§ 37-2-81. Authority to conduct state and national background checks for vendors with access
to federal tax information.
(a) Definitions. As used in this section, the following terms shall be defined as follows:
(1) "Access,� shall mean the direct and indirect use, contact, handling or viewing of
federal tax information, as defined herein, in paper or electronic form, regardless
of the frequency, likelihood or extent of such access or whether the access is intentional
or inadvertent.
(2) "Agency� or "state agency,� shall mean a Rhode Island state department within the
executive branch.
(3) "Agency head� shall mean the director or designee of a state department for which
the vendor is providing services.
(4) "Division� shall mean the division of purchases.
(5) "Federal tax information� or "FTI� shall mean:
(i) Federal tax returns or information created or derived from federal tax returns that
is in an agency's possession or control, which is covered by the confidentiality protections
of the Internal Revenue Code and subject to 26 U.S.C. § 6103(p)(4) safeguarding requirements, including oversight by the Internal Revenue Service ("IRSâ€�);
and is received directly from the IRS or obtained through an authorized secondary
source, such as the Social Security Administration (SSA), Federal Office of Child
Support Enforcement (OCSE), Bureau of the Fiscal Service (BFS), Centers for Medicare
and Medicaid Services (CMS), or another entity acting on behalf of the IRS pursuant
to an Internal Revenue Code ("IRC�) 6103(p)(2)(B) agreement; and
(ii) Shall not include federal tax returns or information created or derived from federal
tax returns received directly from taxpayers or other third-parties.
(6) "Vendor� shall mean any individual, firm, corporation, partnership or other corporate
entity, including employees, subcontractors, who are performing services for the state
and has access, as defined herein, to FTI.
(b) The agency head shall require a vendor to complete a state and national fingerprint-based
criminal background check, as authorized by Public Law 92-544, to determine the suitability
of a vendor's employees and subcontractors if the services to the state require or
include, or may require or include, access to FTI. This requirement for a vendor shall
be incorporated by reference into the vendor's agreement with the state. No new vendor
employee or subcontractor who has or may have access to FTI shall perform services
for the State until the person is deemed suitable by the agency head. Existing vendor
employees and subcontractors, as of September 1, 2019, shall complete the background
check requirement within a reasonable time as approved by the agency head.
(c) The national fingerprint-based criminal background check shall be facilitated through
the Rhode Island office of the attorney general or other law enforcement authorized
agency, using the same criteria established under § 36-3-16 for applicants and current state employees. The information shall be forwarded to
the Federal Bureau of Investigation (FBI) for a national criminal history check, according
to the policies, procedures, and/or regulations established by the office of the attorney
general or other law enforcement authorized agency. The office of the attorney general
or other law enforcement authorized agency may disseminate the results of the national
criminal background checks to the Department of Administration and/or the agency head
where the services are being provided.
(d) Reciprocity. Nothing herein shall prevent the agency head, at his or her discretion, from accepting
a recent national fingerprint-based criminal background check for a vendor related
to FTI access conducted in another suitable jurisdiction.
(e) The agency head may receive criminal offender record information to the extent required
by federal law and the results of checks of national criminal history information
databases under Public Law 92-544. Upon receipt of the results of state and national
criminal background checks, the agency head shall treat the information as non-public
and exempt from disclosure in accordance with the Rhode Island access to public records
act, § 38-2-2(4)(B). Information acquired by any agency in the background check process pursuant to this
section shall be used solely for the purpose of making a determination as to the suitability
of a vendor in a position which requires or includes, or may require or include, access
to FTI.
(f) The state shall not be responsible for any fees charged through the office attorney
general, other law enforcement authorized agency or other jurisdiction to conduct
the state and national background check for vendor.
(g) A vendor who refuses to comply with the fingerprint-based background check requirement
shall be considered unsuitable for services requiring or involving, or which may require
or involve, access to FTI. Refusal to comply by the vendor may result in termination
of the contract with the State and/or other procurement sanctions if appropriate.
Nothing herein shall prevent the vendor from replacing an employee or subcontractor
who refuses to comply with this requirement, subject to written approval by the agency
head.
(h) Upon receipt of the results of a state and national criminal background check for
the vendor the agency head shall review the results and determine the suitability
of the person with regard to service in a position requiring or involving, or which
may require or involve, access to FTI. In making a determination of suitability, the
agency head may consider mitigating factors relevant to the vendor's scope of work
and the nature of any disqualifying offense. Unsuitability of a vendor may result
in termination of the contract with the state and/or a requirement that the vendor
replace the employee or subcontractor, with a suitable person, subject to written
approval by the agency head.
(i) If the office of the attorney general or other law enforcement authorized agency receives
criminal record information from the state or national fingerprint-based criminal
background checks that includes no disposition or is otherwise incomplete, the subject
person shall be responsible for resolving any issues in other jurisdictions causing
an incomplete background check. The vendor shall immediately notify the state in writing
the name and circumstances of any employees or subcontractors who have received an
incomplete background check. Failure to establish suitability of a vendor employee,
subcontractor or other agent may result in termination of the contract with the state
and/or a requirement that the vendor replace the employee, subcontractor or other
agent with a suitable person, subject to written approval by the agency head.
(j) Nothing in this section shall limit or preclude an agency's right to carry on a background
investigation of a vendor using other authorized means.
(k) The department of administration is hereby authorized to promulgate and adopt regulations
necessary to carry out this section.
(l) The judicial branch is hereby authorized to comply with the provisions herein related
to vendors working on behalf of the judiciary receiving access to FTI.