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

 
CONTENT
Federal Register, Volume 84 Issue 185 (Tuesday, September 24, 2019)
[Federal Register Volume 84, Number 185 (Tuesday, September 24, 2019)]
[Proposed Rules]
[Pages 49974-49978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20045]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 9, 12, 13, 43, and 52
[FAR Case 2018-021; Docket FAR-2019-0031; Sequence 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: Proposed rule.
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SUMMARY: DoD, GSA, and NASA are proposing to amend 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: Interested parties should submit written comments to the
Regulatory Secretariat at one of the addresses shown below on or before
November 25, 2019 to be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to FAR Case 2018-021 by any of
the following methods:
     Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by entering ``FAR Case
2018-021'' under the heading ``Enter Keyword or ID'' and selecting
``Search''. Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2018-021''. Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2018-021'' on your attached document.
     Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Ms. Lois Mandell, 1800 F Street NW, 2nd
Floor, Washington, DC 20405-0001.
    Instructions: Please submit comments only and cite ``FAR Case 2018-
021'' in all correspondence related to this case. All comments received
will be posted without change to http://www.regulations.gov, including
any personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT: Ms. Cecelia L. Davis, Procurement
Analyst, at 202-219-0202 or at [email protected] for clarification
of content. For information pertaining to status or publication
schedules, contact the Regulatory Secretariat at 202-501-4755. Please
cite FAR Case 2018-021.
SUPPLEMENTARY INFORMATION:
I. Background
    DoD, GSA, and NASA are proposing to amend the FAR to implement 10
U.S.C. 983, which prohibits the award of certain Federal contracts to
institutions of higher education that prohibit Reserve Officer Training
Corps (ROTC) units or military recruiting on campus.
    Both DoD and Department of Homeland Security (DHS) have previously
implemented agency-specific clauses that prohibit the award of certain
Federal contracts to institutions of higher education that prohibit
ROTC units or military recruiting on campus.
    DoD published an interim rule in the Defense Federal Acquisition
Regulation Supplement (DFARS) on Institutions of Higher Education, 65
FR 2056, on January 13, 2000, to implement section 549 of the National
Defense Authorization Act (NDAA) for Fiscal Year 2000. Section 549
amends 10 U.S.C. 983 to prohibit DoD from providing funds by contract
or grant to an institution of higher education (including any
subelement of that institution) if the Secretary of Defense determines
that the institution (or any subelement of the institution) has a
policy or practice that prohibits, or in effect prevents, Senior ROTC
units or military recruiting on campus.
    DoD then published a final rule on Military Recruiting and Reserve
Officer Training Corps Program Access to Institutions of Higher
Education, 73 FR 16525, on March 28, 2008, at 32 CFR part 216. The rule
implemented 10 U.S.C. 983, as amended by the Ronald W. Reagan NDAA for
Fiscal Year 2005 (Pub. L. 108-375, October 28, 2004). The DoD rule
clarified access to campuses, access to students and access to
directory information on students for the purposes of military
recruiting, and that access to campuses and students on campuses shall
be provided in a manner that is at least equal in quality and scope to
that provided to any other employer. DoD later published a DFARS final
rule in the Federal Register, 77 FR 19128, on March 30, 2012, to
separate provisions and clauses that were previously combined in order
to comply with DFARS drafting conventions. This final rule removed the
representation from 252.209-7005, Reserve Officer Training Corps and
Military Recruiting on Campus, and added a new provision at 252.209-
7003, Reserve Officer Training Corps and Military Recruiting on
Campus--Representation.
    Similar to DoD, DHS published a rule on December 4, 2003, 68 FR
67868 at 67891 to add a new clause in its supplement at Homeland
Security Acquisition Regulation (HSAR) 3052.209-71, Reserve Officer
Training Corps and Military Recruiting on Campus, to implement these
requirements.
    This proposed rule would implement 10 U.S.C. 983, which prohibits
the award of certain Federal contracts with covered funds to
institutions of higher education that prohibit 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, DHS,
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
subelement of such institution) that has a policy or practice
(regardless of when implemented) that
[[Page 49975]]
either prohibits, or in effect prevents, the Secretary of Defense from
establishing or operating a Senior ROTC at that institution (or any
subelement of that institution); or that either prohibits, or in effect
prevents, a student at that institution (or any subelement 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 subelement 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.
    This proposed rulemaking was initiated at the request of DoD's
Regulatory Reform Task Force (RRTF). The RRTF was established under
Executive Order 13777, titled ``Enforcing the Regulatory Reform
Agenda,'' which requires agencies to evaluate existing regulations on
whether they should be repealed, replaced, modified, or retained to
reduce regulatory burden on the public. The RRTF recommended opening
this rulemaking as the statute applies to multiple agencies identified
in this rule as a ``covered agency.'' Elevating this policy in the FAR
eliminates the need for the agency unique supplemental regulations
mentioned above and ensures unified guidance among the affected
agencies consistent with the purpose of the FAR system.
II. Discussion and Analysis
    This rule proposes to add a new section FAR 9.110, Reserve Officer
Training Corps and military recruiting on campus, that provides the
policy and procedures for this prohibition and a new clause entitled
the same. Revisions are made to FAR 9.405, 9.405-1, and 43.105 to
address this prohibition. The clause explains what is expected of the
institution of higher education and how an agency is to handle the
situation when the institution of higher education is identified by the
Secretary of Defense as having policies or practices in place that
prevent the ROTC and military recruiting on campus. The covered agency
is prohibited from providing funds through contract award to the
institution of higher education. Administrative revisions are made to
FAR 12.503 and FAR 13.005 to the order of the statutes for consistency.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold 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 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
proposed 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 proposed rule does not apply to the acquisition of
commercial items, including COTS items. This rule proposes to add 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.
[[Page 49976]]
IV. 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 regulatory 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 a significant regulatory action and, therefore, was 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.
V. Expected Impact of the Proposed Rule and Proposed Cost Savings
    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 will be required to comply with the
same requirement, but the requirement will now be located in the FAR.
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 V of this preamble).
    This rule affects institutions of higher education that receive DoD
monies but are planning to 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 do not expect this rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule impacts only institutions of higher education with
policies or practices in place that prohibit ROTC units or military
recruiting on campus and currently no institutions have such practices.
Nevertheless, an Initial Regulatory Flexibility Analysis (IRFA) has
been performed and summarized as follows:
    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:
DoD, Department of Labor, Department of Health and Human Services,
Department of Education, Department of Transportation, and DHS. 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
(see 9.110).
    There are no reporting or recordkeeping requirements. There is a
compliance requirement; institutions of higher education that 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.
    The statute has previously been implemented at the FAR
supplement level for DoD and DHS. This FAR case moves the
implementation up into the FAR level.
    There were no significant alternatives identified that would
meet the objectives of the rule.
    The Regulatory Secretariat has submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small Business Administration. A copy
of the IRFA may be obtained for the Regulatory Secretariat. DoD, GSA,
and NASA invite comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities. DoD, GSA, and NASA will also consider comments from small
entities concerning the existing regulations in subparts affected by
the rule in accordance with 5 U.S.C. 610. Interested parties must
submit such comments separately and should cite 5 U.S.C 610 (FAR Case
2018-021), in correspondence.
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 propose amending 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:
    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 and 9.110-1 thru 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 subelements 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
[[Page 49977]]
    (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.
9.110-5  Contract clause.
    The contracting officer shall insert the clause at 52.209-XX,
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 FAR part 12 for the acquisition of
commercial items.
9.405   [Amended]
0
3. Amend 9.405(a) by removing from the first sentence ``see 9.405-
1(b)'' and adding ``see 9.405-1(a)(2)'' in its place.
0
4. Amend section 9.405-1 by--
0
a. Redesignating paragraphs (a) and (b) as paragraphs (a)(1) and (2);
0
b. Adding a heading for paragraph (a);
0
c. Redesignating paragraphs (a)(2)(1) through (3) as paragraphs
(a)(2)(i) through (iii); and
0
d. Adding new paragraph (b).
    The additions read as follows:
9.405-1  Continuation of current contracts.
    (a) Contractors debarred, suspended, or proposed for debarment. * *
*
    (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, Reserve Officer Training Corps
and military recruiting on campus), 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
5. Amend section 12.503 by revising paragraphs (a)(1), (2), (4), and
(5), adding paragraph (a)(6), and revising paragraphs (a)(7) 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).
    (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).
* * * * *
    (4) 41 U.S.C. 2303, 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 $15,000 (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
6. Amend section 13.005 by--
0
a. Removing paragraphs (a)(1) through (5);
0
b. Adding new paragraph (a)(1);
0
c. Redesignating paragraphs (a)(6) through (9) as paragraphs (a)(2)
through (5);
0
d. Adding new paragraphs (a)(6) through (9);
0
e. Revising paragraphs (a)(10) and (11); and
0
f. Adding paragraph (a)(12).
    The additions and revisions read as follows:
13.005  List of laws inapplicable to contracts and subcontracts at or
below the simplified acquisition threshold.
    (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).
* * * * *
    (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) 40 U.S.C. 3131 (Bonds statute). (Although the Bonds statute
does not apply to contracts at or below the simplified acquisition
threshold, alternative forms of payment protection for suppliers of
labor and material (see 28.102) are still required if the contract
exceeds $35,000 (40 U.S.C. 3132).)
    (9) 40 U.S.C. chapter 37 (Contract Work Hours and Safety
Standards--Overtime Compensation).
    (10) 41 U.S.C. 8102(a)(1) (Drug-Free Workplace), except for
individuals.
    (11) 41 U.S.C. 8703 (Kickbacks statute). (Only the requirement for
the incorporation of the contractor procedures for the prevention and
detection of violations, and the contractual requirement for contractor
cooperation in investigations are inapplicable.)
    (12) 42 U.S.C. 6962 (Solid Waste Disposal Act). (The requirement to
provide an estimate of recovered material utilized in contract
performance does not apply unless the contract value exceeds $150,000.)
* * * * *
PART 43--CONTRACT MODIFICATIONS
0
7. Amend section 43.105 by adding paragraph (c) to read as follows:
[[Page 49978]]
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.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.209-XX   [Added]
0
8. Add section 52.209-XX to read as follows:
52.209-XX  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 (Date)
    (a) Definitions. As used in this clause--
    ``Institution of higher education'' means an institution that
meets the requirements of 20 U.S.C. 1001 and includes all
subelements of such an institution.
    ``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.
    (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 subelement of that
institution);
    (2) A student at that institution (or any subelement 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. 2019-20045 Filed 9-23-19; 8:45 am]
 BILLING CODE 6820-EP-P