E8-21384. Federal Acquisition Regulation; FAR Case 2007-020, Correcting Statutory References Related to the Higher Education Act of 1965

AGENCIES:

Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

ACTION:

Final rule.

SUMMARY:

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to correct references to sections of the Higher Education Act of 1965 at FAR 2.101 and 52.2. These sections of the Act contain the definitions of minority institution and Hispanic-serving institution. The citations for these sections changed when the Higher Education Act of 1965 was amended by the Higher Education Amendments of 1998. This final rule updates the FAR accordingly.

DATES:

Effective Date: October 17, 2008.

FOR FURTHER INFORMATION CONTACT:

Ms. Rhonda Cundiff, Procurement Analyst, at [phone], for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at [phone]. Please cite FAC 2005-27, FAR case 2007-020.

SUPPLEMENTARY INFORMATION:

A. Background

The definition of “minority institution” had been found in section 1046 of the Higher Education Act of 1965 (HEA) and at 20 U.S.C. 1135d-5(3). The Higher Education Amendments of 1998 redesignated section 1046 of the HEA as section 365.

The Hispanic-serving Institution Program was authorized in section 316 of Title III of the HEA, as amended by 1992 amendments. In the Higher Education Amendments of 1998, Pub. L. 105-244, the Hispanic-serving institution Program was moved into Title V of the HEA and reenacted, in that title, with all the relevant provisions that governed that program while it was part of Title III of the HEA. This final rule reflects these changes.

This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act does not apply to this rule. This final rule does not constitute a significant FAR revision within the meaning of FAR 1.501 and Pub. L. 98-577, and publication for public comments is not required. However, the Councils will consider comments from small entities concerning the affected FAR Parts 2 and 52 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601, et seq. (FAC 2005-27, FAR case 2007-020, in correspondence.)

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 2 and 52

• Government procurement

Dated: September 9, 2008.

Al Matera,

Director, Office of Acquisition Policy.

Therefore, DoD, GSA, and NASA amend 48 CFR parts 2 and 52 as set forth below:

1. The authority citation for 48 CFR parts 2 and 52 continues to read as follows:

Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).

PART 2—DEFINITIONS OF WORDS AND TERMS

2. Amend section 2.101 in paragraph (b)(2) by revising the definition “Minority Institution” to read as follows:

2.101

Definitions.

(b) * * *

(2) * * *

Minority Institution means an institution of higher education meeting the requirements of Section 365(3) of the Higher Education Act of 1965 (20 U.S.C. 1067k), including a Hispanic-serving institution of higher education, as defined in Section 502(a) of the Act (20 U.S.C. 1101a).

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

3. Amend section 52.212-5 by revising the date of the clause and paragraph (b)(11)(i) to read as follows:

52.212-5

Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Items.

CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS—COMMERCIALS ITEMS (OCT 2008)

(b) * * *

__ (11)(i) 52.219-23, Notice of Price Evaluation Adjustment for Small Disadvantaged Business Concerns (OCT 2008) (10 U.S.C. 2323)(if the offeror elects to waive the adjustment, it shall so indicate in its offer.)

4. Amend section 52.219-23 by revising the date of the clause and in paragraph (a) the definition “Minority institution” to read as follows:

52.219-23

Notice of Price Evaluation Adjustment for Small Disadvantaged Business Concerns.

NOTICE OF PRICE EVALUATION ADJUSTMENT FOR SMALL DISADVANTAGED BUSINESS CONCERNS (OCT 2008)

(a) * * *

Minority institution means an institution of higher education meeting the requirements of Section 365(3) of the Higher Education Act of 1965 (20 U.S.C. 1067k), including a Hispanic-serving institution of higher education, as defined in Section 502(a) of the Act (20 U.S.C. 1101a).

5. Amend section 52.226-2 by revising the date of the provision and in paragraph (a) the definition “Minority institution” to read as follows:

52.226-2

Historically Black College or University and Minority Institution Representation.

HISTORICALLY BLACK COLLEGE OR UNIVERSITY AND MINORITY INSTITUTION REPRESENTATION (OCT 2008)

(a) * * *

Minority institution means an institution of higher education meeting the requirements of Section 365(3) of the Higher Education Act of 1965 (20 U.S.C. 1067k), including a Hispanic-serving institution of higher education, as defined in Section 502(a) of the Act (20 U.S.C. 1101a).