Overview
FAR Subpart 22.2 implements Executive Order 11755, establishing the policy and constraints regarding the use of convict labor in federal contracting. It balances the goal of inmate rehabilitation through meaningful employment with the need to prevent labor exploitation and unfair competition with the free labor market.
Key Rules
- Permitted Labor: Contractors may employ persons on parole or probation, those who have served their terms or been pardoned, and Federal prisoners.
- Non-Federal Prisoner Conditions: Employment of non-federal prisoners (e.g., state or local) in work-release programs is only allowed if:
- The work is voluntary and paid at rates not less than those for similar work in the locality.
- The employment does not displace currently employed workers or involve trades where there is a labor surplus.
- Local union organizations have been consulted.
- The Attorney General has certified the jurisdiction’s work-release laws as compliant with E.O. 11755.
- Clause Requirement: The clause at 52.222-3, Convict Labor, must be included in all solicitations and contracts exceeding the micro-purchase threshold that are performed within the United States and specified territories.
- Exemptions: The restrictions do not apply to:
- Contracts subject to 41 U.S.C. chapter 65 (Contracts for Materials, Supplies, Articles, and Equipment exceeding $15,000).
- Purchases from Federal Prison Industries, Inc. (UNICOR).
- The purchase of "off-the-shelf" finished supplies from state prisons that are available in the open market (distinguished from custom/special fabrication).
Responsibilities
- Contracting Officers: Must ensure the inclusion of FAR clause 52.222-3 in applicable contracts and verify that the procurement does not fall under an exemption that would require different labor standards.
- Contractors: Must ensure that any labor used to fulfill the contract complies with the prohibitions against forced or uncertified convict labor.
- Attorney General / Bureau of Justice Assistance: Responsible for certifying and revoking the certification of state/local work-release laws to ensure they meet federal standards.
- Labor Unions: Serve as consultants during the vetting process for work-release programs to ensure the local labor market is not adversely affected.
Practical Implications
- Supply Chain Diligence: Contractors must be cautious when sourcing labor or fabricated components, as using inmates from a state prison for custom manufacturing (special fabrication) without meeting the strict "work-release" criteria would violate the FAR.
- Rehabilitation vs. Exploitation: This subpart allows contractors to participate in social responsibility initiatives (hiring parolees or probationers) without restriction, but creates significant administrative hurdles for hiring active inmates to ensure they are not being used as a source of cheap, "captive" labor that undercuts private-sector wages.
- Geographic Scope: These rules are strictly limited to work performed within the United States, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, and the U.S. Virgin Islands; different regulations (such as those regarding forced labor) may apply to international performance.