Supplement No. 1
May 21, 1990
Subject: Lobbying Restrictions, Additional Information and Clarification
Since C& G Memo 90-2 was issued on February 9, we have received several additional items of interest concerning federal lobbying restrictions.
In the NIH Guide for March 9, 1990, the National Institutes of Health and the Alcohol, Drug Abuse, and Mental Health Administration issued guidelines for implementing federal restrictions on lobbying regarding grants and cooperative agreements (see Enclosure 1). Most of the guidance is straightforward; we were especially glad to note that "traditional interaction of investigators and other grantee organization personnel with NIH and ADAMHA program officials and grants management staff [will] continue to be ALLOWABLE communications."
One cause for concern, however, is the statement in the second paragraph on page 2 that:
UNALLOWABLE communications include those, when supported by FEDERAL funds, that argue for approval or advocate funding of the grant or cooperative agreement application.
On its face, this statement might seem to prohibit some of the same "traditional interactions" that NIH/ADAMHA have said are still allowable. The apparent conflict can be resolved by relying on the interpretation of the intent of federal lobbying restrictions that was presented in C& G Memo 90-2. In other words, the statement quoted above should be interpreted to apply to communications that are outside the regular agency review/approval process. In particular, NIH and ADAMHA funds should not be used to support communications that are in connection with an earmarking action or any award that may result from such action. This interpretation of the NIH Guide notice has been reviewed and approved by General Counsel's office.
OFPP Clarification of Lobbying Restrictions
In a memorandum dated March 23, 1990, Allan Burman, head of the Office of Federal Procurement Policy, issued five clarifications of the OMB interim rule on lobbying published on December 20, 1989. A copy of this memorandum is found in Enclosure 2 to this Supplement; a copy of the interim rule is found in Enclosure I to C& G Memo 90-2. Three of the clarifications are of particular interest:
1. Certifications apply only to the instant federal transaction for which a certification is being obtained. This means, of course, that Contract and Grant Officers need only be concerned with whether any lobbying activity took place in connection with the proposal or award at hand; it also means that subcontractors will certify only with respect to the instant subcontract.
2. The language of the certification will be changed to reference OMB guidance. This is a very welcome change because the certification language is very unclear with respect to scope (see 1. above) and when disclosure of lobbying activities is required (see next section, "Clarification Regarding Employees"). It is too bad OFPP did not see fit to issue the new certification language along with its clarification.
3. The regulations only apply to grants, contracts and cooperative agreements over $100,000 (and loans over $150,000). Coupled with 1., above, this means, in effect, that awards under $100,000 do not have any lobbying restrictions.
Clarification Regarding Employees
There appears to be some confusion on the issue of when disclosure is required for using nonfederal funds to pay lobbyists. The law and regulations are very clear about this: institutions are not required to disclose lobbying activities conducted by regularly employed officers or employees receiving reasonable compensation, when such employees are paid with nonfederal funds. (The prohibition on the use of federal funds for lobbying purposes does apply to employees.) The confusion arises because of the poorly worded certification, which does not distinguish between employees and non-employees.
To reiterate: with respect to federal awards over $100,000 (and federal loans over $150,000), you can't use federal funds to pay for lobbying activities; if you use nonfederal funds to pay outside lobbyists, you have to disclose; and you do not have to disclose use of nonfederal funds to pay employees who engage in lobbying activities (so long as the employees are regularly employed and receiving reasonable compensation).
The Council on Governmental Relations submitted comments on federal lobbying regulations in a letter to Barbara Kahlow/OMB on April 19, 1990 (see Enclosure 3). These are good comments and we hope OMB will take them into account when it casts its regulations in final form.
Refer: Bill Sellers
Subject Index: 02, 06, 19
Organization Index: U-115
David F. Mears
Research Administration Office
Sue Spitz, Institutional Relations, OP
Phil Spiekerman, Office of General Counsel Dave Haskins, Materiel Management, OP
Nancy Coolidge, Student Financial Support, OP Vivian Scrudder, Business Operations, OP
Paul Sweet, Federal Government Relations, OP Campus and OP Legislative Liaisons