16-004947BID Nader + Museu I Limited Liability Limited Partnership, A Florida Limited Partnership vs. Miami Dade College, An Agency Of The State Of Florida Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, September 16, 2016.

MIAMI DADE COLLEGE 20i6 NOV -4 AM II: 07

DISTRICT BOARD OF TRUSTEES

NADERㅄ I LIMITED

LIABILITY LIMITED PARTNERSHIP ' A

FLORIDA LIMITED PARTNERSHIP

Petitioner,

vs. AGENCY CASE NO.: 2016-02

DOAH CASE NO.: 16-4947BID

MIAMI DADE COLLEGE, AN AGENCY OF

THE STATE OF FLORIDA,

Respondent

and

PRH INVESTMENTS, LLC/TI-IE RELATED

GROUP

Intervenor.

FINAL ORDER

On September 20, 2016, Administrative Law Judge ("ALJ"), Robert L. Kilbride, of the

Division of Administrative Hearings ("DOAH") submitted an Amended Recommended Order of

Dismissal concerning the Formal Bid Protest filed by Nader㋫ I LLLP ("Petitioner"). A copy

of the Amended Recommended Order is attached hereto as Exhibit A. Miami Dade College

("MDC") filed Exceptions to the Amended Recommended Order, which is attached hereto as

Exhibit B. On October 10, 2016, Petitioner filed its Responses to MDC's Exceptions, which is

attached hereto as Exhibit C.

This matter came before the District Board of Trustees of Miami Dade College ("Board")

on October 17, 2016, for final agency action to consider the Amended Recommended Order and

P3ge 12

resolution ofMDC's Exceptions and Responses filed by Petitioner. The Board has jurisdiction and

has authorized the Board Chair and the Secretary to the Board and College President to execute

this Final Order. After review of the entire record, the Amended Recommended Order, MDC's

Exceptions, and Petitioner's Responses, and being otherwise fully advised in these proceedings,

this Final Order is issued.

PROCEDURAL BACKGROUND

In May 2015, Petitioner submitted an unsolicited proposal to MDC for a public-private

patinership relating to the redevelopment of a parcel ofland located on MDC's Wolfson

Campus in Miami, Florida. The proposal contemplated a cultural arts center, conference center,

theatre, art museum, parking garage and residential towers. In October 2015, MDC accepted

Petitioner's proposal and subsequently initiated a competitive solicitation process. In total, four

separate proposals were received by various companies, including Petitioner, PRH Investments,

LLC/The Related Group ("Related"), Gregg Covin Development/Oppenheim Architecture

("Covin"), and Pi Art Tech and Trade Center at MDC, LLC ("Pi Art"). On March 28, 2016, the

Evaluation Committee held a public meeting, during which the Committee considered and ranked

the four proposals. On April 4, 2016, MDC published a Notice of Intended Decision ("First

Intended Decision"), which eliminated Pi Art from consideration. On April 19, 2016, the Board

authorized MDC to negotiate with the three remaining proposers, but also specified that

negotiations should be undertaken simultaneously in an effort to obtain the best value for MDC.

The remaining proposers were invited to submit an enhanced proposal containing each proposer's

best offer.

On July 12, 2016, the Evaluation Committee held another public meeting, during which

the Committee reviewed and ranked the three proposers in the following order: (1) Related with

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470 points, (2) Petitioner with 425 points, and (3) Covin with 355 points. On July 19, 2016, MDC

published another Notice oflntended Decision ("Second Intended Decision"), recommending that

the Board authorize MDC to negotiate a comprehensive agreement with Related. In response,

Petitioner filed a Notice ofProtest of the Second Intended Decision, as well as a Fonnal Petition.

On August 25, 2016, MDC referred the matter to the DOAH, which assigned an ALJ to

resolve the alleged bid protest. By subsequent order, Related was granted leave to intervene. On

September 20, 2016, the ALJ entered an Amended Recommended Order of Dismissal of

Petitioner's Formal Bid Protest concluding that the referral of the case to DOAH was premature

as the Second Intended Decision did not constitute a cognizable "intended decision" as

contemplated by Rule 28-110.002(2), Florida Administrative Code, or Section 120.57(3)(b),

Florida Statutes.

In response to the Amended Recommended Order, MDC filed Exceptions thereto and is

challenging the AU's findings of fact and conclusions of law. On October IO, 2016, Petitioner

timely filed its Responses to MDC's Exceptions. On October 17, 2016, the Board held a hearing

to resolve MDC's Exceptions and ultimately decide whether the Amended Recommended Order

would be adopted in whole or in part.

STANDARD OF REVIEW

Section 120.57(3 )(f), Florida Statutes, defines the burden of proof necessary in successfully

protesting an invitation to negotiate procurement:

[T]he burden of proof shall rest with the party protesting the

proposed agency action. In a competitive-procurement protests, ..

. 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

solicitation specifications. The standard of proof for such

proceedings shall be whether the proposed agency action was

clearly erroneous, contrary to competition, arbitrary, or capricious.

Page 14

§ 120.57(3)(f), Fla. Stat.

Further, the standard of review of the agency's proposed action in such a proceeding has

been described as follows:

[A] public body has wide discretion in the bidding process and its

decision, when based on an honest exercise of the discretion, should

not be ovetiurned even if it may appear erroneous and even if

reasonable persons may disagree. The hearing officer's sole

responsibility is to ascertain whether the agency acted fraudulently,

arbitrarily, illegally, or dishonestly.

Emerald Correctional Management v. Bay Counfy Bd (?f County Comm 'rs, 955 So. 2d 647, 651

(Fla. 1st DCA 2007); Scientific Games, Inc. v. Dittler Bros., Inc., 586 So. 2d 1128, 1131 (Fla. 1st

DCA 1991 )(per curiam)( citations and quotations marks omitted).

As to the exceptions filed concerning the findings of fact, Section 120.57( 1 )(I), Florida

Statutes, prescribes that an agency reviewing a recommended order may not reject or modify the

AU's findings of fact "unless the agency first determines from a review of the entire record, and

state with particularity in the order, that the findings of fact were not based on competent

substantial evidence. § 120.57(1)(1), Fla. Stat.; Charlolfe Cty. v. fMC Phosphates Co., 18 So. 3d

1089, 1092 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm 'n, 955 So. 2d 61, 62-63 (Fla. 1st

DCA 2007). In addition, Section 120.57(1 )(k), Florida Statutes, provides that "an agency need not

rule on an exception that does not clearly identify the disputed portion of the recommended order

by page number or paragraph, that not does identify the legal basis for the exception, or that does

not include appropriate and specific citations to the record."

A reviewing agency may not reweigh the evidence presented at a DOAH final hearing,

attempt to resolve conflicts therein, orjudge the credibility of witnesses. Rogers v. Dep 'f of Health,

920 So. 2d 27, 30 (Fla. 1st DCA 2006); Belleau v. Dep 't of Envtl. Prot., 695 So. 2d 1305, 1307

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(Fla. I st DCA 1997); Dunham v. Highlands Cty. Sch. Bd., 652 So. 2d 894, 896 (Fla. 2d DCA

1995). If there is competent substantial evidence to support an ALJ's findings of fact, it is

irrelevant that there may also be competent substantial evidence supporting a contrary finding.

A rand Construction Co. v. Dyer, 592 So. 2d 276, 280 (Fla. 1st DCA 1991 ); Conshor, Inc. v.

Roberts, 498 So. 2d 622, 623 (Fla. 1st DCA 1986); Walker v. Bd. of Prof'! Eng 'rs, 946 So. 2d 604,

605 (Fla. lst DCA 2006). Following such a determination, the agency also lacks the authority to

make independent or supplemental findings of fact. See, e.g., City of North Port, Fla. v. Consol.

Minerals, Inc., 645 So. 2d 485,487 (Fla. 2d DCA 1994).

Section 120.57(1 )(l), Florida Statutes, also authorizes an agency to reject or modify an

ALJ's conclusion oflaw and interpretations of administrative rules "over which it has substantive

jurisdiction." Bm:field v. Dep't Health, 805 So. 2d 1008 (Fla. lst DCA 2001); LB. Bryan &

Co. v. Sch. Bd. of Broward Cry., 746 So. 2d 1194 (Fla. 1st DCA 1999); Deep Lagoon Boat Club,

Ltd. v. Sheridan, 784 So. 2d 1140 (Fla. 2d DCA 2001 ). Considerable deference should be accorded

to these agency interpretations of statutes and rules within their regulatory jurisdiction, and such

agency interpretations should not be overturned unless "clearly erroneous." Falk v. Beard, 614

So. 2d 1086, 1089 (Fla. 1993); Dep't ofEnvtl. Regulation v. Goldring, 477 So. 2d 532,534 (Fla.

1985). Agency interpretations of statutes and rules within their regulatory jurisdiction do not have

to be the only reasonable interpretations. It is enough if such interpretations are "permissible."

Suddath Van Lines, Inc. v. Dep 't (?f Entl. Prot., 668 So. 2d 209,212 (Fla. 1st DCA 1996). Lastly,

the agency must state with particularity its reasons for rejecting or modifying such conclusion of

law or interpretation of administrative rule and must make a finding that its substituted conclusion

of law or interpretation of administrative rule is as, or more reasonable than, that which was

rejected or modified. § 120.57( 1 )(l), Fla. Stat.; Games, inc., 586 So. 2d at 1131.

Page 16

RULING ON EXCEPTIONS

The Board's resolution is based on the written arguments of counsel, review of the entire

record as properly filed by MDC, and the analysis provided to the Board by its counsel, as set fotth

expressly below.

Ruling on MDC's Exception No.1

As to MDCs Exception No. 1, which contests in part Conclusion of Law Paragraph 19,

the Board hereby grants the exception in part. MDC's Procedures 1010 and 1011 clearly indicate

that the College President provides a recommendation to the Board as to which proposer MDC

should first begin to negotiate a comprehensive agreement with.

As the Board has substantive jurisdiction over its procedures, including the bid process to

authorize negotiations for a comprehensive agreement with a proposer as appropriate, it is

permitted to modify the AU's Conclusion of Law. Moreover, the Board finds that its substitute

Conclusion of Law is as or more reasonable than the AU's Conclusion of Law. § 120.57(1)(1),

Fla. Stat.; G.E.L. Cmp. v. Dep't oJEnvtl. Prot., 875 So. 2d 1257, (Fla. 5th DCA 2004);

Deep Lagoon Boat Club, Ltd, 784 So. 2d 1140; Bcufreld, 805 So. 2d 1008; L.B. B1yan & Co., 746

So. 2d 1194; Scienr(fic Games, inc., 586 So. 2d at 1131. Therefore, based upon the foregoing,

Conclusion of Law Paragraph 19, second sentence, will be modified in part to read as follows:

In essence, the Evaluation Committee would make a recommendation to the

College President and the College President would make a recommendation to the

Board of Trustees for the authority to negotiate a comprehensive agreement with

the first candidate PRH, followed by similar negotiations with other proposers if

necessary.

Ruling on MDC's Exception No. 2

As to MDC's Exception No.2, which contests in part Conclusion of Law Paragraph 20,

The Board hereby grants the exception in part. MDC' s Procedures l 010 and 1 011 clearly indicate

Page f7

that the College President provides a recommendation to the Board as to with which proposer

MDC should first begin to negotiate a comprehensive agreement. In addition, as Pi Art was

eliminated from consideration after the issuance of the First Intended Decision, the negotiation

process could only potentially be repeated twice rather than three times if the negotiations with

Related proved unfruitful.

As the Board has substantive jurisdiction over its procedures, including the bid process to

authorize negotiations for a comprehensive agreement with a proposer as appropriate, it is

permitted to modify the ALl's Conclusion of Law. Moreover, the Board finds that its substitute

Conclusion of Law is as or more reasonable than the AU's Conclusion of Law. § 120.57(1)(1),

Fla. Stat.; G.E.L. CmJJ., 875 So. 2d at 1263-64; Deep Lagoon Boat Club, Ltd, 784 So. 2d 1140;

Barfield, 805 So. 2d 1 008; L.B. B1J'an & Co., 746 So. 2d 1194; Scientific Games, Inc., 586 So. 2d

at 1131. Therefore, based upon the foregoing, Conclusion of Law Paragraph 20, second and third

sentences, will be modified in part to read as follows:

For instance, the Second Intended Decision issued contemplated that the College

President would present a recommendation to the Board of Trustees, to negotiate

with PRH first, and then would enter into a detailed comprehensive agreement with

PRH. However, if a suitable agreement was not reached with PRH, the College

would then move on to the next proposer to repeat the process all over again,

potentially two times.

Ruling on MDC's Exceptions Nos. 3 and 4

As to MDC's Exceptions Nos. 3 and 4, which contest Conclusions of Law Paragraphs 22

and 27 respectively, the Board hereby denies the exceptions. As previously stated, an agency has

the authority to reject or modify an AU's conclusion of law or interpretations of administrative

rules over which the agency has substantive jurisdiction. § 120.57(1)(1), Fla. Stat.; G.E.L. Cmp.,

875 So. 2d at 1263-64. If the agency indeed possesses jurisdiction, an agency must also state with

particularity the reasons for a rejection or modification, and must also show that the substitute

Page 18

conclusion of law is at least as reasonable as the AU's conclusion of law. /d.; Scientific Games,

Inc., 586 So. 2d at 1131. Section 120.5 7( I )(k), Florida Statutes, provides that "an agency need not

rule on an exception that does not clearly identify the disputed portion of the recommended order

by page number or paragraph, that does not identify the legal basis for the exception, or that does

not include appropriate and specific citations to the record."

In this case, MDC has failed to provide the Board with a sufficient legal basis for rejecting

or modifying the ALJ's conclusions of law. Specifically, MDC's Exceptions are devoid of any

legal argument, and merely cite to a portion of the Second Intended Decision. Further, MDC has

not proffered any argument or evidence as to the why language cited to within the Second Intended

Decision is at least as reasonable as the AU's conclusion of law. Thus, MDC's Exceptions Nos.

3 and 4 are denied. See§ 120.57(l)(k), Fla. Stat.; Fla. Admin. CodeR. 28-106.217(1) (2013); see

also Pellet v. Fla. Dept. of Fin. Serv., Case No. 11-4054 (DOAH Aug. 23, 2012) (rejecting

Respondent's exception for failure to state a legal basis for the exception); Centwylink Pub.

Communications, Inc. v. Dept. ofCorrections, Case. No. 14-2828BID (DOAH Oct. 6, 2014).

Ruling on MDC's Exception No. 5

As to MDC's Exception No.5, which contests in part Conclusion of Law Paragraph 31,

the Board hereby grants the exception in part MDC's Procedures 1010 and 1011 clearly indicate

that the College President provides a recommendation to the Board as to with which proposer

MDC should first begin to negotiate a comprehensive agreement.

As the Board has substantive jurisdiction over its procedures, including the bid process to

authorize negotiations for a comprehensive agreement with a proposer as appropriate, it is

permitted to modify the ALJ's Conclusion of Law. Moreover, the Board finds that its substitute

Conclusion of Law is as or more reasonable than the ALJ's Conclusion of Law. § 120.57(1)(1),

Page 19

Fla. Stat; G.E.L. Corp., 875 So. 2d at 1263-64; Deep Lagoon Boat Club, Ltd., 784 So. 2d 1140;

Barfield, 805 So. 2d 1008; LB. B1yan & Co., 746 So. 2d 1194; Scient[/ic Games, Inc., 586 So. 2d

at 1131. Therefore, based upon the foregoing, Conclusion of Law Paragraph 31 will be modified

in part to read as follows:

Additionally, and perhaps more compelling, is that the Second Intended Decision

constituted only a recommendation by the College President as to a negotiation

procedure, without any decision or intended decision being approved or issued by

the Board ofTrustees.

Ruling on MDCJs Exception Nos. 6-22

As to MDC's Exceptions Nos. 6 through 22, which contest Findings ofFact Paragraphs 1,

2, 4, 7, 9, 10, 13 and 14, the Board hereby denies the exceptions in their entirety as no legal basis

for the aforementioned exceptions has been identified as required by Section 120.57(1 )(k), Florida

Statutes. Further, the scope of the Board's review of the ALJ's Findings of Fact is limited to

ascertaining whether the existing factual findings are supported by competent substantial evidence.

§ 120.57(1 )(l), Fla. Stat.; see also Wills, 955 So. 2d 61. If a finding of fact is supported by

substantial competent evidence, which MDC does not dispute in this case, the agency has no

authority to make independent or supplemental findings of fact. See, e.g., Consol. Afinerals, 645 ·

So. 2d at 487; see also Pellet, Case No. 11-4054.

In this case, based upon a review of the entire record, the Board flnds that the AU's

Findings of Fact are based upon competent substantial evidence. Accordingly, the Board is not

permitted to reinterpret evidence ruled upon by ALJ the or modify the Findings of fact as set forth

in MDC's Exceptions. § 120.57(1)(1), Fla. Stat.; Fla. Admin. CodeR. 28-1 06.217(1); Walker, 946

So. 2d at 605; Con.

Conshor, Inc., 498 So. 2d at 623; Heifetz v. Dep 't of Business Regulation, 475 So. 2d 1277 (Fla.

1st DCA 1985). Therefore, MDC's Exceptions Nos. 6 through 22 are denied.

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ORDER

In accordance with the foregoing, the Amended Recommended Order, including its

Findings of Fact and Conclusions of Law, as modified herein, is hereby adopted.

DONE and ENTERED in Miami, Florida t/Lis I . ofOcto.·ber, 2016.

rtikt·· ,,/ I / /l Ltl "J .

rmando J. . ucelo,/Chair

District alar 1 ofTr,ustees

Miami Dade ollege

300 N.E. 2nd Avenue, Room 1410

Miami, Florida 3 132-7654

Dr. Eduar . Padron,

Secretary the District Board ofTrustees

& Miami ade College President

Miami Dade College

300 N.E. 2nd Avenue, Room 1410

Miami, Florida 33132-7654

Filed with the Secretary to the District

Board of Trustees ct_Miami Dade College

President, this Jll_"day of October, 2016.

Page 111

COPIES FURNISHED:

William W. Riley, Jr., Esquire

Gray Robinson

333 Southeast Second A venue, Suite 3200

Miami, Florida 33131

Albert E. Dotson, Esquire

Bilzin Sumberg Baena

Price and Axelrod, LLP

1450 Brickell A venue, Suite 2300

Miami, Florida 33131

D. Ty Jackson, Esquire

GrayRobinson, P .A.

301 South Bronaugh Street, Suite 600

Post Office Box 11189

Tallahassee, Florida 32302

Martha Hanell Chumbler, Esquire

Carlton Fields Jorden Burt, P.A.

Post Office Drawer 190

Tallahassee, Florida 32302

Javier A. Ley-Soto, Esquire

Miami Dade College

300 N.E. 2nd Avenue, Room 1453

Miami, Florida 33132-7654

Michael Mattimore, Esquire

Allen Norton & Blue, P.A.

906 N. Monroe Street

Tallahassee, Florida 32303

NOTICE OF RIGHT TO APPEAL

A party who is adversely affected by this Final Order is entitled to judicial review pursuant

to Section 120.68, Florida Statutes. Review proceedings are govemed by the Florida Rule of

Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal

with the Agency Clerk (Secretary to the District Board of Trustees and Miami Dade College

President, Dr. Eduardo J. Padron), Miami Dade College, 300 N.E. 2nd Avenue, Room 1410,

Miami, Florida 33132-7654, and a second copy, accompanied by the filing fees prescribed by law,

with the Third District Court of Appeal, 2001 S.W. 117th Avenue, Miami, Florida 33175, or in the

district court of appeal in the appellate district where the party resides. The notice of appeal must

be filed within thirty (30) days of rendition of the order to be reviewed.