16-003099BID National Development Foundation, Inc. vs. Florida Housing Finance Corporation Status: Closed Recommended Order on Monday, July 18, 2016.

Summary: Respondent clearly erred in determining that Petitioner's application was ineligible due to a material deviation; Respondent should waive the minor irregularity or, alternatively, state the grounds for not waiving the minor defect.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATIONAL DEVELOPMENT FOUNDATION,

INC.,

Petitioner,

vs. Case No. 16 - 3099BID

FLORIDA HOUSING FINANCE

CORPORATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van

Laningham for an informal final hearing on June 22 , 201 6 , in

Tallahassee , Florida.

APPEARANCES

For Petitioner: Michael P. Donaldson , Esquire

Carlton Fields Jorden Burt , P.A.

215 South Monroe Street, Suite 500

Tallahassee, Florida 32 30 2

For Respondent: Betty Zachem , Esquire

Eric Sonderling, Esquire

Hugh R. Brown, General Counsel

Florida Housing Finance Corporation

227 North Bronough Street, Suite 5000

Tallahassee , Florida 3 23 0 1

STATEMENT OF THE ISSUES

Th e issues in this protest are, first, whether Respondent

clearly erred i n determin ing that Petitioner's application for

funding , which had failed to include all of the required

financial information concerning its "non - corporation" lender,

was ineligible for consideration due to a material , nonwaivable

deviation from the specifications of the solicitation ; if

Petitioner's application was not, in fact, materially

nonresponsive , then it will be necessary to decide whether

Respondent should exercise its discretion to waive the minor

irregularity in Petitioner's applic ation.

PRELIMINARY STATEMENT

On January 2 2 , 201 6 , Respondent Florida Housing Finance

Corporation issued Request for Applications 201 6 - 1 01 , which

invited developers to compete for funding being made available

through the HOME Investment Partnerships Program, for t he

purpose of facilitating the construction of low - income rental

housing in rural areas.

On May 6 , 2015, Respondent announced its intent to select

five applicants for funding, while simultaneously reject ing

Petitioner's application as nonresponsive and thus ineligible to

be approved for an award . Thereafter, Petitioner timely

notified Respondent of its intent to challenge the rejection of

its application , and on May 2 3 , 201 6 , Petitioner filed a formal

written protest alleging that i ts application i s not materially

nonresponsive, but at worst has a minor irregularity which

Petitioner can and should waive , as Petitioner waived the same

minor irregularity in at least one other contemporaneous

situation .

The case was referred to the Division of Administ rative

Hearings ("DOAH") for a hearing not involving disputed issues of

material fact pursuant to section 120.57(2), Florida Statutes.

T he protest petition was filed on June 6 , 20 1 6 , and three days

later the undersigned set the final hearing for June 22, 2016.

The final hearing took place as scheduled, with both

parties present . The parties stipulated to a number of facts as

set forth in their Joint Pre - h earing Stipulation , and to the

extent relevant these undisputed facts have been incorporated

herein . Joint Exhibits 1 through 10 were admitted into evidence

with the consent of all parties , as were Petitioner's Exhibits 1

through 5 .

No witnesses testified because , as the parties agreed, no

material historical facts are in dispute.

P roposed recommended o rders were d ue on June 30 , 20 1 6 .

Each party timely filed a Proposed Recommended Order, and these

w ere considered during the preparation of this Recommended

Order , as was the final hearing transcript filed on June 30,

2016.

U nless otherwise indicated, ci tations to the official

statute law of the state of Florida refer to Florida Statutes

201 6 .

FINDINGS OF FACT

1. Respondent Florida Housing Finance Corporation ("FHFC")

is a statutorily created, public corporation whose mission is to

dispense financial ass istance intended to create affordable

housing opportunities in the state of Florida .

2. On January 22, 2016 , FHFC issued Request for

Applications 2016 - 101 ( the " RFA"), whose full title ÏÏ " H ome

Financing to Be Used for Rental Developments in Rural Areas " ÏÏ

generally describes the developments for which FHFC expects to

lend approximately $15 million available through the HOME

I nvestment Partnerships Program . The loans are to be made on a

competitive basis to selected applicants proposing to construct

affo rdable housing in accordance with the specifications of the

RFA, FHFC's generally applicable standards, and all other

governing laws. Applications were due on February 25, 2016.

3. Applicants were required to submit a completed and

executed a pplication , together with all applicable at tachments.

One part of the a pplication, which is relevant to the instant

dispute, comprised a multi page Development Cost Pro Forma ("Pro

Forma") . To complete the Pro Forma, applicants needed to

itemize their projected development costs and disclose the

sources and amounts of their anticipating funding , the total of

which was supposed to equal or exceed expected costs .

4. The RFA divided lenders into two mutually exclusive

classes: (a) Regulated Mort gage Lenders, a category which

consist s essentially of standard banks and credit unions whose

operations are overseen by state or federal agencies that

regulate financial institutions ; and (b) all other lenders,

referred to in the RFA as "Non - Corporation" sources. If an

applicant chose to rely upon Non - Corporation funding for its

project, then it was required under the RFA to provide evidence

of the le nder's ability to fund the loan, including the lender's

financial statements. The failure to submit sufficient evidence

of a Non - Corporation lender's wherewithal to finance the project

constituted grounds for FHFC not to count that lender as a

funding source, which might create a f u nding shortfall that

would render the applicant ine ligible .

5. FHFC received nine applications in response to the RFA,

including that of Petitioner National Development Foundation,

Inc. ("NDF") , an Oviedo - based, Florida corporation that builds

affordable housing. In accordance with the RFA, FHFC selec ted a

review committee to evaluate, score , and rank the nine

applications.

6. NDF proposed to obtain a first mortgage loan from

Neighborhood Lending Partners, Inc. ("NLPI") , to provide both

construction and permanent financing for a 30 - unit apartment

co mplex to be developed in Macclenny, Florida. NLPI is a m ulti -

bank lending consortium that provides financing to developers of

affordable housing. Although NLPI is not a Regulated Mortgage

Lender, its member banks are in that category. Nevertheless, it

is undisputed that NLPI is a Non - Corporation lender for purposes

of the RFA under consideration. Consequently, NDF was required

to submit evidence of NLPI's ability to fund the mortgage loan.

7. NDF provided a detailed Term Sheet from NLPI, which

described the proposed financing. NDF did not, however, provide

NLPI's financial statements with its application . There is no

dispute that NDF's application did not strictly conform to the

RFA's specifications in this regard. As will be seen, t he most

hotly contested issue here is whether this deficiency

constitutes a nonwaivable material deviation or, rather, a minor

irregularity which could be waived at FHFC's discretion.

8. FHFC's review committee determined that , beca use NLP I

did not meet the definition of a Regulated Mortgage Lender , and

because NDF had failed to provide the necessary evidence of

NLPI's ability to fund, NDF's proposed Non - Corporation funding

should not be counted , which effectively removed essential f irst

mortgage financing from NDF's Pro Forma, creating a

disqualifying funding shortfall for the applicant . As a result,

t he committee deemed NDF's application ineligible for lack of

financing.

9. At its meeting on May 6, 2016, FHFC's Board of

Directors (the "Board") , as urged by its staff, approved the

review committee's recommendations with regard to the

distribution of funds being allocated under the RFA , including

the recommendation to reject NDF's application as ineligible to

receive funding . No di scussion was had concerning the relative

materiality of NDF's failure to provide evidence of NLPI's

ability to fund . T he Board 's action, however, strongly implies

that it believed the defect was a nonwaivable material

deviation , which is how, in this proc eeding, FHFC currently

characterizes the deficiency .

10. The question of w hether the Board clearly erred in

determining that NDF's application was materially nonresponsive

is made more complicated by the undisputed fact that, during the

meeting on May 6 at which NDF's application was rejected , the

Board vot ed to award funds being made available under a separate

program to an applicant (Grove Pointe) whose application had the

very same deficiency as NDF's. The material facts of that case ,

in brief, are t hat Grove Pointe applied under RFA 2016 - 104 (the

"SAIL RFA") for State Apartment Incentive Loan funding . Grove

Pointe was the only applicant. The SAIL RFA required

documentation of a Non - Corporation lender's ability to finance,

just as did the RFA in thi s case. Like NDF, Grove Pointe

submitted a mortgage loan proposal from NLPI, but failed to

provide the consortium's financial statements. The review

committee accordingly declined to count the funds Grove Pointe

expected to borrow from NLPI , thereby creating a funding

shortfall which , in the committee's view, rendered Grove Pointe

ineligible for an award. In short, Grove Pointe and NDF ended

up in the same situation, for the same reason, after the

respective review committees had completed their assigned tasks.

11. At the Board meeting, however, the two similarly

situated applicants' fortunes diverged, as staff recommended

that the Board offer funding to Grove Pointe on the condition

that , within 21 days after the meeting, Grove Pointe cure the

deficiency in its application by submitting acceptable evidence

of NLPI 's ability to provide financing. The Board adopted this

recommendation , tacitly waiving the irregularity in Grove

Pointe's application (the " Grove Pointe Decision").

12. The rat ionale for the Grove Pointe Decision is not

entirely clear. When a variance exists between the response to

a competitive solicitation and the specifications of the

request, the agency must, as a threshold matter, determine

whether the variance is a "material deviation" or a "minor

irregularity." This is because a material deviation cannot be

waived ; a response suffering from a material deviation is

fatally flawed and must be rejected . If the agency determines,

as a matter of ultimate fact, that the deviation is material,

therefore, the inquiry is over. If, however, the agency

determines that the deviation is not material, but rather is

merely a minor irregularity, then it must make another decision ,

namely whether to waive the minor irregularity, w hich requires

the exercise of discretion. In making the Grove Pointe

Decision, the Board did not explicitly decide the threshold

question , and even here, in this proceeding, FHFC has not

plainly taken an unequivocal position as to whether , in its

view, Gr ove Pointe's failure to provide NLPI's financial

statements was a material deviation or a minor irregularity .

13. Careful examination of t he Grove Pointe Decision is

necessary to assess the strength of NDF's position, which relies

heavily upon that "precedent . " That is, NDF argues that

considerations of consistency and fairness (sometimes called

administrative stare decisis) require FHFC to follow the Grove

Pointe Decision , which NDF believes is on all fours , in

determining NDF's substantial interes ts . Simply put, it is

NDF's contention that FHFC, having approved Grove Pointe's

identically defective application, must l ikewise approve NDF for

funding. For its part, FHFC argues that the Grove Pointe

Decision is distinguishable and hence inapposite. ( Notably,

FHFC does not suggest that the decision to fund Grove Pointe was

incorrect and should be disregarded for that reason.) Because

the parties disagree as to what the Board "held" in the other

case , it is important to ascertain the reasoning behind the

Grove Pointe Decision.

14. The record shows that the Grove Pointe Decision was

taken on three grounds ÏÏ although one was arguably something of

an afterthought , and the others are really two sides of the same

coin. The interrelated reasons boil down to the fact that

because Grove Pointe was the sole applicant, FHFC could fund

Grove Pointe , despite its ineligibility, without having to deny

any other applicant 's request for funding . Grove Pointe's win,

in other words, was not someone else's loss ÏÏ not, at least ,

someo n e iden t ifiable. Th e absence of other applicants led FHFC

to conclude that awarding funding to Grove Pointe would not give

the developer a "competitive advantage" over other applicants .

Thus, one basis for the Grove Pointe Decision was the supposed

lack of a competitive advantage.

15. Th at there was more funding available than could be

awarded to all the applicants ÏÏ or to the one applicant, as it

happened ÏÏ also prompted FHFC to invoke the "Returned Allocation

provision" in the SAIL RFA, which stated as follows:

Funding that becomes available after the

Board takes action on the Committee's

recommendations, due to an Applicant

withdrawing its Application, an Applicant

declining its Invit ation to enter credit

underwriting, or an Applicant's inability to

satisfy a requirement outlined in this RFA,

will be distributed as approved by the

Board.

Putting aside whether this language actually applies under the

circumstances facing FHFC at the tim e, the reasons for t he

agency's reliance on the Returned Allocation provision focused,

again, on the fact that Grove Pointe was the only applicant,

which meant that there was lots of leftover money to distribute,

and no one to complain if Grove Pointe received funding, so FHFC

might as well get the deal done with the applicant it had ,

notwithstanding Grove Pointe's apparent ineligib i lity.

16. The no competitive advantage/ unallocated balance

grounds can be summed up as the "no harm, no foul" rationale ,

which , ultimately, provided the principal justification for the

Grove Pointe Decision . Notice, however, that this rule applies

equal ly to the waiver of any variance, whether a material

deviation or a minor irregularity , for the determinative factor

is no t the significance of the variance, but rather on how its

waiver actually ÏÏ i.e., not in theory , but in fact ÏÏ would a ffect

competitors . 1 / As mentioned, FHFC has never clearly articulated

its determination regarding the materiality of the Grove Pointe

application's deficiency , leaving open two possibili ties:

(a) FHFC believes it has the authority to waive a material

deviation where doing so results in "no harm"; or (b) FHFC

believes that a variance which, if waived, would result i n "no

harm" is, for that reason, a minor irregularity that, in the

exercise of sound discretion, should be waived. Either of

these, therefore, could be considered the rule of the Grove

Pointe Decision.

17. The third basis for funding Grove Pointe, which the

Board considered but arguably did not view as essential , was

FHFC's favorable experience with NLPI, whose ability to provide

financing had been proven in past projects , and whose financial

statements FHFC had reviewed with in the preceding 17 months.

FHFC , in other words, was already familiar with the fac t of

NLPI's fiscal health despite Grove Pointe and NDF 's fail ure to

provide evidence thereof . NDF interprets the Grove Pointe

Decision as standing for the proposition that the fail ure to

provide finan cial statements for NLPI is a minor irregularity

that should be waived because FHFC knows from experience that

NLPI is able to fund mortgage loans.

CONCLUSIONS OF LAW

18 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to sections 120.569, 120.57( 2 ), and

120.57(3), Florida Statutes. See also Fla. Admin. Code

R. 67 - 60.009. Pursuant to a contract between DOAH and FHFC,

administrative law judges serve as informal hearing officers in

matters, such as this, not involving dispu ted issues of material

fact.

19. NDF's substantial interests are being determined in

this proceeding, and therefore it has standing to maintain a

protest .

2 0 . Section 120.57(3)(f) spells out the rules of decision

applicable in bid protests. In pertine nt part, the statute

provides:

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.

21 . The undersigned has discussed elsewhere, at length ,

the meaning of this statutory language, the analytical framework

established thereby, and the levels of deference to be afforded

to the agency's preliminary findings and conclusions. See,

e.g. , Care Access PSN, LLC v. Ag. for Health Care Admin. ,

Case No. 13 - 4113BID, 2014 Fla. Div. Adm. Hear. LEXIS 3, 41 - 55

(Fla. DOAH Jan. 2, 2014) . It is not necessary to review these

principles here.

22 . As for whether NDF's application is fatally

nonresponsive , it has long been recognized that "although a bid

containing a material variance is unacceptable, not every

deviation from the invitation to bid is material. [A deviation]

is material if it gives the bidder a substantial advantage over

the other bidders and thereby restricts or stifles competition."

Tropabest Foods, Inc. v. Dep't of Gen. Servs. , 493 So. 2d 50, 52

(Fla. 1st DCA 1986). "The test for measuring whether a

deviation in a bid is sufficiently material to destroy its

competitive character is whether the variation affects the

amount of the bid by giving the bidder an advantage or benefit

not enjoyed by other bidders." Harry Pepper & Assocs., Inc. v.

City of Cape Coral , 352 So. 2d 1190, 1193 (Fla. 2d DCA 1977).

23 . In addition to the foregoing rule s, courts have

considered the following criteria in determining whether a

variance is material and hence nonwaivable:

[F]irst, whether the effect of a waiver

would be to deprive the municipality of its

assurance that the contract will be entered

into, perf ormed and guaranteed according 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

underminin g the necessary common standard of

competition.

[S]ometimes it is said that a bid may be

rejected or disregarded if there is a

material variance between the bid and the

advertisement. A minor variance, however,

will not invalidate the bid. In this

conte xt a variance is material if it gives

the bidder a substantial advantage over the

other bidders, and thereby restricts or

stifles competition.

Robinson Elec. Co. v. Dade Cnty. , 417 So. 2d 1032, 1034 (Fla. 3d

DCA 1982), quoting 10 McQuillan, Municipal Corpo rations § 29.65

(3d ed. rev. 1981)(footnotes omitted).

24 . With these principles in mind, the undersigned rejects

as untenable the notion that the Grove Pointe Decision is

precedent for waiving a material deviation , for FHFC is not

legally authorized to do that ; such an action would be a clear

abuse of discretion . 2 / The undersigned concludes, ins tead, that

FHCF must have determined that the deficiency in Grove Pointe's

application was a minor irregularity, which could be waived.

25 . The question of whether FHFC correctly deemed Grove

Pointe's deficiency a minor irregularity is a close one. Of

course, the undersigned is not reviewing the Grove Pointe

Decision, nor is he (or FHFC) bound to follow it, but NDF makes

a valid point about a dministrative stare decisis, which counsels

in favor of consistent results is comparable cases. See, e.g. ,

Gessler v. Dep't of Bus. & Prof'l Reg. , 627 So. 2d 501, 504

(Fla. 4th D CA 1993) ( "While it is apparent that agencies, with

their significant policy - making roles, may not be bound to

follow prior decisions to the extent that the courts are bound

by precedent, it is nevertheless apparent the legislature

intends there be a principle of administrative stare decisis in

Florida." ); Bethesda Healthcar e Sys. v. Ag. for Health Care

Admin. , 945 So. 2d 574, 576 (Fla. 4th D CA 2006)(" Gessler . . .

applies 'the fundamental principle that like cases should be

treated alike.'"). Th e undersigned would urge FHFC to follow

its analogous orders for the sake of con sistency , unless and to

the extent he finds them to be erroneous . So, it is necessary

to consider the soundness of the Grove Pointe Decision.

26 . If the undersigned had been called upon to make a de

novo determination as to whether Grove Pointe's appli cation

should be rejected, he might have reached a different conclusion

tha n FHFC , because specifications that have the capacity to act

as a barrier to access into the competition , as the requirement

of providing evidence of a Non - Corporation lender's fina ncial

strength arguably did, should generally be considered material

and nonwaivable . See Phil's Expert Tree Serv., Inc . v. Broward

Cnty. Sch. Bd. , Case No. 06 - 4499BID, 2007 Fla. Div. Adm. Hear.

LEXIS 161 , 35 (Fla. DOAH Mar. 19, 2007; BCSB May 8, 2007). FHFC

defends t he decision to waive Grove Pointe's failure to submit

evidence of ability to fund by invoking the no - harm rule , which

though pragmatic overlooks the "forgotten developer " who would

have applied but for the requirement to provide financial

sta tements for a Non - Corporation lender .

27 . The problem with the no - harm rule is that it undu ly

emphasizes the visible effects on known competitors , when the

primary concern should be with whether waiv ing a deviation would

adversely affect the integrity of the competition ÏÏ the latter

being a concept or value that exits apart from the competitors

themselves . The competition starts when the solicitation is

published, not when the responses are received , so the number of

responses , even if only one, should have no effect on the

competitive characte r of the selection process , whose integrity

depends on the uniform and consistent application of previously

established, neutral criteria for determining the outcome . The

specificatio ns of the solicitation , announ ced at the outset, are

effectively rules of the competition, forming the "common

standard" to which all would - be participants must conform, and a

rule should not be waived if doing so would fundamentally change

the contest under way , even when no competitor would have cause

to complain about such wa i ver, whether because there are no

other competitors or because the number of available awards

equals or exceeds the number of competitors .

28 . By focusing on the wrong consequences, the no - harm

rule is, ironically, b oth overinclusive and underinclusive. It

is overinclusiv e because in non - zero - sum situations , such as

that which arose from the SAIL RFA, any deviation could

conceivably be deemed immaterial and then waived , consistent

wit h the agency's r isk tolerance. It is underinclusive because

in zero - sum situations, the waiver of any deficiency, however

minor, which allows the beneficiary of the waiver to win (that

is, any meaningful waiver) necessarily harms the strictly

compliant competitor who would have won the award if the

noncompliant party were disqualified. Since zero - sum contests

are more common in the procurement context than non - zero - sum

situations, consistent application of the no - harm rule likely

would (or sho uld) result in more deviations being found material

than before , including even relatively trivial irregularities

that otherwise would have been considered minor.

29 . Consequently, the undersigned rejects the no - harm rule

as inconsistent with generally applicable procurement law.

30 . That leaves, as a basis for justifying the treatment

of the Grove Pointe deficiency as a minor irregularity, FHFC's

favorable experience with NLPI, which gave the agency assurance

that NLPI ÏÏ and hence Grove Pointe ÏÏ would probably be able to

perform as promised and develop housing as described in the SAIL

RFA. Reliance on matters extrinsic to a competitive response is

suboptimal, an expedient to which re sort should be sparing,

preferably limited to facts which are beyond reasonable dispute

and outside of the applicant's or bidder's control . Whether

NLPI's fiscal health is beyond genuine dispute is ,

unfortunately, a question which the undersigned cannot answer

independently based on the evidence of record .

31 . T he under signed strongly prefers not to conclude that

the Grove Pointe Decision was incorrect, however, given that

neither party takes such a position . The refore, because the

Grove Pointe Decision , as it relates to the nonmaterial nature

of the Grove Pointe applic ation's deficiency, can be regarded as

correct if FHFC's knowledge of NLPI's ability to fund is deemed

a sufficient substitute for the evidence that Grove Pointe (and

NDF) failed to provide with their respective applications , the

undersigned concludes that FHFC properly deemed the Grove Pointe

application's nonconformity a waivable minor irregularity.

32 . On this point, the Grove Pointe Decision is

indistinguishable from the instant case, as NDF's application is

identically nonconforming. Logically, NLPI cannot

simultaneously be both financially sound (Grove Pointe) and

financially suspect (NDF). Thus, what was a minor irregularity

in the other case must be the same here. FHFC's determination

to the contrary ÏÏ namely that the NDF is ineligible due to a

material deviation in its application ( i.e., the omission of

proof of NLPI's ability to fund) ÏÏ wa s clearly erroneous.

33 . It is concluded, on the authority of the Grove Pointe

Decision, that the NDF application's nonconformity is an

immaterial, waivable defect.

34 . The posture of this matter before FHFC was such that

the agency never exercised its discretion to waive , or not to

waive, the minor irregularity in NDF's applicat ion. The

undersigned is not prepared to say that the Grove Pointe

Decision compels FHFC to waive the minor irregularity in this

case, for there are distinguishing factors , the main one being

that the situation here is , apparently, a zero - sum game , where

N DF's win would be another applicant's loss .

35 . The undersigned does not believe that , as a general

principle, minor irregularities should be waived only in non -

zero - sum situations . It must be conceded, however, that

following such a rule probably would not be arbitrary or

capricious. As well, the undersigned recognizes that FHFC is in

a better position tha n he to determine w hether minor

irregularit ies generally should not be waived if doing so would

negatively affect competitor s whose application s are fully

responsive. Thus, while the undersigned concludes that , as FHFC

dealt with Grove Pointe, so too should it deal with NDF, his

recommendation to accept NDF as an eligible applicant must be

qualified to account for FHFC's discretionary authority as it

relates to this issue .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Housing Finance

Corporation enter a f inal o rder (i) determining that NDF's

failure to include with its application evi dence of NLPI's

ability to lend funds to NDF constitutes a minor irregularity

and (ii) waiving the minor irregularity on the condition that

NDF supply the missing information within 21 days after the

entry of the f inal o rder ; or, alternatively, stating the facts

and circumstances upon which its discretionary decision not to

waive the minor irregularity has been based, so that the outcome

will not appear to be arbitrary or capricious, and also to

enable a reviewing court to determine whether or not the

agenc y's discretion was abused .

DONE AND ENTERED this 18th day of July , 201 6 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of July , 201 6 .

ENDNOTES

1 / Grove Pointe, as said, was the only applicant for the funding

offered under the SAIL RFA, but the no - harm rule works just as

well whenever the number of applicants is less than or equal to

the number of possible awards, because in such non - zero - sum

situations making a winner out of a nonresponsive applicant does

not make any other competitor a loser. So, for example, if two

eligible applicants had been in competition with Grove Pointe

and there were sufficient monies ava ilable to fund all three,

then waiving the deficiency in Grove Pointe's application would

not take anything from the other applicants and therefore,

presumably, would be justified under the no - harm rule.

2 / While the undersigned has doubts about the applicability of

the Returned Allocation provision to the Grove Pointe situation,

he is certain that the provision ÏÏ which says nothing about

waiving deficiencies ÏÏ cannot be relied upon as authority for

waiving a material deviation.

COPIES FURNISHED :

Michael P. Donaldson, Esquire

Carlton Fields Jorden Burt, P.A.

215 South Monroe Street, Suite 500

Tallahassee, Florida 32302

(eServed)

Betty Zachem, Esquire

Eric Sonderling, Esquire

Hugh R. Brown, General Counsel

Florida Housing Finance Corporation

227 N orth Bronough Street, Suite 5000

Tallahassee, Florida 32301

(eServed)

Kate Flemming, Corporation Clerk

Florida Housing Finance Corporation

227 North Bronough Street, Suite 5000

Tallahassee, Florida 32301

(eServed)

NOTICE OF RIGHT TO FILE OBJECTIONS

All parties have the right to submit written objections within

5 days from the date of this Recommended Order. Any objections

to this Recommended Order should be filed with the agency that

will issue the f inal o rder in this case and shall be filed and

ser ved exclusively by email .