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his or her client's proposal, but gen- dered directly in the preparation, suberally advocate one proposal over an- mission, or negotiation of any commitother are not allowable under this sec- ment providing for the United States tion because the lawyer is not pro- to insure or guarantee a loan. viding professional legal services.

(c) For purposes of paragraph (a) of Similarly, communications with the

this section, "professional and techintent to influence made by an engi

nical services” shall be limited to adneer providing an engineering analysis

vice and analysis directly applying any prior to the preparation or submission of a bid or proposal are not allowable

professional or technical discipline. under this section since the engineer is

For example, drafting or a legal docuproviding technical services but not di

ment accompanying a bid or proposal rectly in the preparation, submission

by a lawyer is allowable. Similarly,

21 or negotiation of a covered Federal ac

technical advice provided by an engition.

neer on the performance or operational (c) Requirements imposed by or pur- capability of a piece of equipment rensuant to law as a condition for receiv- dered directly in the negotiation of a ing a covered Federal award include contract is allowable. However, comthose required by law or regulation, or munications with the intent to influreasonably expected to be required by ence made by a professional (such as a law or regulation, and any other re- licensed lawyer) or a technical person

La quirements in the actual award docu- (such as a licensed accountant) are not ments.

allowable under this section unless (d) Only those services expressly au

they provide advice and analysis dithorized by this section are allowable

rectly applying their professional or under this section.

technical expertise and unless the ad$28.210 Reporting.

vice or analysis is rendered directly No reporting is required with respect

and solely in the preparation, submisto payments of reasonable compensa

sion or negotiation of a covered Fedtion made to regularly employed offi

eral action. Thus, for example, commucers or employees of a person.

nications with the intent to influence and

made by a lawyer that do not provide Subpart C-Activities by Other

legal advice or analysis directly and get Than Own Employees

solely related to the legal aspects of

his or her client's proposal, but gen828.300 Professional and technical erally advocate one proposal over anservices.

other are not allowable under this sec(a) The prohibition on the use of ap

tion because the lawyer is not propropriated funds, in $28.100 (a), does

viding professional legal services. not apply in the case of any reasonable

Similarly, communications with the payment to a person, other than an of

intent to influence made by an engificer or employee of a person request

neer providing an engineering analysis ing or receiving a covered Federal ac- prior to the preparation or submission tion, if the payment is for professional of a bid or proposal are not allowable or technical services rendered directly under this section since the engineer is in the preparation, submission, or ne- providing technical services but not digotiation of any bid, proposal, or appli- rectly in the preparation, submission cation for that Federal contract, grant, or negotiation of a covered Federal acloan, or cooperative agreement or for tion. meeting requirements imposed by or (d) Requirements imposed by or purpursuant to law as a condition for re

suant to law as a condition for receivceiving that Federal contract, grant,

ing a covered Federal award include loan, or cooperative agreement.

those required by law or regulation, or (b) The reporting requirements in

reasonably expected to be required by $28.110 (a) and (b) regarding filing a disclosure form by each person, if re

law or regulation, and any other required, shall not apply with respect to

quirements in the actual award docu

ments. professional or technical services ren

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

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

Subpart D-Penalties and

Enforcement

gravating circumstances for each such offense committed on or before October 23, 1996, and $11,000 for each such offense 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)

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828.405 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.

$28.400 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 s $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 i administrative action is commenced

with respect to a failure when an investigating official determines in writing to commence an investigation of an al

legation of such failure. 3 (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 con

sider 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 ag

828.410 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.

Subpart E-Exemptions 8 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 exemption 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.

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

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

$28.210 Reporting.

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

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

Subpart C-Activities by Other

Than Own Employees

828.300 Professional and technical

services. (a) The prohibition on the use of appropriated funds, in 828.100 (a), does not apply in the case of any reasonable payment to a person, other than an officer or employee of a person requesting or receiving a covered Federal action, if the payment is for professional or technical services rendered directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal contract, grant, loan, or cooperative agreement or for meeting requirements imposed by or pursuant to law as a condition for receiving that Federal contract, grant, loan, or cooperative agreement.

(b) The reporting requirements in $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 ren

(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 this section are allowable under this section.

Subpart D-Penalties and

Enforcement

gravating circumstances for each such offense committed on or before October 23, 1996, and $11,000 for each such offense 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)

8 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.

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$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 ag

828.410 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.

Subpart E-Exemptions

8 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 exemption 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.

later than with the compilations due on May 31, 1991. OMB shall provide detailed specifications in a memorandum to these agencies.

(8) 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.

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Subpart F-Agency Reports 828.600 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 disclosure 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

$28.606 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.

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APPENDIX A TO PART 28/CERTIFICATION

REGARDING LOBBYING

Certification for Contracts, Grants, Loans, 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

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