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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.

Subport B–Activities by Own Employees

$28.200 Agency and legislative liaison.

(a) The prohibition on the use of appropriated funds, in § 28.100 (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 legislative liaison activities not directly related to a Covered Federal action. (b) For purposes of paragraph (a) of this section, providing any information specifically requested by an agency or Congress is allowable at any time. (c) For purposes Of paragraph (a) Of this section, the following agency and legislative liaison activities are allowable at any time only where they are not related to a specific Solicitation for any covered Federal action: (1) Discussing with an agency (including individual demonstrations) the qualities and characteristics of the person’s products or services, conditions or terms of sale, and Service capabilities; and, (2) Technical discussions and other activities regarding the application or adaptation of the person’s products or services for an agency’s use. (d) For purposes of paragraph (a) of this section, the following agencies and legislative liaison activities are allowable only where they are prior to formal solicitation of any covered Federal action: (1) Providing any information not specifically requested but necessary for

an agency to make an informed deciSion about initiation of a covered Federal action;

(2) Technical discussions regarding the preparation of an unsolicited proposal prior to its official Submission; and,

(3) Capability presentations by perSons Seeking awards from an agency pursuant to the provisions of the Small Business Act, as amended by Public Law 95–507 and other subsequent anmendments.

(e) Only those activities expressly authorized by this Section are allowable under this Section.

§ 28.205 Professional and technical

services.

(a) The prohibition. On the use of appropriated funds, in § 28.100(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 Or an extension, Continuation, renewal, annendment, or modification of a Federal Contract, grant, loan, or Cooperative agreement, 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 COntract, grant, loan, Or COOperative agreement Or for meeting requirements inposed by or pursuant to law as a Condition for receiving that Federal Contract, grant, loan, or cooperative agreement.

(b) 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 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 (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.

(c) Requirements in posed 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 document.S.

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cation for that Federal contract, grant, loan, or cooperative agreement or for meeting requirements in posed by or pursuant to law as a condition for receiving that Federal contract, grant, loan, or cooperative agreement.

(b) The reporting requirements in $28.110 (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 document.S.

(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.

Subport D–Pendlties dnd Enforcement

$28.400 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 made On Or before October 23, 1996, and Of not less than $11,000 and not more than $110,000 for each such expenditure made after October 23, 1996. (b) Any person who fails to file or amend the disclosure form (see Appendix B of this part) 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 occurring on or before October 23, 1996, and Of not less than $11,000 and not more than $110,000 for each such failure OCCurring after October 23, 1996. (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 for each Such Offense committed On or before October 23, 1996, and $11,000 for each such of. fense committed after October 23, 1996. Second and Subsequent Offenses by perSons shall be Subject to an appropriate civil penalty between $10,000 and $100,000 for each Such Offense committed on or before October 23, 1996, and between $11,000 and $110,000 for each Such offense Committed after October 23, 1996, 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 United States from seeking any other remedy that may apply to the same Conduct that is the basis for the imposition of such civil penalty.

[55 FR 6737, 6748, Feb. 26, 1990, as amended at 61 FR 55095, Oct. 24, 1996]

$28.405 Penalty procedures.

Agencies shall impose and collect civil penalties pursuant to the proviSions of the Program Fraud and Civil Remedies Act, 31 U.S.C. sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 3812, insofar as these proVisionS are not inconsistent with the requirements herein.

$28.410 Enforcement.

The head of each agency shall take Such actions as are necessary to ensure that the provisions herein are vigorously implemented and enforced in that agency.

Subport E-Exemptions

$28.500 Secretary of Defense.

(a) The Secretary of Defense may exempt, On a Case-by-case basis, a covered Federal action from the prohibition whenever the Secretary determines, in Writing, that Such an exemp— tion is in the national interest. The Secretary shall transmit a copy of each Such written exemption to Congress immediately after making such a determination. (b) The Department of Defense may issue supplemental regulations to implement paragraph (a) of this Section.

Subpart F.—Agency Reports

$28.600 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 intelligence matters shall be reported only to the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence Of the House of Representatives, and the Committees on Appropriations of the Senate and the House of Representatives in accordance with procedures agreed to by such committees. Such information shall not be available for public inspection. (d) Information that is Classified under Executive Order 12356 or any successor order shall be reported only to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives or the Committees On Armed Services Of the Senate and the House of Representatives (whichever Such Committees have jurisdiction of matters involving such information) and to the Committees on Appropriations of the Senate and the House of Representatives in accordance with procedures agreed to by such committees. Such information shall not be available for public inspection. (e) The first semi-annual compilation shall be submitted on May 31, 1990, and shall contain a compilation of the dis

closure reports received from December 23, 1989 to March 31, 1990.

(f) Major agencies, designated by the Office of Management and Budget (OMB), are required to provide maChine-readable compilations to the Secretary of the Senate and the Clerk of the House of Representatives no later than with the compilations due on May 31, 1991. OMB shall provide detailed specifications in a memorandum to these agencies.

(g) Non-major agencies are requested to provide machine-readable compilations to the Secretary of the Senate and the Clerk of the House of RepresentativeS.

(h) Agencies shall keep the originals Of all disclosure reports in the official files of the agency.

$28,605 Inspector General report.

(a) The Inspector General, or other official as specified in paragraph (b) of this Section, of each agency shall prepare and submit to Congress each year, commencing with Submission of the President’s Budget in 1991, an evaluation of the compliance of that agency with, and the effectiveness of, the requirements herein. The evaluation may include any recommended changes that may be necessary to strengthen or improve the requirements. (b) In the case of an agency that does not have an Inspector General, the agency official Comparable to an InSpector General shall prepare and submit the annual report, or, if there is no such Comparable official, the head of the agency shall prepare and submit the annual report. (c) The annual report shall be submitted at the Same time the agency submits its annual budget justifications to Congress. (d) The annual report shall include the following: All alleged violations relating to the agency’s covered Federal actions during the year covered by the report, the actions taken by the head of the agency in the year Covered by the report with respect to those alleged violations and alleged violations in previous years, and the amounts of civil penalties imposed by the agency in the year covered by the report.

APPENDIX ATO PART 28—CERTIFICATION REGARDING LOBBYING

Certification for Contracts, Grants, Loams, and Cooperative Agreements

The underSigned Certifies, to the best of his or her knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the underSigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with 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. (2) If any funds other than 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 in connection with this Federal contract, grant, loan, or cooperative agreement, the underSigned shall complete and Submit Standard Form—LL.L., “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 document.S 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 occurring on or before October 23, 1996, and of not less than $11,000 and not more than $110,000 for each such failure occurring after October 23, 1996.

Statement for Loam Guarantees and Loam 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 underSigned Shall Complete and Submit Standard Form-LL.L., “Disclosure Form to Report Lobbying,” in a CCOrdance with its instructions.

Submission of this Statement 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 Statement Shall be Subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure occurring on or before October 23, 1996, and of not less than $11,000 and not more than $110,000 for each Such failure occurring after October 23, 1996.

[55 FR 6737, 6748, Feb. 26, 1990, as amended at 61 FR 55095, Oct. 24, 1996]

APPENDIX B TO PART 28—DISCLOSURE FORM TO REPORT LOBBYING

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