[Federal Register: August 17, 2007 (Volume 72, Number 159)]
[Rules and Regulations]
[Page 46327-46332]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17au07-20]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 3, 12, and 52
[FAC 2005-19; FAR Case 2005-035; Item II; Docket 2006-0020; Sequence 8]
RIN 9000-AD76
Federal Acquisition Regulation; FAR Case 2005-035, Changes to
Lobbying Restrictions
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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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) in order to be
consistent with the Lobbying Disclosure Act of 1995 and the Office of
Management and Budget (OMB) Interim Final Guidance, and to improve
clarity of the regulation through improved use of plain language and
compliance with FAR drafting conventions.
DATES: Effective Date: September 17, 2007.
FOR FURTHER INFORMATION CONTACT Mr. Ernest Woodson, Procurement
Analyst, at (202) 501-3775, for clarification of content. For
information pertaining to status or publication schedules, contact the
FAR Secretariat at (202) 501-4755. Please cite FAC 2005-19, FAR case
2005-035.
SUPPLEMENTARY INFORMATION:
A. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 71 FR 54255 on September 14, 2006. The final rule is not
significantly different from the proposed rule. Among the various
changes, this final rule--
Includes the new concept of ``lobbying contact'' and
brings in the concept of registrants under the Lobbying Act of 1995.
Includes the OMB guidance that the term ``appropriated
funds'' does not include profit or fee from a covered Federal action
and that to the extent the contractor can demonstrate that the
contractor has sufficient monies, other than Federal appropriated
funds, the Government will assume that these other monies were spent
for any influencing activities that would be unallowable if paid for
with Federal appropriated funds.
Formalizes in the regulations the changes that were
already incorporated in the OMB Standard Form (SF) LLL, Disclosure of
Lobbying Activities.
Removes 31 U.S.C. 1352, Limitations on Payment to
Influence Certain Federal Transactions, from the list of laws that are
inapplicable to subcontracts for the acquisition of commercial items.
Makes the text, provisions, and clauses, easier to
understand, for both contracting officers and offerors/contractors.
The comment period closed on November 13, 2006. We received 3
public comments, each addressing a different aspect of the rule. The
Councils addressed these comments in the formulation of the final rule
as follows:
Commercial contracts
Comment: One respondent comments that the rule deletes in FAR
12.504(a), paragraph (3) ``31 U.S.C. 1352, Limitation on Payments to
Influence Certain Federal Transactions (see FAR Subpart 3.8),'' thereby
making lobbying payments unacceptable under commercial subcontracts
acquired under FAR Part 12. The respondent is concerned that although
the rule requires a certification and disclosure, it does not include
any means to enforce the prohibition on commercial contracts.
Response: The rule provides civil and criminal penalties for any
person who makes an expenditure prohibited by the rule.
The requirements of the law are generally conveyed to the
contractor through clauses. Paragraph (e) of FAR 52.212-3, Offeror
Representations and Certifications--Commercial Items, already provides
for offeror lobbying certification. The proposed rule also added
language to paragraph (e) relating to the requirement to submit OMB SF
[[Page 46328]]
LLL, Disclosure of Lobbying Activities, if any registrants under the
Lobbying Disclosure Act of 1995 have made lobbying contact on behalf of
the offeror with respect to the contract. The rule provides that
contractors may rely without penalty on the representation made by
their subcontractors in the certification and representations. FAR
52.212-5, Contract Terms and Conditions Required to Implement Statute
or Executive Orders--Commercial Items, does not require inclusion of
FAR 52.203-12, Limitation on Payments to Influence Certain Federal
Transactions, in commercial contracts awarded using Part 12 procedures.
However, FAR 52.212-4, Contract Terms and Conditions--Commercial Items,
does require compliance with 31 U.S.C. 1352, relating to limitations on
the use of appropriated funds to influence certain Federal contracts in
paragraph 52.212-4(r), Compliance with laws unique to Government
contracts. Therefore, even without FAR 52.203-12 and the specific flow
down in paragraph 52.203-12(g) of the requirement for the contractor to
obtain from subcontractors a declaration, including the certification
and disclosure in paragraphs (b) and (c) of the provision at FAR
52.203-11, Certification and Disclosure Regarding Payments to Influence
Certain Federal Transactions, the requirement to comply with the law is
imposed on the prime contractor, including obtaining necessary
documentation from subcontractors, to the extent required by law.
Due date for quarterly reports
Comment: One respondent believes that there is a practical problem
in FAR 52.203-12(d)(2), requiring the prime contractor to report to the
contracting officer by the end of the quarter in which the
subcontractors have reported to the prime contractor. The respondent is
concerned that if the subcontractor does not report until the last day
of the quarter, it will be impossible for the prime contractor to meet
the proposed reporting obligation. The respondent recommends changing
the reporting paragraph to read ``the Prime Contractors shall submit a
copy of all disclosures to the Contracting Officer as soon as possible
after the end of the calendar quarter in which the disclosure form is
submitted by the subcontractor.''
Response: To clarify this point, the Councils have revised the
clause to require submission within 30 days after the end of the
calendar quarter.
Grants, loans, and cooperative agreements
Comment: Another respondent strongly supports the rule, and the
fact that ``covered Federal Action'' also includes grants and
cooperative agreements. The respondent suggests that the presumption
stated in the 1990 OMB Interim Guidance should be extended to OMB
Circular A-122, Cost Principles for Non-Profit Organizations. This
presumption was that to the extent a person can demonstrate that the
person has sufficient monies, other than Federal appropriated funds,
the Government shall assume that these other monies were spent for any
influencing activities unallowable with the Federal appropriated funds.
The respondent also suggests that the FAR rule should be revised to
include the additional statement from OMB`s clarifying notice of June
15, 1990, that ``Profits, and fees that constitute profits, earned
under Federal grants, loans, and cooperative agreements are not
considered appropriated funds.''
Response: The respondent's first suggestion regarding OMB Circular
A-122 is outside the scope of the rule. However, the respondent`s
suggestion will be referred to OMB for its consideration.
Although, the definition of covered Federal action correctly
includes actions other than contracts, the respondent's request to
include policies regarding grants, loans, and cooperative agreements in
the FAR rule exceeds the appropriate scope of the FAR rule. The FAR
only governs acquisition (acquiring by contract with appropriated funds
of supplies or services (including construction) by and for the use of
the Federal Government through purchase or lease). The FAR does not
govern Federal grants, loans, or cooperative agreements.
Editorial corrections
In addition to the changes made in response to public comment, the
Councils agreed to various editorial corrections:
Definition of ``recipient'' at 3.801 and 52.203-12(a)--
insert ``are'' in last line between ``and'' and ``permitted''.
3.802(a) and 52.203-12(b) introductory text--Insert
``any'' in the fifth line after ``in connection with'' and before
``Federal actions''.
3.802(a)(2) and 52.203-12(b)(2)--Add at the end of
sentence ``* * * that would be unallowable if paid for with Federal
appropriated funds'' and change ``the Government shall'' to ``the
Government will'' in the clause.
3.803(a)(2)(iii) and 52.203-12(c)(2)(iii)--Revise
``paragraph (a)(2) of this section'' to ``this paragraph (a)(2)'' and
revise ``paragraph (c)(2) of this clause'' to ``this paragraph
(c)(2)''.
52.203-12(a) Definition of ``Agency''--Add Acronym ``FAR''
after ``Federal Acquisition Regulation''. The acronym is used several
times subsequently in the clause.
52.203-12(c)(1)(v)--Add after the text ``Making capability
presentations'' ``prior to formal solicitation of any covered Federal
action'' for consistency with the exception in the text at
3.803(a)(1)(v).
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
DoD, GSA, and NASA certify that this final rule will not 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 this rule mainly implements improvements in clarity and
consistency. The number of small entities paying for lobbying with non-
Federal funds is estimated to be near zero. The rule does not impose
new requirements that impose a burden on contractors. No comments were
received with regard to impact on small business.
C. Paperwork Reduction Act
The Paperwork Reduction Act does apply; however, these changes to
the FAR do not impose additional information collection requirements to
the paperwork burden previously approved under OMB Control Number 0348-
0046.
OMB claimed a reduction in the information collection requirement
upon issuance of the interim final amendments to OMB's Governmentwide
guidance on lobbying in January 1996, due to the simplified SF LLL,
Disclosure of Lobbying Activities.
List of Subjects in 48 CFR Parts 3, 12, and 52.
Government procurement.
Dated: July 30, 2007.
Al Matera,
Acting Director, Contract Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 3, 12, and 52 as set
forth below:
0
1. The authority citation for 48 CFR parts 3, 12, and 52 continues to
read as follows:
[[Page 46329]]
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
0
2. Revise section 3.800 to read as follows:
3.800 Scope of subpart.
This subpart prescribes policies and procedures implementing 31
U.S.C. 1352, ``Limitation on use of appropriated funds to influence
certain Federal contracting and financial transactions.''
0
3. Revise section 3.801 to read as follows:
3.801 Definitions.
As used in this subpart--
Agency means executive agency as defined in 2.101.
Covered Federal action means any of the following actions:
(1) Awarding any Federal contract.
(2) Making any Federal grant.
(3) Making any Federal loan.
(4) Entering into any cooperative agreement.
(5) Extending, continuing, renewing, amending, or modifying any
Federal contract, grant, loan, or cooperative agreement.
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) and include Alaskan Natives.
Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before 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 covered Federal action.
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.
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, United States Code, including a position under a
temporary appointment.
(2) A member of the uniformed services, as defined in subsection
101(3), Title 37, United States Code.
(3) A special Government employee, as defined in section 202, Title
18, United States Code.
(4) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act, Title 5, United
States Code, appendix 2.
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 eligible to receive Federal contracts,
grants, cooperative agreements, or loans from an agency, but only with
respect to expenditures by such tribe or organization that are made for
purposes specified in paragraph 3.802(a) and are permitted by other
Federal law.
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.
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.
Recipient includes the contractor and all subcontractors. This term
excludes an Indian tribe, tribal organization, or any other Indian
organization eligible to receive Federal contracts, grants, cooperative
agreements, or loans from an agency, but only with respect to
expenditures by such tribe or organization that are made for purposes
specified in paragraph 3.802(a) and are permitted by other Federal law.
Regularly employed means, with respect to an officer or employee of
a person requesting or receiving a Federal contract, an officer or
employee who is employed by such person for at least 130 working days
within 1 year immediately preceding the date of the submission that
initiates agency consideration of such person for receipt of such
contract. An officer or employee who is employed by such person for
less than 130 working days within 1 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.
State means a State of the United States, the District of Columbia,
an outlying area of the United States, an agency or instrumentality of
a State, and multi-State, regional, or interstate entity having
governmental duties and powers.
0
4. Revise section 3.802 to read as follows:
3.802 Statutory prohibition and requirement.
(a) 31 U.S.C. 1352 prohibits a recipient of a Federal contract,
grant, loan, or cooperative agreement from using appropriated funds 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
covered Federal actions.
(1) For purposes of this subpart the term ``appropriated funds''
does not include profit or fee from a covered Federal action.
(2) To the extent a person can demonstrate that the person has
sufficient monies, other than Federal appropriated funds, the
Government shall assume that these other monies were spent for any
influencing activities that would be unallowable if paid for with
Federal appropriated funds.
(b) 31 U.S.C. 1352 also requires offerors to furnish a declaration
consisting of both a certification and a disclosure, with periodic
updates of the disclosure after contract award. These requirements are
contained in the provision at 52.203-11, Certification and Disclosure
Regarding Payments to Influence Certain Federal Transactions, and the
clause at 52.203-12, Limitation on Payments to Influence Certain
Federal Transactions.
0
5. Revise section 3.803 to read as follows:
3.803 Exceptions.
(a) The prohibition of paragraph 3.802(a) does not apply under the
following conditions:
(1) Agency and legislative liaison by own employees. (i) Payment of
reasonable compensation made to an officer or employee of a person
requesting or receiving a covered Federal action if the payment is for
agency and legislative liaison activities not directly related to a
covered Federal action. For purposes of this paragraph, providing any
information specifically requested by an agency or Congress is
permitted at any time.
(ii) Participating with an agency in discussions that are not
related to a specific solicitation for any covered Federal action, but
that concern--
[[Page 46330]]
(A) The qualities and characteristics (including individual
demonstrations) of the person's products or services, conditions or
terms of sale, and service capabilities; or
(B) The application or adaptation of the person's products or
services for an agency's use.
(iii) Providing prior to formal solicitation of any covered Federal
action any information not specifically requested but necessary for an
agency to make an informed decision about initiation of a covered
Federal action.
(iv) Participating in technical discussions regarding the
preparation of an unsolicited proposal prior to its official
submission.
(v) Making capability presentations prior to formal solicitation of
any covered Federal action when seeking an award from an agency
pursuant to the provisions of the Small Business Act, as amended by
Pub. L. 95-507, and subsequent amendments.
(2) Professional and technical services. (i) Payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a covered Federal action, 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
action or for meeting requirements imposed by or pursuant to law as a
condition for receiving that Federal action;
(ii) 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 action, or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal action. Persons other than officers or employees of a
person requesting or receiving a covered Federal action include
consultants and trade associations.
(iii) As used in paragraph (a)(2) of this section ``professional
and technical services'' are 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 or a technical person 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.
(iv) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation and any other requirements in the actual award documents.
(b) Only those communications and services expressly authorized by
paragraph (a) of this section are permitted.
(c) The disclosure requirements of paragraph 3.802(b) do not apply
with respect to payments of reasonable compensation made to regularly
employed officers or employees of a person.
0
6. Revise section 3.804 to read as follows:
3.804 Policy.
The contracting officer shall obtain certifications and disclosures
as required by the provision at 52.203-11, Certification and Disclosure
Regarding Payments to Influence Certain Federal Transactions, prior to
the award of any contract exceeding $100,000.
0
7. Revise section 3.805 to read as follows:
3.805 Exemption.
The Secretary of Defense may exempt, on a case-by-case basis, a
covered Federal action from the prohibitions of this subpart whenever
the Secretary determines, in writing, that such an exemption is in the
national interest. The Secretary shall transmit a copy of the exemption
to Congress immediately after making the determination.
0
8. Revise section 3.806 to read as follows:
3.806 Processing suspected violations.
The contracting officer shall report suspected violations of the
requirements of 31 U.S.C. 1352 in accordance with agency procedures.
0
9. Revise section 3.808 to read as follows:
3.808 Solicitation provision and contract clause.
(a) Insert the provision at 52.203-11, Certification and Disclosure
Regarding Payments to Influence Certain Federal Transactions, in
solicitations expected to exceed $100,000.
(b) Insert the clause at 52.203-12, Limitation on Payments to
Influence Certain Federal Transactions, in solicitations and contracts
expected to exceed $100,000.
PART 12--ACQUISITION OF COMMERCIAL ITEMS
12.504 [Amended]
0
10. Amend section 12.504 by removing and reserving paragraph (a)(3).
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
11. Revise section 52.203-11 to read as follows:
52.203-11 Certification and Disclosure Regarding Payments to Influence
Certain Federal Transactions.
As prescribed in 3.808(a), insert the following provision:
CERTIFICATION AND DISCLOSURE REGARDING PAYMENTS TO INFLUENCE
CERTAIN FEDERAL TRANSACTIONS (SEP 2007)
(a) Definitions. As used in this provision--``Lobbying contact''
has the meaning provided at 2 U.S.C. 1602(8). The terms ``agency,''
``influencing or attempting to influence,'' ``officer or employee of an
agency,'' ``person,'' ``reasonable compensation,'' and ``regularly
employed'' are defined in the FAR clause of this solicitation entitled
``Limitation on Payments to Influence Certain Federal Transactions''
(52.203-12).
(b) Prohibition. The prohibition and exceptions contained in the
FAR clause of this solicitation entitled ``Limitation on Payments to
Influence Certain Federal Transactions'' (52.203-12) are hereby
incorporated by reference in this provision.
(c) Certification. The offeror, by signing its offer, hereby
certifies to the best of its knowledge and belief that no Federal
appropriated funds have been paid or will be paid to 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
[[Page 46331]]
of a Member of Congress on its behalf in connection with the awarding
of this contract.
(d) Disclosure. If any registrants under the Lobbying Disclosure
Act of 1995 have made a lobbying contact on behalf of the offeror with
respect to this contract, the offeror shall complete and submit, with
its offer, OMB Standard Form LLL, Disclosure of Lobbying Activities, to
provide the name of the registrants. The offeror need not report
regularly employed officers or employees of the offeror to whom
payments of reasonable compensation were made.
(e) Penalty. Submission of this certification and disclosure is a
prerequisite for making or entering into this contract imposed by 31
U.S.C. 1352. Any person who makes an expenditure prohibited under this
provision or who fails to file or amend the disclosure required to be
filed or amended by this provision, shall be subject to a civil penalty
of not less than $10,000, and not more than $100,000, for each such
failure.
(End of provision)
0
12. Revise section 52.203-12 to read as follows:
52.203-12 Limitation on Payments to Influence Certain Federal
Transactions.
As prescribed in 3.808(b), insert the following clause:
LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS
(SEP 2007)
(a) Definitions. As used in this clause--
Agency means executive agency as defined in Federal Acquisition
Regulation (FAR) 2.101.
Covered Federal action means any of the following actions:
(1) Awarding any Federal contract.
(2) Making any Federal grant.
(3) Making any Federal loan.
(4) Entering into any cooperative agreement.
(5) Extending, continuing, renewing, amending, or modifying any
Federal contract, grant, loan, or cooperative agreement.
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) and include Alaskan Natives.
Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before 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 covered Federal action.
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.
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, United States Code, including a position under a
temporary appointment.
(2) A member of the uniformed services, as defined in subsection
101(3), Title 37, United States Code.
(3) A special Government employee, as defined in section 202, Title
18, United States Code.
(4) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act, Title 5, United
States Code, appendix 2.
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 eligible to receive Federal contracts,
grants, cooperative agreements, or loans from an agency, but only with
respect to expenditures by such tribe or organization that are made for
purposes specified in paragraph (b) of this clause and are permitted by
other Federal law.
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.
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.
Recipient includes the Contractor and all subcontractors. This term
excludes an Indian tribe, tribal organization, or any other Indian
organization eligible to receive Federal contracts, grants, cooperative
agreements, or loans from an agency, but only with respect to
expenditures by such tribe or organization that are made for purposes
specified in paragraph (b) of this clause and are permitted by other
Federal law.
Regularly employed means, with respect to an officer or employee of
a person requesting or receiving a Federal contract, an officer or
employee who is employed by such person for at least 130 working days
within 1 year immediately preceding the date of the submission that
initiates agency consideration of such person for receipt of such
contract. An officer or employee who is employed by such person for
less than 130 working days within 1 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.
State means a State of the United States, the District of Columbia,
or an outlying area of the United States, an agency or instrumentality
of a State, and multi-State, regional, or interstate entity having
governmental duties and powers.
(b) Prohibition. 31 U.S.C. 1352 prohibits a recipient of a Federal
contract, grant, loan, or cooperative agreement from using appropriated
funds 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 covered Federal actions. In accordance with 31
U.S.C. 1352, the Contractor shall not use appropriated funds 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 the
award of this contractor the extension, continuation, renewal,
amendment, or modification of this contract.
(1) The term appropriated funds does not include profit or fee from
a covered Federal action.
(2) To the extent the Contractor can demonstrate that the
Contractor has sufficient monies, other than Federal appropriated
funds, the Government will assume that these other monies were spent
for any influencing activities that would be unallowable if paid for
with Federal appropriated funds.
(c) Exceptions. The prohibition in paragraph (b) of this clause
does not apply under the following conditions:
(1) Agency and legislative liaison by Contractor employees. (i)
Payment of reasonable compensation made to an officer or employee of
the Contractor if the payment is for agency and legislative liaison
activities not directly
[[Page 46332]]
related to this contract. For purposes of this paragraph, providing any
information specifically requested by an agency or Congress is
permitted at any time.
(ii) Participating with an agency in discussions that are not
related to a specific solicitation for any covered Federal action, but
that concern--
(A) The qualities and characteristics (including individual
demonstrations) of the person's products or services, conditions or
terms of sale, and service capabilities; or
(B) The application or adaptation of the person's products or
services for an agency's use.
(iii) Providing prior to formal solicitation of any covered Federal
action any information not specifically requested but necessary for an
agency to make an informed decision about initiation of a covered
Federal action;
(iv) Participating in technical discussions regarding the
preparation of an unsolicited proposal prior to its official
submission; and
(v) Making capability presentations prior to formal solicitation of
any covered Federal action by persons seeking awards from an agency
pursuant to the provisions of the Small Business Act, as amended by
Pub.L. 95-507, and subsequent amendments.
(2) Professional and technical services. (i) A payment of
reasonable compensation made to an officer or employee of a person
requesting or receiving a covered Federal action or an extension,
continuation, renewal, amendment, or modification of a covered Federal
action, 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 action or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal action.
(ii) Any reasonable payment to a person, other than an officer or
employee of a person requesting or receiving a covered Federal action
or an extension, continuation, renewal, amendment, or modification of 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
action or for meeting requirements imposed by or pursuant to law as a
condition for receiving that Federal action. Persons other than
officers or employees of a person requesting or receiving a covered
Federal action include consultants and trade associations.
(iii) As used in paragraph (c)(2) of this clause, ``professional
and technical services'' are limited to advice and analysis directly
applying any professional or technical discipline (for examples, see
FAR 3.803(a)(2)(iii)).
(iv) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation and any other requirements in the actual award documents.
(3) Only those communications and services expressly authorized by
paragraphs (c)(1) and (2) of this clause are permitted.
(d) Disclosure. (1) If the Contractor did not submit OMB Standard
Form LLL, Disclosure of Lobbying Activities, with its offer, but
registrants under the Lobbying Disclosure Act of 1995 have subsequently
made a lobbying contact on behalf of the Contractor with respect to
this contract, the Contractor shall complete and submit OMB Standard
Form LLL to provide the name of the lobbying registrants, including the
individuals performing the services.
(2) If the Contractor did submit OMB Standard Form LLL disclosure
pursuant to paragraph (d) of the provision at FAR 52.203-11,
Certification and Disclosure Regarding Payments to Influence Certain
Federal Transactions, and a change occurs that affects Block 10 of the
OMB Standard Form LLL (name and address of lobbying registrant or
individuals performing services), the Contractor shall, at the end of
the calendar quarter in which the change occurs, submit to the
Contracting Officer within 30 days an updated disclosure using OMB
Standard Form LLL.
(e) Penalties. (1) Any person who makes an expenditure prohibited
under paragraph (b) of this clause or who fails to file or amend the
disclosure to be filed or amended by paragraph (d) of this clause shall
be subject to civil penalties as provided for by 31 U.S.C.1352. An
imposition of a civil penalty does not prevent the Government from
seeking any other remedy that may be applicable.
(2) Contractors may rely without liability on the representation
made by their subcontractors in the certification and disclosure form.
(f) Cost allowability. Nothing in this clause makes allowable or
reasonable any costs which would otherwise be unallowable or
unreasonable. Conversely, costs made specifically unallowable by the
requirements in this clause will not be made allowable under any other
provision.
(g) Subcontracts. (1) The Contractor shall obtain a declaration,
including the certification and disclosure in paragraphs (c) and (d) of
the provision at FAR 52.203-11, Certification and Disclosure Regarding
Payments to Influence Certain Federal Transactions, from each person
requesting or receiving a subcontract exceeding $100,000 under this
contract. The Contractor or subcontractor that awards the subcontract
shall retain the declaration.
(2) A copy of each subcontractor disclosure form (but not
certifications) shall be forwarded from tier to tier until received by
the prime Contractor. The prime Contractor shall, at the end of the
calendar quarter in which the disclosure form is submitted by the
subcontractor, submit to the Contracting Officer within 30 days a copy
of all disclosures. Each subcontractor certification shall be retained
in the subcontract file of the awarding Contractor.
(3) The Contractor shall include the substance of this clause,
including this paragraph (g), in any subcontract exceeding $100,000.
(End of clause)
0
13. Amend section 52.212-3 by revising the date of the provision and
paragraph (e) to read as follows:
52.212-3 Offeror Representations and Certifications--Commercial
Items.
* * * * *
OFFEROR REPRESENTATIONS AND CERTIFICATIONS--COMMERCIAL ITEMS
(SEP 2007)
* * * * *
(e) Certification Regarding Payments to Influence Federal
Transactions (31 U.S.C. 1352). (Applies only if the contract is
expected to exceed $100,000.) By submission of its offer, the offeror
certifies to the best of its knowledge and belief that no Federal
appropriated funds have been paid or will be paid to 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 on his or her behalf in connection
with the award of any resultant contract. If any registrants under the
Lobbying Disclosure Act of 1995 have made a lobbying contact on behalf
of the offeror with respect to this contract, the offeror shall
complete and submit, with its offer, OMB Standard Form LLL, Disclosure
of Lobbying Activities, to provide the name of the registrants. The
offeror need not report regularly employed officers or employees of the
offeror to whom payments of reasonable compensation were made.
* * * * *
[FR Doc. 07-3807 Filed 8-16-07; 8:45 am]
BILLING CODE 6820-EP-S