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(5) Nothing in this section shall be construed to create the basis for a claim or suit where none would other wise exist.

(6) This cross-waiver shall not be applicable when the Commercial Space Launch Act cross-waiver (49 U.S.C. app. 2615) is applicable.

PART 1271-NEW RESTRICTIONS ON

LOBBYING

Subpart A—General

Sec. 1271.100 Conditions on use of funds. 1271.105 Definitions. 1271.110 Certification and disclosure.

Subpart B-Activities by Own Employees 1271.200 Agency and legislative liaison. 1271.205 Professional and technical sery

ices. 1271.210 Reporting.

Subpart C—Activities by Other Than Own

Employees 1271.300 Professional and technical serv

ices.

Subpart A-General 8 1271.100 Conditions on use of funds.

(a) No appropriated funds may be expended by the recipient of a Federal contract, grant, loan, or cooperative ageement to pay any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any of the following covered Federal actions: the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

(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 re: ceives from an agency a commitment providing for the United States to

Subpart D- Penalties and Enforcement

1271.400 Penalties. 1271.405 Penalty procedures. 1271.410 Enforcement.

Subpart E-Exemptions 1271.500 Secretary of Defense.

Subpart F-Agency Reports 1271.600 Semi-annual compilation. 1271.605 Inspector General report. APPENDIX A TO PART 1271-CERTIFICATION

REGARDING LOBBYING APPENDIX B TO PART 1271-DISCLOSURE

FORM TO REPORT LOBBYING AUTHORITY: Section 319, Pub. L. 101-121 (31 U.S.C. 1352); Pub. L. 97-258 (31 U.S.C. 6301 et seq.)

SOURCE: 55 FR 6737, 6748, Feb. 26, 1990, unless otherwise noted.

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

insure or guarantee a loan shall file ing, loans, loan guarantees, loan insurwith that agency a disclosure form, set ance, interest subsidies, insurance, or forth in Appendix B, if that person direct United States cash assistance to has made or has agreed to make any an individual. payment to influence or attempt to in. (f) Federal loan means a loan made fluence an officer or employee of any by an agency. The term does not inagency, a Member of Congress, an offi- clude loan guarantee or loan insurcer or employee of Congress, or an em ance. ployee of a Member of Congress in (g) Indian tribe and tribal organizaconnection with that loan insurance or tion have the meaning provided in secguarantee.

tion 4 of the Indian Self-Determina

tion and Education Assistance Act (25 8 1271.105 Definitions.

U.S.C. 450B). Alaskan Natives are inFor purposes of this part:

cluded under the definitions of Indian (a) Agency, as defined in 5 U.S.C. tribes in that Act. 552(f), includes Federal executive de (h) Influencing or attempting to inpartments and agencies as well as in fluence means making, with the intent dependent regulatory commissions to influence, any communication to or and Government corporations, as de- appearance before an officer or emfined in 31 U.S.C. 9101(1).

ployee or any agency, a Member of (b) Covered Federal action means Congress, an officer or employee of any of the following Federal actions: Congress, or an employee of a Member

(1) The awarding of any Federal of Congress in connection with any contract;

covered Federal action. (2) The making of any Federal (i) Loan guarantee and loan insurgrant;

ance means an agency's guarantee or (3) The making of any Federal loan; insurance of a loan made by a person.

(4) The entering into of any coopera (j) Local government means a unit of tive agreement; and,

government in a State and, if char(5) The extension, continuation, re tered, established, or otherwise recognewal, amendment, or modification of

nized by a State for the performance any Federal contract, grant, loan, or of a governmental duty, including a cooperative agreement.

local public authority, a special disCovered Federal action does not in- trict, an intrastate district, a council of clude receiving from an agency a com governments, a sponsor group repremitment providing for the United sentative organization, and any other States to insure or guarantee a loan. instrumentality of a local government. Loan guarantees and loan insurance (k) Officer or employee of an agency are addressed independently within includes the following individuals who this part.

are employed by an agency: (c) Federal contract means an acqui-: (1) An individual who is appointed to sition contract awarded by an agency, a position in the Government under including those subject to the Federal title 5, U.S. Code, including a position Acquisition Regulation (FAR), and under a temporary appointment; any other acquisition contract for real (2) A member of the uniformed seryor personal property or services notices as defined in section 101(3), title subject to the FAR.

37, U.S. Code; (d) Federal cooperative agreement (3) A special Government employee means a cooperative agreement en as defined in section 202, title 18, U.S. tered into by an agency.

Code; and, (e) Federal grant means an award of (4) An individual who is a member of financial assistance in the form of a Federal advisory committee, as demoney, or property in lieu of money, fined by the Federal Advisory Comby the Federal Government or a direct mittee Act, title 5, U.S. Code appendix appropriation made by law to any person. The term does not include (1) Person means an individual, cortechnical assistance which provides poration, company, association, auservices instead of money, or other as- thority, firm, partnership, society, sistance in the form of revenue shar State, and local government, regardless of whether such entity is operated for profit or not for profit. This term excludes an Indian tribe, tribal organi. zation, or any other Indian organization with respect to expenditures specifically permitted by other Federal

Rico, a territory or possession of the United States, an agency or instrumentality of a State, and a multiState, regional, or interstate entity having governmental duties and powers.

law.

(m) Reasonable compensation 8 1271.110 Certification and disclosure. means, with respect to a regularly em (a) Each person shall file a certificaployed officer or employee of any tion, and a disclosure form, if required, person, compensation that is consist with each submission that initiates ent with the normal compensation for agency consideration of such person such officer or employee for work that for is not furnished to, not funded by, or

(1) Award of a Federal contract, not furnished in cooperation with the

grant, or cooperative agreement exFederal Government.

ceeding $100,000; or (n) Reasonable payment means, with

(2) An award of a Federal loan or a respect to perfessional and other tech

commitment providing for the United nical services, a payment in an amount

States to insure or guarantee a loan that is consistent with the amount

exceeding $150,000. normally paid for such services in the

(b) Each person shall file a certificaprivate sector.

tion, and a disclosure form, if required, (0) Recipient includes all contrac

upon receipt by such person of: tors, subcontractors at any tier, and

(1) A Federal contract, grant, or cosubgrantees at any tier of the recipi.

operative agreement exceeding ent of funds received in connection

$100,000; or with a Federal contract, grant, loan, or cooperative agreement. The term ex

(2) A Federal loan or a commitment cludes an Indian tribe, tribal organiza

providing for the United States to

insure or guarantee a loan exceeding tion, or any other Indian organization

$150,000, with respect to expenditures specifically permitted by other Federal law. Unless such person previously filed a

(p) Regularly employed means, with certification, and a disclosure form, if respect to an officer or employee of a required, under paragraph (a) of this person requesting or receiving a Feder- section. al contract, grant, loan, or cooperative (c) Each person shall file a discloagreement or a commitment providing sure form at the end of each calendar for the United States to insure or quarter in which there occurs any guarantee a loan, an officer or employ event that requires disclosure or that ee who is employed by such person for materially affects the accuracy of the at least 130 working days within one information contained in any discloyear immediately preceding the date sure form previously filed by such of the submission that initiates agency person under paragraphs (a) or (b) of consideration of such person for re- this section. An event that materially ceipt of such contract, grant, loan, co

affects the accuracy of the informaoperative agreement, loan insurance tion reported includes: commitment, or loan guarantee com- (1) A cumulative increase of $25,000 mitment. An officer or employee who or more in the amount paid or expectis employed by such person for lessed to be paid for influencing or atthan 130 working days within one year tempting to influence a covered Federimmediately preceding the date of the al action; or submission that initiates agency con- (2) A change in the person(s) or sideration of such person shall be con- individual(s) influencing or attempting sidered to be regularly employed as to influence a covered Federal action; soon as he or she is employed by such or, person for 130 working days.

(3) A change in the officer(s), (q) State means & State of the employee(s), or Member(s) contacted United States, the District of Colum- to influence or attempt to influence & bia, the Commonwealth of Puerto covered Federal action.

(d) Any person who requests or re- funds if that activity is allowable ceives from a person referred to in under either Subpart B or C. paragraphs (a) or (b) of this section:

(1) A subcontract exceeding $100,000 Subpart B-Activities by Own at any tier under a Federal contract;

Employees (2) A subgrant, contract, or subcontract exceeding $100,000 at any tier 81271.200 Agency and legislative liaison. under a Federal grant;

(a) The prohibition on the use of ap(3) A contract or subcontract exceed

propriated funds, in $ 1271.100 (a), ing $100,000 at any tier under a Feder

does not apply in the case of a payal loan exceeding $150,000; or,

ment of reasonable compensation (4) A contract or subcontract exceed

made to an officer or employee of a ing $100,000 at any tier under a Feder

person requesting or receiving a Federal cooperative agreement,

al contract, grant, loan, or cooperative Shall file a certification, and a disclo- agreement if the payment is for sure form, if required, to the next tier agency and legislative liaison activities above.

not directly related to a covered Fed(e) All disclosure forms, but not cer- eral action. tifications, shall be forwarded from (b) For purposes of paragraph (a) of tier to tier until received by the person this section, providing any informareferred to in paragraphs (a) or (b) of tion specifically requested by an this section. That person shall forward agency or Congress is allowable at any all disclosure forms to the agency. time.

(f) Any certification or disclosure (c) For purposes of paragraph (a) of form filed under paragraph (e) of this this section, the following agency and section shall be treated as a material legislative liaison activities are allowrepresentation of fact upon which all able at any time only where they are receiving tiers shall rely. All liability not related to a specific solicitation for arising from an erroneous representa- any covered Federal action: tion shall be borne solely by the tier (1) Discussing with an agency (infiling that representation and shall cluding individual demonstrations) the not be shared by any tier to which the qualities and characteristics of the erroneous representation is forwarded. person's products or services, condiSubmitting an erroneous certification tions or terms of sale, and service caor disclosure constitutes a failure to pabilities; and, file the required certification or disclo- (2) Technical discussions and other sure, respectively. If a person fails to activities regarding the application or file a required certification or disclo- adaptation of the person's products or sure, the United States may pursue all services for an agency's use. available remedies, including those au (d) For purposes of paragraph (a) of thorized by section 1352, title 31, U.S. . this section, the following agencies Code.

and legislative liaison activities are al(g) For awards and commitments in lowable only where they are prior to process prior to December 23, 1989, formal solicitation of any covered Fedbut not made before that date, certifi- eral action: cations shall be required at award or (1) Providing any information not commitment, covering activities occur specifically requested but necessary ring between December 23, 1989, and for an agency to make an informed dethe date of award or commitment. cision about initiation of a covered However, for awards and commitments Federal action; in process prior to the December 23, (2) Technical discussions regarding 1989 effective date of these provisions, the preparation of an unsolicited probut not made before December 23, posal prior to its official submission; 1989, disclosure forms shall not be re- and, quired at time of award or commit. (3) Capability presentations by perment but shall be filed within 30 days. sons seeking awards from an agency

(h) No reporting is required for an pursuant to the provisions of the activity paid for with appropriated Small Business Act, as amended by Public Law 95-507 and other subse. ally advocate one proposal over an. quent amendments.

other are not allowable under this sec(e) Only those activities expressly tion because the lawyer is not providauthorized by this section are allow ing professional legal services. Similarable under this section.

ly, communications with the intent to

influence made by an engineer provid8 1271.205 Professional and technical

ing an engineering analysis prior to services.

the preparation or submission of a bid (a) The prohibition on the use of ap or proposal are not allowable under propriated funds, in $ 1271.100 (a), this section since the engineer is prodoes not apply in the case of a pay. viding technical services but not diment of reasonable compensation rectly in the preparation, submission made to an officer or employee of a or negotiation of a covered Federal person requesting or receiving a Feder- action. al contract, grant, loan, or cooperative (c) Requirements imposed by or puragreement or an extension, continu suant to law as a condition for receivation, renewal, amendment, or modific ing a covered Federal award include cation of a Federal contract, grant, those required by law or regulation, or loan, or cooperative agreement if pay- reasonably expected to be required by ment is for professional or technical law or regulation, and any other reservices rendered directly in the prep- quirements in the actual award docuaration, submission, or negotiation of ments. any bid, proposal, or application for (d) Only those services expressly authat Federal contract, grant, loan, or thorized by this section are allowable cooperative agreement or for meeting under this section. requirements imposed by or pursuant to law as a condition for receiving that 8 1271.210 Reporting. Federal contract, grant, loan, or coop

No reporting is required with respect erative agreement.

to payments of reasonable compensa(b) For purposes of paragraph (a) of

tion made to regularly employed offithis section, “professional and techni

cers or employees of a person. cal services” shall be limited to advice and analysis directly applying any professional or technical discipline. For

Subpart C-Activities by Other Than example, drafting of a legal document

Own Employees accompanying a bid or proposal by a

8 1271.300 Professional and technical lawyer is allowable. Similarly, technical advice provided by an engineer on

services. the performance or operational capa (a) The prohibition on the use of apbility of a piece of equipment rendered propriated funds, in 8 1271.100 (a), directly in the negotiation of a con does not apply in the case of any reatract is allowable. However, communi sonable payment to a person, other cations with the intent to influence than an officer or employee of a made by a professional (such as a li- person requesting or receiving a Covcensed lawyer) or a technical person ered Federal action, if the payment is (such as a licensed accountant) are not for professional or technical services allowable under this section unless rendered directly in the preparation, they provide advice and analysis di. submission, or negotiation of any bid, rectly applying their professional or proposal, or application for that Fedtechnical expertise and unless the eral contract, grant, loan, or cooperaadvice or analysis is rendered directly tive agreement or for meeting requireand solely in the preparation, submis- ments imposed by or pursuant to law sion or negotiation of a covered Feder as a condition for receiving that Federal action. Thus, for example, commu- al contract, grant, loan, or cooperative nications with the intent to influence agreement. made by a lawyer that do not provide (b) The reporting requirements in legal advice or analysis directly and $ 1271.110 (a) and (b) regarding filing solely related to the legal aspects of a disclosure form by each person, if rehis or her client's proposal, but gener- quired, shall not apply with respect to

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