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Public Contract Law Journal

Public Contract Law Journal Vol. 51, No. 4

Is the FAR Enough? The Persistent Problem of Human Trafficking in Government Contracts

Sarah Robitaille


  • Argues that additional, increased enforcement is necessary to prevent human trafficking, and recommending steps to take to increase enforcement.
  • Provides a history of executive and regulatory actions and investigations that resulted in increased oversight concern human trafficking and the FAR clause.
  • Discusses the need to ensure flow down of the human trafficking FAR clause to supply chain subcontractors and the required oversight to enforce it.
Is the FAR Enough? The Persistent Problem of Human Trafficking in Government Contracts
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This Note addresses the persistent problem of human trafficking in government contracts despite strict regulations in the Federal Acquisition Regulations (FAR) and a government-wide zero-tolerance policy. Part I introduces the argument that increased enforcement is required to prevent further abuse. Part II provides a background on the series of executive actions, wartime commissions, agency-led investigations, and FAR amendments that target human trafficking. As a result of these actions, the United States is better equipped to combat human trafficking. Part III analyzes the efficacy of FAR 52.222-50, Combating Trafficking in Persons. Part IV promotes substantive steps to prevent contractor abuse by ensuring the correct FAR clause is included in contracts, increasing oversight during performance, and improving enforcement when allegations arise. Part V concludes that the government can act to prevent future cases of trafficking in contracts.

I. Introduction

There is nothing more abhorrent than taking away human autonomy. Human trafficking is unacceptable under any circumstances. War does not justify it; the mission doesn’t justify it . . . . It needs to be rooted out, stamped out, and ended. That is as fundamental an American value and a human rights value as exists on this planet.

Human trafficking is an abuse of fundamental human rights. In 2004, Nepali recruiters promised men approximately $500 per month for work “in an American camp” with a government subcontractor. Instead of traveling to the promised camp, the subcontractor “treated these men as inventory, not employees.” They were held in a dark room in Jordan and told that they would be sent to the Al Asad base in Iraq for three quarters of their promised salary. Some men were successfully transported to the base where subcontractors forced them to stay in Iraq until their work was done. One man, Buddi Prasad Gurung, was detained at the base for fifteen months while the area was persistently shelled. However, some men did not even arrive at the base. On the road between Amaan, Jordan, and Baghdad, Iraqi insurgents captured twelve of the men. After a period of captivity, the insurgents “beheaded one of the men, and shot the other eleven men in the back of their heads.” International media broadcast the executions.

These events and labor practices are just one example in a long line of abuses. Despite strong condemnations and U.S. policies, human trafficking or Trafficking in Persons (TIP) is a persistent problem in government contracts. In a 2019 report, the Inspector General for the Department of Defense (DoD) substantiated cases of TIP in Kuwait, an area with a history of human trafficking by government contractors. The report found that between 2015 and 2017, four U.S. Army contractors violated “tenets of human trafficking laws” by withholding employees’ identification documents, charging high recruitment fees, and forcing employees to live in substandard housing conditions. These labor practices are commonly used to traffic people and force labor.

With the goal of preventing and wholly eliminating human trafficking in federal procurement, the U.S. instituted a zero-tolerance policy prohibiting any form of trafficking in all government contracts. Pursuant to the policy, contractors and subcontractors are subject to criminal and civil liability for any violations or cases of abuse. Even with zero tolerance, TIP practices persisted in the twenty-first century when the government increasingly relied on contractors and subcontractors to support the military mission in Afghanistan, Iraq, and the surrounding region. This period of unprecedented reliance on contractors corresponded with government oversight failures. Instead of government employees, contractors oversaw other contractors. Sadly, some government contractors took advantage of the situation and used victims of human trafficking to complete performance.

In response to these reports of contractor abuse and forced labor, largely involving third country nationals (TCNs), President Obama issued Executive Order (EO) 13627 calling for amendments to the Federal Acquisition Regulations’ (FAR) anti-trafficking provisions. As a result, the government amended FAR 22.17 and FAR 52.222-50 to tighten labor practice restrictions and increase contractor accountability and management over their supply chains. By targeting common trafficking practices and requiring compliance plans with annual certification requirements, regulators strengthened the zero-tolerance policy. Lawmakers wanted to “make sure we end this abhorrent practice” and prevent “American taxpayer money from supporting these practices.”

Despite these efforts, failures to enforce FAR 52.222-50 in contracts continue to weaken the FAR’s efficacy and encourage plausible deniability for prime contractors. The government does not adequately utilize enforcement mechanisms like investigations and suspension and debarment to hold contractors liable. Recently, the DoD Inspector General found that mandatory contract provisions prohibiting human trafficking were missing from several qualified contracts. Therefore, the government must remain vigilant to ensure Contracting Officers (COs) effectively verify contractor responsibility and include all required language during contract formation. The government must also train COs to look for signs of abuse and impress upon contractors the importance of compliance. Failure to monitor supply chains and substantiated cases of abuse should result in penalties and contractor liability.

This Note will analyze the efficacy of the FAR anti-trafficking provisions and propose solutions to strengthen enforcement of the regulatory language. First, it will survey the global issue of human trafficking and discuss the government’s zero-tolerance policy as well as the events that culminated in Executive Order 13627 requiring amendments to the FAR. Second, the Note will analyze the regulatory language and what responsibilities it places on contractors, assess the efficacy of these provisions on known cases of abuse, and address the concerns raised when the 2015 amendments were finalized and whether they have in fact materialized. Third, to prevent future TIP, it will propose that the government must ensure compliance through contract management and comprehensive investigations for any violations. Finally, the Note will determine the efficacy of the amendments and how the proposed solutions will enhance government enforcement and prevent human trafficking by contractors.

II. Background

Human trafficking is the use of force, exploitation, or coercion of workers for their labor, services, or commercial sex. Its practice is not limited to one area of world or victim profile; millions of people each year become victims of trafficking. To understand the scope of human trafficking and how it impacts U.S. government contracts, this Part will first address the practice globally. It will identify common types of human trafficking, describe international efforts to prevent further abuses, and explain obstacles to its eradication. This Part will also describe how government contractors specifically engage in TIP through patterns of behavior and discuss known cases of abuse by contractors. Finally, this Part will illustrate how politicians responded to reports of human trafficking and implemented new regulations to fight it.

A. The Global Issue of Human Trafficking

Globally, forced labor is a method of human trafficking. Forced labor is broken down into three categories: forced labor exploitation; forced sexual exploitation; and state-imposed labor. Forced labor exploitation is when private agents extort labor from individuals through slavery and bonded labor. Forced sexual exploitation includes using children for prostitution and pornography. State-imposed labor encompasses work mandated by public officials, the military or paramilitary, and prison labor. In 2017, the International Labour Office (ILO) estimated that almost twenty-five million people worldwide were victims of forced labor.

Forced labor practices occur in each region of the world, contributing billions of dollars to the international criminal industry. In a statistical report covering each region of the world, the ILO found “the prevalence is highest in Asia and the Pacific, where four out of every 1000 people were victims, followed by Europe and Central Asia (3.6 per 1000), Africa (2.8 per 1000), the Arab States (2.2 per 1000) and the Americas (1.3 per 1000).” Behind each statistic is a person with stories like Mr. Gurung––discussed above––who was detained for fifteen months, or the other Nepali men who did not survive their forced journey from Jordan to Iraq.

Trafficking is considered a human rights violation within the international community. Both the UN General Assembly and Human Rights Council consider it a violation and impairment of fundamental human rights. Numerous international conventions ban human trafficking and create international obligations to fight its practices. Individual countries, including the United States, have outlawed human trafficking and condemned its continued practice.

Human traffickers target the vulnerable and those seeking opportunity. Globally, over half the victims of forced labor suffer from debt bondage by private actors. Debt bondage is when personal debt is leveraged to force labor, predominantly in agriculture, domestic work, and manufacturing. Those who exploit others through debt bondage withhold or threaten to withhold wages so the worker cannot leave the worksite and usually threaten or commit acts of violence against the worker or his or her family. Another form of forced labor is sexual exploitation or sex trafficking, mostly victimizing women and girls.

These practices fulfill the ILO’s two criteria to determine if someone is the victim of forced labor: (1) involuntariness, meaning the victims do not have a choice because, for example, they do not have access to their identification documents, are unable to afford transportation home, or are forcibly detained at the labor site; and (2) menace of penalty, meaning traffickers control workers through violence. The nature of forced labor practices and human trafficking create problems with victim identification.

Globally, the ability to identify trafficking victims poses a challenge and is considered the “greatest obstacle to rescuing victims of human trafficking.” Traffickers generally prevent victims from seeking help through coercion or threat of violence. Further, victims often have limited access to resources and are often far from home. Despite state-led training programs in law enforcement to identify victims, actual victim identifications lag behind estimated numbers of victims worldwide. As a result, only a small portion of the total estimated victims ever see their cases prosecuted.

Human trafficking is a global problem and considered a “leading law enforcement challenge as well as a pervasive and widespread manifestation of modern-day violations of human rights.” But it persists in all areas of the world, in many forms, even in U.S. government contracts.

B. Human Trafficking in U.S. Government Contracts

Human trafficking occurs in federal government contracts, despite efforts to eliminate it. Contractors typically follow an established pattern of behavior when trafficking labor. The Adhikari case and Najlaa incident, examined below, illustrate how contractors engage in specific behaviors to attract workers and then exploit their labor. However, the United States took substantive steps to combat TIP and contractor abuse by publicizing the incidents and making regulatory changes.

1. Common Behaviors of Contractor Abuse

Government contractors largely follow a “tried and tested” pattern of behavior when they commit human trafficking violations. Contractors or subcontractors begin by contacting recruitment agencies in developing countries to discuss recruitment costs, including transportation expenses and migration documents, for hired workers. Typically, third-party recruitment agencies that facilitate trafficking target TCNs who have socioeconomic disadvantages. They exaggerate or lie about the work location, salary, and or type of labor required. By misrepresenting these opportunities, recruiters extort money and collect substantial profits because potential workers are willing to pay for their “big break” and a chance to improve their lives.

Recruitment fees are one common way of inducing debt bondage, because many workers must borrow money to cover the cost of the fee. Therefore, these workers owe debtholders or loan sharks at home and need to continue working to pay off fees or accumulating interest, even if they are working in unsafe conditions. This practice means workers often cannot afford to return home. Throughout the process recruiters also tend to avoid written contracts with the workers, promising documentation when they arrive at the job location. Some workers may never see a contract, while others upon arriving at the job site may be given one in a foreign language that they cannot understand.

Once workers arrive at the job, they are typically held at a primary location without pay and without the ability to communicate with their families. Following this period of detention, they are often forced to work onsite to pay off the incurred recruitment debts. At this stage, workers typically earn a reduced rate, which in turn forces them to say longer than anticipated to pay off the debt. While some workers are able to leave altogether, contractors often use threats of violence or they wrongfully withhold travel documents so that the workers are unable to leave during contract performance. Even if the workers are technically allowed to leave, workers often stay because they do not have enough money to pay their way home. Throughout these events, prime contractors may claim plausible deniability because the trafficking behaviors occurred further down the supply chain and were performed by third-party recruiters or subcontractors.

2. Known Cases of Contractor Abuse

There are various examples in the past of U.S. government contractors and subcontractors engaged in human trafficking. While the government investigated some cases quietly, others are publicly known due to reporting and criminal litigation. For example, the Adhikari case follows the typical pattern of abuse almost exactly. Initially, the Jordanian subcontractor, Daoud & Partners (Daoud), used Nepalese recruiters as their agents to attract potential employees for a contract with Kellogg Brown & Root, Inc. (KBR) and its subsidiaries. The Nepali recruiters approached the men and promised them work at a luxury hotel in Amman, Jordan for $500 per month. The men “incurred substantial debt to pay the brokerage fees in seeking out this employment.”

Once the Nepali recruiters brought the Adhikari men to Jordan, they were held by KBR’s subcontractor, Daoud. Daoud seized the men’s passports so they could not leave, effectively detaining them indefinitely in Jordan. Then Daoud transported the men from Amaan, Jordan to the Al Asad base in Iraq. The workers who survived the journey were told by Daoud and KBR employees that they must stay and complete the job. These contractors forced the men––who had already been detained and seen fellow workers victimized––to work at a U.S. military base. They were only paid $375 per month ($125 less than they were promised) and did not have access to their travel documents: they were trapped. The subcontractor’s abhorrent behavior followed typical TIP practices.

Another publicly known case of contractor abuse of TCNs is the “Najlaa Incident” in Iraq. In 2008 allegations surfaced against Najlaa International Catering Services (Najlaa), a U.S. subcontractor, who detained 1000 workers for almost three months during a KBR contract. Conditions were reportedly atrocious. For example, there were only “[twelve] toilets and about [ten] bathrooms” for the 1000 detained workers. This numbers equates to about one bathroom for every 100 workers. Traffickers also duped these workers using the common recruitment and debt bondage tactics of human trafficking.

Initially, recruiters promised “the moon and stars” while a third-party collected recruitment fees ranging from $2,000 to $5,000 per person. Many workers incurred debts to cover the cost because recruiters promised them salaries between $600 and $800 per month. But the reality was much different. Once the workers arrived in Iraq, Najlaa restricted access to passports and forced these men to work without pay while relegating them to cramped quarters with limited or no access to food, water, and other facilities. These workers, like those in Adhikari, were victims of human trafficking at the hands of U.S. government subcontractors.

3. Political Will and Regulatory Changes

In light of public reports of contractor abuse, the political branches worked to articulate policies to protect laborers and hold anyone engaged in trafficking accountable for their actions. In 2000, Congress passed the Trafficking Victims Protection Act (TVPA), comprehensive legislation banning human trafficking and providing legal recourse for victims. The TVPA also required that FAR 22.17, analyzed below, be included in all government contracts thereby explicitly banning contractors from engaging in TIP. Further, the Department of State published its first TIP report in 2001 to provide information on global efforts to end human trafficking. In a nation-by-nation analysis, the Department of State analyzed data from eighty-two countries and instituted a methodology to assess human trafficking globally.

President Bush bolstered these early efforts by announcing the zero-tolerance policy against human trafficking. The policy committed the United States to eradicate the practice and started the government on the path toward increased regulation. When announcing the policy, President Bush stated that “[t]he United States is committed to the eradication of human trafficking both domestically and abroad. It is a crime that is an affront to human dignity.” As a result, federal funding for the Department of Health and Human Services (HHS) and the U.S. Agency for International Development (USAID) increased. However, increased resources to combat trafficking did not wholly eliminate the practice among contractors and subcontractors.

Despite the TVPA, funding to combat trafficking, and FAR 22.17’s mandate that FAR 52.222-50 be included in all government contracts, labor abuses perpetrated by contractors increasingly became public as the number of U.S. military troops decreased in Iraq and Afghanistan. Government efforts in the region relied more and more on contractors to complete the mission. Contractors provided services to bolster the military mission. By 2010, the number of contractor employees in the region surpassed 260,000. Over 200,000 of these employees were TCNs or non-United States nationals and locals. Heavy reliance on contractors overextended the government’s ability to manage contactor behavior and compliance with the FAR. Reports found a number of contractors engaged in common trafficking behaviors like destroying or withholding an employee’s identification documents, charging recruitment fees, failing to provide adequate transportation at the end of performance, and failing to provide adequate housing.

After these reports, Congress worked to further articulate policies to protect workers and hold anyone engaged in TIP responsible. Congress established the Commission on Wartime Contracting to survey government contracts in Iraq and Afghanistan. The Commission found credible cases of contractor abuse and highlighted the heightened risks of wartime contracts that resulted in waste, fraud, and abuse. Congress also held a series of hearings to address the issue. Despite heightened bipartisan effort, Congress was unable to pass new legislation that would increase contractor accountability.

However, in 2012 President Obama issued Executive Order 13627, Strengthening Protections Against Trafficking in Persons in Federal Contracts, to further target such efforts. The Executive Order (EO) required agencies to amend the FAR to prohibit trafficking in contracts and strengthen the government’s commitment to its zero-tolerance policy. As a result, the government amended FAR subpart 22.17 and FAR 55.222-50 to directly target human trafficking in government contracts.

III. The Efficacy of the FAR’s Human Trafficking Provisions

FAR 22.17 and FAR 55.222-50 implement anti-trafficking policies in all government contracts and create compliance mechanisms. The FAR reasserted the government’s zero-tolerance policy and prohibited contractors from engaging in “severe forms of contracting,” commercial sexual acts during contract performance, and forced labor. Recent amendments further define prohibited trafficking practices and provide remedies for any violations.

A. FAR 22.17 and 52.222-50 Combating Trafficking in Persons

The FAR defines and prohibits specific behaviors by contractors, and it creates both universal requirements and additional obligations for qualified contracts. The FAR also specifies appropriate remedies for any violation of FAR 52.222-50.

1. Prohibited Contractor Behaviors

The FAR directly implements policies of the TVPA and EO 13627 into government contracts by setting out the government’s zero-tolerance policy and prohibiting well-known TIP practices. All contractors, contractor employees, subcontractors, subcontractor employees, and their agents are prohibited from engaging in severe forms of trafficking during contract performance. Severe forms of trafficking in persons is defined as the following:

(1) Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or (2) 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.

Including this definition in the FAR is critical because it ensures that contractors and subcontractors are aware of specific prohibited behaviors, including the forced labor practices identified by the ILO and compliance experts.

For example, one specific prohibited behavior is debt bondage. Contractors may not destroy or withhold an employee’s identification documents or salary to maintain control over the worker. FAR 52.222-50 even requires contractors to provide return transportation and adequate housing for their workers. Contractors are liable if the workers’ housing does not meet local safety requirements or the workers cannot return home after performance. Contractors are also prohibited from misrepresenting or hiding terms and conditions of employment. Instead, they must provide workers with employment contracts or agreements in a language that they can understand. Each of these FAR prohibitions directly addresses common behaviors of contractor abuse, as exemplified by the Najlaa Incident, described above.

But the FAR’s definition of severe forms of trafficking is not limited to labor abuses. It extends to “[p]rocuring commercial sex acts during the period of performance of the contract.” Commercial sex acts is broadly defined to prohibit behaviors that subject employees to “sexual assault” or situations where they are “held [in] conditions resembling indentured servitude by their subcontractor bosses.” This definition expands the scope of contractor liability because such contractors must ensure that employees and subcontractors are not engaging in commercial sex acts as well or other TIP practices like charging recruitment fees.

Neither contractors nor anyone in their supply chain may charge recruitment fees. When FAR subpart 22.17 and FAR 52.222-50 were amended in 2015, the recruiting prohibition was controversial because the FAR did not define “recruitment fees.” Therefore, it was unclear what methods or recruitment incentives were covered by the prohibition. To resolve this ambiguity, the FAR was amended in 2019 to clarify that recruitment fees cover all fee schemes with no exceptions. Since 2019, contractors have been put on notice that they and anyone in their supply chain are not permitted to collect recruitment fees, no matter the “time, manner, or location of imposition or collection of the fee.”

2. Universal Contractor Requirements

FAR 52.222-50 lays out some requirements that must be read into all government contracts, no matter the scope or subject. The most fundamental requirement is that all government contractors must notify their employees, subcontractors, or agents of the federal anti-trafficking policy and the potential consequences if they violate FAR 52.222-50. This requirement puts each group on notice so they know what behavior is unacceptable under FAR 52.222-50. If an employee commits a violation, they may face a wide range of penalties, including “removal from the contract, reduction in benefits, or termination of employment.” The severity of the penalty is dependent on the seriousness of the violation. For example, if an employee withholds workers’ travel documents, the employee is committing a serious violation of FAR 52.222-50(a)(3), and the contractor should fire the employee.

Contractors must also act on any credible information that they receive about abuse and “take appropriate action” regarding their employees, subcontractors, or agents. Actionable information is not restricted to wholly verified facts. Any credible allegations of abuse, including reports from host country law enforcement, require an immediate response. Contractors must immediately notify the CO and agency Inspector General of a potential violation, along with the steps they are taking against the responsible party.

Additionally, contractors must fully cooperate with an agency investigation. Full cooperation means that the contractor must disclose enough information about the allegation for the government to identify the nature and severity of the FAR 52.222-50 violation as well as the identities of the individuals responsible. Full cooperation also requires contractors to promptly provide “complete responses” to government auditors and investigators. Throughout the investigation, contractors must provide reasonable access to personnel and facilities, and they must do everything within their power to protect victims and witnesses to the alleged abuse. Therefore, contractors may not impede the government’s investigation, downplay the extent of the trafficking violation, or further victimize workers and employees.

3. Actions Required Only in Qualified Contract Provisions

FAR 52.222-50 also contains affirmative requirements for certain contracts and subcontracts related to specific work done on particular contract provisions. For these additional requirements to be applied, the procurement action must be a “supplies or services” contract where performance will occur outside the United States and for which the relevant portion of the work performed outside the United States “[h]as an estimated value that exceeds $550,000.” These requirements ensure that only large segments of the contract performance trigger additional contractor responsibilities to prevent TIP, while less lucrative portions of the contract––those under $550,000––do not.

Contractors that are expected to perform work on these provisions, or “qualified contractors” must draft and maintain a compliance plan. Each compliance plan must reflect the size, complexity, nature, and scope of the contract, including how many TCNs will be employed during performance. Qualified contractors must also conduct a risk assessment to determine how susceptible the contract is to TIP. While “no one size fits all” compliance plan template exists, each must meet a set of minimum requirements laid out in the FAR.

Maintaining a robust compliance plan throughout performance is considered one of the FAR’s most rigorous requirements. Compliance plans must include employee awareness programs so contractor employees know the government’s anti-trafficking policy, what constitutes a violation, and what penalties exist if they commit a violation. This requirement is similar to, but more onerous than the requirement that contractors inform employees, subcontractors, and agents of the government policy, and the potential repercussions discussed above. Awareness programs are more involved because contractors should include the dissemination of statistics, reports from the ILO, and guidance on avoiding common misconceptions about human trafficking. The FAR even contains a link to the Office to Monitor and Combat Trafficking in Persons so contractors can easily access an awareness program template.

Compliance plans must also provide a process for employees to safely report abuse. It is critical that reporting employees are protected from retaliation. In each compliance plan’s reporting policy, contractors must include the Global Human Trafficking Hotline’s phone number and email address. Mandating that employees have access to both contact details indicates the seriousness of human trafficking allegations. By requiring FAR 52.222-50’s inclusion in every contract, the government has laid out a process to hold contractors accountable and provide employees with avenues of reporting abuse.

Similarly, each compliance plan must also include a recruitment and wage plan that complies with the recruitment fee ban. Contractors may only hire recruiters who are properly trained, do not charge recruitment fees, and know that workers’ wages must meet the “applicable host-country legal requirements or explain[] any variance.” These compliance plan protections target practices like debt bondage, discussed above.

Every compliance plan must also include a housing plan outlining how a contractor will provide housing for its workers and how that housing will meet local housing and safety standards. This requirement is targeted at abuses like the deplorable housing conditions in the Najlaa Incident, discussed above. In that case, the subcontractor did not intend to provide housing that met any safety standards, evidenced by the one bathroom for every 100 workers. But mandatory housing plans could prevent further abuse. Additionally, contractors are required to create procedures so subcontractors and agents, no matter where they are in the supply chain and “at any dollar value,” do not commit human trafficking violations listed in the FAR.

Once drafted, compliance plans must be posted at the contract’s worksite and on the contractor’s website the moment performance begins. However, this requirement allows for some leeway for contractors. The FAR acknowledges these postings are not always practicable if there is no set worksite or website. In those cases, contractors must provide the compliance plans to “each worker in writing” so that they understand the human trafficking prohibitions and what may happen if a TIP violation occurs. Contractors must also provide the plan to the CO upon request.

Contractors are not allowed to forget about their compliance plans once performance begins and the plans are posted. Rather, qualified contractors must also submit an annual certification of continued compliance during performance. Annual certifications require the contactor to conduct due diligence so they can properly certify FAR 52.222-50 compliance with the government. The FAR ensures that contractors attest to the best of their knowledge that they and their subcontractors and their agents are not violating the government’s anti-trafficking policy. Finally, these compliance requirements extend to subcontractors who are parties to qualified provisions.

4. Violations and Remedies

FAR 52.222-50 contains a range of remedies and penalties for contractors and subcontractors who commit any violation. A contractor’s failure to notify the government of any credible information or take appropriate action against the violator results in a range of penalties depending on the severity of the violation. The least severe remedy requires the contractor to remove the “employee or employees from the performance of the contract.” In those circumstances, the CO can allow the contractor to continue performance, but with different personnel. In cases where the subcontractor violated FAR 52.222-50, for example, the CO is likely to order the prime contractor to terminate the subcontract. Another option is the CO may suspend all contract payments “until the Contractor [takes] appropriate remedial action.” The most severe punishment listed in the FAR is complete suspension or debarment.

COs determine what remedy is most appropriate based on the nature and scale of the TIP abuse. When making this determination, COs are permitted to consider “mitigating and aggravating factors.” Mitigating factors show that the contractor took their FAR 52.222-50 obligations seriously and took steps to prevent abuse. The FAR lists mitigating factors, including adhering to the compliance plan and taking remedial steps such as reparations for human trafficking victims. However, contractors may face more severe penalties if they did not act to stop an alleged violation or follow the compliance plan. Ultimately, COs must determine the appropriate penalty.

B. Past Concerns About the FAR’s Coverage and Scope

Since its amendment in 2015, scholars have worried about potential regulatory loopholes in FAR 52.222-50. The primary concern was that contractors would exploit gaps in coverage to avoid the additional compliance plan requirement, described above. One avenue of concern was that FAR 52.222-50 only requires compliance plans for contract actions performed overseas. Therefore, compliance plans are not triggered by domestic contracts. However, these workers are protected by domestic legislation, including the TVPA and the Mann Act. Despite this seeming gap in coverage, in practice, workers are protected.

Further, FAR 52.222-50’s compliance plans do not extend to commercial off-the-shelf (COTS) contracts. This is likely because TIP is more common in service contracts. For example, most of the known cases of contractor abuse have occurred in service contracts, whereas COTS are commercial products sold on the commercial marketplace. Therefore, the same level of risk to workers is not readily apparent. However, trafficking risks remain because commercial items may still be produced by forced labor. Nonetheless, COTS contracts do not trigger the requirement for compliance plans.

Additionally, the FAR does not require compliance plans in contracts valued under $550,000. This practicality ensures smaller contractors do not have increased overhead costs associated with creating and maintaining a compliance plan or performing due diligence for annual certification. However, it is a potentially exploitable loophole in FAR 52.222-50’s coverage because contractors may structure their proposals to fall under the $550,000 threshold for certain work performed outside the United States. COs should be the lookout for this tactic during competition and rectify it when drafting the contract.

C. Unexpected Problems in Contract Formation

FAR 52.222-50 is mandatory, and its most recent form must be included in every government contract. However, since its amendment, FAR 52.222-50 was not inserted correctly into some government contracts. In a review of thirty-seven recent contracts and subcontracts, the DoD’s Inspector General found that ten did not include the 2015 version of FAR 52.222-50 and nineteen did not include the required additional information under the Alternate I provision. This inaccuracy is critical because these contracts were performed in Kuwait, a country where government investigators found contractors engaged in human trafficking. While the most recent versions of FAR 52.222-50 applied to these contractors per the Christian Doctrine, this failure in contract formation undermines the government’s anti-trafficking policy and contributes to the human toll of trafficking.

IV. Increasing Enforcement Leads to Increased Accountability

Increased enforcement of the FAR’s anti-trafficking provisions and CO vigilance for any signs of human trafficking in contracts would diminish the opportunities for contractor abuse. To increase accountability, there must be proactive enforcement and increased focus on contractor compliance.

A. Government Agencies Should Ensure the Correct FAR Provisions Are Included in Contracts.

Ensuring that the updated FAR 52.222-50 is included in every government contract will protect against contractor abuse. The clause is mandatory “in all solicitations and contracts” so even when it is mistakenly left out during contract formation, it is still read into every contract per the Christian Doctrine. Both contractors and COs are on notice of this doctrine, even when not included in contract formation, because the FAR Smart Matrix on currently lists FAR 52.222-50 as “required” no matter which type of contract is selected. Therefore, COs and contractors know the clause is mandatory in all contracts. However, mistakes in the Army contracts discussed above undermine the government’s commitment to prevent all human trafficking in contracts.

To combat this problem, the government should develop and implement an internal control technology or algorithm that scans the language in each contract during formation to ensure that all mandatory clauses are properly included. The technology should function like the FAR Smart Matrix where users may select filters like “Type of Contract” to customize the search to their specific contract. If any mandatory clause was omitted or the wrong version was incorporated, then the program should scan a digital copy of the contract and raise flags about the omission in the original document. Developing new technology to check for human error would limit clause exclusion and, in the context of human trafficking, ensure the correct FAR 52.222-50 was included in every government contract.

B. Government Agencies Should Train Contracting Officers Annually to Spot Signs of Contractor Abuse.

Federal agencies should ramp up efforts to train COs and other contract personnel. The TVPA currently requires the Department of Justice and Department of State to train appropriate personnel to identify and protect victims of human trafficking. Similarly, the DoD established the Combating Trafficking in Persons (CTIP) program when the zero-tolerance policy was announced to help train agency personnel. Currently, the “DoD requires its acquisition personnel to take human trafficking training once every three years.”

While these steps address human trafficking in contracts, more frequent annual trainings would reinforce the government’s commitment to ending human trafficking and show government officials that they must remain vigilant in enforcing the zero-tolerance policy. Providing an annual three-day online training course would prime officials to include all required language during contract formation and look for signs of trafficking during performance. The training should emphasize TIP dangers in higher risk fields, such as domestic work in service contracts, and the importance of routinely reviewing contractor compliance programs.

During the Najlaa Incident discussed above, reporters found visible “indicators” of TIP. The presence of “poor working and living conditions; delayed compensation or an employer’s failure to uphold the original terms of compensation; taking of a laborer’s passport, which limits freedom of movement in a foreign country; contractual terms that impose coercive restrictions; and threats” all pointed to human trafficking. Vigilance by government officials as well as increased awareness of these indicators, could have raised red flags earlier. Annual training would help COs and other contract personnel know how to spot these signs of potential human trafficking during performance.

C. Government Investigations Should Pursue Existing Remedies for Failing Due Diligence Requirements.

Lack of enforcement is a long-standing and ongoing criticism of the Government’s zero-tolerance policy against human trafficking. Critics regularly disparaged the Government as it announced that it would not tolerate human trafficking in any capacity, particularly in contracts, but then turned a blind eye when abuses occurred. In recent years, the DoJ increased enforcement, but the numbers are not sustained and still pale in comparison to the number of estimated trafficking victims. Simply put, the policy lacks teeth.

In its 2018 TIP Report, the DoD “took action against noncompliant employers or labor contractors from U.S. programs resulting in twenty-two suspensions, six debarments, one job termination, and one compliance agreement.” However, these numbers plummeted in the 2020 TIP Report. Reportedly, the DoD only received one allegation of forced labor and one allegation that TCNs were charged recruitment fees by a contractor abroad. It is unclear whether this drop-off is due to increased contractor compliance, less contractor abuse, or lags in enforcement. It is possible this drop-off is a combination of all three factors. However, these numbers spark concerns that the government is not engaging in due diligence or providing proper oversight of contracts. The government may again be turning a blind eye to abuse.

For these reasons, investigators and compliance officials should ensure qualified contractors’ compliance plans include the Global Human Trafficking Hotline and its email address so employees know how to submit reports. Further, COs should conduct annual worksite visits to confirm that compliance plans are posted in clear view of workers as required by the FAR. Government investigators should also not shy away from imposing penalties on contractors who violate FAR 52.222-50. If a subcontractor engaged in abuse, the CO should require the contractor to terminate that subcontract. If the CO believes the prime contractor had knowledge of the abuse, the CO should look to terminate the contract or even pursue suspension or debarment proceedings. The government should pursue allegations of abuse and take substantive actions to increase contractor compliance.

D. Contractors Should Familiarize Themselves and Members of Their Supply Chains with Compliance Requirements.

Contractors must continue to take anti-trafficking provisions seriously and increase compliance throughout their supply chains. After the promulgation of FAR 52.222-50, several large contractors issued statements addressing TIP. They committed to complying with FAR 52.222-50 and its policies not just at the prime contractor level, but also throughout their supply chains, with special attention to regions overseas and those activities (such as service contracts in war zones) that have potential risk of trafficking activities. These actions are signs of more robust compliance mechanisms in anti-corruption. Contractors increasingly fear legal and public backlash if fraud, corruption, or labor violations are discovered. This movement towards compliance will likely include compliance with human trafficking regulations as the same repercussions exist from public backlash and penalties.

E. Potential Issues with Information Access and Increased Enforcement

Admittedly, this Note’s proposed solutions of increased enforcement and stricter penalties for contractors will encounter logistical and regulatory challenges. First, identifying contractors previously punished for FAR 52.222-50 violations is difficult. The System for Award Management (SAM) is a consolidated database that maintains records of contractors who were excluded from contracting with the government. However, its search function requires the name of the contractor, DUNS number or CAGE code, all of which require a preexisting knowledge of the potential violator. Similarly, FAPIIS (Federal Awardee Performance and Integrity Information System) provides a spreadsheet listing all contract terminations, non-responsibility determinations, Administrative Agreements, DoD Determinations of Contractor Fault and Subcontractor Payment Issues, and Information on Trafficking in Persons since April 15, 2011. However, the “violation against” column in FAPIIS’s publicly available spreadsheet is unpopulated so the public cannot confirm a contractor’s violation.

A second issue is rooted in FAR 9.402. This provision outlines the discretionary nature of suspension and debarment and emphasizes that “these sanctions be imposed only in the public interest for the government’s protection and not for purposes of punishment.” Therefore, COs may not suspend or debar FAR 52.222-50 violators as a form of punishment; they may only do so when it is in the government’s interest. Similarly, COs must take mitigating factors into account when determining whether suspension and debarment are appropriate. Mitigating factors include the contractors improving internal compliance programs, instituting training for employees, and punishing employees responsible for the violation. Therefore, government enforcement of FAR 52.222-50 is ultimately, discretionary. However, the government should stand by its zero-tolerance policy and utilize its existing tools to prevent human trafficking.

V. Conclusion

The government must remain vigilant and continue to enforce FAR 52.222-50. Officials must ensure that the proper clause and provision language is included in all contracts and routinely check on compliance plans to confirm their adequacy. Satisfying these requirements is paramount, particularly in known high-risk contracts such as construction or service in developing nations with known histories of labor abuses. In the past, overreliance on contractors and subcontractors to fulfill the government’s mission overseas has led to abuse. COs and other federal officials must remain vigilant to prevent further human rights abuses. Increased enforcement has the potential to prevent cases like Adhikari or the Najlaa Incident from occurring again. While Government enforcement and training have increased, additional efforts must be made to completely end TIP in government contracts.

Gone are the days of “symbolic compliance efforts.” Following the enactment of the TIP-related series of executive actions and orders, the Commission on Wartime Contracting, and DoD-led investigations into possible trafficking violations and the FAR amendments, the United States is better equipped to combat human trafficking. By taking simple steps and holding contractors accountable, the government can “stop this practice immediately; apply every option with abusive contractors, including suspension, debarment, or prosecution; and take the appropriate steps to impose the law.”