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if that activity is allowable under ei (e) Only those activities expressly auther Subpart B or C.

thorized by this section are allowable

under this section. Subpart B-Activities by Own Employees

845.205 Professional and technical

services. $ 45.200 Agency and legislative liaison. (a) The prohibition on the use of ap

(a) The prohibition on the use of ap- propriated funds, in $45.100(a), does not propriated funds, in $ 45.100(a), does not

apply in the case of a payment of reaapply in the case of a payment of rea sonable compensation made to an offisonable compensation made to an offi cer or employee of a person requesting cer or employee of a person requesting or receiving a Federal contract, grant, or receiving a Federal contract, grant, loan, or cooperative agreement or an loan, or cooperative agreement if the extension, continuation, renewal, payment is for agency and legislative amendment, or modification of a Fedliaison activities not directly related eral contract, grant, loan, or cooperato a covered Federal action.

tive agreement if payment is for pro(b) For purposes of paragraph (a) of fessional or technical services rendered this section, providing any information directly in the preparation, submisspecifically requested by an agency or sion, or negotiation of any bid, proCongress is allowable at any time.

posal, or application for that Federal (c) For purposes of paragraph (a) of

contract, grant, loan, or cooperative this section, the following agency and

agreement or for meeting requirements legislative liaison activities are allow

imposed by or pursuant to law as a able at any time only where they are

condition for receiving that Federal not related to a specific solicitation for

contract, grant, loan, or cooperative any covered Federal action:

agreement. (1) Discussing with an agency (in

(b) For purposes of paragraph (a) of cluding individual demonstrations) the qualities and characteristics of the per

this section, "professional and techson's products or services, conditions

nical services" shall be limited to ador terms of sale, and service capabili

vice and analysis directly applying any ties; and,

professional or technical discipline. (2) Technical discussions and other

For example, drafting of a legal docuactivities regarding the application or ment accompanying a bid or proposal adaptation of the person's products or

by a lawyer is allowable. Similarly, services for an agency's use.

technical advice provided by an engi(d) For purposes of paragraph (a) of neer on the performance or operational this section, the following agencies and capability of a piece of equipment renlegislative liaison activities are allow- dered directly in the negotiation of a able only where they are prior to for contract is allowable. However, commal solicitation of any covered Federal munications with the intent to influaction:

ence made by a professional (such as a (1) Providing any information not licensed lawyer) or a technical person specifically requested but necessary for (such as a licensed accountant) are not an agency to make an informed deci allowable under this section unless sion about initiation of a covered Fed

they provide advice and analysis dieral action;

rectly applying their professional or (2) Technical discussions regarding

technical expertise and unless the adthe preparation of an unsolicited pro

vice or analysis is rendered directly posal prior to its official submission;

and solely in the preparation, submisand,

sion or negotiation of a covered Fed(3) Capability presentations by per

eral action. Thus, for example, commusons seeking awards from an agency

nications with the intent to influence pursuant to the provisions of the Small

made by a lawyer that do not provide Business Act, as amended by Pub. L.

legal advice or analysis directly and 95-507 and other subsequent amend

solely related to the legal aspects of ments.

his or her client's proposal, but gen- dered directly in the preparation, suberally advocate one proposal over an- mission, or negotiation of any commitother are not allowable under this sec- ment providing for the United States tion because the lawyer is not pro to insure or guarantee a loan. viding professional legal services.

(c) For purposes of paragraph (a) of Similarly, communications with the

this section, "professional and techintent to influence made by an engi

nical services” shall be limited to adneer providing an engineering analysis

vice and analysis directly applying any prior to the preparation or submission

professional or technical discipline. of a bid or proposal are not allowable

For example, drafting or a legal docuunder this section since the engineer is providing technical services but not di

ment accompanying a bid or proposal rectly in the preparation, submission

by a lawyer is allowable. Similarly, or negotiation of a covered Federal ac

technical advice provided by an engition.

neer on the performance or operational (c) Requirements imposed by or pur capability of a piece of equipment rensuant to law as a condition for receiv- dered directly in the negotiation of a ing a covered Federal award include contract is allowable. However, comthose required by law or regulation, or munications with the intent to influreasonably expected to be required by ence made by a professional (such as a law or regulation, and any other re- licensed lawyer) or a technical person quirements in the actual award docu (such as a licensed accountant) are not ments.

allowable under this section unless (d) Only those services expressly au

they provide advice and analysis dithorized by this section are allowable

rectly applying their professional or under this section.

technical expertise and unless the ad$45.210 Reporting.

vice or analysis is rendered directly

and solely in the preparation, submisNo reporting is required with respect to payments of reasonable compensa

sion or negotiation of a covered Fed

eral action. Thus, for example, commution made to regularly employed officers or employees of a person.

nications with the intent to influence

made by a lawyer that do not provide Subpart C-Activities by Other

legal advice or analysis directly and

solely related to the legal aspects of Than Own Employees

his or her client's proposal, but gen$45.300 Professional and technical

erally advocate one proposal over anservices.

other are not allowable under this sec(a) The prohibition on the use of ap

tion because the lawyer is not propropriated funds, in $ 45.100(a), does not

viding professional legal services. apply in the case of any reasonable

Similarly, communications with the payment to a person, other than an of

intent to influence made by an engificer or employee of a person request- neer providing an engineering analysis ing or receiving a covered Federal ac- prior to the preparation or submission tion, if the payment is for professional of a bid or proposal are not allowable or technical services rendered directly under this section since the engineer is in the preparation, submission, or ne- providing technical services but not digotiation of any bid, proposal, or appli rectly in the preparation, submission cation for that Federal contract, grant, or negotiation of a covered Federal acloan, or cooperative agreement or for tion. meeting requirements imposed by or (d) Requirements imposed by or purpursuant to law as a condition for re

suant to law as a condition for receiyceiving that Federal contract, grant,

ing a covered Federal award include loan, or cooperative agreement.

those required by law or regulation, or (b) The reporting requirements in

reasonably expected to be required by $45.110(a) and (b) regarding filing a dis

law or regulation, and any other reclosure form by each person, if re

quirements in the actual award docuquired, shall not apply with respect to

ments. professional or technical services ren

(e) Persons other than officers or employees of a person requesting or receiving a covered Federal action in clude consultants and trade associations.

(f) Only those services expressly authorized by this section are allowable under this section.

United States from seeking any othe remedy that may apply to the sam conduct that is the basis for the impo sition of such civil penalty.

$45.405 Penalty procedures.

Agencies shall impose and collec civil penalties pursuant to the provi sions of the Program Fraud and Civi Remedies Act, 31 U.S.C. sections 380 (except subsection (c)), 3804, 3805, 3801 3807, 3808, and 3812, insofar as these pro visions are not inconsistent with th requirements herein.

$ 45.410 Enforcement.

The head of each agency shall tak such actions as are necessary to ensur that the provisions herein are vigor ously implemented and enforced it that agency.

Subpart D-Penalties and

Enforcement $ 45.400 Penalties.

(a) 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.

(b) Any person who fails to file or amend the disclosure form (see appendix B) 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.

(c) 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.

(d) 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.

(e) 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.

(f) An imposition of a civil penalty under this section does not prevent the

Subpart E-Exemptions $ 45.500 Secretary of Defense.

(a) The Secretary of Defense may exempt, on a case-by-case basis, a cov. ered Federal action from the prohibi tion whenever the Secretary deter mines, in writing, that such an exemp tion is in the national interest. The Secretary shall transmit a copy of each such written exemption to Congresi immediately after making such a de termination.

(b) The Department of Defense maj issue supplemental regulations to im plement paragraph (a) of this section.

Subpart F-Agency Reports 845.600 Semi-annual compilation.

(a) The head of each agency shall collect and compile the disclosure reports (see appendix B) 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 sixmonth period ending on March 31 or September 30, respectively, of that year.

(b) The report, including the compilation, shall be available for public inspection 30 days after receipt of the report by the Secretary and the Clerk.

(C) Information that involves intel- President's Budget in 1991, an evalualigence matters shall be reported only tion of the compliance of that agency to the Select Committee on Intel- with, and the effectiveness of, the religence of the Senate, the Permanent quirements herein. The evaluation may Select Committee on Intelligence of include any recommended changes that the House of Representatives, and the may be necessary to strengthen or imCommittees on Appropriations of the prove the requirements. Senate and the House of Representa (b) In the case of an agency that does tives in accordance with procedures not have an Inspector General, the agreed to by such committees. Such in- agency official comparable to an Information shall not be available for spector General shall prepare and subpublic inspection.

mit the annual report, or, if there is no (d) Information that is classified such comparable official, the head of under Executive Order 12356 or any suc the agency shall prepare and submit cessor order shall be reported only to the annual report. the Committee on Foreign Relations of (c) The annual report shall be subthe Senate and the Committee on For mitted at the same time the agency eign Affairs of the House of Represent submits its annual budget justificaatives or the Committees on Armed tions to Congress. Services of the Senate and the House of

(d) The annual report shall include Representatives (whichever such com

the following: All alleged violations remittees have jurisdiction of matters

lating to the agency's covered Federal involving such information) and to the

actions during the year covered by the Committees on Appropriations of the

report, the actions taken by the head Senate and the House of Representa

of the agency in the year covered by tives in accordance with procedures

the report with respect to those alleged agreed to by such committees. Such in

violations and alleged violations in formation shall not be available for

previous years, and the amounts of public inspection.

civil penalties imposed by the agency (e) The first semi-annual compilation

in the year covered by the report. shall be submitted on May 31, 1990, and shall contain a compilation of the dis APPENDIX A TO PART 45–CERTIFICATION closure reports received from Decem

REGARDING LOBBYING ber 23, 1989 to March 31, 1990.

(1) Major agencies, designated by the Certification for Contracts, Grants, Loans, and Office of Management and Budget

Cooperative Agreements (OMB), are required to provide machine-readable compilations to the

The undersigned certifies, to the best of his

or her knowledge and belief, that: Secretary of the Senate and the Clerk

(1) No Federal appropriated funds have of the House of Representatives no

been paid or will be paid, by or on behalf of later than with the compilations due the undersigned to any person for influon May 31, 1991. OMB shall provide de encing or attempting to influence an officer Talled specifications in a memorandum or employee of an agency, a Member of Conto these agencies.

gress, an officer or employee of Congress, or (8) Non-major agencies are requested

an employee of a Member of Congress in conto provide machine-readable compila

nection with the awarding of any Federal

contract, the making of any Federal grant, tions to the Secretary of the Senate

the making of any Federal loan, the entering and the Clerk of the House of Rep

into of any cooperative agreement, and the resentatives.

extension, continuation, renewal, amend(h) Agencies shall keep the originals

ment, or modification of any Federal conof all disclosure reports in the official tract, grant, loan, or cooperative agreement. files of the agency.

(2) If any funds other than Federal appro

priated funds have been paid or will be paid $ 45.605 Inspector General report.

to any person for influencing or attempting (a) The Inspector General, or other

to influence an officer or employee of any

agency, a Member of Congress, an officer or olicial as specified in paragraph (b) of

employee of Congress, or an employee of a 118 section, of each agency shall pre

Member of Congress in connection with this are and submit to Congress each year, Federal contract, grant, loan, or cooperative mmencing with submission of the agreement, the undersigned shall complete

and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.

(3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

Statement for Loan Guarantees and Loan

Insurance The undersigned states, to the best of his or her knowledge and belief, that:

If any 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 in connection with this commitment providing for the United States to insure or guarantee a loan, the under signed shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lob bying," in accordance with its instructions.

Submission of this statement is a pre requisite for making or entering into this transaction imposed by section 1352, title 31 U.S. Code. Any person who fails to file the required statement shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

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