Florida Senate - 2024 CS for SB 7042 By the Appropriations Committee on Agriculture, Environment, and General Government; the Committee on Governmental Oversight and Accountability; and Senator Rodriguez 601-03263-24 20247042c1 1 A bill to be entitled 2 An act relating to commodities produced by forced 3 labor; creating s. 287.1346, F.S.; defining terms; 4 prohibiting a company on the forced labor vendor list 5 from taking certain procurement actions; prohibiting 6 an agency from procuring commodities from certain 7 companies for a certain timeframe; requiring that 8 certain solicitations and contracts include a certain 9 statement; requiring that certain contracts include a 10 certain termination provision; requiring a member of a 11 company’s senior management to provide a certain 12 certification within a specified timeframe; requiring 13 a company to provide a certain notification to the 14 Department of Management Services within a certain 15 timeframe; requiring an agency to provide certain 16 information to the department within a certain 17 timeframe; requiring the department to create and 18 maintain a forced labor vendor list; providing 19 requirements for such list; requiring the department 20 to publish such list quarterly and to post such list 21 on its website; providing for automatic removal from 22 the list if certain conditions are met; providing a 23 process for the department to place a company on such 24 list; subjecting a company that submits a false 25 certification or that should have had certain 26 knowledge to a fine; authorizing a company that 27 receives certain notice to file a petition for a 28 certain hearing; providing requirements and procedures 29 for such hearings; providing evidentiary standards for 30 certain proceedings; authorizing a company placed on 31 such list to petition for removal; providing 32 requirements for such petitions; authorizing the 33 removal of a company from such list under certain 34 circumstances; providing construction; requiring that 35 collected fines be deposited into the General Revenue 36 Fund; providing an effective date. 37 38 Be It Enacted by the Legislature of the State of Florida: 39 40 Section 1. Section 287.1346, Florida Statutes, is created 41 to read: 42 287.1346 Provision of commodities produced by forced labor; 43 denial or revocation of the right to transact business with 44 agencies.— 45 (1) As used in this section, the term: 46 (a) “Forced labor” means work or service exacted from any 47 person, including a minor, under the menace of a penalty for 48 nonperformance and for which the worker does not offer himself 49 or herself voluntarily or an activity that violates s. 787.06. 50 (b) “Forced labor vendor list” or “list” means the list 51 required to be created and maintained by the department pursuant 52 to paragraph (4)(d). 53 (c) “Senior management” includes chief executive officers; 54 assistant chief executive officers, including, but not limited 55 to, assistant presidents, vice presidents, or assistant 56 treasurers; chief financial officers; chief personnel officers; 57 or any employee of an entity performing similar functions. 58 (2) A company on the forced labor vendor list may not: 59 (a) Submit a bid, proposal, or reply on a contract to 60 provide any commodities to an agency. 61 (b) Be awarded a contract or perform work as a contractor, 62 supplier, subcontractor, or consultant with an agency for the 63 provision of commodities. 64 (c) Transact business for the provision of commodities with 65 any agency. 66 (3) An agency may not accept a bid, proposal, or reply 67 from, award a contract to, or transact business pertaining to 68 the provision of commodities with a company on the forced labor 69 vendor list, or an entity under the control of such company, for 70 a period of 365 days after the date the company is placed on the 71 list unless the company is removed from the list pursuant to 72 paragraph (5)(d). 73 (4)(a)1. All invitations to bid, requests for proposals, 74 and invitations to negotiate and any written contract for the 75 provision of commodities by an agency must include a statement 76 informing companies of the requirements of this section. 77 2. Any contract with an agency for the provision of 78 commodities entered into or renewed on or after July 1, 2024, 79 must include a provision that allows for the termination of such 80 contract at the option of the awarding agency if the company is 81 placed on the forced labor vendor list. 82 (b) At the time a company submits a bid, proposal, or reply 83 for a contract and before the company enters into or renews a 84 contract with an agency for the provision of commodities, a 85 member of the company’s senior management must certify, in 86 writing, that to the best of his or her knowledge the 87 commodities such company is offering to the agency have not been 88 produced, in whole or in part, by forced labor. 89 (c) A company must notify the department within 30 days 90 after gaining actual knowledge that the company has provided to 91 an agency a commodity produced, in whole or in part, by forced 92 labor. Any agency that receives information that a company has 93 provided to an agency a commodity produced, in whole or in part, 94 by forced labor must provide that information to the department 95 in writing within 10 days. 96 (d) The department shall create and maintain a forced labor 97 vendor list that contains the name and address of each company 98 that has been disqualified from the public contracting and 99 purchasing process under this section. The department shall 100 publish an updated version of the list quarterly. The updated 101 quarterly list shall be electronically posted on the 102 department’s website. Notwithstanding this paragraph, a company 103 disqualified from the public contracting and purchasing process 104 pursuant to this section shall be disqualified as of the date a 105 final order is entered pursuant to paragraph (e) or paragraph 106 (5)(a). A company is removed automatically from the list 366 107 days after the date of the final order placing the company on 108 the list. 109 (e) Upon receiving from any source reasonable and credible 110 information that a company has submitted a false certification 111 or provided to an agency a commodity produced, in whole or in 112 part, by forced labor, the department shall investigate the 113 information and determine whether good cause exists to place the 114 company on the forced labor vendor list and whether such 115 placement is in the public interest. If good cause exists and 116 placement is in the public interest, the department shall notify 117 the company in writing of the department’s intent to place the 118 company on the list and of the company’s right to a hearing, the 119 procedure that must be followed, and the applicable time 120 requirements. If the company does not request a hearing, the 121 department shall enter a final order placing the company on the 122 forced labor vendor list. A company may not be placed on the 123 forced labor vendor list without receiving an individual notice 124 of intent from the department. 125 1. It is not in the public interest to place a company on 126 the forced labor vendor list if any of the following applies: 127 a. The company did not provide to an agency a commodity 128 produced, in whole or in part, by forced labor; 129 b. The provision to an agency of a commodity produced, in 130 whole or in part, by forced labor was committed by an employee 131 of the company without the actual or constructive knowledge of 132 any member of the company’s senior management; 133 c. The member of the company’s senior management 134 responsible for the contract under which the company provided to 135 the agency a commodity produced, in whole or in part, by forced 136 labor did not have actual or constructive knowledge that the 137 commodity was produced, in whole or in part, by forced labor and 138 a reasonable person under similar circumstances to that of such 139 member would not have known that the commodity was produced, in 140 whole or in part, by forced labor; 141 d. The member of the company’s senior management 142 responsible for the contract under which the company provided to 143 the agency a commodity produced, in whole or in part, by forced 144 labor is no longer an employee of the company; or 145 e. One of the following occurs: 146 (I) For a contract with an executive agency, the Governor 147 makes a public finding that, absent the provision of such 148 commodities by the company, the agency would be unable to obtain 149 the commodities for which the contract is offered. 150 (II) For a contract with an agency of a state 151 constitutional officer other than the Governor, the state 152 constitutional officer makes a public finding that, absent the 153 provision of such commodities by the company, the agency would 154 be unable to obtain the commodities for which the contract is 155 offered. 156 2. In determining whether it is in the public interest to 157 place a company on the forced labor vendor list, the following 158 factors shall be considered: 159 a. The nature and details of the provision of the commodity 160 produced, in whole or in part, by forced labor. 161 b. The degree of culpability of the company proposed to be 162 placed on the forced labor vendor list. 163 c. Prior or future self-policing by the company to prevent 164 the provision of a commodity produced, in whole or in part, by 165 forced labor. 166 d. The company’s compliance with paragraph (c). 167 e. The needs of agencies for additional competition in the 168 procurement of commodities in their respective markets. 169 f. Mitigation based upon any demonstration of good 170 citizenship by the company, including, but not limited to, the 171 adoption of a formal plan to cease producing or providing 172 commodities produced, in whole or in part, by forced labor. 173 (f) A company that submits a false certification under 174 paragraph (b) or that should have known that a commodity 175 provided under a contract with an agency was produced, in whole 176 or in part, by forced labor and is subsequently placed on the 177 forced labor vendor list shall be assessed a fine of $1,000 or 178 an amount equal to 20 percent of the value of the commodity 179 provided to the agency under the contract, whichever is greater. 180 (5)(a) Within 21 days after receipt of the notice of intent 181 pursuant to paragraph (4)(e), the company may file a petition 182 for a hearing involving disputed issues of material fact 183 pursuant to ss. 120.569 and 120.57(1) to challenge the 184 department’s determination that the company’s placement on the 185 forced labor vendor list is in the public interest. A company 186 may not file a petition for a hearing not involving disputed 187 issues of material fact under s. 120.57(2). Chapter 120 applies 188 to a hearing under this section except that: 189 1. The petition shall be filed with the department. The 190 department shall be a party to the proceeding for all purposes. 191 2. Within 5 days after the filing of the petition, the 192 department shall notify the Division of Administrative Hearings 193 of the request for a hearing pursuant to ss. 120.569 and 194 120.57(1). The director of the Division of Administrative 195 Hearings shall, within 5 days after receipt of notice from the 196 department, assign an administrative law judge to preside over 197 the proceeding. The administrative law judge, upon request by a 198 party, may consolidate related proceedings. 199 3. The administrative law judge shall conduct the hearing 200 within 30 days after being assigned, unless otherwise stipulated 201 by the parties. 202 4. Within 30 days after the hearing or receipt of the 203 hearing transcript, whichever is later, the administrative law 204 judge shall enter a final order, which shall consist of findings 205 of fact, conclusions of law, interpretation of agency rules, and 206 any other information required by law or rule to be contained in 207 the final order. Such final order shall place or not place the 208 company on the forced labor vendor list. 209 5. The final order of the administrative law judge shall be 210 final agency action for purposes of s. 120.68. 211 6. At any time after the filing of the petition, informal 212 disposition may be made pursuant to s. 120.57(4). In that event, 213 the administrative law judge shall enter a final order adopting 214 the stipulation, agreed settlement, or consent order. 215 (b) In any proceeding under this section, the department is 216 required to prove by clear and convincing evidence that it is in 217 the public interest for the company to which the department has 218 provided notice of intent pursuant to paragraph (4)(e) to be 219 placed on the forced labor vendor list. Proof that such company 220 provided to an agency a commodity produced, in whole or in part, 221 by forced labor constitutes a rebuttable presumption that it is 222 in the public interest for the company to be placed on the 223 forced labor vendor list. 224 (c) Upon establishment of the rebuttable presumption in 225 paragraph (b) that it is in the public interest for the company 226 to be placed on the forced labor vendor list, that company may 227 prove by a preponderance of the evidence that it is not in the 228 public interest for such company to be placed on the list based 229 upon evidence addressing the provisions of sub-subparagraph 230 (4)(e)1. or the factors in sub-subparagraph (4)(e)2. 231 (d)1. A company on the forced labor vendor list may 232 petition for such company’s removal from the list no sooner than 233 6 months after the date a final order is entered placing the 234 company on the list. The petition shall be filed with the 235 department, and the proceeding shall be conducted pursuant to 236 this subsection. 237 2. A company may be removed from the forced labor vendor 238 list subject to such terms and conditions as may be prescribed 239 by the administrative law judge upon a determination that 240 removal is in the public interest. In determining whether 241 removal is in the public interest, the administrative law judge 242 shall give consideration to any relevant factors, including 243 whether the company has prepared a corrective action plan that 244 addresses the original grounds for placement on the list as well 245 as any additional evidence that the company has in good faith 246 taken significant remedial action. 247 3. If a petition for removal is denied, the company may not 248 petition for another hearing on removal. The department may 249 petition for removal before the expiration of the 365-day period 250 provided in subsection (3) if, in the department’s discretion, 251 the department determines that removal would be in the public 252 interest. 253 (6) Placement on the forced labor vendor list does not 254 affect any rights or obligations under any contract, franchise, 255 or other binding agreement which predate such placement. 256 (7) Any fines collected under this section shall be 257 deposited into the General Revenue Fund. 258 Section 2. This act shall take effect July 1, 2024.