09 LC 28
4529
Senate
Bill 170
By:
Senators Adelman of the 42nd, Shafer of the 48th, Johnson of the 1st, Rogers of
the 21st, Reed of the 35th and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Part 1 of Article 3 of Chapter 5 of Title 50 of the Official Code of
Georgia Annotated, relating to general authority, duties, and procedure for
state purchasing, so as to provide legislative findings; to provide definitions;
to prohibit certain companies that have certain business operations in Sudan to
bid on or submit a proposal for a state contract; to provide for exceptions; to
provide for certain certifications; to provide penalties for false
certifications; to provide for periodic reviews; to provide for related matters;
to provide for severability; to provide an effective date; to repeal conflicting
laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
The
General Assembly finds that:
(1)
Since 1993, the United States Secretary of State has determined Sudan is a
country whose government has repeatedly provided support for acts of
international terrorism, thereby restricting United States assistance, defense
exports and sales, and financial and other transactions with the Government of
Sudan.
(2)
On September 21, 2004, in addressing the United Nations General Assembly,
President George W. Bush affirmed the Secretary of State's finding and stated,
"At this hour, the world is witnessing terrible suffering and horrible crimes in
the Darfur region of Sudan, crimes my government has concluded are
genocide."
(3)
The federal government has imposed sanctions against the Government of Sudan
since 1997. These sanctions are monitored through the United States Treasury
Department's Office of Foreign Assets Control (OFAC).
(4)
On December 31, 2007, President George W. Bush signed the Sudan Accountability
and Divestment Act (Public Law 110-174). The legislation was passed by the
Senate and the House of Representatives unanimously. That act authorizes state
and local governments to adopt policies to divest from and prohibit contracts
with problematic companies operating in Sudan's oil, power, mineral, and
military sectors. That act also prohibits the federal government from
contracting with these companies.
SECTION
2.
Part
1 of Article 3 of Chapter 5 of Title 50 of the Official Code of Georgia
Annotated, relating to general authority, duties, and procedure for state
purchasing, is amended by adding a new Code section to read as
follows:
"50-5-84.
(a)
As used in this Code section, the term:
(1)
'Business operations' means engaging in commerce in any form in Sudan,
including, but not limited to, acquiring, developing, maintaining, owning,
selling, possessing, leasing, or operating equipment, facilities, personnel,
products, services, personal property, real property, or any other apparatus of
business or commerce.
(2)
'Company' means any sole proprietorship, organization, association, corporation,
partnership, joint venture, limited partnership, limited liability partnership,
limited liability company, or other entity or business association, including
all wholly owned subsidiaries, majority owned subsidiaries, parent companies, or
affiliates of such entities or business associations, that exists for the
purpose of making profit.
(3)
'Government of Sudan' means the government in Khartoum, Sudan, that is led by
the National Congress Party, formerly known as the National Islamic Front, or
any successor government formed on or after October 13, 2006, including the
coalition National Unity Government agreed upon in the Comprehensive Peace
Agreement for Sudan, and does not include the regional government of southern
Sudan.
(4)
'Marginalized populations of Sudan' include, but are not limited to, the portion
of the population in the Darfur region that has been genocidally victimized; the
portion of the population of southern Sudan victimized by Sudan's north-south
civil war; the Beja, Rashidiya, and other similarly underserved groups of
eastern Sudan; the Nubian and other similarly underserved groups in Sudan's
Abyei, southern Blue Nile, and Nuba Mountain regions; and the Amri, Hamadab,
Manasir, and other similarly underserved groups of northern Sudan.
(5)
'Military equipment' means weapons, arms, military supplies, and equipment that
may readily be used for military purposes, including, but not limited to, radar
systems, military-grade transport vehicles, or supplies or services sold or
provided directly or indirectly to any force actively participating in armed
conflict in Sudan.
(6)
'Mineral-extraction activities' include the exploring, extracting, processing,
transporting, or wholesale selling or trading of elemental minerals or
associated metal alloys or oxides (ore), including gold, copper, chromium,
chromite, diamonds, iron, iron ore, silver, tungsten, uranium, and
zinc.
(7)(A)
'Oil related activities' include:
(i)
Exporting, extracting, producing, refining, processing, exploring for,
transporting, selling, or trading oil; and
(ii)
Constructing, maintaining, or operating a pipeline, refinery, or other oil field
infrastructure.
(B)
A company shall not be considered to be involved in oil related activities
if:
(i)
The company is involved in the retail sale of gasoline or related consumer
products in Sudan but is not involved in any other activity described in
subparagraph (A) of this paragraph; or
(ii)
The company is involved in leasing or owns rights to an oil block in Sudan but
is not involved in any other activity described in subparagraph (A) of this
paragraph.
(8)
'Power-production activities' means any business operations that involve a
project commissioned by the National Electricity Corporation of Sudan or other
similar entity of the government of Sudan whose purpose is to facilitate power
generation and delivery, including establishing power-generating plants or
hydroelectric dams, selling or installing components for the project, or
providing service contracts related to the installation or maintenance of the
project.
(9)
'Scrutinized company' means a company that is conducting business operations in
Sudan that is involved in power production activities, mineral extraction
activities, oil-related activities, or the production of military equipment, but
excludes a company that can demonstrate any of the following:
(A)
Its business operations are conducted under contract directly and exclusively
with the regional government of southern Sudan;
(B)
Its business operations are conducted under a license from the Office of Foreign
Assets Control or are expressly exempted under federal law from the requirement
to be conducted under such a license;
(C)
Its business operations consist of providing goods or services to marginalized
populations of Sudan;
(D)
Its business operations exclusively consist of providing goods or services to an
internationally recognized peacekeeping force or humanitarian
organization;
(E)
Its business operations consist of providing goods or services that are used
only to promote health or education;
(F)
Its business operations with the Government of Sudan will be voluntarily
suspended for the entire duration of the contract for goods or services for
which they have bid on, or submitted a proposal for, a contract with a state
agency; or
(G)
It has adopted, publicized, and is implementing a formal plan to cease business
operations within one year and to refrain from conducting any new business
operations.
(b)(1)
A scrutinized company shall be ineligible to, and shall not, bid on or submit a
proposal for a contract with a state agency for goods or services.
(2)
Notwithstanding paragraph (1) of this subsection, the Department of
Administrative Services may permit a scrutinized company, on a case-by-case
basis, to bid on or submit a proposal for a contract with a state agency for
goods or services if it is in the best interests of the state to permit the
scrutinized company to bid on or submit a proposal for one or more contracts
with a state agency for goods or services.
(3)
In making this determination, the Department of Administrative Services may
utilize the following resources:
(A)
Verification by an independent third party or nonprofit organization that a
company is either:
(i)
Undertaking significant humanitarian efforts in conjunction with an
international organization, the Government of Sudan, the regional government of
southern Sudan, or a nonprofit organization to benefit one or more marginalized
populations of Sudan. The party or organization providing the verification or
an independent third party shall evaluate and certify that the significant
humanitarian efforts are substantial in relation to the company's Sudan business
operations; or
(ii)
Through engagement with the Government of Sudan, materially improving conditions
for the genocidally victimized population in Darfur; and
(B)
A National Interest Waiver issued by the President of the United States
excluding a company from the federal contract prohibitions provisions of the
Sudan Accountability and Divestment Act (Public Law 110-174).
(c)(1)
A state agency shall require a company that submits a bid or proposal with
respect to a contract for goods or services, that currently or within the
previous three years has had business activities or other operations outside of
the United States, to certify that the company is not a scrutinized
company.
(2)
A state agency shall not require a company that submits a bid or proposal with
respect to a contract for goods or services, and that currently or within the
previous three years has had business activities or other operations outside of
the United States, to certify that the company is not a scrutinized company, if
the company has obtained permission to bid on or submit a proposal for a
contract with a state agency for goods or services pursuant to paragraph (2) of
subsection (b) of this Code section.
(d)(1)
Not later than August 1, 2009, the Department of Administrative Services shall
file a written notice to the United States Attorney General detailing the
requirements contained in this Code section, as required by the federal Sudan
Accountability and Divestment Act of 2007 (P. L. No. 110-174).
(2)
Annually thereafter, the Department of Administrative Services shall file a
publicly available report to the General Assembly and the United States Attorney
General outlining the actions taken under this Code section.
(3)
The Department of Administrative Services shall report to the Attorney General
of Georgia the names of companies determined to have submitted false
certifications under subsection (c) of this Code section, together with
information as to the false certification, and the Attorney General shall
determine whether to bring a civil action against the companies. The companies
shall pay all costs or fees incurred in a civil action, including those for
investigations that led to the discovery of a false certification.
(e)
If the Department of Administrative Services determines that a company has
submitted a false certification under subsection (c) of this Code section, the
company shall be subject to:
(1)
The company shall be liable for a civil penalty in an amount that is equal to
the greater of $250,000.00 or twice the amount of the contract for which a bid
or proposal was submitted;
(2)
The state agency or the Department of Administrative Services may terminate the
contract with the company; and
(3)
The company shall be ineligible to, and shall not, bid on a state contract for a
period of not less than three years from the date the state agency determines
that the company submitted the false certification.
The
Department of Administrative Services shall report to the Attorney General the
name of the company that the Department of Administrative Services determined
had submitted a false certification under subsection (c) of this Code section,
together with its information as to the false certification, and the Attorney
General shall determine whether to bring a civil action against such company.
If such company is found to have submitted a false certification, such company
shall be ordered to pay all costs and fees incurred by the state in the civil
action, including all costs incurred by the state agency and the Department of
Administrative Services for investigations that led to the finding of the false
certification and all costs and fees incurred by the Attorney
General.
(f)
The General Assembly shall periodically review this Code section and determine
if any of the following events have occurred which should be construed and
deemed to be a basis for repealing this Code section:
(1)
The Congress or President of the United States declares the Darfur genocide has
been halted for at least 12 months;
(2)
The United States revokes all sanctions imposed against the Government of
Sudan;
(3)
The President of the United States has certified to Congress that the Government
of Sudan has honored its commitments to do all of the following:
(A)
Abide by United Nations Security Council Resolution 1769 (2007);
(B)
Cease attacks on civilians;
(C)
Demobilize and demilitarize the Janjaweed and associated militias;
(D)
Grant free and unfettered access for delivery of humanitarian assistance;
and
(E)
Allow for the safe and voluntary return of refugees and internally displaced
persons;
(4)
The Congress or President of the United States, through legislation or executive
order, declares the contract prohibition of the type provided for in this Code
section interferes with the conduct of United States foreign policy;
or
(5)
Such other circumstances as the General Assembly determines to warrant the
discontinuance of the provisions of this Code
section."
SECTION
3.
(a)
If any one or more provisions, sections, subsections, sentences, clauses,
phrases, or words of this Act or the application thereof to any person or
circumstance is found to be invalid, illegal, unenforceable, or
unconstitutional, the same is hereby declared to be severable, and the balance
of this Act shall remain effective and functional notwithstanding such
invalidity, illegality, unenforceability, or
unconstitutionality.
(b) The General Assembly hereby declares that it would have passed this Act and each provision, section, subsection, sentence, clause, phrase, or word thereof irrespective of the fact that any one or more provisions, sections, subsections, sentences, clauses, phrases, or words were declared invalid, illegal, unenforceable, or unconstitutional, including, but not limited to, each of the engagement, divestment, and prohibition provisions of this Act.
(b) The General Assembly hereby declares that it would have passed this Act and each provision, section, subsection, sentence, clause, phrase, or word thereof irrespective of the fact that any one or more provisions, sections, subsections, sentences, clauses, phrases, or words were declared invalid, illegal, unenforceable, or unconstitutional, including, but not limited to, each of the engagement, divestment, and prohibition provisions of this Act.
SECTION
4.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval.
SECTION
5.
All
laws and parts of laws in conflict with this Act are repealed.