[Federal Register Volume 85, Number 206 (Friday, October 23, 2020)]
[Rules and Regulations]
[Pages 67619-67622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21698]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 9, 12, 13, 43, and 52

[FAC 2021-02; FAR Case 2018-021; Item IV; Docket FAR-2019-0031, 
Sequence No. 1]
RIN 9000-AN79


Federal Acquisition Regulation: Reserve Officer Training Corps 
and Military Recruiting on Campus

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to implement the United States 
Code section that prohibits the award of certain Federal contracts to 
institutions of higher education that prohibit Reserve Officer Training 
Corps units or military recruiting on campus.

DATES: Effective: November 23, 2020.

FOR FURTHER INFORMATION CONTACT: Ms. Zenaida Delgado, Procurement 
Analyst, at 202-969-7207 or [email protected] for clarification 
of content. For information pertaining to status or publication 
schedules, contact the Regulatory Secretariat Division at 202-501-4755 
or [email protected]. Please cite FAC 2021-02, FAR Case 2018-021.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA published a proposed rule on September 24, 2019, 
at 84 FR 49974, to implement 10 U.S.C. 983, which prohibits the award 
of certain Federal contracts with covered funds to institutions of 
higher education that prohibit Reserve Officer Training Corps (ROTC) 
units or military recruiting on campus.
    ``Covered funds'' is defined in 10 U.S.C. 983 to be any funds made 
available for DoD, Department of Transportation, Department of Homeland 
Security, or National Nuclear Security Administration of the Department 
of Energy, the Central Intelligence Agency, or for any department or 
agency in which regular appropriations are made in the Departments of 
Labor, Health and Human Services, Education, and Related Agencies 
Appropriations Act. None of these covered funds may be provided by 
contract or grant to an institution of higher education (including any 
sub-element of such institution) that has a policy or practice 
(regardless of when implemented) that either prohibits, or in effect 
prevents, the Secretary of Defense from establishing or operating a 
Senior ROTC at that institution (or any sub-element of that 
institution); or that either prohibits, or in effect prevents, a 
student at that institution (or any sub-element of that institution) 
from enrolling in a ROTC unit at another institution of higher 
education.
    The statute has similar sanctions against these covered funds being 
provided to an institution of higher education (or any sub-element of 
an institution) that has a policy or practice (regardless of when 
implemented) that either prohibits, or in effect prevents, the 
Secretary of a Military Department or Secretary of Homeland Security 
from gaining access to campuses, or access to students (who are 17 
years of age or older) on campuses, for purposes of military 
recruiting, where such policy or practice denies the military recruiter 
access that is at least equal in quality and scope to the access to 
campuses and students provided to any other employer; or access to 
information pertaining to the students' names, addresses, telephone 
listings, dates and places of birth, levels of education, academic 
majors, degrees received, and the most recent educational institution 
enrolled in by the student.
    The meaning and effect of the term ``equal in quality and scope'' 
was explained in the U.S. Supreme Court decision in Rumsfeld v. Forum 
for Academic and Institutional Rights, Inc., 126 S. Ct. 1297 (2006). 
The term means the same access to campus and students provided by the 
school to any other nonmilitary recruiters or employers receiving the 
most favorable access. The focus is not on the content of a school's 
recruiting policy, but instead on the result achieved by the policy and 
compares the access provided military recruiters to that provided other 
recruiters. Therefore, compliance with 10 U.S.C. 983 would be 
considered insufficient if the policy results in a greater level of 
access for other recruiters than for the military.
    The statute provides an exception whereby any Federal funding 
provided to an institution of higher education or to an individual that 
is available solely for student financial assistance, related 
administrative costs, or costs associated with attendance may be used 
for the purpose for which the funding is provided.
    Four respondents submitted comments on the proposed rule.

II. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the public comments in the 
development of the final rule. A discussion of the comments is provided 
as follows:

A. Summary of Changes

    There are no changes as a result of comments on the proposed rule. 
Technical changes were made to the proposed rule.

B. Analysis of Public Comments

    Comment: All four respondents strongly supported the proposed FAR 
rule.
    Response: Noted.

C. Other Changes

    Made technical changes at FAR 9.405-1, 12.503, and 13.005.
    Added language at FAR 9.110-4(b) and 43.105(c) to highlight that 
the prohibition does not apply to acquisitions at or below the 
simplified acquisition threshold or to acquisitions of commercial 
items, including commercially available off-the-shelf items.
    Included an exception for contractors that have been declared 
ineligible pursuant to 10 U.S.C. 983 with a pointer reference to FAR 
9.110 and 9.405-1(b), at FAR 9.400(b).
    Moved the ``Institution of higher education'' definition within the 
FAR clause at 52.209-14(a) to place the definitions in alphabetical 
order.

III. Expected Impact of the Final Rule

    DoD, GSA, and NASA do not expect a cost impact on the public or 
institutions of higher learning or on the Government because covered 
agencies already have regulations in place to address their statutory 
responsibilities. These agencies and the public will be required to 
comply with the same requirement, but the requirement will now be 
located in the FAR.

[[Page 67620]]

IV. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Items, Including Commercially 
Available Off-The-Shelf (COTS) Items

    DoD, GSA, and NASA do not intend to apply the requirements of 10 
U.S.C. 983 at or below the simplified acquisition threshold or to 
contracts for the acquisitions of commercial items.

A. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold

    Section 1905 of title 41 of the United States Code 41 U.S.C. 1905 
governs the applicability of laws to contracts or subcontracts in 
amounts not greater than the simplified acquisition threshold. It is 
intended to limit the applicability of laws to such contracts or 
subcontracts. Section 1905 provides that if a provision of law contains 
criminal or civil penalties, specifically refers to section 1905 and 
provides that the law shall nevertheless be applicable to contracts or 
subcontracts below the simplified acquisition threshold, or if the FAR 
Council makes a written determination that it is not in the best 
interest of the Federal Government to exempt contracts or subcontracts 
at or below the simplified acquisition threshold, the law will apply to 
them. Section 1983 of title 10 does not contain criminal or civil 
penalties, nor expressly refer to section 1905 of title 41, and the FAR 
Council does not intend to make the requisite determination. Therefore, 
this rule does not apply at or below the simplified acquisition 
threshold.

B. Applicability to Contracts for the Acquisition of Commercial Items, 
Including COTS Items

    Section 1906 of title 41 governs the applicability of laws to 
contracts for the acquisition of commercial items, and is intended to 
limit the applicability of laws to contracts for the acquisition of 
commercial items. Section 1906 provides that if a provision of law 
contains criminal or civil penalties, specifically refers to section 
1906 and provides that it shall nevertheless be applicable to contracts 
for the procurement of commercial items, or if the FAR Council makes a 
written determination that it is not in the best interest of the 
Federal Government to exempt commercial item contracts, the provision 
of law will apply to contracts for the acquisition of commercial items. 
Likewise, 41 U.S.C. 1907 governs the applicability of laws to COTS 
items, and provides the same criteria for determining whether a 
provision of law applies to COTS items, except that the Administrator 
for Federal Procurement Policy is charged with making the decision 
whether it is in the best interest of the Government to apply a 
provision of law to acquisitions of COTS items in the FAR. As noted 
above with respect to section 1905, section 983 of title 10 does not 
impose civil or criminal penalties. Nor does it refer to sections 1906 
or 1907 of title 41. The FAR Council and the Administrator for Federal 
Procurement Policy do not intend to make the requisite determinations. 
Therefore, this rule does not apply to the acquisition of commercial 
items, including COTS items. This rule adds 10 U.S.C. 983 to the list 
at FAR 12.503 of laws inapplicable to contracts for the acquisition of 
commercial items. The law is not added to the lists at FAR 12.504 
(subcontracts) and 12.505 (COTS items), because the clause does not 
flow down to subcontracts and is already inapplicable to the 
acquisition of COTS items, because the Federal Government does not buy 
COTS items from institutions of higher education.

V. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select approaches that maximize net 
benefits (including potential economic, environmental, public health 
and safety effects, distributive impacts, and equity). E.O. 13563 
emphasizes the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, not subject 
to review under section 6(b) of E.O. 12866, Regulatory Planning and 
Review, dated September 30, 1993. This rule is not a major rule under 5 
U.S.C. 804.

VI. Executive Order 13771

    This rule is not subject to E.O. 13771, Reducing Regulation and 
Controlling Regulatory Costs, because this rule has a de minimis impact 
on the public (see section III of this preamble).
    This rule affects institutions of higher education that receive 
Federal monies but that do not allow DoD's ROTC and military recruiting 
on campus. However, the FAR Council is not aware of any institution 
that currently has such a prohibition in place.

VII. Regulatory Flexibility Act

    DoD, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601, et seq. The FRFA is summarized as follows:

    This rule is required to implement 10 U.S.C 983, which prohibits 
the award of certain Federal contracts to institutions of higher 
education that prohibit ROTC units or military recruiting on campus.
    There were no significant issues raised by the public in 
response to the initial regulatory flexibility analysis.
    In Fiscal Year 2017, the Federal Procurement Data System (FPDS) 
shows that there were 345 awards to small organizations which are 
institutions of higher education, by the following covered agencies: 
Department of Defense, Department of Labor, Department of Health and 
Human Services, Department of Education, Department of 
Transportation, and Department of Homeland Security. The National 
Nuclear Security Administration is not included in this number 
because the Department of Energy does not break out the information. 
The Central Intelligence Agency is not included because it does not 
report in FPDS. These small organizations are small entities under 
the Regulatory Flexibility Act but are not small business concerns. 
There will not be an impact on an institution of higher education as 
long as that institution has no policies or practices in place that 
prohibit ROTC units or military recruiting on campuses. No 
institution of higher education has been determined by the Secretary 
of Defense to be ineligible based on this policy.
    There are no reporting or recordkeeping requirements. There is a 
compliance requirement; institutions of higher education which have 
contracts with covered agencies (defined in the FAR text) must not 
prohibit ROTC units or military recruiting on campus. This is not a 
new requirement. No increase in burden is intended.
    There are no available alternatives to the rule to accomplish 
the desired objective of the statute.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat Division. The Regulatory Secretariat Division 
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of 
the Small Business Administration.

VIII. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. Chapter 35).

List of Subjects in 48 CFR Parts 9, 12, 13, 43, and 52

    Government procurement.

William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR parts 9, 12, 13, 43, and 
52 as set forth below:

0
1. The authority citation for 48 CFR parts 9, 12, 13, 43, and 52 
continues to read as follows:


[[Page 67621]]


    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 9--CONTRACTOR QUALIFICATIONS

0
2. Add sections 9.110 through 9.110-5 to read as follows:


9.110   Reserve Officer Training Corps and military recruiting on 
campus.


9.110-1   Definitions.

    As used in this section--
    Covered agency means--
    (1) The Department of Defense;
    (2) Any department or agency for which regular appropriations are 
made in a Department of Labor, Health and Human Services, and 
Education, and Related Agencies Appropriations Act;
    (3) The Department of Homeland Security;
    (4) The National Nuclear Security Administration of the Department 
of Energy;
    (5) The Department of Transportation; or
    (6) The Central Intelligence Agency.
    Institution of higher education means an institution that meets the 
requirements of 20 U.S.C. 1001 and includes all sub-elements of such an 
institution.


9.110-2   Authority.

    This section implements 10 U.S.C. 983.


9.110-3  Policy.

    (a) Except as provided in paragraph (b) of this section, 10 U.S.C. 
983 prohibits the covered agency from providing funds by contract to an 
institution of higher education if the Secretary of Defense determines 
that the institution has a policy or practice that prohibits or in 
effect prevents--
    (1) The Secretary of a military department from maintaining, 
establishing, or operating a unit of the Senior Reserve Officer 
Training Corps (ROTC) at that institution;
    (2) A student at that institution from enrolling in a unit of the 
Senior ROTC at another institution of higher education;
    (3) The Secretary of a military department or the Secretary of 
Homeland Security from gaining access to campuses, or access to 
students (who are 17 years of age or older) on campuses, for purposes 
of military recruiting in a manner that is at least equal in quality 
and scope to the access to campuses and to students that is provided to 
any other employer; or
    (4) Military recruiters from accessing certain information 
pertaining to students (who are 17 years of age or older) enrolled at 
that institution:
    (i) Name, address, and telephone listings.
    (ii) Date and place of birth, educational level, academic majors, 
degrees received, and the most recent educational institution enrolled 
in by the student.
    (b) The prohibition in paragraph (a) of this section does not apply 
to an institution of higher education if the Secretary of Defense 
determines that--
    (1) The institution has ceased the policy or practice described in 
paragraph (a) of this section; or
    (2) The institution has a long-standing policy of pacifism based on 
historical religious affiliation.


9.110-4   Procedures.

    If the Secretary of Defense determines, pursuant to the procedures 
at 32 CFR part 216, that an institution of higher education is 
ineligible to receive funds from a covered agency because of a policy 
or practice described in 9.110-3--
    (a) The Secretary of Defense will create an active exclusion record 
for the institution in the System for Award Management; and
    (b) A covered agency shall not solicit offers from, award contracts 
to, or consent to subcontracts with the institution. The prohibition in 
this paragraph (b) does not apply to acquisitions at or below the 
simplified acquisition threshold or to acquisitions of commercial 
items, including commercially available off-the-shelf items.


9.110-5   Contract clause.

    The contracting officer shall insert the clause at 52.209-14, 
Reserve Officer Training Corps and Military Recruiting on Campus, in 
solicitations and contracts that are expected to exceed the simplified 
acquisition threshold, with institutions of higher education, when 
using funds from a covered agency. The clause is not prescribed for 
solicitations and contracts using part 12 for the acquisition of 
commercial items.

0
3. Amend section 9.400 by revising paragraph (b) to read as follows:


9.400   Scope of subpart.

* * * * *
    (b) Although this subpart does cover the listing of ineligible 
contractors (9.404) and the effect of this listing (9.405(b)), it does 
not prescribe policies and procedures governing declarations of 
ineligibility except for contractors that have been declared ineligible 
pursuant to 10 U.S.C. 983 (see 9.110, and 9.405-1(b)).


9.405   [Amended]

0
4. Amend section 9.405 by removing from paragraph (a) ``(see 9.405-
1(b)'' and adding ``(see 9.405-1(a)(2)'' in its place.

0
5. Revise section 9.405-1 to read as follows:


9.405-1   Continuation of current contracts.

    (a) Contractors debarred, suspended, or proposed for debarment. (1) 
Notwithstanding the debarment, suspension, or proposed debarment of a 
contractor, agencies may continue contracts or subcontracts in 
existence at the time the contractor was debarred, suspended, or 
proposed for debarment unless the agency head directs otherwise. A 
decision as to the type of termination action, if any, to be taken 
should be made only after review by agency contracting and technical 
personnel and by counsel to ensure the propriety of the proposed 
action.
    (2) For contractors debarred, suspended, or proposed for debarment, 
unless the agency head makes a written determination of the compelling 
reasons for doing so, ordering activities shall not--
    (i) Place orders exceeding the guaranteed minimum under indefinite 
quantity contracts;
    (ii) Place orders under Federal Supply Schedule contracts, blanket 
purchase agreements, or basic ordering agreements; or
    (iii) Add new work, exercise options, or otherwise extend the 
duration of current contracts or orders.
    (b) Ineligible contractors. A covered agency, as defined in 9.110-
1, shall terminate existing contracts and shall not place new orders or 
award new contracts with contractors that have been declared ineligible 
pursuant to 10 U.S.C. 983 (see 9.110), except for contracts at or below 
the simplified acquisition threshold or contracts for the acquisition 
of commercial items.

PART 12--ACQUISITION OF COMMERCIAL ITEMS

0
6. Amend section 12.503 by revising paragraphs (a)(1) through (9) to 
read as follows:


12.503   Applicability of certain laws to Executive agency contracts 
for the acquisition of commercial items.

    (a) * * *
    (1) 10 U.S.C. 983, Institutions of Higher Education that Prevent 
ROTC Access or Military Recruiting on Campus: Denial of Grants and 
Contracts from Department of Defense, Department of Education, and 
Certain Other Departments and Agencies (see 9.110).

[[Page 67622]]

    (2) 31 U.S.C. 1354(a), Limitation on Use of Appropriated Funds for 
Contracts with Entities Not Meeting Veterans' Employment Reporting 
Requirements (see 22.1302).
    (3) 41 U.S.C. 1708(e)(3), Minimum Response Time for Offers (see 
5.203).
    (4) 41 U.S.C. 2303(b), Policy on Personal Conflicts of Interest by 
Contractor Employees (see subpart 3.11).
    (5) 41 U.S.C. 3901(b) and 10 U.S.C. 2306(b), Contingent Fees (see 
3.404).
    (6) 41 U.S.C. 4706(d)(1) and 10 U.S.C. 2313(c)(1), GAO Access to 
Contractor Employees, section 871 of Public Law 110-417 (see 52.214-26 
and 52.215-2).
    (7) 41 U.S.C. chapter 65, Contracts for Materials, Supplies, 
Articles, and Equipment Exceeding $10,000 (see subpart 22.6).
    (8) 41 U.S.C. chapter 81, Drug-Free Workplace (see 23.501).
    (9) Section 806(a)(3) of Public Law 102-190, as amended by sections 
2091 and 8105 of Public Law 103-355 (10 U.S.C. 2302 note), Payment 
Protections for Subcontractors and Suppliers (see 28.106-6).
* * * * *

PART 13--SIMPLIFIED ACQUISITION PROCEDURES

0
7. Amend section 13.005 by revising paragraph (a) to read as follows:


13.005   List of laws inapplicable to contracts and subcontracts at or 
below the simplified acquisition threshold.

    (a) The following laws are inapplicable to all contracts and 
subcontracts (if otherwise applicable to subcontracts) at or below the 
simplified acquisition threshold pursuant to 41 U.S.C. 1905:
    (1) 10 U.S.C. 983, Institutions of Higher Education that Prevent 
ROTC Access or Military Recruiting on Campus: Denial of Grants and 
Contracts from Department of Defense, Department of Education, and 
Certain Other Departments and Agencies (see 9.110).
    (2) 10 U.S.C. 2306(b) and 41 U.S.C. 3901(b) (contract clause 
regarding contingent fees).
    (3) 10 U.S.C. 2313 and 41 U.S.C. 4706 (authority to examine books 
and records of (contractors).
    (4) 10 U.S.C. 2402 and 41 U.S.C. 4704 (prohibition on limiting 
subcontractors direct sales to the United States).
    (5) 15 U.S.C. 631 note (HUBZone Act of 1997), except for 15 U.S.C. 
657a(b)(2)(B), which is optional for the agencies subject to the 
requirements of the Act.
    (6) 22 U.S.C. 2593e, Measures Against Persons Involved in 
Activities that Violate Arms Control Treaties or Agreements with the 
United States. (The requirement at 22 U.S.C. 2593e(c)(3)(B) to provide 
a certification does not apply.)
    (7) 31 U.S.C. 1354(a), Limitation on Use of Appropriated Funds for 
Contracts with Entities Not Meeting Veterans' Employment Reporting 
Requirements (see 22.1302).
    (8) 41 U.S.C. 8102(a)(1) (Drug-Free Workplace), except for 
individuals.
* * * * *

PART 43--CONTRACT MODIFICATIONS

0
8. Amend section 43.105 by adding paragraph (c) to read as follows:


43.105   Availability of funds.

* * * * *
    (c) In accordance with 10 U.S.C. 983, do not provide funds by 
contract or contract modification, or make contract payments, to an 
institution of higher education that has a policy or practice of 
hindering Senior Reserve Officer Training Corps units or military 
recruiting on campus as described at 9.110. The prohibition in this 
paragraph (c) does not apply to acquisitions at or below the simplified 
acquisition threshold or to acquisitions of commercial items, including 
commercially available off-the-shelf items.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
9. Add section 52.209-14 to read as follows


52.209-14   Reserve Officer Training Corps and Military Recruiting on 
Campus.

    As prescribed in 9.110-5, insert the following clause:

Reserve Officer Training Corps and Military Recruiting on Campus (Nov 
2020)

    (a) Definitions. As used in this clause--
    Covered agency means--
    (1) The Department of Defense;
    (2) Any department or agency for which regular appropriations 
are made in a Department of Labor, Health and Human Services; and 
Education, and Related Agencies Appropriations Act;
    (3) The Department of Homeland Security;
    (4) The National Nuclear Security Administration of the 
Department of Energy;
    (5) The Department of Transportation; or
    (6) The Central Intelligence Agency.
    Institution of higher education means an institution that meets 
the requirements of 20 U.S.C. 1001 and includes all sub-elements of 
such an institution.
    (b) Limitation on contract award. Except as provided in 
paragraph (c) of this clause, an institution of higher education is 
ineligible for contract award if the Secretary of Defense determines 
that the institution has a policy or practice (regardless of when 
implemented) that prohibits or in effect prevents--
    (1) The Secretary of a military department from maintaining, 
establishing, or operating a unit of the Senior Reserve Officer 
Training Corps (ROTC) at that institution (or any sub-element of 
that institution);
    (2) A student at that institution (or any sub-element of that 
institution) from enrolling in a unit of the Senior ROTC at another 
institution of higher education;
    (3) The Secretary of a military department or the Secretary of 
Homeland Security from gaining access to campuses, or access to 
students (who are 17 years of age or older) on campuses, for 
purposes of military recruiting; or
    (4) Military recruiters from accessing, for purposes of military 
recruiting, the following information pertaining to students (who 
are 17 years of age or older) enrolled at that institution:
    (i) Name, address, and telephone listings.
    (ii) Date and place of birth, educational level, academic 
majors, degrees received, and the most recent educational 
institution enrolled in by the student.
    (c) Exception. The limitation in paragraph (b) of this clause 
does not apply to an institution of higher education if the 
Secretary of Defense determines that--
    (1) The institution has ceased the policy or practice described 
in paragraph (b) of this clause; or
    (2) The institution has a long-standing policy of pacifism based 
on historical religious affiliation.
    (d) Notwithstanding any other clause of this contract, if the 
Secretary of Defense determines that the institution has violated 
the contract in paragraph (b) of this clause--
    (1) The institution will be ineligible for further payments 
under this and any other contracts with this agency and any other 
covered agency, except for contracts at or below the simplified 
acquisition threshold or contracts for the acquisition of commercial 
items; and
    (2) The Government will terminate this contract for default for 
the institution's material failure to comply with the terms and 
conditions of award.

    (End of clause)

[FR Doc. 2020-21698 Filed 10-22-20; 8:45 am]
 BILLING CODE 6820-EP-P