16-000418BID Douglas Gardens V, Ltd. vs. Florida Housing Finance Corporation Status: Closed Recommended Order on Monday, February 29, 2016.

Summary: Under the specific facts of the case, Intervenor's inclusion of a 2014 Surveyor Certification form instead of the required 2015 form constituted a minor irregularity.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

D OUGLAS GARDENS V, LTD. ,

Petitioner,

vs. Case No. 1 6 - 041 8 BID

FLORIDA HOUSING FINANCE

CORPORATION ,

Respondent ,

and

LA JOYA ESTATES, LTD.,

Intervenor .

/

RECOMMENDED ORDER

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

on February 9, 2016 , before Lawrence P. Stevenson, a duly -

designated Administrative Law Judge, sitting as an informal

hearing officer pursuant to sections 120.57(2) & ( 3), Florida

Statutes, in Tallahassee , Florida .

APPEARANCES

For Petitioner: Donna E lizabeth Blanton , Esquire

Radey Law Firm , P.A.

Suite 200

301 South Bronough Street

Tallahassee, Florida 323 01

For Respondent: Eric Sonderling, Assistant General Counsel

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee , Florida 3 2 301

For Intervenor: Michael P. Donaldson, Esquire

Carlton Fields Jorden Burt, P.A.

Post Office Drawer 190

215 South Monroe Street, Suite 500

Tallahassee, Florida 3230 2

STATEMENT OF THE ISSUES

At issue in this proceeding is whether the decision of the

Florida Housing Finance Corporation (ÐFlorida HousingÑ) to award

State Apartment Incentive Loan (ÐSAILÑ) funding to Intervenor ,

La Joya Estates, L td. (ÐLa JoyaÑ) , pursua nt to Request for

Appli cations 2015 - 112 (the ÐRFAÑ) was contrary to the agencyÓs

governing statutes, rules, policies, or the RFA specifications .

PRELIMINARY STATEMENT

On October 29, 2015, Florida Housing issued the RFA,

requesting applications for awards of SAIL financing of

ÐAf fordable Multifamily Housing Developments to be Used in

Conjunction with Tax - Exempt Bond Financing and Non - Competitive

Housing Credits.Ñ On December 11, 2015, Florida HousingÓs Board

of Directors (the ÐBoardÑ) met to consider th e recommendations

of the st aff review c ommittee regarding the RFA, and posted its

Notice of Intended Decision. The Notice set forth the scoring

and ranking of the applications, in which both La Joya and

Petitioner , Douglas Gardens V, L td . (ÐDouglas GardensÑ) , were

found eligible fo r funding. La Joya was selected to receive

funding due to the RFA preference for a housing development to

b e located in Miami - Dade County.

Douglas Gardens timely filed with Florida Housing its

notice of protest, followed by a Formal Written Protest and

Pe tition for Administrative Hearing (ÐPetitionÑ), pursuant to

section 120.57(3) and Florida Administrative Code R ules 67 -

60.009 and 28 - 110.004.

On January 22, 2016, La Joya filed with Florida Housing a

Notice of Appearance/Motion to Intervene, pursuant to Fl orida

Administrative Code Rule 28 - 106.205 . Without objection, the

Motion to Intervene was granted at the outset of the final

hearing.

All parties agreed that the issues raised in the Petition

were matters of law and that there were no disputed issues of

m aterial fact requiring resolution at the hearing.

Consequently, Florida Housing contracted with the Division of

Administrative Hearings to provide an Administrative Law Judge

(ÐALJÑ) to act as the informal hearing officer in this matter,

pursuant to secti ons 120.57(2) & (3). The parties submitted a

Prehearing Stipulation setting forth the agreed facts as to the

RFA process and the scoring issue raised in this proceeding.

The informal hearing was held on February 9, 2016. At the

hearing, Joint Exhibits 1 through 10 were admitted into

evidence. Douglas GardensÓ Exhibits 1 through 4 were admitted

into evidence. Florida Housing p resented brief testimony by

Ken Reecy, its Director of Multifamily Programs. No other party

called witnesses. All three partie s presented oral argument .

The one - volume Transcript of the final hearing was filed at

DOAH on February 18, 2016 . All three parties timely submitted

Proposed Recommended Orders on February 15, 2016, as agreed at

the conclusion of the final hearing. The P roposed Recommended

Orders have been given due consideration in the preparation of

this Recommended Order.

Unless otherwise stated, all stat utory references are to

the 2015 edition of the Florida Statutes.

FINDINGS OF FACT

Based on the oral and documentar y evidence adduced at the

final hearing, and the entire record in this proceeding, the

following F indings of F act are made:

1. Douglas Gardens is a Florida limited partnership based

in Coconut Grove, Florida, that is in the business of providing

affordabl e housing.

2. Florida Housing is a public corporation organized

pursuant to c hapter 420, Part V, Florida Statutes. For the

purposes of this proceeding, Florida Housing is an agency of the

State of Florida. Florida Housing has the responsibility and

auth ority to establish procedures for allocating and

distributing various types of funding for affordable housing.

One of the programs administered by Florida Housing is the SAIL

program, created in section 420.5087, Florida Statutes.

3. Florida Housing has adopted Chapter 67 - 60, Florida

Administrative Code , which governs the competitive solicitation

process for several programs, including the SAIL program. Other

administrative rule chapters relevant to the selection process

are chapter 67 - 48, F.A.C., which governs competitive affordable

multifamily rental housing programs; chapter 67 - 21, Florida

Administrative Code, which governs multifamily mortgage revenue

bonds ("MMRB") and non - competitive housing credits; and chapter

67 - 53, Florida Administrative Code , governing compliance

procedures. Applicants for funding , pursuant to the RFA , are

required to comply with provisions of the RFA and the applicable

rule chapters.

4 . La Joya is a Florida limited partnership based in

Miami, Florida, and is also in the busi ness of providing

affordable housing.

5 . On October 9, 2015, Florida Housing issued the RFA,

seeking applications from developers proposing to construct

multifamily housing for families and for the elderly. The RFA

outlined a process for the selection of developments to share

the estimated $49 million in funding for eligible applicants.

6. Among the stated goals of the RFA is to fund one new

construction development serving the elderly in a large county ,

with priority given to the highest ranked eligible new

construction application for the elderly that is located in

Miami - Dade County. The RFA provides that if there are no

eligible Miami - Dade County applications that qualify, then the

highest ranking eligible new construction development serving

the elde rly in Broward County will be selected.

7. A total of 23 applications were filed in response to

the RFA. On November 9, 2015, Douglas Gardens timely submitted

its Application, numbered 2016 - 177BS, seeking $5,781,900 in SAIL

funding to assist in the devel opment of a proposed new

construction development for the elderly in Broward County.

Douglas GardensÓ was the only Ðnew constructionÑ application

submitted for Broward County. Also on November 9, 2015, La Joya

timely filed its Application, numbered 2016 - 178S, seeking

$5,778,100 in SAIL funding to assist in the development of a

proposed new construction development for the elderly in Miami -

Dade County. La JoyaÓs was the only application submitted for

Miami - Dade County in any development category .

8. The executive director of Florida Housing selected a

r eview committee to review and score the applications. The

review committee issued a recommendation of preliminary rankings

and allocations. Florida HousingÓs Board of Directors approved

these recommendati ons on December 11, 2015. The Board of

Directors found both La Joya and Douglas Gardens eligible for

funding, but awarded funding to La Joya on the basis that it was

the highest ranked, eligible, elderly, new construction

application located in Miami - Dade County.

9. On December 16, 2015, Douglas Gardens timely filed a

notice of intent to protest. On December 28, 2015, Douglas

Gardens timely submitted a Formal Written Protest and Petition

for Administrative Hearing.

10. The RFA awarded up to 18 Ðproximit y pointsÑ to an

applic ant based on its project Ó s location in relation to transit

and community services such as grocery stores, medical

facilities, and pharmacies. The RFA required each applicant to

submit a ÐSurveyor CertificationÑ form , which included l ongitude

and latitude coordinates corresponding to the location of the

p roposed development site and the s iteÓs proximity to listed

services that would presumably serve the proposed development.

11. Each applicant was required to retain a Florida

licensed surveyor to prepare and submit the Surveyor

Certification form and to sign the form attesting, under penalty

of perjury, that the information on the form is true and

correct. In the bottom left hand corner of each page of the

form is a blank line on wh ic h the applicant or surveyor was to

indicate the RFA number for which the form was being submitted.

Beneath the blank line is a parenthetical indicating the

identification number of the form, e.g., (Form Rev. 07 - 15).

12 . Section Four A.6.a.(1) of the RFA provided the

following regarding the Surveyor Certification form:

In order to meet the Mandatory requirement

and be eligible for proximity points, all

Applicants must provide an acceptable

Surveyor Certification form, (Form Rev. 07 -

15), as Attachment 14 to Exhibit A,

reflecting the information outlined below.

The Surveyor Certification form (Form Rev.

07 - 15) is provided in Exhibit B of this RFA

and on the CorporationÓs website .... Note:

The Applicant may include the Florida

Housing Surveyor Certification form that was

included in a previous RFA submission for

the same proposed Development, provided (i)

the form used for this RFA is labeled Form

Rev. 07 - 15, (ii) other than the RFA

reference number on the form, none of the

information entered on the form and

certified to by the signatory has changed in

any way, and (iii) the requirements outlined

in this RFA are met. The previous RFA

number should be crossed through and RFA

2015 - 112 inserted. If the Applicant

provides any prior version of the Surveyor

Certi fication form, the form will not be

considered . (Emphasis added).

1 3 . Section Three C.1. of the RFA provided that Florida

Housing reserved the right to waive ÐMinor IrregularitiesÑ in

the applications.

14. Florida Administrative Code Rule 67 - 002(6) de fines

ÐMinor IrregularityÑ as

[A] variation in a term or condition of an

Application pursuant to this rule chapter

that does not provide a competitive

advantage or benefit not enjoyed by other

Applicants, and does not adversely impact

the interests of the Corporation or the

public.

15. Florida Administrative Code Rule 67 - 60.008 titled

ÐRight to Waive Minor Irregularities,Ñ provides as follows:

The Corporation may waive Minor

Irregularities in an otherwise valid

Application. Mistakes clearly evident to

th e Corporation on the face of the

Application, such as computation and

typographical errors, may be corrected by

the Corporation; however, the Corporation

shall have no duty or obligation to correct

any such mistake.

16. La Joya submitted a Surveyor Certi fication form as

Attachment 14 of its Application. The identification number in

the parenthetical in the bottom left hand corner was Ð(Form Rev.

10 - 14)Ñ rather than the specified Ð(Form Rev. 07 - 15).Ñ Form

Rev. 10 - 14 was the Surveyor Certification form us ed for 2014

applications. The only difference between Form Rev. 10 - 14 and

Form Rev. 07 - 15 is that the latter contains a revised list of

location coordinate s for several Sun Rail stations in the

Orlando area. This difference was of no matter to the RFA un der

discussion. For the substantive purposes of this RFA, the forms

were identical.

17 . If La JoyaÓs Surveyor Certification form had not been

considered and not scored, La Joya would have been ineligible

for funding and Douglas Gardens would have been se lected as the

applica n t meeting Florida HousingÓs goal of funding one new

construction development for elderly residents in a large

county.

18 . Heather Boyd, multifamily loan manager for Florida

Housing, sat on the review committee and was assigned to sco re

the proximity portion of the applications. Based on the

distances provided in the Surveyor Certification form, Ms. Boyd

awarded La Joya a total of 11.5 proximity points as follows:

5.5 points for proximity for Public School Bus Rapid Transit

Stop, 3 p oints for proximity to a Grocery Store , and 3 points

for proximity to a Medical Facility. ( La Joya also included

coordinates for a Public School, but the propo sed elderly

development was not eligible for Public School proximity

points. ) To be considered eligible for funding, an applicant

needed to receive at least 10.25 proximity points , including at

a minimum 2 points for Transit Services.

19 . No issue was raised as to the accuracy of the

information submitted by La Joya or of Ms. BoydÓs calculation.

If it was permissible to consider La JoyaÓs Surveyor

Certification form, then La Joya satisfied the proximity

requirements in the RFA and was properly awarded funding . If

La JoyaÓs Surveyor Certification form had been rejected , La Joya

would not have bee n awarded funding and Douglas Gardens would

have been awarded funding. Florida HousingÓs decision to award

funding to La Joya was based in part on Ms. BoydÓs scoring of

the Surveyor Certification form and reflected the agencyÓs

support of Ms. BoydÓs actio n.

20 . However, during the pendency of Douglas GardensÓ

protest, Florida Housing changed its position and determined

that La JoyaÓs Surveyor Certification form should not have been

considered, based on the mandatory language of section Four

A.6.a.(1) of t he RFA.

21 . Ms. Boyd testified that she did not notice that

La JoyaÓs Surveyor Certification form was a prior version and

that she scored it as if it were the current version. She

testified that she should not have scored the form Ð[b]ecause it

specifica lly says in the RFA, if they do not have the correct

form, they will not be considered.Ñ

22 . Jean Salmonsen, housing devel opment manager, acted as

a backup to Ms. Boyd in reviewing the Surveyor Identification

forms and verifying the award of proximity points .

Ms. Salmonsen testified that she, too, missed the fa ct that

La Joya had filed the wrong version of the form and that she

would have rejected the form had she correctly recognized it.

Evidence presented at the hearing indicat ed that in

January 201 6 , Ms. Salmonsen had in fact disqualified an

application in a different RFA for submitting the 2014 version

of the Surveyor Identification form.

23 . Several valid policy reasons were cited for the RFA Ós

requirement that applicants use only the current ver sion of the

Surveyor Identification form. Ken Reecy, Florida HousingÓs

Director of Multifamily Programs, testified that it is important

to apply the rules and RFA criteria in a consistent manner

because of the tremendous volume of applications the agency

receives . Mr. Reecy stated, ÐFor like criteria, yes,

consistency. We live and die by consistency, frankly.Ñ

24 . As to the Surveyor Certification form specifically,

Mr. Reecy explained that over the years Florida Housing had used

a number of different fo rms with different contents. Allowing

applicants to submit different forms would add to the difficulty

of scoring the hundreds of applications received from around the

state. Uniformity and consistency as to applicant submissions

allow Florida Housing to process all of these applications in a

cost efficient manner.

25 . Though he expressed his concern with consistency of

review and ensuring that all applicants provide the same

information as reasons for rejecting La JoyaÓs submission of the

2014 Surveyor Certification form, Mr. Reecy conceded that one of

the reasons Florida Housing moved away from the previous rigid

Universal Application Cycle allocation process was to allow for

flexibility in determining that insignificant scoring errors

need not be the b asis for disqualifying an otherwise acceptable

application. Florida HousingÓs recent adoption in 2013 of the

ÐMinor IrregularityÑ rule is further indication of its intent to

employ more flexible evaluation criteria than it has in the

past. See Finding s of Fact 14 and 15, supra .

26 . Mr. Reecy acknowledged that in the instant case, the

substance of the 2014 and 2015 Surveyor Certification forms was

identical, and th at the information provided by La Joya using

the 2014 form was the same i nformation requ ired by the

2015 form.

CONCLUSIONS OF LAW

2 7 . Florida Housing has jurisdiction over this matter,

pursuant to sections 120.569 and 120.57(2)&(3), Florida Statutes.

Florida Housing has contracted with DOAH to provide an

Administrative Law Judge to conduct the informal hearing in this

case.

28 . All parties have standing to participate in this

proceeding. §§ 120.52(13) & 120.569(1), Fla. Stat. The

Ðsubstantial interestsÑ of La Joya, as the proposed recipient of

funding pursuant to the RFA, are affected be cause

Douglas Gardens has alleged that Florida Housing made a mistake

in considering La JoyaÓs Surveyor Certification form. The

substantial interests of Douglas Gardens are affected because it

is next in line for a funding award under the RFAÓs criteria,

and Douglas Gardens would be the proposed recipient of funding

if La Joya is deemed ineligible. See , e.g. , Preston Carroll Co.

v. Fla. Keys Aqueduct Auth. , 400 So. 2d 524 (Fla. 3d DCA

1981) (second lowest bid establishes substantial interest in bid

protest ) .

29 . This is a competitive procurement protest proceeding

and as such is governed by section 120.57(3)(f), which provides

as follows in pertinent part:

. . . Unless otherwise provided by statute,

the burden of proof shall rest with the

party protesting the proposed agency action.

In a competitive - procurement protest, other

than a rejection of all bids, proposals, or

replies, the administrative law judge shall

conduct a de novo proceeding to determine

whether the agencyÓ s proposed action is

contrary to th e agencyÓs governing statutes,

the agencyÓs rules or policies, or the

solicitation specifications. The standard

of proof for such proceedings shall be

whether the proposed agency action was

clearly erroneous, contrary to competition,

arbitrary, or caprici ous. . . .

30 . Pursuant to section 120.57(3)(f), the burden of proof

rests with Douglas Gardens as the party opposing the proposed

agency action to prove "a ground for invalidating the award."

See State Contracting and Eng Ó g Corp. v. Dep Ó t of Transp . ,

7 09 So. 2d 607, 609 (Fla. 1st DCA 1998). Douglas Gardens must

prove by a preponderance of the evidence that Florida HousingÓs

proposed award of SAIL funding to La Joya is arbitrary,

capricious, or beyond the scope of Florida HousingÓs discretion

as a state agency. 1/ Dep Ó t of Transp . v. Groves - Watkins

Constructors , 530 So. 2d 912, 913 - 914 (Fla. 1988); Dep Ó t of

Transp . v. J.W.C. Co. , 396 So. 2d 778, 787 (Fla. 1st DCA 1981).

See also § 120.57(1)(j), Fla. Stat.

31 . The First District Court of Appeal has inte rpreted the

process set forth in section 120.57(3)(f) as follows:

A bid protest before a state agency is

governed by the Administrative Procedure

Act. Section 120.57(3), Florida Statutes

(Supp. 1996) 2/ provides that if a bid protest

involves a disputed is sue of material fact,

the agency shall refer the matter to the

Division of Administrative Hearings. The

administrative law judge must then conduct a

de novo hearing on the protest. See

§ 120.57(3)(f), Fla. Stat. (Supp. 1996). In

this context, the phrase " de novo hearing"

is used to describe a form of intra - agency

review. The judge may receive evidence,

as with a ny formal hearing under

section 120.57(1), but the object of the

proceeding is to evaluate the action taken

by the agency. See Intercontinenta l

Properties, Inc. v. Department of Health and

Rehabilitative Services , 606 So. 2d 380

(Fla. 3d DCA 1992) (interpreting the phrase

" de novo hearing" as it was used in bid

protest proceedings before the 1996 revision

of the Administrative Procedure Act).

S tate Contracting and Eng Ó g Corp. , 709 So. 2d at 609.

32 . T he ultimate issue in this proceeding is "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." In addition to proving that Florida Housing

breached this statutory standard of conduct, Douglas Gardens

also must establish that the Department's violation was either

clearly erroneous, contrary to competition, arbitrary, or

capricious. § 120.57(3)(f ), Fla. Stat.

3 3 . The First District Court of Appeal has described the

"clearly erroneous" standard as meaning that an agency's

interpretation of law will be upheld "if the agency's

construction falls within the permissible range of

interpretations. If, however, the agency's interpretation

conflicts with the plain and ordinary intent of the law,

judicial deference need not be given to it." Colbert v. Dep Ó t

of Health , 890 So. 2d 1165, 1166 (Fla. 1st DCA 2004)( c itations

omitted). See also Anderson v. Bess emer City , 470 U.S. 564,

573 - 74; 105 S.Ct. 1504, 1511; 84 L.Ed.2d 518, 528 (1985)( ÐWhere

there are two permissible views of the evidence, the

factfinderÓs choice between them cannot be clearly erroneous.Ñ)

3 4 . An agency decision is "contrary to competitio n" when

it unreasonably interferes with the objectives of competitive

bidding. Those objectives have been stated to be:

[T]o protect the public against collusive

contracts; to secure fair competition upon

equal terms to all bidders; to remove not

only col lusion but temptation for collusion

and opportunity for gain at public expense;

to close all avenues to favoritism and fraud

in various forms; to secure the best values

for the [public] at the lowest possible

expense; and to afford an equal advantage to

al l desiring to do business with the

[government], by affording an opportunity

for an exact comparison of bids.

Harry Pepper & Assoc . , Inc. v. City of Cape Coral , 352 So. 2d

1190, 1192 (Fla. 2d DCA 1977) ( quoting Wester v. Belote , 138 So.

721, 723 - 724 (Fla. 1931) ) .

3 5 . An agency action is capricious if the agency takes the

action without thought or reason or irrationally. An agency

action is arbitrary if it is not supported by facts or logic.

See Agrico Chem . Co. v. Dep Ót of Env tl. Reg . , 365 So. 2d 759,

76 3 (Fla. 1st DCA 1978).

36 . To determine whether an agency acted in an arbitrary

or capricious manner, it must be determined "whether the agency:

(1) has considered all relevant factors; (2) has given actual,

good faith consideration to those factors; and (3) has used

reason rather than whim to progress from consideration of these

factors to its final decision." Adam Smith Enterprises v. Dep Ó t

of Envtl . Reg . , 553 So. 2d 1260, 1273 (Fla. 1st DCA 1989).

37 . However, if a decision is justifiable under any

an alysis that a reasonable person would use to reach a decision

of similar importance, the decision is neither arbitrary nor

capricious. Dravco Basic Materials Co. v. Dep Ó t of Transp . , 602

So. 2d 632, n.3 (Fla. 2d DCA 1992).

38 . In the instant case, Dougla s Gardens contends that the

plain language of Section Four A.6.a.(1) of the RFA mandates

that La JoyaÓs Surveyor Certification form be rejected. The

cited provision expressly states: Ð If the Applicant provides

any prior version of the Surveyor Certificat ion form, the form

will not be considered.Ñ La Joya concedes that its submission

did not comply with the literal terms of the RFA, but argues

that its deviation was no more than a Ðminor irregularityÑ which

Florida Housing retained the authority to waive.

39. In Lockheed Martin Information Systems v. Dep artmen t

of Child ren & Fam ily Serv ice s. , Case No. 98 - 2570BID (DOAH

Dec . 21, 1998), ALJ Ella Jane P. Davis wrote the following

language that provides guidance as to the instant proceeding:

76. This case hangs on what the words

"shall, will, and must" mean in this

particular RFP, what constitutes a material

deviation from the specifications of the

RFP, and how waiver of such terms affect

cost and competitive bidding.

77. Courts favor an interpretation o f bid

contract provisions using the plain meaning

of the words. Quesada v. Director, Federal

Emergency Management Agency , 577 F.Supp. 695

(S.D. Fla. 1983), and Tropabest Foods, Inc.

v. State, Department of General Services ,

493 So. 2d 50 (Fla. 1st DCA 1986 ). Common

sense suggests that a straight - forward

analysis of bid language is always best, but

not every failure of a proposer to adhere to

"shall, will, and must" language is a fatal

deviation. . . .

78. A variance is material only when it

gives the bi dder a substantial advantage

over other bidders and restricts or stifles

competition. See Tropabest Foods, Inc. v.

State of Florida, Department of General

Services , supra . A bid containing a

material variance is unacceptable. The

courts have applied two criteria to

determine whether a variance is substantial

and hence cannot be waived.

[F]irst, whether the affect [sic]

of a waiver would be to deprive

the municipality of its assurance

that the contract would be entered

into, performed and guaranteed

acc ording to its specified

requirements, and second, whether

it is of such a nature that its

waiver would adversely affect

competitive bidding by placing a

bidder in a position of advantage

over other bidders or by otherwise

undermining the necessary common

s tandard of competition.

See Robinson Electrical Company, Inc. v.

Dade County , 417 So. 2d 1032, 1034 (Fla. 3d

DCA 1982) and Harry Pepper and Associates,

Inc. v. City of Cape Coral , [352 So. 2d 1190

.

40. La Joya deviated from a manda tory provision of the

RFA. However, under all the facts of the case, that deviation

cannot be considered as anything but a minor irregularity.

La Joya achieved no competitive advantage over the other

applicants by virtue of its submission of a 2014 Surve yor

Certification form that was in all relevant particulars

identic al to the mandated 2015 form. The information submitted

by La Joya on the 2014 form was the same as that required by the

2015 form. The deviation was so slight that two experienced

Florid a Housing reviewers did not notice it until Douglas

Gardens pointed it out in its Petition.

41. None of the policy considerations cited by Mr. R eecy

would be transgressed by an award of funding to La Joya under

the specific circumstances of this case. La JoyaÓs application

was in all relevant respects consistent with the other RFA

applications. While the Surveyor Certification form submitted

by La Joya was not the one specified in the RFA, its contents

were the same for purposes of scoring this RFA. Wai ving the

minor irregularity in this case would not be inconsistent with

Florida HousingÓs overall concern with maintaining consistency

and predictability in the competitive procurement process.

42. There is in this case no element of collusion ,

favoriti sm, fraud, or unfair competition. Florida Housing was

able to make an exact comparison of the applications. An award

of funding to La Joya in this case is a reasonable exercise of

the agencyÓs authority to waive minor irregularities and is

neither arbitr ary nor capricious.

43. I t is concluded that Douglas Gardens has failed to

carry its burden of proving that Florida HousingÓs decision to

award funding to La JoyaÓs application was clearly erroneous ,

arbitrary , or capricious, contrary to the governing sta tutes,

rules, or RFA specifications, or was contrary to competition.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that a final order be entered by the Florida

Housing Finance Corporation dismissing the Formal Written

Protest and Peti tion for Administrative Hearing filed by

Douglas Gardens V , Ltd. , and finding that La Joya, Ltd. is

eligible for funding under Request for Applications 2015 - 112 .

DONE AND ENTERED this 29 th day of February, 2016 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 (850) 921 - 6847

www.doa h.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29 th day of February, 2016 .

ENDNOTES

1/ Despite Florida HousingÓs reversal of position at the time of

the hearing, the decision under review in this proceeding

remains the initial award of funding to La Joya. The burden

remains with Douglas Gardens.

2/ The meaning of the operative language has remained the same

since its adoption in 1996:

In a competitive - procurement protest, no

submissions made after the bid or prop osal

opening amending or supplementing the bid or

proposal shall be considered. Unless

otherwise provided by statute, the burden of

proof shall rest with 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. . . .

§ 120.57(3)(f), Fla. Stat. (1997).

COPIES FURNISHED :

Michael P. Donaldson, Esquire

C arlton Fields Jorden Burt, P.A.

Post Office Drawer 190

215 South Monroe Street, Suite 500

Tallahassee, Florida 32302

(eServed)

Donna Elizabeth Blanton, Esquire

Radey Law Firm, P.A.

Suite 200

301 South Bronough Street

Tallahassee, Florida 32301

(eServed)

Hugh R. Brown, General Counsel

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301

(eServed)

Eric Sonderling, Assistant General Counsel

Florida Housing Finance Corporation

227 North Bronough Street , Sui te 5000

Tallahassee, Florida 32301

(eServed)

Kate Flemming, Corporation Clerk

Florida Housing Finance Corporation

Suite 500 0

227 North Bronough Street

Tallahassee, Florida 32301 - 1329

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have th e right to submit written exceptions within

1 0 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.