Florida Senate - 2016 SB 86 By Senator Negron 32-00025-16 201686__ 1 A bill to be entitled 2 An act relating to state contracts; creating s. 3 215.4725, F.S.; prohibiting a public entity from 4 entering into specified contracts; providing an 5 exception; defining terms; providing applicability; 6 amending s. 215.473, F.S.; prohibiting a company from 7 contracting with the state if the company appears on 8 the Scrutinized Companies with Activities in the Iran 9 Petroleum Energy Sector List; requiring a public fund 10 to send a written notice to a specified company in 11 certain circumstances; granting the company an 12 opportunity to comment in writing; providing for the 13 removal of the company from the list in certain 14 circumstances; providing an exception; requiring the 15 determination to be entered into the procurement 16 record; requiring a company that attempts to contract 17 with the state to certify that the company or the 18 assignee is not on the list; requiring the state 19 agency to include certification information in the 20 procurement record; providing an exception; defining 21 terms; prohibiting a company that contracts with the 22 state from entering into a subcontract with any 23 company on the list; requiring the state agency or 24 public entity to review specified information and 25 offer the company an opportunity to respond; 26 authorizing the state agency or entity to take 27 appropriate actions as provided by law; requiring 28 specified bid proposals to contain a specified 29 statement signed under oath or affirmation by the 30 bidder under the penalty of perjury; providing 31 applicability; authorizing the bidder to 32 electronically submit the statement of noninvestment 33 in the Iranian energy sector; requiring the bidder to 34 provide a signed statement with specified information 35 if the bidder cannot meet the certification 36 requirements; authorizing a political subdivision to 37 award a bid to a bidder who cannot meet the 38 certification requirements in certain circumstances; 39 providing an effective date. 40 41 Be It Enacted by the Legislature of the State of Florida: 42 43 Section 1. Section 215.4725, Florida Statutes, is created 44 to read: 45 215.4725 Public entity contracts.— 46 (1) All contracts between a public entity and a business 47 for supplies, services, information technology, or construction 48 must include a representation by the business that it is not 49 engaged in and will not engage in the boycott of any person or 50 entity that is based in, or doing business with, a jurisdiction 51 with which the state enjoys open trade. For purposes of this 52 subsection, the term: 53 (a) “Boycott” means to blacklist, divest from, or otherwise 54 refuse to engage with a person or entity on the basis of the 55 race, color, religion, gender, or national origin of the person 56 or entity. The term does not include: 57 1. A decision by a business that is based on economic 58 reasons or the specific conduct of the person or entity; 59 2. A boycott against a public entity of a foreign state if 60 the boycott is applied in a nondiscriminatory manner; and 61 3. Conduct required for compliance with applicable law in 62 the business’s home jurisdiction. 63 (b) “Jurisdiction with which the state can enjoy open 64 trade” means members of the World Trade Organization and those 65 jurisdictions with whom the United States has free trade or 66 other agreements aimed at ensuring open and nondiscriminatory 67 trade relations. 68 (c) ”Public entity” means the state, any of its departments 69 or agencies, or any political subdivision of the state. 70 (2) This section does not apply to contracts in which a 71 business agrees to provide the goods or services at a cost at 72 least 20 percent less than the next lowest bidder, or to 73 contracts with a total potential value of less than $10,000. 74 Section 2. Present subsections (4) and (5) of section 75 215.473, Florida Statutes, are redesignated as subsections (5) 76 and (6), respectively, and a new subsection (4) is added to that 77 section, to read: 78 215.473 Divestiture by the State Board of Administration; 79 Sudan; Iran.— 80 (4) STATE CONTRACTS.— 81 (a) If a company appears on the Scrutinized Companies with 82 Activities in the Iran Petroleum Energy Sector List due to 83 engaging in investment activities in Iran as described in 84 subparagraph (1)(u)4., the company may not contract with the 85 state beginning 90 days after receiving notification of such 86 status unless the company meets an exception provided in 87 subparagraph 1. or subparagraph 2. A public fund shall send a 88 written notice to the company specifying that it may be removed 89 from the list if it ceases its engagement in investment 90 activities in Iran. The company shall be granted an opportunity 91 to comment in writing that it is not engaged in such activities. 92 If the company demonstrates to the public fund that it is not 93 engaged in investment activities in Iran, the company shall be 94 removed from the list. A company engaged in investment 95 activities in Iran may contract with the state only if: 96 1. The investment activities in Iran were made before 97 January 1, 2016, the investment activities in Iran have not been 98 expanded or renewed after the effective date of this act, and 99 the company has adopted, publicized, and is implementing a 100 formal plan to cease the investment activities in Iran and to 101 refrain from engaging in any new investments in Iran; or 102 2. The state agency makes a determination that the 103 commodities or services are necessary to perform its functions 104 and that, absent such an exemption, the state agency would be 105 unable to obtain the commodities or services for which the 106 contract is offered. The determination shall be entered into the 107 procurement record. 108 (b) A company that seeks a contract with the state, 109 including a contract renewal or assumption, must certify, when 110 the bid is submitted or the contract is entered into, renewed, 111 or assigned, that the company or the assignee does not appear on 112 the Scrutinized Companies with Activities in the Iran Petroleum 113 Energy Sector List. The state agency shall include certification 114 information in the procurement record. Certification is not 115 required for contracts between public procurement units or 116 contracts between public procurement units and external 117 procurement activities. For the purposes of this paragraph, the 118 term: 119 1. “External procurement activity” means the procurement 120 activity of a buying organization located outside this state 121 which would qualify as a public procurement unit or the 122 procurement activity of the United States Government. 123 2. “Local public procurement unit” means any political 124 subdivision or unit that expends public funds for the 125 procurement of supplies, services, or construction. 126 3. “Public procurement unit” means a local public 127 procurement unit or a state public procurement unit. 128 4. “State public procurement unit” means the offices of the 129 chief procurement officers and any other purchasing agency of 130 the state. 131 (c) A company that contracts with the state may not enter 132 into a subcontract under the contract with the state with any 133 company on the Scrutinized Companies with Activities in the Iran 134 Petroleum Energy Sector List. 135 (d) Upon receiving information that a company that made the 136 certification required by paragraph (b) is engaged in activity 137 contrary to the certification, the state agency or entity shall 138 review such information and offer the company an opportunity to 139 respond. If, within 90 days after it is determined that the 140 company is engaged in such activity, the company fails to 141 demonstrate that it has ceased the activity, the state agency or 142 entity may take such action as appropriate and provided for by 143 law, rule, or contract, including, but not limited to, imposing 144 sanctions, seeking compliance, recovering damages, or declaring 145 the contractor in default. 146 (e) If competitive bidding is required by statute, rule, 147 regulation, or local law for work or services performed or to be 148 performed or goods sold or to be sold, any bid or proposal 149 submitted to a political subdivision of the state or an official 150 thereof shall contain the following statement signed under oath 151 or affirmation by the bidder under penalty of perjury: 152 153 By submission of this bid, each bidder and each person signing 154 on behalf of such bidder and, in the case of a joint bid, each 155 party thereto, certifies as to its own organization, under 156 penalty of perjury, that to the best of its knowledge and belief 157 such bidder does not appear on the Scrutinized Companies with 158 Activities in the Iran Petroleum Energy Sector List. 159 160 This paragraph does not apply to, and certification is not 161 required for, contracts between public procurement units or 162 contracts of public procurement units for external procurement 163 activities, as those terms are defined in paragraph (b). 164 (f) A bidder may submit the statement of noninvestment in 165 the Iranian energy sector electronically. 166 (g) If a bidder cannot make the certification required in 167 paragraph (e), it shall provide with the bid a signed statement 168 that cites the reasons for failing to do so. A political 169 subdivision may award a bid to a bidder who cannot make the 170 certification if: 171 1. The investment activities in Iran were made before 172 January 1, 2016, the investment activities in Iran have not been 173 expanded or renewed after the effective date of this act, and 174 the company has adopted, publicized, and is implementing a 175 formal plan to cease the investment activities in Iran and to 176 refrain from engaging in any new investments in Iran; or 177 2. The political subdivision makes a determination that the 178 goods or services that are the subject of the contract are 179 necessary for the political subdivision to perform its functions 180 and that, absent such an exception, the political subdivision 181 would be unable to obtain them. The determination shall be made 182 in writing and is a public document. 183 Section 3. This act shall take effect July 1, 2016.