[Federal Register: September 14, 2006 (Volume 71, Number 178)]
[Proposed Rules]
[Page 54255-54260]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14se06-12]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 3, 12, and 52
[FAR Case 2005-035; 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: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to be consistent with the Lobbying
Disclosure Act of 1995 and the OMB Interim Final Guidance, and to
improve clarity of the regulation through improved use of plain
language and compliance with FAR drafting conventions.
DATES: Interested parties should submit written comments to the FAR
Secretariat on or before November 13, 2006 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments identified by FAR case 2005-035 by any of
the following methods:
Federal eRulemaking Portal:
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov. Search for this document at the
``Federal Acquisition Regulation'' agency and review the ``Document
Title'' column; click on the Document ID number. Click on ``Add
Comments''.
You may also search for any document using the ``Advanced search/
document search'' tab, selecting from the agency field ``Federal
Acquisition Regulation'', and typing the FAR case number in the keyword
field.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VIR), 1800 F Street, NW., Room 4035, ATTN: Laurieann
Duarte, Washington, DC 20405.
Instructions: Please submit comments only and cite FAR case 2005-
035 in all correspondence related to this case. All comments received
will be posted without change to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov, including
any personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT For clarification of content, contact
Mr. Ernest Woodson, Procurement Analyst, at (202) 501-3775. For
information pertaining to status or publication schedules, contact the
FAR Secretariat at (202) 501-4755. Please cite FAR case 2005-035.
SUPPLEMENTARY INFORMATION:
A. Background
The Byrd Amendment was enacted as section 319 of the Department of
Interior and Related Agencies Appropriations Act (Pub. L. 101-121),
which added a new section 1352 to title 31, United States Code,
entitled ``Limitation on use of appropriated funds to influence certain
Federal contracting and financial transactions''. Section 1352
prohibits the recipient of a Federal contract from using appropriated
funds to pay any person for influencing or attempting to influence an
officer or employee of the executive or legislative branches in
connection with the awarding of any Federal contract, the making of any
Federal grant or loan, the entering into of any cooperative agreement,
or the extension, continuation, renewal, amendment, or modification of
any Federal contract, grant, loan, or cooperative agreement. It
required OMB to issue guidance for agency implementation.
On December 18, 1989, OMB's published interim final
guidance.
On January 30, 1990, OMB's interim final guidance was
implemented in the FAR as an interim rule in FAC 84-55. FAC 84-55 added
FAR Subpart 3.8, the provision at FAR 52.203-11, Certification and
Disclosure Regarding Payments to Influence Certain Federal
Transactions, and the clause at FAR 52.203-12, Limitation on Payments
to Influence Certain Federal Transactions.
On June 12, 1990, the Administrator for Federal
Procurement Policy and the Acting Assistant Director for Financial
Management issued clarifications of the interim guidance. This
clarification was subsequently published as a notice in the Federal
Register at 55 FR 24540, June 15, 1990.
On December 19, 1995, Congress enacted the Lobbying
Disclosure Act of 1995 (Pub. L. 104-65).
On January 19, 1996, OMB issued interim final amendments
to its Governmentwide guidance (61 FR 1412).
The Lobbying Disclosure Act of 1995 provided rules on disclosure of
lobbying activities to influence the Federal Government, codified at 2
U.S.C. 1601 et seq., and also simplified the disclosure and reporting
requirements of 31 U.S.C. 1352.
Under the revised statute, the person must identify the
name of any registrant under the Lobbying Disclosure Act of 1995 who
has made lobbying contacts on behalf of the person, but need not
provide information with regard to amounts paid or descriptions of
services performed, including identification of who was contacted.
Agency head semi-annual compilations to Congress and
Inspector General (IG) annual reports to Congress were eliminated.
The interim final amendments to OMB's Governmentwide Guidance on
Lobbying made changes to the Standard Form (SF) LLL Disclosure of
Lobbying Activities, changing ``Name and Address of Lobbying Entity''
to ``Name and Address of Lobbying Registrant'' in item 10a, removing
the reference to a continuation sheet in block 10, and deleting blocks
12-15. The agency head and Inspector General reporting requirements
were not included in the FAR, so no FAR change was necessary to
implement their elimination. The interim final amendment did not
provide any suggested rewording of the lobbying disclosure provision or
clause.
A rule was published in the Federal Register at 70 FR 57455,
September 30, 2005, under FAR case 1989-093 to finalize the interim
rule that was published in the Federal Register at 55 FR 3190, January
30, 1990, to implement the Byrd Amendment. The final rule only made
minor corrections to the interim rule, recognizing that a new case
might be required to consider further changes to implement the OMB
clarifications of 1990, the Lobbying Disclosure Act of 1995, OMB's
Interim Final Amendments of 1996, and other clarifications.
In reviewing the need for further changes, the Councils reviewed
the Lobbying Disclosure Act of 1995, OMB Guidance, comments on the
prior case,
[[Page 54256]]
and prior agreements of the Councils as represented by a draft final
rule that was presented to the FAR Council on November 2, 2001, but was
not accepted by OFPP at that time. These changes represent a few
changes to implement the law and OMB Guidance, but primarily consist of
clarification, plain language changes, FAR drafting conventions, and
editorial corrections. The Councils have incorporated in the proposed
rule those changes that are necessary or beneficial, and identified the
rationale for each proposed change.
1. FAR 3.800, Scope of subpart. This section is amended to cite the
United States Code rather than the public law number. Although the
Lobbying Disclosure Act of 1995 also added newly codified sections at 2
U.S.C. 1601, et seq., the OMB Interim Final Amendments to OMB's
Governmentwide Guidance on Lobbying does not cite 2 U.S.C. 1601, et
seq. The FAR is still implementing 31 U.S.C. 1352, as amended.
2. FAR 3.801, Definitions.
``Agency'' and ``Covered Federal action''. This rule
proposes strictly editorial changes to these definitions.
``Indian tribe'' and ``tribal organization''. This
proposed rule corrects the cite from ``25 U.S.C. 450B'' to ``25 U.S.C.
450b''.
``Person'' and ``recipient''. The proposed rule revises
these definitions to be strictly consistent with the statute.
3. FAR 3.802, Prohibitions. This section is retitled and
reorganized into two sections for improved clarity.
Only paragraph (a) of 3.802 is a prohibition. Paragraph
(b) is a requirement for a declaration. Paragraph (c) contains
exceptions. This rule proposes to retitle 3.802 as ``Statutory
prohibition and requirement'' and add a new FAR 3.803 for the
exceptions.
FAR 3.802(a). Instead of adding a definition of
appropriated funds, this rule proposes to add the OMB explanation that
the term ``appropriated funds'' does not include profit or fee from a
covered Federal action, and the clarification 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
Federal appropriated funds.
FAR 3.802(b). The text of the FAR is addressed to the
contracting officer. Having referenced the provision and clause that
set forth the declaration requirements for offerors and contractors, it
is not necessary to repeat the details of the requirements in the text.
4. FAR 3.803, Certification and disclosure. The language in this
section is deleted as duplicative of the provision at FAR 52.203-11 and
clause at FAR 52.203-12. The text of the FAR is supposed to be
addressed to the contracting officer. Requirements for contractors are
set forth in provisions and clauses.
5. FAR 3.803, Exceptions. The exceptions have been revised and
redesignated as the FAR 3.803 to eliminate unnecessary duplication
within the text and also eliminate many of the current subdivision
identifiers that detract from the readability of the regulation.
6. FAR 3.804, Policy. This section is revised to remove paragraph
(b). Paragraph (b) was relevant when agencies were required to submit
reports to the Congress. This requirement was eliminated by the
Lobbying Disclosure Act.
7. FAR 3.805, Exemption. The proposed rule contains minor editorial
corrections to change ``section'' to ``subpart'' and eliminate the word
``such'' in two places.
8. FAR 3.806, Processing suspected violations. Minor plain language
improvements have put this requirement in active voice.
9. FAR 3.808, Solicitation provision and contract clause. The
proposed rule restates the provision and clause prescriptions in active
voice.
10. FAR 12.504, Applicability of certain laws to subcontracts for
the acquisition of commercial items.
41 U.S.C. 430, List of laws inapplicable to procurements of
commercial items in Federal Acquisition Regulations, requires in
paragraph (b) that the FAR must include a list of laws inapplicable to
commercial subcontracts. Covered laws shall be included on the list
unless the FAR Council makes a written determination that it is not in
the best interest of the Federal Government to exempt subcontracts from
that provision. Covered laws include laws that set forth policies,
procedures, requirements, or restrictions for the procurement of
property or services by the Federal Government and that do not--
Provide for criminal or civil penalties; or
Specifically refer to 41 U.S.C. 430 and nevertheless make
the law applicable to contracts for commercial items.
The current FAR 12.504, Applicability of certain laws to
subcontracts for the acquisition of commercial items, includes 31
U.S.C. 1352 as a law inapplicable to commercial items. Because 31
U.S.C. 1352 provides for civil penalties, the Councils determined that
its inclusion on such list is unauthorized and propose to remove it
from the list.
11. FAR 52.203-11, Certification and Disclosure Regarding Payments
to Influence Certain Federal Transactions.
Definitions. This proposed rule adds a definition of
``lobbying contact''. This is the key term introduced by the Lobbying
Disclosure Act of 1995. With regard to the other terms used in the
provision that are defined in the clause, the proposed rule lists the
specific terms that are used in the provision and defined in the
clause.
Prohibitions. In accordance with FAR drafting conventions,
the first paragraph of a provision or clause should include any needed
definitions. This rule separates into a separate paragraph the
statement that was included with the definitions regarding prohibitions
of the clause being incorporated in the provision by reference from the
definitions paragraph to a separate paragraph (b).
Certification. Paragraph (b) is redesignated paragraph
(c). The proposed rule deletes the date of December 23, 1989, which is
no longer relevant, and changes ``his or her'' to ``its'' (FAR drafting
convention).
Disclosure. Current paragraph (b)(2) is deleted and
replaced by new paragraph (d) to implement the Lobbying Disclosure Act
of 1995, which brings in the concept of registrants under the Act and
lobbying contacts.
Flowdown. The current paragraph (b)(3) has been deleted
because flow down can only be required through a contract clause, not a
solicitation provision.
Penalty. Paragraph (c) has been redesignated as paragraph
(e), and there are only minor editorial changes.
12. FAR 52.203-12, Limitation on Payments to Influence Certain
Federal Transactions.
This clause is revised to make conforming changes to parallel the
changes made to FAR Subpart 3.8. In addition--
Paragraph (c)(2)(iii). The Councils propose to delete the
long examples and discussion of advice and analysis that directly apply
any professional or technical discipline, substituting a reference to
FAR 3.803 where the examples are also found.
Paragraph (d). The events that materially affect
disclosure are no longer in accordance with the disclosure
requirements. The only relevant change now is a change in the name and
address of the lobbying registrant or the individuals performing the
services.
[[Page 54257]]
Paragraph (d)(2). The contractor shall file a declaration
at the end of each calendar quarter in which a change occurs.
Agreement. For consistency with previous changes to the
FAR, the Councils have removed the requirement for ``contractor
agreement'' and reworded the prohibition in paragraph (b) to state that
``the Contractor shall''. This is the preferred method of imposing a
requirement upon a contractor.
Paragraph (g). The requirements regarding subcontractors
and flowdown have been moved to the last paragraph of the clause, in
accordance with FAR drafting conventions. The requirement for the
subcontractors to pass the disclosure up the chain to the prime
contractor is retained, even though the agency head and IG reporting
requirements have been deleted. In order for the information to have
any value, it must be passed to the Government.
13. 52.212-3(e), Certification Regarding Payments to Influence
Federal Transactions (31 U.S.C. 1352). The Councils propose to add the
new language on disclosure at paragraph (d) of the provision at 52.203-
11 and to the certification requirement at 52.212-3(e). Since
acquisitions of commercial items are subject to the requirements of 31
U.S.C. 1352, and there are civil penalties for failure to submit the
required disclosure as well as the certification, it is important to
include this requirement.
14. OMB SF LLL and LLL-A. SF LLL and SF LLL-A were developed as an
interim measure to accommodate OMB's interim guidance. These forms are
illustrated in the FAR under ``Forms Authorized for Local
Reproduction''. The SF LLL-A must be removed to conform to OMB's
January 19, 1996, Federal Register Notice.
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 Councils do not expect this proposed 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 this proposed rule mainly implements improvements in clarity
and consistency. The Federal Government awards approximately 90,000
contracts per year to approximately 18,000 small entities. The
disclosure requirements of the rule will only apply to small entities
on whose behalf a registered lobbyist has made lobbying contacts with
respect to a particular Federal contract. Based on OMB Control No.
0348-0046, Disclosure of Lobbying Activities for SF LLL, which is the
standard disclosure form for lobbying paid for with non-Federal funds
as required by the Byrd Amendment, 300 responses were received annually
from states, local governments, non-profit organizations, individuals,
and businesses. The number of such small entities is estimated to be
near zero, based on the small number of lobbyists reported to have
registered under the Byrd Amendment and the improbability that such
lobbyists represent small entities. The rule does not impose new
requirements that impose a burden on contractors.
An Initial Regulatory Flexibility Analysis has, therefore, not been
performed. We invite comments from small businesses and other
interested parties. The Councils will consider comments from small
entities concerning the affected FAR Parts 3, 12, 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. (FAR case 2005-035),
in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does apply. The reporting requirements
are 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. This rule will
not impact the reporting requirement.
List of Subjects in 48 CFR Parts 3, 12, and 52
Government procurement.
Dated: September 6, 2006.
Ralph De Stefano,
Director, Contract Policy Division.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 3, 12,
and 52 as set forth below:
1. The authority citation for 48 CFR parts 3, 12, 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 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
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''.
3. Amend section 3.801 by--
a. Adding a new introductory paragraph;
b. Revising the definitions ``Agency'', ``Covered Federal action''
and ```Indian tribe' and `tribal organization''';
c. Removing from the definitions ``Influencing or attempting to
influence'' and ``Local government'' ``, as used in this section,'';
d. Removing from the definition ``Officer or employee of an
agency,'' ``, as used in this section''; and redesignating paragraphs
(a), (b), (c), and (d) as (1), (2), (3), and (4), respectively;
e. Revising the definition ``Person'';
f. Removing from the definitions ``Reasonable compensation'' and
``Reasonable payment'' ``, as used in this section,'';
g. Revising the definition ``Recipient''; and
h. Removing from the definitions ``Regularly employed'' and
``State'' ``, as used in this section,''.
The added and revised text reads 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.
* * * * *
Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for
[[Page 54258]]
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 3.802(a) and are
permitted by other Federal law.
* * * * *
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 3.802(a) and permitted by other Federal law.
* * * * *
4. Revise sections 3.802 and 3.803 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
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 unallowable with Federal appropriated funds.
(b) 31 U.S.C. 3152 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.
3.803 Exceptions.
(a) The prohibition of 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--
(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 3.802(b) do not apply with
respect to payments of reasonable compensation made to regularly
employed officers or employees of a person.
3.804 [Amended]
5. Amend section 3.804 by removing the paragraph designation (a)
and paragraph (b).
6. Revise sections 3.805 and 3.806 to read as follows:
3.805 Exemption.
The Secretary of Defense may exempt, on a case-by-case basis, a
covered
[[Page 54259]]
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.
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.
3.808 [Amended]
7. Amend section 3.808 in paragraphs (a) and (b) by removing
``The'' and adding ``Insert the'' in its place; and by removing ``shall
be included''.
PART 12--ACQUISITION OF COMMERCIAL ITEMS
12.504 [Amended]
8. Amend section 12.504 by removing and reserving paragraph (a)(3).
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
9. 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 (DATE)
(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 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)
10. Amend section 52.203-12 by--
a. Revising the date of the clause;
b. Amending paragraph (a) by--
i. Revising the introductory text and the definitions ``Agency'',
``Covered Federal action'', and ```Indian tribe' and `tribal
organization''';
ii. In the definitions ``Influencing or attempting to influence'',
``Local government'', and ``Officer or employee of an agency,''
removing ``, as used in this clause,'';
iii. Revising the definition ``Person''
iv. In the definitions ``Reasonable compensation'' and ``Reasonable
payment'' removing ``, as used in this clause,'';
v. Revising the definition ``Recipient''; and
vi. In the definitions ``Regularly employed'' and ``State''
removing ``, as used in this clause,''.
c. Revising paragraph (b);
d. Removing paragraph (d), redesignating paragraph (c) as paragraph
(d), and revising the newly designated paragraph (d);
e. Adding a new paragraph (c);
f. Revising the first sentence of paragraph (e)(1); and
g. Adding a new paragraph (g).
The revised and added text reads as follows:
52.203-12 Limitations on Payments to Influence Certain Federal
Transactions.
* * * * *
LIMITATIONS ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS
(DATE)
(a) Definitions. As used in this clause--
Agency means ``executive agency'' as defined in Federal Acquisition
Regulation 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.
* * * * *
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.
* * * * *
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 permitted by other
Federal law.
* * * * *
(b) Prohibitions. 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 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
[[Page 54260]]
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 contract or 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 shall assume that these other monies were spent
for any influencing activities unallowable 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 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.
(v) Making capability presentations 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, 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 example, 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 (c) 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 submit to the
Contracting Officer an updated disclosure using OMB Standard Form LLL
at the end of the calendar quarter, in which the change occurs.
(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. * * *
* * * * *
(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 submit a copy of all
disclosures to the Contracting Officer at the end of the calendar
quarter in which the disclosure form is submitted by the subcontractor.
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)
11. Amend section 52.212-3 by revising the date of the clause and
adding two sentences at the end of paragraph (e) to read as follows:
52.212-3 Offeror Representations and Certifications-- Commercial
Items.
* * * * *
OFFEROR REPRESENTATIONS AND CERTIFICATIONS-COMMERCIAL ITEMS (DATE)
* * * * *
(e) * * * 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. 06-7604 Filed 9-13-06; 8:45 am]
BILLING CODE 6820-EP-S