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Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any of the following covered Federal actions: the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

(b) Each person who requests or receives from an agency a Federal contract, grant, loan, or cooperative agreement shall file with that agency a certification, set forth in appendix A, that the person has not made, and will not make, any payment prohibited by paragraph (a) of this section.

(c) Each person who requests or receives from an agency a Federal contract, grant, loan, or a cooperative agreement shall file with that agency a disclosure form, set forth in appendix B, if such person has made or has agreed to make any payment using nonappropriated funds (to include profits from any covered Federal action), which would be prohibited under paragraph (a) of this section if paid for with appropriated funds.

(d) Each person who requests or receives from an agency a commitment providing for the United States to insure or guarantee a loan shall file with that agency a statement, set forth in appendix A, whether that person has made or has agreed to make any payment to influence or attempt to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with that loan insurance or guarantee.

(e) Each person who requests or receives from an agency a commitment providing for the United States to insure or guarantee a loan shall file with that agency a disclosure form, set forth in appendix B, if that person has made or has agreed to make any payment to influence or attempt to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with that loan insurance or guarantee.

81158.105 Definitions.

For purposes of this part:

(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal executive departments and agencies as well as independent regulatory commissions and Government corporations, as defined in 31 U.S.C. 9101(1).

(b) Covered Federal action means any of the following Federal actions:

(1) The awarding of any Federal contract;

(2) The making of any Federal grant; (3) The making of any Federal loan;

(4) The entering into of any cooperative agreement; and,

(5) The extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. Covered Federal action does not include receiving from an agency a commitment providing for the United States to insure or guarantee a loan. Loan guarantees and loan insurance are addressed independently within this part.

(c) Federal contract means an acquisition contract awarded by an agency. including those subject to the Federal Acquisition Regulation (FAR), and any other acquisition contract for real or personal property or services not subject to the FAR.

(d) Federal cooperative agreement means a cooperative agreement entered into by an agency.

(e) Federal grant means an award of financial assistance in the form of money, or property in lieu of money, by the Federal Government or a direct appropriation made by law to any person. The term does not include technical assistance which provides services instead of money, or other assistance in the form of revenue sharing, loans, loan guarantees, loan insurance, interest subsidies, insurance, or direct United States cash assistance to an individual.

(f) Federal loan means a loan made by an agency. The term does not include loan guarantee or loan insurance.

(g) Indian tribe and tribal organization have the meaning provided in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450B). Alaskan Natives are included

under the definitions of Indian tribes in nished in cooperation with the Federal that Act.

Government. (h) Influencing or attempting to influ (n) Reasonable payment means, with ence means making, with the intent to respect to perfessional and other techinfluence, any communication to or ap nical services, a payment in an amount pearance before an officer or employee

that is consistent with the amount noror any agency, a Member of Congress,

mally paid for such services in the pri

mally paid for su an officer or employee of Congress, or

vate sector. an employee of a Member of Congress

(0) Recipient includes all contractors, in connection with any covered Federal

subcontractors at any tier, and action.

subgrantees at any tier of the recipient (i) Loan guarantee and loan insurance

of funds received in connection with a means an agency's guarantee or insur

Federal contract, grant, loan, or coopance of a loan made by a person.

erative agreement. The term excludes (j) Local government means a unit of

an Indian tribe, tribal organization, or government in a State and, if char

any other Indian organization with retered, established, or otherwise recognized by a State for the performance of

spect to expenditures specifically pera governmental duty, including a local

mitted by other Federal law. public authority, a special district, an

(p) Regularly employed means, with intrastate district, a council of govern

respect to an officer or employee of a ments, a sponsor group representative person requesting or receiving a Fedorganization, and any other instrumen eral contract, grant, loan, or cooperatality of a local government.

tive agreement or a commitment pro(k) Officer or employee of an agency in viding for the United States to insure cludes the following individuals who or guarantee a loan, an officer or emare employed by an agency:

ployee who is employed by such person (1) An individual who is appointed to for at least 130 working days within a position in the Government under one year immediately preceding the title 5, U.S. Code, including a position date of the submission that initiates under a temporary appointment;

agency consideration of such person for (2) A member of the uniformed serv receipt of such contract, grant, loan, ices as defined in section 101(3), title 37, cooperative agreement, loan insurance U.S. Code;

commitment, or loan guarantee com(3) A special Government employee

mitment. An officer or employee who is as defined in section 202, title 18, U.S.

employed by such person for less than Code; and,

130 working days within one year im(4) An individual who is a member of

mediately preceding the date of the a Federal advisory Committee, as de

submission that initiates agency confined by the Federal Advisory Commit

sideration of such person shall be contee Act, title 5, U.S. Code appendix 2.

sidered to be regularly employed as (1) Person means an individual, cor

soon as he or she is employed by such poration, company, association, au

person for 130 working days. thority, firm, partnership, society,

(q) State means a State of the United State, and local government, regard

States, the District of Columbia, the less of whether such entity is operated

Commonwealth of Puerto Rico, a terrifor profit or not for profit. This term excludes an Indian tribe, tribal organi

tory or possession of the United States, zation, or any other Indian organiza

an agency or instrumentality of a tion with respect to expenditures spe

State, and a multi-State, regional, or cifically permitted by other Federal

interstate entity having governmental law.

duties and powers. (m) Reasonable compensation means, with respect to a regularly employed

$ 1158.110 Certification and disclosure. officer or employee of any person, com (a) Each person shall file a certifipensation that is consistent with the cation, and a disclosure form, if renormal compensation for such officerquired, with each submission that inior employee for work that is not fur- tiates agency consideration of such nished to, not funded by, or not fur person for:

(1) Award of a Federal contract, grant, or cooperative agreement exceeding $100,000; or

(2) An award of a Federal loan or a commitment providing for the United States to insure or guarantee a loan exceeding $150,000.

(b) Each person shall file a certification, and a disclosure form, if required, upon receipt by such person of:

(1) A Federal contract, grant, or cooperative agreement exceeding $100,000; or

(2) A Federal loan or a commitment providing for the United States to insure or guarantee a loan exceeding $150,000, unless such person previously filed a certification, and a disclosure form, if required, under paragraph (a) of this section.

(c) Each person shall file a disclosure form at the end of each calendar quarter in which there occurs any event that requires disclosure or that materially affects the accuracy of the information contained in any disclosure form previously filed by such person under paragraph (a) or (b) of this section. An event that materially affects the accuracy of the information reported includes:

(1) A cumulative increase of $25,000 or more in the amount paid or expected to be paid for influencing or attempting to influence a covered Federal action; or

(2) A change in the person(s) or individual(s) influencing or attempting to influence a covered Federal action; or,

(3) A change in the officer(s), employee(s), or Member(s) contacted to influence or attempt to influence a covered Federal action.

(d) Any person who requests or receives from a person referred to in paragraph (a) or (b) of this section:

(1) A subcontract exceeding $100,000 at any tier under a Federal contract;

(2) A subgrant, contract, or subcontract exceeding $100,000 at any tier under a Federal grant;

(3) A contract or subcontract exceeding $100,000 at any tier under a Federal loan exceeding $150,000; or,

(4) A contract or subcontract exceeding $100,000 at any tier under a Federal cooperative agreement,

shall file a certification, and a disclosure form, if required, to the next tier above.

(e) All disclosure forms, but not certifications, shall be forwarded from tier to tier until received by the person referred to in paragraph (a) or (b) of this section. That person shall forward all disclosure forms to the agency.

(1) Any certification or disclosure form filed under paragraph (e) of this section shall be treated as a material representation of fact upon which all receiving tiers shall rely. All liability arising from an erroneous representation shall be borne solely by the tier filing that representation and shall not be shared by any tier to which the erroneous representation is forwarded. Submitting an erroneous certification or disclosure constitutes a failure to file the required certification or disclosure, respectively. If a person fails to file a required certification or disclosure, the United States may pursue all available remedies, including those authorized by section 1352, title 31, U.S. Code.

(g) For awards and commitments in process prior to December 23, 1989, but not made before that date, certifications shall be required at award or commitment, covering activities OCcurring between December 23, 1989, and the date of award or commitment. However, for awards and commitments in process prior to the December 23, 1989 effective date of these provisions, but not made before December 23, 1989, disclosure forms shall not be required at time of award or commitment but shall be filed within 30 days.

(h) No reporting is required for an activity paid for with appropriated funds if that activity is allowable under either subpart B or C.

Subpart B-Activities by Own

Employees 91158.200 Agency and legislative liai

son. (a) The prohibition on the use of appropriated funds, in $1158.100 (a), does not apply in the case of a payment of reasonable compensation made to an officer or employee of a person requesting or receiving a Federal contract, grant, loan, or cooperative agreement

if the payment is for agency and legis- eral contract, grant, loan, or cooperalative liaison activities not directly re- tive agreement if payment is for prolated to a covered Federal action.

fessional or technical services rendered (b) For purposes of paragraph (a) of directly in the preparation, submisthis section, providing any information sion, or negotiation of any bid, prospecifically requested by an agency or posal, or application for that Federal Congress is allowable at any time.

contract, grant, loan, or cooperative (c) For purposes of paragraph (a) of agreement or for meeting requirements this section, the following agency and imposed by or pursuant to law as a legislative liaison activities are allow- condition for receiving that Federal able at any time only where they are contract, grant, loan, or cooperative not related to a specific solicitation for agreement. any covered Federal action:

(b) For purposes of paragraph (a) of (1) Discussing with an agency (in this section, professional and technical cluding individual demonstrations) the services shall be limited to advice and qualities and characteristics of the per- analysis directly applying any professon's products or services, conditions sional or technical discipline. For exor terms of sale, and service capabili ample, drafting of a legal document acties; and,

companying a bid or proposal by a law(2) Technical discussions and other yer is allowable. Similarly, technical activities regarding the application or advice provided by an engineer on the adaptation of the person's products or performance or operational capability services for an agency's use.

of a piece of equipment rendered di(d) For purposes of paragraph (a) of rectly in the negotiation of a contract this section, the following agencies and is allowable. However, communications legislative liaison activities are allow with the intent to influence made by a able only where they are prior to for- professional (such as a licensed lawyer) mal solicitation of any covered Federal or a technical person (such as a liaction:

censed accountant) are not allowable (1) Providing any information not under this section unless they provide specifically requested but necessary for advice and analysis directly applying an agency to make an informed deci- their professional or technical expersion about initiation of a covered Fed tise and unless the advice or analysis is eral action;

rendered directly and solely in the (2) Technical discussions regarding preparation, submission or negotiation the preparation of an unsolicited pro of a covered Federal action. Thus, for posal prior to its official submission; example, communications with the inand,

tent to influence made by a lawyer (3) Capability presentations by per that do not provide legal advice or sons seeking awards from an agency analysis directly and solely related to pursuant to the provisions of the Small the legal aspects of his or her client's Business Act, as amended by Pub. L. proposal, but generally advocate one 95-507 and other subsequent amend proposal over another are not allowments.

able under this section because the (e) Only those activities expressly au lawyer is not providing professional thorized by this section are allowable legal services. Similarly, communicaunder this section.

tions with the intent to influence made

by an engineer providing an engineer81158.205 Professional and technical

ing analysis prior to the preparation or services.

submission of a bid or proposal are not (a) The prohibition on the use of ap allowable under this section since the propriated funds, in $1158.100 (a), does engineer is providing technical services not apply in the case of a payment of but not directly in the preparation, reasonable compensation made to an submission or negotiation of a covered officer or employee of a person request- Federal action. ing or receiving a Federal contract, (c) Requirements imposed by or purgrant, loan, or cooperative agreement suant to law as a condition for receivor an extension, continuation, renewal, ing a covered Federal award include amendment, or modification of a Fed- those required by law or regulation, or

reasonably expected to be required by law or regulation, and any other requirements in the actual award documents.

(d) Only those services expressly authorized by this section are allowable under this section. 81158.210 Reporting.

No reporting is required with respect to payments of reasonable compensation made to regularly employed officers or employees of a person.

Subpart C-Activities by Other

Than Own Employees g 1158.300 Professional and technical

services. (a) The prohibition on the use of appropriated funds, in 81158.100 (a), does not apply in the case of any reasonable payment to a person, other than an officer or employee of a person requesting or receiving a covered Federal action, if the payment is for professional or technical services rendered directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal contract, grant, loan, or cooperative agreement or for meeting requirements imposed by or pursuant to law as a condition for receiving that Federal contract, grant, loan, or cooperative agreement.

(b) The reporting requirements in $1158.110 (a) and (b) regarding filing a disclosure form by each person, if required, shall not apply with respect to professional or technical services rendered directly in the preparation, submission, or negotiation of any commitment providing for the United States to insure or guarantee a loan.

(c) For purposes of paragraph (a) of this section, professional and technical services shall be limited to advice and analysis directly applying any professional or technical discipline. For example, drafting or a legal document accompanying a bid or proposal by a lawyer is allowable. Similarly, technical advice provided by an engineer on the performance or operational capability of a piece of equipment rendered directly in the negotiation of a contract is allowable. However, communications with the intent to influence made by a professional (such as a licensed lawyer)

or a technical person (such as a licensed accountant) are not allowable under this section unless they provide advice and analysis directly applying their professional or technical expertise and unless the advice or analysis is rendered directly and solely in the preparation, submission or negotiation of a covered Federal action. Thus, for example, communications with the intent to influence made by a lawyer that do not provide legal advice or analysis directly and solely related to the legal aspects of his or her client's proposal, but generally advocate one proposal over another are not allowable under this section because the lawyer is not providing professional legal services. Similarly, communications with the intent to influence made by an engineer providing an engineering analysis prior to the preparation or submission of a bid or proposal are not allowable under this section since the engineer is providing technical services but not directly in the preparation, submission or negotiation of a covered Federal action.

(d) Requirements imposed by or pursuant to law as a condition for receiving a covered Federal award include those required by law or regulation, or reasonably expected to be required by law or regulation, and any other requirements in the actual award documents.

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

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

Subpart D-Penalties and

Enforcement

$1158.400 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

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