February 04, 2019 Public Contract Law Journal

Offering a Carrot to Complement the Stick: Providing Positive Incentives in Public Procurement Frameworks to Combat Human Trafficking

by Nicole Fleury

Nicole Fleury is a J.D. candidate at The George Washington University Law School and a member of the Public Contract Law Journal. She would like to thank Judge Kyle Chadwick for guiding her throughout the writing process and Professor Karen Thornton for encouraging her to write about her passion. She would also like to thank her parents and sister for their unwavering support.

I.  Introduction

Trafficking in Persons (TIP) is a widespread human rights atrocity that is not limited to a single region of the world, gender, or form of exploitation. Though manifested in many ways, the unifying characteristics of this classification of abuse include the use of force, fraud, or coercion to exploit someone for his or her services in either commercial sex or various forms of labor.1 According to Human Rights First, approximately twenty-five million people are currently living as trafficking victims around the world.2

The United States government, in engaging with a wide spectrum of domes- tic and international business partners, has not avoided its reach.3 Through its procurement activities, the U.S. government is a party to contracts for goods and services that have been tainted by the exploitation of trafficked individuals.4 Considering the complexity of supply chains and number of contracts that the U.S. government enters into each year, this is hardly surprising. These atrocities may take many forms: a man forced to work in a mine extracting minerals that will produce goods purchased by the U.S. government,5 or a woman serving as a housekeeper on a U.S. military base while a third-party recruitment service withholds her identity documents and wages. A string of recent lawsuits demonstrates yet another scenario: an asylum-seeker awaiting civil immigration proceedings in a federally funded private detention facility is forced to work for $1 per day under threats of solitary confinement and other punishments.6

The U.S. government has acknowledged this stain on its procurement system and, over time, has established a regulatory framework that imposes requirements on contractors and subcontractors with accompanying punishments. These requirements include Federal Acquisition Regulation (FAR) Subpart 22.17 and Subparts 52.222-50 and 52.222-56. However, despite the fairly robust regulatory system in place to address trafficking in persons related to public procurement, evidence shows that abuses still occur in connection with U.S. government contracts,7 suggesting the current measures are insufficient. The U.S. Department of State admitted in its 2017 TIP Report that although the Department of Justice and other federal agencies were actively pursuing “[investigations] of debt bondage and excessive recruitment fees required of third-country nationals working on certain U.S. government con- tracts abroad,”8 there had not been a single federal criminal prosecution, civil action, debarment, or any other sanction of contractors during that fiscal year.9 

The U.S. government has an enormous amount of purchasing power, as it is the “single largest purchaser in the world and spends more than $500 billion USD a year on governmental contracts.”10 Thus, it is crucial that the federal government not pivot away from holding government contractors and subcontractors accountable. Instead, it must continue to include them in the anti-trafficking regime with a measured approach that works in concert with the principles of government contracting.11

This Note argues that adopting positive incentives for contractors in order to supplement the current procurement regulations will more effectively advance the goal of eradicating human trafficking. While the U.S. government has recognized that contractors and subcontractors are on the front lines of the abuse, it has failed to create a system that persuades companies to prioritize anti-trafficking efforts. To correct this issue, the U.S. government should implement a regulatory scheme that would make it within a company’s best interest to thoroughly and intentionally address the potential for trafficking-related offenses to occur during contract performance. In other words, the U.S. government should have in place a system that offers “carrots” to contractors in addition to putting them on notice about “sticks.”12 Rather than maintain an anti-trafficking procurement regime built solely of hollow requirements with threats of punishments for violations, the government should add an incentives framework that will encourage contractors to participate more rigorously in anti-trafficking efforts.13

The solution must avoid certain pitfalls. First, it cannot undermine the principles of the U.S. federal procurement system and the disincentives already in place. The intent of the solution is to harness the immense purchasing power of the U.S. government in order to advance its anti-trafficking goals, while not compromising the policies that inform government contracts, most notably the values of enhanced competition and procuring goods and services at best value.14 Second, it must not unduly harm the U.S. government’s business partners. When discussing regulations aimed at the private sector, especially those primarily motivated by intentions to further a social good, the argument commonly surfaces that the proposed restrictions would be overly burdensome to companies and ultimately fatal to their businesses. The recommendation in this Note sidesteps this criticism for two reasons: first, it identifies and relies on existing resources that would prevent compliance from becoming too expensive, and, second, it limits the applicability of the incentives to certain contracts and offerors.

This Note outlines this argument in five sections. Following the Introduction in Section I, Section II defines Trafficking in Persons and highlights the bipartisan U.S. government commitment to combating this global phenomenon. Section III considers the scope of this human rights violation within the context of public procurement. Section IV outlines the current anti-trafficking provisions in federal procurement law, noting that they serve as punishments, or “sticks.” Finally, Section V examines two different approaches to incorporating positive incentives into procurement systems: considering anti-trafficking efforts as an evaluation factor, or establishing set-asides for offerors that have demonstrated this effort. Specifically, this section looks to procurement frameworks in Argentina, Bolivia, Norway, and San Francisco that have incorporated incentivizing elements into their respective procurement systems with the express intention of furthering a social good.15 The section considers the benefits and challenges associated with each approach and argues that the U.S. federal procurement system would benefit from adopting an anti-trafficking evaluation factor.

II.  The Scope of Trafficking in Person

This section provides an overview of the legal definition of Trafficking in Persons. First, it considers the definition in U.S. federal law as compared to that in international law. Next, it hones in on the definition of labor trafficking, including debt bondage and involuntary servitude.16 Recognizing the scope of this human rights violation is an important first step in understanding how its various mutations have seeped into the U.S. government supply chain.

A.  Definition of Trafficking in Persons

The definition of human trafficking in U.S. federal law derives from the Trafficking Victims Protection Act (TVPA), which identifies and defines various forms of trafficking in persons: first, labor trafficking, including debt bondage and involuntary servitude; and second, sex trafficking. Under the term, “severe forms of trafficking in persons,” the Act defines these two broad forms of exploitation. The first refers to sex trafficking: “the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act”17 that is “induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age.”18 The second refers to labor trafficking: “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.”19 Notably, the physical movement of the individual (across borders or otherwise) is not required.20

The presence of coercion, force, or fraud is a necessary element to prove this human rights violation.21 According to the TVPA, coercion refers to a range of behavior, including “threats of serious harm . . . or physical restraint,” “any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person,” or “abuse or threatened abuse of the legal process.”22 The only instance where a showing of coercion, force, or fraud is not required is when the victim is under eighteen years old.23

The definition of trafficking in persons in the international context is consistent with the key elements of the TVPA definition. The primary international framework about human trafficking is the Palermo Protocol, officially called the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children. The Protocol is significant because it envisions a universal and coordinated approach to human trafficking, including prevention and victim assistance, across the countries of origin, destination, and transit.24 The definition of trafficking in persons in the Protocol is substantially similar to that included in the TVPA,25 including not requiring a showing of coercion, fraud, or any other means in cases involving minors.26 The United States has ratified the Protocol.

B.  Definition of Labor Trafficking

According to the International Labour Organization (ILO), the majority of trafficking victims around the world — nearly twenty-one million individuals — are exploited for their labor.27 The TVPA defines two forms of labor trafficking: debt bondage and involuntary servitude. Debt bondage occurs when a debtor makes a commitment to use his personal services, or those of someone under his control (e.g., a son or daughter), as a security for a debt, and yet his services do not reduce the debt.28 Alternatively, the length of service or type of service that he must perform to reduce his debt is unclear.29 Involuntary servitude occurs when a person is forced to remain in servitude while under threats that leaving will cause him or someone else to suffer “serious harm or physical restraint,” or be subject to abuse within the legal system.30

International law is consistent with this definition, but slightly broader. The Palermo Protocol does not provide a separate definition of labor trafficking; however, the ILO has established a definition of forced labor: “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”31 This definition is broader than the one adopted in U.S. federal law. In contrast to the TVPA’s limitation to suffering serious harm or physical restraint, the ILO standard simply entails the “threat of a penalty.”32

Despite the overarching similarities between international and domestic law, the author operates within the confines of the U.S. federal definitions of trafficking in persons for the purposes of the discussion in this Note.

III.  Risk of Labor Trafficking in Procurement Activities

Labor trafficking is present across various industries and regions of the world. Considering the broad range of services and locations in which contracts are performed, it is easy to see how human trafficking can become woven into the oftentimes complex and far-reaching global supply chains of some of the U.S. government’s largest contracts and can remain undetected. Many of these contracts are particularly vulnerable to labor trafficking due to characteristics of the sectors involved in the supply chains, as well as conditions of the countries where contracts are performed and from which labor is sent.

The U.S. Department of State’s Office to Monitor and Combat Trafficking in Persons, in collaboration with two nonprofit organizations, conducted extensive research into the various factors that make certain sectors and classes of individuals more susceptible to trafficking violations. In 2016, the Office unveiled a web-based tool that the private sector may use to better understand the risks associated with the sectors and country conditions relevant to their business activities.33

This section hones in on these risks associated with labor trafficking in procurement. It describes how certain sectors and country conditions are particularly susceptible to trafficking entering the U.S. government supply chain.

A.  Sectors

Certain sectors present an increased risk for human trafficking. This may be on account of either industry characteristics or business practices common to the sector.

Industries presenting this increased risk include those that require lowskilled work that is “dirty, dangerous, or difficult,”34 including industries such as construction, facilities operations, and housekeeping.35 Individuals considered to be vulnerable, whether because they are migrant workers, orphans, or impoverished, often take on this type of work.36 They commonly do not have much bargaining power, if any; abusive employers view them as dispensable; and they usually have little or no financial means to remove themselves from the situation.37 Industries structured around seasonal work are also at high risk because these tasks often require a large workforce in a short period of time, which can lead to using recruitment agencies, a factor that has been found to “drastically” increase the likelihood of trafficking in persons.38 Similarly, industries focused on manufacturing products with short life cycles (like certain in-demand electronics) fit within this category because employers may resort to abusive practices in order to meet product demand.39 Finally, having “long, complex, and/ or non-transparent supply chains” increases the likelihood of trafficking in persons.40 The longer and more complex a supply chain, the more difficult it is for the government, consumers, or other actors to detect trafficking that is occurring lower down the chain.41

In addition to industry characteristics, certain business practices may create or increase the risk of trafficking in persons in a particular sector.42 The primary example is the use of labor recruitment agencies, which act as middlemen by supplying the labor needs of companies that hire their services. In doing so, some of these agencies have exploited and abused the workers that they place.43 These exploitative practices include misinforming, or simply lying to, the recruits about the job description, work conditions, or wages they will receive.44 It also includes trapping people in debt bondage, defined above. Individuals are charged hefty fees for the recruitment process, only to become overwhelmed by debt and required to try to pay off the balance by earning an impossibly low salary, if they have one at all.45 Another exploitative practice of recruitment agencies is ensuring that laborers are dependent on the brokers by holding hostage important identity documents, travel documents, and even wages.46

B.  Country Conditions

Characteristics of the country where the contract is performed also contribute to the risk of human trafficking. They include various political factors, such as a lack of strong labor protections, commonplace corruption, and enduring conflict, which are all factors that are relevant to service contracts pursued by the U.S. government. In addition to the general instability that these characteristics present, they also increase vulnerability to trafficking in persons because a central government may not effectively control certain parts of the country (thus leaving room for a vibrant black market), or officials easily can be bribed to ignore signs of trafficking. Also, countries with active conflict zones usually have a need for immediate response and for filling positions quickly, which may present risks similar to industries with short life cycles.47

IV.  Anti-Trafficking “Sticks” in Federal Procurement Law

Cognizant that some procurement activities are vulnerable to human trafficking, federal anti-trafficking laws have evolved to underscore the role that various facets of the U.S. government and civil society play in the effort to eradicate human trafficking. This trajectory has continued on, as evidenced by the Obama Administration’s executive order and the revision to the FAR, as explained below. And although the Trump Administration seems to emphasize a different approach, it has communicated its commitment overall and has made no indication that it will roll back the Obama-era Strengthening Protections Against Trafficking in Persons in Federal Contracts Executive Order or the accompanying FAR revisions. Even so, human rights violations continue to go undetected.

This Section introduces the landscape of anti-trafficking efforts embedded in current federal procurement laws by highlighting specific statutes and regulatory provisions. In doing so, it demonstrates the absence of positive incentives for contractors.

A.  U.S. Government Action to Deter Trafficking in Persons: A Bipartisan Effort

The United States government has been vocal about its bilateral commitment to eradicate human trafficking in all forms. The overarching approach has included three tiers of action: prevention, protection, and prosecution.48 How each Administration has envisioned the execution of these goals has varied — not only in their approaches but also the actors that they view as crucial to achieving the common goal of eradicating human trafficking.

In 2000, Congress enacted the landmark anti-trafficking legislation in U.S. federal law, the Trafficking Victims Protection Act. Although this passage occurred during the Clinton Administration, it was the culmination of a bipartisan effort.49 Subsequent reauthorizations built upon the progress embodied in this legislation, and politicians from both the Republican and Democratic parties continue to champion the cause.50

The Obama Administration pushed forward several policies that advanced U.S. government anti-trafficking efforts by holding government contractors accountable for their and their subcontractors’ involvement in this human rights abuse. It accomplished this by issuing the Strengthening Protections Against Trafficking in Persons in Federal Contracts Executive Order (Executive Order 13,627), and the accompanying FAR revision, which increased reporting requirements and punishments for federal contractors and subcontractors.51

The Trump Administration has continued the trend of supporting anti-trafficking efforts but has signaled that it will place less emphasis on the role of private companies and federal contractors. President Donald Trump commented that he would “bring the ‘full force and weight’ of the U.S. government to combat an ‘epidemic’ of human trafficking”52 and named January 2018 as National Slavery and Human Trafficking Prevention Month.53 Also, at the Department of State’s 2017 Trafficking in Persons Report launch, former Secretary of State Rex Tillerson unveiled the Program to End Modern Slavery, which reserved $25 million in foreign assistance for programs seeking to further the policy of prevention, protection, and prosecution.54 Secretary Tillerson proclaimed that eradicating human trafficking is “a major foreign policy priority for the Trump administration.”55 Secretary Tillerson cited the President’s executive order, Enforcing Federal Law with Respect to Transnational Criminal Organizations and Preventing International Trafficking, which provides language that emphasizes criminal enforcement, although it is extremely limited with respect to human trafficking.56

Actions taken during the early months of President Trump’s tenure suggest that, while ostensibly committed to the cause, his Administration’s approach to combating human trafficking will diverge from that of former President Barack Obama by taking a more security-centric focus that loosens regulations on private businesses and government contractors. Indeed, within his first 100 days, President Trump rolled back anti-trafficking and labor-related pro- visions that assigned responsibility to government contractors and businesses for their supply chains, including getting rid of former President Obama’s Fair Pay and Safe Workplaces executive order and considering suspending Section 1502 of the Dodd-Frank Act.57 The Fair Pay and Safe Workplaces executive order, though not on its face related to human trafficking, is related tangentially to holding contractors and subcontractors accountable for labor trafficking because it requires contractors to disclose labor law violations.58 This determination affects whether the firm would be considered a “responsible source that has a satisfactory record of integrity and business ethics” and thus eligible for award.59 Section 1502 of the Dodd-Frank Act required companies to disclose whether minerals originated in the Democratic Republic of the Congo and to report their due diligence practices well in advance of an audit.60 The Trump Administration offered justifications for eliminating Section 1502 by citing national security concerns.61

B.  Principal Statutes and Executive Orders

As introduced in Section A, the primary piece of federal legislation on the subject of human trafficking is the Trafficking Victims Prevention Act of 2000 (TVPA), codified in 22 U.S.C. Chapter 78. Policymakers identified a sizable chasm between the millions of people who were being exploited as victims, compared with the limited amount of successful trafficking prosecutions. Responding to this shortcoming, early TVPA reauthorizations recognized the need for a multifaceted approach. Thus, each subsequent reauthorization has expanded its methodology beyond the original emphasis on prosecutions and the role of law enforcement to also account for other actors in the supply chains where trafficking is present.

One such actor is the federal government, which is responsible for the supply chain from its contracts and the business partners that implement them.62 In particular, the Reauthorization of 2005 asserted that U.S. government employees and contractors are “held accountable for involvement” in human trafficking, whether as the traffickers themselves, or by “facilitating” trafficking or “exploiting” those who are trafficked.63

In 2012, former President Obama issued Executive Order 13,627, titled Strengthening Protections Against Trafficking in Persons in Federal Contracts. The order directly addressed increasing federal government contractor accountability by listing a range of prohibited trafficking-related activities and requiring certain contractors to submit a compliance plan and an annual certification attesting that it has not engaged in any of those activities.64 It directed the FAR Council to collaborate with federal agencies to integrate these changes into the FAR.65

The National Defense Authorization Act (NDAA) of Fiscal Year 2013 includes several sections that amend the TVPA and that specifically relate to human trafficking in procurement activities, including actions that the federal government may take against a contractor found to be in violation. In particular, sections 1702 through 1707 of Title XVII in the NDAA provide this guidance. Section 1702 broadens the scope of federal authority by allowing the government to cancel a grant or contract in cases where the grantee or contractor does any of the following: “(i) severe forms of trafficking in per- sons; (ii) the procurement of a commercial sex act . . . ; (iii) the use of forced labor. . . ; (iv) acts that directly support or advance trafficking in persons,” including destroying immigration documents, offering employment under false pretenses, and charging “unreasonable placement or recruitment fees.”66 This list thus identifies and prohibits a broad range of trafficking-related offenses, including charging recruitment fees. This section is also significant because it specifically includes grantees within its scope, instead of limiting its applicability to contractors. Before awarding a contract in excess of $500,000, Section 1703 requires the contractor to certify it has an established plan to prevent human trafficking in contract performance.67 Sections 1704 and 1705 indicate that the Contracting Officer must report any alleged incidences of human trafficking to the Inspector General.68 “[S]ubstantiated allegations” may be reported on the Federal Awardee Performance and Integrity Information System database (FAPIIS).69 Section 1706 states that an entity found to be guilty of human trafficking must either pay a fine, serve a prison sentence of up to five years, or both, for “knowingly and with intent to defraud recruits, solicits, or hires a person outside the United States . . . or attempts to do so, for purposes of employment performed on a United States [g]overnment contract performed outside the United States . . . by means of materially false or fraudulent pretenses, representations, or promises regarding such employment.”70 Finally, Section 1707 mandates that the Interagency Task Force to Monitor and Combat Trafficking investigate all reports related to human trafficking.71

A host of other statutes contribute to an overall framework for combating human trafficking and affect the public procurement realm. For example, the Tariff Act prohibits importing goods “mined, produced, or manufactured wholly or in part in any foreign country” by forced labor and indentured servants.72 It takes aim at goods made by individuals who have been trafficked, rather than the contractors who are engaging in, or ignoring, labor trafficking in their contract performance.73 However, these statutes are significant for this discussion because they prevent the government from buying goods made by trafficking victims.

Ahead of the September 2017 expiration of the TVPA, several members of Congress — both Democrats and Republicans — introduced bills that would reauthorize the content of this Act. These include the Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2017;74 the Abolish Human Trafficking Act of 2017;75 and the Trafficking Victims Protection Act of 2017.76 These bills would recommit the U.S. government to anti-trafficking efforts and even include provisions that would further federal anti-trafficking efforts beyond the original scope. The Abolish Human Trafficking Act of 2017, for example, proposes the creation of Justice Coordinators in each federal district who would primarily be responsible for prosecuting trafficking crimes and increasing awareness about trafficking issues.77 Unfortunately, both Houses of Congress have not yet reauthorized the TVPA.

C.  FAR Provisions

This section identifies a number of FAR provisions that are relevant to addressing human trafficking in procurement activities. First, it describes the earliest relevant part of the FAR, Part 9, which requires an affirmative finding that an otherwise successful contractor is responsible. Responsibility is relevant to this discussion because a negative finding of responsibility will bar a firm from being able to perform a contract. Thus, FAR Part 9 may impose a consequence for a prospective bidder that commits a trafficking-related violation. Next, this section addresses FAR provisions that, deriving authority from the legislation described in the previous section, specifically address human trafficking in government contracts.

Overall, although some notable holes exist in this regulatory scheme and in its implementation, the FAR contains a fairly rigorous compliance structure. It lays out a range of prohibited activities that are related to trafficking in persons, and details the repercussions, or the use of “sticks,” that will result from violating those provisions, including being found not responsible and thus ineligible for award. Despite these measures, this system remains insufficient and must be coupled with positive incentives.

1.   Responsibility Determination

FAR Part 9, which outlines the concept of responsibility, is related tangentially to human trafficking. This Part mandates that a Contracting Officer must make an affirmative finding of responsibility before she can make an award.78 A finding of responsibility entails both capability factors and historic factors. The capability factors assess the contractor’s ability to successfully perform the contract and include considerations such as financial resources, ability to meet the performance schedule, access to the requisite accounting and technical skills, as well as access to the appropriate equipment and facilities.79 Those factors may either already be in place, or the contractor can demonstrate that they will be in place by the time contract performance begins.80 In contrast to the capability factors, the historical factors cannot be changed or obtained by the offeror. The historical factors include past performance and a “satisfactory record of integrity and business ethics.”81 Subpart 42.1503(b)(2) elaborates on what may be taken into account in the past performance evaluation system, and it specifically mentions human trafficking. Thus, an offeror found to be involved in trafficking in persons would likely not meet this historical factor for an affirmative responsibility finding. If a particular offeror is found not responsible, the Contracting Officer must not award the contract (or exercise additional option years) to that offeror.82 However, it is important to note that if a Contracting Officer makes an affirmative finding of present responsibility despite the presence of adverse factors (perhaps based on rehabilitative actions), the Government Accountability Office will grant a substantial amount of deference to the Contracting Officer’s determination when it reviews the affirmative finding.83

2.   Trafficking-Specific Provisions

Implementing 22 U.S.C. Chapter 78 and Executive Order 13,627, the FAR directly addresses human trafficking and imposes various rules that contractors must follow. Specifically, this section focuses on FAR 22.17, 52.222-50, and 52.222-56. The inclusion of anti-trafficking regulations in the FAR itself acknowledges that public procurement has a role to play in efforts to eradicate this global atrocity.

The TVPA of 2000 first directed the addition of Subpart 22.17, Combating Trafficking in Persons, to the FAR. In its current form, this Subpart integrates the requirements of subsequent amended versions, including President Obama’s 2012 Executive Order 13,627, Strengthening Protections Against Trafficking in Persons in Federal Contracts, and provisions from the National Defense Authorization Act of 2013.84 There are three noteworthy aspects of FAR Subpart 22.17 for the purpose of this Note. First, it establishes that the U.S. government’s concept of trafficking-related offenses includes a broad range of prohibited activities.85 It stipulates that government solicitations and contracts must expressly indicate a number of prohibited actions for contractors and subcontractors, such as “[u]sing forced labor” and “[p]rocuring commercial sex.”86 It also explicitly prohibits some of the less obvious forms of trafficking-related offenses, such as charging recruitment fees, as well as preventing workers from accessing their identity documents, including passports and identification papers.87

Second, FAR 22.17 is significant because it lists the remedies for violations. Regardless of the outcome of an administrative investigation into allegations, if a Suspension and Debarment Official finds that a contractor indeed committed a trafficking-related offense, the company may be suspended, debarred, entered into FAPIIS,88 and be subject to any of the remedies included in clause 52.222-50, discussed in greater detail below. It is important to note that the federal procurement system does not use suspension and debarment as a punitive measure, but rather as a method by which the U.S. government protects itself from engaging with bad actors.89 Even so, the prospect of facing these consequences is intended to serve as a deterrent.

Third, FAR 22.17 is noteworthy because it only requires a limited category of contractors to take affirmative actions. Subpart 22.1703(c) requires that contractors establish an initial compliance plan and certify its compliance with the anti-trafficking regulations.90 The prime contractor must resubmit this certification annually and is responsible for obtaining the same from its subcontractors.91 While this is a positive and important aspect of the regulatory structure, this requirement is inapplicable to contracts for commercial off-the-shelf (COTS) items, contracts less than $500,000, and contracts for services that are performed inside the United States.92 Even though the remainder of Subpart 22.17 applies to “all acquisitions,”93 this caveat presents a gaping hole in the regulations. Indeed, the subpart imposes only a few tepid affirmative actions that would apply to all contractors. Such actions include disclosing information to the Inspector General and Contracting Officer related to the identity of offenders (which assumes they are aware of such violations), and complying with government audits, including on-site investigations, if and when they occur.94

Additionally, FAR Subpart 22.17 requires that the government include a provision in solicitations and a clause in contracts, 52.222-56 and 52.222-50, respectively, that outline the contours of the subpart. This subpart thus ensures that the regulations are in place before and during the life of the contract.95

FAR 52.222-50 is a required clause in government contracts that spells out the prohibited activities listed in Subpart 22.17, as described above. It details the minimum requirements for the compliance plan, including an awareness program, a mechanism for employees to report violations, and plans for fair labor standards and housing accommodations.96 Perhaps most importantly, the contractor must establish “[p]rocedures to prevent agents and subcontractors at any tier and at any dollar value from engaging in trafficking in persons . . . and to monitor, detect, and terminate any agents, subcontracts, or subcon- tractor employees that have engaged in such activities.”97

Another key aspect of this compliance plan is the requirement that contractors submit an annual certification. While this adds an additional layer to the regulatory scheme, it leaves two holes that could render this measure ineffective. As mentioned above, the requirement to include this certificate does not apply to contracts less than $500,0000, contracts for COTS items, or contracts for services that are performed inside the United States.98 Also, the language provides plenty of room for contractors to do the bare minimum to remain compliant without conducting meaningful investigations or aggressive, well thought-out preventative measures. The subpart requires that the contractor provide a certification that makes two attestations. First, that the company has a due diligence plan in place to “prevent,” “monitor, detect,” and, if applicable, “terminate any agent, sub-contract or subcontractor employee engaging in prohibited activities.”99 Secondly, it must certify, “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.”100

This language leaves space for the contractor to claim plausible deniability. The contractor can claim that, “to the best of its knowledge and belief,” there are no trafficking-related offenses occurring by its agents or subcontractors. Though it provides a ready-made excuse for unconcerned contractors, this language should not necessarily be eliminated. It should be in place if companies do not conduct proper due diligence and therefore do not discover whether trafficking violations are occurring. This supports the argument for adding policies to the regime that would incentivize offerors to conduct more effective oversight and regular due diligence.

FAR 52.222-50 also recognizes that a contractor must conduct due diligence throughout its supply chain;101 it is not sufficient to require a certification from the prime contractor alone, who could subcontract millions of dollars for work performed in remote geographical areas to which it does not have access. To this end, the prime contractors must receive the certifications from their subcontractors at the contract outset and continue to receive certifications every year of performance.102 Likewise, the FAR recognizes it is insufficient to limit the contractors’ certification to the beginning of contract performance. Thus, it directs contractors to submit the certification annually throughout contract performance, though they are only required to submit a compliance plan before the award.103

Finally, this clause also elaborates on the remedies if a contractor or subcontractor violates any of the above requirements. These, “in addition to other remedies available to the [g]overnment,”104 include removing employees from the contracts; terminating the contract or requiring that the contractor terminates the subcontract; suspending contract payments; withholding the award fee; not exercising subsequent option years; or suspension and debarment.105 If the offeror discovers that prohibited activities have occurred, it need only demonstrate that it “has taken the appropriate remedial and referral actions.”106 

FAR 52.222-56, the Certification Regarding Trafficking in Persons Compliance Plan, was added to implement the requirements in Executive Order 13,627 and the National Defense Authorization Act of Fiscal Year 2013. This subpart stipulates that the successful offeror must show it has developed a compliance plan even before the government makes an award.107

V.  Potential Anti-Trafficking “Carrots”

A.  Why Add Positive Incentives?

The United States government has immense purchasing power and therefore must hold its business partners accountable, albeit in a way that maintains the values of the federal procurement system. As the previous section indicates, a fairly robust regulatory scheme is in place regarding anti-trafficking efforts. However, the current federal procurement framework does not adequately attack the issue of human trafficking: even after establishing a more integrated approach and putting additional measures in place, trafficking violations remain undetected on a large scale in the United States and abroad, some of which are present within the U.S. government’s supply chain for goods and services.

Certainly, the current regulations have brought important changes to the procurement regime that hold contractors, subcontractors, and ultimately the federal government responsible for instances where trafficking is discovered in their supply chains. They are necessary, and, although not all-encompassing, they certainly put in place important policies to further the goal of eradication. But simply piling on additional punishments will not further the ultimate goal of eradicating this systematic and lucrative form of exploitation. The current regime does not include the important element of incentivizing the government’s business partners to actively engage in these efforts and therefore ultimately creates only limited buy-in from the regulated contractors and subcontractors. The regulations pertaining to human trafficking largely include just a handful of requirements (that amount to not much more than officially saying they know nothing) and impose punishments for noncompliance. To be sure, the regulations are important. Prosecution is a necessary element of the anti-human trafficking regime, and those involved in the trafficking of human beings must be held accountable and prosecuted to the full extent of the law. Even so, prosecutions are alarmingly low: Human Rights Watch reported that of “[sixteen] million forced labor victims worldwide, only 1,038 cases of forced labor were prosecuted globally in 2016.”108 To further this goal and in addition to this framework, therefore, given that the scheme is driven by the contractors and subcontractors themselves, it will be most effective when they are invested in the process, instead of engaging in what one scholar referred to as “box-ticking.”109

In reforming the approach, there must be due consideration of lessons learned from corporate social responsibility efforts, where the perception that a framework has overly tough compliance standards and limited incentives can lead to its demise. For example, President Trump has considered abolishing Section 1502 of the Dodd-Frank Act.110

Far from an instance of piling on extraneous regulations, working to ameliorate these atrocities fits squarely within the goals of the U.S. procurement system. One scholar articulated these goals as the desiderata (“desired things”), which he identified as transparency, integrity, competition, uniformity, risk-avoidance, wealth distribution, value for money, administrative efficiencies, and customer satisfaction.111 The effort to pivot the enormous purchasing power of the U.S. government away from enabling human rights offenders fits foremost within integrity. It ensures that the government is being held accountable for spending the public’s money.

Nevertheless, contracting principles must be observed in a balanced manner. For example, the approach must avoid negative consequences, such as the “race to the bottom.”112 One of the main goals of procurement law is providing the best value to the government.113 The race to the bottom describes the situation where, in an effort to provide the best and least expensive offer, contractors pursue the lowest prices for supplies and labor costs.114 In doing so, they could find themselves contributing to a human trafficking operation or hiring trafficked individuals.115 Some contract types, such as sealed bids and lowest-price technically acceptable, especially are susceptible to this because of the total emphasis on making award to the responsible bidder with the lowest price.116

These reforms also fit within the objectives of international human rights law. The United Nations asserts that States must meet their international legal obligations to protect its citizenry against human rights violations;117 this responsibility does not disappear simply because the State engages in the business sector.118

Therefore, the U.S. government must commit itself to addressing human trafficking in the federal supply chain. The current public procurement regulatory scheme does not include adequate incentives that would encourage contractors and subcontractors to actively pursue a trafficking-free supply chain. A formal incentives structure would avoid “box-ticking” and promote an environment of buy-in from companies in the overall anti-trafficking efforts to which the U.S. government has committed itself.119 Contractors’ full involvement is necessary to eradicate trafficking in persons because of the minefield of complex factors listed above that make certain global supply chains especially vulnerable to labor trafficking. The contractors and subcon- tractors themselves are best positioned to identify and neutralize the problem. Thus, in addition to the necessary “sticks” that are currently within the regime, “carrots” must also be in place in the form of tangible incentives.

B.  Existing “Carrot” Models for Procurement

Procurement systems in several jurisdictions offer positive incentives to contractors for engaging in anti-trafficking measures. Two primary models exist. One option is to create a “seal” program that entails set-asides for contractors that have demonstrated certain qualifications and anti-trafficking efforts. The second option is to include anti-trafficking measures as an evaluation factor for contracts that embody any of the characteristics listed above that make the activity vulnerable to trafficking in persons. To evaluate these models, this section examines existing incentives schemes that have been built into procurement systems in the United States and abroad.

By shifting the status quo and elevating the importance of anti-trafficking efforts, each of these approaches may result in their own respective adverse effects that have the potential to skew the balance between the essential principles of the U.S. procurement system, referred to above as the desiderata. It is therefore important to consider the trade-offs. Ultimately, however, the potential risks can be mitigated.

1.   Evaluation Factor

Evaluation factors are the considerations on which the government bases its award decisions.120 Norway and San Francisco have established evaluation factors that assess offerors’ human rights records. In 2016, Norway enacted the Public Procurement Act to “promote effective use of community

resources.”121 Section 5 focuses on protecting the environment, human rights, and “other social considerations” by directing procurement officials to take these issues into account when they evaluate contracts to be performed in high-risk areas.122 When evaluating proposals for sectors that the government has designated as “high-risk” for violating human rights, they are evaluated based on their “‘competitive ability’ on adhering to the ILO core conventions and the national legislation of the production country.”123

San Francisco enacted the Sweatfree Contracting Ordinance in 2005, which applies to “apparel, garments and corresponding accessories, materials, supplies or equipment,” and textiles.124 The city established a point system that “rewards vendors that meet the City’s core requirements” and provides extensive information about their suppliers, “including listing all contractors and subcontractors with dollar values, their locations, and contact information together with insuring the City’s right to inspect those factories and facilities.”125 These points are considered in the overall selection for award.126

Creating an anti-trafficking evaluation factor is a viable “carrot” option to add to the federal procurement system because it would spur offerors to consider how their anti-trafficking efforts would compete with other firms. After all, the offerors would want to ensure that they receive as many points as possible to receive a comparative advantage. While FAR 22.17 already requires that offerors include a compliance plan and certify that they will take certain actions that support anti-trafficking efforts,127 it still does not provide effective positive incentives. The initial compliance plan is vulnerable to becoming a one-time box-ticking exercise behind which contractors can hide by claiming plausible deniability. As for providing an annual certification, that is more of a performance issue, the violation of which would not become apparent until after contract award, and only if the violations were discovered. What this Note proposes, and what Norway and San Francisco have established, is to consider certain indicia of anti-trafficking efforts as another evaluation factor that the source selection committee evaluates when making the decision to award. This will signal to the offerors that these efforts are significant enough to affect their chances of award.

One potential drawback of this option is that it may decrease competition. The City of San Francisco has taken action to mitigate this concern. The Annual Report for the San Francisco Sweatfree Procurement Advisory Group noted that the original ordinance had to be amended to consider a comparative rating system in order to consider firms that were not willing or able to comply with all of the points, but some.128 This change also was reportedly in response to a decrease in companies willing to participate in the procurement activities because of the strict compliance requirements.129 However, there are ways to avoid these challenges, which will be discussed in Section C below.

2   Set-Asides

In the U.S. federal system, the term set-aside refers to a preference mechanism defined as “the reservation of contracts for award only to a designated group.”130 In contrast to the San Francisco and Norway approaches, Argentina and Bolivia have created programs where a contractor may be awarded a special “seal” to indicate that it has not used slave labor to manufacture its products.131 These “seals” indicate eligibility for special preference in certain procurements, which thus creates a set-aside program for responsible businesses.132

Argentina has created a voluntary certificate program.133 The intent of this policy is to “favour companies that provide their employees with decent working conditions, social security coverage and labour benefits when it comes to large purchases by the state, of military uniforms, for example.”134 These companies include clothing companies, factories, and “suppliers along the entire production chain.”135 To achieve the certification, the company must volunteer to participate in “a series of inspections and audits,” and it “must show that it provides its employees with decent, safe, environmentally-friendly working conditions all along the production chain, and that it does not use child or forced labour, violence or discrimination.”136 A major draw to this policy, and why it is categorized as a set-aside program in this Note, is that they have an agreement with the Ministry of Defense and the Ministry of Education to prefer these companies when choosing companies from which to purchase.137 The Minister of Education of Buenos Aires, Adriana Puiggrós, said that “[t]his agreement is based on positive discrimination towards companies that are committed to respecting the law as well as the welfare of their employees.”138 Thus, this system establishes tangible incentives for companies to compete for an advantage in the procurement process, while ensuring the government is buying from sources that have placed a high premium on transparent practices throughout their supply chain to avoid abusive labor practices and slave labor.

Potential criticisms of this program include that it does not go far enough because it is optional — it does not require companies to participate in the certification program.139 However, this may be a positive attribute: it circumvents the issue faced by the San Francisco program, which had difficulty drawing enough rigorous competition. An Argentinian government official noted, “What we are offering is a certificate that will facilitate access to large customers and grant prestige to labels that follow the rules.”140 While it does not force every company that wants to participate in the procurement system to focus on its labor practices, it certainly provides a tangible positive incentive to do so.

Bolivia enacted a similar program called the Triple Seal (Triple Sello) certification program.141 Bolivia awards the seals to companies that demonstrate that their operations are free of “child labor, discrimination, or forced labor in the entire production chain.”142 However, only two companies have received this Triple Seal certification as of 2016.143 Since so few companies have participated, it is thus unclear to what extent this triple seal program has an effect on the decision to award in the procurement process.

Of course, the U.S. government has used federal procurement law to further social values such as diversity, redistribution of wealth, and environmental policies. The U.S. government has a range of collateral policies that establish set-asides for small businesses, including certain subcategories, such as Historically Under-utilized Business Zones (HUB Zones), Women-Owned Businesses, Service Disabled Veteran Owned Small Business, and 8(a) programs.144 Procurement law also has served to further other policies such as domestic preferences and labor policies.145

However, the “seal” programs created by Bolivia and Argentina present a different opportunity for offerors than the U.S. set-asides because the U.S. collateral policies are steeped in identity factors — there is little that other companies can do to achieve or earn the status to become part of the set-aside group. In contrast, there are measures that companies can take to earn a “seal” to become a preferential offeror in the Argentinean and Bolivian systems. Additionally, the intent is different than traditional U.S. federal procurement

set-asides. There, the government intends to give an advantage to businesses owned by groups that have been historically disadvantaged. In contrast, the “seal” program intends to give businesses an advantage based on their established anti-trafficking efforts.146

C.  Proposed “Carrot” for the U.S. Federal Procurement System

This Note recommends integrating positive business incentives into the procurement system in order to increase buy-in from contractors and ultimately strengthen the anti-trafficking regime in U.S. federal procurement. The most effective approach would be to consider the anti-trafficking compliance plan (required by FAR Part 22.17) as an evaluation factor that is a basis for award. This option is preferable to the “seal” program because it would encourage contractors to create a specialized and detailed compliance plan for each proposal with similar vigor as other competitive aspects of their proposals. In doing so, contractors would have to consider the risk factors discussed above and outline a specific plan for addressing these risks. While FAR 22.17 already requires a compliance plan for a certain classification of contract proposals, making the quality of compliance plans part of the evaluation will likely encourage greater detail and innovation in addressing possible risks in the particular country and industry related to the contract. Indeed, the company’s profits and business success would be influenced, in part, by its attention to trafficking vulnerabilities and its quality of solutions for addressing these risks.

Of course, this added incentive would not apply to sealed bids because it contemplates adding an incentive during the evaluation stage of negotiated procurements. However, negotiated procurement is a common contracting technique so this change would impact a large number of contracts.

To ensure that instating any of these incentivizing policies would not undermine the other desiderata factors of the U.S. procurement system, certain mitigating factors should be in place. One of the main vulnerabilities is the decrease in competition, which can be avoided by ensuring that the policy remains voluntary. That way, companies have an optional advantage but not one that would hinder them from competing at all. Alternatively, this could be a required program but only for those contracts that present issues identified above as being vulnerable to trafficking in persons. For example, it could apply if there is a service construction contract that will be performed in a politically unstable region that is currently experiencing violent unrest. This also would give source selection authorities the opportunity to consider other more important factors in the trade-off process before making award.

Finally, considering the quality of the anti-trafficking compliance plans as an evaluation factor would not be overly burdensome on contractors or too resource-intensive. As discussed above, the U.S. Department of State already has created the Responsible Sourcing Tool, a comprehensive interactive website that contractors can use to access a wealth of information related to the country and industry in which they would expect to perform the contract.147 This user-friendly tool has the potential to serve as a useful source of information for potential government contractors; however, contractors are currently not required to consult it. This should change: there should be an incentive in place to encourage the use of this source. After all, it is already publicly available, which counters the argument that increasing accountability and evaluating offerors based on their respective compliance plans would be too burdensome. Contractors mapping out the strategy and other details in addition to the facts that the Responsible Sourcing Tool provides would simply mirror the process contractors already engage in while preparing other parts of their proposals, but, this time, the process would be devoted to combating trafficking in their supply chains.

VI.  Conclusion

Trafficking in Persons is a global human rights atrocity that has stained the U.S. government supply chain. The United States should take further steps to recognize its role as a major purchaser of products and goods, take responsibility for its global supply chains, and uphold its commitment to integrity. To achieve this goal, however, it must evolve beyond simply imposing a series of restrictions. Instead, it should broaden the approach so that positive incentives are in place to create increased buy-in from offerors, instead of creating a hollow box-ticking exercise that offers plausible deniability.

Entity:
Topic:
  1. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1469-70.
  2. Human Rights First, Human Trafficking by the Numbers (Jan. 7, 2017), https://www.humanrightsfirst.org/resource/human-trafficking-numbers.
  3. See generally ACLU, Victims of Complacency: The Ongoing Trafficking and Abuse of Third Country Nationals by U.S. Government Contractors (June 2012), https://www.aclu.org/sites/default/files/field_document/hrp_traffickingreport_web_0.pdf; Human Rights First, Signal Case: Construction Industry, http://www.humanrightsfirst.org/sites/default/files/Signal-case-spread.pdf; Human Rights First, City of Houston Acts to Stop Goods Produced with Forced Labor (Nov. 7, 2017), https://www.humanrightsfirst.org/blog/city-houston-acts-stop-goods-produced-forced-labor.
  4. For example, under a contract from the Army’s Logistics Civil Augmentation Program, the Army spent $3.787 billion in three contracts to two contractors, DynCorp and Fluor, for logistical services in Afghanistan. See Verité, Strengthening Protections Against Trafficking in Persons in Federal and Corporate Supply Chains: Research on Risk in 43 Commodities Worldwide 121 (2017). After receiving allegations about trafficking in persons on the contracts, SIGAR launched an investigation and found that workers had been placed in debt bondage. See Letter from Office of the Special Inspector Gen. for Afghanistan Reconstruction to CEO of DynCorps (Sept. 12, 2014), http://psm.du.edu/media/documents/us_research_and_oversight/sigar/us_sigar_other_letter-to-gaffneypdf.pdf. The Trafficking Victims Protection Act defines debt bondage as “the status or condition of a debtor arising from a pledge by the debtor of his or her personal services or of those of a person under his or her control as a security for debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined.” Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1469. Throughout the investigation, DynCorp, the prime contractor, maintained that it was completely compliant. They “officially profess to having zero tolerance for [trafficking in persons]”; yet reports found that “they do not meaningfully scrutinize the behavior of their subcontractors, on whom they rely for the bulk of their recruiting.” See Verité, supra, at 121.
  5. “[T]he United States imports $142 billion worth of goods made with forced labor annually.” Human Rights First, What the U.S. Can Continue to Do Fighting Human Trafficking in 2018 (Jan. 11, 2017), https://www.humanrightsfirst.org/blog/what-us-can-do-continue-fighting-human-trafficking-2018.
  6. See Gonzalez v. CoreCivic, 3:17-cv-02573 (S.D.Cal. Aug. 22, 2018); Novoa v. GEO Group, 5:17-cv-02514 (C.D. Cal. Apr. 4, 2004); see also U.S. Dep’t of State, Trafficking in Persons Report: June 2018, 447 (2018), https://www.state.gov/documents/organization/282798.pdf. See generally Alexandra Levy, Human Trafficking Legal Center, Fact Sheet: Human Trafficking & Forced Labor in For-Profit Detention Facilities (2018).
  7. Levy, supra note 6.
  8. U.S. Dep’t of State, Trafficking in Persons Report: June 2017, at 420 (2017), https://www.state.gov/documents/organization/271339.pdf.
  9. Id.
  10. Radu Cucos, Int’l Learning Lab on Procurement and Human Rights, Public Procurement to Fight Human Trafficking—The OSCE Approach (Oct. 6, 2016), http://www.hrprocurementlab.org/blog/public-procurement-to-fight-human-trafficking-the-osce-approach.
  11. See Steven Schooner, Desiderata: Objectives for a System of Government Contract Law, 11 Pub. Procurement L. Rev. 103 (2002).
  12. The exact origin of the metaphor of carrots as incentives and sticks as punishments is unknown. Perhaps its most famous use was when Winston Churchill declared at a press conference in 1943, “We shall continue to operate on the Italian donkey at both ends, with a carrott and with a stick.” See Barbara Walraff, Word Count, The Atlantic (Apr. 2004), https://www.theatlantic.com/magazine/archive/2004/04/word-court/302931. This image suggests the alternate use of rewards in the form of a dangling carrot and punishments in the form of tapping with a stick to coax the donkey to act, or refrain from acting, in a certain way.
  13. U.N. Office on Drugs and Crime, The Role of Recruitment Fees and Abusive and Fraudulent Recruitment Practices of Recruitment Agencies in Trafficking in Persons 64 (2015).
  14. See generally Schooner, supra note 11.
  15. See generally Int’l Learning Lab on Procurement & Human Rights, San Francisco, California, http://www.hrprocurementlab.org/blog/speaker-statements/san-francisco-california; Robert Stumberg, Turning a Blind Eye? Respecting Human Rights in Government Purchasing, Int’l Corporate Accountability Roundtable (2014); Marcela Valente, Argentina: Incentive for Eliminating Slave Labour, Inter Press Service 2 (June 22, 2007), http://www.ipsnews.net/2007/06/argentina-incentive-for-eliminating-slave-labour.
  16. This Note does not focus on sex trafficking. This is not to say that other forms of human trafficking such as sex trafficking are not significant. However, the focus of this Note will be on labor trafficking because it is the most common form of trafficking generally, and in procurement activities specifically. See, e.g., Adhikari v. Daoud & Partners, 994 F. Supp. 2d 831 (S.D. Tex. 2014).
  17. Victims of Trafficking and Violence Protection Act of 2000, 22 U.S.C. § 7102(9) (2012).
  18. Id. § 7102(9)(A).
  19. ID. § 7102(9)(B).
  20. U.S. Agency for Int’l Dev., Countering Trafficking in Persons Field Guide 10 (Apr. 2013). Notably, this distinguishes human trafficking from human smuggling, which by function of its purpose, requires transnational movement. Smuggling also involves the consent of the migrant, whereas trafficking victims by definition do not give their consent. Even in instances when he or she consents in the outset of the agreement, the use of coercion, force, or fraud vitiates the migrant’s original consent. See id.
  21. Id. § 7102(9)(A).
  22. Id. § 7102(3)(A)–(C).
  23. Id. § 7102(9)(A).
  24. See Preamble, Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, U.N. Human Rights Office of the High Comm’r, http://www.ohchr.org/EN/ProfessionalInterest/Pages/ProtocolTraffickingInPersons.aspx.
  25. The Protocol defines trafficking in persons as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” See id., art. 3(a).
  26. Se id., art. 3(c).
  27. Int’l Labour Org., Questions and Answers on Forced Labor (June 1, 2012), http://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_181922/lang--en/index.htm.
  28. “The status or condition of a debtor arising from a pledge by the debtor of his or her personal services or of those of a person under his or her control as a security for debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined.” Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1469.
  29. Id.
  30. “[A] condition of servitude induced by means of—(A) any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint; or (B) the abuse or threatened abuse of the legal process.” Id.
  31. Int’l Labour Org., ILO Standards on Forced Labor: The New Protocol and Recommendation at a Glance 5 (2016), http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@declaration/documents/publication/wcms_508317.pdf (clarifying that the term “voluntary” refers to the “free and informed consent of a worker to enter into an employment relationship and his or her freedom to leave the employment at any time”).
  32. Id.
  33. Responsible Sourcing Tool, Is Human Trafficking Hidden in Your Supply Chain?, https://www.responsiblesourcingtool.org.
  34. See Verité, supra note 4 at 8.
  35. See generally id.
  36. Id. at 11.
  37. Id.
  38. Id. at 8–9; see also Stumberg, supra note 15, at 26.
  39. Verité, supra note 4, at 8; see also Org. for Sec. & Cooperation in Europe, Model Guidelines on Government Measures to Prevent Trafficking for Labour Exploitation in Supply Chains 18 (2018) [hereinafter Model Guidelines].
  40. See Verité, supra note 4, at 11.
  41. Id. at 32.
  42. See generally Verité, supra note 4.
  43. Id. at 51–52.
  44. Id.
  45. Model Guidelines, supra note 39.
  46. Id.
  47. Verité, supra note 4, at 13.
  48. U.S. Dep’t of State, supra note 8, at 1.
  49. William J. Clinton, President of the United States, Statement on Signing the Victims of Trafficking and Violence Protection Act of 2000 (Oct. 28, 2000).
  50. See Polaris Project, Reauthorizing the Trafficking Victims Protection Act (June 2017), https://polarisproject.org/blog/2017/06/29/reauthorizing-trafficking-victims-protection-act.
  51. Exec. Order No. 13,627, 3 C.F.R. § 13627 at 309–14 (2012).
  52. Trump Vows to Fight ‘Epidemic’ of Human Trafficking, Associated Press (Feb. 23, 2017), https://www.businessinsider.com/ap-trump-vows-to-fight-epidemic-of-human-trafficking-2017-2.
  53. Presidential Proclamation, President Donald J. Trump Proclaims January 2018 as National Slavery and Human Trafficking Prevention Month (Dec. 29, 2017), https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-proclaims-january-2018-national-slavery-human-trafficking-prevention-month.
  54. Rex Tillerson, Secretary of State, Remarks at the 2017 Trafficking in Persons Report Launch Ceremony (June 27, 2017), https://www.state.gov/secretary/20172018tillerson/remarks/2017/06/272205.htm.
  55. Id.
  56. Exec. Order No. 13,773, 82 Fed. Reg. 10691, https://www.whitehouse.gov/the-press-office/2017/02/09/presidential-executive-order-enforcing-federal-law-respect-transnational.
  57. Amnesty Int’l, USA: Suspending Conflict Minerals Law Would Throw a Cloak of Secrecy over Rogue Business Practices (Feb. 2017), https://www.amnesty.org/en/latest/news/2017/02/usa-suspending-conflict-minerals-law-would-throw-a-cloak-of-secrecy-over-rogue-business-practices.
  58. Executive Order–Fair Pay and Safe Workplaces, The White House Archives, Office of the Press Secretary (July 31, 2014), https://obamawhitehouse.archives.gov/the-press-office/2014/07/31/executive-order-fair-pay-and-safe-workplaces.
  59. Id.
  60. U.S. Secs. & Exch. Comm’n, Specialized Corporate Disclosure (May 30, 2013), https://www.sec.gov/spotlight/dodd-frank/speccorpdisclosure.shtml.
  61. Proposed Trump Executive Order Would Allow U.S. Firms to Sell ‘Conflict Minerals,’ Guardian (Feb. 8, 2017), https://www.theguardian.com/us-news/2017/feb/08/trump-administration-order-conflict-mineral-regulations.
  62. Another route for addressing this is through international trade. Senators Menendez and Portman introduced a bill in January 2018, the Anti-Trafficking Trade Act, which would “prevent countries failing to meet the minimum standards for combating human trafficking from receiving preferential trade benefits.” Human Rights First, The Anti-Trafficking Trade Act Helps the U.S. to Fight Trafficking (Jan. 17, 2018), https://www.humanrightsfirst.org/blog/anti-trafficking-trade-act-helps-us-fight-trafficking.
  63. Trafficking Victims Protection Reauthorization Act of 2005, Pub. L. No. 109-164, 119 Stat. 3558, § 2(10)–(11).
  64. See Exec. Order No. 13,627, 3 C.F.R. § 13627 at 310–12 (2012).
  65. See id. at 312–13.
  66. National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-129, tit. XVII.
  67. Id.
  68. Id.
  69. Id. § 1704(d).
  70. Id. § 1706(b).
  71. Id.
  72. 19 U.S.C. § 1307 (2012).
  73. Id.
  74. Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2017, H.R. 2200, 115th Cong. (2017), https://www.congress.gov/bill/115th-congress/house-bill/2200/text.
  75. Abolish Human Trafficking Act of 2017, S. 1311, 115th Cong. (2017), https://www.congress.gov/bill/115th-congress/senate-bill/1311/text.
  76. Trafficking Victims Protection Act of 2017, S. 1312, 115th Cong. (2017), https://www.congress.gov/bill/115th-congress/senate-bill/1312/text; Polaris Project, supra note 50.
  77. Abolish Human Trafficking Act of 2017, S. 1311, 115th Cong. (2017).
  78. See FAR 9.103.
  79. See FAR 9.104.
  80. Id.
  81. See FAR 9.104-1.
  82. See FAR 9.103.
  83. See John Cibinic, Jr., et al., Formation of Government Contracts 411 (4th ed. 2011); Lithographic Publications, Inc., B-217263, 85-1 CPD ¶ 357 (Comp. Gen. Mar. 27, 1985).
  84. FAR 22.1700.
  85. FAR 22.1703.
  86. FAR 22.1703(a).
  87. Id.
  88. FAR 22.1704(c)(2)(ii)–(d).
  89. FAR 9.402.
  90. FAR 22.1703(c).
  91. FAR 22.1703(c)(2)–(3).
  92. FAR 22.1701(b).
  93. FAR 22.1701(a).
  94. See FAR 22.1703–1704.
  95. FAR 22.1705(a)–(b).
  96. FAR 52.222-50(h)(3).
  97. Id.
  98. FAR 52.222-50(h)(1).
  99. FAR 52.222-50(h)(5).
  100. Id. (emphasis added).
  101. FAR 52.222-50.
  102. FAR 22.1703(c).
  103. Id.
  104. FAR 52.222-50(e).
  105. Id.
  106. FAR 52.222-50(h)(5).
  107. FAR 52.222-56.
  108. Human Rights First, supra note 2.
  109. Modern Slavery and Human Rights in Global Supply Chains: Roles and Responsibilities of Public Buyers, 2016 Greenwich Annual Symposium and Public Buyers Forum 3 (Dec. 2016).
  110. Proposed Trump Executive Order, supra note 61.
  111. Schooner, supra note 11.
  112. Cucos, supra note 10.
  113. Schooner, supra note 11.
  114. See generally Cucos, supra note 10.
  115. See Stumberg, supra note 15, at 16.
  116. Id.
  117. Preamble, Universal Declaration of Human Rights, http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf.
  118. U.N. Human Rights Office of the High Comm’r, United Nations Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect, and Remedy” Framework 3 (2011); see also Modern Slavery and Human Rights in Global Supply Chains, supra note 109, at 6. Dr. Olga Martin-Ortega argued that “[t]he state duty to protect extends to the so called state-business nexus, this is, when the state acts as a commercial actor.” She identified this as “widening of the spectrum of responsibility” so that protecting fundamental human rights also applied when “public authorities [enter] into commercial relationships.”
  119. See Modern Slavery and Human Rights Risks, in Global Supply Chains, supra note 109, at 3.
  120. See FAR 15.304; see also Cibinic et al., supra note 83, at 686.
  121. Public Procurement Act (Lov om Offentlige Anskaffelser (Anskaffelsesloven)), LOV-2016-06-17-73, https://lovdata.no/dokument/NL/lov/2016-06-17-73?q=anskaffelsesloven; see also Norway: Procurement Law to Stem Deforestation, Protect Human Rights Adopted, Library of Cong. (Sept. 16, 2016), http://www.loc.gov/law/foreign-news/article/norway-procurement-law-to-stem-deforestation-protect-human-rights-adopted.
  122. Public Procurement Act § 5 (Lov om Offentlige Anskaffelser (Anskaffelsesloven)), LOV-2016-06-17-73, https://lovdata.no/dokument/NL/lov/2016-06-17-73?q=anskaffelsesloven.
  123. Stumberg, supra note 15, at 28–29.
  124. S.F., Cal., Admin. Code, Sweatfree Contracting Ordinance ch. 12U (2005), http://sfgov.org/oca/sites/default/files/Chapter12U.pdf.
  125. S.F. Sweatfree Procurement Advisory Group, Annual Report 3 (2013), https://sfgov.org/olse/sites/default/files/FileCenter/Documents/11789-SPAG%202013%20Report%20Final.pdf.
  126. Id.
  127. See FAR 22.1703–1704.
  128. Id.
  129. Yana Kunichoff, An End to Sweatshop-Made City Workers’ Uniforms in Chicago?, In These Times (May 29, 2014), http://inthesetimes.com/working/entry/16756/an_end_to_sweatshop_made_city_workers_uniforms_in_chicago.
  130. See Cibinic et al., supra note 83, at 1590.
  131. See Valente, supra note 15; Verité, Research on Indicators of Forced Labor in the Supply Chains of Brazil—Nuts, Cattle, Corn, and Peanuts in Bolivia 21 (2016), https://www.verite.org/wp-content/uploads/2016/11/Research-on-Indicators-of-Forced-Labor-in-the-Bolivia-Brazil-nut-Cattle-Corn-and-Peanut-Sectors__9.19.pdf.
  132. Valente, supra note 15.
  133. Id.
  134. Id.
  135. Id.
  136. Id.
  137. Id.
  138. Id.
  139. Id.
  140. Id. at 2.
  141. Verité, supra note 131; U.S. Dep’t of State, supra note 8, at 93.
  142. Verité, supra note 131.
  143. U.S. Dep’t of State, supra note 8, at 93.
  144. FAR 19.000.
  145. See generally Cibinic et al., supra note 83, at 1614–32, 1645–66.
  146. Verité, supra note 131.
  147. Responsible Sourcing Tool, supra note 33.