Florida Senate - 2024                      CS for CS for SB 7042
       
       
        
       By the Committee on Fiscal Policy; the Appropriations Committee
       on Agriculture, Environment, and General Government; the
       Committee on Governmental Oversight and Accountability; and
       Senator Rodriguez
       
       
       594-03816-24                                          20247042c2
    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         287.1346Provision 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.The agency head or a designee delegated the authority to
  146  execute contracts on behalf of the agency makes a public finding
  147  that, absent the provision of such commodities by the company,
  148  the agency would be unable to obtain the commodities for which
  149  the contract is offered.
  150         2.In determining whether it is in the public interest to
  151  place a company on the forced labor vendor list, the following
  152  factors shall be considered:
  153         a.The nature and details of the provision of the commodity
  154  produced, in whole or in part, by forced labor.
  155         b.The degree of culpability of the company proposed to be
  156  placed on the forced labor vendor list.
  157         c.Prior or future self-policing by the company to prevent
  158  the provision of a commodity produced, in whole or in part, by
  159  forced labor.
  160         d.The company’s compliance with paragraph (c).
  161         e.The needs of agencies for additional competition in the
  162  procurement of commodities in their respective markets.
  163         f.Mitigation based upon any demonstration of good
  164  citizenship by the company, including, but not limited to, the
  165  adoption of a formal plan to cease producing or providing
  166  commodities produced, in whole or in part, by forced labor.
  167         (f)A company that submits a false certification under
  168  paragraph (b) or that should have known that a commodity
  169  provided under a contract with an agency was produced, in whole
  170  or in part, by forced labor and is subsequently placed on the
  171  forced labor vendor list shall be assessed a fine of $1,000 or
  172  an amount equal to 20 percent of the value of the commodity
  173  provided to the agency under the contract, whichever is greater.
  174         (5)(a)Within 21 days after receipt of the notice of intent
  175  pursuant to paragraph (4)(e), the company may file a petition
  176  for a hearing involving disputed issues of material fact
  177  pursuant to ss. 120.569 and 120.57(1) to challenge the
  178  department’s determination that the company’s placement on the
  179  forced labor vendor list is in the public interest. A company
  180  may not file a petition for a hearing not involving disputed
  181  issues of material fact under s. 120.57(2). Chapter 120 applies
  182  to a hearing under this section except that:
  183         1.The petition shall be filed with the department. The
  184  department shall be a party to the proceeding for all purposes.
  185         2.Within 5 days after the filing of the petition, the
  186  department shall notify the Division of Administrative Hearings
  187  of the request for a hearing pursuant to ss. 120.569 and
  188  120.57(1). The director of the Division of Administrative
  189  Hearings shall, within 5 days after receipt of notice from the
  190  department, assign an administrative law judge to preside over
  191  the proceeding. The administrative law judge, upon request by a
  192  party, may consolidate related proceedings.
  193         3.The administrative law judge shall conduct the hearing
  194  within 30 days after being assigned, unless otherwise stipulated
  195  by the parties.
  196         4.Within 30 days after the hearing or receipt of the
  197  hearing transcript, whichever is later, the administrative law
  198  judge shall enter a final order, which shall consist of findings
  199  of fact, conclusions of law, interpretation of agency rules, and
  200  any other information required by law or rule to be contained in
  201  the final order. Such final order shall place or not place the
  202  company on the forced labor vendor list.
  203         5.The final order of the administrative law judge shall be
  204  final agency action for purposes of s. 120.68.
  205         6.At any time after the filing of the petition, informal
  206  disposition may be made pursuant to s. 120.57(4). In that event,
  207  the administrative law judge shall enter a final order adopting
  208  the stipulation, agreed settlement, or consent order.
  209         (b)In any proceeding under this section, the department is
  210  required to prove by clear and convincing evidence that it is in
  211  the public interest for the company to which the department has
  212  provided notice of intent pursuant to paragraph (4)(e) to be
  213  placed on the forced labor vendor list. Proof that such company
  214  provided to an agency a commodity produced, in whole or in part,
  215  by forced labor constitutes a rebuttable presumption that it is
  216  in the public interest for the company to be placed on the
  217  forced labor vendor list.
  218         (c)Upon establishment of the rebuttable presumption in
  219  paragraph (b) that it is in the public interest for the company
  220  to be placed on the forced labor vendor list, that company may
  221  prove by a preponderance of the evidence that it is not in the
  222  public interest for such company to be placed on the list based
  223  upon evidence addressing the provisions of sub-subparagraph
  224  (4)(e)1. or the factors in sub-subparagraph (4)(e)2.
  225         (d)1.A company on the forced labor vendor list may
  226  petition for such company’s removal from the list no sooner than
  227  6 months after the date a final order is entered placing the
  228  company on the list. The petition shall be filed with the
  229  department, and the proceeding shall be conducted pursuant to
  230  this subsection.
  231         2.A company may be removed from the forced labor vendor
  232  list subject to such terms and conditions as may be prescribed
  233  by the administrative law judge upon a determination that
  234  removal is in the public interest. In determining whether
  235  removal is in the public interest, the administrative law judge
  236  shall give consideration to any relevant factors, including
  237  whether the company has prepared a corrective action plan that
  238  addresses the original grounds for placement on the list as well
  239  as any additional evidence that the company has in good faith
  240  taken significant remedial action.
  241         3.If a petition for removal is denied, the company may not
  242  petition for another hearing on removal. The department may
  243  petition for removal before the expiration of the 365-day period
  244  provided in subsection (3) if, in the department’s discretion,
  245  the department determines that removal would be in the public
  246  interest.
  247         (6)Placement on the forced labor vendor list does not
  248  affect any rights or obligations under any contract, franchise,
  249  or other binding agreement which predate such placement.
  250         (7)Any fines collected under this section shall be
  251  deposited into the General Revenue Fund.
  252         Section 2. This act shall take effect July 1, 2024.