67604 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 213, 223, and 252 

[Docket DARS–2023–0028] 

RIN 0750–AK98 

Defense Federal Acquisition 

Regulation Supplement: Replacement 

of Fluorinated Aqueous Film Forming 

Foam (DFARS Case 2020–D011) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule. 

SUMMARY: DoD is issuing an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement a section of the 

National Defense Authorization Act for 

Fiscal Year 2020. 

DATES: Effective October 1, 2023. 

Comments on the interim rule should 

be submitted in writing to the address 

shown below on or before November 28, 

2023, to be considered in the formation 

of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2020–D011, 

using any of the following methods: 

Æ Federal eRulemaking Portal: 

https://www.regulations.gov. Search for 

‘‘DFARS Case 2020–D011.’’ Select 

‘‘Comment’’ and follow the instructions 

to submit a comment. Please include 

your name, company name (if any), and 

‘‘DFARS Case 2020–D011’’ on any 

attached documents. 

Æ Email: osd.dfars@mail.mil. Include 

DFARS Case 2020–D011 in the subject 

line of the message. 

Comments received will generally be 

posted without change to https://

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check https://

www.regulations.gov, approximately 

two to three days after submission to 

verify posting. 

FOR FURTHER INFORMATION CONTACT: 

David Johnson, telephone 202–913– 

5764. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This interim rule revises the DFARS 

to implement section 322(b), (c), and (d) 

of the National Defense Authorization 

Act (NDAA) for Fiscal Year (FY) 2020 

(Pub. L. 116–92). Section 322 prohibits 

DoD procurement of fluorinated 

aqueous film-forming foam (AFFF) 

containing in excess of one part per 

billion of perfluoroalkyl and 

polyfluoroalkyl substances (PFAS) after 

October 1, 2023, unless an exemption 

applies. Section 322 also requires 

publication not later than January 31, 

2023, of a military specification for a 

fluorine-free fire-fighting agent for use at 

all military installations and availability 

of such agent for use not later than 

October 1, 2023. After October 1, 2024, 

fluorinated AFFF may not be used at 

any military installation, unless the 

Secretary of Defense waives the 

prohibition on use. 

AFFF is used by DoD to rapidly 

extinguish fuel fires and protect against 

catastrophic loss of life and property; 

however, AFFF has been found to 

contain PFAS. In May 2016, the U.S. 

Environmental Protection Agency 

issued a lifetime drinking water health 

advisory for perfluorooctane sulfonate 

(PFOS) and perfluorooctanoic acid 

(PFOA) of 70 parts per trillion. PFOS 

and PFOA are only two of the hundreds 

of PFAS chemicals widely used 

throughout the United States. DoD 

ended land-based use of fluorinated 

AFFF except in emergencies in January 

2016 and more recently ceased its use 

in fire-fighting training. When 

emergencies occur that necessitate the 

use of fluorinated AFFF, DoD treats the 

fluorinated AFFF release as a spill and 

therefore conducts clean-up efforts to 

protect ground water from being 

impacted. Additionally, DoD updated 

the military specification (MILSPEC) for 

AFFF to ensure that new supplies 

available for emergency firefighting 

responses do not contain detectable 

levels of PFOS or PFOA. This new 

MILSPEC, MIL–PRF–24385, for PFASfree fire suppression went into effect 

January 31, 2023. 

II. Discussion and Analysis 

To implement section 322, this 

interim rule adds a new subpart at 

DFARS 223.74, Prohibition on 

Procurement of Certain Items 

Containing Perfluoroalkyl or 

Polyfluoroalkyl Substances, to ensure 

contracting officers do not procure 

AFFF having more than one part per 

billion of PFAS after October 1, 2023, 

unless an exception applies. The statute 

provides an exemption for shipboard 

use, specifically use onboard oceangoing vessels. The interim rule includes 

a new definition of ‘‘ocean-going 

vessels’’ to ensure a standard 

application of the exemption authority 

throughout the DoD contracting 

workforce. 

This interim rule adds a new clause 

at DFARS 252.223–7009, Prohibition of 

Procurement of Fluorinated Aqueous 

Film-Forming Foam Fire-Fighting Agent 

for Use on Military Installations, which 

prohibits contractors from providing 

any fire-fighting agent after October 1, 

2023, that contains PFAS in excess of 

one part per billion. The clause will 

flow down to subcontracts for firefighting agent for use on a military 

installation to prevent unintentional 

procurement of the prohibited firefighting agent through the supply chain. 

Conforming changes are made at 

DFARS 212.301 to add the new DFARS 

clause 252.223–7009 to the listing of 

solicitation provisions and contract 

clauses for the acquisition of 

commercial products and commercial 

services. DFARS 213.201(f) is added to 

apply the prohibition at 223.7402 to 

purchases at or below the micropurchase threshold. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT) and for Commercial 

Services and Commercial Products, 

Including Commercially Available Offthe-Shelf (COTS) Items 

This interim rule creates a new clause 

at DFARS 252.223–7009, Prohibition of 

Procurement of Fluorinated Aqueous 

Film-Forming Foam Fire-Fighting Agent 

for Use on Military Installations. The 

clause is prescribed for use in 

solicitations and contracts that include 

fire-fighting foam supplies and services 

that include aqueous film-forming foam 

for use on a military installation. DoD is 

applying the requirements of section 

322 of the NDAA for FY 2020 to 

contracts at or below the SAT and to 

contracts for the acquisition of 

commercial services and commercial 

products, including COTS items. 

A. Applicability to Contracts at or Below 

the Simplified Acquisition Threshold 

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. 41 U.S.C. 1905 provides 

that if a provision of law contains 

criminal or civil penalties, or if the 

Federal Acquisition Regulatory 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 SAT, the 

law will apply to them. The Principal 

Director, Defense Pricing and 

Contracting (DPC), is the appropriate 

authority to make comparable 

determinations for regulations to be 

published in the DFARS, which is part 

of the Federal Acquisition Regulation 

system of regulations. DoD has made 


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that determination. Therefore, this rule 

applies at or below the simplified 

acquisition threshold. 

B. Applicability to Contracts for the 

Acquisition of Commercial Products 

Including COTS Items and for the 

Acquisition of Commercial Services 

10 U.S.C. 3452 exempts contracts for 

the acquisition of commercial products, 

including COTS items, and commercial 

services from provisions of law enacted 

after October 13, 1994, unless the Under 

Secretary of Defense for Acquisition and 

Sustainment (USD(A&S)) makes a 

written determination that it would not 

be in the best interest of DoD to exempt 

contracts for the procurement of 

commercial products and commercial 

services from the applicability of the 

provision or contract requirement, 

except for a provision of law that— 

• Provides for criminal or civil 

penalties; 

• Requires that certain articles be 

bought from American sources pursuant 

to 10 U.S.C. 4862 (previously 10 U.S.C. 

2533c), or that strategic materials 

critical to national security be bought 

from American sources pursuant to 10 

U.S.C. 4863 (previously 10 U.S.C. 

2533b); or 

• Specifically refers to 10 U.S.C. 3452 

and states that it shall apply to contracts 

and subcontracts for the acquisition of 

commercial products (including COTS 

items) and commercial services. 

The statute implemented in this rule 

does not impose criminal or civil 

penalties, does not require purchase 

pursuant to 10 U.S.C. 4862 or 4863, and 

does not refer to 10 U.S.C. 3452. 

Therefore, section 322 will not apply to 

the acquisition of commercial services 

or commercial products including COTS 

items unless a written determination is 

made. Due to delegations of authority, 

the Principal Director, DPC is the 

appropriate authority to make this 

determination. DoD has made that 

determination. Therefore, this rule 

applies to the acquisition of commercial 

products including COTS items and to 

the acquisition of commercial services. 

C. Determination 

Given that the requirements of section 

322 of the NDAA for FY 2020 were 

enacted to prohibit the purchase and 

use of fluorinated AFFF, and the 

product is procured commercially as a 

supply or is included in contracts for 

certain services, DoD has determined 

that it is in the best interest of the 

Federal Government to apply the rule to 

contracts for the acquisition of 

commercial services and commercial 

products including COTS items, as 

defined at FAR 2.101. An exception for 

contracts for the acquisition of 

commercial services and commercial 

products, including COTS items, would 

exclude contracts intended to be 

covered by the law, thereby 

undermining the overarching purpose of 

the law. 

IV. Expected Impact of the Rule 

This rule is not expected to have a 

significant economic impact on 

contractors. Businesses have been 

selling fluorine-free fire-fighting foams 

in various formulations alongside PFAScontaining AFFF in the commercial 

marketplace for several years. Some or 

most of the businesses that have 

supplied PFAS-containing AFFF to DoD 

will likely supply fluorine-free foams to 

DoD. Moreover, DoD has already 

significantly reduced the use of AFFF 

since ending both land-based use and 

use in training exercises in the past 

several years. 

By limiting DoD procurement of AFFF 

containing detectable amounts of PFAS, 

this rule both protects DoD personnel 

from PFAS exposure and limits the 

possibility of AFFF-related PFAS 

releases into the environment. 

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 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 not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. 

VI. Congressional Review Act 

As required by the Congressional 

Review Act (5 U.S.C. 801–808) before an 

interim or final rule takes effect, DoD 

will submit a copy of the interim or 

final rule with the form, Submission of 

Federal Rules under the Congressional 

Review Act, to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States. A major rule under the 

Congressional Review Act cannot take 

effect until 60 days after it is published 

in the Federal Register. The Office of 

Information and Regulatory Affairs has 

determined that this rule is not a major 

rule as defined by 5 U.S.C. 804. 

VII. Regulatory Flexibility Act 

DoD does 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 DoD has significantly reduced 

the procurement and use of AFFF. 

However, an initial regulatory flexibility 

analysis has been performed and is 

summarized as follows: 

This interim rule amends the DFARS 

to implement section 322 of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2020 (Pub. 

L. 116–92). Section 322 prohibits DoD 

procurement of fluorinated aqueous 

film-forming foam (AFFF), which is 

used to fight fires, containing in excess 

of one part per billion of perfluoroalkyl 

and polyfluoroalkyl substances (PFAS) 

after October 1, 2023, unless an 

exemption applies. Section 322 

provides an exemption for use onboard 

ocean-going vessels. 

The objective of the rule is to ensure 

contracting officers do not procure and 

contractors do not provide or use the 

prohibited fluorinated AFFF unless an 

exemption applies. The legal basis of 

the rule is section 322 of the NDAA for 

FY 2020. 

This rule is not expected to affect 

significant numbers of small entities, 

because DoD has significantly reduced 

the use of AFFF since ending both use 

in training exercises and land-based use 

in the past several years. Data generated 

from the Federal Procurement Data 

System for fiscal years 2019 through 

2022 indicates that DoD has awarded an 

average of 32,326 contracts for specific 

product and service codes related to 

firefighting supplies, equipment, and 

services to approximately 643 unique 

small entities during the three-year 

period. While DoD is unable to identify 

how many unique small entities of the 

643 currently supply fire-fighting agent 

to DoD, to the extent they do supply 

fire-fighting agent, they will most likely 

continue to do so, assuming the use is 

exempt, or a waiver has been granted. 

Further, any PFAS-free replacement 

product will most likely follow existing 

supply channels. 

The rule does not impose any new 

reporting, recordkeeping, or compliance 

requirements. 

The rule does not duplicate, overlap, 

or conflict with any other Federal rules. 

There are no practical alternatives 

that will accomplish the objectives of 

the statute. 

DoD invites comments from small 

business concerns and other interested 

parties on the expected impact of this 

rule on small entities. 


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67606 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 

DoD 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 (DFARS Case 2020–D011), in 

correspondence. 

VIII. Paperwork Reduction Act 

This interim 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). 

IX. Determination To Issue an Interim 

Rule Effective in Less Than 30 Days 

A determination has been made under 

the authority of the Secretary of Defense 

that urgent and compelling reasons exist 

to promulgate this interim rule, effective 

in less than 30 days, without prior 

opportunity for public comment. This 

action must be effective in less than 30 

days to implement section 322 of the 

NDAA for FY 2020 before its statutory 

prohibition on procurement of PFAScontaining AFFF takes effect on October 

1, 2023. This rule both protects DoD 

personnel from PFAS exposure and 

limits the possibility of AFFF-related 

PFAS releases into the environment. In 

addition, the rule provides advance 

notice to contracting officers to reduce 

the risk of obligating funds for the 

purchase of PFAS-containing AFFF in 

violation of section 322. Therefore, its 

timely implementation is imperative. 

However, pursuant to 41 U.S.C. 1707 

and FAR 1.501–3(b), DoD will consider 

public comments received in response 

to this interim rule in the formation of 

the final rule. 

List of Subjects in 48 CFR Parts 212, 

213, 223, and 252 

Government procurement. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

Therefore, 48 CFR parts 212, 213, 223, 

and 252 are amended as follows: 

■ 1. The authority citation for parts 212, 

213, 223, and 252 continues to read as 

follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 212—ACQUISITION OF 

COMMERCIAL PRODUCTS AND 

COMMERCIAL SERVICES 

■ 2. Amend section 212.301— 

■ a. By designating paragraph (f)(viii) as 

(f)(viii)(A) and 

■ b. By adding a new paragraph 

(f)(viii)(B). 

The addition reads as follows: 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial products and commercial 

services. 

* * * * * 

(f) * * * 

(viii) * * * 

(B) Use the clause at 252.223–7009, 

Prohibition of Procurement of 

Fluorinated Aqueous Film-Forming 

Foam Fire-Fighting Agent for Use on 

Military Installations, as prescribed at 

223.7404 to comply with section 322(b), 

(c), and (d) of the National Defense 

Authorization Act for Fiscal Year 2020 

(Pub. L. 116–92). 

* * * * * 

PART 213—SIMPLIFIED ACQUISITION 

PROCEDURES 

■ 3. Amend section 213.201 by adding 

new paragraph (f) to read as follows: 

213.201 General. 

(f) Notwithstanding FAR 13.201(f), 

apply the prohibition at 223.7402 to 

purchases at or below the micropurchase threshold. 

* * * * * 

PART 223—ENVIRONMENT, ENERGY 

AND WATER EFFICIENCY, 

RENEWABLE ENERGY 

TECHNOLOGIES, OCCUPATIONAL 

SAFETY, AND DRUG-FREE 

WORKPLACE 

■ 4. Add subpart 223.74 to read as 

follows: 

Subpart 223.74—Prohibition on 

Procurement of Certain Items Containing 

Perfluoroalkyl or Polyfluoroalkyl 

Substances 

Sec. 

223.7400 Scope of subpart. 

223.7401 Definition. 

223.7402 Prohibition. 

223.7403 Procedures. 

223.7404 Contract clause. 

Subpart 223.74—Prohibition on 

Procurement of Certain Items 

Containing Perfluoroalkyl or 

Polyfluoroalkyl Substances 

223.7400 Scope of subpart. 

This subpart implements section 

322(b), (c), and (d) of the National 

Defense Authorization Act for Fiscal 

Year 2020 (Pub. L. 116–92). 

223.7401 Definition. 

As used in this subpart— 

Ocean-going vessel means a vessel 

over 59 feet in length owned or operated 

by DoD or the U.S. Coast Guard, other 

than vessels that are chartered by the 

Armed Forces on a time or voyage basis. 

223.7402 Prohibition. 

After October 1, 2023, do not procure 

aqueous film-forming foam, which is 

used for fighting fires, that contains in 

excess of one part per billion 

perfluoroalkyl substances or 

polyfluoroalkyl substances. 

Procurements of fire-fighting agent for 

use solely onboard ocean-going vessels 

are exempt from this prohibition. 

223.7403 Procedures. 

After October 1, 2023, contracting 

officers shall only issue a solicitation to 

procure fire-fighting foam in accordance 

with performance specification MIL– 

PRF–24385F(SH), unless the requiring 

activity provides documentation of the 

exemption at 223.7402. The contracting 

officer shall maintain the 

documentation in the contract file. 

223.7404 Contract clause. 

Use the clause at 252.223–7009, 

Prohibition of Procurement of 

Fluorinated Aqueous Film-Forming 

Foam Fire-Fighting Agent for Use on 

Military Installations, in solicitations 

and contracts, including solicitations 

and contracts using FAR part 12 

procedures for the acquisition of 

commercial products and commercial 

services, relating to fire-fighting on 

military installations. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 5. Add section 252.223–7009 to read 

as follows: 

252.223–7009 Prohibition of Procurement 

of Fluorinated Aqueous Film-Forming Foam 

Fire-Fighting Agent for Use on Military 

Installations. 

As prescribed in 223.7404, use the 

following clause: 

Prohibition of Procument of Flourinated 

Aqueous Film-Forming Foam Fire-Fighting 

Agent for Use on Military Installations (Oct 

2023) 

(a) Definitions. As used in this clause, 

perfluoroalkyl substances and 

polyfluoroalkyl substances have the 

meanings given in section 322(f) of the 

National Defense Authorization Act for Fiscal 

Year 2020 (Pub. L. 116–92). 

(b) Prohibition. The Contractor shall not 

provide or use under this contract any 

aqueous film-forming foam fire-fighting agent 

that contains perfluoroalkyl substances or 

polyfluoroalkyl substances in excess of one 

part per billion. 

(c) Subcontracts. The Contractor shall 

include the substance of this clause, 

including this paragraph (c), in all 

subcontracts, including subcontracts for 


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commercial products and commercial 

services, relating to fire-fighting on a military 

installation. 

(End of clause) 

[FR Doc. 2023–20800 Filed 9–28–23; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 209, 212, and 252 

[Docket DARS–2023–0029] 

RIN 0750–AL41 

Defense Federal Acquisition 

Regulation Supplement: Limitation on 

Certain Institutes of Higher Education 

(DFARS Case 2021–D023) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule. 

SUMMARY: DoD is issuing an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement a section of the 

National Defense Authorization Act for 

Fiscal Year 2021, that provides for the 

limitation of funds authorized to be 

appropriated or otherwise made 

available for any fiscal year for DoD, to 

be provided to an institution of higher 

education that hosts a Confucius 

Institute. 

DATES: Effective October 1, 2023. 

Comments on the interim rule should 

be submitted in writing to the address 

shown below on or before November 28, 

2023, to be considered in the formation 

of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2021–D023, 

using any of the following methods: 

Æ Federal eRulemaking Portal: 

https://www.regulations.gov. Search for 

‘‘DFARS Case 2021–D023.’’ Select 

‘‘Comment’’ and follow the instructions 

to submit a comment. Please include 

‘‘DFARS Case 2021–D023’’ on any 

attached documents. 

Æ Email: osd.dfars@mail.mil. Include 

DFARS Case 2021–D023 in the subject 

line of the message. 

Comments received generally will be 

posted without change to https://

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check https://

www.regulations.gov, approximately 

two to three days after submission to 

verify posting. 

FOR FURTHER INFORMATION CONTACT: 

Kimberly Bass, telephone 703–717– 

3446. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This interim rule revises the DFARS 

to implement section 1062 of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2021 (Pub. 

L. 116–283). Section 1062 provides that 

none of the funds authorized to be 

appropriated or otherwise made 

available for any fiscal year for DoD may 

be provided to an institution of higher 

education that hosts a Confucius 

Institute, defined as a cultural institute 

directly or indirectly funded by the 

government of the People’s Republic of 

China. According to section 1062, the 

limitation of funds is applicable to 

amounts other than those provided 

directly to students as educational 

assistance. The effective date of section 

1062 is October 1, 2023. 

II. Discussion and Analysis 

A. New Definitions 

The interim rule adds new definitions 

at DFARS section 209.170–1, 

Definitions, for ‘‘Confucius Institute’’ 

and ‘‘institution of higher education’’. 

‘‘Confucius Institute’’ means a cultural 

institute directly or indirectly funded by 

the government of the People’s Republic 

of China. ‘‘Institution of higher 

education’’ has the meaning given in 20 

U.S.C. 1002. 

B. Limitation of Funds 

At DFARS 209.170–2, the limitation is 

added regarding not providing funds 

appropriated or otherwise made 

available for any fiscal year for DoD to 

an institution of higher education that 

hosts a Confucius Institute, other than 

amounts provided directly to students 

as educational assistance. 

C. Waiver of Funds Limitation 

Pursuant to section 1286(g) of the 

NDAA for FY 2019 (Pub. L. 115–232; 10 

U.S.C. 4001 note), the funds limitation 

with respect to an institution of higher 

education can be waived by the Office 

of the Under Secretary of Defense for 

Research and Engineering (OUSD(R&E)). 

Section 209.170–3 addresses the 

OUSD(R&E), Confucius Institute Waiver 

Program procedures. 

D. Solicitation Provision 

A new solicitation provision is added 

at DFARS 252.209–7011, Representation 

for Restriction on the Use of Certain 

Institutions of Higher Education, for use 

in solicitations, including solicitations 

using Federal Acquisition Regulation 

(FAR) part 12 procedures for the 

acquisition of commercial products and 

commercial services, for acquisitions to 

an institution of higher education. The 

prescription for the provision is at 

DFARS 209.170–4. The provision is also 

added to the list of solicitation 

provisions and contract clauses for the 

acquisition of commercial products and 

commercial services at DFARS 212.301. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT) and for Commercial 

Products, Including Commercially 

Available Off-the-Shelf (COTS) Items, 

and Commercial Services 

This rule creates a new solicitation 

provision at DFARS 252.209–7011, 

Representation for Restriction on the 

Use of Certain Institutions of Higher 

Education. The provision at DFARS 

252.209–7011 is prescribed in DFARS 

209.170–4 for use in solicitations for 

acquisitions to an institution of higher 

education, including solicitations for 

acquisitions to an institution of higher 

education using FAR part 12 procedures 

for the acquisition of commercial 

products, including COTS items, and 

commercial services. DoD is applying 

the rule to contracts at or below the 

SAT, to contracts for the acquisition of 

commercial products including COTS 

items, and for the acquisition of 

commercial services. 

A. Applicability to Contracts at or Below 

the Simplified Acquisition Threshold 

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. 41 U.S.C. 1905 provides 

that if a provision of law contains 

criminal or civil penalties, or if the 

Federal Acquisition Regulatory 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 SAT, the 

law will apply to them. The Principal 

Director, Defense Pricing and 

Contracting (DPC), is the appropriate 

authority to make comparable 

determinations for regulations to be 

published in the DFARS, which is part 

of the FAR system of regulations. DoD 

has made that determination. Therefore, 

this rule applies at or below the 

simplified acquisition threshold. 


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