Federal Register / Vol. 71, No. 178 / Thursday, September 14, 2006 / Proposed Rules 54255 

12th Street, SW., Washington DC 20554. 

People with Disabilities: To request 

materials in accessible formats for 

people with disabilities (Braille, large 

print, electronic files, audio format), 

send an e-mail to fcc504@fcc.gov or call 

the Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice), 202–

418–0432 (tty). 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. E6–15246 Filed 9–13–06; 8:45 am] 

BILLING CODE 6712–01–P 

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. 

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://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:// 

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, 


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54256 Federal Register / Vol. 71, No. 178 / Thursday, September 14, 2006 / Proposed Rules 

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. 


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Federal Register / Vol. 71, No. 178 / Thursday, September 14, 2006 / Proposed Rules 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 nonFederal 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 


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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 


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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 


rwilkins on PROD1PC63 with PROPOSAL
54260 Federal Register / Vol. 71, No. 178 / Thursday, September 14, 2006 / Proposed Rules 

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 


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