Florida Senate - 2011 COMMITTEE AMENDMENT
Bill No. SB 444
Barcode 887208
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/07/2011 .
.
.
.
—————————————————————————————————————————————————————————————————
—————————————————————————————————————————————————————————————————
The Committee on Community Affairs (Ring) recommended the
following:
1 Senate Amendment
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Section 287.135, Florida Statutes, is created to
6 read:
7 287.135 Prohibition against contracting with scrutinized
8 companies.—
9 (1) In addition to the terms defined in ss. 287.012 and
10 215.473, as used in this section, the term:
11 (a) “Awarding body” means, for purposes of state contracts,
12 an agency or the department, and for purposes of local
13 contracts, the governing body of the local governmental entity.
14 (b) “Local governmental entity” means a county,
15 municipality, special district, or other political subdivision
16 of the state.
17 (2) A company that, at the time of bidding or submitting a
18 proposal for a new contract or renewal of an existing contract,
19 is on the Scrutinized Companies with Activities in Sudan List or
20 the Scrutinized Companies with Activities in the Iran Petroleum
21 Energy Sector List, created pursuant to s. 215.473, is
22 ineligible for, and may not bid on, submit a proposal for, or
23 enter into or renew a contract with an agency or local
24 governmental entity for goods or services of $1 million or more.
25 (3) Any contract with an agency or local governmental
26 entity for goods or services of $1 million or more entered into
27 or renewed on or after July 1, 2011, must contain a provision
28 that allows for the termination of such contract at the option
29 of the awarding body if the company is found to have submitted a
30 false certification as provided under subsection (5) or been
31 placed on the Scrutinized Companies with Activities in Sudan
32 List or the Scrutinized Companies with Activities in the Iran
33 Petroleum Energy Sector List.
34 (4) Notwithstanding subsection (2) or subsection (3), an
35 agency or local governmental entity, on a case-by-case basis,
36 may permit a company on the Scrutinized Companies with
37 Activities in Sudan List or the Scrutinized Companies with
38 Activities in the Iran Petroleum Energy Sector List to be
39 eligible for, bid on, submit a proposal for, or enter into or
40 renew a contract for goods or services of $1 million or more
41 under either of the following conditions:
42 (a) All of the following occur:
43 1. The scrutinized business operations were made before
44 July 1, 2011.
45 2. The scrutinized business operations have not been
46 expanded or renewed after July 1, 2011.
47 3. The agency or local governmental entity determines that
48 it is in the best interest of the state or local community to
49 contract with the company.
50 4. The company has adopted, has publicized, and is
51 implementing a formal plan to cease scrutinized business
52 operations and to refrain from engaging in any new scrutinized
53 business operations.
54 (b) One of the following occurs:
55 1. The local governmental entity makes a public finding
56 that, absent such an exemption, the local governmental entity
57 would be unable to obtain the goods or services for which the
58 contract is offered.
59 2. For a contract with an executive agency, the Governor
60 makes a public finding that, absent such an exemption, the
61 agency would be unable to obtain the goods or services for which
62 the contract is offered.
63 3. For a contract with an office of a state constitutional
64 officer other than the Governor, the state constitutional
65 officer makes a public finding that, absent such an exemption,
66 the office would be unable to obtain the goods or services for
67 which the contract is offered.
68 (5) At the time a company submits a bid or proposal for a
69 contract or before the company enters into or renews a contract
70 with an agency or governmental entity for goods or services of
71 $1 million or more, the company must certify that the company is
72 not on the Scrutinized Companies with Activities in Sudan List
73 or the Scrutinized Companies with Activities in the Iran
74 Petroleum Energy Sector List.
75 (a) If, after the agency or the local governmental entity
76 determines, using credible information available to the public,
77 that the company has submitted a false certification, the agency
78 or local governmental entity shall provide the company with
79 written notice of its determination. The company shall have 90
80 days following receipt of the notice to respond in writing and
81 to demonstrate that the determination of false certification was
82 made in error. If the company does not make such demonstration
83 within 90 days after receipt of the notice, the agency or the
84 local governmental entity shall bring a civil action against the
85 company. If a civil action is brought and the court determines
86 that the company submitted a false certification, the company
87 shall pay the penalty described in subparagraph 1. and all
88 reasonable attorney’s fees and costs, including any costs for
89 investigations that led to the finding of false certification.
90 1. A civil penalty equal to the greater of $2 million or
91 twice the amount of the contract for which the false
92 certification was submitted shall be imposed.
93 2. The company is ineligible to bid on any contract with an
94 agency or local governmental entity for 3 years after the date
95 the agency or local governmental entity determined that the
96 company submitted a false certification.
97 (b) A civil action to collect the penalties described in
98 paragraph (a) must commence within 3 years after the date the
99 false certification is submitted.
100 (6) Only the agency or local governmental entity that is a
101 party to the contract may cause a civil action to be brought
102 under this section. This section does not create or authorize a
103 private right of action or enforcement of the penalties provided
104 in this section. An unsuccessful bidder, or any other person
105 other than the agency or local governmental entity, may not
106 protest the award of a contract or contract renewal on the basis
107 of a false certification.
108 (7) This section preempts any ordinance or rule of any
109 agency or local governmental entity involving public contracts
110 for goods or services of $1 million or more with a company
111 engaged in scrutinized business operations.
112 (8) The department shall submit to the Attorney General of
113 the United States a written notice describing this section
114 within 30 days after July 1, 2011. This section becomes
115 inoperative on the date that federal law ceases to authorize the
116 states to adopt and enforce the contracting prohibitions of the
117 type provided for in this section.
118 Section 2. This act shall take effect July 1, 2011.
119 ================= T I T L E A M E N D M E N T ================
120 And the title is amended as follows:
121 Delete everything before the enacting clause
122 and insert:
123 A bill to be entitled
124 An act relating to scrutinized companies; creating s.
125 287.135, F.S.; providing definitions; prohibiting a
126 state agency or local governmental entity from
127 contracting for goods and services of more than a
128 certain amount with a company that is on the
129 Scrutinized Companies with Activities in Sudan List or
130 the Scrutinized Companies with Activities in the Iran
131 Petroleum Energy Sector List; providing for a contract
132 provision that allows for termination of the contract
133 if the company is found to have been placed on such
134 list; providing exceptions; providing for a civil
135 action; providing penalties; providing a statute of
136 repose; prohibiting a private right of action;
137 requiring the Department of Management Services to
138 notify the Attorney General after the act becomes law;
139 providing that the act becomes inoperative if federal
140 law ceases to authorize states to enact such
141 contracting prohibitions; providing an effective date.
142