Analysis of FAR Subpart 22.17 - Combating Trafficking in Persons

Overview

FAR Subpart 22.17 establishes a zero-tolerance policy for the U.S. Government regarding trafficking in persons, forced labor, and commercial sex acts within the federal supply chain. It implements the Trafficking Victims Protection Act (TVPA) and Executive Order 13627, requiring contractors to take proactive measures to prevent, detect, and report violations by employees, agents, and subcontractors.

Key Rules

• Universal Prohibition: Prohibits contractors, subcontractors, and their agents from engaging in severe forms of trafficking, procuring commercial sex acts, or using forced labor during the period of performance for all federal acquisitions.
• Prohibited Recruitment Practices: Contractors are strictly forbidden from:
  • Confiscating or destroying employee identity/immigration documents (e.g., passports).
  • Using fraudulent or misleading recruitment practices.
  • Charging recruitment fees to employees (this is defined very broadly to include almost any cost associated with the hiring process).
  • Failing to provide return transportation for employees brought into a country for the work.
• Compliance Plan & Certification ($700k Threshold): For contracts/subcontracts exceeding $700,000 for services performed or non-COTS (Commercially available Off-The-Shelf) supplies acquired outside the United States, contractors must:
  • Maintain a formal written Compliance Plan.
  • Provide an annual certification of compliance and due diligence.
• Mandatory Reporting: Contractors must immediately disclose "credible information" regarding violations to the Contracting Officer and the agency Inspector General (IG).
• Mandatory Clause: FAR 52.222-50 must be inserted into all solicitations and contracts.

Responsibilities

• Contractors and Subcontractors:
  • Must notify employees of the prohibited activities and consequences.
  • Must cooperate fully with government audits and investigations.
  • Must protect victims and witnesses from retaliation.
  • Must perform due diligence on their supply chain to ensure subcontractors are compliant.
• Contracting Officers (CO):
  • Determine the risk of trafficking for specific acquisitions.
  • Notify the Inspector General and Suspension/Debarment Official (SDO) upon receiving credible information of a violation.
  • Enforce remedies and record substantiated violations in the Federal Awardee Performance and Integrity Information System (FAPIIS).
• Agency Inspector General (IG):
  • Investigates alleged violations and provides formal reports to the agency head.
• Suspending and Debarring Official (SDO):
  • Conducts administrative proceedings to determine if a contractor should be excluded from future government contracting.

Practical Implications

• Supply Chain Risk Management: This subpart places a heavy "due diligence" burden on prime contractors. In real-world scenarios, a prime contractor can be held liable for the actions of a third-tier subcontractor or a foreign labor recruiter.
• Recruitment Fee Audits: Because "recruitment fees" are defined so broadly (covering everything from visa processing to medical exams), companies must carefully audit their international hiring processes to ensure no costs are being passed to the workers, even indirectly.
• The "Corporate Death Penalty": Trafficking violations are among the most serious in the FAR. Unlike minor technical defaults, a substantiated trafficking violation often leads to suspension or debarment, effectively ending a company's ability to do business with the federal government.
• Language Requirements: For high-risk overseas work, contractors must provide employment contracts in a language the employee understands at least five days prior to relocation, creating a significant administrative requirement for international logistics.