19-11-105. Illegal immigrants — Prohibition — Public contracts for services — Definitions.

19-11-105. Illegal immigrants — Prohibition — Public contracts for services — Definitions. (a) As used in this section: (1) “Contractor” means a person having a public contract with a state agency for professional services, technical and general services, or any category of construction in which the total dollar value of the contract is twenty-five thousand dollars ($25,000) or greater; (2) “Exempt agency” means the constitutional departments of the state, the elected constitutional offices of the state, the General Assembly, including the Legislative Council and the Legislative Joint Auditing Committee and supporting agencies and bureaus thereof, the Supreme Court, the Court of Appeals, circuit courts, prosecuting attorneys, and the Administrative Office of the Courts; (3) “Illegal immigrant” means any person not a citizen of the United States who has: (A) Entered the United States in violation of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., or regulations issued under the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq.; (B) Legally entered the United States but without the right to be employed in the United States; or (C) Legally entered the United States subject to a time limit but has remained illegally after expiration of the time limit; (4) “Professional services contract” means a contract between a state agency and a contractor in which: (A) The relationship between the contractor and the state agency is that of an independent contractor rather than that of an employee; (B) The services to be rendered consist of the personal services of an individual that are professional in nature; (C) The state agency does not have direct managerial control over the day-to-day activities of the individual providing the services; (D) The contract specifies the results expected from the rendering of the services rather than detailing the manner in which the services shall be rendered; and (E) Services rendered under a professional services contract are rendered to the state agency itself or to a third-party beneficiary; (5) “Public contract for services” means any type of agreement between a state agency and a contractor for the procurement of services and all categories of construction with a state agency in which the total dollar value of that contract is twenty-five thousand dollars ($25,000) or greater; (6)(A) “State agency” means any agency, institution, authority, department, board, commission, bureau, council, or other agency of the state supported by appropriation of state or federal funds, except an exempt agency under subdivision (a)(7)(B) of this section. (B) “State agency” includes an exempt agency when any agency or exempt agency procures any item subject to Arkansas Constitution, Amendment 54; and (7)(A) “Technical and general services” means: (i) Work accomplished by skilled individuals involving time, labor, and a degree of expertise in which performance is evaluated based upon the quality of the work and the results produced; (ii) Work performed to meet a demand, including without limitation work of a recurring nature that does not necessarily require special skills or extensive training; or (iii) The furnishing of labor, time, or effort by a contractor or vendor, not involving the delivery of any specific end product other than reports that are incidental to the required performance. (B) “Technical and general services” shall not be construed to include the procurement of professional services under § 19-11-801 et seq. (b) No state agency may enter into or renew a public contract for services with a contractor who knows that the contractor or a subcontractor employs or contracts with an illegal immigrant to perform work under the contract. (c) Before executing a public contract, each prospective contractor shall certify in a manner that does not violate federal law in existence on January 1, 2007, that the contractor at the time of the certification does not employ or contract with an illegal immigrant. (d)(1) If a contractor violates this section, the state shall require the contractor to remedy the violation within sixty (60) days. (2)(A) If the contractor does not remedy the violation within the sixty (60) days specified under subdivision (d)(1) of this section, the state shall terminate the contract for breach of the contract. (B) If the contract is terminated under subdivision (d)(2)(A) of this section, the contractor shall be liable to the state for actual damages. (e)(1)(A) If a contractor uses a subcontractor at the time of certification, the subcontractor shall certify in a manner that does not violate federal law in existence on January 1, 2007, that the subcontractor at that time of certification does not employ or contract with an illegal immigrant. (B) A subcontractor shall submit the certification required under subdivision (e)(1)(A) of this section within thirty (30) days after the execution of the subcontract. (2) The contractor shall maintain on file the certification of the subcontractor throughout the duration of the term of the contract. (3) If the contractor learns that a subcontractor is in violation of this section, the contractor may terminate the contract with the subcontractor, and the termination of the contract for a violation of this section shall not be considered a breach of the contract by the contractor and subcontractor.