Florida Senate - 2018                                     SB 780
       
       
        
       By Senator Brandes
       
       
       
       
       
       24-00797-18                                            2018780__
    1                        A bill to be entitled                      
    2         An act relating to the prohibition against contracting
    3         with scrutinized companies; amending s. 287.135, F.S.;
    4         prohibiting a company that is on the Scrutinized
    5         Companies that Boycott Israel List or that is engaged
    6         in a boycott of Israel from bidding on, submitting a
    7         proposal for, or entering into or renewing a contract
    8         with an agency or local governmental entity for goods
    9         or services of any amount; providing exceptions;
   10         requiring such contracts entered into or renewed on or
   11         after July 1, 2018, to include a provision authorizing
   12         termination of the contract under specified
   13         circumstances; requiring a company to provide a
   14         specified certification before submitting a bid or
   15         proposal for or entering into or renewing such
   16         contracts; providing for preemption of agency or local
   17         governmental entity ordinances and rules involving
   18         such contracts; conforming provisions to changes made
   19         by the act; providing an effective date.
   20          
   21  Be It Enacted by the Legislature of the State of Florida:
   22  
   23         Section 1. Section 287.135, Florida Statutes, is amended to
   24  read:
   25         287.135 Prohibition against contracting with scrutinized
   26  companies.—
   27         (1) In addition to the terms defined in ss. 287.012 and
   28  215.473, as used in this section, the term:
   29         (a) “Awarding body” means, for purposes of state contracts,
   30  an agency or the department, and for purposes of local
   31  contracts, the governing body of the local governmental entity.
   32         (b) “Boycott of Israel” has the same meaning as defined in
   33  s. 215.4725.
   34         (c) “Business operations” means, for purposes specifically
   35  related to Cuba or Syria, engaging in commerce in any form in
   36  Cuba or Syria, including, but not limited to, acquiring,
   37  developing, maintaining, owning, selling, possessing, leasing,
   38  or operating equipment, facilities, personnel, products,
   39  services, personal property, real property, military equipment,
   40  or any other apparatus of business or commerce.
   41         (d) “Local governmental entity” means a county,
   42  municipality, special district, or other political subdivision
   43  of the state.
   44         (2) A company is ineligible to, and may not, bid on, submit
   45  a proposal for, or enter into or renew a contract with an agency
   46  or local governmental entity for goods or services of $1 million
   47  or more if at the time of bidding or submitting a proposal for a
   48  new contract or renewal of an existing contract, the company:
   49         (a) Any amount if, at the time of bidding on, submitting a
   50  proposal for, or entering into or renewing such contract, the
   51  company is on the Scrutinized Companies that Boycott Israel
   52  List, created pursuant to s. 215.4725, or is engaged in a
   53  boycott of Israel; or
   54         (b) One million dollars or more if, at the time of bidding
   55  on, submitting a proposal for, or entering into or renewing such
   56  contract, the company:
   57         1. Is on the Scrutinized Companies with Activities in Sudan
   58  List or the Scrutinized Companies with Activities in the Iran
   59  Petroleum Energy Sector List, created pursuant to s. 215.473; or
   60         2.(c) Is engaged in business operations in Cuba or Syria.
   61         (3)(a) Any contract with an agency or local governmental
   62  entity for goods or services of $1 million or more entered into
   63  or renewed on or after:
   64         1.(a) July 1, 2011, through June 30, 2012, must contain a
   65  provision that allows for the termination of such contract at
   66  the option of the awarding body if the company is found to have
   67  submitted a false certification as provided under subsection (5)
   68  or been placed on the Scrutinized Companies with Activities in
   69  Sudan List or the Scrutinized Companies with Activities in the
   70  Iran Petroleum Energy Sector List.
   71         2.(b) July 1, 2012, through September 30, 2016, must
   72  contain a provision that allows for the termination of such
   73  contract at the option of the awarding body if the company is
   74  found to have submitted a false certification as provided under
   75  subsection (5), been placed on the Scrutinized Companies with
   76  Activities in Sudan List or the Scrutinized Companies with
   77  Activities in the Iran Petroleum Energy Sector List, or been
   78  engaged in business operations in Cuba or Syria.
   79         3.(c) October 1, 2016, through June 30, 2018, must contain
   80  a provision that allows for the termination of such contract at
   81  the option of the awarding body if the company:
   82         a.1. Is found to have submitted a false certification as
   83  provided under subsection (5);
   84         b.2. Has been placed on the Scrutinized Companies that
   85  Boycott Israel List, or is engaged in a boycott of Israel;
   86         c.3. Has been placed on the Scrutinized Companies with
   87  Activities in Sudan List or the Scrutinized Companies with
   88  Activities in the Iran Petroleum Energy Sector List; or
   89         d.4. Has been engaged in business operations in Cuba or
   90  Syria.
   91         4.July 1, 2018, must contain a provision that allows for
   92  the termination of such contract at the option of the awarding
   93  body if the company is found to have submitted a false
   94  certification as provided under subsection (5), been placed on
   95  the Scrutinized Companies with Activities in Sudan List or the
   96  Scrutinized Companies with Activities in the Iran Petroleum
   97  Energy Sector List, or been engaged in business operations in
   98  Cuba or Syria.
   99         (b)Any contract with an agency or local governmental
  100  entity for goods or services of any amount entered into or
  101  renewed on or after July 1, 2018, must contain a provision that
  102  allows for the termination of such contract at the option of the
  103  awarding body if the company is found to have been placed on the
  104  Scrutinized Companies that Boycott Israel List or is engaged in
  105  a boycott of Israel.
  106         (4) Notwithstanding subsection (2) or subsection (3), an
  107  agency or local governmental entity, on a case-by-case basis,
  108  may permit a company on the Scrutinized Companies that Boycott
  109  Israel List, the Scrutinized Companies with Activities in Sudan
  110  List or the Scrutinized Companies with Activities in the Iran
  111  Petroleum Energy Sector List, or a company engaged in with
  112  business operations in Cuba or Syria, to be eligible for, bid
  113  on, submit a proposal for, or enter into or renew a contract for
  114  goods or services of $1 million or more, or may permit a company
  115  on the Scrutinized Companies that Boycott Israel List to be
  116  eligible for, bid on, submit a proposal for, or enter into or
  117  renew a contract for goods or services of any amount, under the
  118  conditions set forth in paragraph (a) or the conditions set
  119  forth in paragraph (b):
  120         (a)1. With respect to a company on the Scrutinized
  121  Companies with Activities in Sudan List or the Scrutinized
  122  Companies with Activities in the Iran Petroleum Energy Sector
  123  List, all of the following occur:
  124         a. The scrutinized business operations were made before
  125  July 1, 2011.
  126         b. The scrutinized business operations have not been
  127  expanded or renewed after July 1, 2011.
  128         c. The agency or local governmental entity determines that
  129  it is in the best interest of the state or local community to
  130  contract with the company.
  131         d. The company has adopted, has publicized, and is
  132  implementing a formal plan to cease scrutinized business
  133  operations and to refrain from engaging in any new scrutinized
  134  business operations.
  135         2. With respect to a company engaged in business operations
  136  in Cuba or Syria, all of the following occur:
  137         a. The business operations were made before July 1, 2012.
  138         b. The business operations have not been expanded or
  139  renewed after July 1, 2012.
  140         c. The agency or local governmental entity determines that
  141  it is in the best interest of the state or local community to
  142  contract with the company.
  143         d. The company has adopted, has publicized, and is
  144  implementing a formal plan to cease business operations and to
  145  refrain from engaging in any new business operations.
  146         3. With respect to a company on the Scrutinized Companies
  147  that Boycott Israel List, all of the following occur:
  148         a. The boycott of Israel was initiated before October 1,
  149  2016.
  150         b. The company certifies in writing that it has ceased its
  151  boycott of Israel.
  152         c. The agency or local governmental entity determines that
  153  it is in the best interest of the state or local community to
  154  contract with the company.
  155         d. The company has adopted, has publicized, and is
  156  implementing a formal plan to cease scrutinized business
  157  operations and to refrain from engaging in any new scrutinized
  158  business operations.
  159         (b) One of the following occurs:
  160         1. The local governmental entity makes a public finding
  161  that, absent such an exemption, the local governmental entity
  162  would be unable to obtain the goods or services for which the
  163  contract is offered.
  164         2. For a contract with an executive agency, the Governor
  165  makes a public finding that, absent such an exemption, the
  166  agency would be unable to obtain the goods or services for which
  167  the contract is offered.
  168         3. For a contract with an office of a state constitutional
  169  officer other than the Governor, the state constitutional
  170  officer makes a public finding that, absent such an exemption,
  171  the office would be unable to obtain the goods or services for
  172  which the contract is offered.
  173         (5) At the time a company submits a bid or proposal for a
  174  contract or before the company enters into or renews a contract
  175  with an agency or local governmental entity for goods or
  176  services of $1 million or more, the company must certify that
  177  the company is not participating in a boycott of Israel, on the
  178  Scrutinized Companies with Activities in Sudan List or the
  179  Scrutinized Companies with Activities in the Iran Petroleum
  180  Energy Sector List and, or that it does not have business
  181  operations in Cuba or Syria. At the time a company submits a bid
  182  or proposal for a contract or before the company enters into or
  183  renews a contract with an agency or local governmental entity
  184  for goods or services of any amount, the company must certify
  185  that the company is not participating in a boycott of Israel.
  186         (a) If, after the agency or the local governmental entity
  187  determines, using credible information available to the public,
  188  that the company has submitted a false certification, the agency
  189  or local governmental entity shall provide the company with
  190  written notice of its determination. The company shall have 90
  191  days following receipt of the notice to respond in writing and
  192  to demonstrate that the determination of false certification was
  193  made in error. If the company does not make such demonstration
  194  within 90 days after receipt of the notice, the agency or the
  195  local governmental entity shall bring a civil action against the
  196  company. If a civil action is brought and the court determines
  197  that the company submitted a false certification, the company
  198  shall pay the penalty described in subparagraph 1. and all
  199  reasonable attorney fees and costs, including any costs for
  200  investigations that led to the finding of false certification.
  201         1. A civil penalty equal to the greater of $2 million or
  202  twice the amount of the contract for which the false
  203  certification was submitted shall be imposed.
  204         2. The company is ineligible to bid on any contract with an
  205  agency or local governmental entity for 3 years after the date
  206  the agency or local governmental entity determined that the
  207  company submitted a false certification.
  208         (b) A civil action to collect the penalties described in
  209  paragraph (a) must commence within 3 years after the date the
  210  false certification is submitted.
  211         (6) Only the agency or local governmental entity that is a
  212  party to the contract may cause a civil action to be brought
  213  under this section. This section does not create or authorize a
  214  private right of action or enforcement of the penalties provided
  215  in this section. An unsuccessful bidder, or any other person
  216  other than the agency or local governmental entity, may not
  217  protest the award of a contract or contract renewal on the basis
  218  of a false certification.
  219         (7) This section preempts any ordinance or rule of any
  220  agency or local governmental entity involving public contracts
  221  for goods or services of:
  222         (a)One million dollars Of $1 million or more with a
  223  company engaged in scrutinized business operations.
  224         (b)Any amount with a company that has been placed on the
  225  Scrutinized Companies that Boycott Israel List or is engaged in
  226  a boycott of Israel.
  227         (8) The contracting prohibitions in this section applicable
  228  to companies on the Scrutinized Companies with Activities in
  229  Sudan List or the Scrutinized Companies with Activities in the
  230  Iran Petroleum Energy Sector List or to companies engaged in
  231  business operations in Cuba or Syria become inoperative on the
  232  date that federal law ceases to authorize the states to adopt
  233  and enforce such contracting prohibitions.
  234         Section 2. This act shall take effect July 1, 2018.