Background

The federal government’s zero-tolerance policy against human trafficking dates back to the Trafficking Victims Protection Act (TVPA) of 2000. The TVPA created a comprehensive government strategy to combat severe forms of human trafficking. In 2006, the federal government introduced Federal Acquisition Regulation (FAR) subpart 22.17  and FAR 52.222-50, Combating Trafficking in Persons, which included a general prohibition on human trafficking for all federal service contractors and required the creation of policies and procedures to ensure employee compliance. See 71 Fed. Reg. 20301 (Apr. 19, 2006). The original clause was expanded in 2007 to cover all solicitations and contracts, including commercial items contracts. See 72 Fed. Reg. 46335 (Aug. 17, 2007).  The federal government further built upon this framework with amendments in 2015. These amendments introduced a new compliance plan and annual certification requirement, as well as a list of prohibited conduct not previously included in the clause. See 80 Fed. Reg. 4,967 (Jan. 29, 2015).   

FAR 52.222-50 plays an integral part in the federal government’s efforts to prevent trafficking within the contractor community. Specifically, the clause features the following provisions:

• Prohibition on Human Trafficking and Trafficking-related Activity: The clause prohibits contractors, contractor employees, and their agents from engaging in severe forms of trafficking in persons during the period of performance of the contract, which includes sex trafficking, and “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.” The clause also forbids procuring a commercial sex act during the period of performance of the contract, using forced labor in the performance of the contract, and destroying, concealing, confiscating, or otherwise denying access by an employee to identity or immigration documents.
• Employee Awareness: Contractors must notify their employees and agents of trafficking prohibitions and consequences for violation.
• Reporting Requirements: Where a contractor has “credible evidence” from any source that alleges a violation, it must report the information to the contracting officer and the agency inspector general.
• Subcontractor Flow down: Contractors must flow down FAR clause 52.222-50 to all subcontractors, including commercial items subcontracts.
• Compliance Plan and Annual Certification Requirements: The contractor must implement a compliance plan for any contracts for supplies (other than commercially available off-the-shelf items) acquired outside the United States, or services to be performed outside the United States, that exceed $550,000. Among other items, the compliance plan should include a training and awareness component, be visibly posted on a company website and on-location, and have a process for employees to report potential violations free of retaliation. Contractors required to maintain a compliance plan must annually certify to the contracting officer that it has implemented a compliance plan, that neither it nor any of its agents, subcontractors, or their agents is engaged in human trafficking, or it has taken remedial and referral actions for abuses relating to any of the clause’s prohibited activities.

The Government Accountability Office (GAO) released a report in 2021, titled DoD Should Address Weaknesses in Oversight of Contractors and Reporting of Investigations Related to Contracts.  The report found that many DoD contracting officers were unaware of their anti-trafficking oversight responsibilities and did not prioritize the monitoring, evaluation, or active oversight of contractors in this area. The report also revealed that DoD components had not met the combating trafficking in persons training requirements for contracting officers. This report appears to have directly prompted lawmakers to take legislative action, as described below.  

New Legislation

The End Human Trafficking in Government Contracts Act of 2022 (the “Act”) is the federal government’s latest reaffirmation of its zero-tolerance policy¹ and expands upon the existing anti-human trafficking policies found in FAR subpart 22.17 and clause 52.222-50.

Specifically, the Act requires agencies to refer reports of possible human trafficking violations directly to their agency’s suspension and debarment official (SDO).  FAR 52.222-50 already required contractors to notify their contracting officer and the agency inspector general if they received “[a]ny credible information” that a human trafficking abuse occurred, but now agencies must elevate these reports to the SDO for their consideration. Prior to this legislation, the agency had discretion about whether to refer an allegation to the SDO; such discretion has been eliminated, thereby raising the stakes for any contractor that encounters suspected instances of human trafficking. 

Going Forward

Congress passed the Act unanimously. In today’s political climate, such bipartisan action demonstrates a rare policy alignment among lawmakers.  Although nothing in the Act requires mandatory debarment for allegations (or even substantiated allegations) of human trafficking, now is a good opportunity for federal contractors – as well as recipients of grants and cooperative agreements²– to evaluate their anti-human trafficking program, including policies and protocols to address such activity. 

Our team is guiding many organizations as they develop and implement human trafficking compliance strategies, policies, and plans. If you have questions about how these updates will affect your organization, please contact one of the authors of this alert or the Hogan Lovells lawyer with whom you work.

Authored by Will Crawford, William Ferreira, and Stacy Hadeka.

References

1 See Secretary Antony J. Blinken at the Release of the 2023 Trafficking in Persons Report (Jun. 15, 2023), available at https://www.state.gov/secretary-antony-j-blinken-at-the-release-of-the-2023-trafficking-in-persons-report/; see also FACT SHEET: President’s Interagency Task Force to Monitor and Combat Trafficking in Persons (Feb. 13, 2023), available at https://www.whitehouse.gov/briefing-room/statements-releases/2023/02/13/fact-sheet-presidents-interagency-task-force-to-monitor-and-combat-trafficking-in-persons-2/.

2 Recipients of federal grants and cooperative agreements are subject to the government-wide award located at 2 CFR part 175 (Award Term for Trafficking In Persons) and various agency-specific policies and terms.