POGO urges DoD to strengthen and clarify its anti-human trafficking interim rule
Ms. Felisha Hitt
Defense Acquisition Regulations System
OUSD (AT&L) DPAP (DARS),
3062 Defense Pentagon
Washington, D.C. 20301-3062
Via E-mail: email@example.com
Subject: DFARS Case 2004-D017
Dear Ms. Hitt:
The Project On Government Oversight (POGO) provides the following public comment to DFARS Case 2004-D017 – "Defense Federal Acquisition Regulation Supplement; Combating Trafficking in Persons." 71 Fed. Reg. 62560 (Oct. 26, 2006). POGO is an independent nonprofit organization that investigates and exposes corruption and other misconduct in order to achieve a more accountable federal government. POGO has a keen interest in government contracting matters, especially those relating to the promulgation of federal acquisition regulations. POGO supports the interim rule's intent, but we believe that the rule should be strengthened by separating types of trafficking in persons, clarifying terms, and establishing enforcement provisions (rather than promoting self-policing) that will ensure compliance with the "Trafficking Victims Protection Act of 2000," as amended, and all government regulations and policies.
Despite anti-trafficking laws, the State Department's 2006 "Trafficking in Persons Report" stated that Department of Defense (DoD) investigations:
"identified a number of abuses, some of them considered widespread, committed by DOD contractors or subcontractors of third country national (TCN) workers in Iraq. Some of these abuses are indicative of trafficking in persons, and include: illegal confiscation of TCNs' passports; deceptive hiring practices and excessive recruitment fees; substandard living conditions; and circumvention of Iraqi immigration procedures. The TCNs are largely low-skilled workers from Nepal, India, Pakistan, Bangladesh, Sri Lanka, and the Philippines."
The State Department's report also includes references to countries associated with the human trafficking business. Ironically, some of those countries are allies of the United States and rumored to ignore or support the trafficking of workers sent into and detained in Iraq.
As a result, DoD published its anti-trafficking interim rule on October 26, 2006. It amends the Defense Federal Acquisition Regulation Supplement (DFARS) to implement DoD policy prohibiting activities on the part of its contractors, subcontractors, and their employees that support or promote trafficking in persons. The rule contains a contracting clause (DFARS 252.222-7006, "Combating Trafficking in Persons") that will be inserted into solicitations and contracts. That clause states that:
- DoD contractors performing outside the United States shall comply with the government's zero tolerance policy and all host nation laws and regulations relating to trafficking in persons and the use of forced labor;
- Service and Construction contractors shall notify employees of all trafficking laws, regulations, policies, and directives and receive a written agreement from contractor employees (other than those contractor employees performing commercial services) stating they will abide by any such provisions;
- Contractors shall immediately inform the Contracting Officer who shall immediately notify the Combatant Commander of any information that alleges any contractor, subcontractor, or employee have engaged in trafficking;
- Violations may be cause for employee removal from the performance of the contract, required subcontractor termination, suspension of contract payments, loss of award fees, termination of the contract for default, or suspension or debarment; and
- The contractor shall include the anti-trafficking clause in subcontracts performed outside the United States and in all non-commercial service subcontracts performed in the United States.
The interim rule closely mirrors the April 19, 2006 (71 Fed. Reg. 20301) interim rule amending the Federal Acquisition Regulation (FAR).
Types of Trafficking
The interim rule prohibits "severe forms of trafficking in persons," which includes both sex and labor trafficking. POGO is concerned that combining both forms of trafficking muddles the landscape and will limit the rule's administration and enforcement. Additionally, sex and labor trafficking fall under distinct legal jurisdictions, violations, and penalties that further limit the government's ability to hold contractors, subcontractors and their employees accountable for trafficking violations.
POGO has three general concerns with the interim rule. First, the distinction created for commercial services creates confusion and an unequal playing field. The rules should be revised by striking all "(other than commercial)" designations. The government's zero tolerance policy requires application of the interim rule to all contracts inside and outside the United States, including those performing under commercial services contracts. Because most services can be and are designated as commercial, the interim rule loses all force if commercial services are exempted from mandates to train and monitor commercial services contracts and subcontracts.
Second, as recently outlined in the January 17, 2007 edition of The Government Contractor:
"there appear to be no true means of enforcement [of the rule]. Contractors essentially have been asked to turn themselves in upon learning that an employee has violated this policy – even at the risk of contract termination, suspension and debarment. Thus, while the FAR and DFARS ban on human trafficking is a warning to contractors that such activities are expressly prohibited, it is doubtful that the regulations will accomplish their laudable objectives, since Contractors are unlikely to self-report."
POGO agrees with this conclusion and the author's recommendation that DoD must "begin to systematically audit Contractors for compliance with human trafficking regulations.” The Special Inspector General for Iraq Reconstruction already conducts in-country assessments and audits of federal contracts, therefore random investigations and interviews with TCNs could help combat human trafficking. Those audits would also relieve contractors of the heavy burden that has been placed on them to administer and enforce the anti-trafficking laws and regulations.
Third, the interim rule applies to contractors, subcontractors and their employees, but POGO is uncertain whether it applies to contracts awarded by certain members of the Armed Services, e.g., contracts awarded by Civil Affairs teams in coordination with authorizing comptrollers offices. In Iraq specifically, funding was made available to the Armed Services under multiple types of contracting initiatives, including the Commanders Emergency Response Program (CERP) and the Commanders Humanitarian Relief and Reconstruction Program (CHRRP). With the appropriated dollars, members of the Armed Services engage in contracting agreements with individuals and contractors for a range of purposes deemed fit by the Combatant Commander. Because this practice is regularly utilized, it is important to include language in the rule that would ensure that all funding vehicles are governed by the anti-trafficking provisions.
Other specific concerns involve the following Subparts:
This provision mentions "penalties" numerous times. POGO thinks that the word "penalty" should be replaced by the word "remedies" pursuant to 252.222-7006(f) and (g). POGO is also concerned about what constitutes a violation when contractors "fail to take appropriate action against their employees and subcontractors that engage in or support severe forms of trafficking in persons or use forced labor." (Emphasis added.) Some contractors might interpret the term to mean transporting an employee out of the host country, which would hinder an investigation. The rule should expressly state the criteria for handling a trafficking instance or violation.
This provision requires a contracting officer who receives information indicating that a contractor or subcontractor failed to comply with the rule to "immediately notify" the Combatant Commander responsible for the geographical area in which the incident has occurred. Although this is a good step toward combating trafficking, Combatant Commanders are engaged in security and stability operations and frequently shift areas of operation, therefore any such report might fall between the cracks. Contracting officers should also have to report such incidents to other appropriate government officials with jurisdiction, e.g., officials within State and Justice. POGO is also concerned that the term "immediately" is not specific enough to start the notification process. POGO recommends that notification be provided within 24 hours.
252.222-7006(d)(1) & (e)(2)
This provision states that "removal from the host country" is an action that a contractor might take in the event of a trafficking violation. As witnessed in previous trafficking cases, removal from the host country is, in essence, an attempt to hinder a criminal or civil investigation. If anything, the language should be strengthened to state that employees will be turned over to host county or U.S. authorities in order to be dealt with to the full extent of the law. POGO recommends that the "removal" language be struck from the rule and strengthened so that contractors, subcontractors, and their employees are fully aware of the repercussions of their actions.
252.222-7006(e) & (g)
Contractors are required to "immediately" inform the Contracting Officer of any information that it receives alleging that a contractor or subcontractor engaged in conduct that violates the anti-trafficking regulation. POGO believes that such reporting should be made within 24 hours of receiving such information.
252.222-7006(f) & (g)
"Remedies" should include a provision stating that the government will publicly list the names of all contractors, subcontractors, and their employees who are found to have violated the anti-trafficking rule. This action would be similar to listing contractors and their employees on the Excluded Parties List as governed by FAR Subpart 9.404 and DFAR 209.105-1.
Clarifying Trafficking Terms
POGO also believes that the following definitions located at 252.222-7006(a) need to be updated, clarified, or made consistent with federal law or regulations:
"Contractors" should be defined as "a Federal contractor (including a subcontractor at any tier) is any contractor engaged in the performance of work under a Government contract."
"Employee" should be defined as "an employee of a Federal contractor (including a subcontractor at any tier) directly engaged in the performance of work under a Government contract, including all direct cost employees and any other contractor employee who has other than a minimal impact or involvement in contract performance."
"Forced labor," mentioned throughout the rule, should be clearly defined as stated in 18 U.S.C. § 1589.
"Sex act" is not defined in the interim rule. The rule defines "commercial sex act," but it uses the term "sex act" in that definition.
POGO supports the interim rule, but seeks clarification concerning some terms and definitions. Moreover, the rule should separate sex trafficking from labor trafficking. It should apply to all contracts types, including commercial items and services, and contractors (including subcontractor and employees at any tier). Trafficking reports should be made within 24 hours to Combatant Commanders as well as other government officials who possess jurisdiction over the matter.
Finally, we must be reminded that the 13th Amendment to the U.S. Constitution prohibits slavery and involuntary servitude "within the United States, or any place subject to their jurisdiction." It is outrageous to think that some contractors are not upholding the Constitution's 1865 ban on slavery. POGO hopes that DoD takes all legal actions necessary to ensure that this form of modern slavery is stopped.
Scott H. Amey
Project On Government Oversight
1 See Secretary of Defense, Memorandum, “Combating Trafficking in Persons,” September 16, 2004 and Deputy Secretary of Defense, Memorandum, “Combating trafficking in Persons in the Department of Defense,” January 30, 2004.
2 State Department, “Trafficking of Persons Report,” p. 19, June 2006. Available at http://www.state.gov/documents/organization/66086.pdf.
3 Carp, Tenley A., “The FAR and DFARS Ban on Human trafficking – Heavy on Rhetoric, Light on Enforcement.” The Government Contractor, January 17, 2007.
4 Available at http://www.epls.gov.
5 See Section 103 of the Trafficking Victims Protection Reauthorization Act of 2005.
7 U.S. Const. amend. XIII, § 1.