ENROLLED 2011 Legislature CS for SB 444 2011444er 1 2 An act relating to scrutinized companies; creating s. 3 287.135, F.S.; providing definitions; prohibiting a 4 state agency or local governmental entity from 5 contracting for goods and services of more than a 6 certain amount with a company that is on the 7 Scrutinized Companies with Activities in Sudan List or 8 the Scrutinized Companies with Activities in the Iran 9 Petroleum Energy Sector List; providing for a contract 10 provision that allows for termination of the contract 11 if the company is found to have been placed on such 12 list; providing exceptions; providing for a civil 13 action; providing penalties, including attorney’s fees 14 and costs; providing a statute of repose; prohibiting 15 a private right of action; requiring the Department of 16 Management Services to notify the Attorney General 17 after the act becomes law; providing that the act 18 becomes inoperative if federal law ceases to authorize 19 states to enact such contracting prohibitions; 20 providing an effective date. 21 22 Be It Enacted by the Legislature of the State of Florida: 23 24 Section 1. Section 287.135, Florida Statutes, is created to 25 read: 26 287.135 Prohibition against contracting with scrutinized 27 companies.— 28 (1) In addition to the terms defined in ss. 287.012 and 29 215.473, as used in this section, the term: 30 (a) “Awarding body” means, for purposes of state contracts, 31 an agency or the department, and for purposes of local 32 contracts, the governing body of the local governmental entity. 33 (b) “Local governmental entity” means a county, 34 municipality, special district, or other political subdivision 35 of the state. 36 (2) A company that, at the time of bidding or submitting a 37 proposal for a new contract or renewal of an existing contract, 38 is on the Scrutinized Companies with Activities in Sudan List or 39 the Scrutinized Companies with Activities in the Iran Petroleum 40 Energy Sector List, created pursuant to s. 215.473, is 41 ineligible for, and may not bid on, submit a proposal for, or 42 enter into or renew a contract with an agency or local 43 governmental entity for goods or services of $1 million or more. 44 (3) Any contract with an agency or local governmental 45 entity for goods or services of $1 million or more entered into 46 or renewed on or after July 1, 2011, must contain a provision 47 that allows for the termination of such contract at the option 48 of the awarding body if the company is found to have submitted a 49 false certification as provided under subsection (5) or been 50 placed on the Scrutinized Companies with Activities in Sudan 51 List or the Scrutinized Companies with Activities in the Iran 52 Petroleum Energy Sector List. 53 (4) Notwithstanding subsection (2) or subsection (3), an 54 agency or local governmental entity, on a case-by-case basis, 55 may permit a company on the Scrutinized Companies with 56 Activities in Sudan List or the Scrutinized Companies with 57 Activities in the Iran Petroleum Energy Sector List to be 58 eligible for, bid on, submit a proposal for, or enter into or 59 renew a contract for goods or services of $1 million or more 60 under either of the following conditions: 61 (a) All of the following occur: 62 1. The scrutinized business operations were made before 63 July 1, 2011. 64 2. The scrutinized business operations have not been 65 expanded or renewed after July 1, 2011. 66 3. The agency or local governmental entity determines that 67 it is in the best interest of the state or local community to 68 contract with the company. 69 4. The company has adopted, has publicized, and is 70 implementing a formal plan to cease scrutinized business 71 operations and to refrain from engaging in any new scrutinized 72 business operations. 73 (b) One of the following occurs: 74 1. The local governmental entity makes a public finding 75 that, absent such an exemption, the local governmental entity 76 would be unable to obtain the goods or services for which the 77 contract is offered. 78 2. For a contract with an executive agency, the Governor 79 makes a public finding that, absent such an exemption, the 80 agency would be unable to obtain the goods or services for which 81 the contract is offered. 82 3. For a contract with an office of a state constitutional 83 officer other than the Governor, the state constitutional 84 officer makes a public finding that, absent such an exemption, 85 the office would be unable to obtain the goods or services for 86 which the contract is offered. 87 (5) At the time a company submits a bid or proposal for a 88 contract or before the company enters into or renews a contract 89 with an agency or governmental entity for goods or services of 90 $1 million or more, the company must certify that the company is 91 not on the Scrutinized Companies with Activities in Sudan List 92 or the Scrutinized Companies with Activities in the Iran 93 Petroleum Energy Sector List. 94 (a) If, after the agency or the local governmental entity 95 determines, using credible information available to the public, 96 that the company has submitted a false certification, the agency 97 or local governmental entity shall provide the company with 98 written notice of its determination. The company shall have 90 99 days following receipt of the notice to respond in writing and 100 to demonstrate that the determination of false certification was 101 made in error. If the company does not make such demonstration 102 within 90 days after receipt of the notice, the agency or the 103 local governmental entity shall bring a civil action against the 104 company. If a civil action is brought and the court determines 105 that the company submitted a false certification, the company 106 shall pay the penalty described in subparagraph 1. and all 107 reasonable attorney’s fees and costs, including any costs for 108 investigations that led to the finding of false certification. 109 1. A civil penalty equal to the greater of $2 million or 110 twice the amount of the contract for which the false 111 certification was submitted shall be imposed. 112 2. The company is ineligible to bid on any contract with an 113 agency or local governmental entity for 3 years after the date 114 the agency or local governmental entity determined that the 115 company submitted a false certification. 116 (b) A civil action to collect the penalties described in 117 paragraph (a) must commence within 3 years after the date the 118 false certification is submitted. 119 (6) Only the agency or local governmental entity that is a 120 party to the contract may cause a civil action to be brought 121 under this section. This section does not create or authorize a 122 private right of action or enforcement of the penalties provided 123 in this section. An unsuccessful bidder, or any other person 124 other than the agency or local governmental entity, may not 125 protest the award of a contract or contract renewal on the basis 126 of a false certification. 127 (7) This section preempts any ordinance or rule of any 128 agency or local governmental entity involving public contracts 129 for goods or services of $1 million or more with a company 130 engaged in scrutinized business operations. 131 (8) The department shall submit to the Attorney General of 132 the United States a written notice describing this section 133 within 30 days after July 1, 2011. This section becomes 134 inoperative on the date that federal law ceases to authorize the 135 states to adopt and enforce the contracting prohibitions of the 136 type provided for in this section. 137 Section 2. This act shall take effect July 1, 2011.