13-002898BID Duval Park, Ltd. vs. Florida Housing Finance Corporation
 Status: Closed
Recommended Order on Monday, November 25, 2013.


View Dockets  
Summary: Proposed funding award was not shown to be contrary to statute, rule, policy, or RFP, nor was proposed award clearly erroneous, arbitrary, capricious, or contrary to competition.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DUVAL PARK, LTD. ,

11Petitioner ,

12vs. Case No. 13 - 2898BID

18FLORIDA HOUSING FINANCE

21CORPORATION ,

22Respondent .

24/

25OSPREY APARTMENTS, LLC,

28Petitioner,

29vs . Case No. 13 - 2899BID

36FLORIDA HOUSING FINANCE

39CORPORATION,

40Respondent.

41/

42RECOMMENDED ORDER

44Pursuant to notice, an evidentiary hearing was held in the

54above - styled consolidated cases on October 8, 2013, i n

65Tallahassee, Florida, before Elizabeth W. McArthur,

71Administrative Law Judge, Division of Administrative Hearings.

78APPEARANCES

79For Petitioner Duval Park, Ltd :

85Michael P. Donaldson, Esquire

89Carlton Fields, P.A.

92215 South Monroe Street, Su ite 500

99Post Office Drawer 190

103Tallahassee, Florida 32302 - 0190

108For Petitioner Osprey Apartments, LLC:

113Joseph M. Goldstein, Esquire

117Shutts and Bowen LLP

121Suite 2100

123200 East Broward Boulevard

127Fort Lauderdale, Florida 33301

131For Respondent Florida Housing Finance Corporation :

138Hugh R. Brown, Esquire

142Florida Housing Finance Corporation

146Suite 5000

148227 North Bronough Street

152Tallahassee, Florida 32301 - 1329

157STATEMENT OF THE ISSUE

161The issue for determination is whether Respondent ' s intended

171decision to fund the application of Petitioner Duval Park, Ltd.

181(Duval Park), is contrary to its governing statutes, rules,

190policies, or the proposal specifications.

195PRELIMINARY STATEMENT

197Respondent, Florida Housing Finance C orporation (Respondent

204or Florida Housing), issued Request for Proposal s 2013 - 08 (the

216RFP), by which it solicited applications to compete for funding

226for high - priority affordable housing developments for persons

235with special needs. Seven applications were filed in response to

245the RFP, including applications by Petitioners Duval Park and

254Osprey Apartments, LLC (Osprey).

258On June 21, 2013, Florida Housing posted notice of its

268intended decision to award funding to Duval Park. Osprey, whose

278response achieved the second highest score from Florida Housing ' s

289evaluation committee, timely filed a notice of intent to protest

299and a formal written protest pursuant to section 120.57(3),

308Florida Statutes (2013). 1/

312Osprey ' s written protest raised three issues. First, Osprey

322contended that Duval Park ' s response failed to correctly identify

333the developer ' s principals, a threshold requirement. Next,

342Osprey challenged the scoring of two application sections,

350addressing developer and management company experience with

357per manent supportive housing, contending that Duval Park ' s scores

368should have been lower than Osprey ' s scores. Finally, Osprey

379contended that the " reconciliation process , " which was used to

388reconcile the scores of two application sections that were

397reviewed and scored by two different evaluators, was arbitrary

406and capricious. As an indicator, Osprey ' s written protest noted

417that in some instances, an evaluator did not stick to the score

429assigned during the independent review, but , rather, changed his

438or her s core after discussion at the public meeting at which the

451reconciliation process was conducted.

455Duval Park also timely filed a notice of intent to protest

466and a formal written protest. The Duval Park written protest

476generally supported Florida Housing ' s decision, but challenged

485the evaluation committee ' s scoring in a few areas in which Duval

498Park contended it should have received more points than it did.

509Following an unsuccessful resolution meeting pursuant to

516section 120.57(3)(d)1., Florida Housing re ferred the two protests

525to the Division of Administrative Hearings, where they were

534consolidated and set for hearing. Following an unopposed motion

543for continuance to accommodate witness availability, the hearing

551was rescheduled for October 8 and 9, 2013.

559Prior to the hearing, the parties filed a Joint Pre - hearing

571Stipulation in which they set forth a number of agreed facts and

583agreed issues of law. The parties ' stipulations have been

593incorporated below to the extent relevant.

599At the outset of the hearin g, Osprey announced that it was

611withdrawing the first and third issues raised in its written

621protest: the challenge to the sufficiency of Duval Park ' s

632identification of the developer ' s principals; and the challenge

642to the reconciliation process as arbitra ry and capricious.

651The parties presented Joint Exhibits 1 through 22, which

660were admitted in evidence; no additional exhibits were offered.

669Osprey presented the testimony of two witnesses: Stephanie

677Berman, p resident/CEO of Carrfour Supportive Housin g, Inc.

686(Carrfour), the developer for Osprey ' s proposed project; and

696William Aldinger, Florida Housing ' s assistant policy director and

706supportive housing coordinator. Duval Park presented the

713testimony of three witnesses, representing the three entities

721j ointly developing its proposed project : Shawn Wilson, p resident

732of Blue Sky Communities, LLC (Blue Sky) ; Lori Sandonato, d irector

743of h ousing for Abilities, Inc., d/b/a ServiceSource

751(ServiceSource); and Jack Humber g , d irect or of h ousing and ADA

764s ervices f or Boley Centers, Inc . (Boley). Florida Housing did

776not call any additional witnesses.

781Through the testimony of one of Duval Park ' s witnesses,

792Duval Park acknowledged that it was no longer claiming that the

803scoring of its response was arbitrary and capric ious , as

813contended in its written protest. Therefore, although Duval Park

822remains designated as a petitioner, its participation in the

831hearing ended up being more like an intervenor supporting

840Respondent ' s initial decision. As a result of the parties '

852na rrowing of the issues at hearing, the evidentiary hearing

862concluded in one day.

866The two - volume hearing Transcript was filed on October 24,

8772013. The parties timely filed their p roposed r ecommended o rders

889(PROs) by the deadline of November 4, 2013. The P ROs have been

902carefully considered in preparing this Recommended Order.

909FINDING S OF FACT

9131. Florida Housing is a public corporation that administers

922low - income housing tax credit programs. As of July 1, 2012,

934Florida Housing was authorized to use up to t en percent of its

947annual allocation of low - income housing tax credits to fund

958high - priority affordable housing developments selected through a

967competitive solicitation process, such as the RFP. See

975C h. 2012 - 127, § 4, Laws of Fla. (2012)(creating § 420.507 (48),

989Fla. Stat.). Examples of " high priority " affordable housing

997developments include housing for veterans and their families , and

1006housing for persons with special needs.

10122. Prior to issuing the RFP, Florida Housing conducted some

1022demonstration RFPs for developments serving special needs

1029households, but the RFP represents the first actual use of the

1040competitive solicitation process to award low - income housing tax

1050credits. Previously, low - income housing tax credits were awarded

1060through what was known as the universal application cycle, a

1070process described as cumbersome, lengthy, and inflexible. As

1078part of the universal application cycle, an applicant could

1087indicate by checking a box that it intended to provide affordable

1098housing to special needs househol ds. However, the general

1107universal application process did not lend itself to a targeted

1117proposal detailing how the unique needs of specific special - needs

1128population groups would be addressed.

11333. The competitive solicitation process was seen as a way

1143to allow applicants to respond to particular high - priority

1153development needs identified by Florida Housing. In setting

1161forth their development proposals for defined target population

1169groups, applicants would be able to tell their story: applicants

1179would id entify and describe the unique needs and household

1189characteristics of the specific special - needs population group

1198that is the focus of their application; applicants could detail

1208and demonstrate their know - how with regard to the resources

1219available in the c ommunity where the proposed development is

1229located, to meet the unique needs of the target population; and

1240applicants would be able to discuss the relevant experience of

1250the developer and management teams that make them well - suited to

1262carry out the propose d development and meet the unique needs of

1274the targeted population group.

1278The RFP

12804. The RFP solicited responses or applications proposing

1288the development of " permanent supportive housing " (as defined in

1297the RFP) for persons with special needs. Florid a Housing issued

1308the RFP with the expectation of funding two or more proposals.

13195. The RFP provided that applicants could propose

1327developments for persons with special needs generally, or

1335applicants could choose to focus on serving veterans with special

1345needs. If an applicant chose to focus on veterans with special

1356needs, the applicant was required to pick one of two specific

1367subcategories: either veterans with service - connected disabling

1375conditions transitioning from a Veteran s ' Administration ( VA )

1386ho spital or medical center; or chronically homeless/

1394institutionalized veterans with disabling conditions who were

1401significant users of public resources , such as emergency care and

1411shelter. The RFP specified that it was Florida Housing ' s goal to

1424fund at lea st one development proposing to serve veterans with

1435special needs . P reference would be given to proposed

1445developments focusing on serving special - needs veterans in the

1455first subcategory, i.e., veterans transitioning from VA hospitals

1463and medical centers.

14666. Duval Park, Osprey, and five other applicants timely

1475submitted applications in response to the RFP. Both Duval Park

1485and Osprey proposed permanent supportive housing developments to

1493serve veterans with special needs transitioning from VA hospitals

1502and medical centers.

15057. As described in the RFP, an evaluation committee

1514comprised of Florida Housing employees reviewed and scored the

1523applications. Members of the evaluation committee were

1530instructed to independently evaluate and score the application

1538se ctions assigned to them. The RFP specified that at least one

1550public meeting would be held at which the evaluators were allowed

1561to discuss the ir evaluations , make any adjustments deemed

1570necessary to best serve the interests of Florida Housing ' s

1581mission , an d develop recommendations for the Florida Housing

1590B oard of D irectors.

15958. For most application sections, a single evaluator was

1604assigned to review and score the seven responses. For example,

1614Mr. Aldinger was the evaluator who reviewed and scored the two

1625application sections addressing developer and management company

1632experience with permanent supportive housing.

16379. Two application sections were assigned for evaluation

1645and scoring by two evaluation committee members. The two

1654evaluators first independent ly reviewed and scored all seven

1663application responses for the two sections. Then the two

1672evaluators met in a noticed public meeting to conduct a

" 1682reconciliation process, " in which they discussed their

1689evaluations of the responses to the two application s ections and

1700reconciled differences in their scores .

170610. The evaluation committee ultimately concluded that

1713Duval Park ' s application was entitled to a total of 119 points

1726out of 133 possible points, and that Osprey ' s application was

1738entitled to 117 poi nts. A large gap in scoring separated these

1750two highest - scoring applicants from the other five applicants;

1760the next highest score was 95 points.

176711. The evaluation committee presented its recommendation

1774to the Florida Housing B oard of D irectors, along wi th a summary

1788of the scores assigned by the evaluation committee. The

1797committee ' s recommendation was that Florida Housing should award

1807funding to Duval Park for its proposed development. Florida

1816Housing ' s B oard adopted the committee ' s recommendation.

1827Ospr ey ' s P rotest I ssue R emaining for D etermination

184012. Following the parties ' withdrawal of most of their

1850protest issues, the only remaining disputed issue for resolution

1859in this proceeding is Osprey ' s claim that Duval Park should have

1872received " at least thre e " less points than Osprey for the

1883sections addressing developer and management company experience. 2/

189113. Mr. Aldinger ' s assignment as the evaluation committee

1901member responsible for reviewing and scoring these application

1909sections comports with his exper tise . Mr. Aldinger has served as

1921Florida Housing ' s supportive housing coordinator since 2006. In

1931that role, he has been coordinating with governmental bodies and

1941industry stakeholders to develop strategies for focusing Florida

1949Housing ' s resources on the provision of supportive housing to

1960special needs households. The RFP was developed in furtherance

1969of this effort, and Mr. Aldinger was one of the RFP ' s authors.

198314. Mr. Aldinger assigned the same number of points to the

1994Duval Park and Osprey applications in both sections. Each

2003application received 24 out of 25 possible points for developer

2013experience, and all ten of the points available for management

2023company experience.

20251 5 . Osprey ' s contention is that its narratives for these

2038two application sectio ns show its objective superiority.

2046Osprey ' s " objective superiority " argument is primarily based on a

2057quantitative comparison, in which its narrative showed experience

2065developing and operating a larger number of permanent supportive

2074housing units than did Duval Park ' s narrative. Osprey also

2085contends that its narrative was qualitatively better in providing

2094greater detail regarding its experience developing and operating

2102permanent supportive housing. As part of its argument, Osprey

2111contends that Duval Park strayed from the RFP instructions by

2121describing experience with more than just permanent supportive

2129housing, but that the evaluator gave Duval Park credit anyway.

21391 6 . The RFP instructions provide the starting point to

2150assess Osprey ' s contentions. First, the RFP provided the

2160following definition of " permanent supportive housing " :

2167Rental housing that is affordable to the

2174focus households with household incomes

2179at or below 60 percent of area median

2187income (AMI), that is leased to the focus

2195households, for continued occupancy with

2200an indefinite length of stay as long as

2208the Permanent Supportive Housing tenant

2213complies with the lease requirements.

2218Permanent Supportive Housing shall

2222facilitate and promote activities of

2227daily living, access to community - based

2234services and amenities, and inclusion in

2240the general community. Permanent

2244Supportive Housing shall strive to meet

2250the needs and preferences of the focus

2257households.

2258This RFP definition was acknowledged to be somewhat broader than

2268how that phrase might b e understood by some industry models. For

2280example, Mr. Aldinger testified that transitional housing could

2288be permane nt supportive housing within the RFP definition, as

2298long as a lease agreement is used. Permanency is not required,

2309only an " indefinite " le ngth of stay. The fact that leases are

2321for finite terms of 12 or 24 months would not be dispositive;

2333rather, the length of stay would be considered " indefinite " if

2343tenants are not required to leave at the end of the ir lease

2356terms , if they are not ready to leave and are otherwise in

2368c ompliance with the lease terms. The provision of supportive

2378services to meet the needs of the focus population is a key part

2391of the RFP definition.

23951 7 . The RFP instructions for the developer experience

2405narrative were as foll ows:

2410Developer Experience with Permanent Supportive

2415Housing ( Maximum 25 points ):

2421The Applicant must describe the experience of

2428the Developer, co - Developer, and/or Principal

2435in developing and operating Permanent

2440Supportive Housing, and more specifically,

2445housing for the households the Applicant is

2452proposing to serve. Describe the role(s) and

2459responsibilities of any Developer , co -

2465Developer, and/or Principal listed in the

2471Applicant ' s responses to Items A.2.c. and

24793.a. of Section 6 of the RFP, related to the

2489proposed Development, and describe the

2494experience and qualifications relevant to

2499carrying out the roles and responsibilities

2505for this proposed Development . (emphasis

2511added).

25121 8 . The RFP instructions for the first application section

2523must also be co nsidered because they tie into the developer/

2534manager experience sections. The instructions for the first

2542application section required the applicant to provide a detailed

2551description of the focus population group , and the instructions

2560also explained how t hat description would be used, as follows:

2571[T]he Applicant must provide a detailed

2577description of the resident household

2582characteristics, needs, and preferences of

2587the focus population(s) the Applicant is

2593proposing to serve. This description will

2599provide a point of reference for the

2606Corporation ' s evaluation and scoring of the

2614Application, providing the foundation for the

2620appropriateness of the experience of the

2626Developer(s) and Management Company , proposed

2631Construction Features and Amenities, Resident

2636serv ices and Access to Community Based

2643Services and Amenities. (emphasis added) .

26491 9 . As part of this first application section, applicants

2660focusing on special - needs veterans transitioning from VA

2669facilities were required to designate the specific VA facili ties

2679with which the applicants expected to be working and

2688coordinating. Osprey, whose proposed development is in Liberty

2696City, Miami - Dade County, designated Miami VA Healthcare S ystem

2707(Miami VA) in Miami. Duval Park, whose proposed development is

2717in unin corporated Pinellas County, designated Bay Pines VA

2726Healthcare System (Bay Pines VA ) in Pinellas County, as well as

2738the James A. Haley Veterans Hospital and the Tampa Polytrauma

2748Rehabilitation Center, both in Tampa, Hillsborough County.

275520 . Osprey and Duval Park both provided extensive

2764narratives describing their target populations and detailing the

2772unique needs and preferences of their target populations .

2781Osprey ' s narrative described the information learned from

2790interviewing social workers in each of the programs under the

2800umbrella of the Miami VA , with whom Carrfour would be

2810coordinating for transitioning veterans. Osprey ' s narrative also

2819described a VA grant to Carrfour of $1,000,000 per year for

2832supportive services for veteran families, through whi ch Carrfour

2841provides a comprehensive case management program called Operation

2849Sacred Trust. This program has an outreach team that works

2859closely with social workers throughout the Miami VA.

28672 1 . The Duval Park narrative discussed and documented the

2878wor k of the St. Petersburg Housing Authority Wounded Warrior

2888Community Advisory Group to assess housing needs for veterans.

2897Developer - partner ServiceSource ' s director of housing was a

2908participant. As part of the assessment, the advisory group

2917conducted vete rans ' focus groups to hear from the veterans

2928themselves regarding their needs and preferences, including the

2936particular supportive services needed to allow veterans to

2944transition to an independent living setting. The Duval Park

2953narrative also described th e information about transitioning

2961veterans learned through ongoing projects with the VA facilities

2970designated for the proposed development, including a Memorandum

2978of Understanding between James A. Haley Veterans Hospital and

2987ServiceS ource ' s Warrior Bridge program.

29942 2 . As called for by the RFP instructions, Mr. Aldinger

3006used each application ' s detailed description of the target

3016population in section one as the foundation for evaluating that

3026application ' s developer and management experience narra tives.

3035The experience narratives were properly evaluated in accordance

3043with the RFP instructions in the context of each applicant ' s

3055specific proposal to focus on a defined population group

3064transitioning from designated VA facilities, whose unique needs

3072we re fleshed out in the first section narratives.

30812 3 . Mr. Aldinger reviewed and was impressed with both

3092Osprey ' s and Duval Park ' s developer experience narratives, for

3104good reason. As he explained, the two responses took different

3114approaches, but both pro vided good detail in the limited space

3125allotted.

31262 4 . Osprey ' s narrative described Carrfour, a non - managing

3139member of the applicant entity that will be the developer and,

3150through a subsidiary, manager of the proposed development.

3158Carrfour is a not - for - profit organization created in 1993 by the

3172Greater Miami Chamber of Commerce, with the mission of developing

3182permanent supportive housing to end homelessness. In setting

3190forth Carrfour ' s experience, the Osprey narrative took a

3200quantitative approach by enu merating Carrfour ' s 16 mixed - use

3212housing development projects that include d permanent supportive

3220housing. Some detail s w ere provided for each development, such

3231as the funding sources, the number of total units, how many of

3243those units were permanent suppo rtive housing units, and how many

3254of the units were currently occupied by veterans. However, the

3264narrative did not explain whether any supportive services

3272provided for these developments were specifically geared to

3280meeting the special needs of veterans. Th e type s of supportive

3292services were not identified for an y of the 16 developments. For

3304three developments , the description stated only that " a full

3313array of supportive services " was provided or that " on - site

3324supportive services " were provided. Supporti ve services were not

3333mentioned in the descriptions of the other 13 developments.

33422 5 . Other than providing the number of units then occupied

3354by veterans, Osprey ' s developer experience narrative had no

3364information to demonstrate experience providing hou sing

3371specifically developed to meet the unique needs of the focus

3381population for its proposed development: veterans with service -

3390related disabling conditions transitioning from the Miami VA .

33992 6 . Duval Park ' s developer experience narrative did not

3411match Osprey ' s approach of enumerating individual permanent

3420supportive housing developments and quantifying the units in each

3429development. Duval Park ' s response chose instead to describe in

3440general aggregate terms the permanent supportive housing

3447experience of the developer - partners. The Duval Park narrative

3457went into more detail to highlight the developer team experience

3467with housing projects specifically designed to meet the unique

3476needs of special - needs veterans transitioning from the VA

3486facilities designate d in its application , something lacking in

3495the Osprey response.

34982 7 . For example, Duval Park ' s response described developer -

3511partner Boley ' s substantial experience since it was founded in

35221970, in developing more than 500 units of permanent supportive

3532hous ing in Pinellas County. The narrative also described the

3542even longer - standing experience of developer - partner

3551ServiceSource, founded in 1959 with a mission to provide services

3561to needy people with disabilities. Initially providing

3568employment, training, r ehabilitation, and support services

3575(relevant to the roles described for this developer - partner in

3586operating the proposed development), ServiceSource began a

3593housing program in 1995. ServiceSource ' s permanent supportive

3602housing development experience was summarized in shorthand as

3610including 20 separate " HUD 202/811 awards. " The unrefuted

3618testimony established that this shorthand reference was properly

3626understood by Mr. Aldinger to signify 20 permanent supportive

3635housing developments for persons with disab ilities.

36422 8 . Two specific supportive housing projects for veterans,

3652developed and operated by Boley working with the Bay Pines VA ,

3663were detailed in Duval Park ' s developer experience narrative. In

36742007, Bay Pines VA awarded Boley a contract for " Safe Hav en Model

3687Demonstration Project " services, described in the notice of

3695contract award as " a specialty model of HCHV residential care as

3706mandated by the . . . zero - tolerance policy to end homelessness

3719within the Veteran population. " Through this contract, Bo ley

3728acquired and rehabilitated a former 20 - unit skilled nursing

3738facility to establish Morningside Safe Haven (Morningside) , which

3746provides housing and a residential treatment program with

3754counseling for veterans. Half of the 20 veterans housed there

3764have service - connected disabling conditions, and one - third of the

3776veterans transitioned from VA facilities. Pinellas County and

3784HUD provide funding support for this VA pilot program.

37932 9 . Osprey contends that Boley ' s experience developing and

3805operating M orningside should have been ignored in scoring Duval

3815Park ' s developer experience, because a residential treatment

3824program is not permanent supportive housing. However, according

3832to Mr. Humberg , Morn ingside is considered permanent supportive

3841housing under HUD guidelines. Veterans sign a 12 - month lease to

3853reside in a unit. Although the intent is that tenants will

3864complete treatment and move on, tenants are not required to leave

3875at the end of their 12 - month lease terms; they can stay as long

3890as they need to , if they are otherwise compliant with their

3901leases.

390230 . Even if Morningside did not technically meet the RFP

3913definition of permanent supportive housing, the discussion of

3921Morningside still would be appropriate for this narrative ,

3929pursuant to the RFP i nstructions . The Morningside experience

3939demonstrates Boley ' s " experience and qualifications relevant to

3948carrying out " its roles and responsibilities for the proposed

3957development, identified in the same narrative to include mental

3966health counseling, case m anagement, and VA coordination.

39743 1 . Also described in Duval Park ' s narrative was Boley ' s

39892010 development of Jerry Howe Apartments, with 13 units

3998developed specifically for formerly homeless veterans, many of

4006whom have service - connected disabling condi tions. Funding for

4016this development was provided by the VA and the City of

4027Clearwater. Boley coordinates with Bay Pines VA in operating

4036this development, with Bay Pines VA providing screening and

4045referral services to identify veterans who are candidates to

4054lease apartment units. Boley ' s staff members work closely with

4065the veteran tenants to provide supportive services, preparing

4073them for more independent living.

40783 2 . Osprey quibbles with whether Jerry Howe Apartments

4088technically qualifies as permanent supportive housing, noting

4095that while the veteran tenants do sign a lease, the intent of the

4108project is to serve as transitional housing for up to 24 months.

4120However, Mr. Aldinger explained that transitional housing would

4128meet the RFP ' s broad definition of permanent supportive housing

4139if tenants are not required to leave after a finite period of

415112 or 24 months. Mr. Humberg confirmed that veterans residing at

4162Jerry Howe Apartments are not required to leave after 24 months ,

4173if they are not ready to move o n. Mr. Humberg also clarified

4186that Boley owned the apartments before they were re develop ed in

41982010 , specifically to meet the needs of veterans. Before the

42082010 redevelopment, Boley operated the property as permanent

4216supportive housing, just not specifica lly for veterans. In fact,

4226two of the units remain occupied by prior non - veteran permanent

4238supportive housing tenants , who did not want to move out in 2010

4250when the property was redeveloped.

42553 3 . It is not necessary to debate whether Jerry Howe

4267Apartme nts technically is permanent supportive housing, although

4275the evidence demonstrated that the development is and has been

4285permanent supportive housing , as defined in the RFP . Certainly,

4295this project demonstrates Boley ' s experience and qualifications

4304releva nt to carrying out its roles and responsibilities for the

4315proposed development and , therefore, is worthy of c onsideration

4324as part of the developer experience narrative.

43313 4 . Duval Park ' s developer experience narrative also

4342detailed specific veterans ' su pportive service programs developed

4351by both Boley and ServiceSource. The descriptions of these

4360programs demonstrate experience and qualifications directly

4366relevant to the described roles and responsibilities for Boley

4375and ServiceSource with respect to the proposed development.

43833 5 . Duval Park ' s experience narrative details the many

4395accomplishments of ServiceSource ' s nationally - recognized Warrior

4404Bridge program, which provides a wide variety of supportive

4413services to veterans. Noteworthy is a 2012 award o f over

4424$1,000,000 from the City of St. Petersburg to ServiceSource to

4436expand housing options for wounded veterans. Under this program ,

4445in the past year , ServiceSource partnered with Home Depot to

4455modify 16 homes and facilities serving wounded veterans in the

4465Tampa Bay area to increase accessibility, safety, and energy

4474efficiency. This experience translates directly to the role

4482ServiceSource will serve as a participant in designing the

4491proposed housing development specifically to accommodate the

4498unique acc essibility and other needs of special - needs veterans

4509with disabling conditions.

45123 6 . ServiceSource ' s Warri o r Bridge program also operates

4525the " Veterans ' Mall " in the vicinity of the proposed development.

4536At the Veteran s ' Mall, household appliances, co okware, business

4547attire, and necessities are made available to wounded veterans

4556transitioning to more independent housing settings . According to

4565Duval Park ' s narrative, the Veterans ' Mall has served more than

4578325 veterans since opening in October 2011, th rough partnerships

4588with Bay Pines VA and local community organizations serving

4597veterans. ServiceSource ' s representative testified that

4604ServiceSource recently secured a five - year commitment from T.J.

4614Maxx to stock the Veterans ' Mall with new suits for vete rans

4627going on job interviews.

463137 . The Duval Park developer experience narrative regarding

4640the Warrior Bridge program portrays ServiceSource ' s experience

4649and qualifications to carry out its described roles and

4658responsibilities for the proposed development , which include

4665community outreach, physical disability counseling, employment

4671assistance, job training, and VA coordination.

46773 8 . Another program described in Duval Park ' s developer

4689experience narrative is Boley ' s Homeless Veterans Reintegration

4698Progra m. This is a case management, training, and employment

4708program specifically for veterans, conducted by Boley case

4716managers and employment specialists, demonstrating that they are

4724well - suited to carry out the described roles and responsibilities

4735for Boley with respect to the proposed development, which

4744include s the lead case management role.

47513 9 . A reasonable person attempting to compare the two

4762developer experience narratives might say that Osprey ' s narrative

4772demonstrated greater quantitative experien ce in developing more

4780units of permanent supportive housing generally, but that Duval

4789Park ' s narrative demonstrated better qualitative experience among

4798the developer - partners in developing supportive housing

4806specifically for veterans with special needs. D uval Park ' s

4817narrative wa s more directly focused on specific experience

4826developing supportive housing that addresses the unique needs of

4835those special - needs veterans who are transitioning from VA

4845facilities. In addition, Duval Park ' s narrative better

4854demon strated experience and qualifications among the developer -

4863partners that are directly relevant to their described roles and

4873responsibilities in carrying out the proposed development. Both

4881narratives were very good and responsive to the RFP instructions ,

4891wh ile taking very different approaches. Mr. Aldinger reasonably

4900applied the RFP instructions, reasonably evaluated the two

4908narratives, and reasonably judged them both to be deserving of

4918the same very high score.

492340 . The credible evidence does not support Osprey ' s

4934contention that its developer experience narrative was superior,

4942or that Duval Park ' s narrative strayed beyond the RFP

4953instructions, or that Duval Park ' s narrative was judged by

4964different standards than Osprey ' s narrative. 3/

49724 1 . Osprey also ta kes issue with the scoring of the two

4986applications ' narratives describing management company experience

4993with permanent supportive housing. As noted, Mr. Aldinger

5001evaluated these narratives and awarded each application the

5009maximum ten points for this appli cation section.

50174 2 . Osprey ' s narrative identified Carrfour ' s not - for - profit

5033subsidiary, Crossroads Management, LLC (Crossroads), as the

5040manager for its proposed Liberty Village development. Although

5048Carrfour was established in 1993, Crossroads was not c reated

5058until 2007. Before Crossroads was created, Carrfour did not

5067manage the housing projects it developed; instead, it turned the

5077developments over to traditional property management companies.

5084As Osprey ' s narrative acknowledges, this created problems, as the

5095traditional m anagement companie s lacked the sensitivity and

5104training to address special needs of permanent supportive housing

5113tenants. Since 2007, Crossroads has been taking over management

5122functions for Carrfour developments and is now managing m ost of

5133the 16 developments listed in the developer experience narrative.

5142Osprey ' s application was given credit for proposing management

5152with ideal experience.

51554 3 . For Duval Park ' s application, Boley is identified as

5168the management company. In additio n, Boley will engage Carteret

5178Management Company (Carteret) , which is owned and operated by

5187James Chadwick, a principal of developer - partner Blue Sky, to

5198assist with tax - credit compliance and other matter s within

5209Carteret ' s expertise during the initial pha ses of the project.

5221Boley ' s specific experience managing supportive housing for

5230veterans with special needs, previously detailed in the developer

5239experience discussion above, could not reasonably be questioned.

5247As described in the manager experience narr ative, Boley manages

5257561 units of its own permanent supportive housing. Boley also

5267manages 112 additional permanent supportive housing units owned

5275by other not - for - profit companies (including an 88 - unit

5288development owned by ServiceSource). The management narrative

5295describes the profile of the typical Boley - managed housing unit

5306tenant as having mental illness, including post - traumatic stress

5316disorder and/or substance abuse problems, requiring supportive

5323services provided by Boley staff. These supportive s ervices

5332include mental health counseling, case management intervention,

5339and transportation assistance -- functions for which Boley will

5348assume responsibility operating the proposed development. The

5355narrative also describes Boley ' s property management person nel :

5366seven housing staff who handle leasing, income certifications,

5374and other leasing matters; eight maintenance staff to handle

5383property repairs; three drivers who provide transportation; and

5391four accounting staff for property management functions.

53984 4 . Osprey does not articulate a specific reason why Duval

5410Park ' s management company experience narrative should not be

5420entitled to ten points, or why Osprey believes its narrative was

5431qualitatively or quantitatively better than Duval Park ' s, except

5441to the e xtent of Osprey ' s criticisms of the developer experience

5454narratives . Yet Osprey ' s narrative for manager experience

5464arguably should not fare as well as its narrative for developer

5475experience, given the many more years of management experience

5484demonstrated by Boley and the comparatively few years of

5493management experience by the Crossroads management entity created

5501by Carrfour in 2007. Nonetheless, Mr. Aldinger credited the

5510Osprey application with the maximum points based on Crossroads '

5520management experience since 2007.

55244 5 . No credible evidence was presented to support the

5535contention that Duval Park ' s management experience narrative was

5545not entitled to at least the same number of points as Osprey ' s

5559management experience narrative.

55624 6 . As repeatedly ackno wledged by all parties throughout

5573the hearing, Florida Housing was fortunate to have received two

5583excellent proposals by Osprey and Duval Park that were head and

5594shoulders above the other responses. Florida Housing then was

5603faced with the difficult task o f deciding which, between two

5614excellent choices, should receive the funding nod , if only one of

5625the two could be funded.

56304 7 . Based on the evidence and the findings above,

5641Mr. Aldinger ' s assignment of the same number of points for

5653developer experience (24 points out of a possible 25 points) and

5664for management company experience (the maximum of 10 points) to

5674the two excellent proposals was not clearly erroneous, arbitrary ,

5683capricious , or contrary to competition . His conclusion that both

5693applicants demonstr ated nearly ideal development experience and

5701ideal management company experience for their proposals was

5709reasonable . The evidence established that Mr. Aldinger made the

5719points assignments he did after evaluating all of the relevant

5729information he was allo wed to consider pursuant to the RFP

5740instructions. His scoring of th ese two application section s was

5751shown to be an honest, good faith exercise of his expert judgment

5763applied to sort out the various pros and cons of the responses .

57764 8 . Osprey did not id entify any statute or rule that it

5790contends was violated by the scoring of the Osprey and Duval Park

5802developer and management experience narratives. Osprey argued,

5809but did not prove, that the scoring of these two applications was

5821contrary to the RFP speci fications. Osprey argued that Mr.

5831Aldinger ' s evaluation was contrary to the RFP beca use he

5843considered differences between the two projects in assessing

5851developer experience. Osprey characterized this as double -

5859counting, because the same aspects of the pro jects were scored in

5871other sections. Osprey also contended that considering the

5879differences between the two proposed developments and the

5887different approaches by the two applicants was tantamount to

5896applying different standards in evaluating the two appli cations.

59054 9 . Osprey ' s criticism wa s not borne out by the evidence.

5920Instead, Mr. Aldinger described a reasonable process, consistent

5928with the RFP terms explaining that developer experience would be

5938assessed in the context of the attributes of the target

5948population described in the first section of the application, and

5958also in context with the roles and responsibilities described for

5968the developer team members in carrying out the proposed

5977development. The same RFP instructions and the same standards

5986were applied to the evaluation of the two applications; it was

5997the applications that were different, not the standards. 4 /

600750 . Although not actually raised as a distinct challenge,

6017Osprey suggested an additional argument in its PRO, not

6026articulated in its wri tten protest or in the Joint Pre - hearing

6039Stipulation . Osprey argued in its PRO that Florida Housing

6049should have used two evaluators to score the developer and

6059manager experience narratives, as a " check and balance " against

6068arbitrary scoring .

60715 1 . Ospre y ' s new argument stands in stark contrast to the

6086only challenge to the evaluation process articulated in Osprey ' s

6097written protest and in the Joint Pre - h earing Stipulation . Before

6110the hearing, Osprey challenged the evaluation procedure used for

6119two applica tion sections that were scored by two evaluators .

6130Rather than providing any check - and - balance comfort, the two -

6143evaluator process was viewed as defective by Osprey because the

6153initial scores independently assigned by each evaluator were

6161reconciled in a pub lic discussion meeting at which differences in

6172scores were harmonized, meaning that when the initial scores

6181differed, the evaluator s agreed to adjust their i nitial score s .

61945 2 . Osprey has established only that for some application

6205sections, a single evaluator was used, while for other

6214application sections, two evaluators were used and their separate

6223scores were reconciled. No credible evidence was offered to

6232prove that use of two evaluators was better than using one

6243evaluator (or vice versa , as Ospre y initially argued).

6252CONCLUSIONS OF LAW

62555 3 . The Division of Administrative Hearings has

6264jurisdiction over the parties and the subject matter of this

6274proceeding. §§ 120.569 and 120.57(3), Fla. Stat.

62815 4 . Section 420.507 provides the statutory authority for

6291F lorida Housing to allocate a percentage of low - income housing

6303tax credits by means of an RFP process for certain types of

6315projects . The statute provides:

6320The corporation shall have all the powers

6327necessary or convenient to carry out and

6334effectuate the purposes and provisions of

6340this part, including the following powers

6346which are in addition to all other powers

6354granted by other provisions of this part:

6361* * *

6364(48) To award its annual allocation of

6371low - income housing tax credits, nontaxable

6378reve nue bonds, and State Apartment Incentive

6385Loan Program funds appropriated by the

6391Legislature and available to allocate by

6397request for proposals or other competitive

6403solicitation. The corporation shall reserve

6408up to 5 percent of each allocation for

6416high - pri ority affordable housing projects,

6423such as housing to support economic

6429development and job - creation initiatives,

6435housing for veterans and their families, and

6442other special needs populations in

6447communities throughout the state as

6452determined by the corporati on on an annual

6460basis. The corporation shall reserve an

6466additional 5 percent of each allocation for

6473affordable housing projects that target

6478persons who have a disabling condition, as

6485defined in s. 420.0004, and their families.

6492These allocations must prio ritize projects

6498or initiatives piloting or demonstrating

6503cost - effective best practices that meet the

6511housing needs and preferences of such

6517persons. Any tax credits or funds not

6524allocated because of a lack of eligible

6531projects targeting persons who have a

6537disabling condition shall be distributed by

6543the corporation for high - priority housing

6550projects.

65515 5 . These consolidated competitive solicitation protests

6559are governed by section 120.57(3)(f), which provides as follows:

6568Unless otherwise provided by statute , the

6574burden of proof shall rest with the party

6582protesting the proposed agency action. In a

6589competitive - procurement protest, other than

6595a rejection of all bids, proposals, or

6602replies, the administrative law judge shall

6608conduct a de novo proceeding to dete rmine

6616whether the agency ' s proposed action is

6624contrary to the agency ' s governing statutes,

6632the agency ' s rules or policies, or the

6641solicitation specifications. The standard

6645of proof for such proceedings shall be

6652whether the proposed agency action was

6658clear ly erroneous, contrary to competition,

6664arbitrary, or capricious.

666756. As the party claiming that Florida Housing ' s proposed

6678action does not meet the standards in section 120.57(3)(f),

6687Osprey bears the burden of proof in this proceeding. Dep ' t of

6700Transp. v. J.W.C. Co. , 396 So. 2d 778, 787 (Fla. 1st DCA 1981).

67135 7 . The court in Colbert v. Dep artment of Health ,

6725890 So. 2d 1165, 1166 (Fla. 1st DCA 2004), defined the clearly

6737erroneous standard to mean that " the interpretation will be

6746upheld if the agency ' s co nstruction falls within the permissible

6758range of interpretations. If , however, the agency ' s

6767interpretation conflicts with the plain and ordinary intent of

6776the law, judicial deference need not be given to it. " ( c itations

6789omitted) .

67915 8 . An agency action i s " contrary to competition " if it

6804unreasonably interferes with the purposes of competitive

6811procurement , which has been described in Wester v. Belote ,

6820138 So. 721, 723 - 724 (Fla. 1931), as protecting the public

6832against collusive contracts and securing fair c ompetition upon

6841equal terms to all bidders.

68465 9 . A capricious action has been defined as an action,

" 6858which is taken without thought or reason or irrationally. "

6867Agrico Chem . Co. v. Dep ' t of Env tl. Reg. , 365 So. 2d 759, 763

6884(Fla. 1st DCA 1978). " An arbitra ry decision is one that is not

6897supported by facts or logic[.] " Id. The inquiry to be made in

6909determining whether an agency has acted in an arbitrary or

6919capricious manner involves consideration of " whether the agency:

6927(1) has considered all relevant fact ors; (2) has given actual,

6938good faith consideration to those factors; and (3) has used

6948reason rather than whim to progress from consideration of these

6958factors to its final decision. " Adam Smith Enter . v. Dep ' t of

6972Envt l. Reg . , 553 So. 2d 1260, 1273 (Fla. 1 st DCA 1989). The

6987standard has also been formulated by the court in Dravo Basic

6998Materials Co. v. Dep artment of Transp ortation , 602 So. 2d 632,

7010634 n.3 (Fla. 2d DCA 1992) , as follows: " If an administrative

7021decision is justifiable under any analysis that a reasonable

7030person would use to reach a decision of similar importance, it

7041would seem that the decision is neither arbitrary nor

7050capricious. "

705160 . Although competitive - solicitation protest proceedings

7059are described in section 120.57(3)(f) as de novo, cou rts

7069acknowledge that a different kind of de novo is contemplated than

7080for other substantial - interest proceedings under section 120.57.

7089Competitive - procurement protest hearings are a " form of intra -

7100agency review[,] " in which the object is to evaluate the a ction

7113taken by the agency. State Contracting and Eng ' g Corp. v. Dep ' t

7128of Transp. , 709 So. 2d 607, 609 (Fla. 1st DCA 1998).

71396 1 . Applying these standards to this case, Osprey has not

7151met its burden of proving that Florida Housing ' s decision to

7163award fundin g to Duval Park is clearly erroneous, arbitrary,

7173capricious, or contrary to competition. Osprey failed to

7181demonstrate that Florida Housing ' s intended funding award to

7191Duval Park is contrary to any statute, rule, policy, or RFP

7202specification.

72036 2 . Instead, as found above, the evaluator ' s scoring of the

7217two application sections challenged by Osprey was shown to be a

7228rational, good faith exercise of the evaluator ' s honest judgment,

7239upon consideration of the relevant factors according to the RFP

7249instructions.

72506 3 . Osprey ' s belated PRO argument questioning the use of a

7264s ingle evaluator to review and score the developer and management

7275experience narratives is rejected as beyond the scope of its

7285formal written protest and beyond the scope of the Joint

7295Pr e - h earing Stipulation . If this untimely argument were

7307considered, it would be rejected . Even if Osprey had proven that

7319using two evaluators would provide a better " check and balance "

7329(or if Osprey had proven its original opposite contention that

7339using one evaluato r would be better than using two evaluators),

7350the issue for determination is not whether Florida Housing could

7360have devised a " better " process .

7366RECOMMENDATION

7367Based on the foregoing Findings of Fact and Conclusions of

7377Law, it is RECOMMENDED that Respon dent, Florida Housing Finance

7387Corporation, enter a final order consistent with its initial

7396decision to award funding for the Duval Park, Ltd. , proposed

7406development, and dismissing the formal written protests of Osprey

7415Apartments, LLC , and Duval Park, Ltd.

7421DONE AND ENTERED this 25th day of November , 2013 , in

7431Tallahassee, Leon County, Florida.

7435S

7436ELIZABETH W. MCARTHUR

7439Administrative Law Judge

7442Division of Administrative Hearings

7446The DeSoto Building

74491230 Apalachee Parkway

7452Tall ahassee, Florida 32399 - 3060

7458(850) 488 - 9675

7462Fax Filing (850) 921 - 6847

7468www.doah.state.fl.us

7469Filed with the Clerk of the

7475Division of Administrative Hearings

7479this 25th day of November , 2013 .

7486ENDNOTE S

74881/ All statutory references are to the Florida Statute s (2013).

74992/ Osprey ' s scoring challenge necessarily was focused on

7509attempting to prove that Duval Park was given too many points for

7521these two application sections, not whether Osprey ' s scores

7531should have been higher. Osprey could not have received thre e

7542more points, as its combined score for the two sections was only

7554one point below the maximum available points.

75613/ Osprey also attempted to prove that the developer experience

7571narratives in other applications were not scored by the same

7581standards applie d to scoring Duval Park ' s narrative. According

7592to Osprey ' s PRO, other applications received substantially lower

7602scores than Osprey because their narratives demonstrate d less

7611experience developing permanent supportive housing and that Duval

7619Park ' s narrativ e also should have received fewer points. Osprey

7631did not prove this claim. The only applications in evidence are

7642Osprey ' s and Duval Park ' s; t he developer experience narratives

7655for the other applications were not offered in evidence , as would

7666be necessary to make comparisons . The limited questions of

7676Mr. Aldinger about his scoring of other d eveloper experience

7686narratives established only that Mr. Aldinger gave lower scores

7695for developer experience to two narratives because permanent

7703supportive housing exp erience was not discussed.

77104 / In questioning Mr. Aldinger, Osprey offered its theory that a

7722secret criterion weigh ed against its project because of its

7732location in Miami - Dade County. Osprey failed to prove any secret

7744criterion. Instead, Mr. Aldinger c redibly and reasonably

7752explained that he evaluated the experience narratives in the

7761context required by the RFP instructions, by assessing experience

7770in the context of each application ' s specific proposal. He us ed

7783th e section one detailed descriptions of the focus population ' s

7795characteristics as the foundation for evaluating experience. He

7803looked for experience working in the community with the VA

7813facilities designated for proposed development. He looked for

7821experience working with t he available resource s in the particular

7832community that will be needed for the target population.

7841COPIES FURNISHED:

7843Wellington Meffert, General Counsel

7847Florida Housing Finance Corporation

7851Suite 5000

7853227 North Bronough Street

7857Tallahassee, Florida 32301 - 1329

7862Hugh R. Brown, Esquire

7866Florida Housing Finance Corporation

7870Suite 5000

7872227 North Bronough Street

7876Tallahassee, Florida 32301 - 1329

7881Della Harrell, Corporation Clerk

7885Florida Housing Finance Corporation

7889Suite 5000

7891227 North Bronough Street

7895Tallahassee, Florida 32301 - 1329

7900M ichael P. Donaldson, Esquire

7905Carlton Fields, P.A.

7908215 South Monroe Street, Suite 500

7914Post Office Drawer 190

7918Tallahassee, Florida 32302 - 0190

7923Joseph M. Goldstein, Esquire

7927Shutts and Bowen , LLP

7931Suite 2100

7933200 East Broward Boulevard

7937Fort Lauderdale, Florid a 33301 - 1972

7944NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

7950All parties have the right to submit written exceptions within

79601 0 days from the date of this Recommended Order. Any exceptions

7972to this Recommended Order should be filed with the agency that

7983will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/01/2014
Proceedings: Agency Final Order filed.
PDF:
Date: 12/13/2013
Proceedings: Agency Final Order
PDF:
Date: 12/09/2013
Proceedings: Transmittal letter from Claudia Llado returning Petitioner's Duval Park photo, which was not offered into evidence.
PDF:
Date: 11/25/2013
Proceedings: Recommended Order
PDF:
Date: 11/25/2013
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 11/25/2013
Proceedings: Recommended Order (hearing held October 8, 2013). CASE CLOSED.
PDF:
Date: 11/04/2013
Proceedings: (Proposed) Recommended Order filed.
PDF:
Date: 11/04/2013
Proceedings: Notice of Filing Proposed Recommended Order filed.
PDF:
Date: 11/04/2013
Proceedings: Respondent's Proposed Recommended Order (filed in Case No. 13-002899BID).
PDF:
Date: 11/04/2013
Proceedings: Osprey Apartments, LLC's Proposed Recommended Order (filed in Case No. 13-002899BID).
Date: 10/24/2013
Proceedings: Transcript Volume I-II (not available for viewing) filed.
Date: 10/08/2013
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 10/04/2013
Proceedings: Joint Pre-hearing Stipulation (filed in Case No. 13-002899BID).
PDF:
Date: 08/23/2013
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for October 8 and 9, 2013; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 08/20/2013
Proceedings: Petitioner Osprey Apartments, LLC's First Set of Interrogatories to Respondent, Florida Housing Finance Corporation (filed in Case No. 13-002899BID).
PDF:
Date: 08/20/2013
Proceedings: Petitioner Osprey Apartments, LLC's First Request for Production to Respondent, Florida Housing Finance Corporation (filed in Case No. 13-002899BID).
PDF:
Date: 08/16/2013
Proceedings: Motion to Reschedule Hearing (filed in Case No. 13-002899BID).
PDF:
Date: 08/07/2013
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 08/07/2013
Proceedings: Notice of Hearing (hearing set for October 1 and 2, 2013; 9:30 a.m.; Tallahassee, FL).
Date: 08/06/2013
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 08/06/2013
Proceedings: Order of Consolidation (DOAH Case Nos. 13-2898BID and 13-2899BID).
PDF:
Date: 08/06/2013
Proceedings: Notice of Telephonic Pre-hearing Conference (set for August 6, 2013; 2:00 p.m.).
PDF:
Date: 08/01/2013
Proceedings: Formal Written Protest and Petition for Administrative Hearing filed.
PDF:
Date: 08/01/2013
Proceedings: Agency referral filed.

Case Information

Judge:
ELIZABETH W. MCARTHUR
Date Filed:
08/01/2013
Date Assignment:
08/02/2013
Last Docket Entry:
04/01/2014
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
Suffix:
BID
 

Counsels

Related Florida Statute(s) (4):