CS/HB 441

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

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