Florida Senate - 2024                   (PROPOSED BILL) SPB 7042
       
       
        
       FOR CONSIDERATION By the Committee on Governmental Oversight and
       Accountability
       
       
       
       
       585-01998B-24                                         20247042pb
    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.One of the following occurs:
  146         (I)For a contract with an executive agency, the Governor
  147  makes a public finding that, absent the provision of such
  148  commodities by the company, the agency would be unable to obtain
  149  the commodities for which the contract is offered.
  150         (II)For a contract with an agency of a state
  151  constitutional officer other than the Governor, the state
  152  constitutional officer makes a public finding that, absent the
  153  provision of such commodities by the company, the agency would
  154  be unable to obtain the commodities for which the contract is
  155  offered.
  156         2.In determining whether it is in the public interest to
  157  place a company on the forced labor vendor list, the following
  158  factors shall be considered:
  159         a.The nature and details of the provision of the commodity
  160  produced, in whole or in part, by forced labor.
  161         b.The degree of culpability of the company proposed to be
  162  placed on the forced labor vendor list.
  163         c.Prior or future self-policing by the company to prevent
  164  the provision of a commodity produced, in whole or in part, by
  165  forced labor.
  166         d.The company’s compliance with paragraph (c).
  167         e.The needs of agencies for additional competition in the
  168  procurement of commodities in their respective markets.
  169         f.Mitigation based upon any demonstration of good
  170  citizenship by the company, including, but not limited to, the
  171  adoption of a formal plan to cease producing or providing
  172  commodities produced, in whole or in part, by forced labor.
  173         (f)A company that submits a false certification under
  174  paragraph (b) or that should have known that a commodity
  175  provided under a contract with an agency was produced, in whole
  176  or in part, by forced labor and is subsequently placed on the
  177  forced labor vendor list shall be assessed a fine of $1,000 or
  178  an amount equal to 20 percent of the value of the commodity
  179  provided to the agency under the contract, whichever is greater.
  180         (5)(a)Within 21 days after receipt of the notice of intent
  181  pursuant to paragraph (4)(e), the company may file a petition
  182  for a hearing involving disputed issues of material fact
  183  pursuant to ss. 120.569 and 120.57(1) to challenge the agency’s
  184  determination that the company’s placement on the forced labor
  185  vendor list is in the public interest. A company may not file a
  186  petition for a hearing not involving disputed issues of material
  187  fact under s. 120.57(2). Chapter 120 applies to a hearing under
  188  this section except that:
  189         1.The petition shall be filed with the department. The
  190  department shall be a party to the proceeding for all purposes.
  191         2.Within 5 days after the filing of the petition, the
  192  department shall notify the Division of Administrative Hearings
  193  of the request for a hearing pursuant to ss. 120.569 and
  194  120.57(1). The director of the Division of Administrative
  195  Hearings shall, within 5 days after receipt of notice from the
  196  department, assign an administrative law judge to preside over
  197  the proceeding. The administrative law judge, upon request by a
  198  party, may consolidate related proceedings.
  199         3.The administrative law judge shall conduct the hearing
  200  within 30 days after being assigned, unless otherwise stipulated
  201  by the parties.
  202         4.Within 30 days after the hearing or receipt of the
  203  hearing transcript, whichever is later, the administrative law
  204  judge shall enter a final order, which shall consist of findings
  205  of fact, conclusions of law, interpretation of agency rules, and
  206  any other information required by law or rule to be contained in
  207  the final order. Such final order shall place or not place the
  208  company on the forced labor vendor list.
  209         5.The final order of the administrative law judge shall be
  210  final agency action for purposes of s. 120.68.
  211         6.At any time after the filing of the petition, informal
  212  disposition may be made pursuant to s. 120.57(4). In that event,
  213  the administrative law judge shall enter a final order adopting
  214  the stipulation, agreed settlement, or consent order.
  215         (b)In any proceeding under this section, the department is
  216  required to prove by clear and convincing evidence that it is in
  217  the public interest for the company to which the department has
  218  provided notice of intent pursuant to paragraph (4)(e) to be
  219  placed on the forced labor vendor list. Proof that such company
  220  provided to an agency a commodity produced, in whole or in part,
  221  by forced labor constitutes a rebuttable presumption that it is
  222  in the public interest for the company to be placed on the
  223  forced labor vendor list.
  224         (c)Upon establishment of the rebuttable presumption in
  225  paragraph (b) that it is in the public interest for the company
  226  to be placed on the forced labor vendor list, that company may
  227  prove by a preponderance of the evidence that it is not in the
  228  public interest for such company to be placed on the list based
  229  upon evidence addressing the provisions of sub-subparagraph
  230  (4)(e)1. or the factors in sub-subparagraph (4)(e)2.
  231         (d)1.A company on the forced labor vendor list may
  232  petition for such company’s removal from the list no sooner than
  233  6 months after the date a final order is entered placing the
  234  company on the list. The petition shall be filed with the
  235  department, and the proceeding shall be conducted pursuant to
  236  this subsection.
  237         2.A company may be removed from the forced labor vendor
  238  list subject to such terms and conditions as may be prescribed
  239  by the administrative law judge upon a determination that
  240  removal is in the public interest. In determining whether
  241  removal is in the public interest, the administrative law judge
  242  shall give consideration to any relevant factors, including
  243  whether the company has prepared a corrective action plan that
  244  addresses the original grounds for placement on the list as well
  245  as any additional evidence that the company has in good faith
  246  taken significant remedial action.
  247         3.If a petition for removal is denied, the company may not
  248  petition for another hearing on removal. The department may
  249  petition for removal before the expiration of the 365-day period
  250  provided in subsection (3) if, in the department’s discretion,
  251  the department determines that removal would be in the public
  252  interest.
  253         (6)Placement on the forced labor vendor list does not
  254  affect any rights or obligations under any contract, franchise,
  255  or other binding agreement which predate such placement.
  256         (7)Any fines collected under this section shall be
  257  deposited into the General Revenue Fund.
  258         Section 2. This act shall take effect July 1, 2024.