Rogers Joseph O Donnell. Jeffery M. Chiow th Street, N.W., Ste. 725 Washington, D.C

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Combating Trafficking in Persons FAR Case 2013-001 DFARS

Procurement Institute/Midyear Council Meeting Annapolis,

Chiow 875 15th Street, N.W., Ste. 725 Washington, D.C. 20005 jchiow@rjo.

1 Combating Trafficking in Persons FAR Case DFARS Case 2013-D007 ABA Section of Public Contract Law Federal Procurement Institute/Midyear Council Meeting Annapolis, MD March 14, 2015 Rogers Joseph O Donnell Jeffery M. Chiow th Street, N.W., Ste. 725 Washington, D.C jchiow@rjo.com Rogers Joseph O Donnell (c) 2015

2 Background Exec. Order 13627, Strengthening Protections Against Trafficking in Persons in Federal Contracts (Sep 2012) Directed the creation of a FAR rule National Defense Authorization Act for FY 2013, Title XVII Ending Trafficking in Government Contracting Required FAR implementation by Oct 2012 Largely the same as Exec Order Revised 18 U.S.C to penalize defrauding workers on government contracts outside the U.S. FAR Case , Ending Trafficking in Persons Final Rule. Effective: March 2015 DFARS Case 2013-D007, Further Implementation of Trafficking in Persons Policy. Effective: Jan. 29, 2015 Rogers Joseph O Donnell (c) Slide 2

3 CTIP History Long history of U.S. Policy prohibiting Government employees and contractor personnel from engaging in trafficking in persons activities, including severe forms of trafficking in persons. See Trafficking Victims Protection Act of 2000 (TVPA), 22 U.S. C (defining Severe forms of trafficking in persons to include the recruitment, harboring, transportation, provision, or obtaining of a person for labor 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, and sex trafficking. Policy already reflected in FAR and FAR Clause first made effective in May 2001, revised and reissued effective April 2006 (applicable to service contracts for other than commercial services), revised effective August 2007 (applicable to all contracts), revised effective February 2009 (still applicable to all contracts). Already prohibited certain conduct: Severe forms of trafficking in persons Procuring commercial sex acts, Using forced labor in performance of a government contract Rogers Joseph O Donnell (c) Slide 3

4 Before the E.O and Law, FAR (c) required Contractor obligations. Contractors shall Make employees aware of the zero tolerance policy, and the potential consequences for violation, including but not limited to: removal from the contract, reduction in benefits, or termination of employment. Take appropriate action up to termination against employees or subcontractors that violate the policy. Immediate notification to the Contracting Officer of any information it receives from any source that alleges a Contractor employee, subcontractor, or subcontractor employee has engaged in conduct that violates the zero tolerance policy. Any actions taken against Contractor employees, subcontractors, or subcontractor employees pursuant to this clause. Flow down in all subcontracts Rogers Joseph O Donnell (c) Slide 4

5 Requirements applicable to all contractors now Establish policies and procedures to ensure employees, subcontractors, agents do not engage in or support human trafficking activities, including procuring commercial sex acts or using forced labor Must immediately notify the contracting officer and Agency IG of any credible information that employees, subcontractors or agents have violated the zero tolerance policy and of any action taken against such employees and fully cooperate: Disclose to IG sufficient information to identify the nature and extent Timely and complete responses Provide reasonable and timely access to federal agency audits and investigations Must protect employees suspected of being victims or witnesses, and not inhibit their cooperation CO must include in FAPIIS any allegations substantiated by an IG Report and reviewed in an administrative process Rogers Joseph O Donnell (c) Slide 5

6 Laundry list of added prohibitions, applicable to all Destroying, concealing, confiscating, or otherwise denying access by an employee to the employee s identity or immigration documents Using misleading or fraudulent recruitment practices such as: failing to accurately convey the key terms and conditions of employment, including wages and fringe benefits, the location of work, the living conditions, housing and associated costs (if employer or agent provided or arranged), any significant costs to be charged to the employee, and, if applicable, the hazardous nature of the work; Using recruiters that do not comply with local labor laws of the country in which the recruiting takes place; Charging employees recruitment fees ; Failing to provide return transportation or pay for the cost of return transportation upon the end of employment Providing or arranging housing that fails to meet the host country housing and safety standards; or If required by law or contract, failing to provide an employment contract, recruitment agreement, or other required work document in writing. Rogers Joseph O Donnell (c) Slide 6

7 Enhanced requirements, applicable to some Applies to contractors and providing supplies or services outside the United States valued over $500K, except for COTS supplies Before receiving an award and annually thereafter, a covered contractor must certify that it has implemented a human trafficking compliance plan, with the following minimum provisions: Notice to employees of the human trafficking policies by posting, website or provision in writing to each employee A reporting process that must include the Global Human Trafficking Hotline FREE and its address at help@befree.org. and must prohibit retaliation Recruiting must be limited to companies with trained employees and consistent with host nation laws, must prohibit recruitment fees, and must ensure wages meet host nation requirements Procedures to monitor and detect violations and to terminate agents, subcontracts, or subcontract employees at any tier that engage in human trafficking activities Covered contractors also must certify that after due diligence neither the contractor, nor any of its agents, subcontractors or their agents is engaged in prohibited activities or that the contractor or subcontractor has taken appropriate actions where any abuses were found Rogers Joseph O Donnell (c) Slide 7

8 What about DFARS? Display hotline posters re human trafficking and whistleblowing in workspaces in workforce language for non-commercial contracts and subcontracts above $5M Solicitations above SAT, including commercial items, must include representation that hiring practices address CTIP and notifying employees and subs re their obligations Integrates a contractor employee bill of rights and requires that it be posted in workforce language and enforced. Rights include: Retain Identity documents Receive agreed upon wages on time Take lunch and work breaks Able to terminate employment at any time Raise grievances without reprisal Copy of employment contract in their language Minimum in-country wage Notice of rights, wages, and prohibited activities prior to hiring Housing that meets host-country standards Rogers Joseph O Donnell (c) Slide 8

9 Proposed definition of recruitment fees Recruitment fees means (1) Recruitment fees include but are not limited to the following fees, charges, or costs: a. for soliciting, identifying, considering, interviewing, referring, retaining, transferring, selecting, or placing potential employees; b. for covering the cost, in whole or in part, of advertising; c. for certifying labor applications; d. for processing petitions; e. for visas and any fee that facilitates an employee obtaining a visa such as appointment and application fees; f. for government-mandated costs such as border crossing fees; g. for procuring photographs and identity documentation, including any nongovernmental passport fees; h. fees charged as a condition of access to the job opportunity, including procuring medical examinations and immunizations and obtaining background, reference and security clearance checks and examinations; and i. for an employer s recruiters, agents or attorneys, or other notary or legal fees. (2) Any fee, charge, or cost may be a recruitment fee regardless of whether it is deducted from wages, paid back in wage or benefit concessions, paid back as a kickback, bribe or tribute, remitted in connection with recruitment, or collected by an employer or a third party, including but not limited to agents, recruiters, staffing firms (including private employment and placement firms), subsidiaries/affiliates of the employer and any agent or employee of such entities. Rogers Joseph O Donnell (c) Slide 9

10 Resources for Compliance Efforts ABA Model Business and Supplier Policies on Trafficking and Child Labor (Feb 2014) /child_labor.html Strengthening Protections Against Trafficking in Persons in Federal and Corporate Supply Chains (Jan 2015) Rogers Joseph O Donnell (c) Slide 10

11 Sticky wickets Application to global commercial companies for whom USG contracts are miniscule portion of revenue Reporting obligations differ from FAR mandatory disclosure requirements No safe harbor How deep a dive into supply chain is reasonable? Labor compliance advisors (LCAs) from OMB implementation of Exec Order on Fair Pay and Safe Workplaces Rogers Joseph O Donnell (c) Slide 11

Speaker Biography Jeff Chiow Jeffery Chiow is a senior Associate in the Washington, DC office of Rogers Joseph O Donnell PC where he focuses his practice on government contracts and government

12 Speaker Biography Jeff Chiow Jeffery Chiow is a senior Associate in the Washington, DC office of Rogers Joseph O Donnell PC where he focuses his practice on government contracts and government investigations. He counsels government contractors on business and compliance issues and in the litigation of claims and bid protests. Mr. Chiow has served clients holding contracts with the Departments of Defense and Homeland Security, every branch of the military, NASA and intelligence agencies as well as GSA, VA and many other civilian agencies. He has also conducted internal investigations and guided contractors through very significant government and congressional investigations arising primarily, though not exclusively, from the performance of government contracts. jchiow@rjo.com Recently, Mr. Chiow has been called upon to assist clients with difficult questions surrounding the government s growing demands for information assurance/cybersecurity, cloud computing and the transition of legacy IT systems. He has also focused intently on supply chain assurance and the threat posed by counterfeit parts. He speaks and writes on emerging issues facing government contractors and is an active member of the American Bar Association s Section of Public Contract Law serving on that body s Counterfeit Parts Task Force. EDUCATION J.D., The George Washington University Law School, 2008 B.S., United States Naval Academy, 1997 PROFESSIONAL/PERSONAL Governor, Court of Federal Claims Bar Association Member Editorial Advisory Board, Law360 Government Contracts Superlawyers, Rising Star 2014, 2015 Mr. Chiow is a USMC Combat Veteran of the wars in Iraq and Afghanistan where he flew combat missions in an F/A-18D. He was awarded eight air medals, one with Combat V. Rogers Joseph O Donnell (c) Slide 12

Combating Trafficking in Persons (CTIPs) What Contractors Need to Know

888 17th Street, NW 11th Floor Washington, DC 20006 Tel: (202) 857-1000 Fax: (202) 857-0200 Combating Trafficking in Persons (CTIPs) What Contractors Need to Know December 17, 2015 Isaias Cy Alba IV, Esq.