01-001819BID Adorno &Amp; Zeder, P.A., And Knowles, Marks &Amp; Randolph vs. Florida Housing Finance Corporation Status: Closed Recommended Order on Thursday, July 19, 2001.

Summary: Responses to Request for Qualifications could be updated after initial written responses were filed and evaluated. Bid protest dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADORNO & ZEDER, P.A., and )

KNOWLES, MARKS & RANDOLPH, )

)

Petitioners, )

)

vs. ) Case No. 01- 1819BID

)

FLORIDA HOUSING FINANCE )

CORPORATION, )

)

Respondent, )

)

and )

)

SQUIRE, SANDERS & DEMPSEY, )

L.L.P., and HICKS & PEISNER )

P.A., )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on

June 8, 2001, at Tallahassee, Florida, before Claude B.

Arrington, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioners : Mitchell R. Bloomberg, Esquire

Michael W. Ford, Esquire

Adorno & Zeder , P.A.

2601 South Bayshore Drive, Suite 1600

Miami, Florida 33133

For Respondent : Maureen McCarthy Daughton, Esquire

Nabors , Giblin & Nickerson , P.A.

1500 Mahan Drive, Suite 200

Tallahassee, Florida 32308

For Intervenors : Alan L. Briggs, Esquire

Squire, Sanders & Dempsey, L.L.P.

1201 Pennsylvania Avenue, Northwest

Post Office Box 407

Washington, D.C. 20044-0407

Reginald D. Hicks, Esquire

Hicks & Peisner , P.A.

Post Office Box 2248

Orlando, Florida 32802-2248

STATEMENT OF THE ISSUES

Whether Respondent's selection of Squire, Sanders and

Dempsey, L.L.P., jointly with Hicks and Peisner, P.A., as one of

four offerors to provide services as bond counsel is contrary to

applicable law, is clearly erroneous, is arbitrary, is

capricious, or is contrary to competition.

Whether an offeror engaged in a prohibited business

solicitation communication.

Whether an offeror violated the anti-collusion certificate

of the Request for Qualifications.

PRELIMINARY STATEMENT

On February 2, 2001, Respondent, Florida Housing Finance

Corporation ("FHFC"), issued a "Request for Qualifications

2001/01 to serve as Bond Counsel for the Florida Housing Finance

Corporation ("RFQ")." Ten offerors timely responded to the RFQ.

Three of the offerors were Petitioners (who filed a joint

response); Squire, Sanders and Dempsey, L.L.P. (Squire Sanders);

and Annis, Mitchell, Cockey, Edwards and Roehn, P.A. (AMCER),

jointly with Hicks and Peisner, P.A. (Hicks). In their response

on behalf of AMCER and Hicks, the principal bond attorneys for

AMCER advised that AMCER was likely to dissolve, that the

principal bond attorneys intended to continue practicing

together, and that they were likely to join another law firm in

the near future.

The RFQ required each offeror to provide responses to

certain objective items that could be scored and responses to

other items that were for the FHFC's information. An evaluation

committee scored the objective items and ranked the ten responses

based on that scoring. The informational items were summarized.

After the evaluation committee prepared its ranking and

summary, but before the FHFC made its selections, the principal

bond attorneys that had been a part of AMCER advised Respondent's

Executive Director that they were joining Squire Sanders.

Thereafter, Respondent treated the applications of AMCER and

Hicks as having been merged into that of Squire Sanders.

The Evaluation Committee's ranking and summary were provided

to the Board of Directors of FHFC ("Board"), the governing body

of FHFC. Thereafter, the offerors made an oral presentation

before the Board. Prior to the oral presentations, FHFC's

Executive Director informed the Board of the change of status of

the AMCER and Hicks offer.

Following the oral presentations, Respondent's Executive

Director recommended that four offerors be selected, one of which

was Squire Sanders. Petitioners' offer was not recommended to

the Board. The Board voted to accept the Executive Director's

recommendation.

Thereafter, Petitioners timely filed this bid protest, the

matter was referred to the Division of Administrative Hearings,

and this proceeding followed. Petitioners contend that Squire

Sanders should be disqualified because it impermissibly amended

or supplemented its response to the RFQ between the time it

submitted its response and the oral presentation. Petitioners

assert that they are entitled to the contract that FHFC intends

to award to Squire Sanders.

In addition, the formal protest contested the intended

selection of another offeror (Hawkins, Delafield and Wood). At

the final hearing, Petitioners announced that they were no longer

contesting the intended selection of that firm.

At the final hearing, the parties offered 17 consecutively

marked joint exhibits, each of which was admitted into evidence.

Petitioners presented the testimony of Mark Kaplan, Respondent's

Executive Director. No other party presented any additional

witness or exhibit.

A transcript of the final hearing was filed June 20, 2001.

The parties submitted Proposed Recommended Orders, which have

been duly considered by the undersigned in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. Part V of Chapter 420, Florida Statutes, consisting of

Sections 420.501 - 420.517, Florida Statutes, is the Florida

Housing Finance Corporation Act (Act). FHFC, created by the

provisions of Section 420.504, Florida Statutes, is a public

corporation.

2. Pursuant to Section 420.504(2), Florida Statutes, FHFC

is an agency of the State of Florida for the purposes of

Chapter 120, Florida Statutes.

3. At all times pertinent to this proceeding, Mark Kaplan

served as the Executive Director of FHFC.

4. As provided by the Act, a Board of Directors governs

FHFC. The Board consists of eight members appointed by the

Governor from specifically designated industries and backgrounds

plus the Secretary of the Department of Community Affairs, who is

an ex-officio and voting member of the Board.

5. Pursuant to Section 420.507, Florida Statutes, FHFC has

all powers necessary or convenient to carry out and effectuate

the purposes and provisions of the Act. FHFC has the authority

to issue bonds and hire bond counsel.

6. On February 2, 2001, FHFC issued the RFQ at issue in

this proceeding. Through the RFQ, FHFC solicited competitive,

sealed responses from qualified law firms to act as bond counsel

on behalf of FHFC.

7. The RFQ defined the term "offeror" to mean a law firm

that submits a response to the RFQ or two or more law firms that

submit a joint response to the RFQ.

8. The RFQ defined the term "response" to mean a written

submission by an offeror that responds to the RFQ.

9. The RFQ required written responses to be filed no later

than 5:00 p.m. on March 2, 2001.

10. By subparagraph B.3. of Section Three of the RFQ, FHFC

reserved the right to obtain any information concerning any or

all offerors from all sources.

11. By subparagraph B.4. of Section Three of the RFQ, FHFC

reserved the right to request an oral interview from any or all

offerors.

12. FHFC received ten responses to the RFQ, including a

joint response from Petitioners, a response from Squire Sanders,

and a joint response from AMCER and Hicks.

13. Stephen J. Mitchell and David L. Lapides submitted the

response on behalf of AMCER. Reginald Hicks submitted the Hicks

response jointly with the AMCER response.

14. The submission letter for AMCER, signed by Mr. Lapides,

stated, in part, as follows:

Stephen J. Mitchell and David L. Lapides,

on behalf of [AMCER] are pleased to join with

Reginald D. Hicks to respond to [FHFC's]

request for proposals [sic] in its efforts to

select a law firm to serve as its bond

counsel in multi-family and single-family

bond issuances. AMERC, which served as

[FHFC's] bond counsel since 1996, may merge

with another firm. The attorneys who have

served [FHFC] intend to continue to practice

together. We want to assure [FHFC] that,

regardless of the name we may practice under,

the individuals who have worked with [FHFC]

look forward to continuing our relationship

with you.

15. The submission letter for Hicks, signed by Mr. Hicks,

stated, in part, as follows:

Reginald D. Hicks, on behalf of [Hicks] is

pleased to join with Stephen J. Mitchell and

David L. Lapides to respond to [FHFC's]

request for proposals [sic] in its effort to

select a law firm to serve as its bond

counsel in multi-family and single-family

bond issuances.

16. The AMCER and Hicks response stated, in part, as

follows:

Stephen J. Mitchell, David L. Lapides,

Michael J. Nolan, Joseph D. Edwards, Fred B.

Karl and Hillary M. Black are continuing the

municipal bond practice of [AMCER]. As of

the date of the RFQ response, AMCER continues

its legal existence as a Florida professional

services corporation. It is anticipated

that, if selected to continue as [FHFC's]

bond counsel, the contract will be accepted

in the name of a successor firm.

17. As required by the RFQ, the response filed jointly on

behalf of AMCER and Hicks described their municipal bond practice

group, their tax group, and set forth the qualifications and

experience of each member of the groups that would be providing

services to FHFC. That response responded to all other items in

the RFQ, including information as to minority involvement.

18. The response filed by Squire Sanders responded to all

items in the RFQ.

19. The joint response filed by Petitioners responded to

all items in the RFQ.

20. The responses consisted of objective items that could

be scored and other items that were for the Board's information. 1

Each member of an evaluation committee separately evaluated each

response. The objective items were scored and ranked

competitively based on that scoring. The informational items

were summarized. The ranking and the summary were provided to

each member of the Board.

21. The ranking of the objective items of the written

responses was a preliminary step in the evaluation process. It

was not intended to be a final ranking of the offerors.

22. Pertinent to this proceeding, the joint response of

AMCER and Hicks was ranked third, the joint response of

Petitioners was ranked fourth, and the response of Squire Sanders

was ranked fifth.

23. FHFC invited all ten offerors to make an oral

presentation to the Board at its meeting on April 6, 2001. The

Board was scheduled to select bond counsel at that meeting

immediately after the oral presentations.

24. The preliminary agenda for the April 6, 2001, meeting

reflected that each of the ten offerors would be making an oral

presentation and set the order for those presentations.

25. Approximately three days before the April 6, 2001,

meeting, Stephen J. Mitchell informed Mr. Kaplan by telephone

that he, Mr. Lapides, and several other lawyers who had been

employed by AMCER were going to join Squire Sanders.

Mr. Mitchell advised that Hicks was still a part of their team.

Mr. Mitchell also told Mr. Kaplan that AMCER and Hicks and Squire

Sanders would not be making separate presentations at the Board

meeting scheduled for April 6, 2001.

26. There was no evidence submitted that the telephone

conversation between Mr. Mitchell and Mr. Kaplan touched on the

merits of any response.

27. After this conversation, a revised agenda for the

April 6, 2001, meeting was prepared ref lecting that nine offerors

would be making oral presentations, not ten. The following

appeared on the amended agenda under Agenda Item IV of the

section styled Oral Interviews ( RFQ2001/01) for Bond Counsel:

Squire, Sanders & Dempsey L.L. P. (formerly

known as : Annis, Mitchell, Cockey, Edwards &

Roehn, P.A.)

28. Each offeror was permitted to make a ten-minute oral

presentation to the Board and to present the Board a single sheet

handout. The handout presented on behalf of Squire Sanders

contained the following:

Annis Mitchell Group now a part of Squire, Sanders

Squire, Sanders & Dempsey and Steve

Mitchell are pleased to announce that the

Annis Mitchell group (the "Steve Mitchell

Lawyers") that has served the Florida Housing

Finance Corporation ("Florida Housing") as

its bond counsel for the past 5 years, has

now become a part of Squire Sanders. The

group joining us is headed by Steve Mitchell,

Joe Edwards, and David Lapides.

Enhancement of our Commitment to Florida Housing

The combined group brings to Florida

Housing greater depth and strengths. Squire

Sanders is one of the largest and best known

national public finance law firms. Out of

our 700 lawyers worldwide, 60 of our lawyers

practice exclusively in the public finance

area, comprising one of the largest public

finance practice groups in the United States.

Our Firm's public finance tax partners are

also recognized as one of the nation's finest

tax groups.

Strong Presence in Florida

The Squire Sanders team has an incredibly

strong Florida presence in the public finance

marketplace. Squire Sanders has ranked as

the number one bond counsel in Florida, on a

cumulative basis over the last eight years.

Nationwide, Squire Sanders has consistently

ranked in the top 10 bond counsel law firms

in the nation over the last 12 years. Our

Florida offices are in Miami, Tampa and

Jacksonville and include 7 lawyers who are

exclusively engaged in the public finance

practice.

Reginald D. Hicks is part of our Team

We are pleased that Reginald Hicks will be

part of our Florida Housing team. Mr. Hicks

has participated in over $500 million of tax

exempt bond issuances and has served as

co -bond counsel to Florida Housing.

Strong Housing Experience

Together with the Steve Mitchell lawyers,

the Squire Sanders team has been involved in

over 43 housing bond issues in Florida during

the last five years alone, for numerous

Florida housing finance authorities. Our

Steve Mitchell Lawyers have served as Florida

Housing's bond counsel on 31 bond issues

totaling over $618 million. Nationwide, the

combined team has been involved in more than

183 housing transactions as bond counsel ,

underwriters counsel, credit enhancer's

counsel and in other roles over the past 5

years covering the broad spectrum of housing

finance.

Our Continued Commitment

With your confidence, we would look forward

to our continued service as bond counsel for

the Florida Housing Finance Corporation,

which will now be greatly strengthened and

enriched by the joinder of the Steve Mitchell

Lawyers with Squire Sanders.

29. Prior to the presentations, Mr. Kaplan stated the

following to the Board (beginning at page 71, line 24 of Joint

Exhibit 2):

. . . Just by way of background,

Mr. Chairman, this board authorized staff to

issue an RFQ for potential bond counsel to

serve the corporation. We received 10

responses to the RFQ. Those were scored by

staff pursuant to the scoring matrix that was

in the proposal.

There was no committee meeting. Each staff

member scored individually, those scores were

aggregated and averaged, and preliminarily

score reports were made. You have as Exhibit

A (Joint Exhibit 7) to this information a

detailed matrix that shows how that scoring

played out. You have all 10 respondents

[sic] and you have the narrative of every

question that was scored, the number of

potential maximum points, and the average

points that each participant received, so you

can see as a board where the distinctions

arose between various respondents [sic].

Those scores are one factor to go into your

evaluation in determining who you wish bond

counsel contracts with.

Also relevant are nonscored items from the

application. You have Exhibit B (Joint

Exhibit 8) that includes some of the

nonscored items, such as, the amount of

insurance each respondent has.

You also have as part of that response to

questions, "Have you ever been sued? Tell us

about it."

And Exhibit C (Joint Exhibit 9) is the

nonscored portion of the fee proposals that

each bond firm gave us. The RFP [sic] says

that those proposals on fees will be used as

a guideline in negotiating the ultimate fee

contracts. And I believe that what it says

is that from those selected we will then make

a determination as to the fee that will be

paid to all bond counsel.

The fourth evaluation that should go into

your evaluation is what's about to happen,

which is the oral presentations by the bond

counsel firms. All respondents were invited

to make their presentations.

There is one change to the printed agenda

that is before you. We've broken them up,

but [there is] one change, and you have

information of that in front of you. We had

several [sic] proposals from the Annis

Mitchell firm, Reginald Hicks, and the

Squire, Sanders and Demsey firm. The Annis

Mitchell group of lawyers are now part of

Squire, Sanders, and Demsey, so they will

make a single presentation on the number four

spot on your agenda. Each participant's

[sic] been given 10 minutes to make their

[sic] presentation. . . .

30. Stephen Mitchell, Reginald Hicks, and Ken Meyers (a

Squire Sanders partner ), made the presentation under Agenda

Item IV on behalf of Squire Sanders. That presentation

represented that Mr. Mitchell, Mr. Lapides, Joe Edwards, and Fred

Karl and others at the former AMCER firm had been approved for

membership in the Squire Sanders firm. The presentation

emphasized the combined strengths of the former AMCER lawyers

with the resources of Squire Sanders.

31. Following that presentation, Mr. Kaplan made the

following statement to the Board (beginning at page 148, line 17

of Joint Exhibit 2):

. . . Given the merger of the group that

filed the Annis Mitchell application into the

Squire Sanders firms, we are treating the two

applications as having also been merged and

become one application.

32. Following the nine oral presentations Mr. Kaplan

recommended to the Board that FHFC select four offerors to

provide services as bond counsel on a rotating basis. In

response to a request to do so, Mr. Kaplan recommended his top

four offerors to serve as bond counsel. The four included

Squire, Sanders, and Demsey, jointly with Hicks. Mr. Kaplan did

not recommend Petitioners. The Board therafter adopted

Mr. Kaplan's recommendations.

33. There was no evidence that Squire Sanders, Hicks, or

the former AMCER lawyers received any unfair competitive

advantage by the FHFC's treating their responses as having been

merged.

34. Section Five of the RFQ contains an anti-collusion

provision which requires an offeror to certify the following:

The response is made without prior

understanding, agreement, or connection with

any person or entity submitting a response

for the same service - except for any such

agreement with a person or entity with whom

the Response is Jointly Filed or such Joint

Filing is made clear on the face of the

response - and is in all respects fair and

without collusion or fraud.

35. There was insufficient evidence to establish that any

party violated the foregoing anti-collusion provision.

36. All offerors in this proceeding have the basic

qualifications to perform the services required by FHFC.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Sections 120.569 and 120.57(3), Florida Statutes.

38. Section 120.57(3), Florida Statutes, controls this

proceeding. Paragraph (3)(f) provides in relevant part as

follows:

(f ) In a competitive-procurement protest,

no submissions made after the bid or proposal

opening shall be considered. Unless otherwise

provided by statute, the burden of proof shall

rest upon the party protesting the proposed

agency action. In a competitive-procurement

protest, other than a rejection of all bids,

the administrative law judge shall conduct a

de novo proceeding to determine whether the

agency’s proposed action is contrary to the

agency’s governing statutes, the agency’s

rules or policies, or the bid or proposal

specifications. The standard of proof for

such proceedings shall be whether the proposed

agency action was clearly erroneous, contrary

to competition, arbitrary, or capricious.

39. Pursuant to Section 120.57(3), Florida Statutes, the

undersigned must first determine, in a de novo setting, whether

FHFC's action is "contrary to the agency’s governing statutes,

the agency’s rules or policies, or the bid or proposal

specifications." Within that factual framework, it must then be

determined if FHFC's action is ”clearly erroneous, contrary to

competition, arbitrary, or capricious."

40. FHFC clearly has the authority to employ bond counsel

pursuant to Section 420.507, Florida Statutes, and it has wide

discretion in determining how such counsel is to be selected. In

this proceeding, FHFC chose to use the RFQ process, which was

appropriate considering the nature of the procurement.

41. The procurement of legal services is not subject to the

procurement requirements contained in Chapter 287, Florida

Statutes, but is, instead, subject to Section 120.57(3), Florida

Statutes, and its duly-adopted rules pertaining to procurement

contained in Chapter 67-49, Florida Administrative Code.

42. Rule 67-49.005, Florida Administrative Code, provides,

in pertinent part, as follows:

. . . [FHFC] shall reserve the right to

waive minor irregularities in an otherwise

valid bid, proposal or response when it is

deemed to be in [FHFC's] best interest to do

so. Bidders and offerors may not supplement

their proposals, bids or responses once they

have been opened by the Corporation.

43. Rule 67-49.001, Florida Administrative Code, defines

the terms "Invitation to Bid," Request for Proposals," and

"Request for Qualifications" as follows:

(6) "Invitation to Bid" means a written

solicitation for competitive sealed bids with

the title, date, and hour of the public bid

opening designated and specifically defining

the commodity, group of commodities or group

of services for which bids are sought. It

includes instructions prescribing all

conditions for bidding and shall be

distributed to all prospective bidders

simultaneously. The Invitation to Bid is

used when the Corporation is capable of

specifically defining the scope of work for

which a contractual service is required or

when the Corporation is capable of

establishing precise specifications defining

the actual commodity or group of commodities

required.

* * *

(9) "Request for Proposals" means a

written solicitation for competitive sealed

proposals with the title, date, and hour of

the public opening designated. The Request

for Proposals is used when the Corporation is

incapable of specifically defining the scope

of work for which the commodity, group of

commodities or contractual service is

required and when the corporation is

requesting that a qualified offeror propose a

commodity, group of commodities or

contractual service to meet the

specifications of the solicitation document.

The Request for Proposals includes general

information, applicable laws and rules,

functional or general specifications,

statement of work, proposal instructions and

evaluation criteria.

(10) "Request for Qualifications" means a

written solicitation for qualifications. The

Request for Qualifications is utilized when

the Corporation does not have a specific

immediate need for a particular service, but

desires to have qualified individuals or

firms under contract which can be assigned

duties as the need arises over a period of

time. The Request for Qualifications

includes general information, applicable laws

and rules, functional or general

specifications, statement of work,

instructions and evaluation criteria.

44. Petitioners established that Squire Sander's oral

presentation contained information not available when it and the

other written responses were filed. That fact does not establish

that Squire Sanders supplemented its response to the RFQ in

violation of Section 120.57(3), Florida Statutes, or Rule 67-

49.005, Florida Administrative Code.

45. Respondent's rules do not define when a response to an

RFQ has been "opened by the Corporation", as that phrase is used

in Rule 67-40.005, Florida Administrative Code, and within the

meaning of Section 120.57(3), Florida Statutes.

46. A distinction should be drawn between this proceeding

and a proceeding involving an Invitation to Bid or a Request for

Proposals, where one bidder or proposer can achieve significant

competitive advantage over another by changing its bid or

proposals after the opening of bids or proposals. There was no

such unfair competitive advantage achieved in this proceeding

because of the nature of the procurement and the nature of the

evaluation process.

47. The RFQ clearly contemplated that FHFC could consider

any relevant information about any offeror up to the time the

Board made its final selection. The written responses filed by

the offerors were only a part of the information-gathering

process. FHFC explicitly reserved the right to gather

information about any offeror from any source throughout the

evaluation process. The oral interviews, scheduled for the

meeting at which the Board made its final selections, provided

the Board an opportunity to have all current, relevant

information when it made its selection. It was both fair and

appropriate for an offeror to inform the Board of any material

changes in its response. Indeed, it would be incumbent upon an

offeror to do so.

48. Because of the on-going nature of the information-

gathering process, there was no "opening" of the RFQ within the

meaning of Rule 67-40.005, Florida Administrative Code, and

Section 120.57(3), Florida Statutes. Consequently, it is found

that Petitioners failed to establish that the intended award to

Squire Sanders was contrary to the agency’s governing statutes,

the agency’s rules or policies, or the RFQ.

49. A decision is "clearly erroneous" when it is

unsupported by substantial evidence, or contrary to the clear

weight of the evidence, or induced by an erroneous view of the

law. Assessment Systems, Inc. v. Department of Business and

Professional Regulations , DOAH Case 98- 1867BID, July 14, 1998.

The intended action of FHFC at issue in this proceeding is not

clearly erroneous.

50. The Florida Supreme Court discussed the object and

purpose of competitive bidding statutes in Wester v. Belote , 103

Fla. 976, 138 So. 721 (1931). The following language, found at

paragraphs 3 and 4 of the Syllabus by the Court, is frequently

cited in cases involving bid disputes:

3. The object and purpose of competitive

bidding statutes is to protect the public

against collusive contracts; to secure fair

competition upon equal terms to all bidders;

to remove, not only collusion, but temptation

for collusion and opportunity for gain at

public expense; to close all avenues to

favoritism and fraud in its various forms; to

secure the best values at the lowest possible

expense; and to afford an equal advantage to

all desiring to do business with the public

authorities, by providing an opportunity for

an exact comparison of bids.

4. Laws requiring contracts to be let by

public authorities to the lowest responsible

bidder serve the object of protecting the

public against collusive contracts and

prevent favoritism toward contractors by

public officials; because they tend to remove

temptation on the part of public officers to

seek private gain at the taxpayers' expense,

they are of highly remedial character, and

should always receive a construction which

effectuates their true intent and avoids the

likelihood of their being circumvented,

evaded, or defeated

51. The intended action of FHFC at issue in this proceeding

is not inconsistent with the object and purpose of competitive

bidding statutes and rules.

52. An "arbitrary" decision is one not supported by facts

or logic. A "capricious" action is one that is taken without

thought or reason, or irrationally. See Dravo Basic Materials

Co. v. State Doartment of Transportation , 602 So. 2d 632 (Fla. 2d

DCA 1992) ; Agrico Chemical Co. v. State Department of

Environmental Regulation , 365 So. 2d 759 (Fla. 1st DCA 1978),

cert. denied sub nom. ; and Askew v. Agrico Chemical Co. , 376

So. 2d 74 (Fla. 1979). Th e intended action of FHFC at issue in

this proceeding is not arbitrary or capricious.

53. As long as FHFC acted in a manner that is not

arbitrary, capricious, fraudulent, or dishonest, it had wide

discretion in the solicitation and acceptance of the responses to

the RFQ. See Department of Transportation v. Groves-Watkins

Constructors , 530 So. 2d 912 (Fla. 1988), and Liberty County v.

Baxter's Asphalt and Concrete, Inc. , 421 So. 2d 505 (Fla. 1982).

54. Petitioners did not establish that the telephone

conversation on or about April 3, 2001, between Mr. Mitchell and

Mr. Kaplan constituted a prohibited business communication.

55. As reflected by the Findings of Fact, there was no

evidence that any offeror violated the anti-collusion certificate

of the RFQ.

56. Petitioners failed to establish that Respondent's

intended action to select Squire Sanders as one of four offerors

to serve as bond counsel was clearly erroneous, contrary to

competition, arbitrary, or capricious. Accordingly, Petitioners

have failed to meet its burden of proof, and the subject bid

protest should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent enter a final order

dismissing this bid protest.

DONE AND ENTERED this 19th day of July, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of July, 2001.

ENDNOTE

1/ The RFQ solicited a response pertaining to fees. This was an

informational item, not an objective item. All offerors selected

to serve as bond counsel were to be compensated based on one fee

structure.

COPIES FURNISHED:

Mitchell R. Bloomberg, Esquire

Michael W. Ford, Esquire

Adorno & Zeder , P.A.

2601 South Bayshore Drive

Suite 1600

Miami, Florida 33133

Maureen McCarthy Daughton, Esquire

Nabors , Giblin & Nichkerson , P.A.

Post Office Box 11008

Tallahassee, Florida 32302-1008

Harold Knowles, Esquire

Knowles, Mark & Randolph

528 East Park Avenue

Tallahassee, Florida 32301

Alan L. Briggs, Esquire

Squire, Sanders & Dempsey, L.L.P.

1201 Pennsylvania Avenue, Northwest

Post Office Box 407

Washington, D.C. 20044-0407

Reginald D. Hicks, Esquire

Hicks & Peisner , P.A.

Post Office Box 2248

Orlando, Florida 32802-2248

Mark Kaplan, Executive Director

Florida Housing Finance Corporation

227 North Bronough Street, Suite 5000

Tallahassee, Florida 32301

Elizabeth Arthur, General Counsel

Florida Housing Finance Corporation

227 North Bronough Street, Suite 5000

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 10

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.

1 The RFQ solicited a response pertaining to fees. This was an

informational item, not an objective item. All offerors selected

to serve as bond counsel was to be compensated based on one fee

structure.