Executive Order from President Obama Strengthening Protections Against Trafficking in Persons in Federal Contracts

THE WHITE HOUSE

Office of the Press Secretary

For Immediate Release

EXECUTIVE ORDER

– – – – – – –

STRENGTHENING PROTECTIONS AGAINST TRAFFICKING
IN PERSONS IN FEDERAL CONTRACTS

By the authority vested in me as President by the
Constitution and the laws of the United States of America,
including the Federal Property and Administrative Services Act
(40 U.S.C. 101 et seq.) and the Trafficking Victims Protection
Act of 2000, as amended (TVPA) (Public Law 106-386, Division A),
and in order to strengthen protections against trafficking in
persons in Federal contracting, it is hereby ordered as follows:

Section 1. Policy. More than 20 million men, women, and
children throughout the world are victims of severe forms of
trafficking in persons (“trafficking” or “trafficking in
persons”) — defined in section 103 of the TVPA,
22 U.S.C. 7102(8), to include 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 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.

The United States has long had a zero-tolerance policy
regarding Government employees and contractor personnel engaging
in any form of this criminal behavior. As the largest single
purchaser of goods and services in the world, the United States
Government bears a responsibility to ensure that taxpayer
dollars do not contribute to trafficking in persons. By
providing our Government workforce with additional tools and
training to apply and enforce existing policy, and by providing
additional clarity to Government contractors and subcontractors
on the steps necessary to fully comply with that policy, this
order will help to protect vulnerable individuals as contractors
and subcontractors perform vital services and manufacture the
goods procured by the United States.

In addition, the improved safeguards provided by this order
to strengthen compliance with anti-trafficking laws will promote
economy and efficiency in Government procurement. These
safeguards, which have been largely modeled on successful
practices in the private sector, will increase stability,
productivity, and certainty in Federal contracting by avoiding
the disruption and disarray caused by the use of trafficked
labor and resulting investigative and enforcement actions.

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Sec. 2. Anti-Trafficking Provisions. (a) Within 180 days
of the date of this order, the Federal Acquisition Regulatory
(FAR) Council, in consultation with the Secretary of State, the
Attorney General, the Secretary of Labor, the Secretary of
Homeland Security, the Administrator for the United States
Agency for International Development, and the heads of such
other executive departments and agencies (agencies) as the FAR
Council determines to be appropriate, shall take steps necessary
to amend the Federal Acquisition Regulation to:

(1) strengthen the efficacy of the Government’s zero-
tolerance policy on trafficking in persons by Federal
contractors and subcontractors in solicitations,
contracts, and subcontracts for supplies or services
(including construction and commercial items), by:

(A) expressly prohibiting Federal contractors,
contractor employees, subcontractors, and
subcontractor employees from engaging in any of
the following types of trafficking-related
activities:

(i)
using misleading or fraudulent
recruitment practices during the recruitment
of employees, such as failing to disclose
basic information or making material
misrepresentations regarding the key terms
and conditions of employment, including
wages and fringe benefits, the location of
work, living conditions and housing (if
employer provided or arranged), any
significant costs to be charged to the
employee, and, if applicable, the hazardous
nature of the work;

(ii)

(iii) destroying, concealing, confiscating,
or otherwise denying access by an employee
to the employee’s identity documents, such
as passports or drivers’ licenses; and

(iv)
for portions of contracts and
subcontracts:

(I)
performed outside the
United States, failing to pay return
transportation costs upon the end of
employment, for an employee who is not
a national of the country in which the
work is taking place and who was
brought into that country for the
purpose of working on a U.S. Government
contract or subcontract;

(II)
not covered by
subsection (a)(1)(A)(iv)(I) of this
section, failing to pay return
transportation costs upon the end of
employment, for an employee who is not

charging employees recruitment fees;

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a national of the country in which the
work is taking place and who was
brought into that country for the
purpose of working on a U.S. Government
contract or subcontract, if the payment
of such costs is required under
existing temporary worker programs or
pursuant to a written agreement with
the employee; provided, however

(III) that the requirements of
subsections (a)(1)(A)(iv)(I) and (II)
shall not apply to:

(aa) an employee who is legally
permitted to remain in the country
of employment and who chooses to
do so; or

(bb) an employee who is a victim
of trafficking and is seeking
victim services or legal redress
in the country of employment, or
an employee who is a witness in a
trafficking-related enforcement
action;

(v)
other specific activities that the
FAR Council identifies as directly
supporting or promoting trafficking in
persons, the procurement of commercial sex
acts, or the use of forced labor in the
performance of the contract or subcontract;

(B) requiring contractors and their
subcontractors, by contract clause, to agree to
cooperate fully in providing reasonable access to
allow contracting agencies and other responsible
enforcement agencies to conduct audits,
investigations, or other actions to ascertain
compliance with the TVPA, this order, or any
other applicable law or regulation establishing
restrictions on trafficking in persons, the
procurement of commercial sex acts, or the use of
forced labor; and

(C) requiring contracting officers to notify, in
accordance with agency procedures, the agency’s
Inspector General, the agency official
responsible for initiating suspension or
debarment actions, and law enforcement, if
appropriate, if they become aware of any
activities that would justify termination under
section 106(g) of the TVPA, 22 U.S.C. 7104(g), or
are inconsistent with the requirements of this
order or any other applicable law or regulation
establishing restrictions on trafficking in
persons, the procurement of commercial sex acts,
or the use of forced labor, and further requiring

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that the agency official responsible for
initiating suspension and debarment actions
consider whether suspension or debarment is
necessary in order to protect the Government’s
interest;

(2) except as provided in subsection (a)(3) of this
section, ensure that provisions in solicitations and
clauses in contracts and subcontracts, where the
estimated value of the supplies acquired or services
required to be performed outside the United States
exceeds $500,000, include the following requirements
pertaining to the portion of the contract or
subcontract performed outside the United States:

(A) that each such contractor and subcontractor
maintain a compliance plan during the performance
of the contract or subcontract that is
appropriate for the size and complexity of the
contract or subcontract and the nature and scope
of the activities performed, including the risk
that the contract or subcontract will involve
services or supplies susceptible to trafficking.
The compliance plan shall be provided to the
contracting officer upon request, and relevant
contents of the plan shall be posted no later
than the initiation of contract performance at
the workplace and on the contractor or
subcontractor’s website (if one is maintained),
and shall, at a minimum, include:

(i)
an awareness program to inform
employees about:

(I)
the policy of ensuring that
employees do not engage in trafficking
in persons or related activities,
including those specified in
subsection (a)(1)(A) of this section,
the procurement of commercial sex acts,
or the use of forced labor; and

(II) the actions that will be taken
against employees for violation of such
policy;

(ii)
a process for employees to report,
without fear of retaliation, any activity
that would justify termination under
section 106(g) of the TVPA, or is
inconsistent with the requirements of this
order, or any other applicable law or
regulation establishing restrictions on
trafficking in persons, the procurement of
commercial sex acts, or the use of forced
labor;

(iii) a recruitment and wage plan that only
permits the use of recruitment companies
with trained employees, prohibits charging
recruitment fees to the employee, and

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ensures that wages meet applicable host
country legal requirements or explains any
variance;

(iv)
a housing plan, if the contractor or
subcontractor intends to provide or arrange
housing, that ensures that the housing meets
host country housing and safety standards or
explains any variance; and

(v)
procedures to prevent subcontractors
at any tier from engaging in trafficking in
persons, including those trafficking-related
activities described in subsection (a)(1)(A)
of this section, and to monitor, detect, and
terminate any subcontractors or
subcontractor employees that have engaged in
such activities; and

(B) that each such contractor and subcontractor
shall certify, prior to receiving an award and
annually thereafter during the term of the
contract or subcontract, that:

(i)
it has the compliance plan referred to
in subsection (a)(2)(A) of this section in
place to prevent trafficking-related
activities described in section 106(g) of
the TVPA and this order; and

(ii) either, to the best of its knowledge
and belief, neither it nor any of its
subcontractors has engaged in any such
activities; or, if abuses have been found,
the contractor or subcontractor has taken
the appropriate remedial and referral
actions;

(3) specify that the requirements in
subsections (a)(2)(A) and (B) of this section shall
not apply with respect to contracts or subcontracts
for commercially available off-the-shelf items.

(b) Not later than 1 year after the date of this order,
the member agencies of the President’s Interagency Task Force to
Monitor and Combat Trafficking in Persons (PITF), established
pursuant to section 105 of the TVPA, 22 U.S.C. 7103, shall
jointly establish a process for evaluating and identifying, for
Federal contracts and subcontracts performed substantially
within the United States, whether there are industries or
sectors with a history (or where there is current evidence) of
trafficking-related or forced labor activities described in
section 106(g) of the TVPA, in subsection (a)(1)(A) of this
section, or any other applicable law or regulation establishing
restrictions on trafficking in persons, the procurement of
commercial sex acts, or the use of forced labor. Where the PITF
has identified such industries or sectors, it shall notify
agencies of these designations, and individual agencies shall,
in consultation with the Office of Federal Procurement Policy

6

of the Office of Management and Budget, adopt and publish
appropriate safeguards, guidance, and compliance assistance to
prevent trafficking and forced labor in Federal contracting in
these identified areas.

Sec. 3. Guidance and Training.
Federal Procurement Policy shall:

(a)

The Administrator for

(1) in consultation with appropriate management
councils, such as the Chief Acquisition Officers
Council, provide guidance to agencies on developing
appropriate internal procedures and controls for
awarding and administering Federal contracts to
improve monitoring of and compliance with actions to
prevent trafficking in persons, consistent with
section 106 of the TVPA, including the development of
methods to track the number of trafficking violations
reported and remedies applied; and

(2) in consultation with the Federal Acquisition
Institute and appropriate management councils, such as
the Chief Acquisition Officers Council:

(A) develop methods to track the number of
Federal employees trained; and

(B) implement training requirements to ensure
that the Federal acquisition workforce is trained
on the policies and responsibilities for
combating trafficking, including on:

(i)
applicable laws, regulations, and
policies; and

(ii) internal controls and oversight
procedures implemented by the agency,
including enforcement procedures available
to the agency to investigate, manage, and
mitigate contractor and subcontractor
trafficking violations.

(b) The member agencies of PITF shall jointly facilitate
the sharing of information that may be used by acquisition,
program, and other offices within agencies to evaluate where the
risk of trafficking in persons may be heightened based on the
nature of the work to be performed, the place of performance,
and any other relevant considerations.

Sec. 4. Effective Date. This order shall become effective
immediately and shall apply to solicitations issued on or after
the effective date for the action taken by the FAR Council under
subsection 2(a) of this order.

Sec. 5. General Provisions. (a) Nothing in this order
shall be construed to impair or otherwise affect:

(1) the authority granted by law to an executive
department, agency, or the head thereof; or

(2) the functions of the Director of the Office of
Management and Budget relating to budgetary,
administrative, or legislative proposals.

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(b) This order shall be implemented consistent with
applicable law and subject to the availability of
appropriations.

(c) This order is not intended to, and does not, create
any right or benefit, substantive or procedural, enforceable at
law or in equity by any party against the United States, its
departments, agencies, or entities, its officers, employees, or
agents, or any other person.

BARACK OBAMA

THE WHITE HOUSE,
September 25, 2012.

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