Georgia Tech Procurement Assistance Center

FAR definition of “recruitment fees”: No means no

By

On December 20, 2018, the Federal Acquisition Regulation (FAR) was amended to clarify the FAR’s prohibition on assessing employees with recruitment fees in connection with federal contracts.  The rule provides a final definition of “recruitment fees” and clarifies the FAR’s broad prohibition on federal contractors or subcontractors assessing employees or potential employees with any such fees.

The final rule brings long-awaited clarity to the scope of the prohibition on recruitment fees, as the term has not previously been defined in anti-trafficking regulations.  Upon publication of a proposed rule change in January 2015, the FAR Council invited the public to comment on a draft definition of the term “recruitment fees” in a notice-and-comment process.  The final rule, which took effect on January 22, 2019, incorporates a definition that has been revised pursuant to comments received during that rulemaking process. Government contractors will need to take these new rules into account in their compliance efforts in connection with their supply chains.

Background

On January 29, 2015, DoD, GSA, and NASA issued a final rule amending the FAR to strengthen and enhance the human trafficking-related prohibitions applicable to all federal contracts. The final rule implemented Executive Order (E.O.) 13627, “Strengthening Protections Against Trafficking in Persons in Federal Contracts,” and Title XVII of the National Defense Authorization Act for Fiscal Year 2013, entitled “Ending Trafficking in Government Contracting.”  The amended FAR, which applied to all future contracts and orders under existing indefinite-delivery/indefinite quantity contracts, imposed significant responsibilities on federal contractors and subcontractors to prevent human trafficking and forced labor.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=768098

New guidance on contractor risk management under the human trafficking rule released

By

On December 7, the Office of Management and Budget, the Department of Labor, and the Office to Monitor and Combat Trafficking in Persons in the Department of State, issued a proposed memorandum titled “Anti-Trafficking Risk Management Best Practices & Mitigation Considerations.”  The document is intended, at least in part, to “promote clarity and consistency in the implementation of anti-trafficking requirements” imposed by Executive Order 13627, Title XVII of the FY 2013 National Defense Authorization Act, and the implementing regulatory provisions applicable to all federal contractors at FAR 22.17 and FAR 52.222-50.

human-trafficking-united-nations
Source: United Nations Office of Drugs and Crime

Although the guidance document is in draft form, it is important for contractors to consider closely because it: (1) outlines the government’s contemplated expectations on anti-trafficking risk mitigation, and (2) informs agencies that they may immediately take the contents of the memorandum “into consideration in applying the anti-trafficking requirements in the Federal Acquisition Regulation (FAR).”

In addition to reiterating the basic requirements of the anti-trafficking FAR rule (which we have covered in other posts), the memorandum outlines a series of “best practices and mitigation considerations” designed to inform contracting officers’ assessments of whether contractors are effectively carrying out their compliance responsibilities.  Although the guidance states that it is “not intended to augment or otherwise change existing regulatory requirements,” it does specify that, in the event the government becomes aware of a trafficking violation, a contractor’s compliance with the practices identified in the guidance are to be construed as mitigating considerations weighing in the contractor’s favor.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2016/12/new-guidance-contractor-risk-management-human-trafficking-rule-released/

FAR prohibitions on human trafficking take effect Mar. 2, 2015

By

The Federal Acquisition Regulation (FAR) Council has published the a  final rule implementing Executive Order 13627 and title XVII of the National Defense Authorization Act of 2013, requiring contractors on federal contracts to certify, both prior to award and annually, their human trafficking compliance and monitoring.  The Final Rule prohibits contractors from:

  • engaging in severe forms of human trafficking during the period of performance of the contract,
  • procuring commercial sex acts during the period of performance of the contract,
  • using forced labor in the performance of the contract,
  • destroying, concealing, confiscating or otherwise denying employees’ access to identity or immigration documents,
  • engaging in fraudulent or misleading recruitment practices,
  • employing recruiters that violate the labor laws of the country where the recruitment takes place,
  • charging recruiting fees,
  • failing to provide return transportation to an employee who is not a national of the country where the work is to take place, subject to limited exceptions,
  • providing housing, if required, that fails to meet host country safety or housing laws, and
  • failing to provide a written work document, if required.

The Final Rule is broadly applicable to all Federal contractors and subcontractors, regardless of contract type or dollar amount, including contractors providing commercial items, commercially-available off-the-shelf items, or goods on General Service Administration (GSA) Federal Supply Schedules (FSS).  In addition, certain contractors providing goods and services abroad will be required to make new certifications and implement compliance plans.  Failure to comply may result in financial penalties, termination for default, suspension or debarment, and potential litigation, including false claims suits.

This Final Rule will be effective on March 2, 2015.  The FAR Council has recommended that Contracting Officers to include the Final Rule in Indefinite Delivery/Indefinite Quantity (IDIQ) contracts with task orders remaining after March 2 through bilateral modification, so both new and existing contracts will be subject to the Final Rule after that date.

To supplement and implement the new FAR provisions in Department of Defense (DoD) contracts, DoD is issuing a final rule in the form of its Defense Federal Acquisition Regulation Supplement (DFARS) at Subpart 252.235-7004.  In addition, DoD Procedures, Guidance and Information (PGI) can be found at PGI 222.17.  Included is a sample checklist for auditing compliance: CTIPs_Audit_Checklist_10_May_2011.

Contracting News

Read More

Contracting Tips

Read More

GTPAC News

Read More

Georgia Tech News

Read More