PART 3009 CONTRACTOR QUALIFICATIONS
PART 3009 CONTRACTOR QUALIFICATIONS
Subpart 3009.1 Responsible Prospective Contractors
3009.104-70 Prohibition on contracts with inverted domestic corporations.
(DEVIATIONS)
3009.104-71 General. (DEVIATION)
(a) Except as provided (HSAR) 48 CFR 3009.104-74, DHS may not enter into any contract with a foreign incorporated entity, which is treated as an inverted domestic corporation under subsection (b) of Section 835 of the Homeland Security Act, 6 U.S.C. 395(b), or any subsidiary of such entity.
(b) Section 743 of Division D of the FY 2009 omnibus appropriations legislation (Pub. L. 111-8), prohibits the use of FY 2009 funds appropriated to DHS for contracting with any inverted domestic corporation. The same restriction is also contained in the FY 2008 omnibus appropriations legislation (Pub. L. 110-161, Section 745). The FAR implementation of Sections 743 and 745 will be relied upon instead of the HSAR implementation of 6 U.S.C. 395(b) for DHS contracts obligating funds available for FY 2008 and FY 2009, and for DHS contracts obligating future year funds, if the appropriations restriction is reenacted in the same form in subsequent fiscal years. DHS may not use any funds appropriated or otherwise made available FY 08 or FY 09 (or in a successor appropriation act, if the restriction is reenacted) for any Federal contract with a foreign incorporated entity, which is treated as an inverted domestic corporation under subsection (b) of Section 835 of the Homeland Security Act (6 U.S.C. 395(b)).
(c) When Section 743 or a subsequent successor appropriation act with the contracting prohibition is in effect and implemented by Federal Acquisition Regulation (FAR) 48 CFR 9.108, Prohibition on Contracting with Inverted Domestic Corporations and the provision at (FAR) 48 CFR 52.209-2, Prohibition on Contracting with Inverted Domestic Corporations-Representation, the FAR prohibition and provision apply to DHS.
(d) In the event that successor legislation is not enacted, DHS will be bound by provisions of HSAR 3009.104-70, et seq. and HSAR Clause 3052.209-70 in effect on June 30, 2009.
3009.104-72 Definitions. (RESERVED)
3009.104-73 Special Rules. (RESERVED)
3009.104-74 Waiver. (DEVIATION)
(a) The Secretary may waive the provisions of (FAR) 48 CFR 9.108-3 with respect to any specific contract if the Secretary determines that the waiver is required in the interest of national security. This waiver authority is not delegable.
(b) Contractors may submit waiver requests under (FAR) 48 CFR 9.108-4 to the CPO, through the contracting officials for the solicitation. A copy of the waiver request or the approved waiver shall be attached with the bid or proposal.
3009.104-75 Clause. (DEVIATION)
(a) When Section 743 of Division D of Pub. L. 111-8, Section 743 of Division D of Pub. L. 110-161, or a subsequent appropriation act is in effect with the same contracting prohibition; insert the provision (FAR) 48 CFR 52.209-2.
(b) In the event that Section 743 of Division D of Pub. L. 111-8, Section 743 of Division D of Pub. L. 110-161, or successor legislation is no longer in effect with the contracting prohibition, insert the provision (HSAR) 48 CFR 3052.209-70, Prohibition on Contracts with Corporate Expatriates, in effect on June 30, 2009, in all solicitations and contracts.
Subpart 3009.4 Debarment, Suspension, and Ineligibility
3009.470 Reserve Officer Training Corps and military recruiting on campus.
Institution of higher education as used in this section, means an institution that meets the requirements of 20 U.S.C. 1001 and includes all subelements of such an institution.
(a) Except as provided in paragraph (b) of this subsection, 10 U.S.C. 983 prohibits the Department of Homeland Security from providing funds by contract or grant 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 entry to campuses, or access to students on campuses, for purposes of military recruiting; or
(4) Military recruiters from accessing certain information pertaining to students enrolled at that institution.
(b) The prohibition in paragraph (a) of this subsection does not apply to an institution of higher education if the Secretary of Defense determines that-
(1) The institution (and each subelement of that institution) has ceased the policy or practice described in paragraph (a) of this subsection; or
(2) The institution involved has a long-standing policy of pacifism based on historical religious affiliation.
Whenever the Secretary of Defense determines that an institution of higher education (including any subelement of such institution) is ineligible and the provisions of 10 U.S.C. 983 apply:
(a) The Secretary of Defense will list the institution on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs published by the General Services Administration (also see (FAR) 48 CFR 9.404 and 32 CFR Part 216); and
(b) The Department of Homeland Security-
(1) Shall not solicit offers from, award contracts to, or consent to subcontracts with the institution;
(2) Shall make no further payments under existing contracts with the institution; and
(3) Shall terminate existing contracts with the institution.
Insert the clause at (HSAR) 48 CFR 3052.209-71, Reserve Officer Training Corps and Military Recruiting on Campus, in all solicitations and contracts with institutions of higher education.
Subpart 3009.5 Organizational and Consultant Conflicts of Interest
3009.507 Solicitation provision and contract clause
3009.507-1 Solicitation provision.
The contracting officer shall insert a provision substantially the same as (HSAR) 3052.209-72, Organizational Conflict of Interest, in solicitations and contracts where a potential organizational conflict of interest exists and mitigation may be possible. The contracting officer shall ensure the conditions enumerated in (FAR) 48 CFR Subpart 9.5 warrant inclusion. The contracting officer shall include the information required by (FAR) 48 CFR 9.507-1 and (HSAR) 3052.209-72(a).
The contracting officer shall insert a clause substantially the same as the clause at (HSAR) 48 CFR 3052.209–73, Limitation of Future Contracting, in solicitations and contracts when a potential organizational conflict of interest exists and mitigation is not feasible.