| 15 | 15 | | An act relating to commodities produced by forced 2 |
|---|
| 16 | 16 | | labor; creating s. 287.1346, F.S.; providing 3 |
|---|
| 17 | 17 | | definitions; prohibiting a company on the forced labor 4 |
|---|
| 18 | 18 | | vendor list from taking certain procurement actions; 5 |
|---|
| 19 | 19 | | prohibiting an agency from procuring commodities from 6 |
|---|
| 20 | 20 | | certain companies for a certain period; requiring 7 |
|---|
| 21 | 21 | | certain solicitations and contracts to include a 8 |
|---|
| 22 | 22 | | certain statement; requiring certain contracts to 9 |
|---|
| 23 | 23 | | include a certain termination provision; requiring a 10 |
|---|
| 24 | 24 | | member of a company's senior management to provide a 11 |
|---|
| 25 | 25 | | certain certification; requiring a company to provide 12 |
|---|
| 26 | 26 | | a certain notification to the Department of Management 13 |
|---|
| 27 | 27 | | Services within a certain period; requiring an agency 14 |
|---|
| 28 | 28 | | to provide certain information to the department 15 |
|---|
| 29 | 29 | | within a certain period; requiring the depar tment to 16 |
|---|
| 30 | 30 | | create and maintain a forced labor vendor list; 17 |
|---|
| 31 | 31 | | providing requirements for such list; providing for 18 |
|---|
| 32 | 32 | | automatic removal from the list; providing a process 19 |
|---|
| 33 | 33 | | for the department to place a company on such list; 20 |
|---|
| 34 | 34 | | subjecting a company that submits a false 21 |
|---|
| 35 | 35 | | certification or that should have had certain 22 |
|---|
| 36 | 36 | | knowledge to a fine; authorizing a company that 23 |
|---|
| 37 | 37 | | receives certain notice to file a petition for a 24 |
|---|
| 38 | 38 | | certain hearing; providing requirements and procedures 25 |
|---|
| 46 | 46 | | Page 2 of 10 |
|---|
| 47 | 47 | | F L O R I D A H O U S E O F R E P R E S E N T A T I V E S |
|---|
| 48 | 48 | | |
|---|
| 49 | 49 | | |
|---|
| 50 | 50 | | |
|---|
| 51 | 51 | | for such hearings; providing evidentiary standards for 26 |
|---|
| 52 | 52 | | certain proceedings; authorizing a company placed on 27 |
|---|
| 53 | 53 | | such list to petition for removal; providing 28 |
|---|
| 54 | 54 | | requirements for such petitions; authorizing the 29 |
|---|
| 55 | 55 | | removal of a company from such list in certain 30 |
|---|
| 56 | 56 | | circumstances; providing construction; requiring the 31 |
|---|
| 57 | 57 | | deposit of collected fines into the General Revenue 32 |
|---|
| 58 | 58 | | Fund; providing an effective date. 33 |
|---|
| 59 | 59 | | 34 |
|---|
| 60 | 60 | | Be It Enacted by the Legislature of the State of Florida: 35 |
|---|
| 61 | 61 | | 36 |
|---|
| 62 | 62 | | Section 1. Section 287.1346, Florida Statutes, is created 37 |
|---|
| 63 | 63 | | to read: 38 |
|---|
| 64 | 64 | | 287.1346 Provision of commodities produced b y forced 39 |
|---|
| 65 | 65 | | labor; denial or revocation of the right to transact business 40 |
|---|
| 66 | 66 | | with agencies.— 41 |
|---|
| 67 | 67 | | (1) As used in this section, the term: 42 |
|---|
| 68 | 68 | | (a) "Forced labor" means work or service exacted from any 43 |
|---|
| 69 | 69 | | person, including a minor, under the menace of a penalty for 44 |
|---|
| 70 | 70 | | nonperformance and for which the worker does not offer himself 45 |
|---|
| 71 | 71 | | or herself voluntarily or an activity that violates s. 787.06. 46 |
|---|
| 72 | 72 | | (b) "Forced labor vendor list" or "list" means the list 47 |
|---|
| 73 | 73 | | required to be created and maintained by the department pursuant 48 |
|---|
| 74 | 74 | | to paragraph (4)(d). 49 |
|---|
| 75 | 75 | | (c) "Senior management" includes chief executive officers; 50 |
|---|
| 83 | 83 | | Page 3 of 10 |
|---|
| 84 | 84 | | F L O R I D A H O U S E O F R E P R E S E N T A T I V E S |
|---|
| 85 | 85 | | |
|---|
| 86 | 86 | | |
|---|
| 87 | 87 | | |
|---|
| 88 | 88 | | assistant chief executive officers, including, but not limited 51 |
|---|
| 89 | 89 | | to, assistant presidents, vice presidents, or assistant 52 |
|---|
| 90 | 90 | | treasurers; chief financial officers; chief personnel officers; 53 |
|---|
| 91 | 91 | | or any employee of an entity performing similar functions. 54 |
|---|
| 92 | 92 | | (2) A company on the forced labor vendor list may not: 55 |
|---|
| 93 | 93 | | (a) Submit a bid, proposal, or reply on a contract to 56 |
|---|
| 94 | 94 | | provide any commodities to an agency. 57 |
|---|
| 95 | 95 | | (b) Be awarded a contract or perform work as a co ntractor, 58 |
|---|
| 96 | 96 | | supplier, subcontractor, or consultant with an agency for the 59 |
|---|
| 97 | 97 | | provision of commodities. 60 |
|---|
| 98 | 98 | | (c) Transact business for the provision of commodities 61 |
|---|
| 99 | 99 | | with any agency. 62 |
|---|
| 100 | 100 | | (3) An agency may not accept a bid, proposal, or reply 63 |
|---|
| 101 | 101 | | from, award a contract to, or transact business pertaining to 64 |
|---|
| 102 | 102 | | the provision of commodities with a company on the forced labor 65 |
|---|
| 103 | 103 | | vendor list, or an entity under the control of such company, for 66 |
|---|
| 104 | 104 | | a period of 365 days after the date the company was placed on 67 |
|---|
| 105 | 105 | | the list unless the company is removed from the list pursuant to 68 |
|---|
| 106 | 106 | | paragraph (5)(d). 69 |
|---|
| 107 | 107 | | (4)(a)1. All invitations to bid, requests for proposals, 70 |
|---|
| 108 | 108 | | and invitations to negotiate and any written contract for the 71 |
|---|
| 109 | 109 | | provision of commodities by an agency must include a statement 72 |
|---|
| 110 | 110 | | informing companies of the requirements of this section. 73 |
|---|
| 111 | 111 | | 2. Any contract with an agency for the provision of 74 |
|---|
| 112 | 112 | | commodities entered into or renewed on or after July 1, 2024, 75 |
|---|
| 120 | 120 | | Page 4 of 10 |
|---|
| 121 | 121 | | F L O R I D A H O U S E O F R E P R E S E N T A T I V E S |
|---|
| 122 | 122 | | |
|---|
| 123 | 123 | | |
|---|
| 124 | 124 | | |
|---|
| 125 | 125 | | must include a provision that allows for the termination of such 76 |
|---|
| 126 | 126 | | contract at the option of the awarding agency if the company is 77 |
|---|
| 127 | 127 | | placed on the forced labor vendor list. 78 |
|---|
| 128 | 128 | | (b) At the time a company submits a bid, proposal, or 79 |
|---|
| 129 | 129 | | reply for a contract and before the company enters into or 80 |
|---|
| 130 | 130 | | renews a contract with an agency for the provision of 81 |
|---|
| 131 | 131 | | commodities, a member of the company's senior management must 82 |
|---|
| 132 | 132 | | certify, in writing, that to the best of his or her knowledge 83 |
|---|
| 133 | 133 | | the commodities such company is offering to the agency have not 84 |
|---|
| 134 | 134 | | been produced, in whole or in part, by forced labor. 85 |
|---|
| 135 | 135 | | (c) A company must notify the department within 30 days 86 |
|---|
| 136 | 136 | | after gaining actual knowledge that the company has provided to 87 |
|---|
| 137 | 137 | | an agency a commodity produced, in whole or in part, by forced 88 |
|---|
| 138 | 138 | | labor. Any agency that receives information that a company has 89 |
|---|
| 139 | 139 | | provided to an agency a commodity pr oduced, in whole or in part, 90 |
|---|
| 140 | 140 | | by forced labor must provide that information to the department 91 |
|---|
| 141 | 141 | | in writing within 10 days. 92 |
|---|
| 142 | 142 | | (d) The department shall create and maintain a forced 93 |
|---|
| 143 | 143 | | labor vendor list that contains the name and address of each 94 |
|---|
| 144 | 144 | | company that has been disqualified from the public contracting 95 |
|---|
| 145 | 145 | | and purchasing process under this section. The department shall 96 |
|---|
| 146 | 146 | | publish an updated version of the list quarterly. The updated 97 |
|---|
| 147 | 147 | | quarterly list shall be electronically posted on the 98 |
|---|
| 148 | 148 | | department's website. Notwithstan ding this paragraph, a company 99 |
|---|
| 149 | 149 | | disqualified from the public contracting and purchasing process 100 |
|---|
| 157 | 157 | | Page 5 of 10 |
|---|
| 158 | 158 | | F L O R I D A H O U S E O F R E P R E S E N T A T I V E S |
|---|
| 159 | 159 | | |
|---|
| 160 | 160 | | |
|---|
| 161 | 161 | | |
|---|
| 162 | 162 | | pursuant to this section shall be disqualified as of the date a 101 |
|---|
| 163 | 163 | | final order is entered pursuant to paragraph (e) or paragraph 102 |
|---|
| 164 | 164 | | (5)(a). A company is automatically removed from the list 366 103 |
|---|
| 165 | 165 | | days after the date of the final order placing the company on 104 |
|---|
| 166 | 166 | | the list. 105 |
|---|
| 167 | 167 | | (e) Upon receiving from any source reasonable and credible 106 |
|---|
| 168 | 168 | | information that a company has submitted a false certification 107 |
|---|
| 169 | 169 | | or provided to an agency a commodi ty produced, in whole or in 108 |
|---|
| 170 | 170 | | part, by forced labor, the department shall investigate the 109 |
|---|
| 171 | 171 | | information and determine whether good cause exists to place 110 |
|---|
| 172 | 172 | | that company on the forced labor vendor list and whether such 111 |
|---|
| 173 | 173 | | placement is in the public interest. If good cause exists and 112 |
|---|
| 174 | 174 | | placement is in the public interest, the department shall notify 113 |
|---|
| 175 | 175 | | the company in writing of the department's intent to place the 114 |
|---|
| 176 | 176 | | company on the list and of the company's right to a hearing, the 115 |
|---|
| 177 | 177 | | procedure that must be followed, and the appli cable time 116 |
|---|
| 178 | 178 | | requirements. If the company does not request a hearing, the 117 |
|---|
| 179 | 179 | | department shall enter a final order placing the company on the 118 |
|---|
| 180 | 180 | | forced labor vendor list. A company may not be placed on the 119 |
|---|
| 181 | 181 | | forced labor vendor list without receiving an individual no tice 120 |
|---|
| 182 | 182 | | of intent from the department. 121 |
|---|
| 183 | 183 | | 1. It is not in the public interest to place a company on 122 |
|---|
| 184 | 184 | | the forced labor vendor list if any of the following apply: 123 |
|---|
| 185 | 185 | | a. The company did not provide to an agency a commodity 124 |
|---|
| 186 | 186 | | produced, in whole or in part, by forced l abor; 125 |
|---|
| 194 | 194 | | Page 6 of 10 |
|---|
| 195 | 195 | | F L O R I D A H O U S E O F R E P R E S E N T A T I V E S |
|---|
| 196 | 196 | | |
|---|
| 197 | 197 | | |
|---|
| 198 | 198 | | |
|---|
| 199 | 199 | | b. The provision to an agency of a commodity produced, in 126 |
|---|
| 200 | 200 | | whole or in part, by forced labor was committed by an employee 127 |
|---|
| 201 | 201 | | of the company without the actual or constructive knowledge of 128 |
|---|
| 202 | 202 | | any member of the company's senior management; 129 |
|---|
| 203 | 203 | | c. The member of the company's senior management 130 |
|---|
| 204 | 204 | | responsible for the contract under which the company provided to 131 |
|---|
| 205 | 205 | | the agency a commodity produced, in whole or in part, by forced 132 |
|---|
| 206 | 206 | | labor did not have actual or constructive knowledge that the 133 |
|---|
| 207 | 207 | | commodity was produced, in whole or in part, by forced labor and 134 |
|---|
| 208 | 208 | | a reasonable person under similar circumstances to that of such 135 |
|---|
| 209 | 209 | | member would not have known that the commodity was produced, in 136 |
|---|
| 210 | 210 | | whole or in part, by forced labor; 137 |
|---|
| 211 | 211 | | d. The member of the company's senior management 138 |
|---|
| 212 | 212 | | responsible for the contract under which the company provided to 139 |
|---|
| 213 | 213 | | the agency a commodity produced, in whole or in part, by forced 140 |
|---|
| 214 | 214 | | labor is no longer an employee of the company; or 141 |
|---|
| 215 | 215 | | e. The agency head or a designee delegated the authority 142 |
|---|
| 216 | 216 | | to execute contracts on beh alf of the agency makes a public 143 |
|---|
| 217 | 217 | | finding that, absent the provision of such commodities by the 144 |
|---|
| 218 | 218 | | company, the agency would be unable to obtain the commodities 145 |
|---|
| 219 | 219 | | for which the contract is offered. 146 |
|---|
| 220 | 220 | | 2. In determining whether it is in the public interest to 147 |
|---|
| 221 | 221 | | place a company on the forced labor vendor list, the following 148 |
|---|
| 222 | 222 | | factors shall be considered: 149 |
|---|
| 223 | 223 | | a. The nature and details of the provision of the 150 |
|---|
| 231 | 231 | | Page 7 of 10 |
|---|
| 232 | 232 | | F L O R I D A H O U S E O F R E P R E S E N T A T I V E S |
|---|
| 233 | 233 | | |
|---|
| 234 | 234 | | |
|---|
| 235 | 235 | | |
|---|
| 236 | 236 | | commodity produced, in whole or in part, by forced labor. 151 |
|---|
| 237 | 237 | | b. The degree of culpability of the company proposed to be 152 |
|---|
| 238 | 238 | | placed on the forced labor vendor list. 153 |
|---|
| 239 | 239 | | c. Prior or future self -policing by the company to prevent 154 |
|---|
| 240 | 240 | | the provision of a commodity produced, in whole or in part, by 155 |
|---|
| 241 | 241 | | forced labor. 156 |
|---|
| 242 | 242 | | d. The company's compliance with paragraph (c). 157 |
|---|
| 243 | 243 | | e. The needs of agencie s for additional competition in the 158 |
|---|
| 244 | 244 | | procurement of commodities in their respective markets. 159 |
|---|
| 245 | 245 | | f. Mitigation based upon any demonstration of good 160 |
|---|
| 246 | 246 | | citizenship by the company, including, but not limited to, the 161 |
|---|
| 247 | 247 | | adoption of a formal plan to cease producing or providing 162 |
|---|
| 248 | 248 | | commodities produced, in whole or in part, by forced labor. 163 |
|---|
| 249 | 249 | | (f) A company that submits a false certification under 164 |
|---|
| 250 | 250 | | paragraph (b) or that should have known that a commodity 165 |
|---|
| 251 | 251 | | provided under a contract with an agency was produced, in whole 166 |
|---|
| 252 | 252 | | or in part, by forced labor and is subsequently placed on the 167 |
|---|
| 253 | 253 | | forced labor vendor list shall be assessed a fine of $1,000 or 168 |
|---|
| 254 | 254 | | an amount equal to 20 percent of the value of the commodity 169 |
|---|
| 255 | 255 | | provided to the agency under the contract, whichever is greater. 170 |
|---|
| 256 | 256 | | (5)(a) Within 21 days after receipt of the notice of 171 |
|---|
| 257 | 257 | | intent pursuant to paragraph (4)(e), the company may file a 172 |
|---|
| 258 | 258 | | petition for a hearing involving disputed issues of material 173 |
|---|
| 259 | 259 | | fact pursuant to ss. 120.569 and 120.57(1) to challenge the 174 |
|---|
| 260 | 260 | | department's determination that th e company's placement on the 175 |
|---|
| 268 | 268 | | Page 8 of 10 |
|---|
| 269 | 269 | | F L O R I D A H O U S E O F R E P R E S E N T A T I V E S |
|---|
| 270 | 270 | | |
|---|
| 271 | 271 | | |
|---|
| 272 | 272 | | |
|---|
| 273 | 273 | | forced labor vendor list is in the public interest. A company 176 |
|---|
| 274 | 274 | | may not file a petition for a hearing not involving disputed 177 |
|---|
| 275 | 275 | | issues of material fact under s. 120.57(2). Chapter 120 applies 178 |
|---|
| 276 | 276 | | to a hearing under this section except t hat: 179 |
|---|
| 277 | 277 | | 1. The petition shall be filed with the department. The 180 |
|---|
| 278 | 278 | | department shall be a party to the proceeding for all purposes. 181 |
|---|
| 279 | 279 | | 2. Within 5 days after the filing of the petition, the 182 |
|---|
| 280 | 280 | | department shall notify the Division of Administrative Hearings 183 |
|---|
| 281 | 281 | | of the request for a hearing pursuant to ss. 120.569 and 184 |
|---|
| 282 | 282 | | 120.57(1). The director of the Division of Administrative 185 |
|---|
| 283 | 283 | | Hearings shall, within 5 days after receipt of notice from the 186 |
|---|
| 284 | 284 | | department, assign an administrative law judge to preside over 187 |
|---|
| 285 | 285 | | the proceeding. The adm inistrative law judge, upon request by a 188 |
|---|
| 286 | 286 | | party, may consolidate related proceedings. 189 |
|---|
| 287 | 287 | | 3. The administrative law judge shall conduct the hearing 190 |
|---|
| 288 | 288 | | within 30 days after being assigned, unless otherwise stipulated 191 |
|---|
| 289 | 289 | | by the parties. 192 |
|---|
| 290 | 290 | | 4. Within 30 days after the hearing or receipt of the 193 |
|---|
| 291 | 291 | | hearing transcript, whichever is later, the administrative law 194 |
|---|
| 292 | 292 | | judge shall enter a final order, which shall consist of findings 195 |
|---|
| 293 | 293 | | of fact, conclusions of law, interpretation of agency rules, and 196 |
|---|
| 294 | 294 | | any other information required by law or rule to be contained in 197 |
|---|
| 295 | 295 | | the final order. Such final order shall place or not place the 198 |
|---|
| 296 | 296 | | company on the forced labor vendor list. 199 |
|---|
| 297 | 297 | | 5. The final order of the administrative law judge shall 200 |
|---|
| 305 | 305 | | Page 9 of 10 |
|---|
| 306 | 306 | | F L O R I D A H O U S E O F R E P R E S E N T A T I V E S |
|---|
| 307 | 307 | | |
|---|
| 308 | 308 | | |
|---|
| 309 | 309 | | |
|---|
| 310 | 310 | | be final agency action for purposes of s. 120.68. 201 |
|---|
| 311 | 311 | | 6. At any time after the filing of the petition, informal 202 |
|---|
| 312 | 312 | | disposition may be made pursuant to s. 120.57(4). In that event, 203 |
|---|
| 313 | 313 | | the administrative law judge shall enter a final order adopting 204 |
|---|
| 314 | 314 | | the stipulation, agreed settlement, or consent order. 205 |
|---|
| 315 | 315 | | (b) In any proceeding unde r this section, the department 206 |
|---|
| 316 | 316 | | is required to prove by clear and convincing evidence that it is 207 |
|---|
| 317 | 317 | | in the public interest for the company to which the department 208 |
|---|
| 318 | 318 | | has provided notice of intent pursuant to paragraph (4)(e) to be 209 |
|---|
| 319 | 319 | | placed on the forced labor vendo r list. Proof that such company 210 |
|---|
| 320 | 320 | | provided to an agency a commodity produced, in whole or in part, 211 |
|---|
| 321 | 321 | | by forced labor constitutes a rebuttable presumption that it is 212 |
|---|
| 322 | 322 | | in the public interest for the company to be placed on the 213 |
|---|
| 323 | 323 | | forced labor vendor list. 214 |
|---|
| 324 | 324 | | (c) Upon establishment of the rebuttable presumption in 215 |
|---|
| 325 | 325 | | paragraph (b) that it is in the public interest for the company 216 |
|---|
| 326 | 326 | | to be placed on the forced labor vendor list, that company may 217 |
|---|
| 327 | 327 | | prove by a preponderance of the evidence that it is not in the 218 |
|---|
| 328 | 328 | | public interest for such company to be placed on the list based 219 |
|---|
| 329 | 329 | | upon evidence addressing the provisions of sub -subparagraph 220 |
|---|
| 330 | 330 | | (4)(e)1. or the factors in sub -subparagraph (4)(e)2. 221 |
|---|
| 331 | 331 | | (d)1. A company on the forced labor vendor list may 222 |
|---|
| 332 | 332 | | petition for such company's removal from th e list no sooner than 223 |
|---|
| 333 | 333 | | 6 months after the date a final order is entered placing the 224 |
|---|
| 334 | 334 | | company on the list. The petition shall be filed with the 225 |
|---|
| 342 | 342 | | Page 10 of 10 |
|---|
| 343 | 343 | | F L O R I D A H O U S E O F R E P R E S E N T A T I V E S |
|---|
| 344 | 344 | | |
|---|
| 345 | 345 | | |
|---|
| 346 | 346 | | |
|---|
| 347 | 347 | | department and the proceeding shall be conducted pursuant to 226 |
|---|
| 348 | 348 | | this subsection. 227 |
|---|
| 349 | 349 | | 2. A company may be removed from the forced labor vendor 228 |
|---|
| 350 | 350 | | list subject to such terms and conditions as may be prescribed 229 |
|---|
| 351 | 351 | | by the administrative law judge upon a determination that 230 |
|---|
| 352 | 352 | | removal is in the public interest. In determining whether 231 |
|---|
| 353 | 353 | | removal is in the public interest, the administrative law judge 232 |
|---|
| 354 | 354 | | shall give consideration to any relevant factors, including 233 |
|---|
| 355 | 355 | | whether the company has prepared a corrective action plan that 234 |
|---|
| 356 | 356 | | addresses the original grounds for placement on the list as well 235 |
|---|
| 357 | 357 | | as any additional evidence that the company has in good f aith 236 |
|---|
| 358 | 358 | | taken significant remedial action. 237 |
|---|
| 359 | 359 | | 3. If a petition for removal is denied, the company may 238 |
|---|
| 360 | 360 | | not petition for another hearing on removal. The department may 239 |
|---|
| 361 | 361 | | petition for removal before the expiration of the 365 -day period 240 |
|---|
| 362 | 362 | | provided in subsection (3) if, in the department's discretion, 241 |
|---|
| 363 | 363 | | the department determines that removal would be in the public 242 |
|---|
| 364 | 364 | | interest. 243 |
|---|
| 365 | 365 | | (6) Placement on the forced labor vendor list does not 244 |
|---|
| 366 | 366 | | affect any rights or obligations under any contract, franchise, 245 |
|---|
| 367 | 367 | | or other binding agreement which predates such placement. 246 |
|---|
| 368 | 368 | | (7) Any fines collected under this section shall be 247 |
|---|
| 369 | 369 | | deposited into the General Revenue Fund. 248 |
|---|
| 370 | 370 | | Section 2. This act shall take effect July 1, 2024. 249 |
|---|