By Government Contracts Editorial Staff
The final rule in FAR Case 2018-021 implements 10 USC 983, which prohibits certain contract awards using “covered funds” to institutions of higher education that prohibit Reserve Officer Training Corps units or military recruiting on campus. The statute defines “covered funds” as any funds made available for the Departments of Defense, Transportation, or Homeland Security; the National Nuclear Security Administration or 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. The statute prohibits use of these funds, whether by contract or grant, for an institution of higher education that has a policy or practice that prohibits the Secretary of Defense from establishing or operating a Senior ROTC at that institution, or that prohibits a student at that institution from enrolling in an ROTC unit at another institution of higher education. The statute has similar sanctions for institutions of higher education that have a policy or practice that prevents the secretary of a military department or the Secretary of Homeland Security from gaining access to campuses, or access to students on campuses, for purposes of military recruiting. New FAR 9.110 (FAR 9.110-1, Definitions; FAR 9.110-2, Authority; FAR 9.110-3, Policy; and FAR 9.110-4, Procedures) provides the policy and procedures for this prohibition, as well as an exception for when the institution has ceased the practice or has a long-standing policy of pacifism based on a historical religious affiliation. The new clause at FAR 52.209-14, Reserve Officer Training Corps and Military Recruiting on Campus, which is prescribed at FAR 9.110-5, explains what is expected of the higher education institution and how an agency is to handle the situation when the Secretary of Defense identifies the institution as having policies or practices in place that prevent ROTC and military recruiting on campus. The rule makes related revisions to FAR 9.400, FAR 9.405, FAR 9.405-1, FAR 12.503, FAR 13.005, and FAR 43.105. The rule makes no changes to the proposed rule (¶70,006.344), except for technical amendments.
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