BILL NUMBER: AB 1089 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 9, 2007
INTRODUCED BY Assembly Member Hernandez
FEBRUARY 23, 2007
An act to add Chapter 1.6 (commencing with Section 10287) to
Part 2 of Division 2 of the Public Contract Code, relating to
public contracts.
LEGISLATIVE COUNSEL'S DIGEST
AB 1089, as amended, Hernandez. Public contracts: Sudan.
The State Contract Act governs contracting between state agencies
and private contractors, and sets forth requirements for the
procurement of materials, supplies, equipment, and services by state
agencies. Existing law sets out the various responsibilities of the
Department of General Services, and other state agencies in
overseeing and implementing state contracting procedures and
policies.
This bill would require the Department of General Services to
prepare, as specified, a list of companies, as defined, that has ties
to the government of Sudan, as defined, with which the state has a
contract or could possibly have a contract with in the future and to
present that list to the Legislature by April 1, 2008. This bill
would prohibit a state agency from entering into a contract, as
specified, with a company that is on the Department of General
Services's list of companies that has ties to the government of
Sudan. The bill also would require each prospective bidder for any
state contract to certify under penalty of perjury that the bidder
does not have ties to the government of Sudan.
By requiring prospective bidders to certify that the
questionnaires have been signed under penalty of perjury, this bill
would expand the scope of existing crime of perjury, and would
thereby impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
The State Contract Act authorizes the Department of General
Services, or any other department with authority to enter into
contracts, to require those contracts to fulfill specified criteria.
This bill states the intent of the Legislature to enact
legislation prohibiting the state of California from entering into a
public contract with any company that conducts business with the
Sudanese government.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 1.6 (commencing with Section
10287) is added to Part 2 of Division 2 of the Public
Contract Code , to read:
CHAPTER 1.6. DARFUR ACCOUNTABILITY ACT
10287. The Legislature hereby finds and declares all of the
following:
(a) On July 23, 2004, the United States Congress declared "the
atrocities unfolding in Darfur, Sudan, are genocide."
(b) On September 21, 2004, addressing the United Nations General
Assembly, President George W. Bush affirmed the Secretary of State's
finding and stated, "(A)t this hour, the world is witnessing terrible
suffering and horrible crimes in the Darfur region of Sudan, crimes
my government has concluded are genocide."
(c) On December 7, 2004, the United States Congress noted that the
genocidal policy in Darfur has led to reports of "systematic rape of
thousands of women and girls, the abduction of women and children,
and the destruction of hundreds of ethnically African villages,
including the poisoning of their wells and the plunder of their crops
and cattle upon which the people of such villages sustain
themselves."
(d) Also on December 7, 2004, Congress found that "the Government
of Sudan has restricted access by humanitarian and human rights
workers to the Darfur area through intimidation by military and
security forces, and through bureaucratic and administrative
obstruction, in an attempt to inflict the most devastating harm on
those individuals displaced from their villages and homes without any
means of sustenance or shelter."
(e) On September 25, 2006, Congress reaffirmed that "the genocide
unfolding in the Darfur region of Sudan is characterized by acts of
terrorism and atrocities directed against civilians, including mass
murder, rape, and sexual violence committed by the Janjaweed and
associated militias with the complicity and support of the National
Congress Party-led faction of the Government of Sudan."
(f) On September 26, 2006, the United States House of
Representatives stated that "an estimated 300,000 to 400,000 people
have been killed by the Government of Sudan and its Janjaweed allies
since the (Darfur) crisis began in 2003, more than 2,000,000 people
have been displaced from their homes, and more than 250,000 people
from Darfur remain in refugee camps in Chad."
(g) 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).
(h) 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.
(i) The Darfur crisis represents the first time the United States
has labeled ongoing atrocities a genocide.
10287.1. As used in this chapter, the following apply:
(a) "Business operations" means engaging in commerce in any form
in Sudan, including by 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.
(b) "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 profitmaking purposes.
(c) "Complicit" means taking actions during any preceding 20-month
period that have directly supported or promoted the genocidal
campaign in Darfur, including, but not limited to, preventing Darfur'
s victimized population from communicating with each other,
encouraging Sudanese citizens to speak out against an internationally
approved security force for Darfur, actively working to deny, cover
up, or alter the record on human rights abuses in Darfur, or other
similar actions.
(d) "Government of Sudan" means the government in Khartoum, Sudan,
which 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.
(e) "Inactive business operations" means the continued holding or
renewal of rights to property previously operated for the purpose of
generating revenues but not presently deployed for such purpose.
(f) "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.
(g) "Military equipment" means weapons, arms, military supplies,
and equipment that readily may be used for military purposes,
including, but not limited to, radar systems or military-grade
transport vehicles, or supplies or services sold or provided directly
or indirectly to any force actively participating in armed conflict
in Sudan.
(h) "Mineral extraction activities" include 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, as well as facilitating such
activities, including by providing supplies or services in support of
such activities.
(i) "Oil-related activities" include, but are not limited to,
owning rights to oil blocks; exporting, extracting, producing,
refining, processing, exploring for, transporting, selling, or
trading of oil; constructing, maintaining, or operating a pipeline,
refinery, or other oil-field infrastructure; and facilitating such
activities, including by providing supplies or services in support of
such activities, provided the mere retail sale of gasoline and
related consumer products shall not be considered oil-related
activities.
(j) "Power production activities" means any business operation
that involves a project commissioned by the National Electricity
Corporation (NEC) of Sudan or other similar government of Sudan
entity whose purpose is to facilitate power generation and delivery,
including, but not limited to, establishing power-generating plants
or hydroelectric dams, selling or installing components for the
project, providing service contracts related to the installation or
maintenance of the project, as well as facilitating such activities,
including by providing supplies or services in support of such
activities.
(k) "Scrutinized company" means all of the following:
(1) A company that has business operations that involve contracts
with and/or provides supplies or services to the government of Sudan,
companies in which the government of Sudan has any direct or
indirect equity share, government of Sudan-commissioned consortia or
projects, or companies involved in government of Sudan-commissioned
consortia or projects.
(A) A company that has more than 10 percent of the company's
revenues or assets linked to Sudan involve oil-related activities or
mineral extraction activities.
(B) A company that has less than 75 percent of the company's
revenues or assets linked to Sudan involve contracts with and/or
provision of oil-related or mineral extracting products or services
to the regional government of southern Sudan or a project or
consortium created exclusively by that regional government.
(C) A company that has more than 10 percent of the company's
revenues or assets linked to Sudan involve power production
activities.
(D) A company that has less than 75 percent of the company's power
production activities include projects whose intent is to provide
power or electricity to the marginalized populations of Sudan.
(R) Failed to take substantial action.
(2) Is complicit in the Darfur genocide.
(l) "Social development company" means a company whose primary
purpose in Sudan is to provide humanitarian goods or services,
including medicine or medical equipment, agricultural supplies or
infrastructure, educational opportunities, journalism-related
activities, information or information materials, spiritual-related
activities, services of a purely clerical or reporting nature, food,
clothing, or general consumer goods that are unrelated to oil-related
activities, mineral extraction activities, or power production
activities. Notwithstanding anything herein to the contrary, a social
development company that is not complicit in the Darfur genocide
shall not be considered a scrutinized company.
(m) "Substantial action" means adopting, publicizing, and
implementing a formal plan to cease scrutinized business operations
within one year and to refrain from any new business operations;
undertaking significant humanitarian efforts on behalf of one or more
marginalized populations of Sudan; or through engagement with the
government of Sudan, materially improving conditions for the
genocidally victimized population in Darfur.
10287.2. (a) Within 90 days of the law taking effect, the
Department of General Services shall identify, using its best efforts
and prepare, a list of scrutinized companies with which the state
has a contract or could possibly have a contract with in the future.
"Best efforts" shall include all of the following, as appropriate:
(1) Reviewing and relying, as appropriate, on publicly available
information regarding companies with business operations in Sudan,
including information provided by nonprofit organizations, research
firms, international organizations, and governmental entities.
(2) Contacting companies with which the state has a contract and
that have business operations in Sudan.
(b) The list shall be presented to the Legislature on or before
April 1, 2008.
10287.3. (a) A state agency shall not enter into a contract on or
after April 1, 2008, for construction, alteration, repair,
improvement, professional services, materials, supplies, or equipment
with a contractor that is on the scrutinized companies list prepared
pursuant to Section 10287.2.
(b) A state agency shall not enter into any contract on or after
April 1, 2008, for the acquisition of goods or services in the amount
of one hundred thousand dollars ($100,000) or more with a contractor
that is on the scrutinized companies list prepared pursuant to
Section 10287.2.
10287.4. A state agency shall require each prospective bidder
that submits a bid or proposal with respect to any contract to submit
a statement by which the bidder swears under penalty of perjury that
the prospective bidder is not a scrutinized company.
10287.5. This act shall be repealed upon affirmative action of
the Legislature. Provided, that in determining whether to repeal this
act, by way of suggestion and guidance only and without binding or
in any way inhibiting the discretion of future sessions of the
Legislature, it is submitted that the occurrence of any of the
following should be construed and deemed to be a basis for repealing
this act:
(a) The Congress or President of the United States declares the
Darfur genocide has been halted for at least 12 months.
(b) The United States revokes all sanctions imposed against the
government of Sudan.
(c) The Congress or President of the United States declares the
government of Sudan has honored its commitments to cease attacks on
civilians, demobilize and demilitarize the Janjaweed and associated
militias, grant free and unfettered access for deliveries of
humanitarian assistance, and allow for the safe and voluntary return
of refugees and internally displaced persons.
(d) The Congress or President of the United States, through
legislation or executive order, declares mandatory divestment of the
type provided for in this act interferes with the conduct of United
States foreign policy.
(e) Such other circumstances as the Legislature determines to
warrant the discontinuance of the provisions of this chapter.
10287.6. (a) If any one or more provision, section, subsection,
sentence, clause, phrase, or word 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 Legislature hereby declares 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
provision, section, subsection, sentence, clause, phrase, or word be
declared invalid, illegal, unenforceable or unconstitutional,
including, but not limited to, each of the engagement, divestment,
and prohibition provisions of this legislation.
SEC. 2. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SECTION 1. It is the intent of the Legislature
to enact legislation prohibiting the state of California from
entering into a public contract with any company that conducts
business with the Sudanese government.