OFFICE OF THE SECRETARY OF DEFENSE
1000 DEFENSE PENTAGON
WASHINGTON, DC 20301-1000
In reply refer to
DFARS Case: 96-D305
D. L. 96-012
MEMORANDUM FOR DIRECTORS OF DEFENSE AGENCIES
DEPUTY FOR ACQUISITION AND BUSINESS MANAGEMENT,
DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE
DIRECTOR, PROCUREMENT POLICY, ASA(RD&A)/SARD-PP
DEPUTY DIRECTOR (ACQUISITION), DEFENSE LOGISTICS
SUBJECT: Institutions of Higher Education
We have amended the Defense Federal Acquisition Regulation Supplement to
implement Section 541 of the Fiscal Year 1996 National Defense Authorization Act
(Pub. L. 104-106) as it applies to contracts. Section 541 provides that no funds
available to the Department of Defense may be provided by grant or contract to any
institution of higher education that has an anti-ROTC policy.
This interim rule is effective immediately and will be published in a future
Defense Acquisition Circular.
Eleanor R. Spector
Director, Defense Procurement
cc: DSMC, Ft. Belvoir
DFARS CASE 96-D305
Part 209 - Contractor Qualifications
1. Subpart 209.4 is amended to revise Section 209.470, as follows:
Subpart 209.4--DEBARMENT, SUSPENSION, AND INELIGIBILITY
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209.470 Military recruiting on campus.
- [(1)] Section 558 of the National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337) provides that no funds available to DoD may be provided by grant or contract to any institution of higher education that has a policy of denying or that effectively prevents the Secretary of Defense from obtaining for military recruiting purposes--
- [(i)] Entry to campuses or access to students on campuses; or
- [(ii)] Access to directory information pertaining to students.
- [(2) Section 541 of the National Defense Authorization Act for Fiscal Year 1996, 10 U.S.C. 983, provides that no funds appropriated or otherwise available to the Department of Defense may be obligated by contract or by grant, including a grant of funds to be available for student aid, to any institution of higher education that, as determined by the Secretary of Defense, has an anti-ROTC policy and at which, as determined by the Secretary, the Secretary would otherwise maintain or seek to establish a unit of the Senior Reserve Officer Training Corps, or at which the Secretary would otherwise enroll or seek to enroll students for participation in a unit of the Senior Reserve Officer Training Corps at another nearby institution of higher education. This prohibition applies to new contracts and all contract modifications. (See 243.105.) This prohibition shall cease to apply to that institution upon a determination by the Secretary that the institution no longer has an anti-ROTC policy.]
(b) Institutions of higher education that are determined under 32 CFR Part 216 to have the policy or practice in paragraph (a)[(1) or (a)(2)] of this subsection shall be listed as ineligible on the List of Parties Excluded from Federal Procurement [and Nonprocurement] Programs published by the General Services Administration. (See FAR 9.404).
(c) In cases where a determination is made under 32 CFR Part 216 that specific subordinate elements of an institution of higher education, rather than the institution as a whole, have the policy or practice in paragraph (a)[(1) or (a)(2)] of this subsection, 32 CFR part 216 provides that the prohibition on use of DoD funds applies only to those subordinate elements.
(a) Agencies shall not solicit offers from, award contracts to, or consent to subcontracts with ineligible contractors.
(b) After a determination of ineligibility [under 209.470-1(a)(1)], departments and agencies shall make no further payments under existing contracts with the institutions, and shall initiate termination action.
209.470-3 Contract clause.
Use the clause at 252.209-7005, Military Recruiting on Campus, in all solicitations and contracts with institutions of higher education.
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- [i] 10 U.S.C. 2405 prohibits adjustments in price under a shipbuilding contract entered into after December 7, 1983, for a claim, request for equitable adjustment, or demand for payment under the contract, arising out of events occurring more than 18 months before submission of the claim, request, or demand.
- [(ii) Section 558 of the National Defense Authorization Act for Fiscal Year 1995 (Pub. L. 103-337) provides that no funds available to DoD may be provided by contract or contract modification, nor may contract payments be made, to an institution of higher education that has a policy of denying or that effectively prevents the Secretary of Defense from obtaining for military recruiting purposes--
- (A) Entry to campuses or access to students on campuses; or
- (B) Access to directory information pertaining to students. (See 209.470.)
- (iii) Pursuant to 10 U.S.C. 983, no funds may be obligated by contract or contract modification to an institution of higher education that has an anti-ROTC policy. (See 209-470.) ]