Florida Senate - 2012 COMMITTEE AMENDMENT
Bill No. SB 1144
Barcode 318306
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
02/22/2012 .
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The Committee on Governmental Oversight and Accountability
(Garcia) recommended the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Section 215.471, Florida Statutes, is amended to
6 read:
7 215.471 Divestiture by the State Board of Administration;
8 reporting requirements.—
9 (1) The State Board of Administration shall divest any
10 investment under s. 121.151 and ss. 215.44-215.53, and is
11 prohibited from investment in stocks, securities, or other
12 obligations of:
13 (a)(1) Any institution or company domiciled in the United
14 States, or foreign subsidiary of a company domiciled in the
15 United States, doing business in or with Cuba, or with agencies
16 or instrumentalities thereof in violation of federal law.
17 (b)(2) Any institution or company domiciled outside of the
18 United States if the President of the United States has applied
19 sanctions against the foreign country in which the institution
20 or company is domiciled pursuant to s. 4 of the Cuban Democracy
21 Act of 1992.
22 (2) The State Board of Administration may not be a
23 fiduciary under this section with respect to voting on, and does
24 not have the right to vote in favor of, any proxy resolution
25 advocating expanded United States trade with Cuba or Syria. The
26 board’s staff shall report on its activities in its annual proxy
27 voting report.
28 Section 2. Section 287.135, Florida Statutes, is amended to
29 read:
30 287.135 Prohibition against contracting with scrutinized
31 companies.—
32 (1) In addition to the terms defined in ss. 287.012 and
33 215.473, as used in this section, the term:
34 (a) “Awarding body” means, for purposes of state contracts,
35 an agency or the department, and for purposes of local
36 contracts, the governing body of the local governmental entity.
37 (b) “Business operations” means, for purposes specifically
38 related to Cuba or Syria, engaging in commerce in any form in
39 Cuba or Syria, including, but not limited to, acquiring,
40 developing, maintaining, owning, selling, possessing, leasing,
41 or operating equipment, facilities, personnel, products,
42 services, personal property, real property, military equipment,
43 or any other apparatus of business or commerce.
44 (c)(b) “Local governmental entity” means a county,
45 municipality, special district, or other political subdivision
46 of the state.
47 (2) A company that, at the time of bidding or submitting a
48 proposal for a new contract or renewal of an existing contract,
49 is on the Scrutinized Companies with Activities in Sudan List or
50 the Scrutinized Companies with Activities in the Iran Petroleum
51 Energy Sector List, created pursuant to s. 215.473, or is
52 engaged in business operations in Cuba or Syria, is ineligible
53 for, and may not bid on, submit a proposal for, or enter into or
54 renew a contract with an agency or local governmental entity for
55 goods or services of $1 million or more.
56 (3)(a) Any contract with an agency or local governmental
57 entity for goods or services of $1 million or more entered into
58 or renewed on or after July 1, 2011, through June 30, 2012, must
59 contain a provision that allows for the termination of such
60 contract at the option of the awarding body if the company is
61 found to have submitted a false certification as provided under
62 subsection (5) or been placed on the Scrutinized Companies with
63 Activities in Sudan List or the Scrutinized Companies with
64 Activities in the Iran Petroleum Energy Sector List.
65 (b) Any contract with an agency or local governmental
66 entity for goods or services of $1 million or more entered into
67 or renewed on or after July 1, 2012, must contain a provision
68 that allows for the termination of such contract at the option
69 of the awarding body if the company is found to have submitted a
70 false certification as provided under subsection (5), been
71 placed on the Scrutinized Companies with Activities in Sudan
72 List or the Scrutinized Companies with Activities in the Iran
73 Petroleum Energy Sector List, or been engaged in business
74 operations in Cuba or Syria.
75 (4) Notwithstanding subsection (2) or subsection (3), an
76 agency or local governmental entity, on a case-by-case basis,
77 may permit a company on the Scrutinized Companies with
78 Activities in Sudan List or the Scrutinized Companies with
79 Activities in the Iran Petroleum Energy Sector List, or a
80 company with business operations in Cuba or Syria, to be
81 eligible for, bid on, submit a proposal for, or enter into or
82 renew a contract for goods or services of $1 million or more
83 under either of the following conditions set forth in paragraph
84 (a) or the conditions set forth in paragraph (b):
85 (a)1. With respect to a company on the Scrutinized
86 Companies with Activities in Sudan List or the Scrutinized
87 Companies with Activities in the Iran Petroleum Energy Sector
88 List, all of the following occur:
89 a.1. The scrutinized business operations were made before
90 July 1, 2011.
91 b.2. The scrutinized business operations have not been
92 expanded or renewed after July 1, 2011.
93 c.3. The agency or local governmental entity determines
94 that it is in the best interest of the state or local community
95 to contract with the company.
96 d.4. The company has adopted, has publicized, and is
97 implementing a formal plan to cease scrutinized business
98 operations and to refrain from engaging in any new scrutinized
99 business operations.
100 2. With respect to a company engaged in business operations
101 in Cuba or Syria, all of the following occur:
102 a. The business operations were made before July 1, 2012.
103 b. The business operations have not been expanded or
104 renewed after July 1, 2012.
105 c. The agency or local governmental entity determines that
106 it is in the best interest of the state or local community to
107 contract with the company.
108 d. The company has adopted, has publicized, and is
109 implementing a formal plan to cease business operations and to
110 refrain from engaging in any new business operations.
111 (b) One of the following occurs:
112 1. The local governmental entity makes a public finding
113 that, absent such an exemption, the local governmental entity
114 would be unable to obtain the goods or services for which the
115 contract is offered.
116 2. For a contract with an executive agency, the Governor
117 makes a public finding that, absent such an exemption, the
118 agency would be unable to obtain the goods or services for which
119 the contract is offered.
120 3. For a contract with an office of a state constitutional
121 officer other than the Governor, the state constitutional
122 officer makes a public finding that, absent such an exemption,
123 the office would be unable to obtain the goods or services for
124 which the contract is offered.
125 (5) At the time a company submits a bid or proposal for a
126 contract or before the company enters into or renews a contract
127 with an agency or governmental entity for goods or services of
128 $1 million or more, the company must certify that the company is
129 not on the Scrutinized Companies with Activities in Sudan List
130 or the Scrutinized Companies with Activities in the Iran
131 Petroleum Energy Sector List, or that it does not have business
132 operations in Cuba or Syria.
133 (a) If, after the agency or the local governmental entity
134 determines, using credible information available to the public,
135 that the company has submitted a false certification, the agency
136 or local governmental entity shall provide the company with
137 written notice of its determination. The company shall have 90
138 days following receipt of the notice to respond in writing and
139 to demonstrate that the determination of false certification was
140 made in error. If the company does not make such demonstration
141 within 90 days after receipt of the notice, the agency or the
142 local governmental entity shall bring a civil action against the
143 company. If a civil action is brought and the court determines
144 that the company submitted a false certification, the company
145 shall pay the penalty described in subparagraph 1. and all
146 reasonable attorney attorney’s fees and costs, including any
147 costs for investigations that led to the finding of false
148 certification.
149 1. A civil penalty equal to the greater of $2 million or
150 twice the amount of the contract for which the false
151 certification was submitted shall be imposed.
152 2. The company is ineligible to bid on any contract with an
153 agency or local governmental entity for 3 years after the date
154 the agency or local governmental entity determined that the
155 company submitted a false certification.
156 (b) A civil action to collect the penalties described in
157 paragraph (a) must commence within 3 years after the date the
158 false certification is submitted.
159 (6) Only the agency or local governmental entity that is a
160 party to the contract may cause a civil action to be brought
161 under this section. This section does not create or authorize a
162 private right of action or enforcement of the penalties provided
163 in this section. An unsuccessful bidder, or any other person
164 other than the agency or local governmental entity, may not
165 protest the award of a contract or contract renewal on the basis
166 of a false certification.
167 (7) This section preempts any ordinance or rule of any
168 agency or local governmental entity involving public contracts
169 for goods or services of $1 million or more with a company
170 engaged in scrutinized business operations.
171 (8) The department shall submit to the Attorney General of
172 the United States a written notice:
173 (a) Describing this section within 30 days after July 1,
174 2011.
175 (b) Within 30 days after July 1, 2012, apprising the
176 Attorney General of the United States of the inclusion of
177 companies with business operations in Cuba or Syria within the
178 provisions of this section.
179 (9) This section becomes inoperative on the date that
180 federal law ceases to authorize the states to adopt and enforce
181 the contracting prohibitions of the type provided for in this
182 section.
183 Section 3. This act shall take effect July 1, 2012.
184
185 ================= T I T L E A M E N D M E N T ================
186 And the title is amended as follows:
187 Delete everything before the enacting clause
188 and insert:
189 A bill to be entitled
190 An act relating to state and local government
191 relations with Cuba or Syria; amending s. 215.471,
192 F.S.; prohibiting the State Board of Administration
193 from being a fiduciary with respect to voting on any
194 proxy resolution advocating expanded United States
195 trade with Cuba or Syria; prohibiting the State Board
196 of Administration from being a fiduciary with respect
197 to having the right to vote in favor of any proxy
198 resolution advocating expanded United States trade
199 with Cuba or Syria; creating reporting requirements;
200 amending s. 287.135, F.S.; prohibiting a state agency
201 or local governmental entity from contracting for
202 goods and services of more than a certain amount with
203 a company that has business operations in Cuba or
204 Syria; requiring a contract provision that allows for
205 termination of the contract if the company is found to
206 have business operations in Cuba or Syria; providing
207 exceptions; requiring certification upon submission of
208 a bid or proposal for a contract, or before a company
209 enters into or renews a contract, with an agency or
210 governmental entity that the company is not engaged in
211 business operations in Cuba or Syria; providing
212 procedures upon determination that a company has
213 submitted a false certification; providing for civil
214 action; providing penalties; providing attorney fees
215 and costs; providing a statute of repose; prohibiting
216 a private right of action; requiring the Department of
217 Management Services to notify the Attorney General
218 after the act becomes law; providing an effective
219 date.