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 is co-chair of the firm’s Government Contracts practice group. Her practice includes a wide range of contracting issues for large and small businesses in both defense and civilian contracting. Her practice involves advising clients on contract proposal, performance, and compliance questions…

Jennifer Plitsch is co-chair of the firm’s Government Contracts practice group. Her practice includes a wide range of contracting issues for large and small businesses in both defense and civilian contracting. Her practice involves advising clients on contract proposal, performance, and compliance questions as well as transactional and legislative issues. Her practice also includes bid protest and contract claims and appeals litigation before GAO, agency boards and the federal courts. Ms. Plitsch has particular expertise in advising clients in the pharmaceutical and biologics industry. She advises a range of pharmaceutical and biologics manufacturers on Federal Supply Schedule contracts, including the complex pricing requirements imposed on products under the Veterans Health Care Act, as well as research and development contracts and grants with various federal agencies. She also has significant experience advising on the requirements of various programs under which vaccine products and biodefense medical countermeasures are procured by the Government.

Photo of Alexander Hastings Alexander Hastings

Alex Hastings advises clients across a broad range of government contracting issues, including advising clients in transactional matters involving government contractors and assisting defense contractors and pharmaceutical companies in securing and performing government contracts.

Mr. Hastings also advises clients concerning best practices in…

Alex Hastings advises clients across a broad range of government contracting issues, including advising clients in transactional matters involving government contractors and assisting defense contractors and pharmaceutical companies in securing and performing government contracts.

Mr. Hastings also advises clients concerning best practices in e-discovery. He assists in investigations and litigations that involve complex e-discovery issues and has represented clients in matters involving the U.S. Department of Justice, Securities and Exchange Commission and the United States International Trade Commission.

Mr. Hastings’ government contracts experience includes advising clients regarding new developments in regulatory requirements, including the Federal Acquisition Regulation’s (FAR) anti-human trafficking requirements and the FAR and Bayh-Dole Act’s intellectual property provisions. Mr. Hastings also provides due diligence regulatory advice to clients contemplating the acquisition of government contracting entities or assets.

Mr. Hastings’ e-discovery experience includes advising a wide-array of clients on best practices in information governance and document collection and assisting clients develop effective mobile device and document management policies.

Mr. Hastings also maintains an active pro bono practice and routinely writes on issues related to government contracts and e-discovery.