USA – Public procurement

Section II: Priority Areas of the National Action Plan on Responsible Business Conduct
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“2. Priority Area (2) Strengthening Respect for Human Rights in Federal Procurement Policies and Processes: […] Through this NAP, the USG commits to strengthen implementation of the existing regulations that prohibit human trafficking, trafficking-related activity, and forced or indentured child labor. To better identify violations of these prohibitions in the FAR, the USG will complete a review of reporting mechanisms as set forth in priority action 4.4.7 of the NAP to Combat Human Trafficking and will thereafter identify options for improving methods through which workers and civil society can inform the USG of human trafficking violations by federal contractors and subcontractors. In addition, State will pilot a new human trafficking risk mapping process for high-risk and high-volume contracts to assist the acquisition workforce as well as federal contractors to conduct greater due diligence during project design, solicitation, and monitoring.” (p.11-12)

Section III: Additional National Action Plan Commitments
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Procurement (p.18-20)

“The USG has immense leverage to incentivize RBC through its procurement processes. U.S. prohibitions on human trafficking and child labor in federal supply chains have been pivotal to the effort to prevent U.S. taxpayer dollars from enabling human and labor rights abuses. The following commitments strengthen implementation of these regulations and expand areas through which the USG may be able to promote and incentivize RBC by government contractors and subcontractors.

Table 2: Procurement Commitments

• State’s Office to Monitor and Combat Trafficking in Persons and the Bureau of Overseas Building Operations will partner together to pilot a new human trafficking risk mapping process for acquisition personnel aimed at assessing and preventing risks during the design, solicitation, and monitoring of State construction contracts. Learnings will be used to apply to broader procurement efforts within State, especially contracts of high risk and high volume, and will be shared with the interagency.
• The U.S. Department of Defense (DoD) will conduct a review to evaluate the value of encouraging or requiring membership in the International Code of Conduct Association for Private Security Providers’ Association for its private security company (PSC) vendors as part of its commitment to continuously reviewing, updating, and strengthening its policy and oversight for contracted private security functions. While DoD already has a third-party certification requirement in place for its private security contractors, ongoing evaluation and review of options will ensure DoD continues to uphold its commitment to strengthening PSC oversight structures and incentivizing PSCs to engage in RBC.
• The U.S. Department of Homeland Security (DHS), CBP will draft guidance to direct the proactive consideration on a case-by-case basis, suspension and debarment whenever CBP issues a penalty under the customs laws for repeated violations of 19 U.S.C. § 1307 or other laws CBP enforces to combat forced labor. The guidance will also encourage consideration of suspension and debarment on a case-by-case basis when CBP issues withhold release orders (WROs) or Findings against entities or individuals. Suspension and debarment actions prevent agencies from contracting or engaging in other covered transactions directly with an entity or individual who is not presently responsible to do business with the federal government. Suspension and debarment also prevents contractors already in the federal marketplace from subcontracting with excluded entities.
• The Federal Acquisition Regulatory Council, consisting of the Office of Federal Procurement Policy, the General Services Administration, DoD, and the National Aeronautics and Space Administration, will consider regulatory changes to reduce or eliminate the ability of federal contractors to contract with subcontractors who have been debarred, suspended, or proposed for debarment. FAR 9.4052(b)’s $35,000 exemption threshold for subcontracting with contractors debarred, suspended, or proposed for debarment will be reviewed. In conjunction with increased consideration of suspension or debarment for entities subject to WROs, regulatory changes may not only help ensure entities subject to WROs take corrective action but will also help prevent items made with forced labor from being procured with federal dollars.
• Labor’s Bureau of International Labor Affairs (ILAB) will make it easier for contractors to identify “high-risk” sectors for federal contracts by standardizing naming conventions between their lists and those in the FAR and improving access for contractors to a designated ILAB webpage with information about USG resources, including ILAB’s child labor and forced labor reports. The technical amendment will harmonize naming conventions between the FAR and DOL to eliminate confusion. The webpage will make information more accessible to those in the contracting and procurement communities.
• ILAB will map the “List of Goods Produced by Child Labor or Forced Labor” to Product Service Codes (PSC) and country information to increase use by the acquisition workforce. DOL maintains the “List of Goods Produced by Child Labor or Forced Labor” to raise public awareness about forced labor and child labor around the world and to promote efforts to combat them; it is not intended to be punitive, but rather to serve as a catalyst for more strategic and focused coordination and collaboration among those working to address these problems. Mapping the named products to PSC will facilitate analysis of procurement data by country of origin and additional protections, such as those outlined in M-20-01, Anti-Trafficking Risk Management Best Practices & Mitigation Considerations, and could be imposed in awards with heightened risk of forced labor issues.
• INL, in partnership with the OECD and under the GPS, will increase integrity in public supply chains by developing a best practice toolbox built on OECD standards for risk-based due diligence, public procurement, and integrity. This toolbox will bring together suppliers, public buyers, and integrity public officials in a trustworthy environment to define practical steps businesses and governments can take to increase integrity in supply chains.
• The Senior Policy Operating Group’s Procurement & Supply Chains Committee will facilitate the production of a video informing workers of their rights under federal government contracts and subcontracts, with information about where and how to report violations.
• The Hotlines Working Group chaired by the Department of Health and Human Services (HHS), DHS, and the Department of Justice will coordinate within the interagency to identify options for improving methods through which workers and civil society can inform the USG of potential human trafficking violations in federal contracts after completing its ongoing review of reporting mechanisms as set forth in Priority Action 4.4.7 of the NAP to Combat Human Trafficking.
• HHS will work with industry partners, civil society, unions, individuals with lived experience, and other subject matter experts to develop and make available a suite of sector-specific tools, including online training, recommendations, model policies, and a resource portal, to prevent forced labor, human trafficking, and related practices in the supply chains (including purchased services) of U.S. health systems and public health institutions, pursuant to the Trafficking Victims Protection Act of 2000 (TVPA), as amended by the National Defense Authorization Act for Fiscal Year 2013, and Federal Acquisition Regulation Subparts 22.15 and 22.17.”

Table 4: Technology Commitments

The US Agency for International Development will “launch a five-year Advancing Digital Democracy (ADD) program in 2024. The program will strengthen rights-respecting digital ecosystems to promote the use of technology and data to advance rather than undermine democratic values and human rights. A key objective for ADD is to increase the extent to which human rights considerations are embedded in the design, development, deployment, use, and procurement of digital technologies.”

The Department of State will “internationalize efforts related to responsible government design, development, use, procurement, and deployment of AI through multistakeholder and multilateral initiatives. State will engage with the Freedom Online Coalition (FOC) to develop a pledge on responsible government development, use, and procurement of AI and will work with FOC members to develop new workstreams to promote knowledge-sharing among member governments to operationalize responsible AI principles.”

(p.26)