Florida Senate - 2011                                     SB 444
       
       
       
       By Senator Bogdanoff
       
       
       
       
       25-00378-11                                            2011444__
    1                        A bill to be entitled                      
    2         An act relating to scrutinized companies; creating s.
    3         287.135, F.S.; prohibiting a state agency or local
    4         governmental entity from contracting for goods and
    5         services of more than a certain amount with a company
    6         that is on the Scrutinized Companies with Activities
    7         in Sudan List or the Scrutinized Companies with
    8         Activities in the Iran Petroleum Energy Sector List;
    9         providing exceptions; providing for a civil action;
   10         providing penalties; providing a statute of repose;
   11         prohibiting a private right of action; requiring the
   12         Department of Management Services to notify the
   13         Attorney General after the act becomes law; providing
   14         that the act becomes inoperative if federal law ceases
   15         to authorize states to enact such contracting
   16         prohibitions; providing an effective date.
   17  
   18  Be It Enacted by the Legislature of the State of Florida:
   19  
   20         Section 1. Section 287.135, Florida Statutes, is created to
   21  read:
   22         287.135Prohibition against contracting with scrutinized
   23  companies.—
   24         (1) DEFINITIONS.—In addition to the terms defined in ss.
   25  287.012 and 215.473, as used in this section, the term:
   26         (a) “Awarding body” means, for purposes of state contracts,
   27  an agency or the department, and for purposes of local
   28  contracts, the governing body of the local governmental entity.
   29         (b) “Local governmental entity” means a county,
   30  municipality, special district, or other political subdivision
   31  of the state.
   32         (2) A company that, at the time of bidding or submitting a
   33  proposal for a new contract or renewal of an existing contract,
   34  is on the Scrutinized Companies with Activities in Sudan List or
   35  the Scrutinized Companies with Activities in the Iran Petroleum
   36  Energy Sector List, created pursuant to s. 215.473, is
   37  ineligible for, and may not bid on, submit a proposal for, or
   38  enter into or renew, a contract with an agency or local
   39  governmental entity for goods or services of $1 million or more.
   40         (3) Notwithstanding subsection (2), an agency or local
   41  governmental entity, on a case-by-case basis, may permit a
   42  company on the Scrutinized Companies with Activities in Sudan
   43  List or the Scrutinized Companies with Activities in the Iran
   44  Petroleum Energy Sector List to be eligible for, bid on, submit
   45  a proposal for, or enter into or renew a contract for goods or
   46  services of $1 million or more under either of the following
   47  conditions:
   48         (a) All of the following occur:
   49         1. The scrutinized business operations were made before
   50  July 1, 2010.
   51         2. The scrutinized business operations have not been
   52  expanded or renewed after July 1, 2010.
   53         3. The agency or local governmental entity determines that
   54  it is in the best interest of the state or local community to
   55  contract with the company.
   56         4. The company has adopted, has publicized, and is
   57  implementing a formal plan to cease scrutinized business
   58  operations and to refrain from engaging in any new scrutinized
   59  business operations.
   60         (b) One of the following occurs:
   61         1. The local governmental entity makes a public finding
   62  that, absent such an exemption, the local governmental entity
   63  would be unable to obtain the goods or services for which the
   64  contract is offered.
   65         2. For a contract with an executive agency, the Governor
   66  makes a public finding that, absent such an exemption, the
   67  agency would be unable to obtain the goods or services for which
   68  the contract is offered.
   69         3. For a contract with an office of a state constitutional
   70  officer other than the Governor, the state constitutional
   71  officer makes a public finding that, absent such an exemption,
   72  the office would be unable to obtain the goods or services for
   73  which the contract is offered.
   74         (4) An agency or a local governmental entity shall require
   75  a company that submits a bid or proposal for, or that otherwise
   76  proposes to enter into or renew, a contract with the agency or
   77  governmental entity for goods or services of $1 million or more
   78  to certify, at the time the bid or proposal is submitted or
   79  before the contract is executed or renewed, that the company is
   80  not a scrutinized business operation under s. 215.473.
   81         (a) If, after the agency or the local governmental entity
   82  determines, using credible information available to the public,
   83  that the company has submitted a false certification and has
   84  provided the company with written notice and 90 days to respond
   85  in writing to such determination, the company fails to
   86  demonstrate that it has ceased its engagement in scrutinized
   87  business operations, the following applies:
   88         1. The awarding body shall report the company to the
   89  Attorney General, together with information demonstrating the
   90  false certification, and the Attorney General shall determine
   91  whether to bring a civil action against the company. The
   92  awarding body of a local governmental entity may also report the
   93  company to the municipal attorney, county attorney, or district
   94  attorney, together with information demonstrating the false
   95  certification, and the municipal attorney, county attorney, or
   96  district attorney may determine whether to bring a civil action
   97  against the company. If a civil action is brought and the court
   98  determines that the company submitted a false certification, the
   99  company shall pay the penalty described in subparagraph 2. and
  100  all reasonable attorney’s fees and costs, including any costs
  101  for investigations that led to the finding of false
  102  certification. Only one civil action for false certification per
  103  contract may be brought against a company.
  104         2. Pursuant to subparagraph 1., a civil penalty equal to
  105  the greater of $250,000 or twice the amount of the contract for
  106  which the false certification was submitted shall be imposed.
  107         3. An existing contract with the company shall be
  108  terminated at the option of the awarding body.
  109         4. The company is ineligible to bid on any contract with an
  110  agency or a local governmental entity for 3 years after the date
  111  of determining that the company submitted a false certification.
  112         (b) A civil action to collect the penalties described in
  113  paragraph (a) must commence within 3 years after the date the
  114  false certification is made.
  115         (5) Only the awarding body may cause a civil action to be
  116  brought under this section. This section does not create or
  117  authorize a private right of action or enforcement of the
  118  penalties provided in this section. An unsuccessful bidder, or
  119  any other person other than the awarding body, may not protest
  120  the award of a contract or contract renewal on the basis of a
  121  false certification.
  122         (6) This section preempts any ordinance or rule of any
  123  local governmental entity involving public contracts for goods
  124  or services of $1 million or more with a company engaged in
  125  scrutinized business operations.
  126         (7) The department shall submit to the Attorney General of
  127  the United States a written notice describing this section
  128  within 30 days after July 1, 2011. This section becomes
  129  inoperative on the date that federal law ceases to authorize the
  130  states to adopt and enforce the contracting prohibitions of the
  131  type provided for in this section.
  132         Section 2. This act shall take effect July 1, 2011.