Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 4967 

Dated: January 22, 2015. 

Richard Ginman, 

Director, Defense Procurement and 

Acquisition Policy. 

Dated: January 22, 2015. 

Jeffrey A. Koses, 

Senior Procurement Executive/Deputy CAO, 

Office of Acquisition Policy, U.S. General 

Services Administration. 

Dated: January 21, 2015. 

William P. McNally, 

Assistant Administrator, Office of 

Procurement National Aeronautics and Space 

Administration. 

[FR Doc. 2015–01523 Filed 1–28–15; 8:45 am] 

BILLING CODE 6820–EP–P 

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. 

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/indefinitequantity 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 


tkelley on DSK3SPTVN1PROD with RULES2
4968 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 

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— 

Æ Require contractors to use 

recruiters that comply with local labor 

laws of the country in which the 

recruiting takes place; 

Æ Require contractors to provide 

employees with a work document if it 

is required by law or contract; 

Æ Clarify the certification and 

compliance plan requirements, 

including the posting and submission of 

the plan; 

Æ Clarify contractor and 

subcontractor requirements for 

disclosing information to the agency 

Inspector General and cooperating fully 

in an investigation; and 

Æ 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— 

Æ Clarify contracting officer actions 

upon receipt of credible information of 

a trafficking in persons violation; 

Æ 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; 

Æ 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; 

Æ 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 

Æ 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— 

Æ Require entry of substantiated 

allegations into FAPIIS; and 

Æ 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— 

Æ 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; 

Æ Add a State Department Web site 

link for further information, including 

examples of awareness programs; 

Æ 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; 

Æ 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 


tkelley on DSK3SPTVN1PROD with RULES2
Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 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).) 


tkelley on DSK3SPTVN1PROD with RULES2
4970 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 

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 


tkelley on DSK3SPTVN1PROD with RULES2
Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 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 nontransferrable 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? 


tkelley on DSK3SPTVN1PROD with RULES2
4972 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 

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 


tkelley on DSK3SPTVN1PROD with RULES2
Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 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 


tkelley on DSK3SPTVN1PROD with RULES2
4974 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 

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 nonU.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 antitrafficking 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 riskbased 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 http://

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 nongovernmental 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 


tkelley on DSK3SPTVN1PROD with RULES2
Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 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 educationbased 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: http://travel.state.gov/

content/visas/english/general/rightsprotections-temporary-workers.html; 

and the development of an 

informational video that will 

complement the pamphlet. Embassies 


tkelley on DSK3SPTVN1PROD with RULES2
4976 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 

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 http://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 http://www.state.gov/j/tip/id/ 

index.htm, the United States Agency for 

International Development at http://

www.usaid.gov/trafficking, and the 

Department of Homeland Security at 

https://www.dhs.gov/end-humantrafficking 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 


tkelley on DSK3SPTVN1PROD with RULES2
Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 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 


tkelley on DSK3SPTVN1PROD with RULES2
4978 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 

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, nongovernmental 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-bycase 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 


tkelley on DSK3SPTVN1PROD with RULES2
Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 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 postaward 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 


tkelley on DSK3SPTVN1PROD with RULES2
4980 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 

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 


tkelley on DSK3SPTVN1PROD with RULES2
Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 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 

http://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 

http://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 http://ctip.defense.gov/ 

Training/ContractingAcquisition.aspx. 

• The Department of Homeland 

Security training is specifically tailored 

for the U.S. Government acquisition 


tkelley on DSK3SPTVN1PROD with RULES2
4982 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 

workforce on combating trafficking in 

persons using the pertinent provisions 

of the FAR. 

• The Department of Defense 

Combating Trafficking in Persons Web 

site, at http://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 http:// 

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 


tkelley on DSK3SPTVN1PROD with RULES2
Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 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 


tkelley on DSK3SPTVN1PROD with RULES2
4984 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 

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. 


tkelley on DSK3SPTVN1PROD with RULES2
Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 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 


tkelley on DSK3SPTVN1PROD with RULES2
4986 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 

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 × 

24 hours per record = 38,928 hours) 

b. Certification: (1,622 respondents × 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 highlevel 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: 

■ 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] 

■ 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 

■ 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 

■ 4. Amend section 9.104–6 by revising 

paragraph (b) to read as follows: 


tkelley on DSK3SPTVN1PROD with RULES2
Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 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] 

■ 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’’. 

■ 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). 

* * * * * 

■ 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 

■ 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. 

■ 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. 

■ 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. 

■ 11. Amend section 22.1703 by— 

■ a. Revising the introductory text and 

paragraph (a); 

■ b. Removing from the end of 

paragraph (b) ‘‘; and’’ and adding ‘‘;’’ in 

its place; 

■ c. Revising paragraph (c); and 

■ 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 traffickingrelated 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 

http://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; 


tkelley on DSK3SPTVN1PROD with RULES2
4988 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 

(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. 


tkelley on DSK3SPTVN1PROD with RULES2
Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 4989 

■ 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. 

■ 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 

■ 14. Amend section 42.1503 by— 

■ a. Removing from paragraph (h)(1)(iii) 

‘‘; or’’ and adding ‘‘;’’ in its place; 

■ b. Removing from paragraph (h)(1)(iv) 

‘‘convenience.’’ and adding 

‘‘convenience; or’’ in its place; 

■ c. Adding a new paragraph (h)(1)(v); 

■ d. Redesignating paragraphs (h)(2) and 

(3) as paragraphs (h)(3) and (4), 

respectively; and 

■ 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 

■ 15. Amend section 52.212–5 by— 

■ a. Revising the date of the clause; 

■ b. Removing paragraph (a)(2); 

■ c. Redesignating paragraphs (a)(3) and 

(4) as paragraphs (a)(2) and (3), 

respectively; 

■ d. Redesignating paragraphs (b)(33) 

through (53) as paragraphs (b)(34) 

through (54), respectively; 

■ e. Adding a new paragraph (b)(33); 

■ f. Revising paragraph (e)(1)(x); and 

■ g. Amending Alternate II by— 

■ i. Revising the date of the Alternate; 

and 

■ ii. Revising paragraph (e)(1)(ii)(I). 

The revisions and additions read as 

follows: 


tkelley on DSK3SPTVN1PROD with RULES2
4990 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 

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 OrdersCommercial Items (March 2, 2015) 

* * * * * 

(b) * * * 

ll(33)(i) 52.222–50, Combating 

Trafficking in Persons (March 2, 2015) (22 

U.S.C. chapter 78 and E.O. 13627). 

ll(ii) Alternate I (March 2, 2015) of 

52.222–50 (22 U.S.C. chapter 78 and E.O. 

13627). 

* * * * * 

(e)(1) * * * 

(x) ll(A) 52.222–50, Combating 

Trafficking in Persons (March 2, 2015) (22 

U.S.C. chapter 78 and E.O. 13627). 

ll(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) ll (1) 52.222–50, Combating 

Trafficking in Persons (March 2, 2015) (22 

U.S.C. chapter 78 and E.O. 13627). 

ll (2) Alternate I (March 2, 2015) of 

52.222–50 (22 U.S.C. chapter 78 and E.O. 

13627). 

* * * * * 

■ 16. Amend section 52.213–4 by— 

■ a. Revising the date of the clause; 

■ b. Removing paragraph (a)(1)(iv); 

■ c. Redesignating paragraphs (a)(1)(v) 

through (vii) as paragraphs (a)(1)(iv) 

through (vi), respectively; 

■ d. Revising paragraph (a)(2)(viii); 

■ e. Redesignating paragraphs 

(b)(1)(viii) through (xiv) as paragraphs 

(b)(1)(ix) through (xv), respectively; and 

■ 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. 

* * * * * 

■ 17. Amend section 52.222–50 by— 

■ a. Removing from the introductory 

paragraph ‘‘22.1705(a)’’ and adding 

‘‘22.1705(a)(1)’’ in its place; 

■ b. Revising the date of the clause; 

■ c. Adding to paragraph (a), in 

alphabetical order, the definitions 

‘‘Agent’’, ‘‘Commercially available offthe-shelf (COTS) item’’, ‘‘Subcontract’’, 

‘‘Subcontractor’’, and ‘‘United States’’; 

■ d. Revising paragraphs (b) through (e); 

■ e. Removing paragraph (f); 

■ f. Redesignating paragraph (g) as 

paragraph (f); 

■ g. Revising the newly designated 

paragraph (f); 

■ h. Adding new paragraphs (g), (h), and 

(i); and 

■ i. Amending Alternate I by— 

■ i. Revising the date of the Alternate, 

introductory paragraph, and paragraph 

(i)(A); and 

■ 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 


tkelley on DSK3SPTVN1PROD with RULES2
Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 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 traffickingrelated 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 http://

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 hostcountry 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 


tkelley on DSK3SPTVN1PROD with RULES2
4992 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 

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 

* * * * * 

■ 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 offthe-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) 

■ 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 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 37 and 52 

[FAC 2005–80; FAR Case 2014–008; Item 

II; Docket No. 2014–0008; Sequence No. 1] 

RIN 9000–AM84 

Federal Acquisition Regulation; 

Management and Oversight of the 

Acquisition of Services 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: DoD, GSA, and NASA are 

issuing a final rule amending the 

Federal Acquisition Regulation (FAR) to 

implement a recommendation to 

strengthen guidance on service 

acquisitions on uncompensated 

overtime. 

DATES: Effective: March 2, 2015. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Michael O. Jackson, Procurement 

Analyst, at 202–208–4949 for 

clarification of content. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat Division at 202–501–4755. 

Please cite FAC 2005–80, FAR Case 

2014–008. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Section 865 of the Ike Skelton 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2011 (Pub. 

L. 111–383) directed the Secretary of 

Defense to submit, in consultation with 

the Office of Federal Procurement 

Policy (OFPP) and all other relevant 

Federal agencies, a review of the Federal 

Acquisition Regulation (FAR) and 

Defense Federal Acquisition Regulations 

Supplement (DFARS), to ensure that 

they have appropriate guidance for 

service acquisitions. As a result, the 

regulatory drafting teams for the FAR 

and DFARS reviewed current 

regulations related to services and 

considered the extent to which 

improvements might be needed. 

In November 2011, DoD issued a 

report entitled DoD Report to Congress 

on Federal Acquisition Regulation 

(FAR) and Defense Federal Acquisition 

Regulations Supplement (DFARS) 

Review Regarding Services Acquisition. 

This Report to Congress includes a 

series of recommendations on issues for 

strengthening existing guidance on 

services acquisition through addition, 

clarification, or expansion. 

II. Analysis and Discussion 

This FAR case implements a 

recommendation to create a definition 

of uncompensated overtime. 

Accordingly, the existing definitions of 

‘‘uncompensated overtime’’ and 

‘‘uncompensated overtime rate’’ at FAR 

52.237–10(a) have been incorporated at 

FAR 37.101, with the defined term 

‘‘uncompensated overtime rate’’ 

changing to ‘‘adjusted hourly rate 

(including uncompensated overtime).’’ 

Additionally, the definition of the new 

term ‘‘adjusted hourly rate (including 

uncompensated overtime)’’ clarifies that 

the proposed hours per week include 


tkelley on DSK3SPTVN1PROD with RULES2