3.802 Statutory prohibition and requirement
Source: FAR 3.802 on acquisition.gov
Contractors are strictly prohibited from using federal appropriated funds for lobbying and must certify and disclose any lobbying activities related to federal contracts.
Overview
FAR 3.802 implements 31 U.S.C. 1352, which strictly prohibits recipients of federal contracts, grants, loans, or cooperative agreements from using appropriated funds to pay anyone for lobbying or attempting to influence federal officials or members of Congress regarding covered federal actions. The regulation clarifies that appropriated funds do not include profit or fee earned from a federal action, and if a contractor can show that non-federal funds were used for such activities, the government will presume those funds were not appropriated. Additionally, offerors must provide a certification and disclosure regarding lobbying activities, with ongoing disclosure updates required after contract award, as detailed in FAR clauses 52.203-11 and 52.203-12.
Key Rules
- Prohibition on Use of Appropriated Funds for Lobbying
- Contractors cannot use federal appropriated funds to pay for lobbying activities related to federal contracts or actions.
- Definition of Appropriated Funds
- Profit or fee from a federal action is not considered appropriated funds for this purpose.
- Burden of Proof for Non-Federal Funds
- Contractors must demonstrate the use of non-federal funds for lobbying to avoid violation.
- Certification and Disclosure Requirement
- Offerors must submit a certification and disclosure regarding lobbying, and update disclosures periodically after award.
Responsibilities
- Contracting Officers: Ensure inclusion of the required certification and disclosure provisions/clauses and monitor compliance.
- Contractors: Must not use appropriated funds for lobbying, must certify and disclose lobbying activities, and provide updates as required.
- Agencies: Oversee compliance and enforce statutory requirements.
Practical Implications
- This section exists to prevent the misuse of federal funds for lobbying and to promote transparency in federal contracting.
- Contractors must have clear accounting and documentation to distinguish between appropriated and non-appropriated funds used for lobbying.
- Failure to comply can result in penalties, contract termination, or other legal consequences.
(a) http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1352&num=0&edition=prelim" target="_blank">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) http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1352&num=0&edition=prelim" target="_blank">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.