HB 441

1	A bill to be entitled
2	An act relating to scrutinized companies; creating s.
3	287.135, F.S.; prohibiting a state agency or local
4	governmental entity from contracting for goods and
5	services of more than a certain amount with a company that
6	is on the Scrutinized Companies with Activities in Sudan
7	List or the Scrutinized Companies with Activities in the
8	Iran Petroleum Energy Sector List; providing exceptions;
9	providing for a civil action; providing penalties;
10	providing a statute of repose; prohibiting a private right
11	of action; requiring the Department of Management Services
12	to notify the Attorney General after the act becomes law;
13	providing that the act becomes inoperative if federal law
14	ceases to authorize states to enact such contracting
15	prohibitions; providing an effective date.
16
17	Be It Enacted by the Legislature of the State of Florida:
18
19	Section 1.  Section 287.135, Florida Statutes, is created
20	to read:
21	287.135  Prohibition against contracting with scrutinized
22	companies.-
23	(1)  DEFINITIONS.-In addition to the terms defined in ss.
24	287.012 and 215.473, as used in this section, the term:
25	(a)  "Awarding body" means, for purposes of state
26	contracts, an agency or the department, and for purposes of
27	local contracts, the governing body of the local governmental
28	entity.
29	(b)  "Local governmental entity" means a county,
30	municipality, special district, or other political subdivision
31	of the state.
32	(2)  A company that, at the time of bidding or submitting a
33	proposal for a new contract or renewal of an existing contract,
34	is on the Scrutinized Companies with Activities in Sudan List or
35	the Scrutinized Companies with Activities in the Iran Petroleum
36	Energy Sector List, created pursuant to s. 215.473, is
37	ineligible for, and may not bid on, submit a proposal for, or
38	enter into or renew, a contract with an agency or local
39	governmental entity for goods or services of $1 million or more.
40	(3)  Notwithstanding subsection (2), an agency or local
41	governmental entity, on a case-by-case basis, may permit a
42	company on the Scrutinized Companies with Activities in Sudan
43	List or the Scrutinized Companies with Activities in the Iran
44	Petroleum Energy Sector List to be eligible for, bid on, submit
45	a proposal for, or enter into or renew a contract for goods or
46	services of $1 million or more under either of the following
47	conditions:
48	(a)  All of the following occur:
49	1.  The scrutinized business operations were made before
50	July 1, 2010.
51	2.  The scrutinized business operations have not been
52	expanded or renewed after July 1, 2010.
53	3.  The agency or local governmental entity determines that
54	it is in the best interest of the state or local community to
55	contract with the company.
56	4.  The company has adopted, has publicized, and is
57	implementing a formal plan to cease scrutinized business
58	operations and to refrain from engaging in any new scrutinized
59	business operations.
60	(b)  One of the following occurs:
61	1.  The local governmental entity makes a public finding
62	that, absent such an exemption, the local governmental entity
63	would be unable to obtain the goods or services for which the
64	contract is offered.
65	2.  For a contract with an executive agency, the Governor
66	makes a public finding that, absent such an exemption, the
67	agency would be unable to obtain the goods or services for which
68	the contract is offered.
69	3.  For a contract with an office of a state constitutional
70	officer other than the Governor, the state constitutional
71	officer makes a public finding that, absent such an exemption,
72	the office would be unable to obtain the goods or services for
73	which the contract is offered.
74	(4)  An agency or a local governmental entity shall require
75	a company that submits a bid or proposal for, or that otherwise
76	proposes to enter into or renew, a contract with the agency or
77	governmental entity for goods or services of $1 million or more
78	to certify, at the time the bid or proposal is submitted or
79	before the contract is executed or renewed, that the company is
80	not a scrutinized business operation under s. 215.473.
81	(a)  If, after the agency or the local governmental entity
82	determines, using credible information available to the public,
83	that the company has submitted a false certification and has
84	provided the company with written notice and 90 days to respond
85	in writing to such determination, the company fails to
86	demonstrate that it has ceased its engagement in scrutinized
87	business operations, the following applies:
88	1.  The awarding body shall report the company to the
89	Attorney General, together with information demonstrating the
90	false certification, and the Attorney General shall determine
91	whether to bring a civil action against the company. The
92	awarding body of a local governmental entity may also report the
93	company to the municipal attorney, county attorney, or district
94	attorney, together with information demonstrating the false
95	certification, and the municipal attorney, county attorney, or
96	district attorney may determine whether to bring a civil action
97	against the company. If a civil action is brought and the court
98	determines that the company submitted a false certification, the
99	company shall pay the penalty described in subparagraph 2. and
100	all reasonable attorney's fees and costs, including any costs
101	for investigations that led to the finding of false
102	certification. Only one civil action for false certification per
103	contract may be brought against a company.
104	2.  Pursuant to subparagraph 1., a civil penalty equal to
105	the greater of $250,000 or twice the amount of the contract for
106	which the false certification was submitted shall be imposed.
107	3.  An existing contract with the company shall be
108	terminated at the option of the awarding body.
109	4.  The company is ineligible to bid on any contract with
110	an agency or a local governmental entity for 3 years after the
111	date of determining that the company submitted a false
112	certification.
113	(b)  A civil action to collect the penalties described in
114	paragraph (a) must commence within 3 years after the date the
115	false certification is made.
116	(5)  Only the awarding body may cause a civil action to be
117	brought under this section. This section does not create or
118	authorize a private right of action or enforcement of the
119	penalties provided in this section. An unsuccessful bidder, or
120	any other person other than the awarding body, may not protest
121	the award of a contract or contract renewal on the basis of a
122	false certification.
123	(6)  This section preempts any ordinance or rule of any
124	local governmental entity involving public contracts for goods
125	or services of $1 million or more with a company engaged in
126	scrutinized business operations.
127	(7)  The department shall submit to the Attorney General of
128	the United States a written notice describing this section
129	within 30 days after July 1, 2011. This section becomes
130	inoperative on the date that federal law ceases to authorize the
131	states to adopt and enforce the contracting prohibitions of the
132	type provided for in this section.
133	Section 2.  This act shall take effect July 1, 2011.

CODING: Words stricken are deletions; words underlined are additions.