Almost one year after the amendments to the FAR’s anti-human trafficking rule went into effect, Congress is showing signs of bi-partisan support for enforcement of human trafficking prohibitions through the House’s passage of the Trafficking Prevention in Foreign Affairs Contracting Act (H.R. 400) (the “Act”).  As we have previously discussed, the Act would require the United States Agency for International Development (“USAID”) to propose a definition of recruitment fees within 180 days of its enactment.  Although the definition would apply to the Trafficking Victims Protection Act of 2000, 22 U.S.C. § 7104(g)(iv)(IV), it is likely to inform undefined references to recruitment fees in other contexts, such as in the FAR’s anti-human trafficking rule at FAR 52.222-50.  Indeed, until the open FAR case to define recruitment fees moves forward, the Act may serve as the only definition of recruitment fees for anti-human trafficking regulations. 

Also within 180 days of enactment, the Act would require that USAID and the Department of State (“State”) each prepare reports describing the actions taken during the 180-day period following the Act’s enactment and intended to be taken in the following year to address human trafficking.  Specifically, the Act would require USAID and State to detail plans and processes to  ensure that they monitor the administration of contracts, cooperative agreements, and grants to prevent human trafficking.  Such reports could signal the first significant efforts to enforce the anti-trafficking requirements in FAR 52.222-50 (which generally applies to contracts with State) and USAID ADS 303maa.M20 (which generally applies to grants from USAID).

We have provided a comprehensive overview of FAR 52.222-50’s requirements here.  In short, this clause prohibits all federal contractors, their employees, subcontractors, and other agents from engaging in human trafficking activities.  Such activities include charging recruitment fees, failing to provide return transportation when required, and destroying or denying access to identity or immigration documents. In addition, certain contractors providing goods and services outside the United States under high-value contracts are generally required to implement compliance plans and make new certifications.  The compliance plan must include, among other things, a recruitment plan, housing plan, and procedures to prevent trafficking in the supply chain.  The regulation provides very little guidance regarding the contents of a compliance plan and the level of diligence required to prevent trafficking in a supply chain.  However, State, with assistance from Verité, a global NGO, intends to release a long-awaited model compliance plan in the near future.

As contracts and grant recipients continue to make best efforts to implement new anti-trafficking provisions, a definition of recruitment fees and a model compliance plan could provide significant guidance.  Indeed, such guidance is especially important before agencies, such as State and USAID, develop plans to enforce anti-human trafficking rules.  Therefore, contractors and grant recipients would be well advised to continue monitoring the progress of H.R. 400, as well as the anticipated release of a model compliance plan.

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Photo of Jennifer Plitsch Jennifer Plitsch

Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.

She…

Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.

She has particular expertise in advising clients on intellectual property and data rights issues under the Federal Acquisition Regulations (FAR) and obligations imposed by the Bayh-Dole Act, including march-in and substantial domestic manufacturing. Jen also has significant experience in negotiation and compliance under non-traditional government agreements including Other Transaction Authority agreements (OTAs), Cooperative Research and Development Agreements (CRADAs), Cooperative Agreements, Grants, and Small Business Innovation Research agreements.

For over 20 years, Jen’s practice has focused on advising clients in the pharmaceutical, biologics and medical device industry on all aspects of both commercial and non-commercial agreements with various government agencies including:

  • the Department of Veterans Affairs (VA);
  • the Department of Health and Human Services (HHS), including the Biomedical Advanced Research and Development Authority (BARDA), the National Institutes of Health (NIH), and the Centers for Disease Control (CDC);
  • the Department of Defense (DoD), including the Defense Threat Reduction Agency (DTRA), the Defense Advanced Research Projects Agency (DARPA), and the Joint Program Executive Office for Chemical Biological Defense (JPEO-CBRN); and
  • the U.S. Agency for International Development (USAID).

She regularly advises on the development, production, and supply to the government of vaccines and other medical countermeasures addressing threats such as COVID-19, Ebola, Zika, MERS-CoV, Smallpox, seasonal and pandemic influenza, tropical diseases, botulinum toxin, nerve agents, and radiation events. In addition, for commercial drugs, biologics, and medical devices, Jen advises on Federal Supply Schedule contracts, including the complex pricing requirements imposed on products under the Veterans Health Care Act, as well as on the obligations imposed by participation in the 340B Drug Pricing program.

Jen also has significant experience in domestic sourcing compliance under the Buy American Act (BAA) and the Trade Agreements Act (TAA), including regulatory analysis and comments, certifications, investigations, and disclosures (including under the Acetris decision and Biden Administration Executive Orders). She also advises on prevailing wage requirements, including those imposed through the Davis-Bacon Act and the Service Contract Labor Standards.