Subpart A - General

___.100 Conditions on use of funds.

 ___.105 Definitions.

 ___.110 Certification and disclosure.



Subpart B -- Activities by Own Employees

 ___.200  Agency and legislative liaison.

 ___.205 Professional and technical services.

 ___.210 Reporting.



Subpart C -- Activities by Other than Own Employees

___.300 Professional and technical services.



Subpart D -- Penalties and Enforcement

___.400 Penalties.

___.405 Penalty procedures.

___.410 Enforcement.



Subpart E -- Exemptions

___.500 Secretary of Defense.



Subpart F -- Agency Reports

___.600 Semi-annual compilation.

___.605 Inspector General report.




Appendix

Appendix A: Lobbying Cert

Appendix B: Disclosure Form



Authority: Section 319, Public Law 101 - 121 (31 U.S.C.1352); (5 U.S.C. 301).




Cross reference: See also Office of Management and Budget notice published at 54 FR 52306, December 20, 1989.




Source: 55 FR 6754, Feb. 26, 1990, unless otherwise noted.






___.100  Conditions on use of funds.


  • No appropriated funds may be expended by the

recipient of a Federal contract, grant, loan, or cooperative

ageement to pay any person for influencing or attempting to

influence an officer or employee of any agency, a Member of

Congress, an officer or employee of Congress, or an employee of a

Member of Congress in connection with any of the following

covered Federal actions: the awarding of any Federal contract,

the making of any Federal grant, the making of any Federal loan,

the entering into of any cooperative agreement, and the

extension, continuation, renewal, amendment, or modification of

any Federal contract, grant, loan, or cooperative agreement.




  •        Each person who requests or receives from an agency a

Federal contract, grant, loan, or cooperative agreement shall

file with that agency a certification, set forth in Appendix A to

this part, that the person has not made, and will not make, any

payment prohibited by paragraph (a) of this section.




  •        Each person who requests or receives from an agency a

Federal contract, grant, loan, or a cooperative agreement shall

file with that agency a disclosure form, set forth in Appendix B

to this part, if such person has made or has agreed to make any

payment using nonappropriated funds (to include profits from any

covered Federal action), which would be prohibited under

paragraph (a) of this section if paid for with appropriated

funds.




  •        Each person who requests or receives from an agency a

commitment providing for the United States to insure or guarantee

a loan shall file with that agency a statement, set forth in

Appendix A to this part, whether that person has made or has

agreed to make any payment to influence or attempt to influence

an officer or employee of any agency, a Member of Congress, an

officer or employee of Congress, or an employee of a Member of

Congress in connection with that loan insurance or guarantee.




  •        Each person who requests or receives from an agency a

commitment providing for the United States to insure or guarantee

a loan shall file with that agency a disclosure form, set forth

in Appendix B to this part, if that person has made or has agreed

to make any payment to influence or attempt to influence an

officer or employee of any agency, a Member of Congress, an

officer or employee of Congress, or an employee of a Member of

Congress in connection with that loan insurance or guarantee.



___.105  Definitions.



        For purposes of this part:


      


    1. Agency, as defined in 5 U.S.C. 552(f), includes

Federal executive departments and agencies as well as independent

regulatory commissions and Government corporations, as defined in

31 U.S.C. 9101(1).




    2.        Covered Federal action means any of the following

Federal actions:


        


      1. The awarding of any Federal contract;




      2.        The making of any Federal grant;




      3.        The making of any Federal loan;




      4.         The entering into of any cooperative agreement; and,




      5.        The extension, continuation, renewal, amendment, or

modification of any Federal contract, grant, loan, or cooperative

agreement.


      

Covered Federal action does not include receiving from an agency

a commitment providing for the United States to insure or

guarantee a loan. Loan guarantees and loan insurance are

addressed independently within this part.




    3.         Federal contract means an acquisition contract

awarded by an agency, including those subject to the Federal

Acquisition Regulation (FAR), and any other acquisition contract

for real or personal property or services not subject to the FAR.




    4.        Federal cooperative agreement means a cooperative

agreement entered into by an agency.




    5.         Federal grant means an award of financial assistance

in the form of money, or property in lieu of money, by the

Federal Government or a direct appropriation made by law to any

person. The term does not include technical assistance which

provides services instead of money, or other assistance in the

form of revenue sharing, loans, loan guarantees, loan insurance,

interest subsidies, insurance, or direct United States cash

assistance to an individual.




    6.         Federal loan means a loan made by an agency. The term

does not include loan guarantee or loan insurance.




    7.         Indian tribe and tribal organization have the meaning

provided in section 4 of the Indian Self-Determination and

Education Assistance Act (25 U.S.C. 450B). Alaskan Natives are

included under the definitions of Indian tribes in that Act.




    8.        Influencing or attempting to influence means making,

with the intent to influence, any communication to or appearance

before an officer or employee or any agency, a Member of

Congress, an officer or employee of Congress, or an employee of a

Member of Congress in connection with any covered Federal action.




    9.         Loan guarantee and loan insurance means an agency's

guarantee or insurance of a loan made by a person.




    10.       Local government means a unit of government in a

State and, if chartered, established, or otherwise recognized by

a State for the performance of a governmental duty, including a

local public authority, a special district, an intrastate

district, a council of governments, a sponsor group

representative organization, and any other instrumentality of a

local government.




    11.          Officer or employee of an agency includes the

following individuals who are employed by an agency:


        


      1.         An individual who is appointed to a position in the

Government under title 5, U.S. Code, including a position under a

temporary appointment;




      2.        A member of the uniformed services as defined in

section 101(3), title 37, U.S. Code; 




      3.         A special Government employee as defined in section

202, title 18, U.S. Code; and,




      4.        An individual who is a member of a Federal advisory

committee, as defined by the Federal Advisory Committee Act,

title 5, U.S. Code appendix 2.


      


    12. Person means an individual, corporation, company,

association, authority, firm, partnership, society, State, and

local government, regardless of whether such entity is operated

for profit or not for profit. This term excludes an Indian tribe,

tribal organization, or any other Indian organization with

respect to expenditures specifically permitted by other Federal

law.




    13.        Reasonable compensation means, with respect to a

regularly employed officer or employee of any person,

compensation that is consistent with the normal compensation for

such officer or employee for work that is not furnished to, not

funded by, or not furnished in cooperation with the Federal

Government. 




    14.        Reasonable payment means, with respect to

professional and other technical services, a payment in an amount

that is consistent with the amount normally paid for such

services in the private sector.




    15.         Recipient includes all contractors, subcontractors at

any tier, and subgrantees at any tier of the recipient of funds

received in connection with a Federal contract, grant, loan, or

cooperative agreement. The term excludes an Indian tribe, tribal

organization, or any other Indian organization with respect to

expenditures specifically permitted by other Federal law. 




    16.        Regularly employed means, with respect to an officer

or employee of a person requesting or receiving a Federal

contract, grant, loan, or cooperative agreement or a commitment

providing for the United States to insure or guarantee a loan, an

officer or employee who is employed by such person for at least

130 working days within one year immediately preceding the date

of the submission that initiates agency consideration of such

person for receipt of such contract, grant, loan, cooperative

agreement, loan insurance commitment, or loan guarantee

commitment. An officer or employee who is employed by such person

for less than 130 working days within one year immediately

preceding the date of the submission that initiates agency

consideration of such person shall be considered to be regularly

employed as soon as he or she is employed by such person for 130

working days. 




    17.         State means a State of the United States, the

District of Columbia, the Commonwealth of Puerto Rico, a

territory or possession of the United States, an agency or

instrumentality of a State, and a multi-State, regional, or

interstate entity having governmental duties and powers. 


    

___.110  Certification and disclosure.


  • Each person shall file a certification, and a

disclosure form, if required, with each submission that initiates

agency consideration of such person for: 


      


    1.  Award of a Federal contract, grant, or cooperative

agreement exceeding $100,000; or 




    2.   An award of a Federal loan or a commitment providing

for the United States to insure or guarantee a loan exceeding

$150,000. 


    


  • Each person shall file a certification, and a

disclosure form, if required, upon receipt by such person of: 


      


    1. A Federal contract, grant, or cooperative agreement

exceeding $100,000; or 




    2.         A Federal loan or a commitment providing for the

United States to insure or guarantee a loan exceeding $150,000,

unless such person previously filed a certification, and a

disclosure form, if required, under paragraph (a) of this

section. 


    


  •       Each person shall file a disclosure form at the end

of each calendar quarter in which there occurs any event that

requires disclosure or that materially affects the accuracy of

the information contained in any disclosure form previously filed

by such person under paragraphs (a) or (b) of this section. An

event that materially affects the accuracy of the information

reported includes: 


      


    1.  A cumulative increase of $25,000 or more in the

amount paid or expected to be paid for influencing or attempting

to influence a covered Federal action; or 




    2.        A change in the person(s) or individual(s)

influencing or attempting to influence a covered Federal action;

or, 




    3.        A change in the officer(s), employee(s), or Member(s)

contacted to influence or attempt to influence a covered Federal

action. 


    


  •       Any person who requests or receives from a person

referred to in paragraphs (a) or (b) of this section: 


      


    1. A subcontract exceeding $100,000 at any tier under a

Federal contract; 




    2.         A subgrant, contract, or subcontract exceeding

$100,000 at any tier under a Federal grant; 




    3.        A contract or subcontract exceeding $100,000 at any

tier under a Federal loan exceeding $150,000; or, 




    4.        A contract or subcontract exceeding $100,000 at any

tier under a Federal cooperative agreement,



shall file a certification, and a disclosure form, if required,

to the next tier above.


    


  • All disclosure forms, but not certifications, shall

be forwarded from tier to tier until received by the person

referred to in paragraphs (a) or (b) of this section. That person

shall forward all disclosure forms to the agency.




  •        Any certification or disclosure form filed under

paragraph (e) of this section shall be treated as a material

representation of fact upon which all receiving tiers shall rely.

All liability arising from an erroneous representation shall be

borne solely by the tier filing that representation and shall not

be shared by any tier to which the erroneous representation is

forwarded. Submitting an erroneous certification or disclosure

constitutes a failure to file the required certification or

disclosure, respectively. If a person fails to file a required

certification or disclosure, the United States may pursue all

available remedies, including those authorized by section 1352,

title 31, U.S. Code.




  •         For awards and commitments in process prior to

December 23, 1989, but not made before that date, certifications

shall be required at award or commitment, covering activities

occurring between December 23, 1989, and the date of award or

commitment. However, for awards and commitments in process prior

to the December 23, 1989 effective date of these provisions, but

not made before December 23, 1989, disclosure forms shall not be

required at time of award or commitment but shall be filed within

30 days.




  •        No reporting is required for an activity paid for

with appropriated funds if that activity is allowable under

either Subpart B or C.




    Subpart B -- Activities by Own Employees
    



___.200   Agency and legislative liaison.




  • The prohibition on the use of appropriated funds, in

93.100 (a), does not apply in the case of a payment of reasonable

compensation made to an officer or employee of a person

requesting or receiving a Federal contract, grant, loan, or

cooperative agreement if the payment is for agency and

legislative liaison activities not directly related to a covered

Federal action.




  •         For purposes of paragraph (a) of this section,

providing any information specifically requested by an agency or

Congress is allowable at any time.




  •        For purposes of paragraph (a) of this section, the

following agency and legislative liaison activities are allowable

at any time only where they are not related to a specific

solicitation for any covered Federal action:


      


    1.          Discussing with an agency (including individual

demonstrations) the qualities and characteristics of the person's

products or services, conditions or terms of sale, and service

capabilities; and, 




    2.        Technical discussions and other activities regarding

the application or adaptation of the person's products or

services for an agency's use.


    


  •  For purposes of paragraph (a) of this section, the

following agencies and legislative liaison activities are

allowable only where they are prior to formal solicitation of any

covered Federal action:


      


    1. Providing any information not specifically requested

but necessary for an agency to make an informed decision about

initiation of a covered Federal action; 




    2.         Technical discussions regarding the preparation of an

unsolicited proposal prior to its official submission; and, 




    3.        Capability presentations by persons seeking awards

from an agency pursuant to the provisions of the Small Business

Act, as amended by Public Law 95 - 507 and other subsequent

amendments. 


    


  • Only those activities expressly authorized by this

section are allowable under this section.



___.205   Professional and technical services.


  •         The prohibition on the use of appropriated funds, in

93.100 (a), does not apply in the case of a payment of reasonable

compensation made to an officer or employee of a person

requesting or receiving a Federal contract, grant, loan, or

cooperative agreement or an extension, continuation, renewal,

amendment, or modification of a Federal contract, grant, loan, or

cooperative agreement if payment is for professional or technical

services rendered directly in the preparation, submission, or

negotiation of any bid, proposal, or application for that Federal

contract, grant, loan, or cooperative agreement or for meeting

requirements imposed by or pursuant to law as a condition for

receiving that Federal contract, grant, loan, or cooperative

agreement. 




  •         For purposes of paragraph (a) of this section,

professional and technical services shall be limited to advice

and analysis directly applying any professional or technical

discipline. For example, drafting of a legal document

accompanying a bid or proposal by a lawyer is allowable.

Similarly, technical advice provided by an engineer on the

performance or operational capability of a piece of equipment

rendered directly in the negotiation of a contract is allowable.

However, communications with the intent to influence made by a

professional (such as a licensed lawyer) or a technical person

(such as a licensed accountant) are not allowable under this

section unless they provide advice and analysis directly applying

their professional or technical expertise and unless the advice

or analysis is rendered directly and solely in the preparation,

submission or negotiation of a covered Federal action. Thus, for

example, communications with the intent to influence made by a

lawyer that do not provide legal advice or analysis directly and

solely related to the legal aspects of his or her client's

proposal, but generally advocate one proposal over another are

not allowable under this section because the lawyer is not

providing professional legal services. Similarly, communications

with the intent to influence made by an engineer providing an

engineering analysis prior to the preparation or submission of a

bid or proposal are not allowable under this section since the

engineer is providing technical services but not directly in the

preparation, submission or negotiation of a covered Federal

action.




  •        Requirements imposed by or pursuant to law as a

condition for receiving a covered Federal award include those

required by law or regulation, or reasonably expected to be

required by law or regulation, and any other requirements in the

actual award documents.




  •         Only those services expressly authorized by this

section are allowable under this section.



___.210  Reporting.



        No reporting is required with respect to payments of

reasonable compensation made to regularly employed officers or

employees of a person.




    Subpart C -- Activities by Other Than Own Employees
    



___.300  Professional and technical services.


  •  The prohibition on the use of appropriated funds, in

___.100 (a), does not apply in the case of any reasonable payment

to a person, other than an officer or employee of a person

requesting or receiving a covered Federal action, if the payment

is for professional or technical services rendered directly in

the preparation, submission, or negotiation of any bid, proposal,

or application for that Federal contract, grant, loan, or

cooperative agreement or for meeting requirements imposed by or

pursuant to law as a condition for receiving that Federal

contract, grant, loan, or cooperative agreement.




  •        The reporting requirements in ___.110 (a) and (b)

regarding filing a disclosure form by each person, if required,

shall not apply with respect to professional or technical

services rendered directly in the preparation, submission, or

negotiation of any commitment providing for the United States to

insure or guarantee a loan.




  •        For purposes of paragraph (a) of this section,

professional and technical services shall be limited to advice

and analysis directly applying any professional or technical

discipline. For example, drafting or a legal document

accompanying a bid or proposal by a lawyer is allowable.

Similarly, technical advice provided by an engineer on the

performance or operational capability of a piece of equipment

rendered directly in the negotiation of a contract is allowable.

However, communications with the intent to influence made by a

professional (such as a licensed lawyer) or a technical person

(such as a licensed accountant) are not allowable under this

section unless they provide advice and analysis directly applying

their professional or technical expertise and unless the advice

or analysis is rendered directly and solely in the preparation,

submission or negotiation of a covered Federal action. Thus, for

example, communications with the intent to influence made by a

lawyer that do not provide legal advice or analysis directly and

solely related to the legal aspects of his or her client's

proposal, but generally advocate one proposal over another are

not allowable under this section because the lawyer is not

providing professional legal services. Similarly, communications

with the intent to influence made by an engineer providing an

engineering analysis prior to the preparation or submission of a

bid or proposal are not allowable under this section since the

engineer is providing technical services but not directly in the

preparation, submission or negotiation of a covered Federal

action.




  •         Requirements imposed by or pursuant to law as a

condition for receiving a covered Federal award include those

required by law or regulation, or reasonably expected to be

required by law or regulation, and any other requirements in the

actual award documents.




  •        Persons other than officers or employees of a person

requesting or receiving a covered Federal action include

consultants and trade associations.




  •         Only those services expressly authorized by this

section are allowable under this section.




    Subpart D -- Penalties and Enforcement
    



___.400  Penalties.


  •          Any person who makes an expenditure prohibited herein

shall be subject to a civil penalty of not less than $10,000 and

not more than $100,000 for each such expenditure.




  •         Any person who fails to file or amend the disclosure

form (see Appendix B to this part) to be filed or amended if

required herein, shall be subject to a civil penalty of not less

than $10,000 and not more than $100,000 for each such failure.




  •         A filing or amended filing on or after the date on

which an administrative action for the imposition of a civil

penalty is commenced does not prevent the imposition of such

civil penalty for a failure occurring before that date. An

administrative action is commenced with respect to a failure when

an investigating official determines in writing to commence an

investigation of an allegation of such failure.




  •         In determining whether to impose a civil penalty, and

the amount of any such penalty, by reason of a violation by any

person, the agency shall consider the nature, circumstances,

extent, and gravity of the violation, the effect on the ability

of such person to continue in business, any prior violations by

such person, the degree of culpability of such person, the

ability of the person to pay the penalty, and such other matters

as may be appropriate.




  •         First offenders under paragraphs (a) or (b) of this

section shall be subject to a civil penalty of $10,000, absent

aggravating circumstances. Second and subsequent offenses by

persons shall be subject to an appropriate civil penalty between

$10,000 and $100,000, as determined by the agency head or his or

her designee.




  •         An imposition of a civil penalty under this section

does not prevent the United States from seeking any other remedy

that may apply to the same conduct that is the basis for the

imposition of such civil penalty.



___.405   Penalty procedures.



        Agencies shall impose and collect civil penalties

pursuant to the provisions of the Program Fraud and Civil

Remedies Act, 31 U.S.C. sections 3803 (except subsection (c)),

3804, 3805, 3806, 3807, 3808, and 3812, insofar as these

provisions are not inconsistent with the requirements herein.



___.410   Enforcement.



        The head of each agency shall take such actions as are

necessary to ensure that the provisions herein are vigorously

implemented and enforced in that agency.




    Subpart E -- Exemptions
    



___.500   Secretary of Defense.




  •  The Secretary of Defense may exempt, on a

case-by-case basis, a covered Federal action from the prohibition

whenever the Secretary determines, in writing, that such an

exemption is in the national interest. The Secretary shall

transmit a copy of each such written exemption to Congress

immediately after making such a determination.




  •         The Department of Defense may issue supplemental

regulations to implement paragraph (a) of this section.




    Subpart F -- Agency Reports
    



___.600   Semi-annual compilation.


  • The head of each agency shall collect and compile the

disclosure reports (see Appendix B to this part) and, on May 31

and November 30 of each year, submit to the Secretary of the

Senate and the Clerk of the House of Representatives a report

containing a compilation of the information contained in the

disclosure reports received during the six-month period ending on

March 31 or September 30, respectively, of that year.




  •         The report, including the compilation, shall be

available for public inspection 30 days after receipt of the

report by the Secretary and the Clerk.




  •        Information that involves intelligence matters shall

be reported only to the Select Committee on Intelligence of the

Senate, the Permanent Select Committee on Intelligence of the

House of Representatives, and the Committees on Appropriations of

the Senate and the House of Representatives in accordance with

procedures agreed to by such committees. Such information shall

not be available for public inspection.




  •         Information that is classified under Executive Order

12356 or any successor order shall be reported only to the

Committee on Foreign Relations of the Senate and the Committee on

Foreign Affairs of the House of Representatives or the Committees

on Armed Services of the Senate and the House of Representatives

(whichever such committees have jurisdiction of matters involving

such information) and to the Committees on Appropriations of the

Senate and the House of Representatives in accordance with

procedures agreed to by such committees. Such information shall

not be available for public inspection.




  •         The first semi-annual compilation shall be submitted

on May 31, 1990, and shall contain a compilation of the

disclosure reports received from December 23, 1989 to March 31,

1990.




  •         Major agencies, designated by the Office of

Management and Budget (OMB), are required to provide

machine-readable compilations to the Secretary of the Senate and

the Clerk of the House of Representatives no later than with the

compilations due on May 31, 1991. OMB shall provide detailed

specifications in a memorandum to these agencies.




  •         Non-major agencies are requested to provide

machine-readable compilations to the Secretary of the Senate and

the Clerk of the House of Representatives.




  •  Agencies shall keep the originals of all disclosure

reports in the official files of the agency.



___.605   Inspector General report.




  •  The Inspector General, or other official as specified

in paragraph (b) of this section, of each agency shall prepare

and submit to Congress each year, commencing with submission of

the President's Budget in 1991, an evaluation of the compliance

of that agency with, and the effectiveness of, the requirements

herein. The evaluation may include any recommended changes that

may be necessary to strengthen or improve the requirements.




  •         In the case of an agency that does not have an

Inspector General, the agency official comparable to an Inspector

General shall prepare and submit the annual report, or, if there

is no such comparable official, the head of the agency shall

prepare and submit the annual report.




  •         The annual report shall be submitted at the same time

the agency submits its annual budget justifications to Congress.




  •         The annual report shall include the following: All

alleged violations relating to the agency's covered Federal

actions during the year covered by the report, the actions taken

by the head of the agency in the year covered by the report with

respect to those alleged violations and alleged violations in

previous years, and the amounts of civil penalties imposed by the

agency in the year covered by the report.


    


    



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