§ 287.137 — Antitrust violations; denial or revocation of the right to transact business with public entities; denial of economic benefits

Florida § 287.137

• Jurisdiction: Florida
• Title: XIX
• Ch. 287: PROCUREMENT OF PERSONAL PROPERTY AND SERVICES

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(1) As used in this section, the term: (a) “Affiliate” means: 1. A predecessor or successor of a person convicted of or held civilly liable for an antitrust violation; or 2. An entity under the control of any natural person who is active in the management of the entity that has been convicted of or held civilly liable for an antitrust violation. The term includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in the management of an affiliate. The ownership by one person of shares constituting a controlling interest in another person, or a pooling of equipment or income among persons when not for fair market value under an arm’s length agreement, is a prima facie case that one person controls another person. The term also includes a person who knowingly enters into a joint venture with a person who has violated an antitrust law during the preceding 36 months. (b) “Antitrust violation” means any failure to comply with a state or federal antitrust law as determined in a civil or criminal proceeding brought by the Attorney General, a state attorney, a similar body or agency of another state, the Federal Trade Commission, or the United States Department of Justice. (c) “Antitrust violator vendor list” means the list required to be kept by the department pursuant to paragraph (3)(b). (d) “Conviction or being held civilly liable” or “convicted or held civilly liable” means a criminal finding of responsibility or guilt or conviction, with or without an adjudication of guilt, being held civilly responsible or liable, or having a judgment levied for an antitrust violation in any federal or state trial court of record relating to charges brought by indictment, information, or complaint on or after July 1, 2021, as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere or other finding of responsibility or liability. (e) “Economic incentives” means state grants, cash grants, tax exemptions, tax refunds, tax credits, state funds, and other state incentives under chapter 288 or administered by the Department of Commerce. (f) “Person” means a natural person or an entity organized under the laws of any state or of the United States which operates as a social media platform, as defined in s. 501.2041, with the legal power to enter into a binding contract and which bids or applies to bid on contracts let by a public entity, or which otherwise transacts or applies to transact business with a public entity. The term includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in the management of an entity. (g) “Public entity” means the state and any of its departments or agencies.

(2)(a) A person or an affiliate who has been placed on the antitrust violator vendor list following a conviction or being held civilly liable for an antitrust violation may not submit a bid, proposal, or reply for any new contract to provide any goods or services to a public entity; may not submit a bid, proposal, or reply for a new contract with a public entity for the construction or repair of a public building or public work; may not submit a bid, proposal, or reply on new leases of real property to a public entity; may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a new contract with a public entity; and may not transact new business with a public entity. (b) A public entity may not accept a bid, proposal, or reply from; award a new contract to; or transact new business with any person or affiliate on the antitrust violator vendor list unless that person or affiliate has been removed from the list pursuant to paragraph (3)(e). (c) This subsection does not apply to contracts that were awarded or business transactions that began before a person or an affiliate was placed on the antitrust violator vendor list or before July 1, 2021, whichever date occurs later.

(3)(a) Beginning July 1, 2021, all invitations to bid, requests for proposals, and invitations to negotiate, as those terms are defined in s. 287.012, and any contract document described in s. 287.058 must contain a statement informing persons of the provisions of paragraph (2)(a). (b) The department shall maintain an antitrust violator vendor list of the names and addresses of the persons or affiliates who have been disqualified from the public contracting and purchasing process under this section. The department shall electronically publish the initial antitrust violator vendor list on January 1, 2022, and shall update and electronically publish the list quarterly thereafter. Notwithstanding this paragraph, a person or an affiliate disqualified from the public contracting and purchasing process pursuant to this section is disqualified as of the date the department enters the final order. (c)1. After receiving notice of a judgment, sentence, or order from any source that a person was convicted or held civilly liable for an antitrust violation and after the department has investigated the information and verified both the judgment, sentence, or order and the identity of the person named in the documentation, the department must immediately notify the person or affiliate in writing of its intent to place the name of that person or affiliate on the antitrust violator vendor list and of the person’s or affiliate’s right to a hearing, the procedure that must be followed, and the applicable time requirements. If the person or affiliate does not request a hearing, the department shall enter a final order placing the name of the person or affiliate on the antitrust violator vendor list. A person or affiliate may be placed on the antitrust violator vendor list only after the department has provided the person or affiliate with a notice of intent. 2. Within 21 days after receipt of the notice of intent, the person or affiliate may file a petition for a formal hearing under ss. 120.569 and 120.57(1) to determine whether good cause has been shown by the department and whether it is in the public interest for the person or affiliate to be placed on the antitrust violator vendor list. A person or an affiliate may not file a petition for an informal hearing under s. 120.57(2). The procedures of chapter 120 shall apply to any formal hearing under this paragraph, except, within 30 days after the formal hearing or receipt of the hearing transcript, whichever is later, the administrative law judge shall enter a final order that shall consist of findings of fact, conclusions of law, interpretation of agency rules, and any other information required by law or rule to be contained in the final order. The final order shall direct the department to place or not place the person or affiliate on the antitrust violator vendor list. The final order of the administrative law judge is final agency action for purposes of s. 120.68. 3. In determining whether it is in the public interest to place a person or an affiliate on the antitrust violator vendor list under this paragraph, the administrative law judge shall consider the following factors: a. Whether the person or affiliate was convicted or held civilly liable for an antitrust violation. b. The nature and details of the antitrust violation. c. The degree of culpability of the person or affiliate proposed to be placed on the antitrust violator vendor list. d. Reinstatement or clemency in any jurisdiction in relation to the antitrust violation at issue in the proceeding. e. The needs of public entities for additional competition in the procurement of goods and services in their respective markets. f. The effect of the antitrust violations on Floridians. 4. After the person or affiliate requests a formal hearing, the burden shifts to the department to prove that it is in the public interest for the person or affiliate to whom it has given notice under this paragraph to be placed on the antitrust violator vendor list. Proof that a person was convicted or was held civilly liable or that an entity is an affiliate of such person constitutes a prima facie case that it is in the public interest for the person or affiliate to whom the department has given notice to be put on the antitrust violator vendor list. Status as an affiliate must be proven by clear and convincing evidence. Unless the administrative law judge determines that the person was convicted or that the person was civilly liable or is an affiliate of such person, that person or affiliate may not be placed on the antitrust violator vendor list. 5. Any person or affiliate who has been notified by the department of its intent to place his or her name on the antitrust violator vendor list may offer evidence on any relevant issue. An affidavit alone does not constitute competent substantial evidence that the person has not been convicted or is not an affiliate of a person convicted or held civilly liable. Upon establishment of a prima facie case that it is in the public interest for the person or affiliate to whom the department has given notice to be put on the antitrust violator vendor list, the person or affiliate may prove by a preponderance of the evidence that it would not be in the public interest to put him or her on the antitrust violator vendor list, based upon evidence addressing the factors in subparagraph 3. (d)1. Upon receipt of an information or indictment from any source that a person has been charged with or accused of violating any state or federal antitrust law in a civil or criminal proceeding, including a civil investigative demand, brought by the Attorney General, a state attorney, the Federal Trade Commission, or the United States Department of Justice on or after July 1, 2021, the Attorney General must determine whether there is probable cause that a person has likely violated the underlying antitrust laws, which justifies temporary placement of such person on the antitrust violator vendor list until such proceeding has concluded. 2. If the Attorney General determines probable cause exists, the Attorney General shall notify the person in writing of its intent to temporarily place the name of that person on the antitrust violator vendor list, and of the person’s right to a hearing, the procedure that must be followed, and the applicable time requirements. If the person does not request a hearing, the Attorney General shall enter a final order temporarily placing the name of the person on the antitrust violator vendor list. A person may be placed on the antitrust violator vendor list only after being provided with a notice of intent from the Attorney General. 3. Within 21 days after receipt of the notice of intent, the person may file a petition for a formal hearing pursuant to ss. 120.569 and 120.57(1) to determine whether it is in the public interest for the person to be temporarily placed on the antitrust violator vendor list. A person may not file a petition for an informal hearing under s. 120.57(2). The procedures of chapter 120 shall apply to any formal hearing under this paragraph. 4. In determining whether it is in the public interest to place a person on the antitrust violator vendor list under this paragraph, the administrative law judge shall consider the following factors: a. The likelihood the person will be convicted or held civilly liable for the antitrust violation. b. The nature and details of the antitrust violation. c. The degree of culpability of the person proposed to be placed on the antitrust violator vendor list. d. The needs of public entities for additional competition in the procurement of goods and services in their respective markets. e. The effect of the antitrust violations on Floridians. 5. The Attorney General has the burden to prove that it is in the public interest for the person to whom it has given notice under this paragraph to be temporarily placed on the antitrust violator vendor list. Unless the administrative law judge determines that it is in the public interest to temporarily place a person on the antitrust violator vendor list, that person shall not be placed on the antitrust violator vendor list. 6. This paragraph does not apply to affiliates. (e)1. A person or an affiliate may be removed from the antitrust violator vendor list subject to such terms and conditions as may be prescribed by the administrative law judge upon a determination that removal is in the public interest. In determining whether removal is in the public interest, the administrative law judge must consider any relevant factors, including, but not limited to, the factors identified in subparagraph (c)3. Upon proof that a person was found not guilty or not civilly liable, the antitrust violation case was dismissed, the court entered a finding in the person’s favor, the person’s conviction or determination of liability has been reversed on appeal, or the person has been pardoned, the administrative law judge shall determine that removal of the person or an affiliate of that person from the antitrust violator vendor list is in the public interest. A person or an affiliate on the antitrust violator vendor list may petition for removal from the list no sooner than 6 months after the date a final order is entered pursuant to this section but may petition for removal at any time if the petition is based upon a reversal of the conviction or liability on appellate review or pardon. The petition must be filed with the department, and the proceeding must be conducted pursuant to the procedures and requirements of this subsection. 2. If the petition for removal is denied, the person or affiliate may not petition for another hearing on removal for a period of 9 months after the date of denial unless the petition is based upon a reversal of the conviction on appellate review or a pardon. The department may petition for removal before the expiration of such period if, in its discretion, it determines that removal is in the public interest.

(4) The conviction of a person or a person being held civilly liable for an antitrust violation, or placement on the antitrust violator vendor list, does not affect any rights or obligations under any contract, franchise, or other binding agreement that predates such conviction, finding of civil liability, or placement on the antitrust violator vendor list.

(5) A person who has been placed on the antitrust violator vendor list is not a qualified applicant for economic incentives under chapter 288, and such person shall not be qualified to receive such economic incentives. This subsection does not apply to economic incentives that are awarded before a person is placed on the antitrust violator vendor list or before July 1, 2021.

(6) This section does not apply to: (a) Any activity regulated by the Public Service Commission; (b) The purchase of goods or services made by any public entity from the Department of Corrections, from the nonprofit corporation organized under chapter 946, or from any qualified nonprofit agency for the blind or other severely handicapped persons under ss. 413.032-413.037; or (c) Any contract with a public entity to provide any goods or services for emergency response efforts related to a state of emergency declaration issued by the Governor.

(7) This section may only be enforced to the extent not inconsistent with federal law and notwithstanding any other provision of state law.

(8)(a) All information received by the Attorney General under paragraph (3)(d) pursuant to an investigation by the Attorney General or a law enforcement agency is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until such time as the investigation is completed or ceases to be active. This exemption shall be construed in conformity with s. 119.071(2)(c). (b) During an active investigation, information made confidential and exempt pursuant to paragraph (a) may be disclosed by the Attorney General: 1. In the performance of his or her official duties and responsibilities; or 2. To another governmental entity in performance of its official duties and responsibilities. (c) Once an investigation is completed or ceases to be active, the following information received by the Attorney General shall remain confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution: 1. All information to which another public records exemption applies. 2. Personal identifying information. 3. A computer forensic report. 4. Information that would otherwise reveal weaknesses in a business’s data security. 5. Proprietary business information. (d) For purposes of this subsection, the term “proprietary business information” means information that: 1. Is owned or controlled by the business; 2. Is intended to be private and is treated by the business as private because disclosure would harm the business or its business operations; 3. Has not been disclosed except as required by law or a private agreement that provides that the information will not be released to the public; 4. Is not publicly available or otherwise readily ascertainable through proper means from another source in the same configuration as received by the Attorney General; and 5. Includes: a. Trade secrets as defined in s. 688.002. b. Competitive interests, the disclosure of which would impair the competitive advantage of the business that is the subject of the information. (e) This subsection is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2026, unless reviewed and saved from repeal through reenactment by the Legislature.

Legislative History

s. 3, ch. 2021-32; s. 1, ch. 2021-33; s. 3, ch. 2022-267; s. 30, ch. 2023-173.