Florida Senate - 2011 SB 444 By Senator Bogdanoff 25-00378-11 2011444__ 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 6 that is on the Scrutinized Companies with Activities 7 in Sudan List or the Scrutinized Companies with 8 Activities in the Iran Petroleum Energy Sector List; 9 providing exceptions; providing for a civil action; 10 providing penalties; providing a statute of repose; 11 prohibiting a private right of action; requiring the 12 Department of Management Services to notify the 13 Attorney General after the act becomes law; providing 14 that the act becomes inoperative if federal law ceases 15 to authorize states to enact such contracting 16 prohibitions; providing an effective date. 17 18 Be It Enacted by the Legislature of the State of Florida: 19 20 Section 1. Section 287.135, Florida Statutes, is created to 21 read: 22 287.135 Prohibition against contracting with scrutinized 23 companies.— 24 (1) DEFINITIONS.—In addition to the terms defined in ss. 25 287.012 and 215.473, as used in this section, the term: 26 (a) “Awarding body” means, for purposes of state contracts, 27 an agency or the department, and for purposes of local 28 contracts, the governing body of the local governmental 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 an 110 agency or a local governmental entity for 3 years after the date 111 of determining that the company submitted a false certification. 112 (b) A civil action to collect the penalties described in 113 paragraph (a) must commence within 3 years after the date the 114 false certification is made. 115 (5) Only the awarding body may cause a civil action to be 116 brought under this section. This section does not create or 117 authorize a private right of action or enforcement of the 118 penalties provided in this section. An unsuccessful bidder, or 119 any other person other than the awarding body, may not protest 120 the award of a contract or contract renewal on the basis of a 121 false certification. 122 (6) This section preempts any ordinance or rule of any 123 local governmental entity involving public contracts for goods 124 or services of $1 million or more with a company engaged in 125 scrutinized business operations. 126 (7) The department shall submit to the Attorney General of 127 the United States a written notice describing this section 128 within 30 days after July 1, 2011. This section becomes 129 inoperative on the date that federal law ceases to authorize the 130 states to adopt and enforce the contracting prohibitions of the 131 type provided for in this section. 132 Section 2. This act shall take effect July 1, 2011.