Florida Senate - 2012                        COMMITTEE AMENDMENT
       Bill No. SB 1144
       
       
       
       
       
       
                                Barcode 318306                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/22/2012           .                                
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       The Committee on Governmental Oversight and Accountability
       (Garcia) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 215.471, Florida Statutes, is amended to
    6  read:
    7         215.471 Divestiture by the State Board of Administration;
    8  reporting requirements.—
    9         (1) The State Board of Administration shall divest any
   10  investment under s. 121.151 and ss. 215.44-215.53, and is
   11  prohibited from investment in stocks, securities, or other
   12  obligations of:
   13         (a)(1) Any institution or company domiciled in the United
   14  States, or foreign subsidiary of a company domiciled in the
   15  United States, doing business in or with Cuba, or with agencies
   16  or instrumentalities thereof in violation of federal law.
   17         (b)(2) Any institution or company domiciled outside of the
   18  United States if the President of the United States has applied
   19  sanctions against the foreign country in which the institution
   20  or company is domiciled pursuant to s. 4 of the Cuban Democracy
   21  Act of 1992.
   22         (2) The State Board of Administration may not be a
   23  fiduciary under this section with respect to voting on, and does
   24  not have the right to vote in favor of, any proxy resolution
   25  advocating expanded United States trade with Cuba or Syria. The
   26  board’s staff shall report on its activities in its annual proxy
   27  voting report.
   28         Section 2. Section 287.135, Florida Statutes, is amended to
   29  read:
   30         287.135 Prohibition against contracting with scrutinized
   31  companies.—
   32         (1) In addition to the terms defined in ss. 287.012 and
   33  215.473, as used in this section, the term:
   34         (a) “Awarding body” means, for purposes of state contracts,
   35  an agency or the department, and for purposes of local
   36  contracts, the governing body of the local governmental entity.
   37         (b) “Business operations” means, for purposes specifically
   38  related to Cuba or Syria, engaging in commerce in any form in
   39  Cuba or Syria, including, but not limited to, acquiring,
   40  developing, maintaining, owning, selling, possessing, leasing,
   41  or operating equipment, facilities, personnel, products,
   42  services, personal property, real property, military equipment,
   43  or any other apparatus of business or commerce.
   44         (c)(b) “Local governmental entity” means a county,
   45  municipality, special district, or other political subdivision
   46  of the state.
   47         (2) A company that, at the time of bidding or submitting a
   48  proposal for a new contract or renewal of an existing contract,
   49  is on the Scrutinized Companies with Activities in Sudan List or
   50  the Scrutinized Companies with Activities in the Iran Petroleum
   51  Energy Sector List, created pursuant to s. 215.473, or is
   52  engaged in business operations in Cuba or Syria, is ineligible
   53  for, and may not bid on, submit a proposal for, or enter into or
   54  renew a contract with an agency or local governmental entity for
   55  goods or services of $1 million or more.
   56         (3)(a) Any contract with an agency or local governmental
   57  entity for goods or services of $1 million or more entered into
   58  or renewed on or after July 1, 2011, through June 30, 2012, must
   59  contain a provision that allows for the termination of such
   60  contract at the option of the awarding body if the company is
   61  found to have submitted a false certification as provided under
   62  subsection (5) or been placed on the Scrutinized Companies with
   63  Activities in Sudan List or the Scrutinized Companies with
   64  Activities in the Iran Petroleum Energy Sector List.
   65         (b) Any contract with an agency or local governmental
   66  entity for goods or services of $1 million or more entered into
   67  or renewed on or after July 1, 2012, must contain a provision
   68  that allows for the termination of such contract at the option
   69  of the awarding body if the company is found to have submitted a
   70  false certification as provided under subsection (5), been
   71  placed on the Scrutinized Companies with Activities in Sudan
   72  List or the Scrutinized Companies with Activities in the Iran
   73  Petroleum Energy Sector List, or been engaged in business
   74  operations in Cuba or Syria.
   75         (4) Notwithstanding subsection (2) or subsection (3), an
   76  agency or local governmental entity, on a case-by-case basis,
   77  may permit a company on the Scrutinized Companies with
   78  Activities in Sudan List or the Scrutinized Companies with
   79  Activities in the Iran Petroleum Energy Sector List, or a
   80  company with business operations in Cuba or Syria, to be
   81  eligible for, bid on, submit a proposal for, or enter into or
   82  renew a contract for goods or services of $1 million or more
   83  under either of the following conditions set forth in paragraph
   84  (a) or the conditions set forth in paragraph (b):
   85         (a)1. With respect to a company on the Scrutinized
   86  Companies with Activities in Sudan List or the Scrutinized
   87  Companies with Activities in the Iran Petroleum Energy Sector
   88  List, all of the following occur:
   89         a.1. The scrutinized business operations were made before
   90  July 1, 2011.
   91         b.2. The scrutinized business operations have not been
   92  expanded or renewed after July 1, 2011.
   93         c.3. The agency or local governmental entity determines
   94  that it is in the best interest of the state or local community
   95  to contract with the company.
   96         d.4. The company has adopted, has publicized, and is
   97  implementing a formal plan to cease scrutinized business
   98  operations and to refrain from engaging in any new scrutinized
   99  business operations.
  100         2. With respect to a company engaged in business operations
  101  in Cuba or Syria, all of the following occur:
  102         a. The business operations were made before July 1, 2012.
  103         b. The business operations have not been expanded or
  104  renewed after July 1, 2012.
  105         c. The agency or local governmental entity determines that
  106  it is in the best interest of the state or local community to
  107  contract with the company.
  108         d. The company has adopted, has publicized, and is
  109  implementing a formal plan to cease business operations and to
  110  refrain from engaging in any new business operations.
  111         (b) One of the following occurs:
  112         1. The local governmental entity makes a public finding
  113  that, absent such an exemption, the local governmental entity
  114  would be unable to obtain the goods or services for which the
  115  contract is offered.
  116         2. For a contract with an executive agency, the Governor
  117  makes a public finding that, absent such an exemption, the
  118  agency would be unable to obtain the goods or services for which
  119  the contract is offered.
  120         3. For a contract with an office of a state constitutional
  121  officer other than the Governor, the state constitutional
  122  officer makes a public finding that, absent such an exemption,
  123  the office would be unable to obtain the goods or services for
  124  which the contract is offered.
  125         (5) At the time a company submits a bid or proposal for a
  126  contract or before the company enters into or renews a contract
  127  with an agency or governmental entity for goods or services of
  128  $1 million or more, the company must certify that the company is
  129  not on the Scrutinized Companies with Activities in Sudan List
  130  or the Scrutinized Companies with Activities in the Iran
  131  Petroleum Energy Sector List, or that it does not have business
  132  operations in Cuba or Syria.
  133         (a) If, after the agency or the local governmental entity
  134  determines, using credible information available to the public,
  135  that the company has submitted a false certification, the agency
  136  or local governmental entity shall provide the company with
  137  written notice of its determination. The company shall have 90
  138  days following receipt of the notice to respond in writing and
  139  to demonstrate that the determination of false certification was
  140  made in error. If the company does not make such demonstration
  141  within 90 days after receipt of the notice, the agency or the
  142  local governmental entity shall bring a civil action against the
  143  company. If a civil action is brought and the court determines
  144  that the company submitted a false certification, the company
  145  shall pay the penalty described in subparagraph 1. and all
  146  reasonable attorney attorney’s fees and costs, including any
  147  costs for investigations that led to the finding of false
  148  certification.
  149         1. A civil penalty equal to the greater of $2 million or
  150  twice the amount of the contract for which the false
  151  certification was submitted shall be imposed.
  152         2. The company is ineligible to bid on any contract with an
  153  agency or local governmental entity for 3 years after the date
  154  the agency or local governmental entity determined that the
  155  company submitted a false certification.
  156         (b) A civil action to collect the penalties described in
  157  paragraph (a) must commence within 3 years after the date the
  158  false certification is submitted.
  159         (6) Only the agency or local governmental entity that is a
  160  party to the contract may cause a civil action to be brought
  161  under this section. This section does not create or authorize a
  162  private right of action or enforcement of the penalties provided
  163  in this section. An unsuccessful bidder, or any other person
  164  other than the agency or local governmental entity, may not
  165  protest the award of a contract or contract renewal on the basis
  166  of a false certification.
  167         (7) This section preempts any ordinance or rule of any
  168  agency or local governmental entity involving public contracts
  169  for goods or services of $1 million or more with a company
  170  engaged in scrutinized business operations.
  171         (8) The department shall submit to the Attorney General of
  172  the United States a written notice:
  173         (a) Describing this section within 30 days after July 1,
  174  2011.
  175         (b) Within 30 days after July 1, 2012, apprising the
  176  Attorney General of the United States of the inclusion of
  177  companies with business operations in Cuba or Syria within the
  178  provisions of this section.
  179         (9) This section becomes inoperative on the date that
  180  federal law ceases to authorize the states to adopt and enforce
  181  the contracting prohibitions of the type provided for in this
  182  section.
  183         Section 3. This act shall take effect July 1, 2012.
  184  
  185  ================= T I T L E A M E N D M E N T ================
  186         And the title is amended as follows:
  187         Delete everything before the enacting clause
  188  and insert:
  189                        A bill to be entitled                      
  190         An act relating to state and local government
  191         relations with Cuba or Syria; amending s. 215.471,
  192         F.S.; prohibiting the State Board of Administration
  193         from being a fiduciary with respect to voting on any
  194         proxy resolution advocating expanded United States
  195         trade with Cuba or Syria; prohibiting the State Board
  196         of Administration from being a fiduciary with respect
  197         to having the right to vote in favor of any proxy
  198         resolution advocating expanded United States trade
  199         with Cuba or Syria; creating reporting requirements;
  200         amending s. 287.135, F.S.; prohibiting a state agency
  201         or local governmental entity from contracting for
  202         goods and services of more than a certain amount with
  203         a company that has business operations in Cuba or
  204         Syria; requiring a contract provision that allows for
  205         termination of the contract if the company is found to
  206         have business operations in Cuba or Syria; providing
  207         exceptions; requiring certification upon submission of
  208         a bid or proposal for a contract, or before a company
  209         enters into or renews a contract, with an agency or
  210         governmental entity that the company is not engaged in
  211         business operations in Cuba or Syria; providing
  212         procedures upon determination that a company has
  213         submitted a false certification; providing for civil
  214         action; providing penalties; providing attorney fees
  215         and costs; providing a statute of repose; prohibiting
  216         a private right of action; requiring the Department of
  217         Management Services to notify the Attorney General
  218         after the act becomes law; providing an effective
  219         date.