Byrd Amendment Implementation Statement
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(Note: These requirements were written for outside counsel but also apply to experts and LSS providers.)
Federal Deposit Insurance Corporation
Washington, DC 20429
TO: FDIC Outside Counsel & Legal Support Services Providers
SUBJECT: Implementation of 31 U.S.C. § 1352 & Instructions for Completing Required Form(s)—Byrd Amendment
DATE: October 2023
Federal law at 31 U.S.C. § 1352 (hereinafter “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 Byrd Amendment prohibits contractors from using appropriated funds for lobbying in connection with a contract, grant, loan or cooperative agreement with a Federal agency. The Byrd Amendment additionally requires the contractor to disclose its lobbying activities to the Federal agency connected with such contract, grant or loan when the contract amount exceeds $100,000.
The Byrd Amendment requires a recipient of a “Federal contract” in excess of $100,000 to file with the FDIC certain certification or disclosure forms. These forms must be filed with the FDIC in accordance with subsection (b)(4) of the Byrd Amendment:
(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."
The Byrd Amendment is incumbent on all contractors doing business with the FDIC Legal Division, though it typically has greater application to law firms. All law firms or other businesses (hereinafter, “Contractor”) that receive a contract to provide legal services to the FDIC on a matter for which the Contractor 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 (“Certification Form”). On the Certification Form, Contractor certifies whether it has made any payment or has agreed to make any payment prohibited by the Byrd Amendment. Depending on the answers contained in the Certification Form, Contractor may be required to complete and submit the Disclosure of Lobbying Activities (Standard Form LLL) (“Disclosure Form”). Generally, Contractor completes the Disclosure Form only if Contractor has engaged in lobbying activities as defined in the Byrd Amendment.
Contractor is responsible for determining when the total fees and expenses for a legal matter, or their respective portion, exceed or may exceed $100,000. Contractor must comply with the Byrd Amendment even in a matter with an estimate of less than $100,000 once the $100,000 ceiling becomes reasonably foreseeable.
If Contractor has not previously filed a Certification or Disclosure Form, then Contractor must file the appropriate form(s) with the FDIC within 20 days from the date of the engagement. Contractors who have previously filed a Certification or Disclosure Form have a continuing duty to update the filing, pursuant to the Byrd Amendment. If Contractor does not deliver amended Certification or Disclosure Forms when required by the Byrd Amendment, then the FDIC assumes that no event materially affecting the accuracy of a previous Certification or Disclosure Form has occurred.
Completed forms must be returned to the FDIC Legal Division office that issued the referral or engagement within 30 days. Contractor is exclusively responsible for ensuring the accuracy of the filed forms. The Byrd Amendment provides that those “persons,” defined to include firms, who fail to file the Certification Form or the Disclosure Form will be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each failure to disclose. See 31 U.S.C. § 1352 (c)(2)(A).