FDIC |
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Federal Deposit
Insurance Corporation |
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Washington, DC 20429 |
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Legal Division |
TO: FDIC Outside Counsel
SUBJECT: Implementation of
31 U.S.C. § 1352: Instructions for Completing Required Form(s)
In accordance with 31
U.S.C. § 1352 (b) (the “Act” or “Byrd Amendment”),
all firms that request or receive a "contract" to provide
legal services to the FDIC on a matter for which the firm has been
or is expected to be paid $100,000 (fees and expenses) or more
must complete and return the FDIC Certification Form
3700/04A (10-05)
("Certification Form"). On the Certification Form your
firm certifies whether it has made any payment or has agreed to
make any payment prohibited by the Act. Furthermore, if any such
payment has or will be made, the firm shall also complete and submit
the
Disclosure of Lobbying Activities (Standard Form LLL) ("Disclosure
Form"). Thus, the Certification Form is required whether or
not your firm has engaged in any lobbying activities. The Disclosure
Form should be filed only if your firm has engaged in lobbying
activities.
Your firm is responsible
for determining when the total fees (including expenses) for
a legal matter exceed or are expected to exceed $100,000.
Furthermore, your firm is responsible for complying with 31 U.S.C. § 1352
(b) when total fees (including expenses) for a legal matter were
initially estimated to be less than $100,000 and were subsequently
amended to exceed $100,000, or if you received $100,000 or more
for a legal matter.
If your firm has not previously
filed a Certification Form and a Disclosure Form, if required,
in accordance with 31 U.S.C. § 1352
(b), then your firm must file the appropriate form(s) with the
FDIC within 20 days from the date of the engagement. If
your firm has previously filed a Certification Form and
Disclosure Form, if required, please note that your firm has a
continuing duty to update previously filed Certification Forms
and Disclosure Forms, pursuant to 31 U.S.C. § 1352 (b)(4)(C). If
we do not receive an amended Certification Form and Disclosure
Form, if required, then we will assume that no event has occurred
that has materially affected the accuracy of a previously filed
Certification Form and Disclosure Form.
Completed forms should
be returned to the FDIC Legal Division office that issued the
specific referral or engagement. Please
note that your firm is responsible for ensuring that the forms
that you file with the FDIC are accurate. The Act provides that
those "persons", i.e. firms, who fail to file the Certification
Form or the Disclosure Form shall be subject to a civil penalty
of not less than $10,000 and not more than $100,000 for each failure
to disclose. 31 U.S.C. § 1352 (c)(2)(A).
The Byrd Amendment,
prohibits the use of appropriated funds by recipients of a "Federal contract" for purposes of influencing
or attempting to influence federal officials in connection with
a "Federal action," such as the awarding of a "Federal
contract." The Act prohibits "contractors" from
using appropriated funds for lobbying in connection with a contract,
grant, loan or cooperative agreement with a Federal agency. Furthermore,
the Act requires the "contractor" to disclose to the
Federal agency involved its lobbying activities connected with
such "contract," grant or loan when the "contract" amount
exceeds $100,000 regardless of whether the activities are funded
with appropriated funds.
The Act requires that
a recipient of a "Federal contract" in
excess of $100,000 must file with the agency certain certification
and disclosure forms. Certification and disclosure forms must be
filed with the agency in accordance with 31 U.S.C. § 1352 (b)(4):
(A) with each submission that requests an award of a federal
contract, grant, loan, or cooperative agreement;
(B) upon the receipt of a federal contract, grant, loan, or
cooperative agreement; and
(C) at the end of
each calendar quarter in which any event occurs that "materially
affects the accuracy of the information contained in any declaration
previously filed."