The end of summer brings many things here on the First Coast.
A break from the heat, the coming mullet and tarpon runs if you’re a fisherman, the college and NFL football seasons and this year –– if you happen to work with public services contracts –– new legislation to incorporate.
If you have had your coffee, read on. If not, I suggest carrying this home and reading it the next time you are having trouble falling asleep.
With the passage of CS/CS/SB 86, Ch. 2016-36, Laws of Fla. and CS/HB 273, Ch. 2016-20, Laws of Fla., the Legislature has made several amendments of which both government and private attorneys whose clients contract with governmental entities should be aware.
The changes are fairly straightforward. Most of the changes are either effective or will become effective Oct. 1. This update is intended to summarize the changes and make the reader aware of new considerations. It is not exhaustive.
Ch. 2016-36, Laws of Fla.
Chapter 2016-36 created Section 215.4725, Fla. Stat., requires the public fund to identify companies that boycott Israel and to promulgate the Scrutinized Companies that Boycott Israel List.
Several other such lists already are on the books, such as the Scrutinized Companies with Activities in Sudan List and the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List.
These lists are important in the context of government services contracts because inclusion on such a list may preclude a company from contracting with an agency or governmental entity.
These prohibitions are found at Section 287.135, Fla. Stat., which was amended by Chapter 2016-36 to included companies on the Scrutinized Companies that Boycott Israel List.
There are several important points to note about Section 287.135, Fla. Stat., and its 2016 amendment.
First, it does not apply to contracts for goods or services valued at less than $1 million.
Second, the amendment requires inclusion of a provision for contracts with an agency or local governmental entity for goods or services entered into or renewed on or after Oct. 1.
This provision must allow the termination of the contract at the option of the rewarding body if the company is found to have submitted a false certification; has been placed on the Scrutinized Companies that Boycott Israel Lis, or is engaged in a boycott of Israel; has been placed on any of the aforementioned lists; or has been engaged in operations in Cuba or Syria.
Finally, it should be noted that an agency may, on a case-by-case basis, contract with a company on one of the noted lists under certain conditions, which are found at Section 287.135(4)(a)-(b), Fla. Stat.
Chapter 2016-20, Laws of Fla.
Chapter 2016-2, addresses public records requests in the context of public services contracts.
It mandates that certain provisions be included in all public services contracts and establishes a procedure for an award of reasonable costs, including attorney fees, against contractors in an action to compel production of public records.
All amendments are within Section 119.0701, Fla. Stat.
All public services contracts must now contain the following statement in 14-point boldfaced type:
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODION OF PUBLIC RECORDS AT… (telephone number, e-mail address and mailing address).
Additionally, the previously required language related to a contractor’s duty to comply with public records laws has been substantially amended.
The changes are found at Section 119.0701(2)(b), Fla. Stat., and mostly implement Section 119.0701(3), Fla. Stat., which is new.
Section 119.0701(3), Fla. Stat., specifies the procedure for public records requests relating to a public agency’s contract for services.
It requires the request be made directly to the agency. In the event the public agency does not have the records, it must immediately notify the contractor and the contractor must provide the records or allow the records to be inspected or copied within a reasonable time.
The amendment creates two potential pitfalls for the noncompliant contractor.
First, the contractor may be subject to penalties under Section 119.10, Fla. Stat.
Second, if a civil action is filed against a contractor to compel production, the court must award reasonable costs, including attorney fees, if the court determines the contractor unlawfully refused to comply with the public records request within a reasonable time and at least eight business days before filing, the plaintiff provided written notice of the requests, including a statement that the contractor has not complied with the request, to the public agency and the contractor.
As you can see –– if you have gotten this far –– several new considerations must be taken into account when drafting public goods and services contracts and in fulfilling the resulting obligations.
By and large, compliance is simple. However, noncompliance is easy to spot and may have severe consequences, especially for the contractor.
The old saying is appropriate: an ounce of prevention is worth a pound of cure.
It is worth going through any templates you use to ensure you are up to date on special considerations for public contracts.
John Wallace is an attorney with Lewis, Longman & Walker and practices in the areas of environmental and natural resources law and governmental law.