Florida Senate - 2012                             CS for SB 1144
       
       
       
       By the Committee on Governmental Oversight and Accountability;
       and Senator Garcia
       
       
       
       585-03772-12                                          20121144c1
    1                        A bill to be entitled                      
    2         An act relating to state and local government
    3         relations with Cuba or Syria; amending s. 215.471,
    4         F.S.; prohibiting the State Board of Administration
    5         from being a fiduciary with respect to voting on any
    6         proxy resolution advocating expanded United States
    7         trade with Cuba or Syria; prohibiting the State Board
    8         of Administration from being a fiduciary with respect
    9         to having the right to vote in favor of any proxy
   10         resolution advocating expanded United States trade
   11         with Cuba or Syria; creating reporting requirements;
   12         amending s. 287.135, F.S.; prohibiting a state agency
   13         or local governmental entity from contracting for
   14         goods and services of more than a certain amount with
   15         a company that has business operations in Cuba or
   16         Syria; requiring a contract provision that allows for
   17         termination of the contract if the company is found to
   18         have business operations in Cuba or Syria; providing
   19         exceptions; requiring certification upon submission of
   20         a bid or proposal for a contract, or before a company
   21         enters into or renews a contract, with an agency or
   22         governmental entity that the company is not engaged in
   23         business operations in Cuba or Syria; providing
   24         procedures upon a determination that a company has
   25         submitted a false certification; providing for civil
   26         action; providing penalties; providing for attorney
   27         fees and costs; providing a statute of repose;
   28         prohibiting a private right of action; requiring the
   29         Department of Management Services to notify the
   30         Attorney General after the act becomes law; providing
   31         an effective date.
   32  
   33  Be It Enacted by the Legislature of the State of Florida:
   34  
   35         Section 1. Section 215.471, Florida Statutes, is amended to
   36  read:
   37         215.471 Divestiture by the State Board of Administration;
   38  reporting requirements.—
   39         (1) The State Board of Administration shall divest any
   40  investment under s. 121.151 and ss. 215.44-215.53, and is
   41  prohibited from investment in stocks, securities, or other
   42  obligations of:
   43         (a)(1) Any institution or company domiciled in the United
   44  States, or foreign subsidiary of a company domiciled in the
   45  United States, doing business in or with Cuba, or with agencies
   46  or instrumentalities thereof in violation of federal law.
   47         (b)(2) Any institution or company domiciled outside of the
   48  United States if the President of the United States has applied
   49  sanctions against the foreign country in which the institution
   50  or company is domiciled pursuant to s. 4 of the Cuban Democracy
   51  Act of 1992.
   52         (2) The State Board of Administration may not be a
   53  fiduciary under this section with respect to voting on, and does
   54  not have the right to vote in favor of, any proxy resolution
   55  advocating expanded United States trade with Cuba or Syria. The
   56  board’s staff shall report on its activities in its annual proxy
   57  voting report.
   58         Section 2. Section 287.135, Florida Statutes, is amended to
   59  read:
   60         287.135 Prohibition against contracting with scrutinized
   61  companies.—
   62         (1) In addition to the terms defined in ss. 287.012 and
   63  215.473, as used in this section, the term:
   64         (a) “Awarding body” means, for purposes of state contracts,
   65  an agency or the department, and for purposes of local
   66  contracts, the governing body of the local governmental entity.
   67         (b) “Business operations” means, for purposes specifically
   68  related to Cuba or Syria, engaging in commerce in any form in
   69  Cuba or Syria, including, but not limited to, acquiring,
   70  developing, maintaining, owning, selling, possessing, leasing,
   71  or operating equipment, facilities, personnel, products,
   72  services, personal property, real property, military equipment,
   73  or any other apparatus of business or commerce.
   74         (c)(b) “Local governmental entity” means a county,
   75  municipality, special district, or other political subdivision
   76  of the state.
   77         (2) A company that, at the time of bidding or submitting a
   78  proposal for a new contract or renewal of an existing contract,
   79  is on the Scrutinized Companies with Activities in Sudan List or
   80  the Scrutinized Companies with Activities in the Iran Petroleum
   81  Energy Sector List, created pursuant to s. 215.473, or is
   82  engaged in business operations in Cuba or Syria, is ineligible
   83  for, and may not bid on, submit a proposal for, or enter into or
   84  renew a contract with an agency or local governmental entity for
   85  goods or services of $1 million or more.
   86         (3)(a) Any contract with an agency or local governmental
   87  entity for goods or services of $1 million or more entered into
   88  or renewed on or after July 1, 2011, through June 30, 2012, must
   89  contain a provision that allows for the termination of such
   90  contract at the option of the awarding body if the company is
   91  found to have submitted a false certification as provided under
   92  subsection (5) or been placed on the Scrutinized Companies with
   93  Activities in Sudan List or the Scrutinized Companies with
   94  Activities in the Iran Petroleum Energy Sector List.
   95         (b) Any contract with an agency or local governmental
   96  entity for goods or services of $1 million or more entered into
   97  or renewed on or after July 1, 2012, must contain a provision
   98  that allows for the termination of such contract at the option
   99  of the awarding body if the company is found to have submitted a
  100  false certification as provided under subsection (5), been
  101  placed on the Scrutinized Companies with Activities in Sudan
  102  List or the Scrutinized Companies with Activities in the Iran
  103  Petroleum Energy Sector List, or been engaged in business
  104  operations in Cuba or Syria.
  105         (4) Notwithstanding subsection (2) or subsection (3), an
  106  agency or local governmental entity, on a case-by-case basis,
  107  may permit a company on the Scrutinized Companies with
  108  Activities in Sudan List or the Scrutinized Companies with
  109  Activities in the Iran Petroleum Energy Sector List, or a
  110  company with business operations in Cuba or Syria, to be
  111  eligible for, bid on, submit a proposal for, or enter into or
  112  renew a contract for goods or services of $1 million or more
  113  under either of the following conditions set forth in paragraph
  114  (a) or the conditions set forth in paragraph (b):
  115         (a)1. With respect to a company on the Scrutinized
  116  Companies with Activities in Sudan List or the Scrutinized
  117  Companies with Activities in the Iran Petroleum Energy Sector
  118  List, all of the following occur:
  119         a.1. The scrutinized business operations were made before
  120  July 1, 2011.
  121         b.2. The scrutinized business operations have not been
  122  expanded or renewed after July 1, 2011.
  123         c.3. The agency or local governmental entity determines
  124  that it is in the best interest of the state or local community
  125  to contract with the company.
  126         d.4. The company has adopted, has publicized, and is
  127  implementing a formal plan to cease scrutinized business
  128  operations and to refrain from engaging in any new scrutinized
  129  business operations.
  130         2. With respect to a company engaged in business operations
  131  in Cuba or Syria, all of the following occur:
  132         a. The business operations were made before July 1, 2012.
  133         b. The business operations have not been expanded or
  134  renewed after July 1, 2012.
  135         c. The agency or local governmental entity determines that
  136  it is in the best interest of the state or local community to
  137  contract with the company.
  138         d. The company has adopted, has publicized, and is
  139  implementing a formal plan to cease business operations and to
  140  refrain from engaging in any new business operations.
  141         (b) One of the following occurs:
  142         1. The local governmental entity makes a public finding
  143  that, absent such an exemption, the local governmental entity
  144  would be unable to obtain the goods or services for which the
  145  contract is offered.
  146         2. For a contract with an executive agency, the Governor
  147  makes a public finding that, absent such an exemption, the
  148  agency would be unable to obtain the goods or services for which
  149  the contract is offered.
  150         3. For a contract with an office of a state constitutional
  151  officer other than the Governor, the state constitutional
  152  officer makes a public finding that, absent such an exemption,
  153  the office would be unable to obtain the goods or services for
  154  which the contract is offered.
  155         (5) At the time a company submits a bid or proposal for a
  156  contract or before the company enters into or renews a contract
  157  with an agency or governmental entity for goods or services of
  158  $1 million or more, the company must certify that the company is
  159  not on the Scrutinized Companies with Activities in Sudan List
  160  or the Scrutinized Companies with Activities in the Iran
  161  Petroleum Energy Sector List, or that it does not have business
  162  operations in Cuba or Syria.
  163         (a) If, after the agency or the local governmental entity
  164  determines, using credible information available to the public,
  165  that the company has submitted a false certification, the agency
  166  or local governmental entity shall provide the company with
  167  written notice of its determination. The company shall have 90
  168  days following receipt of the notice to respond in writing and
  169  to demonstrate that the determination of false certification was
  170  made in error. If the company does not make such demonstration
  171  within 90 days after receipt of the notice, the agency or the
  172  local governmental entity shall bring a civil action against the
  173  company. If a civil action is brought and the court determines
  174  that the company submitted a false certification, the company
  175  shall pay the penalty described in subparagraph 1. and all
  176  reasonable attorney attorney’s fees and costs, including any
  177  costs for investigations that led to the finding of false
  178  certification.
  179         1. A civil penalty equal to the greater of $2 million or
  180  twice the amount of the contract for which the false
  181  certification was submitted shall be imposed.
  182         2. The company is ineligible to bid on any contract with an
  183  agency or local governmental entity for 3 years after the date
  184  the agency or local governmental entity determined that the
  185  company submitted a false certification.
  186         (b) A civil action to collect the penalties described in
  187  paragraph (a) must commence within 3 years after the date the
  188  false certification is submitted.
  189         (6) Only the agency or local governmental entity that is a
  190  party to the contract may cause a civil action to be brought
  191  under this section. This section does not create or authorize a
  192  private right of action or enforcement of the penalties provided
  193  in this section. An unsuccessful bidder, or any other person
  194  other than the agency or local governmental entity, may not
  195  protest the award of a contract or contract renewal on the basis
  196  of a false certification.
  197         (7) This section preempts any ordinance or rule of any
  198  agency or local governmental entity involving public contracts
  199  for goods or services of $1 million or more with a company
  200  engaged in scrutinized business operations.
  201         (8) The department shall submit to the Attorney General of
  202  the United States a written notice:
  203         (a) Describing this section within 30 days after July 1,
  204  2011.
  205         (b) Within 30 days after July 1, 2012, apprising the
  206  Attorney General of the United States of the inclusion of
  207  companies with business operations in Cuba or Syria within the
  208  provisions of this section.
  209         (9) This section becomes inoperative on the date that
  210  federal law ceases to authorize the states to adopt and enforce
  211  the contracting prohibitions of the type provided for in this
  212  section.
  213         Section 3. This act shall take effect July 1, 2012.