Publicly released: June 13, 2019
We determined whether DoD contracts in Kuwait complied with combating trafficking in persons (CTIP) requirements in statutes, the Federal Acquisition Regulation (FAR), the Defense Federal Acquisition Regulation Supplement (DFARS), and other DoD guidance. We also determined whether DoD officials provided oversight of CTIP requirements in accordance with command responsibility and contracting regulations, including addressing instances of noncompliance.
In 2002, National Security Presidential Directive-22: Combating Trafficking in Persons, December 16, 2002, established the goal of eradicating international trafficking in persons and established a zero-tolerance policy for U.S. Government employees and contractors. DoD Instruction 2200.01, “Combating Trafficking In Persons,” April 21, 2015, Incorporating Change 1, Effective April 5, 2017, was issued to implement National Security Presidential Directive-22. The FAR was updated to require that all Government contracts include FAR clause 52.222-50, “Combating Trafficking in Persons” (the FAR CTIP clause), which prohibits contractors, contractor employees, and their agents from practices associated with trafficking in persons, such as withholding passports, charging recruitment fees, or providing wages and housing below host-nation standards.
We initiated this evaluation after military criminal investigators substantiated that a DoD contractor violated the FAR CTIP clause. The contractor, which operated food services for U.S. and Coalition personnel on Camp Arifjan, Camp Buehring, and Ali Al Salem Air Base, all located in Kuwait, failed to pay its employees the legally required minimum monthly salary. To even obtain work in Kuwait, these employees had to pay exorbitant recruitment fees, putting them in a “state of enslaved bondage” for the contractor’s employees because most of the employees’ salary went to paying off the debt for the fee and its accrued interest. Furthermore, the contractor enforced a 7-day-a-week, 12-hour-workday schedule with continuous overtime and no permissible sick leave or regular days off while providing substandard housing.
We determined that DoD officials at U.S. Central Command (USCENTCOM) did not consistently enforce DoD and command regulations regarding the identification of trafficking in persons and the oversight of CTIP in Kuwait. As a result, USCENTCOM is at an increased risk of not detecting or correcting and underreporting labor trafficking in persons on U.S. military bases.
In addition, DoD contracting personnel did not always ensure that contracts performed in Kuwait complied with the FAR CTIP clause. Specifically, Army and Air Force contracting officers did not always confirm that contracts included the required clauses and had oversight plans, and Army and Air Force Exchange Service (AAFES) personnel did not consistently monitor for contractor CTIP compliance, document their monitoring, and report results to contracting officers.
Furthermore, the FAR prohibits U.S. contractors from engaging in various forms of trafficking in persons, and defines these practices with reference to the host-nation labor and wage laws. However, DoD contracting organizations lacked a process for determining Kuwaiti labor law requirements regarding wage, housing, and safety standards. Therefore, DoD contracting organizations could not fully conduct objective contract oversight of the FAR CTIP clause that requires contractors to comply with Kuwaiti labor laws.
We recommend that the USCENTCOM Commander enforce Central Command Regulation (CCR) 570-4, “Combating Trafficking in Persons,” October 27, 2016, which implements DoD Instruction 2200.01, and establishes procedures and assigns responsibilities for the identification and oversight of CTIP in the USCENTCOM area of responsibility.
We recommend that senior officials of U.S. Air Forces Central Command (USAFCENT) and Army Contracting Command–Rock Island ensure that contracting officers include the FAR CTIP clause in all contracts, and ensure that quality assurance surveillance plans are prepared for all service contracts that require them and include appropriate methods for monitoring the contractor’s performance regarding trafficking in persons.
We recommend that the AAFES Chief Executive Officer (CEO) update the AAFES CTIP policy to provide guidance on monitoring contractor compliance with the FAR CTIP clause.
We recommend that senior officials of USAFCENT and Army Contracting Command–Rock Island, and the AAFES CEO, establish a process or identify a resource for DoD contracting officials to obtain definitive guidance on Kuwaiti labor laws that apply to DoD contracts.
Management Comments and Our Response
The USCENTCOM Chief of Staff, responding for the USCENTCOM Commander, disagreed with our recommendation that USCENTCOM enforce CCR 570-4 throughout its area of responsibility, including designating a command headquarters to be responsible for CTIP compliance in Kuwait. The Chief of Staff stated that both DoD Instruction 2200.01 and CCR 570-4, as written, may conflict with Federal intelligence collection regulations which preclude USCENTCOM enforcement of CCR 570-4.
The Chief of Staff also stated that USCENTCOM’s service components do not always have a headquarters in country to allow for formally designated responsibility for CTIP compliance. The Chief of Staff further stated that USCENTCOM will, in the future, update CCR 570-4, in response to an updated DoD Instruction on CTIP, and then enforce all aspects within its authority.
Comments from the Chief of Staff did not fully address the recommendation; therefore, the recommendation is unresolved and remains open. We disagree that section 11.d of DoD Instruction 2200.01 and section 5.b of CCR 570-4 conflict with Federal intelligence collection regulations which would preclude USCENTCOM enforcement of CCR 570-4. The DoDI and CCR sections only address information on trafficking in persons pertinent to CTIP awareness training, not overall intelligence collection procedures. The absence of service component headquarters should not preclude a formal designation of CTIP compliance responsibility. USCENTCOM therefore should formally designate CTIP compliance responsibility throughout its area of responsibility.
USCENTCOM signed and released CCR 570-4 on October 7, 2016, close to 31 months ago, but did not enforce the regulation. During this time there was a risk that labor trafficking in persons on U.S. military bases in Kuwait would not be detected, corrected, or reported by USCENTCOM. By deferring enforcement of CCR 570-4 until it is updated at a future date, USCENTCOM will not address the current CTIP problems on its bases in Kuwait or fulfill its responsibilities on CTIP as required by DoD Instruction 2200.01. DoD Instruction 2200.01 requires combatant commanders to develop a program that establishes clear guidelines and procedures for subordinate organizations to address trafficking in persons in their operating environments. We request that the USCENTCOM Commander provide comments on the final report that detail how compliance with the current DoD Instruction 2200.01 and CCR 570-4 will be enforced.
The USAFCENT Chief of Staff, responding on behalf of the USAFCENT Chief of Contracting, agreed with our recommendations, and stated that he will issue written guidance to USAFCENT contracting officers to include the FAR CTIP clause in all contracts and that he will include CTIP in the USAFCENT quality assurance tracking tools and templates. We consider these recommendations resolved and will close them once we have verified that USAFCENT has taken the stated actions.
The Army Contracting Command Deputy to the Commanding General, responding for the Army Contracting Command–Rock Island Executive Director, agreed with our recommendations. The Deputy stated that the command will review contracts with performance in Kuwait to ensure that the FAR CTIP clause is included, and will review the quality assurance surveillance plans to verify that appropriate methods for monitoring contractors’ performance regarding trafficking in persons are included. We consider these recommendations resolved and will close them once we have verified that Army Contracting Command–Rock Island has taken the stated actions.
The AAFES CEO agreed with our recommendation to provide more specific guidance on monitoring CTIP compliance. AAFES revised its CTIP operating policy and procedure. We reviewed the new policy and determined that it includes a clearer delineation of roles and responsibilities for monitoring CTIP. Therefore, we consider the recommendation closed.
The Army Contracting Command Deputy to the Commanding General, the Air Force Chief of Contracting Operations, and the AAFES CEO gave conflicting responses to our recommendations that they establish a process or identify a resource for DoD contracting officials to obtain definitive guidance on Kuwaiti labor laws that apply to DoD contracts. Their comments did not fully address the recommendations; therefore, the recommendations are unresolved and remain open.
Specifically, the Army Contracting Command Deputy to the Commanding General agreed with the recommendation and stated that if USCENTCOM designated a command headquarters in Kuwait to be responsible for CTIP compliance, Army Contracting Command would recognize that command as the sole resource for Kuwaiti labor law guidance. The Air Force Chief of Contracting Operations, responding for the Deputy Assistant Secretary (Contracting), disagreed with the recommendation and stated that in his view USCENTCOM is required by DoDI 2200.01 to develop a program that establishes a clear set of guidelines and procedures for units outside the continental United States to address trafficking in persons, including guidance on Kuwaiti labor law. The AAFES CEO agreed with the recommendation and stated that AAFES would contact Army Contracting Command and the Deputy Assistant Secretary (Contracting) to coordinate on how to determine definitive guidance on Kuwaiti labor law.
However, USCENTCOM disagreed with our recommendation to implement CCR 570-4, its own regulation on CTIP, including designating a command headquarters in Kuwait to be responsible for CTIP compliance.
To address this disagreement over which DoD organization should determine the definitive guidance on Kuwaiti labor law, we added Recommendation C.4. Joint Publication 4-10, “Operational Contract Support,” Chapter II, Section J, March 4, 2019, states, “The Office of General Counsel (DoD OGC) provides advice to SecDef and the Deputy Secretary of Defense regarding all legal matters and services performed within, or involving, DoD and legal advice to OSD organizations and, as appropriate, other DoD components.” Subsection (5) of the Joint Publication states that DoD OGC is to “[d]etermine DoD’s position on specific legal problems and resolve disagreements within DoD on such matters.” Therefore, we added Recommendation C.4 for implementation by the DoD Office of General Counsel.
Added Recommendation C.4
We also recommend that the DoD General Counsel coordinate with the DoD organizations responsible for overseeing contracting in Kuwait to determine the appropriate DoD organization responsible for determining definitive guidance on Kuwaiti labor laws that apply to DoD contracts with performance in Kuwait, work to resolve disagreements among the organizations, and advise the Secretary of Defense and the Deputy Secretary of Defense on a comprehensive solution.
This report is a result of Project No. D2017-D00SPO-0182.000.