, after a 
final agency determination (see FAR 22.1704(d)). This requirement 
ensures that violations are catalogued, and that the agency suspending 
and debarring official is aware of all suspected violations.
b. Recruitment Practices (FAR 22.1703(a)(5) and 52.222-50(b)(5))
i. Basic Information
    Comment: One respondent commented that the proposed language makes 
any failure to provide ``basic information'' about ``key'' employment 
terms a violation of the U.S. Government trafficking in persons policy, 
which could potentially apply to employment matters with no connection 
to trafficking in persons.
    Response: Failure to provide basic information and making material 
misrepresentations are examples of the overarching violation of using 
misleading or fraudulent recruiting practices. E.O. 13627 section 
2(a)(1)(A)(i) creates a duty to inform prospective employees of basic 
employment information and provides remedies if that duty is breached. 
It also provides remedies when employers make material 
misrepresentations to prospective employees of key terms and 
conditions. FAR 22.1703(a)(5) mirrors language in E.O. 13627 section 
2(a)(1)(A)(i) and 22 U.S.C. 7104(g)(iv)(III).
    Comment: One respondent sought clarification of the requirement to 
provide ``basic information'' about the ``hazardous nature of the 
work'' at FAR 22.1703(a)(5) and 52.222-50(b)(5). Specifically, the 
respondent requested guidance on the level of detail required.
    Response: The level of detail sufficient to comply with the rule 
will vary based upon individual circumstances associated with the work 
environment.
    Comment: One respondent suggested that the terms ``misleading or 
fraudulent'' taken from E.O. 13627 section 2(a)(1)(A)(i) be replaced 
with the terms ``materially false or fraudulent pretenses'' from 22 
U.S.C. 7104(g)(iv)(III). The respondent notes that the terms 
``misleading or fraudulent'' are broader than the terms ``materially 
false or fraudulent pretenses.''
    Response: The Councils agree that the terms ``misleading or 
fraudulent'' are broader than the terms ``materially false or 
fraudulent pretenses,'' with the scope of the former terms encompassing 
the latter. With the objective of implementing both the E.O. and the 
statutory provisions, the terms ``misleading or fraudulent'' are 
retained. Since the terms from the E.O. are broader than the terms used 
in the statute, use of the terms from the E.O. will encompass 
situations contemplated by both documents thereby effectively 
implementing both provisions.
ii. Hire Contractors Directly
    Comment: One respondent recommended encouraging prime contractors 
to hire workers directly, including third country nationals, and a 
preference should be given to bidders who can prove they do so. 
According to the respondent, this would create an employee-employer 
relationship creating greater responsibility.
    Response: The Federal Government cannot require prime contractors 
to hire workers directly for their company. See

[[Page 4971]]

section III.B.9. of this preamble for available training related to 
hiring practices.
iii. Require Licensed Recruiters
    Comment: Several respondents recommended incorporating the 
requirement for licensed recruiters into the final rule. One respondent 
stated that requiring a plan that includes the identity of recruitment 
companies being used and proof that the company and/or recruiter is 
licensed under laws of the country of recruitment could be vital to 
identifying potential persons involved in human trafficking and 
preventing further victims. Another respondent recommended prohibiting 
the use of agents, subagents or consultants or anyone other than a bona 
fide employee of the recruiting company to recruit workers. The 
respondent also recommended using only licensed recruiters. Another 
respondent recommended that FAR 52.222-50(h)(3)(iii) should be amended 
to require licensed recruiters be used by contractors, and to stipulate 
that no agents or subagents of those recruiters may be utilized. 
According to the respondent, the current rule requires only trained 
recruiters, which does not go far enough.
    Response: The final rule has been revised to specify that 
recruiters must comply with local labor laws of the country in which 
the recruiting takes place. The statute and E.O. do not specifically 
require licensing of recruiters. Practices regarding recruiting vary 
greatly from country to country.
iv. Editorial Comment on Recruitment Practices
    Comment: One respondent recommended adding ``or offering 
employment'' after ``during the recruitment of employees'' in FAR 
22.1703(a)(5) and 52.222-50(b)(5) to better integrate E.O. 13627 
section 2(a)(1)(A)(i) and 22 U.S.C. 7104(g)(iv)(III). The respondent 
further recommended moving the place of the revised phrase to come 
after a modified lead-in phrase ``Using misleading or fraudulent 
practices.''
    Response: The Councils accepted the recommendations and have 
incorporated the changes into the final rule.
c. Recruitment Fees (FAR 22.1703(a)(6) and 52.222-50(b)(6))
    Comment: Several respondents supported the unequivocal stance of 
prohibiting charging employees recruitment fees. One respondent 
commented that the final rule should align with the language in the 
statute and prohibit ``charging unreasonable placement or recruitment 
fees.''
    One respondent recommended defining the term ``recruitment fees'' 
using the definition of recruitment costs found at FAR 31.205-34.
    Another respondent recommended prohibiting other types of fees 
being charged to the employee such as travel, hiring, administrative, 
handling, or any other types of fees assessed against the employee.
    Response: In order to comply with both the E.O. and the statute, 
the rule applies the most stringent requirement (i.e., no recruitment 
fees). The Councils note public support for prohibiting employees from 
being charged recruitment fees. Prohibiting recruitment fees for 
employees is a key anti-trafficking in persons principle, since being 
charged any recruitment fees increases workers' vulnerability to debt 
bondage or involuntary servitude. Additionally, monitoring and 
enforcing ``unreasonable'' recruitment fees is burdensome for Federal 
agencies and contractors and requires evidence to evaluate whether the 
amount of money that an employee is charged is ``reasonable.''
    The rule prohibits charging employees any recruitment fees, not 
just those recruitment fees that are considered allowable costs under a 
contract. Expanding the types of prohibited fees beyond recruitment 
fees is beyond the scope of this case.
    Comment: One respondent was concerned that the prohibition of 
certain kinds of fees may be construed to prohibit program fees through 
the State Department Exchange Visitor Program, which is a fee-for-
service program.
    Response: The E.O. prohibits recruitment fees charged by employers, 
contractors, and/or subcontractors, which are different than program 
fees. Program fees for the J nonimmigrants (i.e., students, exchange 
visitors, and their dependents) are fees mandated by Congress to 
support the program office and the Student and Exchange Visitor Program 
automated system (i.e., the Student and Exchange Visitor Information 
System). This system is used to track students and exchange visitors 
while in the United States. The Department of State collects these 
program fees when it redesignates program sponsor organizations, 
usually every two years.
    Recruitment fees are quite different from program fees. 
Recruitment/placement/housing fees are payments made by individual 
exchange visitors to the sponsor organization or a related third party 
organization for services provided to the exchange visitor during his/
her program. The Department of State took action in 2012 to address 
weaknesses in the Summer Work Travel program by, among other things, 
publishing new regulations to implement safeguards that expand the list 
of ineligible positions, enhancing oversight and vetting of sponsors 
and third parties, and better defining cultural activities. Notably, 
the Department of State has conducted more than 1500 site visits in the 
past two years, required comprehensive orientation materials for 
participants, and has made available a 24-hour toll free helpline. The 
Department of State continues to examine ways to further strengthen the 
program. As part of this effort, the Department of State through 
regulation requires sponsors to submit annual participant price lists 
each year, breaking down the costs that exchange visitors must pay to 
both sponsors and foreign third party entities to participate in the 
program.
d. Return Transportation (FAR 22.1703(a)(7) and 52.222-50(b)(7))
    Comment: One respondent recommended adding at FAR 22.1703(a)(7) the 
statutory modifier as follows: ``if requested by the employee at the 
end of employment, failing to provide return transportation . . .''.
    Response: If the employer brought the employee into a country where 
the employee is not a national, then the employer cannot leave the 
employee in that country at the end of employment. Unless an exception 
applies (see FAR 22.1703(a)(7)(ii) and 52.222-50(b)(7)(ii)), the 
employer is required to provide the employee return transportation; 
this is not contingent on the employee requesting it. For employees not 
aware of their right to return transportation, the concern is that the 
employer would use that as an excuse to claim the employee did not 
formally request return transportation. The rule allows an employee to 
refuse return transportation, if that employee is otherwise allowed to 
stay in the country; however, the rule does not state that employees 
who do not request transportation are not entitled to it.
    Comment: Two respondents sought clarification on the conditions 
regarding the ``provide or pay'' provision at FAR 22.1703(a)(7): Would 
the contractor be required to ``pay'' only at the end of the period of 
employment? What mode of transportation is required? Must the payment 
be in the form of a non-transferrable and non-refundable ticket? Can it 
be in cash in the currency of the country where the work is being 
performed or can it be a voucher for the employee to use as they see 
fit?

[[Page 4972]]

Referencing FAR 31.205-35, which permits contractors to recover 
relocation costs on Government contracts, would an employee's return 
relocation be allowable even if the employee resigns, is terminated, or 
the project unexpectedly ends within 12 months of hire?
    Response: The contractor must make a reasonable decision on whether 
to provide or pay for transportation and then what mode of 
transportation to provide or how to reimburse an employee for 
transportation. This decision should be based on any existing 
requirements to provide or pay for return transportation for temporary 
nonimmigrant workers, the contractor's established travel policies and 
procedures, the modes and cost of transportation available, and other 
factors related to the unique circumstances for the employees, the 
location they work in and the country to which they are returning. 
There are no exemptions to the ``provide'' or ``pay'' requirements of 
the rule for employees who are terminated or who want to leave before 
one year of employment. While FAR 31.205-35, Relocation costs, 
addresses relocation costs incident to the permanent change of assigned 
work location, the transportation costs referred to in the rule are not 
the same as relocation costs in the FAR. The rule refers to travel only 
to and from the place of employment. It does not include all the costs 
listed in FAR, such as moving family and furnishings, real estate 
sales, etc. The rule puts no limits on the length of employment or 
whether the employment was ended for cause. Indeed, for an unscrupulous 
employer, these limitations could be used as an excuse not to pay for 
or provide return fare for its employees.
    Comment: One respondent noted that the exemption ``by the Federal 
department or agency providing the contract,'' is only addressed at FAR 
22.1703(a)(7)(ii)(B) and not included in the contract clause at FAR 
52.222-50. Two respondents noted there is no guidance in the regulation 
as to how, when or from whom within the agency such exception is to be 
obtained and that this could create a significant loophole because 
there are no listed criteria that would circumscribe the agency's 
discretion to exempt contractors.
    Response: The exemption has been added to the list of exemptions at 
FAR 52.222-50(b)(7)(ii)(B). By its nature, this exemption is unique to 
individual agencies and their particular situation. Any guidance on the 
use of this exemption should be addressed in individual agency guidance 
and regulations. Agencies may also choose not to use this exemption.
    Comment: Two respondents had questions concerning return 
transportation for victims or witnesses of human trafficking. One asked 
if the country of employment or the U.S. Government will provide the 
means for the victims or witnesses to return to their home countries. 
One respondent states that the rule does not consistently address the 
return of workers to their country of origin. According to the 
respondent, the rule states that contractors merely have to interview 
suspected victims and witnesses prior to repatriation. Elsewhere in the 
rule, the contractors' requirement to provide return transportation or 
costs is waived for victims of or witnesses to trafficking in persons. 
This respondent recommended, because repatriation could be a form of 
retaliation against workers, once a contractor notifies Government 
authorities of suspected trafficking in persons, the contractor should 
first obtain authorization from appropriate Government officials prior 
to repatriating a witness or victim.
    Response: It is beyond the scope of this rule to set requirements 
for an agency or another entity to pay for a victim or witness' return 
transportation or to require prior approval for the repatriation of 
victims or witnesses. However, the rule has been clarified that the 
contractor shall provide the return transportation or pay the cost of 
return transportation in a way that does not obstruct the victim 
services, legal redress, or witness activity. For example, the 
contractor shall also offer return transportation to a witness at a 
time that supports the witness' need to testify. Also, the rule has 
been revised to delete the requirement for interviewing (FAR 52.222-
50(g)(1)(iv)).
e. Housing Arrangement (FAR 22.1703(a)(8) and 52.222-50(b)(8))
    Comment: A respondent recommended adding a requirement to prohibit 
employees from being charged an excess portion of their wages as 
payment for housing. One respondent suggested that such a requirement 
would prevent traffickers from keeping their employees in a perpetual 
state of indebtedness.
    Response: It is beyond the scope of this rule to regulate the costs 
charged for housing. However, the final rule has been modified at FAR 
22.1703(a)(5)(i) and (a)(9) and 52.222-50(b)(5)(i) and (b)(9) to 
require disclosure of housing costs. The employer should provide this 
disclosure during the recruiting process and as part of any required 
work documents, prior to relocation of the employee.
    Comment: A respondent expressed concern that the housing 
requirements established at FAR 22.1703(a)(8) and at 52.222-50(b)(8) 
were inconsistent with the housing plan requirements at FAR 52.222-
50(h)(3)(iv). Specifically, the respondent noted that the clause at FAR 
52.222-50(h)(3)(iv) allows the contractor to explain any variance from 
the host country housing standards, while the language at FAR 
22.1703(a)(8) and 52.222-50(b)(8) does not.
    Response: Following the principle of compliance with the most 
stringent requirement in order to comply with both the statute and the 
E.O., the final rule has been amended at FAR 52.222-50(h)(3)(iv) to be 
consistent with FAR 22.1703(a)(8) and 52.222-50(b)(8) and the statute. 
The statute requires that contractors meet the host country housing and 
safety standards (22 U.S.C. 7104(g)(iv)(V)). It does not provide the 
opportunity for contractors to explain any variances from host-country 
housing standards, even though the E.O. would allow such explanation of 
variance in the housing plan (sec 2(a)(2)(A)(iv)).
    Comment: One respondent recommended deleting the phrase ``housing 
(if employer provided or arranged)'' in FAR 22.1703(a)(5) from the list 
of employment terms and conditions that the contractor may not 
misrepresent or fail to disclose material information about. The 
respondent commented that FAR 22.1703(a)(8) and 52.222-50(b)(8) already 
preclude ``providing or arranging housing that fails to meet the host 
country housing and safety standards,'' rendering the phrase in FAR 
22.1703(a)(5) unnecessary.
    Response: The phrases at FAR 22.1703(a)(5) and 52.222-50(b)(5) 
serve different purposes than the similar phrases at FAR 22.1703(a)(8) 
and 52.222-50(b)(8). The former requirement governs false 
representations during the employee recruitment process, while the 
prohibitions at FAR 22.1703(a)(8) and 52.222-50(b)(8) govern the 
condition and safety of the employee housing arrangements once the 
employee is working on the contract. Therefore, the Councils have 
retained the phrases at FAR 22.1703(a)(5) and 52.222-50(b)(5).
f. Employment Contract (FAR 22.1703(a)(9) and 52.222-50(b)(9))
    Comment: Two respondents recommended always requiring an employment 
contract for workers participating in a Federal contract, and therefore 
removing the qualifying ``if

[[Page 4973]]

required'' language in FAR 22.1703(a)(9). The respondents argued that 
this uniform requirement for a written contract would allow contractors 
to more effectively implement the FAR 22.1703(a)(5) requirement that 
contractors not use misleading or fraudulent recruitment practices.
    Response: Neither the Trafficking Victims Protection Act (22 U.S.C. 
chapter 78), as modified by the NDAA for FY 2013, nor the E.O. require 
a written employment contract or other work documents. The rule has 
clarified that written work documents are mandated only when required 
by law or contract. This provides the contracting officer the option of 
requiring written work documents in situations where the compliance 
provisions contained in this rule do not adequately manage the risk of 
trafficking in persons.
    A written employment contract or other work documents are not a 
panacea to trafficking in persons and may in some circumstances work to 
the detriment of the employee. This situation can arise when verbal 
inducements conflict with written terms and the written terms 
accurately reflect key terms and conditions of employment. Not all 
potential employees are literate, able to fully understand an artfully 
drafted contract, or actually read the entire document before signing 
it. Additionally, compliance monitoring will require additional 
resources and enforcement could be challenging, since failure to 
provide a written employment contract is not one of the listed acts or 
omissions in 22 U.S.C. 7104(g) for which a remedy is provided under 22 
U.S.C. 7104b(c). Employees are afforded the protection of this rule 
whether or not they have a signed employment contract.
    Comment: One respondent recommended that employment contracts 
require disclosure of the following: identity of the employer and 
identity of the person conducting the recruiting on behalf of the 
employer, including any subcontractor or agent involved in such 
recruiting; the period of employment; any withholdings or deductions 
from compensation, whether on behalf of a government, the employer, or 
a third party; any penalties for early termination of employment; and 
if applicable, the type of visa under which the foreign worker is to be 
employed, the length of time the visa is valid, the terms and 
conditions under which this visa may be renewed with a clear statement 
that there is no guarantee that the visa will be renewed, and an 
itemized list detailing the ``significant costs to be charged to the 
employee'' as indicated in FAR 22.1703(a)(5).
    Response: The Trafficking Victims Protection Act (22 U.S.C. chapter 
78) and Executive Order 13627 do not require a written employment 
contract. The list of items for inclusion into work documents is not 
intended to be a comprehensive list. Rather, it is a nonexclusive list 
which contractors are encouraged to expand as needed. The scope and 
specificity of covered terms and conditions will likely vary based on 
factors such as the sophistication of the employee and country in which 
the contract is to be performed. A contract or work document covering 
the employment of a professional from one European Union (EU) country 
in another EU country may not require the same level of detail and 
coverage as a laborer from one developing country employed in a another 
developing country or an area of military operations. Additionally, 
contractors and subcontractors must always comply with any contract or 
disclosure requirements under any other law, including, for example, 
the requirements of the Migrant & Seasonal Agricultural Worker 
Protection Act and the Immigration and Nationality Act, and applicable 
regulations for temporary nonimmigrant workers.
    Comment: One respondent was supportive of the FAR 22.1703(a)(9) 
requirement for written employment contracts when required, but noted 
that one common scam used by traffickers was to give the worker his/her 
contract while either at the airport, on the plane or at the ultimate 
destination. The respondent therefore recommended revising the language 
to include a requirement that the contract be provided to the workers 
at least five days in advance of his/her deployment, thus allowing the 
worker adequate time to make a reasoned and well-informed decision.
    Response: The recommendation is accepted and has been incorporated 
into the final rule.
4. Compliance Plan/Certification (FAR 22.1703(d) (Now at Paragraph 
(c)), 52.222-50(h), and 52.222-56)
a. Positive Support
    Comment: One respondent stated that the certification and 
compliance plan requirements are important for the purposes of adding 
the crucial implementation element to the rule, and are a proactive 
measure for all contractors involved in Federal contracts to 
participate.
    Response: Noted.
b. Compliance Plan Requirements
i. Appropriate to Size and Complexity
    Comment: One respondent stated that the E.O. in one place required 
a compliance plan that was appropriate for the size of the contract, 
but in another place required the plan to include procedures to prevent 
subcontractors ``at any tier'' from engaging in trafficking in persons. 
The respondent pointed out the proposed rule went even further by 
requiring the plan procedures to prevent trafficking in persons ``at 
any tier and at any dollar level.''
    Response: The E.O. was more specific in the place where ``at any 
tier'' language was used. The FAR Council does not consider this to be 
an ambiguity. The clause added the words ``at any dollar level'' to 
clarify that although the lesser-dollar subcontractors are not expected 
to implement a formal plan, they are not allowed to engage in 
trafficking, and the prime contractor and higher-tier subcontractors 
are expected to pay attention to what the lower-tier subcontractors are 
doing. The Federal Government's policy prohibits trafficking in persons 
activities.
    Comment: One respondent noted that section 1703(b) of the NDAA for 
FY 2013 provides that any compliance plan or procedure shall be 
appropriate to the size and complexity of the contract and the nature 
and scope of its activities, including the number of non-U.S. citizens 
expected to be employed and the risk that the contract or subcontract 
will involve services or supplies susceptible to trafficking in 
persons. The respondent stated that this language was missing from the 
FAR 52.222-50 clause and asserted that the language should also appear 
in the FAR 22.1705 prescription.
    Response: The Councils note that this language, from the statute 
and the E.O., does, in fact, already appear in paragraph (h)(2) of 
clause at FAR 52.222-50. It is not appropriate to also include that 
language in the FAR 22.1705 prescription. In accordance with FAR 
drafting principles, the clause prescription is to direct when the 
clause is to be used, not to address the terms the clause contains.
ii. Provide More Guidance
    Comment: One respondent stated that the rule does not establish 
minimum guidelines for the compliance plan, which would make it 
difficult for contractors and subcontractors to know what is a ``good 
plan'', and recommended identifying agency

[[Page 4974]]

experts to provide technical assistance to the contractors.
    Another respondent recommended that the proposed requirement for a 
code of conduct for suppliers should at a minimum require contractors 
to adhere to the international core labor standards and provide decent 
conditions at work, including compensation, hours of work, occupational 
safety and health, industrial hygiene, emergency preparedness, safety 
equipment, sanitation, and access to food and water.
    Response: As noted in FAR 22.1703(d)(5), any compliance plan or 
procedures needs to be appropriate to the size and complexity of the 
contract and the nature and scope of its activities, including the 
number of non-U.S. citizens expected to be employed and the risk that 
the contract or subcontract will involve services or supplies 
susceptible to trafficking in persons. In addition, 52.222-50(h)(3) 
lists the minimum requirements for any compliance plan. The Councils do 
not consider it necessary to state that the contractor should not 
negligently expose its employees to unhealthy or unsafe conditions, 
beyond the requirements already listed in the statute and the E.O.
    Comment: One respondent recommended providing additional guidance 
(either in the final rule or discussion and analysis section) for 
contractors on creating an anti-trafficking in persons compliance plan 
and guidance for contracting officers on what compliance plans should 
include. The respondent also provided detailed proposed guidance on 
assessing the trafficking in persons risk, based on Department of Labor 
and Department of State lists of countries and industries involved in 
trafficking in persons, number of non-United States citizens expected 
to be employed, as well as the skill and labor mix to be used for the 
contracted effort.
    Response: The FAR includes general policies and procedures and does 
not include detailed guidance. The respondent's proposed guidance on 
risk-based compliance plan will be shared with State and Labor 
Departments for their review. The Department of Labor's Office of Child 
Labor, Forced Labor, and Human Trafficking Web site at https://www.dol.gov/ilab/child-forced-labor/index.htm has a Toolkit for 
Responsible Businesses, which contains extensive information and 
guidance on trafficking in persons. This information will be useful to 
contractors and includes a step-by-step process for developing a social 
compliance plan to address forced labor in supply chains. The FAR 
clause at 52.222-50(h)(3) sets forth the minimum requirements for an 
acceptable compliance plan that is appropriate to the size and 
complexity of the contract. Many of the respondent's recommendations 
concerning flow down provisions, compliance plans from subcontractors, 
and review of the plan, are contained in the FAR clause. E.O. 13627 
also requires guidance and training for Federal employees awarding and 
administering contracts subject to anti-trafficking in persons statutes 
and regulations.
    Additionally, the E.O. also called on the President's Interagency 
Task Force to Monitor and Combat Trafficking in Persons member agencies 
to establish a process for identifying industries or sectors where 
there is either a history or evidence of trafficking in persons or 
trafficking-related activities, in the context of Federal contracts 
performed substantially in the United States. In support of this 
effort, the Department of State is collaborating with a non-
governmental organization and leader in supply chain management to 
strengthen protections against trafficking in persons in federal and 
corporate supply chains. The project will collect data and identify 
areas and industries at greatest risk of trafficking in persons in 
global supply chains. It will also develop a tool for businesses to 
analyze the potential risk of trafficking in persons in their supply 
chains and adopt compliance plans that align with the language of the 
E.O. This Interagency Task Force is evaluating and identifying 
industries and sectors with a history of trafficking in persons and 
will publish appropriate safeguards, guidance and compliance assistance 
to prevent trafficking in persons under Federal contracts.
iii. Reporting Requirement
    Comment: Two respondents recommended establishing minimum 
requirements or guidance governing the employee reporting process to 
ensure that the process remains confidential and that employees do not 
fear retaliation.
    Response: The FAR rule outlines the minimum criteria for compliance 
plans. The rule requires a process for employees to report without fear 
of retaliation, but does not specify the process. However, the final 
rule has added the requirement to make available to all employees the 
Global Human Trafficking Hotline phone number and email address.
    Comment: Two respondents expressed concern that contractors might 
dissuade employees from speaking up about trafficking in persons abuses 
and argued that only an independent and confidential complaint 
mechanism would be effective in surfacing abuses. One respondent 
further suggested that the certification of a contractor or 
subcontractor should require identification of how an independent 
complaint mechanism will be operated and by whom.
    Response: FAR clause 52.222-50(h) requires that the contractor's 
compliance plan include a process for employees to report, ``without 
fear of retaliation.'' When the contractor fails in its 
responsibilities, the Government may impose one or more of the 
available remedies as contained in FAR 22.1704 and 52.222-50(e).
    Comment: One respondent recommended that contractors and 
subcontractors be required to provide all workers with the phone number 
(1-888-373-7888), texting number (233733), email address, and Web site 
address for the National Human Trafficking Resource Center (NHTRC) 
hotline posted in a place that is clearly conspicuous and visible to 
workers, and it should be provided in a language understood by workers, 
describing human trafficking and labor exploitation in non-technical 
and accessible ways. Another respondent said that they currently supply 
their employees with appropriate communication means, such as a phone 
number, operable 24/7, by which an employee may inform law enforcement 
authorities regarding their observation of activities that, pursuant to 
their company training program, appear to resemble human trafficking.
    Response: FAR 52.222-50(h)(3) requires that as a part of the 
compliance plan, there be a process for employees to report activity 
inconsistent with the Government's policy prohibiting trafficking in 
persons. A number of Federal agencies provide information through 
posters, pamphlets, and other means to ensure that workers have a way 
to report such activity through specific anti-trafficking in persons or 
anti-exploitation related hotlines or through Office of Inspector 
General hotlines. Several agencies, such as the Department of Justice, 
Department of Homeland Security, and Department of State, also 
publicize the National Human Trafficking Resource Center (NHTRC) 
hotline number including the Department of State's ``Know Your Rights'' 
pamphlet and the Department of Homeland Security's Blue Campaign 
materials. To comply with the rule's mandate of a reporting process, 
the final rule has been revised to require that as part of the 
compliance plan contractors must provide, at a minimum, the Global 
Human Trafficking hotline and its email

[[Page 4975]]

address. However, contractors may also exceed this requirement and 
provide additional ways for employees to report.
iv. Other Requirements
    Comment: One respondent recommended that contractors be required to 
establish and implement, and/or cause subcontractors to establish and 
implement, managerial systems, rules, and procedures to ensure they 
have the ability to guarantee compliance. The respondent further 
recommended that these systems address pricing, order schedules, and 
other purchasing practices that impact suppliers' capacity to comply 
with labor standards.
    Response: The respondent's recommendations go beyond the scope of 
this case. The Councils implemented the requirements of the E.O. and 
statute in the least burdensome manner. The clause at FAR 52.222-50 
establishes the requirements for contractor and subcontractor 
compliance in paragraphs (c), (d), (g), (h) and (i).
v. Contractor/Subcontractor Responsibilities
    Comment: One respondent stated that FAR 22.1703(d)(3) (now (c)(3)) 
fails to differentiate the responsibilities of the contractor and the 
subcontractor. The respondent recommended deleting the duplicative 
coverage for contractors and revising the paragraph as follows: 
``Require the contractor to obtain a certification from each 
subcontractor, prior to award of a subcontract, for work that will be 
subject to the threshold, that the subcontractor (a) has a compliance 
plan that addresses the substantive elements of paragraph (d)(1) and 
(b) after conducting due diligence, either (i) to the best of the 
subcontractor's knowledge and belief neither it nor its agents, has 
engaged in any such activities or (ii) if abuses have been found, the 
subcontractor has taken the appropriate remedial and referral 
actions;''.
    Response: The Councils have rewritten FAR 22.1703(c)(3) to increase 
the clarity in the final rule.
    Comment: One respondent commented that the requirements for 
contractors to cooperate fully with Government officials during audits, 
investigations or other actions, apply to subcontractors.
    Response: Subcontractors are required to cooperate fully with 
Government officials during audits, investigations or other actions, 
see FAR 52.222-50(g). Also, contractors are required to include the 
substance of the clause at FAR 52.222-50 in all of their subcontracts 
(see FAR 52.222-50(i)). As a result, subcontractors are covered by FAR 
52.222-50(g).
vi. Products Included on the E.O. 13126 List
    Comment: One respondent recommended that all suppliers and their 
subcontractors who are supplying goods that contain more than $500,000 
worth of a product included on the E.O. 13126 List produce a compliance 
plan before being awarded a contract.
    Response: The requirement for a compliance plan is based on the 
criteria in the statute and E.O. 13627, which do not provide for 
special treatment of suppliers of products on the List of Products 
Requiring Contractor Certification as to Forced or Indentured Child 
Labor (E.O. 13126 List) (see FAR subpart 22.15, Prohibition of 
Acquisition of Products Produced by Forced or Indentured Child Labor); 
such offerors are already required to submit certifications regarding 
the use of forced or indentured child labor. The apparently successful 
offeror is required by FAR 52.222-56 to submit a certification in 
advance of award regarding the compliance plan. However, the 
contracting officer may consider that buying products on the E.O. 13126 
List presents a risk that the contract or subcontract may involve 
supplies susceptible to trafficking in persons. The contracting officer 
can request a copy of the compliance plan at any time after contract 
award.
c. Communication
    Comment: One respondent provided feedback on the question 
concerning a requirement for facilitating regular contact with family 
and embassies. The respondents suggested that workers who are able to 
keep in touch with families and embassies are less likely to be 
trafficked. The respondents also suggested that employers who are aware 
that their employees are communicating with others about their living 
and working conditions are less likely to engage in human trafficking 
in persons. The respondent was concerned that it might be difficult to 
facilitate contact when workers are in remote locations.
    Another respondent suggested that the regulations should include a 
process to facilitate direct contact by the contracting officer with 
contractors' and subcontractors' employees using email and social 
media.
    Response: The FAR includes general policies and procedures. The 
respondent's recommendation is encouraged in other guidance documents 
issued by the State Department and other agencies. E.O. 13627 and title 
XVII of the NDAA for FY 2013 do not require the Federal Government to 
facilitate regular contact between those employed on Federal contracts 
and their families or embassies. Similarly, there is no requirement 
that the Federal Government facilitate regular contact between 
contracting officers and the contractor/subcontractor employees.
    However, the E.O. and NDAA for FY 2013 do require contractor 
compliance plans and specify that there are minimum elements of the 
compliance plan (see FAR 52.222-50(h)), but contractors may go beyond 
those minimum elements and incorporate further measures that promote 
ending trafficking in persons. The President's Interagency Task Force 
to Monitor and Combat Trafficking in Persons is developing public 
awareness materials to inform those employed on Federal contracts 
overseas of their rights under the E.O., the NDAA for FY 2013, and this 
rule and to provide information on where to call should an employee be 
subject to trafficking in persons.
    Existing related efforts to track workers serving on contracts 
overseas include the Department of Defense's Synchronized Pre-
Deployment and Operational Tracker (SPOT), also used by the Department 
of State and other agencies. This system requires tracking of data on 
contract employees from any country working in Afghanistan and Iraq and 
other designated operational areas. The State Department also uses the 
mandatory E-Clearance system to register Government personnel and 
contractors working as support personnel within the Department of State 
traveling to a post under Chief of Mission authority. E-Clearance helps 
posts understand how much support will be needed by visiting personnel. 
A subset of all workers serving on U.S. Government contracts would be 
tracked by these two systems.
    Other State Department efforts to make individuals aware of their 
rights and to provide information on where to call for help could serve 
as models for future outreach. Existing efforts to protect employment 
and education-based nonimmigrant visa applicants intending to reside in 
the United States include: The State Department's ``Know Your Rights'' 
pamphlet and video developed in consultation with several Federal 
agencies, which is given to recipients in certain visa classes 
vulnerable to trafficking in persons available at: https://travel.state.gov/content/visas/english/general/rights-protections-temporary-workers.html; and the development of an informational video 
that will complement the pamphlet. Embassies

[[Page 4976]]

and consulates overseas will play the video in consular waiting rooms 
as appropriate, in languages spoken by the greatest concentrations of 
those applicants. Non-governmental organizations have commended the 
Federal Government for the effectiveness of the ``Know Your Rights'' 
pamphlet in reaching those in exploitative and abusive situations.
d. Posting
    Comment: A number of respondents were supportive of the posting 
requirement.
    Response: Noted.
    Comment: Several respondents provided feedback on requiring posting 
notices on trafficking in persons in workers' living and work areas. 
Respondents expressed concern that the posting requirement is 
burdensome and that some companies' wage and recruiting plans may 
contain proprietary information. They also expressed the concern that 
the appropriate audience for such plans is employees and not the 
public-at-large. Respondents also questioned how information would be 
posted if work is performed in the field or not in a fixed location. 
Respondents suggested that an alternative would be posting on the 
contractor's and/or subcontractor's internal (non-public) Web site(s), 
so long as the Web site is accessible to covered employees. Respondents 
also suggested that greater flexibility be given to the contractor on 
what it determines to be relevant content and on how to obtain such 
content in any such notice that is posted conspicuously where work is 
performed, consistent with the nature of its compliance plan, the 
nature and location of the work performed, and the number of employees 
performing work.
    Response: As required by the statute, FAR 52.222-50(h)(4) requires 
the contractor, to post the relevant contents of the compliance plan at 
the workplace and on the Web site (if one is maintained), as 
appropriate. The regulations do not specify that the Web site must be 
available to the public. The final rule has been modified to provide 
that if posting at the worksite or on the Web site is impracticable 
(i.e., the work is to be performed in the field or not in a fixed 
location and there is no Web site available), the relevant contents of 
the compliance plan may be presented to the employee in writing. The 
rule provides flexibility in determining what relevant content to post. 
However, given that the compliance plan consists of five components, it 
is logical that, at a minimum, a summary of the five components should 
be posted, with the option for the employee to request and receive 
additional details. Contractors may also go beyond a summary of the 
five components and provide additional information to achieve the 
purpose of the rule.
e. Submission
    Comment: One respondent stated that the compliance plan should be 
available when the solicitation process is open, so that contracts are 
awarded to those who are both qualified and most likely to avoid 
prohibited conduct.
    Response: Section 1703 of the NDAA for FY 2013 requires the 
potential recipient of a contract, prior to receiving award, to provide 
certification to the contracting officer that the recipient has 
implemented a plan to prevent prohibited trafficking in persons 
activities, and is in compliance with that plan. The statute only 
requires disclosure of the plan to the contracting officer upon 
request.
    Comment: One respondent seeks clarification regarding when or how a 
subcontractor must submit a compliance plan to the prime prior to 
award.
    Response: In the final rule, the Councils have revised FAR 52.222-
50(i)(2) to delete the requirement for subcontractors to submit the 
compliance plan prior to subcontract award.
f. Monitoring
    Comment: Several respondents, asked for clarification and further 
guidance on what constitutes adequate monitoring of subcontractors and 
employees. One respondent recommended that contractors release the 
results of audits and inspection results and that Federal agencies 
share information about independent entities which perform monitoring 
and conduct investigations. This respondent also recommended a 
contractor prequalification for contractors which work proactively to 
eliminate trafficking in persons.
    Response: There are a variety of agencies and organizations that 
provide guidance on monitoring for trafficking in persons, including 
the Department of Labor's Reducing Child and Forced Labor toolkit at 
https://www.dol.gov/ilab/child-forced-labor/index.htm, which has 
extensive information on developing, communicating and monitoring a 
comprehensive social compliance system. The State Department's Office 
to Monitor and Combat Trafficking in Persons at https://www.state.gov/j/tip/id/index.htm, the United States Agency for International 
Development at https://www.usaid.gov/trafficking, and the Department of 
Homeland Security at https://www.dhs.gov/end-human-trafficking have 
general information about trafficking in persons, including the 
indicators of human trafficking and how to identify potential. The 
prime contractor's monitoring efforts will vary based on the risk of 
trafficking in persons related to the particular product or service 
being acquired and whether the contractor has direct access to a work 
site or not. Where a prime contractor has direct access, the prime 
contractor would be expected to look for signs of trafficking in 
persons at the workplace, and if housing is provided, inspect the 
housing conditions. For cases where the employees and subcontractors 
are distant, or for lower tier subcontractors, the prime contractor 
must review the plans and certifications of its subcontractors to 
ensure they include adequate monitoring procedures, and to compare this 
information to public audits and other trafficking in persons data 
available. The plans must include a process for employees to report, 
without fear of retaliation, any prohibited activities. The contractor 
may use this process to monitor employees' concerns.
    It is beyond the scope of this rule to require that contractors 
release the results of audits and inspections. While Federal agencies 
do share information about their activities related to trafficking in 
persons, they are not allowed to make recommendations or referrals to 
private or independent entities.
    Establishing a program to prequalify contractors that work 
proactively to eliminate trafficking in persons is beyond the scope of 
this rule.
    Comment: One respondent recommended modifying the regulations to 
eliminate the requirement that the prime contractor directly monitor 
each subcontractor at any tier and any dollar value and alternatively 
require each contractor to be responsible for monitoring its direct 
subcontractor, with each subcontractor being responsible to monitor its 
direct subcontractors. Additionally, if a risk assessment reveals 
credible evidence that there is a material risk of labor trafficking 
with a specific subcontractor, additional due diligence and monitoring 
beyond the first tier may be required. This respondent alternatively 
proposed a good faith effort approach similar to the certification 
requirements in FAR subpart 22.15, regarding the Prohibition of 
Acquisition of Products Procured by Forced or Indentured Child Labor.
    Response: The Councils consider the responsibilities of the prime 
contractor to prevent subcontractors at any tier from engaging in 
trafficking in persons and to monitor, detect, and terminate any 
subcontractors or subcontractor employees that have engaged in such

[[Page 4977]]

activities at any tier, to be one of the key contractual requirements 
to ensuring compliance. Public comments on this rule reveal that some 
subcontractor employees take kickbacks from traffickers, and of course 
will not report their own violations or those of their agents or lower 
tier subcontractors. Accordingly, vigilance by the prime contractor is 
necessary.
    Comment: One respondent questioned whether it is appropriate for 
the Federal Government to require contractors to regulate the procuring 
of commercial sex by its employees, stating that prostitution is a 
state rather than a Federal responsibility and it is not the function 
of the FAR to monitor.
    Response: The final FAR rule is implementing the requirements of 
statute and Executive Order regarding the prohibition of trafficking in 
Federal Government contracts. The coverage of commercial sex is not new 
in this rule; see the explanation of this statutory implementation in 
the final rule published January 15, 2009 (74 FR 2741).
    Comment: One respondent recommended implementing government-wide 
requirements to audit contractor trafficking in persons compliance and 
random unannounced interviews with workers to ensure that trafficking 
in persons violations are not occurring.
    Response: Agencies may institute such auditing and interviewing 
tactics now, as they deem appropriate, but are often constrained by 
resources from performing this type of oversight.
g. Enforcement
    Comment: Two respondents commented that contractors should not be 
allowed to design and implement compliance plans that are structured 
around self-disclosure on their part. The respondent recommended that 
the FAR regulations should require independent and accessible grievance 
mechanisms, independent verification of practices, and sufficient 
resources and mechanisms to ensure meaningful enforcement.
    Response: FAR 52.222-50(h)(3)(ii) requires contractors to have a 
process for employees to report, without fear of retaliation, activity 
inconsistent with the policy prohibiting trafficking in persons. In 
addition, during administration of the contract, the contracting 
officer has access to contract administration organizations and various 
Federal enforcement agencies to provide assistance in the enforcement 
of anti-trafficking in persons requirements. The policy at FAR subpart 
3.9, Whistleblower Protections for Contractor Employees, further 
protects contractor employees against reprisal for certain disclosures 
of information related to a contract.
h. Use as Evaluation Factor
    Comment: One respondent recommended mandating that the evaluation 
of the corporate compliance program be a part of the evaluation 
criteria found in section ``M'' of the solicitation to encourage 
contractors to develop and implement effective compliance programs.
    Response: It is not appropriate to mandate consideration of the 
corporate compliance program in every acquisition. FAR 15.304, 
Evaluation factors and significant subfactors, states that the contract 
award decision is based on evaluation factors that are tailored to the 
instant acquisition and that these evaluation factors must represent 
the key areas of importance and emphasis to be considered in the source 
selection decision as well as support meaningful comparison and 
discrimination between and among competing proposals. In accordance 
with established FAR procedures, the source selection authority 
determines the key discriminators in evaluating proposals based on the 
unique requirements of a given acquisition and how to best assess an 
offeror's ability to meet those requirements.
    The Councils note that the rule does not preclude having the 
compliance plan as a source selection factor, where it is a key 
discriminator, but leaves this decision to the discretion of the source 
selection authority.
i. Pre-Award Certification
    Comment: Some respondents commented that the pre-award 
certification requirements (now at FAR 22.1703(c)(1) and 52.222-56) 
would be impossible for a contractor to comply with, since the 
contractor may not know who all of their subcontractors are at all 
tiers prior to award.
    Response: The requirement for each contractor and subcontractor 
that meets the criteria to certify, prior to receiving an award, that 
they have implemented a plan to prevent prohibited trafficking in 
persons activities is expressly required in the E.O. and statute.
    The offeror is certifying to the proposed subcontracts it has at 
the time. At FAR 22.1703(c), the prime contractor is required to 
certify annually to this information and to require its subcontractors 
to certify as well, when applicable. Any subcontractors that meet the 
criteria are required to complete the certification. If a prime adds a 
subcontractor after award of the prime contract, the prime is required 
to obtain the certification from the subcontractor at the time of 
subcontract award.
    Comment: One respondent commented that the requirement in the 
statute at section 1703(a) to obtain a ``recipient certification'' 
should be moved to the opening of subparagraph (d)(1).
    Response: The Councils have moved the language ``apparent 
successful offeror'' to the beginning of the paragraph (FAR 
22.1703(c)(1)), as recommended.
5. Full Cooperation (FAR 22.1703(d) and 52.222-50(g))
a. Rights Against Self-Incriminations, etc.
    Comment: Several respondents expressed concern that disclosure 
requirements and ``full cooperation'' should be structured so as not to 
infringe on fundamental individual rights against self-incrimination, 
attorney-client privilege, and the company's right to conduct an 
internal investigation. These respondents recommended aligning this 
rule with the FAR Business Ethics rules.
    Response: The requirement for ``full cooperation'' at FAR 52.222-
50(g) has been augmented with a second paragraph, which incorporates 
the rights in the second paragraph of the definition of ``full 
cooperation'' at FAR 52.203-13(a).
    In addition, two types of full cooperation listed in the definition 
at FAR 52.203-13(a) have been added to FAR 22.1703(d)(1) and (2) and 
FAR 52.222-50(g)(1)(i) and (ii)--the responsibility to disclose 
sufficient information to the contracting officer and the agency 
Inspector General to identify the nature and extent of the offense, and 
provide timely and complete response to Government auditors' and 
investigators' request for documents. A reminder is added at FAR 
52.222-50(d)(1) that in contracts that contain FAR 52.203-13 
``Contractor Code of Business Ethics and Conduct'', paragraph 
(b)(3)(i)(A) requires disclosure to the agency Office of Inspector 
General when the contractor has credible evidence of fraud.
b. ``Federal Agencies''
    Comment: Three respondents requested clarification on what 
constitutes ``other responsible enforcement agencies'' and recommended 
aligning FAR 22.1703(e) (now (d)) with the provisions of the NDAA for 
FY 2013 to specify ``Federal agencies'' and remove the ``other

[[Page 4978]]

responsible enforcement agencies'' language.
    Response: Efforts to prohibit trafficking in persons under Federal 
Government contracts is a collaborative effort that requires 
cooperation among Federal agencies, state and local agencies, foreign 
governments, non-governmental organizations, faith-based communities, 
private industry, and private citizens. However, ``other responsible 
enforcement agency'' was written broadly in the E.O. to mean Federal 
agencies such as an agency Office of Inspector General, the Department 
of Justice, Department of State, Department of Homeland Security, or 
Department of Labor that are responsible for conducting audits, 
investigations, or other actions to ascertain compliance with 
trafficking in persons laws or regulations. The final rule changes FAR 
22.1703(d)(3) and FAR 52.222-50(g)(1)(iii) to read ``other responsible 
Federal agencies to conduct . . .''.
c. Interviews
    Comment: Two respondents commented that the contractor should not 
have primary responsibility for interviewing the witness, but rather 
the contractor should notify Government authorities about the existence 
of such persons and make such persons available to be interviewed by 
Government law enforcement agents. Another respondent commented that 
interviews should be conducted only by employees who have been properly 
trained in the identification of trafficking in persons and trafficking 
victims, and those who are interviewed should have access to 
interpreters. Another respondent commented that access to facilities 
and staff by the contracting agencies or responsible enforcement 
agencies should not be required before a contractor performs its own 
investigation; and that the contractor has a right to have a 
representative present during any access and interviews.
    Response: The Councils have removed the requirement for contractors 
to interview all employees suspected of being victims of or witnesses 
to prohibited trafficking in persons activities because it is not a 
requirement of the E.O. or the statute. Therefore, FAR 22.1703(d) and 
52.222-50(g) have been modified to delete the word ``interview''.
    Comment: One respondent recommended that the rule should require 
that the contracting officer and the agency Inspector General be 
notified of suspected trafficking in persons in all sections, including 
FAR 22.1703(e) (now (d)) and 52.222-50(g), which only requires 
contractors to interview workers before returning to their country of 
origin.
    Response: The primary requirement for the contractor to notify the 
contracting officer and the agency Inspector General is at FAR 52.222-
50(d). However, the Councils have added at FAR 22.1703(d)(1) and 
52.222-50(g)(1), the requirement that the contractor disclose to the 
contracting officer and the agency Inspector General information 
sufficient to identify the nature and extent of an offense and the 
individuals responsible for the conduct. The requirement to interview 
has been removed.
    Comment: One respondent requested clarification on ``reasonable 
access.''
    Response: As with any other Government investigation or audit, the 
contractor and any of its employees or subcontractor employees are 
required to cooperate fully with Government agents and allow access to 
their facilities and staff in a way that does not impede, obstruct or 
influence the investigation or audit.
6. Violations and Remedies (FAR 22.1704 and 52.222-50(e) and (f))
a. ``May'' to ``Shall''
    Comment: Several respondents recommended changing the word from 
``may'' to ``shall'' at FAR 22.1704.
    Response: The final rule has been revised at FAR 22.1704(d)(2) to 
require the contracting officer to consider taking the specified 
remedies. The E.O. was silent on this issue, but the statute was clear 
(22 U.S.C. 7104b(c), Remedial actions).
b. Mitigating and Aggravating Factors
    Comment: One respondent supported the requirement for the 
contracting officer to address both mitigating and aggravating factors 
in a remedy determination. (See also section III.B.6.c.ii. below on 
``stronger remedies'').
    Response: Noted.
c. Remedies
i. Safe Harbor
    Comment: Two respondents suggested that a provision be included 
absolving prime contractors from responsibility for acts of its 
subcontractors. Alternatively, it was suggested that an affirmative 
defense be established for the prime contractor where it has 
implemented its own compliance plan, flowed down the required clause, 
affirmatively communicated to subcontractors the requirements of the 
rule and reports trafficking in persons activity of a subcontractor if 
and when it becomes known to the contractor.
    Response: Neither the statute nor the E.O. fully shield a prime 
contractor or create an affirmative defense. Culpability is determined 
on a case-by-case basis.
ii. Stronger Remedies
    Comment: One respondent commented that contractors who use forced 
labor or victims of severe forms of trafficking in the persons should 
not get paid for their work.
    Response: Withholding payment, loss of award fee, contract 
termination, and suspension and debarment are remedies already 
available to the Government if the contractor fails to comply with the 
trafficking in persons provisions (see FAR 52.222-50(e)).
    Comment: One respondent commented that debarment should be 
mandatory when a contractor violates the prohibition against forced 
labor and trafficking in persons. Another respondent recommended 
suspending and debarring any entity that withholds passports.
    Response: FAR 9.402(b) states that debarment and suspension are not 
imposed for punishment. The Suspending and Debarring Official (SDO) has 
discretion to address suspension or debarment cases with individualized 
analysis and uses a broad range of preliminary and final actions to 
balance the need to protect the Government against the need to treat 
fairly the contractors involved. FAR 22.1703(e) requires the Government 
to impose suitable remedies, including termination, on contractors that 
fail to comply with the requirements to combat trafficking in persons.
    Comment: One respondent commented that through an enforceable 
contract provision, contractors should pay liquidated damages in a 
manner to help compensate the victim harmed by the breach.
    Response: While neither the E.O. nor statute provide a basis for 
requiring the contractors to pay liquidated damages to compensate 
victims, the FAR text at FAR 22.1704(d)(2)(i) and 52.222-50(f)(1) was 
changed to more clearly identify that if the contractor has taken 
appropriate remedial actions for violations, including reparations to 
victims, those actions will be considered as a mitigating factor.
iii. Due Process
    Comment: One respondent was concerned that FAR 22.1704(b) (now (d)) 
violates the principle of due process, because the contracting officer 
only requires adequate evidence to

[[Page 4979]]

suspect a violation in order to pursue remedies against the contractor.
    Response: The Councils have revised the final rule to require 
substantiation of the allegations prior to consideration of remedies. 
This is consistent with section 1704(c) of the NDAA for FY 2013.
7. Posting in the Federal Awardee Performance and Integrity Information 
System (FAPIIS)
a. Support Posting in FAPIIS
    Comment: One respondent supported the addition of FAR 9.104-6(e), 
requiring contracting officers to include substantiated trafficking in 
persons allegations in the Federal Awardee Performance and Integrity 
Information System (FAPIIS).
    Response: Noted. However, while retaining the content, the Councils 
have moved the proposed text at FAR 9.104-6(e), because FAR 9.104-6 
addresses the use of FAPIIS, not actions relating to entry of the data 
into FAPIIS. The requirements for agency head notification to the 
contracting officer are now located at FAR 22.1704(c)(1). The 
requirement for entry of the information into FAPIIS was moved to FAR 
42.1503(h)(1)(v), with a cross-reference at FAR 22.1704(d)(1), because 
the former section addresses entry of post-award contractor performance 
information (other than past performance reviews). Information entered 
in accordance with FAR 42.1503(h) will be made available to the public 
after 14 days (see FAR 9.105-2(b)(2)).
b. Standards for Review by the Agency Inspector General
    Comment: One respondent stated that the proposed rule fails to set 
forth the due process requirements for establishing whether allegations 
are ``substantiated'' and does not provide any process for review. The 
respondent recommended establishing a framework by which the agency 
Inspector General determines whether the allegation is substantiated, 
including the applicable standard of proof.
    The respondent also stated that the FAR regulations should provide 
procedures for the contractor to review and rebut the agency Inspector 
General report, including establishing time periods for review and 
comment prior to posting in FAPIIS. The respondent stated that there 
should be an affirmative requirement that rebuttal evidence be reviewed 
and taken into consideration prior to reporting into FAPIIS.
    Response: The FAR does not regulate the procedures of the agency 
Inspectors General. The agency Inspectors General establish the 
criteria by which they conduct reviews and the procedures for providing 
an opportunity for the contractor to rebut the allegations, prior to 
completions of the investigation.
    However, the Councils have addressed the requirement of section 
1704(d)(2) of the NDAA for FY 2013 (codified at 41 U.S.C. 
2313(c)(1)(E)) that entry into FAPIIS of a substantiated allegation 
pursuant to section 1704(b) of the NDAA for FY 2013 shall be based on 
the outcome of an administrative proceeding. Therefore, the final rule 
provides at FAR 22.1704(c)(2), that upon receipt of a report from the 
agency Inspector General that provides support for the allegations 
relating to violation of the trafficking in persons prohibitions, the 
head of the agency, in accordance with agency procedures, shall 
delegate to an authorized agency official, such as the agency 
suspending or debarring official, the responsibility to expeditiously 
conduct an administrative proceeding, allowing the contractor the 
opportunity to respond to the report. The authorized official shall 
then make a final determination as to whether the allegations are 
substantiated.
c. Contractor Right To Comment After Posting
    Comment: One respondent stated that while the proposed amendment to 
FAR 9.104-6 repeats the statutory language it does not provide 
meaningful guidance to the contracting officer or contractors. The 
respondent recommended referencing the existing provisions of FAR 
9.104-6 that provide that the contractor shall be given a reasonable 
opportunity to review and comment on the report (in this case by the 
agency Inspector General) that substantiated the violation in advance 
of the report being posted in FAPIIS and to have the contractor's 
comments appended to and made part of the information posted. Another 
respondent also requested that the final rule establish a right for the 
contractor to post rebuttal documents in FAPIIS along with the agency 
Inspector General report.
    Response: Revised FAR 22.1704(c) provides for an administrative 
proceeding that allows the contractor the opportunity to respond to the 
report, prior to a final determination as to whether the allegations 
are substantiated.
    If the allegations are substantiated and the violation is posted in 
FAPIIS, FAPIIS provides contractors an opportunity to comment on any 
data that has been entered relating to the contractor. However, FAPIIS 
does not currently provide the capability for contractors to append 
documents. It is possible for contractors to post documents at their 
own Web site, and provide the URL to that Web site in their posted 
comments in FAPIIS.
    The Councils did not find any language at FAR 9.104-6 that provides 
the contractor such opportunity to comment on information in FAPIIS, 
prior to posting. FAR 9.105-2(b)(2)(iv) only addresses the narrow 
situation in which any information posted to FAPIIS is covered by a 
disclosure exemption under the Freedom of Information Act. Information 
is first posted in FAPIIS and only shared with the contractor, and this 
FAPIIS information is not made available to the public until after 14 
days. If the contractor asserts within 7 days to the Government 
official who posted the information, that some or all of the 
information is covered by a disclosure exemption under the Freedom of 
Information Act, the Government official who posted the information 
must, within 7 days, remove the posting from FAPIIS and resolve the 
issue in accordance with the Freedom of Information Act, prior to 
reposting any releasable information. The final rule clarifies that all 
such information entered in FAPIIS in accordance with FAR 42.1503(h) 
(except for past performance reviews) will be made publicly available 
after 14 days, unless covered by a disclosure exemption under the 
Freedom of Information Act, with a cross-reference to FAR 9.105(b)(2).
    FAPIIS only contains records on entities that have been awarded a 
Federal contract or grant. Any information on subcontractor violations 
must be entered against the record of the prime contractor. The prime 
contractor is required to have procedures in place to prevent 
subcontractors from engaging in trafficking in persons. The Councils 
have added, at FAR 9.104-6(b)(2), guidance to the contracting officer 
in assessing adverse information posted regarding subcontractor 
violations of the trafficking in persons prohibitions. The contracting 
officer is directed to consider any mitigating factors, such as the 
degree of compliance by the prime contractor with the terms of FAR 
clause 52.222-50 (including disclosure of the violation to the 
Government, full cooperation with an investigation, and remedial 
actions taken).
d. Reporting of Unsubstantiated Allegations
    Comment: One respondent commented that only including in FAPIIS 
allegations substantiated by the Inspector General does not go far

[[Page 4980]]

enough to implement the E.O., since Inspector General investigations 
and reports are rare and those affected by trafficking in persons do 
not have the resources to get a complaint investigated by the Inspector 
General. Therefore, any allegations of trafficking in persons should be 
put into the database.
    Response: FAPIIS includes violations regarding a contractor's 
integrity where there was a finding of fault. Section 1704(d) of the 
NDAA for FY 2013, requires inclusion in the FAPIIS database of 
substantiated allegations of violations of the prohibitions in 22 
U.S.C. 7104(g), after an administrative proceeding.
e. Change Reference to E.O. and Statute
    Comment: One respondent recommended replacing at FAR 9.104-6(e) ``. 
. . a violation of the trafficking in persons prohibitions in E.O. 
13627 or the Trafficking Victims Protection Act of 2000, as amended, 
(22 U.S.C. chapter 78)'' with ``a violation of the trafficking in 
persons prohibitions in FAR 22.1704 or agency-specific supplemental 
provisions.'' This change was recommended because the E.O. is not 
substantive law and its provisions do not provide an independent basis 
for establishing trafficking in persons violations.
    Response: This issue is now addressed at FAR 22.1704(c)(1) and 
42.1503(h)(1)(v), and the reference has been revised to address the 
trafficking in persons prohibitions in FAR 22.1703(a) and 52.222-50(b). 
It is not appropriate to address in the FAR prohibitions that are in 
agency-specific supplemental provisions.
8. Harmonize With Contractor Code of Business Ethics and Conduct (FAR 
Subpart 3.10 and 52.203-13)
a. Contractor Notifications (FAR 52.222-50(d))
i. Credible Information/Evidence
    Comment: Several respondents commented regarding the standard for 
triggering the reporting of apparent violations. The respondents noted 
an internal inconsistency in the rule and suggested that the standard 
be harmonized with the credible evidence standard in FAR subpart 3.10 
Contractor Code of Business Ethics and Conduct. Some respondents also 
expressed a preference for the inclusion of a definition of the term 
``credible information.''
    Response: Pursuant to 22 U.S.C. 7104b(a)(1) and 22 U.S.C. 7104c(1), 
contracting or grant officers and recipients of grants, contracts, or 
cooperative agreements shall inform appropriate agency Inspectors 
General upon receipt of ``credible information of a violation''. While 
the proposed clause at FAR 52.222-50(d)(1) accurately reflects that 
standard, the proposed text at FAR 22.1704(c) used the term ``credible 
violations.'' In the final rule FAR 22.1704(b) has been modified to 
reflect the standard set forth in 22 U.S.C. 7104b(a)(1) and the related 
reporting requirement at 22 U.S.C. 7104c(1). Since the credible 
information standard is dictated by statute and modification of the 
reporting standard under FAR subpart 3.10 is beyond the scope of this 
case, harmonization of the terms ``credible information'' and 
``credible evidence'' under this FAR case is not possible.
    It is not necessary to include a definition of the term ``credible 
information.'' Under the plain meaning of the term, if believable 
information is presented, the matter shall be referred to the 
appropriate Inspector General. Although this standard presents a low 
threshold, contractors' interests are protected through a mandatory and 
independent review by the appropriate Inspector General prior to 
opening an investigation (22 U.S.C. 7104b(2)). The low threshold for 
initial referral, conversely, upholds the policy to prevent human 
trafficking.
ii. Immediate/Timely
    Comment: Several respondents commented on the requirement at FAR 
52.222-50(d) for ``immediate'' notification to the contracting officer 
and the agency Inspector General of any credible information alleging a 
violation. Both respondents mentioned that the requirement under the 
contractor Code of Business Ethics and Conduct at FAR 52.203-13 only 
requires ``timely'' notification of credible evidence. One respondent 
recommended that the final rule should make it clear that the 
requirement for immediate notification permits a contractor some period 
of time to conduct its own investigation into the credibility of 
information it receives.
    Response: The Councils note that, prior to this final rule, the 
clause at FAR 52.222-50 already included the requirement for the 
contractor to inform the contracting officer immediately of any 
information it receives from any source that alleges conduct that 
violates the policy on trafficking in persons.
    Section 1705 of the statute (22 U.S.C. 7104c) requires immediate 
notification to the agency Inspector General of any information from 
any source that alleges credible information regarding violations of 
the prohibition in 22 U.S.C. 7104(g). On the other hand, 41 U.S.C. 3509 
requires ``timely notification'' with regard to the Code of Business 
Ethics and Conduct.
    Because of these separate statutory requirements, the different 
notification requirements in FAR 52.203-13 and 52.222-50 have not been 
conformed to match.
iii. Tie to Contract or Subcontract
    Comment: One respondent stated that the notification requirement 
(FAR 52.222-50(d)) does not tie to the ``award, performance or closeout 
of [a] contract or any subcontract thereunder,'' which differs from the 
Business Ethics Rule. This lack of clarity in tying the requirement to 
an individual contract could result in a contractor having to notify 
every contracting officer with whom it has a contract.
    Response: FAR 52.222-50(d) requires the contractor to inform the 
contracting officer of credible information that alleges a contractor 
employee, subcontractor, or subcontractor employee, or their agent has 
engaged in conduct that violates the policy at paragraph (b) of the 
clause. This is consistent with the statutory requirement. A 
trafficking in persons violation by a contractor employee may not be 
associated with a specific contract. The final rule has added the 
clarification at FAR 52.222-50(d) that, if the allegation may be 
associated with more than one contract, the contractor shall inform the 
contracting officer for the contract with the highest dollar value.
b. False Claims
    Comment: One respondent stated that the rule should contain a 
provision at FAR 52.222-50(e) that advises that filing a false 
certification or other trafficking in persons record could constitute a 
false claim under 31 U.S.C. 3729, and thereby trigger the False Claims 
Act. According to the respondent, with the newly added criminal 
violation at 18 U.S.C. 1351, linking the trafficking in persons 
provision mandatory disclosure and the False Claims Act would prompt 
compliance and ensure timely trafficking in persons disclosures and 
cooperation from all within the labor supply chain.
    Response: The FAR does not specify what constitutes a false claim. 
Nor does it specify what, or what constitutes a crime, especially where 
this would require a decision on the application of United States 
criminal laws outside the United States. The Councils consider 
expansion of the list of remedies at paragraph (e) of the clause to be 
unnecessary because the final rule

[[Page 4981]]

already states that the remedies listed in paragraph (e) are ``in 
addition to any other remedies available to the United States 
Government'' (FAR 22.1704(d)(2)).
c. Integrate Into FAR Subpart 3.10 and 52.203-13
    Comment: Several respondents recommended integrating Trafficking in 
Persons reporting requirements into the list of violations covered by 
FAR 3.1003(a) and (b) and 52.203-13. According to the respondent, the 
regulations should expressly state that fraudulent hiring of labor 
constitutes a ``violation of Federal criminal law involving fraud, 
conflict of interest, bribery, gratuity, or trafficking in persons 
violations found in Title 18 of the United States Code''. According to 
the respondents, including trafficking in persons violations under the 
mandatory disclosure rule pursuant to 52.203-13 will ensure proper 
authorities are notified and will better protect victims. One 
respondent commented, however, that harmonizing the rule and related 
reporting of misconduct with the Code of Business Ethics, does not 
necessitate identical provisions.
    Response: The Councils have not integrated the trafficking in 
persons disclosure requirements into the Contractor Code of Business 
Ethics and Conduct (FAR 3.1003(a) and (b) and 52.203-13) because this 
rule implements a statute and E.O. with specific detailed requirements 
relating to trafficking in persons violations. Trying to integrate the 
separate requirements relating to thresholds, compliance plans, 
mandatory disclosure, full cooperation, etc. may result in confusion or 
inconsistent and conflicting requirements.
    Comment: One respondent commented that violation of the Foreign 
Labor Act (18 U.S.C. 1351) will trigger the mandatory reporting 
requirement in FAR subpart 3.10 and the clause at 52.203-13, and 
therefore should be specifically referenced in the listing of offenses 
mandated to be reported so that contractors will be put on notice.
    Response: As recognized by the respondent, 18 U.S.C. 1351 is 
already included under 3.1003(b) and 52.203-13(b)(3)(i)(A) as a 
``violation of Federal criminal law involving fraud . . . found in 
title 18 of the U.S.C.'' There are many such laws, none of which are 
listed individually. The Councils, however, have added a cross 
reference at FAR 52.222-50(d)(1) to this law when addressing the 
prohibitions at FAR 52.222-50(b)(5).
9. Training
a. Enhanced Training for Contracting Officers
    Comment: Two respondents recommend enhancing training requirements 
for contracting officers.
    Response: The FAR does not include training. Section 3 of the E.O. 
requires the Administrator of the Office of Federal Procurement Policy, 
in consultation with the Federal Acquisition Institute (FAI) and 
appropriate councils, such as the Chief Acquisition Officers Council, 
to implement training requirements, to ensure that the Federal 
acquisition workforce is trained on the policies and responsibilities 
for combating trafficking in persons. Training will be established in 
accordance with the E.O. requirements.
    Many agencies, currently, offer training on combating trafficking 
in persons (CTIP). For example, DoD policy on CTIP requires heads of 
all DoD components to conduct an annual CTIP awareness training program 
for all Component members and provide data to OSD (P&R) needed to 
compile its annual CTIP report. Trafficking in Persons General 
Awareness Training is mandatory for all DoD military members and 
civilian employees. DoD has developed five trainings, offered on the 
Department of Defense Combating Trafficking in Persons Web site at 
https://ctip.defense.gov/Training.aspx. These include--
    (1) General Awareness Training for those who have never taken the 
CTIP General Awareness Training;
    (2) Law Enforcement Training for those working in law enforcement 
and investigative agencies;
    (3) Refresher Training for those who have previously taken the CTIP 
General Awareness Training, a 15-minute ``refresher'' course;
    (4) Leadership Training for those in leadership positions; and
    (5) Contracting and Acquisition Training--for acquisition 
professionals and those working in contracting and acquisition. The 
Contracting and Acquisition Training is also available from Defense 
Acquisition University at https://www.dau.mil/default.aspx.
    The Departments of State and Homeland Security developed an 
interactive training for the Federal acquisition workforce on combating 
trafficking in persons in 2011. The 35-minute training module 
articulates the U.S. Government's policy prohibiting trafficking in 
persons; defines and identifies forms of trafficking in persons; 
describes vulnerable populations, indicators, and relevant legislation; 
and articulates specific remedies available to acquisition 
professionals if contractors engage in trafficking in persons, 
including suspension or debarment. The training is available to all 
members of the Federal acquisition workforce through the Federal 
Acquisition Institute's Web site. (This training is not yet updated to 
reflect the new law and policy promulgated in this rule.) During FY 
2013, 1,351 professionals, including 704 acquisition professionals, had 
completed the training from 26 Federal agencies.
    The Department of State's Office to Monitor and Combat Trafficking 
in Persons and the Department's Foreign Service Institute developed and 
released an interactive online course, ``Human Trafficking Awareness 
Training'' to enhance State Department personnel's understanding of the 
signs of human trafficking and Department reporting obligations. This 
training has information on the Department's standards of conduct 
related to trafficking in persons.
b. Contractor's Awareness Program
    Comment: One respondent recommended the final rule remain flexible 
with respect to tailoring the contractor's training to the contractor's 
compliance plan and awareness program.
    Response: The FAR does not require contractors to tailor training 
to the contractor's compliance plan and awareness program. The FAR 
requires--
    (1) An awareness program as part of the compliance plan (see FAR 
52.222-50(h)(3)(i)); and
    (2) Contracting officers to consider, as a mitigating factor, 
whether the contractor had a Trafficking in Person compliance plan or 
an awareness program at the time of the violation (see FAR 22.1704(d), 
Remedies).
    Comment: One respondent recommended permitting agencies to make 
available to contractors the training provided to the Federal 
acquisition workforce.
    Response: The FAR does not specify trafficking in person training 
details for the Federal acquisition workforce. However, various 
agencies have made on-line training for the Federal acquisition 
workforce available to contractors as well. For example:
     The Department of Defense hosts on its Web site a basic 
training for acquisition professionals. It is available to the public 
at https://ctip.defense.gov/Training/ContractingAcquisition.aspx.
     The Department of Homeland Security training is 
specifically tailored for the U.S. Government acquisition

[[Page 4982]]

workforce on combating trafficking in persons using the pertinent 
provisions of the FAR.
     The Department of Defense Combating Trafficking in Persons 
Web site, at https://ctip.defense.gov/, offers extensive information and 
guidance to prime contractors on how to ensure hiring practices comply 
with the law and prevent trafficking in persons. In particular, see 
CTIP Trainings at https://ctip.defense.gov/Training.aspx.
    Comment: One respondent recommended that contractors hold 
educational workshops before work begins and throughout employment for 
employees about modern slavery so that an employee will know what to 
look for and how to spot potential trafficking in persons situations.
    Response: Such recommendations may be included in the contractor's 
awareness program required by the E.O. and the statute.
10. Other
    Comment: One respondent recommended the additional requirements set 
forth in the Discussion and Analysis section of the proposed rule at 78 
FR 59317 be promulgated in the rule.
    Response: The proposed rule preamble contained a summary of 
comments from the public meeting on Trafficking in Persons on March 5, 
2013. Most of the recommendations at this meeting were also submitted 
as comments to the proposed rule and have been addressed separately 
through this section.
    Comment: One respondent recommended implementing a requirement to 
create and distribute documentation (all recruiting papers, signed 
recruiting and employment contracts, posters, training materials, as 
well as victim and witness statements) up the labor supply chain.
    Response: While the prime contractor may, and in some cases should, 
ask for these items, requiring submission of this much paperwork as a 
matter of course would greatly increase the paperwork burden under 
Federal contracts and create a significant reporting burden on 
businesses. The prime contractor is provided the flexibility to 
determine which documentation is needed based on the place of 
performance, e.g., in a country and industry group with a high level of 
trafficking in persons.
    Comment: One respondent recommended that agencies continue to work 
with transportation industry representatives to ensure that companies 
transporting Government freight under Federal contracts adopt or 
establish a companywide trafficking in persons awareness program and 
supply their employees a means to inform law enforcement of suspected 
trafficking in persons activities.
    Response: FAR clause 52.222-50, Combating Trafficking in Persons, 
currently requires contractors to notify its employees of the United 
States Government's policy prohibiting trafficking in persons and to 
inform the contracting officer immediately of any information it 
receives regarding violations of this policy. Additionally, outside of 
the Federal acquisition process, other Government agencies, such as the 
Department of Homeland Security, the Department of Labor, and the State 
Department, have awareness programs and points of contact for 
assistance or to report potential human trafficking activity (see 
responses at section III.B.4.b.ii, III.B.4.f., and III.B.9 of this 
preamble).
    Comment: One respondent recommended that prohibitions on employer 
actions include a general prohibition on limiting employees' freedom of 
association since unionized workers are less vulnerable to employer 
coercion and less vulnerable to conditions that lead to forced labor 
and trafficking in persons.
    Response: This FAR rule implements requirements to prohibit 
trafficking in Federal Government contracts. The respondent's comment 
is outside the scope of this rule.
    Comment: One respondent recommended that setting aside contracts 
for U.S. small business and then only allowing American workers on the 
contract would end human trafficking.
    Response: The Small Business Act does not apply overseas. Even if 
an acquisition is set aside for small businesses or awarded to a small 
local business overseas, that does not enable the Government to dictate 
the nationality of the workers, unless security considerations or 
contingency operations require U.S. citizenship.
    Comment: A comment was received recommending that offerors disclose 
the names and location of all suppliers and subcontractors prior to 
award.
    Response: The FAR already provides for a responsibility 
determination on prospective subcontractors. In accordance with FAR 
9.104-4, prospective prime contractors are required to assess the 
responsibility of their prospective subcontractors, which includes a 
satisfactory record of integrity and business ethics.
    FAR subpart 44.2 provides that if a contractor has an approved 
purchasing system, consent to subcontract is required only for 
subcontracts specifically identified by the contracting officer in the 
subcontracts clause of the contract. The Government relies on review 
and approval of a contractor's purchasing system, rather than 
separately managing each subcontractor and supplier.
11. Paperwork Reduction Act
    Comment: Several respondents commented that the four hour estimate 
per contract to prepare and submit an annual certification 
underestimates the burden because it does not take into consideration 
the time required to monitor, detect and terminate any agent 
subcontractors or subcontractor employees who have engaged in 
trafficking in persons at all tiers.
    Response: The Councils performed an analysis and have determined 
that the certification process should require minimal additional 
attention if a company is taking the time required to maintain a sound 
compliance plan. Therefore, the Councils have not increased the 
estimated number of burden hours.
    Comment: One respondent commented that the 24 hour estimate to 
prepare the compliance plan underestimates the burden.
    Response: The Councils performed an analysis, taking into account 
that this is a one-time submission only to be updated, as necessary, to 
align with the size, scope and complexity of the procurement. The 
estimated burden associated with writing the compliance plan takes into 
consideration that this is a one-time requirement, to be updated as 
necessary, to align with the size, scope, and complexity of later 
procurements. The Councils have not increased the estimate.
12. Regulatory Flexibility Act
    Comment: One respondent separately submitted comments on the 
reporting burden to the Chief Counsel for Advocacy at the Small 
Business Administration, in conjunction with comments that the 
information collection requirements of the rule are understated. 
Another respondent recommended that the FAR Council should conduct a 
thorough and complete regulatory flexibility analysis of the global 
reach of the proposed rule.
    Response: DoD, GSA, and NASA did an analysis of the burdens 
associated with this rule. Small business cannot be excluded from the 
requirements of this rule, because violations of the trafficking in 
persons prohibitions often occur at various subcontract tiers and 
frequently involve small businesses. However, the rule does provide 
maximum flexibility to small

[[Page 4983]]

businesses. The compliance and certification requirements only apply to 
any portion of the contract or subcontract that is for supplies (other 
than COTS items) to be acquired outside the United States, or for 
services to be performed outside the United States; and only if such 
portion has an estimated value that exceeds $500,000. Furthermore, if a 
compliance plan is required, it shall be appropriate to the size and 
complexity of the contract or subcontract and the nature and scope of 
the activities under the contract or subcontract.

IV. Determinations

    The Federal Acquisition Regulatory (FAR) Council has made the 
following determinations with respect to the rule's application of 
title XVII, entitled ``Ending Trafficking in Government Contracting 
(ETGCA),'' of the National Defense Authorization Act (NDAA) for Fiscal 
Year (FY) 2013 to contracts in amounts not greater than the simplified 
acquisition threshold (SAT), contracts for the acquisition of 
commercial items, and contracts for the acquisition of commercially 
available off-the-shelf (COTS) items.

A. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold

    Pursuant to 41 U.S.C. 1905 contracts or subcontracts in amounts not 
greater than the SAT will be exempt from a provision of law unless the 
law (i) contains criminal or civil penalties; (ii) specifically refers 
to 41 U.S.C. 1905 and states that the law applies to contracts and 
subcontracts in amounts not greater than the SAT; or (iii) the Federal 
Acquisition Regulatory Council (FAR Council) makes a written 
determination and finding (D&F) that it would not be in the best 
interest of the Federal Government to exempt contracts and subcontracts 
in amounts not greater than the SAT from the provision of law. If none 
of these conditions are met, the Federal Acquisition Regulation (FAR) 
is required to include the statutory requirement(s) on a list of 
provisions of law that are inapplicable to contracts and subcontracts 
in amounts not greater than the SAT.
    The ETGCA requires that the FAR must be amended to provide certain 
protections against trafficking in persons, including the following:
    1. A clause that prohibits contractors and subcontractors from 
engaging in the following types of trafficking-related activities:
     Destroying, concealing, removing, confiscating, or 
otherwise denying access to the employee's identity or immigration 
documents.
     Failing to provide return transportation for an employee 
from a country outside the United States to the country from which the 
employee was recruited upon the end of employment unless the contractor 
is exempted from the requirement or the employee is a victim of human 
trafficking and is seeking redress in the country of employment or a 
witness in a human trafficking enforcement action.
     Soliciting a person for the purposes of employment, or 
offering employment by means of materially false or fraudulent 
pretenses, representations, or promises regarding that employment.
     Charging recruited employees unreasonable placement or 
recruitment fees such as fees equal to or greater than the employee's 
monthly salary, or recruitment fees that violate the laws of the 
country from which an employee is recruited;
     Providing or arranging housing that fails to meet the host 
Country housing and safety standards.
    2. A requirement that contractors and subcontractors fully 
cooperate with any Federal agencies responsible for audits, 
investigations or corrective actions relating to trafficking in 
persons. The head of an executive agency must ensure that any 
substantiated allegation in the report be included in the Federal 
Awardee Performance and Integrity Information System (FAPIIS) and the 
contractor has an opportunity to respond.
    3. A requirement for a compliance plan appropriate to the size and 
complexity of the contract and a certification, upon award and annually 
thereafter, which provides that after conducting due diligence the 
contractor has implemented a plan to prevent any prohibited trafficking 
in persons activities and implemented procedures to prevent any 
prohibited trafficking in persons activities. These requirements for a 
certification and compliance plan apply to contracts and subcontracts, 
if any portion of the contract or subcontract--
     Is for services to be performed outside the United States; 
and
     The estimated value exceeds $500,000.
    The contractor must provide a copy of the plan to the contracting 
officer, upon request, and post useful and relevant contents of the 
plan on its Web site and at the workplace.
    Several months prior to the enactment of the ETGCA, the President 
signed E.O. 13627, Strengthening Protections Against Trafficking In 
Persons In Federal Contracts (September 25, 2012). The E.O. imposed 
similar requirements. There are some differences. For example, the E.O. 
expressly prohibits federal contractors and subcontractors from 
charging employees recruitment fees.
    Section 1 of E.O. 13627, explaining the government's policy against 
trafficking in persons, states: The United States has long had a zero-
tolerance policy regarding Government employees and contractor 
personnel engaging in any form of this criminal behavior. As 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. By providing our 
Government workforce with additional tools and training to apply and 
enforce existing policy, and by providing additional clarity to 
Government contractors and subcontractors on the steps necessary to 
fully comply with that policy, this order will help to protect 
vulnerable individuals as contractors and subcontractors perform vital 
services and manufacture the goods procured by the United States.
    In addition, the improved safeguards provided by this order to 
strengthen compliance with anti-trafficking laws will promote economy 
and efficiency in Government procurement. These safeguards, which have 
been largely modeled on successful practices in the private sector, 
will increase stability, productivity, and certainty in Federal 
contracting by avoiding the disruption and disarray caused by the use 
of trafficked labor and resulting investigative and enforcement 
actions.
    The ETGCA is silent on the applicability of the requirements set 
forth in paragraphs 1 and 2 of section IV.A. of this preamble to 
contracts and subcontracts in amounts not greater than the SAT and does 
not provide for criminal or civil penalties. Therefore, under 41 U.S.C. 
1907 the ETGCA does not apply to contracts and subcontracts not greater 
than the SAT unless the FAR Council makes a written determination that 
such application is in the best interest of the Federal Government.
    In contrast to the ETGCA, E.O. 13627 applies most of its 
strengthened prohibitions (other than the requirement for compliance 
plans and certifications) to acquisitions in any dollar amount. (The 
requirements for compliance plans and certifications apply only to 
acquisitions valued above $500,000 for services performed outside the 
United States.)
    The final FAR rule mirrors the implementation approach taken by 
E.O. 13627 regarding the handling of small dollar procurements. 
Specifically, the rule applies the general prohibitions

[[Page 4984]]

described in paragraphs 1 and 2 to contracts and subcontracts of a 
value equal to or less than the SAT. By applying the general 
prohibitions, the rule, like the E.O., most effectively furthers the 
policy, including economy and efficiency in procurement, described in 
the E.O. and quoted above and avoids creation of an exception that 
could undermine this policy and the ability to enforce the prohibition.
    The provisions listed above will apply to acquisitions for 
commercial items. They will also apply to acquisitions for commercially 
available off-the-shelf items, except for the requirements for a 
compliance plan and certification. Separate D&Fs outline the rationale 
for those additional determinations, as required in 41 U.S.C. 1906 and 
1907, respectively.

B. Applicability to Contracts for the Acquisition of Commercial Items

    Pursuant to 41 U.S.C. 1906, acquisitions of commercial items (other 
than acquisitions of commercially available off-the-shelf (COTS) items, 
which are addressed in 41 U.S.C. 1907) are exempt from a provision of 
law unless the law (i) contains criminal or civil penalties; (ii) 
specifically refers to 41 U.S.C. 1906 and states that the law applies 
to acquisitions of commercial items; or (iii) the Federal Acquisition 
Regulatory Council (FAR Council) makes a written determination and 
finding (D&F) that it would not be in the best interest of the Federal 
Government to exempt contracts (or subcontracts under a contract) for 
the procurement of commercial items from the provision of law. If none 
of these conditions are met, the Federal Acquisition Regulation (FAR) 
is required to include the statutory requirement(s) on a list of 
provisions of law that are inapplicable to acquisitions of commercial 
items.
    The ETGCA requires that the FAR must be amended to provide certain 
protections against trafficking in persons, including the following:
    1. A clause that prohibits contractors and subcontractors from 
engaging in the following types of trafficking-related activities:
     Destroying, concealing, removing, confiscating, or 
otherwise denying access to the employee's identity or immigration 
documents.
     Failing to provide return transportation for an employee 
from a country outside the United States to the country from which the 
employee was recruited upon the end of employment unless the contractor 
is exempted from the requirement or the employee is a victim of human 
trafficking and is seeking redress in the country of employment or a 
witness in a human trafficking enforcement action.
     Soliciting a person for the purposes of employment, or 
offering employment by means of materially false or fraudulent 
pretenses, representations, or promises regarding that employment.
     Charging recruited employees unreasonable placement or 
recruitment fees such as fees equal to or greater than the employee's 
monthly salary, or recruitment fees that violate the laws of the 
country from which an employee is recruited;
     Providing or arranging housing that fails to meet the host 
Country housing and safety standards.
    2. A requirement that contractors and subcontractors fully 
cooperate with any Federal agencies responsible for audits, 
investigations or corrective actions relating to trafficking in 
persons. The head of an executive agency must ensure that any 
substantiated allegation in the report be included in the Federal 
Awardee Performance and Integrity Information System (FAPIIS) and the 
contractor has an opportunity to respond.
    3. A requirement for a compliance plan appropriate to the size and 
complexity of the contract and a certification, upon award and annually 
thereafter, which provides that after conducting due diligence the 
contractor has implemented a plan to prevent any prohibited trafficking 
in persons activities and implemented procedures to prevent any 
prohibited trafficking in persons activities. These requirements for a 
certification and compliance plan apply to contracts and subcontracts, 
if any portion of the contract or subcontract--
     Is for services to be performed outside the United States; 
and
     The estimated value exceeds $500,000.
    The contractor must provide a copy of the plan to the contracting 
officer, upon request, and post useful and relevant contents of the 
plan on its Web site and at the workplace.
    Several months prior to the enactment of the ETGCA, the President 
signed E.O. 13627, Strengthening Protections Against Trafficking In 
Persons In Federal Contracts (September 25, 2012). The E.O. imposed 
similar requirements. However, there are some differences. For example, 
the E.O. expressly prohibits Federal contractors and subcontractors 
from charging employees recruitment fees.
    Section 1 of E.O. 13627, explaining the government's policy against 
trafficking in persons, states: The United States has long had a zero-
tolerance policy regarding Government employees and contractor 
personnel engaging in any form of this criminal behavior. As 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. By providing our 
Government workforce with additional tools and training to apply and 
enforce existing policy, and by providing additional clarity to 
Government contractors and subcontractors on the steps necessary to 
fully comply with that policy, this order will help to protect 
vulnerable individuals as contractors and subcontractors perform vital 
services and manufacture the goods procured by the United States.
    In addition, the improved safeguards provided by this order to 
strengthen compliance with anti-trafficking laws will promote economy 
and efficiency in Government procurement. These safeguards, which have 
been largely modeled on successful practices in the private sector, 
will increase stability, productivity, and certainty in Federal 
contracting by avoiding the disruption and disarray caused by the use 
of trafficked labor and resulting investigative and enforcement 
actions.
    The ETGCA is silent on the applicability of the requirements set 
forth above to contracts for commercial items and does not provide for 
criminal or civil penalties. Therefore, under 41 U.S.C. 1906 the ETGCA 
does not apply to acquisitions for commercial items unless the FAR 
Council makes a written determination that such application is in the 
best interest of the Federal Government.
    In contrast to the ETGCA, E.O. 13627 applies the strengthened 
requirements described above to commercial items. The final FAR rule 
mirrors the approach taken by E.O. 13627 and applies the restrictions 
and requirements described above to commercial item acquisitions. By 
doing so, the rule, like the E.O., most effectively furthers the 
policy, including economy and efficiency in procurement, described in 
the E.O. and quoted above and avoids creation of an exception that 
could undermine this policy and the ability to enforce the prohibition.
    The provisions listed above, except for the requirements for a 
compliance plan and certification, will also apply to contracts and 
subcontracts in amounts not greater than the simplified acquisition 
threshold and acquisitions for COTS items. Separate D&Fs outline the 
rationale for those additional determinations, as required in 41 U.S.C. 
1905 and 1907, respectively.

[[Page 4985]]

C. Applicability of Contracts for the Acquisition of COTS Items

    Pursuant to 41 U.S.C. 1907, acquisitions of commercially available 
off the shelf (COTS) items will be exempt from a provision of law 
unless the law (i) contains criminal or civil penalties; (ii) 
specifically refers to 41 U.S.C. 1907 and states that the law applies 
to acquisitions of COTS items; (iii) concerns authorities or 
responsibilities under the Small Business Act (15 U.S.C. 644) or bid 
protest procedures developed under the authority of 31 U.S.C. 3551 et 
seq., 10 U.S.C. 2305(e) and (f), or 41 U.S.C. 3706 and 3707; or (iv) 
the Administrator for Federal Procurement Policy makes a written 
determination and finding (D&F) that it would not be in the best 
interest of the Federal Government to exempt contracts for the 
procurement of COTS items from the provision of law. If none of these 
conditions are met, the Federal Acquisition Regulation (FAR) is 
required to include the statutory requirement(s) on a list of 
provisions of law that are inapplicable to acquisitions of COTS items.
    The ETGCA requires that the FAR must be amended to provide certain 
protections against trafficking in persons, including the following:
    1. A clause that prohibits contractors and subcontractors from 
engaging in the following types of trafficking-related activities:
     Destroying, concealing, removing, confiscating, or 
otherwise denying access to the employee's identity or immigration 
documents.
     Failing to provide return transportation for an employee 
from a country outside the United States to the country from which the 
employee was recruited upon the end of employment unless the contractor 
is exempted from the requirement or the employee is a victim of human 
trafficking and is seeking redress in the country of employment or a 
witness in a human trafficking enforcement action.
     Soliciting a person for the purposes of employment, or 
offering employment by means of materially false or fraudulent 
pretenses, representations, or promises regarding that employment.
     Charging recruited employees unreasonable placement or 
recruitment fees such as fees equal to or greater than the employee's 
monthly salary, or recruitment fees that violate the laws of the 
country from which an employee is recruited;
     Providing or arranging housing that fails to meet the host 
Country housing and safety standards.
    2. A requirement that contractors and subcontractors fully 
cooperate with any Federal agencies responsible for audits, 
investigations or corrective actions relating to trafficking in 
persons. The head of an executive agency must ensure that any 
substantiated allegation in the report be included in the Federal 
Awardee Performance and Integrity Information System (FAPIIS) and the 
contractor has an opportunity to respond.
    3. A requirement for a compliance plan appropriate to the size and 
complexity of the contract and a certification, upon award and annually 
thereafter, which provides that after conducting due diligence the 
contractor has implemented a plan to prevent any prohibited trafficking 
in persons activities and implemented procedures to prevent any 
prohibited trafficking in persons activities. These requirements for a 
certification and compliance plan apply to contracts and subcontracts, 
if any portion of the contract or subcontract--
     Is for services to be performed outside the United States; 
and
     The estimated value exceeds $500,000.
    The contractor must provide a copy of the plan to the contracting 
officer, upon request, and post useful and relevant contents of the 
plan on its Web site and at the workplace.
    Several months prior to the enactment of the ETGCA, the President 
signed E.O. 13627, Strengthening Protections Against Trafficking In 
Persons In Federal Contracts (September 25, 2012). The E.O. imposed 
similar requirements, including a requirement for the development of 
compliance plans and certifications. There are some differences. For 
example, the E.O. expressly prohibits Federal contractors and 
subcontractors from charging employees recruitment fees.
    Section 1 of E.O. 13627, explaining the government's policy against 
trafficking in persons, states: The United States has long had a zero-
tolerance policy regarding Government employees and contractor 
personnel engaging in any form of this criminal behavior. As 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. By providing our 
Government workforce with additional tools and training to apply and 
enforce existing policy, and by providing additional clarity to 
Government contractors and subcontractors on the steps necessary to 
fully comply with that policy, this order will help to protect 
vulnerable individuals as contractors and subcontractors perform vital 
services and manufacture the goods procured by the United States.
    In addition, the improved safeguards provided by this order to 
strengthen compliance with anti-trafficking laws will promote economy 
and efficiency in Government procurement. These safeguards, which have 
been largely modeled on successful practices in the private sector, 
will increase stability, productivity, and certainty in Federal 
contracting by avoiding the disruption and disarray caused by the use 
of trafficked labor and resulting investigative and enforcement 
actions.
    The ETGCA is silent on the applicability of its requirements to 
COTS items. In addition, the ETGCA does not provide for criminal or 
civil penalties. Nor does it concern authorities or responsibilities 
under the Small Business Act or bid protest procedures. Therefore, the 
ETGCA does not apply to the acquisition of COTS, pursuant to 41 U.S.C. 
1907, unless the Administrator for Federal Procurement Policy makes a 
written determination that such application is in the best interest of 
the Federal Government.
    In contrast to the ETGCA, E.O. 13627 expressly applies its 
strengthened requirements to all acquisitions, including those for 
commercial items and COTS. In addition, the E.O. expressly excludes 
application of the requirement for compliance plans and certifications 
to COTS.
    The final FAR rule mirrors the implementation approach taken by 
E.O. 13627 regarding the acquisition of COTS products. Specifically, 
the rule applies the general prohibitions described in paragraphs 1 and 
2 of section IV.C. of this preamble to COTS but not the requirements 
for a compliance plan and certification described in paragraph 3 of 
section IV.C. of this preamble. This approach is reflected in FAR 
clause 52.222-50 and 52.212-5. By applying the general prohibitions, 
the rule, like the E.O., most effectively furthers the policy, 
including economy and efficiency in procurement, described in the E.O. 
and quoted above and avoids creation of an exception that could 
undermine this policy and the ability to enforce the prohibition. At 
the same time, by excluding the requirements for providers of COTS 
items to develop a compliance plan and execute a certification, the 
rule avoids the cost and complexity that contractors selling COTS may 
face tracing the origin of component parts in a global supply chain.
    The provisions listed above will apply to acquisitions for 
commercial items. They will also apply to contracts and subcontracts 
not greater than simplified

[[Page 4986]]

acquisition threshold, except for the requirements for a compliance 
plan and certification. Separate D&Fs outline the rationale for those 
additional determinations, as required in 41 U.S.C. 1905 and 1906, 
respectively.

V. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is a significant regulatory action and, therefore, was subject to 
review under section 6(b) of E.O. 12866, Regulatory Planning and 
Review, dated September 30, 1993. This rule is not a major rule under 5 
U.S.C. 804.

VI. Regulatory Flexibility Act

    DoD, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601, et seq. The FRFA is summarized as follows:

    The objective of the final rule is to strengthen protections 
against trafficking in persons in Federal contracting by providing 
the Government workforce with additional tools to enforce existing 
policy and provide additional clarity to Government contractors and 
subcontractors on the steps necessary to comply with that policy. 
While the goal is to implement the E.O. and statute to the maximum 
extent practicable in the FAR to strengthen protections against 
trafficking in persons, the FAR Council has taken steps to minimize 
the burden associated with this rule.
    One respondent separately submitted comments on the reporting 
burden to the Chief Counsel for Advocacy at the Small Business 
Administration, in conjunction with comments that the information 
collection requirements of the rule are understated. Another 
respondent recommended that the FAR Council should conduct a 
thorough and complete regulatory flexibility analysis of the global 
reach of the proposed rule.
    DoD, GSA, and NASA conducted an analysis of the burdens 
associated with this rule that considers that global nature 
including the flowdown requirements of this rule. Small business 
concerns cannot be excluded from the requirements of this rule, 
because violations of the trafficking in persons prohibitions often 
occur at the lower subcontract tiers and frequently involve small 
businesses. However, the rule does provide maximum flexibility to 
small businesses. The compliance and certification requirements only 
apply to any portion of the contract or subcontract that is for 
supplies (other than COTS items) to be acquired outside the United 
States, or services to be performed outside the United States; and 
if such portion has an estimated value that exceeds $500,000. 
Furthermore, if a compliance plan is required, it shall be 
appropriate to the size and complexity of the contract or 
subcontract and the nature and scope of the activities under the 
contract or subcontract.
    Any entity of any size that violates the U.S. Government's 
policy prohibiting trafficking in persons will be impacted by this 
rule. New policies prohibit denying an employee access to his/her 
identity or immigration documents; using misleading or fraudulent 
recruitment practices or charging 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. There are also requirements for a compliance plan and 
certification; this will impact only entities where the estimated 
value of supplies acquired or services to be performed outside the 
United States exceeds $500,000. There is no requirement for a 
compliance plan or certification if the supplies to be furnished 
outside the United States involve solely commercially available off-
the-shelf items. DoD, GSA, and NASA anticipate that these 
certification and written compliance plan exceptions will 
significantly reduce the impact on small entities.
    Using Fiscal Year 2011 data from the Federal Procurement Data 
System (FPDS) and Electronic Subcontractor Reporting System (eSRS), 
DoD, GSA, and NASA estimate that about 1,622 of the entities 
impacted will be small entities. This number is the number of small 
businesses with a prime contract or subcontract of $500,000 or more 
that is performed outside the U.S.
    The rule requires the following projected reporting and 
recordkeeping burdens for access to information:
    a. Compliance Plan: (1,622 recordkeepers x 24 hours per record = 
38,928 hours)
    b. Certification: (1,622 respondents x 4 hours per response = 
6,488 hours)
    For the certification process, DoD, GSA, and NASA estimate that 
the respondents will be high-level administrative/legal employees 
earning an average of approximately $83.00 an hour ($60.47 + 36.45% 
overhead). For the compliance plan, DoD, GSA, and NASA estimate that 
the respondents will be high-level administrative/program manager 
employees earning an average of approximately $68.00 per hour 
($50.05 + 36.45% overhead).
    DoD, GSA, and NASA have taken steps in this rule to minimize the 
impact on small entities by allowing contractors to tailor the 
compliance plan requirements to the appropriate size and complexity 
of the contract and subcontract and the nature and scope of the 
activities performed, including number of non-U.S. citizens expected 
to be employed and the risk that these activities will involve 
services or supplies susceptible to trafficking in persons.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat. The Regulatory Secretariat has submitted a copy 
of the FRFA to the Chief Counsel for Advocacy of the Small Business 
Administration.

VII. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies. The 
rule contains information collection requirements. OMB has cleared this 
information collection requirement under OMB Control Number 9000-0188, 
titled: Ending Trafficking in Persons.

List of Subjects in 48 CFR Parts 1, 2, 9, 12, 22, 42, and 52

    Government procurement.

    Dated: January 22, 2015.
William Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.
    Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 2, 9, 12, 22, 
42, and 52 as set forth below:

0
1. The authority citation for 48 CFR parts 1, 2, 9, 12, 22, 42, and 52 
continues to read as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM


1.106  [Amended]

0
2. Amend section 1.106, in the table following the introductory text, 
by adding in numerical sequence, FAR segments ``22.17'', ``52.222-50'', 
and ``52.222-56'' and their corresponding OMB Control No. ``9000-
0188''.

PART 2--DEFINITIONS OF WORDS AND TERMS

0
3. Amend section 2.101 in paragraph (b)(2), in the definition ``United 
States'', by redesignating paragraphs (7) through (11) as paragraphs 
(8) through (12), respectively, and adding a new paragraph (7) to read 
as follows:


2.101  Definitions.

* * * * *
    (b) * * *
    (2) * * *
    United States * * *
    (7) For use in subpart 22.17, see the definition at 22.1702.
* * * * *

PART 9--CONTRACTOR QUALIFICATIONS

0
4. Amend section 9.104-6 by revising paragraph (b) to read as follows:

[[Page 4987]]

9.104-6  Federal Awardee Performance and Integrity Information System.

* * * * *
    (b) The contracting officer shall consider all the information in 
FAPIIS and other past performance information (see subpart 42.15) when 
making a responsibility determination. For source selection evaluations 
of past performance, see 15.305(a)(2). Contracting officers shall use 
sound judgment in determining the weight and relevance of the 
information contained in FAPIIS and how it relates to the present 
acquisition.
    (1) Since FAPIIS may contain information on any of the offeror's 
previous contracts and information covering a five-year period, some of 
that information may not be relevant to a determination of present 
responsibility, e.g., a prior administrative action such as debarment 
or suspension that has expired or otherwise been resolved, or 
information relating to contracts for completely different products or 
services.
    (2) Because FAPIIS is a database that provides information about 
prime contractors, the contracting officer posts information required 
to be posted about a subcontractor, such as trafficking in persons 
violations, to the record of the prime contractor (see 
42.1503(h)(1)(v)). The prime contractor has the opportunity to post in 
FAPIIS any mitigating factors. The contracting officer shall consider 
any mitigating factors posted in FAPIIS by the prime contractor, such 
as degree of compliance by the prime contractor with the terms of FAR 
clause 52.222-50.
* * * * *

PART 12--ACQUISITION OF COMMERCIAL ITEMS


12.103  [Amended]

0
5. Amend section 12.103 by removing from the third sentence the words 
``; the components test of the Buy American statute, and the two 
recovered materials certifications in subpart 23.4, do not apply to 
COTS items''.


0
6. Amend section 12.301 by redesignating paragraphs (d)(4) and (5) as 
paragraphs (d)(5) and (6), respectively, and adding new paragraph 
(d)(4) to read as follows:


12.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

* * * * *
    (d) * * *
    (4) Insert the provision at 52.222-56, Certification Regarding 
Trafficking in Persons Compliance Plan, in solicitations as prescribed 
at 22.1705(b).
* * * * *


0
7. Amend section 12.505 by adding paragraph (c) to read as follows:


12.505  Applicability of certain laws to contracts for the acquisition 
of COTS items.

* * * * *
    (c) Compliance Plan and Certification Requirement, section 1703 of 
the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 
112-239), Title XVII, Ending trafficking in Government Contracting (see 
52.222-50(h) and 52.222-56).

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

0
8. Revise section 22.1700 to read as follows:


22.1700  Scope of subpart.

    This subpart prescribes policy for implementing 22 U.S.C. chapter 
78 and Executive Order 13627, Strengthening Protections Against 
Trafficking in Persons in Federal Contracts, dated September 25, 2012.

0
9. Revise section 22.1701 to read as follows:


22.1701  Applicability.

    (a) This subpart applies to all acquisitions.
    (b) The requirement at 22.1703(c) for a certification and 
compliance plan applies only to any portion of a contract or 
subcontract that--
    (1) Is for supplies, other than commercially available off-the-
shelf (COTS) items, to be acquired outside the United States, or 
services to be performed outside the United States; and
    (2) Has an estimated value that exceeds $500,000.

0
10. Amend section 22.1702 by adding, in alphabetical order, the 
definitions ``Agent'', ``Subcontract'', ``Subcontractor'', and ``United 
States'' to read as follows:


22.1702  Definitions.

* * * * *
    Agent means any individual, including a director, an officer, an 
employee, or an independent contractor, authorized to act on behalf of 
the organization.
* * * * *
    Subcontract means any contract entered into by a subcontractor to 
furnish supplies or services for performance of a prime contract or a 
subcontract.
    Subcontractor means any supplier, distributor, vendor, or firm that 
furnishes supplies or services to or for a prime contractor or another 
subcontractor.
    United States means the 50 States, the District of Columbia, and 
outlying areas.

0
11. Amend section 22.1703 by--
0
a. Revising the introductory text and paragraph (a);
0
b. Removing from the end of paragraph (b) ``; and'' and adding ``;'' in 
its place;
0
c. Revising paragraph (c); and
0
d. Adding paragraphs (d) and (e).
    The revisions and additions read as follows:


22.1703  Policy.

    The United States Government has adopted a policy prohibiting 
trafficking in persons, including the trafficking-related activities 
below. Additional information about trafficking in persons may be found 
at the Web site for the Department of State's Office to Monitor and 
Combat Trafficking in Persons at https://www.state.gov/j/tip/. 
Government solicitations and contracts shall--
    (a) Prohibit contractors, contractor employees, subcontractors, 
subcontractor employees, and their agents from--
    (1) Engaging in severe forms of trafficking in persons during the 
period of performance of the contract;
    (2) Procuring commercial sex acts during the period of performance 
of the contract;
    (3) Using forced labor in the performance of the contract;
    (4) Destroying, concealing, confiscating, or otherwise denying 
access by an employee to the employee's identity or immigration 
documents, such as passports or drivers' licenses, regardless of 
issuing authority;
    (5)(i) Using misleading or fraudulent practices during the 
recruitment of employees or offering of employment, such as failing to 
disclose, in a format and language accessible to the worker, basic 
information or making material misrepresentations during the 
recruitment of employees regarding the key terms and conditions of 
employment, including wages and fringe benefits, the location of work, 
the living conditions, housing and associated costs (if employer or 
agent provided or arranged), any significant costs to be charged to the 
employee, and, if applicable, the hazardous nature of the work;
    (ii) Using recruiters that do not comply with local labor laws of 
the country in which the recruiting takes place;
    (6) Charging employees recruitment fees;

[[Page 4988]]

    (7)(i)(A) Failing to provide return transportation or pay for the 
cost of return transportation upon the end of employment, for an 
employee who is not a national of the country in which the work is 
taking place and who was brought into that country for the purpose of 
working on a U.S. Government contract or subcontract, for portions of 
contracts and subcontracts performed outside the United States; or
    (B) Failing to provide return transportation or pay for the cost of 
return transportation upon the end of employment, for an employee who 
is not a United States national and who was brought into the United 
States for the purpose of working on a U.S. Government contract or 
subcontract, if the payment of such costs is required under existing 
temporary worker programs or pursuant to a written agreement with the 
employee for portions of contracts and subcontracts performed inside 
the United States; except that--
    (ii) The requirements of paragraph (a)(7)(i) of this section do not 
apply to an employee who is--
    (A) Legally permitted to remain in the country of employment and 
who chooses to do so; or
    (B) Exempted by an authorized official of the contracting agency, 
designated by the agency head in accordance with agency procedures, 
from the requirement to provide return transportation or pay for the 
cost of return transportation;
    (iii) The requirements of paragraph (a)(7)(i) of this section are 
modified for a victim of trafficking in persons who is seeking victim 
services or legal redress in the country of employment, or for a 
witness in an enforcement action related to trafficking in persons. The 
contractor shall provide the return transportation or pay the cost of 
return transportation in a way that does not obstruct the victim 
services, legal redress, or witness activity. For example, the 
contractor shall also offer return transportation to a witness at a 
time that supports the witness' need to testify. This paragraph does 
not apply when the exemptions at paragraph (a)(7)(ii) of this section 
apply.
    (8) Providing or arranging housing that fails to meet the host 
country housing and safety standards; or
    (9) If required by law or contract, failing to provide an 
employment contract, recruitment agreement, or other required work 
document in writing. Such written document shall be in a language the 
employee understands. If the employee must relocate to perform the 
work, the work document shall be provided to the employee at least five 
days prior to the employee relocating. The employee's work document 
shall include, but is not limited to, details about work description, 
wages, prohibition on charging recruitment fees, work location(s), 
living accommodations and associated costs, time off, roundtrip 
transportation arrangements, grievance process, and the content of 
applicable laws and regulations that prohibit trafficking in persons. 
The contracting officer shall consider the risk that the contract or 
subcontract will involve services or supplies susceptible to 
trafficking in persons, and the number of non-U.S. citizens expected to 
be employed, when deciding whether to require work documents in the 
contract;
* * * * *
    (c) With regard to certification and a compliance plan--
    (1)(i) Require the apparent successful offeror to provide, before 
contract award, a certification (see 52.222-56) that the offeror has a 
compliance plan if any portion of the contract or subcontract--
    (A) Is for supplies, other than COTS items (see 2.101), to be 
acquired outside the United States, or services to be performed outside 
the United States; and
    (B) The estimated value exceeds $500,000.
    (ii) The certification must state that--
    (A) The offeror has implemented the plan and has implemented 
procedures to prevent any prohibited activities and to monitor, detect, 
and terminate the contract with a subcontractor or agent engaging in 
prohibited activities; and
    (B) After having conducted due diligence, either--
    (1) To the best of the offeror's knowledge and belief, neither it 
nor any of its agents, proposed subcontractors, or their agents, has 
engaged in any such activities; or
    (2) If abuses relating to any of the prohibited activities 
identified in 52.222-50(b) have been found, the offeror or proposed 
subcontractor has taken the appropriate remedial and referral actions;
    (2) Require annual certifications (see 52.222-50(h)(5)) during 
performance of the contract, when a compliance plan was required at 
award;
    (3)(i) Require the contractor to obtain a certification from each 
subcontractor, prior to award of a subcontract, if any portion of the 
subcontract--
    (A) Is for supplies, other than COTS items (see 2.101), to be 
acquired outside the United States, or services to be performed outside 
the United States; and
    (B) The estimated value exceeds $500,000.
    (ii) The certification must state that--
    (A) The subcontractor has implemented a compliance plan; and
    (B) After having conducted due diligence, either--
    (1) To the best of the subcontractor's knowledge and belief, 
neither it nor any of its agents, subcontractors, or their agents, has 
engaged in any such activities; or
    (2) If abuses relating to any of the prohibited activities 
identified in 52.222-50(b) have been found, the subcontractor has taken 
the appropriate remedial and referral actions;
    (4) Require the contractor to obtain annual certifications from 
subcontractors during performance of the contract, when a compliance 
plan was required at the time of subcontract award; and
    (5) Require that any compliance plan or procedures shall be 
appropriate to the size and complexity of the contract and the nature 
and scope of its activities, including the number of non-U.S. citizens 
expected to be employed and the risk that the contract or subcontract 
will involve services or supplies susceptible to trafficking in 
persons. The minimum elements of the plan are specified at 52.222-
50(h);
    (d) Require the contractor and subcontractors to--
    (1) Disclose to the contracting officer and the agency Inspector 
General information sufficient to identify the nature and extent of an 
offense and the individuals responsible for the conduct;
    (2) Provide timely and complete responses to Government auditors' 
and investigators' requests for documents;
    (3) Cooperate fully in providing reasonable access to their 
facilities and staff (both inside and outside the U.S.) to allow 
contracting agencies and other responsible Federal agencies to conduct 
audits, investigations, or other actions to ascertain compliance with 
the Trafficking Victims Protection Act (22 U.S.C. chapter 78), 
Executive Order 13627, or any other applicable law or regulation 
establishing restrictions on trafficking in persons, the procurement of 
commercial sex acts, or the use of forced labor; and
    (4) Protect all employees suspected of being victims of or 
witnesses to prohibited activities, prior to returning to the country 
from which the employee was recruited, and shall not prevent or hinder 
the ability of these employees from cooperating fully with Government 
authorities; and
    (e) Provide suitable remedies, including termination, to be imposed 
on contractors that fail to comply with the requirements of paragraphs 
(a) through (d) of this section.

[[Page 4989]]


0
12. Revise section 22.1704 to read as follows:


22.1704  Violations and remedies.

    (a) Violations. It is a violation of the Trafficking Victims 
Protection Act of 2000, as amended, (22 U.S.C. chapter 78), E.O. 13627, 
or the policies of this subpart if--
    (1) The contractor, contractor employee, subcontractor, 
subcontractor employee, or agent engages in severe forms of trafficking 
in persons during the period of performance of the contract;
    (2) The contractor, contractor employee, subcontractor, 
subcontractor employee, or agent procures a commercial sex act during 
the period of performance of the contract;
    (3) The contractor, contractor employee, subcontractor, 
subcontractor employee, or agent uses forced labor in the performance 
of the contract; or
    (4) The contractor fails to comply with the requirements of the 
clause at 52.222-50, Combating Trafficking in Persons.
    (b) Credible information. Upon receipt of credible information 
regarding a violation listed in paragraph (a) of this section, the 
contracting officer--
    (1) Shall promptly notify, in accordance with agency procedures, 
the agency Inspector General, the agency debarring and suspending 
official, and if appropriate, law enforcement officials with 
jurisdiction over the alleged offense; and
    (2) May direct the contractor to take specific steps to abate the 
alleged violation or enforce the requirements of its compliance plan.
    (c) Receipt of agency Inspector General report. (1) The head of an 
executive agency shall ensure that the contracting officer is provided 
a copy of the agency Inspector General report of an investigation of a 
violation of the trafficking in persons prohibitions in 22.1703(a) and 
52.222-50(b).
    (2)(i) Upon receipt of a report from the agency Inspector General 
that provides support for the allegations, the head of the executive 
agency, in accordance with agency procedures, shall delegate to an 
authorized agency official, such as the agency suspending or debarring 
official, the responsibility to--
    (A) Expeditiously conduct an administrative proceeding, allowing 
the contractor the opportunity to respond to the report;
    (B) Make a final determination as to whether the allegations are 
substantiated; and
    (C) Notify the contracting officer of the determination.
    (ii) Whether or not the official authorized to conduct the 
administrative proceeding is the suspending and debarring official, the 
suspending and debarring official has the authority, at any time before 
or after the final determination as to whether the allegations are 
substantiated, to use the suspension and debarment procedures in 
subpart 9.4 to suspend, propose for debarment, or debar the contractor, 
if appropriate, also considering the factors at 22.1704(d)(2).
    (d) Remedies. After a final determination in accordance with 
paragraph (c)(2)(ii) of this section that the allegations of a 
trafficking in persons violation are substantiated, the contracting 
officer shall--
    (1) Enter the violation in FAPIIS (see 42.1503(h)); and
    (2) Consider taking any of the remedies specified in paragraph (e) 
of the clause at 52.222-50, Combating Trafficking in Persons. These 
remedies are in addition to any other remedies available to the United 
States Government. When determining the appropriate remedies, the 
contracting officer may consider the following factors:
    (i) Mitigating factors. The contractor had a Trafficking in Persons 
compliance plan or awareness program at the time of the violation, was 
in compliance with the plan at the time of the violation, and has taken 
appropriate remedial actions for the violations, that may include 
reparation to victims for such violations.
    (ii) Aggravating factors. The contractor failed to abate an alleged 
violation or enforce the requirements of a compliance plan, when 
directed by a contracting officer to do so.

0
13. Revise section 22.1705 to read as follows:


22.1705  Solicitation provision and contract clause.

    (a)(1) Insert the clause at 52.222-50, Combating Trafficking in 
Persons, in all solicitations and contracts.
    (2) Use the clause with its Alternate I when the contract will be 
performed outside the United States (as defined at 22.1702) and the 
contracting officer has been notified of specific U.S. directives or 
notices regarding combating trafficking in persons (such as general 
orders or military listings of ``off-limits'' local establishments) 
that apply to contractor employees at the contract place of 
performance.
    (b) Insert the provision at 52.222-56, Certification Regarding 
Trafficking in Persons Compliance Plan, in solicitations if--
    (1) It is possible that at least $500,000 of the value of the 
contract may be performed outside the United States; and
    (2) The acquisition is not entirely for commercially available off-
the-shelf items.

PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES

0
14. Amend section 42.1503 by--
0
a. Removing from paragraph (h)(1)(iii) ``; or'' and adding ``;'' in its 
place;
0
b. Removing from paragraph (h)(1)(iv) ``convenience.'' and adding 
``convenience; or'' in its place;
0
c. Adding a new paragraph (h)(1)(v);
0
d. Redesignating paragraphs (h)(2) and (3) as paragraphs (h)(3) and 
(4), respectively; and
0
e. Adding a new paragraph (h)(2).
    The additions read as follows:


42.1503  Procedures.

* * * * *
    (h) * * *
    (1) * * *
    (v) Receives a final determination after an administrative 
proceeding, in accordance with 22.1704(d)(1), that substantiates an 
allegation of a violation of the trafficking in persons prohibitions in 
22.1703(a) and 52.222-50(b).
    (2) The information to be posted in accordance with this paragraph 
(h) is information relating to contractor performance, but does not 
constitute a ``past performance review,'' which would be exempted from 
public availability in accordance with section 3010 of the Supplemental 
Appropriations Act, 2010 (Pub. L. 111-212). Therefore, all such 
information posted in FAPIIS will be publicly available, unless covered 
by a disclosure exemption under the Freedom of Information Act (see 
9.105-2(b)(2)).
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
15. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Removing paragraph (a)(2);
0
c. Redesignating paragraphs (a)(3) and (4) as paragraphs (a)(2) and 
(3), respectively;
0
d. Redesignating paragraphs (b)(33) through (53) as paragraphs (b)(34) 
through (54), respectively;
0
e. Adding a new paragraph (b)(33);
0
f. Revising paragraph (e)(1)(x); and
0
g. Amending Alternate II by--
0
i. Revising the date of the Alternate; and
0
ii. Revising paragraph (e)(1)(ii)(I).
    The revisions and additions read as follows:

[[Page 4990]]

52.212-5  Contract Terms and Conditions Required to Implement Statutes 
or Executive Orders--Commercial Items.

* * * * *

Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders-Commercial Items (March 2, 2015)

* * * * *
    (b) * * *
    __(33)(i) 52.222-50, Combating Trafficking in Persons (March 2, 
2015) (22 U.S.C. chapter 78 and E.O. 13627).
    __(ii) Alternate I (March 2, 2015) of 52.222-50 (22 U.S.C. 
chapter 78 and E.O. 13627).
* * * * *
    (e)(1) * * *
    (x) __(A) 52.222-50, Combating Trafficking in Persons (March 2, 
2015) (22 U.S.C. chapter 78 and E.O. 13627).
    __(B) Alternate I (March 2, 2015) of 52.222-50 (22 U.S.C. 
chapter 78 and E.O. 13627).
* * * * *
    Alternate II (March 2, 2015).* * *
* * * * *
    (e)(1) * * *
    (ii) * * *
    (I) __ (1) 52.222-50, Combating Trafficking in Persons (March 2, 
2015) (22 U.S.C. chapter 78 and E.O. 13627).
    __ (2) Alternate I (March 2, 2015) of 52.222-50 (22 U.S.C. 
chapter 78 and E.O. 13627).
* * * * *


0
16. Amend section 52.213-4 by--
0
a. Revising the date of the clause;
0
b. Removing paragraph (a)(1)(iv);
0
c. Redesignating paragraphs (a)(1)(v) through (vii) as paragraphs 
(a)(1)(iv) through (vi), respectively;
0
d. Revising paragraph (a)(2)(viii);
0
e. Redesignating paragraphs (b)(1)(viii) through (xiv) as paragraphs 
(b)(1)(ix) through (xv), respectively; and
0
f. Adding a new paragraph (b)(1)(viii).
    The revision and addition read as follows:


52.213-4  Terms and Conditions--Simplified Acquisitions (Other Than 
Commercial Items).

* * * * *

Terms and Conditions-Simplied Acquisitions (Other Than Commercial 
Items) (March 2, 2015)

* * * * *
    (a) * * *
    (2) * * *
    (viii) 52.244-6, Subcontracts for Commercial Items (March 2, 
2015)
* * * * *
    (b) * * *
    (1) * * *
    (i) * * *
    (viii)(A) 52.222-50, Combating Trafficking in Persons (March 2, 
2015) (22 U.S.C. chapter 78 and E.O. 13627) (Applies to all 
solicitations and contracts).
    (B) Alternate I (applies if the Contracting Officer has filled 
in the following information with regard to applicable directives or 
notices: Document title(s), source for obtaining document(s), and 
contract performance location outside the United States to which the 
document applies.
* * * * *


0
17. Amend section 52.222-50 by--
0
a. Removing from the introductory paragraph ``22.1705(a)'' and adding 
``22.1705(a)(1)'' in its place;
0
b. Revising the date of the clause;
0
c. Adding to paragraph (a), in alphabetical order, the definitions 
``Agent'', ``Commercially available off-the-shelf (COTS) item'', 
``Subcontract'', ``Subcontractor'', and ``United States'';
0
d. Revising paragraphs (b) through (e);
0
e. Removing paragraph (f);
0
f. Redesignating paragraph (g) as paragraph (f);
0
g. Revising the newly designated paragraph (f);
0
h. Adding new paragraphs (g), (h), and (i); and
0
i. Amending Alternate I by--
0
i. Revising the date of the Alternate, introductory paragraph, and 
paragraph (i)(A); and
0
ii. Removing from paragraph (i)(B), in the table, third column, 
``Applies Performance to in/at'', and adding ``Applies to performance 
in/at'' in its place, and removing in the bracketed text, ``U.S.'' and 
adding ``United States'' in its place.
    The revision and addition read as follows:


52.222-50  Combating Trafficking in Persons.

* * * * *

Combating Trafficking in Persons (March 2, 2015)

* * * * *
    (a) * * *
    Agent means any individual, including a director, an officer, an 
employee, or an independent contractor, authorized to act on behalf 
of the organization.
    Commercially available off-the-shelf (COTS) item means--
    (1) Any item of supply (including construction material) that 
is--
    (i) A commercial item (as defined in paragraph (1) of the 
definition at FAR 2.101);
    (ii) Sold in substantial quantities in the commercial 
marketplace; and
    (iii) Offered to the Government, under a contract or subcontract 
at any tier, without modification, in the same form in which it is 
sold in the commercial marketplace; and
    (2) Does not include bulk cargo, as defined in 46 U.S.C. 
40102(4), such as agricultural products and petroleum products.
* * * * *
    Subcontract means any contract entered into by a subcontractor 
to furnish supplies or services for performance of a prime contract 
or a subcontract.
    Subcontractor means any supplier, distributor, vendor, or firm 
that furnishes supplies or services to or for a prime contractor or 
another subcontractor.
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    (b) Policy. The United States Government has adopted a policy 
prohibiting trafficking in persons including the trafficking-related 
activities of this clause. Contractors, contractor employees, and 
their agents shall not--
    (1) Engage in severe forms of trafficking in persons during the 
period of performance of the contract;
    (2) Procure commercial sex acts during the period of performance 
of the contract;
    (3) Use forced labor in the performance of the contract;
    (4) Destroy, conceal, confiscate, or otherwise deny access by an 
employee to the employee's identity or immigration documents, such 
as passports or drivers' licenses, regardless of issuing authority;
    (5)(i) Use misleading or fraudulent practices during the 
recruitment of employees or offering of employment, such as failing 
to disclose, in a format and language accessible to the worker, 
basic information or making material misrepresentations during the 
recruitment of employees regarding the key terms and conditions of 
employment, including wages and fringe benefits, the location of 
work, the living conditions, housing and associated costs (if 
employer or agent provided or arranged), any significant cost to be 
charged to the employee, and, if applicable, the hazardous nature of 
the work;
    (ii) Use recruiters that do not comply with local labor laws of 
the country in which the recruiting takes place;
    (6) Charge employees recruitment fees;
    (7)(i) Fail to provide return transportation or pay for the cost 
of return transportation upon the end of employment--
    (A) For an employee who is not a national of the country in 
which the work is taking place and who was brought into that country 
for the purpose of working on a U.S. Government contract or 
subcontract (for portions of contracts performed outside the United 
States); or
    (B) For an employee who is not a United States national and who 
was brought into the United States for the purpose of working on a 
U.S. Government contract or subcontract, if the payment of such 
costs is required under existing temporary worker programs or 
pursuant to a written agreement with the employee (for portions of 
contracts performed inside the United States); except that--
    (ii) The requirements of paragraphs (b)(7)(i) of this clause 
shall not apply to an employee who is--
    (A) Legally permitted to remain in the country of employment and 
who chooses to do so; or
    (B) Exempted by an authorized official of the contracting agency 
from the requirement to provide return transportation or pay for the 
cost of return transportation;
    (iii) The requirements of paragraph (b)(7)(i) of this clause are 
modified for a victim of trafficking in persons who is seeking 
victim services or legal redress in the country of employment, or 
for a witness in an

[[Page 4991]]

enforcement action related to trafficking in persons. The contractor 
shall provide the return transportation or pay the cost of return 
transportation in a way that does not obstruct the victim services, 
legal redress, or witness activity. For example, the contractor 
shall not only offer return transportation to a witness at a time 
when the witness is still needed to testify. This paragraph does not 
apply when the exemptions at paragraph (b)(7)(ii) of this clause 
apply.
    (8) Provide or arrange housing that fails to meet the host 
country housing and safety standards; or
    (9) If required by law or contract, fail to provide an 
employment contract, recruitment agreement, or other required work 
document in writing. Such written work document shall be in a 
language the employee understands. If the employee must relocate to 
perform the work, the work document shall be provided to the 
employee at least five days prior to the employee relocating. The 
employee's work document shall include, but is not limited to, 
details about work description, wages, prohibition on charging 
recruitment fees, work location(s), living accommodations and 
associated costs, time off, roundtrip transportation arrangements, 
grievance process, and the content of applicable laws and 
regulations that prohibit trafficking in persons.
    (c) Contractor requirements. The Contractor shall--
    (1) Notify its employees and agents of--
    (i) The United States Government's policy prohibiting 
trafficking in persons, described in paragraph (b) of this clause; 
and
    (ii) The actions that will be taken against employees or agents 
for violations of this policy. Such actions for employees may 
include, but are not limited to, removal from the contract, 
reduction in benefits, or termination of employment; and
    (2) Take appropriate action, up to and including termination, 
against employees, agents, or subcontractors that violate the policy 
in paragraph (b) of this clause.
    (d) Notification. (1) The Contractor shall inform the 
Contracting Officer and the agency Inspector General immediately 
of--
    (i) Any credible information it receives from any source 
(including host country law enforcement) that alleges a Contractor 
employee, subcontractor, subcontractor employee, or their agent has 
engaged in conduct that violates the policy in paragraph (b) of this 
clause (see also 18 U.S.C. 1351, Fraud in Foreign Labor Contracting, 
and 52.203-13(b)(3)(i)(A), if that clause is included in the 
solicitation or contract, which requires disclosure to the agency 
Office of the Inspector General when the Contractor has credible 
evidence of fraud); and
    (ii) Any actions taken against a Contractor employee, 
subcontractor, subcontractor employee, or their agent pursuant to 
this clause.
    (2) If the allegation may be associated with more than one 
contract, the Contractor shall inform the contracting officer for 
the contract with the highest dollar value.
    (e) Remedies. In addition to other remedies available to the 
Government, the Contractor's failure to comply with the requirements 
of paragraphs (c), (d), (g), (h), or (i) of this clause may result 
in--
    (1) Requiring the Contractor to remove a Contractor employee or 
employees from the performance of the contract;
    (2) Requiring the Contractor to terminate a subcontract;
    (3) Suspension of contract payments until the Contractor has 
taken appropriate remedial action;
    (4) Loss of award fee, consistent with the award fee plan, for 
the performance period in which the Government determined Contractor 
non-compliance;
    (5) Declining to exercise available options under the contract;
    (6) Termination of the contract for default or cause, in 
accordance with the termination clause of this contract; or
    (7) Suspension or debarment.
    (f) Mitigating and aggravating factors. When determining 
remedies, the Contracting Officer may consider the following:
    (1) Mitigating factors. The Contractor had a Trafficking in 
Persons compliance plan or an awareness program at the time of the 
violation, was in compliance with the plan, and has taken 
appropriate remedial actions for the violation, that may include 
reparation to victims for such violations.
    (2) Aggravating factors. The Contractor failed to abate an 
alleged violation or enforce the requirements of a compliance plan, 
when directed by the Contracting Officer to do so.
    (g) Full cooperation. (1) The Contractor shall, at a minimum--
    (i) Disclose to the agency Inspector General information 
sufficient to identify the nature and extent of an offense and the 
individuals responsible for the conduct;
    (ii) Provide timely and complete responses to Government 
auditors' and investigators' requests for documents;
    (iii) Cooperate fully in providing reasonable access to its 
facilities and staff (both inside and outside the U.S.) to allow 
contracting agencies and other responsible Federal agencies to 
conduct audits, investigations, or other actions to ascertain 
compliance with the Trafficking Victims Protection Act of 2000 (22 
U.S.C. chapter 78), E.O. 13627, or any other applicable law or 
regulation establishing restrictions on trafficking in persons, the 
procurement of commercial sex acts, or the use of forced labor; and
    (iv) Protect all employees suspected of being victims of or 
witnesses to prohibited activities, prior to returning to the 
country from which the employee was recruited, and shall not prevent 
or hinder the ability of these employees from cooperating fully with 
Government authorities.
    (2) The requirement for full cooperation does not foreclose any 
Contractor rights arising in law, the FAR, or the terms of the 
contract. It does not--
    (i) Require the Contractor to waive its attorney-client 
privilege or the protections afforded by the attorney work product 
doctrine;
    (ii) Require any officer, director, owner, employee, or agent of 
the Contractor, including a sole proprietor, to waive his or her 
attorney client privilege or Fifth Amendment rights; or
    (iii) Restrict the Contractor from--
    (A) Conducting an internal investigation; or
    (B) Defending a proceeding or dispute arising under the contract 
or related to a potential or disclosed violation.
    (h) Compliance plan. (1) This paragraph (h) applies to any 
portion of the contract that--
    (i) Is for supplies, other than commercially available off-the-
shelf items, acquired outside the United States, or services to be 
performed outside the United States; and
    (ii) Has an estimated value that exceeds $500,000.
    (2) The Contractor shall maintain a compliance plan during the 
performance of the contract that is appropriate--
    (i) To the size and complexity of the contract; and
    (ii) To the nature and scope of the activities to be performed 
for the Government, including the number of non-United States 
citizens expected to be employed and the risk that the contract or 
subcontract will involve services or supplies susceptible to 
trafficking in persons.
    (3) Minimum requirements. The compliance plan must include, at a 
minimum, the following:
    (i) An awareness program to inform contractor employees about 
the Government's policy prohibiting trafficking-related activities 
described in paragraph (b) of this clause, the activities 
prohibited, and the actions that will be taken against the employee 
for violations. Additional information about Trafficking in Persons 
and examples of awareness programs can be found at the Web site for 
the Department of State's Office to Monitor and Combat Trafficking 
in Persons at https://www.state.gov/j/tip/.
    (ii) A process for employees to report, without fear of 
retaliation, activity inconsistent with the policy prohibiting 
trafficking in persons, including a means to make available to all 
employees the hotline phone number of the Global Human Trafficking 
Hotline at 1-844-888-FREE and its email address at help@befree.org.
    (iii) A recruitment and wage plan that only permits the use of 
recruitment companies with trained employees, prohibits charging 
recruitment fees to the employee, and ensures that wages meet 
applicable host-country legal requirements or explains any variance.
    (iv) A housing plan, if the Contractor or subcontractor intends 
to provide or arrange housing, that ensures that the housing meets 
host-country housing and safety standards.
    (v) Procedures to prevent agents and subcontractors at any tier 
and at any dollar value from engaging in trafficking in persons 
(including activities in paragraph (b) of this clause) and to 
monitor, detect, and terminate any agents, subcontracts, or 
subcontractor employees that have engaged in such activities.
    (4) Posting. (i) The Contractor shall post the relevant contents 
of the compliance plan, no later than the initiation of contract 
performance, at the workplace (unless the work is to be performed in 
the field or not in a fixed location) and on the Contractor's Web 
site (if one is maintained). If posting at

[[Page 4992]]

the workplace or on the Web site is impracticable, the Contractor 
shall provide the relevant contents of the compliance plan to each 
worker in writing.
    (ii) The Contractor shall provide the compliance plan to the 
Contracting Officer upon request.
    (5) Certification. Annually after receiving an award, the 
Contractor shall submit a certification to the Contracting Officer 
that--
    (i) It has implemented a compliance plan to prevent any 
prohibited activities identified at paragraph (b) of this clause and 
to monitor, detect, and terminate any agent, subcontract or 
subcontractor employee engaging in prohibited activities; and
    (ii) After having conducted due diligence, either--
    (A) To the best of the Contractor's knowledge and belief, 
neither it nor any of its agents, subcontractors, or their agents is 
engaged in any such activities; or
    (B) If abuses relating to any of the prohibited activities 
identified in paragraph (b) of this clause have been found, the 
Contractor or subcontractor has taken the appropriate remedial and 
referral actions.
    (i) Subcontracts. (1) The Contractor shall include the substance 
of this clause, including this paragraph (i), in all subcontracts 
and in all contracts with agents. The requirements in paragraph (h) 
of this clause apply only to any portion of the subcontract that--
    (A) Is for supplies, other than commercially available off-the-
shelf items, acquired outside the United States, or services to be 
performed outside the United States; and
    (B) Has an estimated value that exceeds $500,000.
    (2) If any subcontractor is required by this clause to submit a 
certification, the Contractor shall require submission prior to the 
award of the subcontract and annually thereafter. The certification 
shall cover the items in paragraph (h)(5) of this clause.


(End of clause)

    Alternate I (March 2, 2015). As prescribed in 22.1705(a)(2), 
substitute the following paragraph in place of paragraph (c)(1)(i) 
of the basic clause:
    (i)(A) The United States Government's policy prohibiting 
trafficking in persons described in paragraph (b) of this clause; 
and
* * * * *


0
18. Add section 52.222-56 to read as follows:


52.222-56  Certification Regarding Trafficking in Persons Compliance 
Plan.

    As prescribed in 22.1705(b), insert the following provision:

Certification Regarding Trafficking in Persons Compliance Plan (March 
2, 2015)

    (a) The term ``commercially available off-the-shelf (COTS) 
item,'' is defined in the clause of this solicitation entitled 
``Combating Trafficking in Persons'' (FAR clause 52.222-50).
    (b) The apparent successful Offeror shall submit, prior to 
award, a certification, as specified in paragraph (c) of this 
provision, for the portion (if any) of the contract that--
    (1) Is for supplies, other than commercially available off-the-
shelf items, to be acquired outside the United States, or services 
to be performed outside the United States; and
    (2) Has an estimated value that exceeds $500,000.
    (c) The certification shall state that--
    (1) It has implemented a compliance plan to prevent any 
prohibited activities identified in paragraph (b) of the clause at 
52.222-50, Combating Trafficking in Persons, and to monitor, detect, 
and terminate the contract with a subcontractor engaging in 
prohibited activities identified at paragraph (b) of the clause at 
52.222-50, Combating Trafficking in Persons; and
    (2) After having conducted due diligence, either--
    (i) To the best of the Offeror's knowledge and belief, neither 
it nor any of its proposed agents, subcontractors, or their agents 
is engaged in any such activities; or
    (ii) If abuses relating to any of the prohibited activities 
identified in 52.222-50(b) have been found, the Offeror or proposed 
subcontractor has taken the appropriate remedial and referral 
actions.


(End of provision)

0
19. Amend section 52.244-6 by revising the date of the clause and 
paragraph (c)(1)(ix) to read as follows:


52.244-6  Subcontracts for Commercial Items.

* * * * *

Subcontracts for Commercial Items (March 2, 2015)

* * * * *
    (c)(1) * * *
    (i) * * *
    (ix)(A) 52.222-50, Combating Trafficking in Persons (March 2, 
2015) (22 U.S.C. chapter 78 and E.O. 13627).
    (B) Alternate I (March 2, 2015) of 52.222-50 (22 U.S.C. chapter 
78 and E.O. 13627).
* * * * *
[FR Doc. 2015-01524 Filed 1-28-15; 8:45 am]
BILLING CODE 6820-EP-P