Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations 46327 

to check off a box to indicate whether 

products offered to the Federal 

Government are predominantly 

manufactured in the United States or 

outside the United States. The offeror is 

not even required to identify the 

country of manufacture if the product is 

manufactured outside the United States. 

No comments were received with regard 

to impact on small entities. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

apply; however, these changes to the 

FAR do not impose additional 

information collection requirements to 

the paperwork burden previously 

approved under OMB Control Number 

9000–0161. 

The FAR Secretariat obtained an 

emergency approval of the new 

information collection requirement, 

estimated at 38,146 hours, under OMB 

Control Number 9000–0161, FAR Case 

2005–034, Reporting of Overseas 

Purchases, from OMB under 44 U.S.C. 

3501, et seq. An estimated burden of 

38,146 hours was granted temporary 

approval under OMB Control Number 

9000–0161. We received no comments 

regarding the estimated burden hours. 

List of Subjects in 48 CFR Parts 1, 25 

and 5 

Government procurement. 

Dated: July 30, 2007. 

Al Matera, 

Acting Director, Contract Policy Division. 

Interim Rule Adopted as Final With 

Changes 

■ Accordingly, the interim rule 

amending 48 CFR parts 25 and 52 which 

was published at 71 FR 57375, 

September 28, 2006, is adopted as a 

final rule with changes. 

■ 1. The authority citation for 48 CFR 

parts 1, 25, 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 1—FEDERAL ACQUISITION 

REGULATIONS SYSTEM 

1.106 [Amended] 

■ 2. Amend section 1.106 by removing 

from FAR Segment 52.225–2 ‘‘9000–

0023 and’’ and by adding, in numerical 

order, new FAR Segment ‘‘52.225–18’’

with OMB Control Number ‘‘9000–

0161.’’

PART 25—FOREIGN ACQUISITION 

■ 3. Amend section 25.004 by revising 

paragraph (a) to read as follows: 

25.004 Reporting of acquisition of end 

products manufactured outside the United 

States. 

(a) In accordance with the 

requirements of 41 U.S.C. 10a, the head 

of each Federal agency must submit a 

report to Congress on the amount of the 

acquisitions made by the agency from 

entities that manufacture end products 

outside the United States in that fiscal 

year. 

* * * * * 

[FR Doc. 07–3808 Filed 8–16–07; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 3, 12, and 52 

[FAC 2005–19; FAR Case 2005–035; Item 

II; 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: Final rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed on a final rule 

amending the Federal Acquisition 

Regulation (FAR) in order to be 

consistent with the Lobbying Disclosure 

Act of 1995 and the Office of 

Management and Budget (OMB) Interim 

Final Guidance, and to improve clarity 

of the regulation through improved use 

of plain language and compliance with 

FAR drafting conventions. 

DATES: Effective Date: September 17, 

2007. 

FOR FURTHER INFORMATION CONTACT Mr. 

Ernest Woodson, Procurement Analyst, 

at (202) 501–3775, for clarification of 

content. For information pertaining to 

status or publication schedules, contact 

the FAR Secretariat at (202) 501–4755. 

Please cite FAC 2005–19, FAR case 

2005–035. 

SUPPLEMENTARY INFORMATION: 

A. Background 

DoD, GSA, and NASA published a 

proposed rule in the Federal Register at 

71 FR 54255 on September 14, 2006. 

The final rule is not significantly 

different from the proposed rule. Among 

the various changes, this final rule—

• Includes the new concept of 

‘‘lobbying contact’’ and brings in the 

concept of registrants under the 

Lobbying Act of 1995. 

• Includes the OMB guidance that the 

term ‘‘appropriated funds’’ does not 

include profit or fee from a covered 

Federal action and that to the extent the 

contractor can demonstrate that the 

contractor has sufficient monies, other 

than Federal appropriated funds, the 

Government will assume that these 

other monies were spent for any 

influencing activities that would be 

unallowable if paid for with Federal 

appropriated funds. 

• Formalizes in the regulations the 

changes that were already incorporated 

in the OMB Standard Form (SF) LLL, 

Disclosure of Lobbying Activities. 

• Removes 31 U.S.C. 1352, 

Limitations on Payment to Influence 

Certain Federal Transactions, from the 

list of laws that are inapplicable to 

subcontracts for the acquisition of 

commercial items. 

• Makes the text, provisions, and 

clauses, easier to understand, for both 

contracting officers and offerors/ 

contractors. 

The comment period closed on 

November 13, 2006. We received 3 

public comments, each addressing a 

different aspect of the rule. The 

Councils addressed these comments in 

the formulation of the final rule as 

follows: 

Commercial contracts 

Comment: One respondent comments 

that the rule deletes in FAR 12.504(a), 

paragraph (3) ‘‘31 U.S.C. 1352, 

Limitation on Payments to Influence 

Certain Federal Transactions (see FAR 

Subpart 3.8),’’ thereby making lobbying 

payments unacceptable under 

commercial subcontracts acquired 

under FAR Part 12. The respondent is 

concerned that although the rule 

requires a certification and disclosure, it 

does not include any means to enforce 

the prohibition on commercial 

contracts. 

Response: The rule provides civil and 

criminal penalties for any person who 

makes an expenditure prohibited by the 

rule. 

The requirements of the law are 

generally conveyed to the contractor 

through clauses. Paragraph (e) of FAR 

52.212–3, Offeror Representations and 

Certifications—Commercial Items, 

already provides for offeror lobbying 

certification. The proposed rule also 

added language to paragraph (e) relating 

to the requirement to submit OMB SF 


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LLL, Disclosure of Lobbying Activities, 

if any registrants under the Lobbying 

Disclosure Act of 1995 have made 

lobbying contact on behalf of the offeror 

with respect to the contract. The rule 

provides that contractors may rely 

without penalty on the representation 

made by their subcontractors in the 

certification and representations. FAR 

52.212–5, Contract Terms and 

Conditions Required to Implement 

Statute or Executive Orders—

Commercial Items, does not require 

inclusion of FAR 52.203–12, Limitation 

on Payments to Influence Certain 

Federal Transactions, in commercial 

contracts awarded using Part 12 

procedures. However, FAR 52.212–4, 

Contract Terms and Conditions—

Commercial Items, does require 

compliance with 31 U.S.C. 1352, 

relating to limitations on the use of 

appropriated funds to influence certain 

Federal contracts in paragraph 52.212–

4(r), Compliance with laws unique to 

Government contracts. Therefore, even 

without FAR 52.203–12 and the specific 

flow down in paragraph 52.203–12(g) of 

the requirement for the contractor to 

obtain from subcontractors a 

declaration, including the certification 

and disclosure in paragraphs (b) and (c) 

of the provision at FAR 52.203–11, 

Certification and Disclosure Regarding 

Payments to Influence Certain Federal 

Transactions, the requirement to comply 

with the law is imposed on the prime 

contractor, including obtaining 

necessary documentation from 

subcontractors, to the extent required by 

law. 

Due date for quarterly reports 

Comment: One respondent believes 

that there is a practical problem in FAR 

52.203–12(d)(2), requiring the prime 

contractor to report to the contracting 

officer by the end of the quarter in 

which the subcontractors have reported 

to the prime contractor. The respondent 

is concerned that if the subcontractor 

does not report until the last day of the 

quarter, it will be impossible for the 

prime contractor to meet the proposed 

reporting obligation. The respondent 

recommends changing the reporting 

paragraph to read ‘‘the Prime 

Contractors shall submit a copy of all 

disclosures to the Contracting Officer as 

soon as possible after the end of the 

calendar quarter in which the disclosure 

form is submitted by the subcontractor.’’

Response: To clarify this point, the 

Councils have revised the clause to 

require submission within 30 days after 

the end of the calendar quarter. 

Grants, loans, and cooperative 

agreements 

Comment: Another respondent 

strongly supports the rule, and the fact 

that ‘‘covered Federal Action’’ also 

includes grants and cooperative 

agreements. The respondent suggests 

that the presumption stated in the 1990 

OMB Interim Guidance should be 

extended to OMB Circular A–122, Cost 

Principles for Non-Profit Organizations. 

This presumption was 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 

the Federal appropriated funds. 

The respondent also suggests that the 

FAR rule should be revised to include 

the additional statement from OMB‘s 

clarifying notice of June 15, 1990, that 

‘‘Profits, and fees that constitute profits, 

earned under Federal grants, loans, and 

cooperative agreements are not 

considered appropriated funds.’’

Response: The respondent’s first 

suggestion regarding OMB Circular A–

122 is outside the scope of the rule. 

However, the respondent‘s suggestion 

will be referred to OMB for its 

consideration. 

Although, the definition of covered 

Federal action correctly includes actions 

other than contracts, the respondent’s 

request to include policies regarding 

grants, loans, and cooperative 

agreements in the FAR rule exceeds the 

appropriate scope of the FAR rule. The 

FAR only governs acquisition (acquiring 

by contract with appropriated funds of 

supplies or services (including 

construction) by and for the use of the 

Federal Government through purchase 

or lease). The FAR does not govern 

Federal grants, loans, or cooperative 

agreements. 

Editorial corrections 

In addition to the changes made in 

response to public comment, the 

Councils agreed to various editorial 

corrections: 

• Definition of ‘‘recipient’’ at 3.801 

and 52.203–12(a)—insert ‘‘are’’ in last 

line between ‘‘and’’ and ‘‘permitted’’. 

• 3.802(a) and 52.203–12(b) 

introductory text—Insert ‘‘any’’ in the 

fifth line after ‘‘in connection with’’ and 

before ‘‘Federal actions’’. 

• 3.802(a)(2) and 52.203–12(b)(2)—

Add at the end of sentence ‘‘* * * that 

would be unallowable if paid for with 

Federal appropriated funds’’ and change 

‘‘the Government shall’’ to ‘‘the 

Government will’’ in the clause. 

• 3.803(a)(2)(iii) and 52.203–

12(c)(2)(iii)—Revise ‘‘paragraph (a)(2) of 

this section’’ to ‘‘this paragraph (a)(2)’’

and revise ‘‘paragraph (c)(2) of this 

clause’’ to ‘‘this paragraph (c)(2)’’. 

• 52.203–12(a) Definition of 

‘‘Agency’’—Add Acronym ‘‘FAR’’ after 

‘‘Federal Acquisition Regulation’’. The 

acronym is used several times 

subsequently in the clause. 

• 52.203–12(c)(1)(v)—Add after the 

text ‘‘Making capability presentations’’

‘‘prior to formal solicitation of any 

covered Federal action’’ for consistency 

with the exception in the text at 

3.803(a)(1)(v). 

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 

DoD, GSA, and NASA certify that this 

final rule will not 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 

rule mainly implements improvements 

in clarity and consistency. The number 

of small entities paying for lobbying 

with non-Federal funds is estimated to 

be near zero. The rule does not impose 

new requirements that impose a burden 

on contractors. No comments were 

received with regard to impact on small 

business. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

apply; however, these changes to the 

FAR do not impose additional 

information collection requirements to 

the paperwork burden previously 

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, Disclosure 

of Lobbying Activities. 

List of Subjects in 48 CFR Parts 3, 12, 

and 52. 

Government procurement. 

Dated: July 30, 2007. 

Al Matera, 

Acting Director, Contract Policy Division. 

■ Therefore, DoD, GSA, and NASA 

amend 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: 


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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. Revise section 3.801 to read 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. 

Influencing or attempting to influence 

means making, with the intent to 

influence, any communication to or 

appearance before 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 

covered Federal action. 

Local government means a unit of 

government in a State and, if chartered, 

established, or otherwise recognized by 

a State for the performance of a 

governmental duty, including a local 

public authority, a special district, an 

intrastate district, a council of 

governments, a sponsor group 

representative organization, and any 

other instrumentality of a local 

government. 

Officer or employee of an agency 

includes the following individuals who 

are employed by an agency: 

(1) An individual who is appointed to 

a position in the Government under 

Title 5, United States Code, including a 

position under a temporary 

appointment. 

(2) A member of the uniformed 

services, as defined in subsection 

101(3), Title 37, United States Code. 

(3) A special Government employee, 

as defined in section 202, Title 18, 

United States Code. 

(4) An individual who is a member of 

a Federal advisory committee, as 

defined by the Federal Advisory 

Committee Act, Title 5, United States 

Code, appendix 2. 

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 

3.802(a) and are permitted by other 

Federal law. 

Reasonable compensation means, 

with respect to a regularly employed 

officer or employee of any person, 

compensation that is consistent with the 

normal compensation for such officer or 

employee for work that is not furnished 

to, not funded by, or not furnished in 

cooperation with the Federal 

Government. 

Reasonable payment means, with 

respect to professional and other 

technical services, a payment in an 

amount that is consistent with the 

amount normally paid for such services 

in the private sector. 

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 3.802(a) and are 

permitted by other Federal law. 

Regularly employed means, with 

respect to an officer or employee of a 

person requesting or receiving a Federal 

contract, an officer or employee who is 

employed by such person for at least 

130 working days within 1 year 

immediately preceding the date of the 

submission that initiates agency 

consideration of such person for receipt 

of such contract. An officer or employee 

who is employed by such person for less 

than 130 working days within 1 year 

immediately preceding the date of the 

submission that initiates agency 

consideration of such person shall be 

considered to be regularly employed as 

soon as he or she is employed by such 

person for 130 working days. 

State means a State of the United 

States, the District of Columbia, an 

outlying area of the United States, an 

agency or instrumentality of a State, and 

multi-State, regional, or interstate entity 

having governmental duties and powers. 

■ 4. Revise section 3.802 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 any 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 

that would be unallowable if paid for 

with Federal appropriated funds. 

(b) 31 U.S.C. 1352 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. 

■ 5. Revise section 3.803 to read as 

follows: 

3.803 Exceptions. 

(a) The prohibition of paragraph 

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—


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(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 

paragraph 3.802(b) do not apply with 

respect to payments of reasonable 

compensation made to regularly 

employed officers or employees of a 

person. 

■ 6. Revise section 3.804 to read as 

follows: 

3.804 Policy. 

The contracting officer shall obtain 

certifications and disclosures as 

required by the provision at 52.203–11, 

Certification and Disclosure Regarding 

Payments to Influence Certain Federal 

Transactions, prior to the award of any 

contract exceeding $100,000. 

■ 7. Revise section 3.805 to read as 

follows: 

3.805 Exemption. 

The Secretary of Defense may exempt, 

on a case-by-case basis, a covered 

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. 

■ 8. Revise section 3.806 to read as 

follows: 

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. 

■ 9. Revise section 3.808 to read as 

follows: 

3.808 Solicitation provision and contract 

clause. 

(a) Insert the provision at 52.203–11, 

Certification and Disclosure Regarding 

Payments to Influence Certain Federal 

Transactions, in solicitations expected 

to exceed $100,000. 

(b) Insert the clause at 52.203–12, 

Limitation on Payments to Influence 

Certain Federal Transactions, in 

solicitations and contracts expected to 

exceed $100,000. 

PART 12—ACQUISITION OF 

COMMERCIAL ITEMS 

12.504 [Amended] 

■ 10. Amend section 12.504 by 

removing and reserving paragraph (a)(3). 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 11. 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 (SEP 

2007) 

(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 


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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) 

■ 12. Revise section 52.203–12 to read 

as follows: 

52.203–12 Limitation on Payments to 

Influence Certain Federal Transactions. 

As prescribed in 3.808(b), insert the 

following clause: 

LIMITATION ON PAYMENTS TO 

INFLUENCE CERTAIN FEDERAL 

TRANSACTIONS (SEP 2007) 

(a) Definitions. As used in this 

clause—

Agency means executive agency as 

defined in Federal Acquisition 

Regulation (FAR) 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. 

Influencing or attempting to influence 

means making, with the intent to 

influence, any communication to or 

appearance before 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 

covered Federal action. 

Local government means a unit of 

government in a State and, if chartered, 

established, or otherwise recognized by 

a State for the performance of a 

governmental duty, including a local 

public authority, a special district, an 

intrastate district, a council of 

governments, a sponsor group 

representative organization, and any 

other instrumentality of a local 

government. 

Officer or employee of an agency 

includes the following individuals who 

are employed by an agency: 

(1) An individual who is appointed to 

a position in the Government under 

Title 5, United States Code, including a 

position under a temporary 

appointment. 

(2) A member of the uniformed 

services, as defined in subsection 

101(3), Title 37, United States Code. 

(3) A special Government employee, 

as defined in section 202, Title 18, 

United States Code. 

(4) An individual who is a member of 

a Federal advisory committee, as 

defined by the Federal Advisory 

Committee Act, Title 5, United States 

Code, appendix 2. 

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. 

Reasonable compensation means, 

with respect to a regularly employed 

officer or employee of any person, 

compensation that is consistent with the 

normal compensation for such officer or 

employee for work that is not furnished 

to, not funded by, or not furnished in 

cooperation with the Federal 

Government. 

Reasonable payment means, with 

respect to professional and other 

technical services, a payment in an 

amount that is consistent with the 

amount normally paid for such services 

in the private sector. 

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 are permitted by other Federal law. 

Regularly employed means, with 

respect to an officer or employee of a 

person requesting or receiving a Federal 

contract, an officer or employee who is 

employed by such person for at least 

130 working days within 1 year 

immediately preceding the date of the 

submission that initiates agency 

consideration of such person for receipt 

of such contract. An officer or employee 

who is employed by such person for less 

than 130 working days within 1 year 

immediately preceding the date of the 

submission that initiates agency 

consideration of such person shall be 

considered to be regularly employed as 

soon as he or she is employed by such 

person for 130 working days. 

State means a State of the United 

States, the District of Columbia, or an 

outlying area of the United States, an 

agency or instrumentality of a State, and 

multi-State, regional, or interstate entity 

having governmental duties and powers. 

(b) Prohibition. 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 any 

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 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 

contractor 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 

will assume that these other monies 

were spent for any influencing activities 

that would be unallowable if paid for 

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 


sroberts on PROD1PC70 with RULES
46332 Federal Register / Vol. 72, No. 159 / Friday, August 17, 2007 / Rules and Regulations 

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; and 

(v) Making capability presentations 

prior to formal solicitation of any 

covered Federal action 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 or an 

extension, continuation, renewal, 

amendment, or modification of 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 

examples, 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 (d) 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, at the end of the 

calendar quarter in which the change 

occurs, submit to the Contracting Officer 

within 30 days an updated disclosure 

using OMB Standard Form LLL. 

(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. An imposition of a civil 

penalty does not prevent the 

Government from seeking any other 

remedy that may be applicable. 

(2) Contractors may rely without 

liability on the representation made by 

their subcontractors in the certification 

and disclosure form. 

(f) Cost allowability. Nothing in this 

clause makes allowable or reasonable 

any costs which would otherwise be 

unallowable or unreasonable. 

Conversely, costs made specifically 

unallowable by the requirements in this 

clause will not be made allowable under 

any other provision. 

(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, at the end of the 

calendar quarter in which the disclosure 

form is submitted by the subcontractor, 

submit to the Contracting Officer within 

30 days a copy of all disclosures. 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) 

■ 13. Amend section 52.212–3 by 

revising the date of the provision and 

paragraph (e) to read as follows: 

52.212–3 Offeror Representations and 

Certifications—Commercial Items. 

* * * * * 

OFFEROR REPRESENTATIONS AND 

CERTIFICATIONS—COMMERCIAL ITEMS 

(SEP 2007) 

* * * * * 

(e) Certification Regarding Payments 

to Influence Federal Transactions (31 

U.S.C. 1352). (Applies only if the 

contract is expected to exceed 

$100,000.) By submission of its offer, 

the offeror 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 his or her 

behalf in connection with the award of 

any resultant contract. 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. 07–3807 Filed 8–16–07; 8:45 am] 

BILLING CODE 6820–EP–S 


sroberts on PROD1PC70 with RULES