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         215.4725Public 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.