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Public Comment

POGO Implores FAR Council to Toughen Anti-Trafficking Contracting Regulations

March 12, 2013

Federal Acquisition Regulatory Council

Office of Federal Procurement Policy

Office of Management and Budget

725 17th Street, N.W.

Washington, D.C. 20503

Subject: Public Comments on Protections Against Trafficking In Persons

Dear FAR Council,

The Project On Government Oversight (POGO) provides the following “Public Comment on Protections Against Trafficking in Persons.” 78 Fed. Reg. 9918 (February 12, 2013). Founded in 1981, POGO is a nonpartisan independent watchdog that champions good government reforms. POGO’s investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government. POGO has a keen interest in government contracting matters, especially those relating to the promulgation of federal acquisition regulations.

The Federal Acquisition Regulatory Council (FAR Council) announced a public meeting and requested public comments on the implementation of Executive Order (EO) 13627, “Strengthening Protections Against Trafficking In Persons In Federal Contracts,” and Title XVII of the National Defense Authorization Act, Public Law 112–239, the “End Trafficking In Government Contracting Act” (ETGCA). POGO hopes that all of the oral and written comments will be used to help inform the development of regulations and other guidance to strengthen existing prohibitions on trafficking in persons (TIP).

Horrifying TIP schemes being perpetrated throughout the world can sometimes directly impact federal contractor responsibility and accountability in the federal government’s supply chain. The authority provided by the President and Congress allow for the FAR Council to identify trafficking schemes and establish solid enforcement structures that can hold contractors accountable.

POGO agrees with many of the speakers at the March 5, 2013, public meeting who urged the FAR Council to prohibit recruitment fees, compel the use of certified or licensed recruiters, and require that all third country national (TCN) contracts, recruitment agreements, or similar work papers be in the TCN’s native language and signed prior to leaving their home county. Those documents should provide details about pay, recruitment fees owed and paid, work location(s), living accommodations, leave, and round-trip transportation arrangements. Such documentation should be provided to the TCN as well as the prime and subcontractors involved in the federal supply chain to ensure that all contractors are placed on notice, which should improve compliance and enforcement practices.

My comments focus on specific improvements to the Federal Acquisition Regulation (FAR) that will enhance notice provisions, contractor anti-trafficking programs, contractor and victim cooperation with federal investigations, and enforcement to ensure that the government’s zero tolerance policy is a reality in the U.S. and abroad.

The EO and the ETGCA require full cooperation by all entities involved in TIP allegations. In light of that requirement, the FAR Council should integrate TIP reporting requirements into the current mandatory disclosure rule governed by FAR Subparts 3.1003(a) and (b) and 52.203-13. The FAR Council should expressly state that the 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.” Integrating those provisions will require reporting to the Inspector General, as required by the EO and the ETGCA, as well as the Contracting Officer thereby ensuring that the proper authorities are on notice and TIP allegations will not be ignored.

Including trafficking under the mandatory disclosure rule will also provide government “access to employees with information” pursuant to FAR Subpart 52.213(a). Such a change will ensure that the proper authorities are notified and will better protect victims who are often removed from government installations or shuffled back to their home country prior to the opening of a government investigation.

If the FAR Council does not integrate the new TIP requirements into the mandatory disclosure requirements, it should at least require entities to protect and interview all employees, including TCNs, and witnesses prior to their leaving the country, and to make them available to government investigators. This requirement will help prevent contractors from shuffling TCNs out the door in order to hinder trafficking investigations.

Additionally, the FAR Council should amend the certifications provision at FAR Subpart 52.209-5 to require that offerors disclose whether “within a three-year period preceding this offer, they have been notified of any trafficking in persons allegations against them or any subcontractor working for them in the U.S. or abroad.” Certifications by offerors are required by the EO and the ETGCA, and therefore could easily be added to the required certification regarding responsibility matters that exists in the FAR.

Pursuant to the ETGCA, all agency determinations about trafficking should be entered into the Federal Awardee Performance and Integrity Information System (FAPIIS). The statutory language in the ETGCA is clear that “any written determination” must be included in FAPIIS.

Combining TIP regulations with the mandatory disclosure and certification provisions will require contractors at all tiers to bolster their TIP programs and compliance plans, and will compel those hiring TCNs to adopt a truly zero tolerance TIP policy. Public disclosure of all trafficking determinations will put the public and the government on notice of the true scale of the TIP problem. Additionally, these measures will make it easier for the government to cancel a contract, suspend or debar the contractor, or file or intervene in a false claim action—the types of remedies that generally compel contractor compliance and cause shifts in corporate policies, training, and enforcement.

Thank you for your time and consideration.


Scott H. Amey

General Counsel