17-001543BID Joe Moretti Phase Three, Llc vs. Florida Housing Finance Corporation
 Status: Closed
Recommended Order on Friday, June 9, 2017.


View Dockets  
Summary: Petitioners failed to demonstrate that Florida Housing's actions regarding their requests to amend Extended Use Agreements were arbitrary, capricious, or contrary to competition.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8JOE MORETTI PHASE THREE, LLC,

13Petitioner,

14vs. Case No. 17 - 1543BID

20FLORIDA HOUSING FINANCE

23CORPORATION,

24Respondent,

25and

26VERBENA, LLC ; AND GM SILVER

31CREEK, LTD.,

33Intervenor s .

36_________________________ ______/

38STIRRUP PLAZA PHASE THREE, LLC,

43Petitioner,

44vs. Case No. 17 - 1544BID

50FLORIDA HOUSING FINANCE

53CORPORATION,

54Respondent,

55and

56VERBENA, LLC ; AND GM SILVER

61CREEK, LTD.,

63Intervenor s .

66_______________________________/

67RECOMMENDED ORDER

69Pursuant to notice, a final hearing was held in this case

80on April 12, 2017, in Tallahassee, Florida, before Garnett W.

90Chisenhall, a duly - designated Administrative Law Judge of the

100Division of Administrative Hearings (ÐDOAHÑ).

105APPEARANCES

106For Petitioner s Joe Moret ti Phase Three, LLC and Stirrup

117Plaza Phase Three, LLC :

122Michael P. Donaldson, Esquire

126Carlton Fields Jorden Burt, P.A.

131Post Office Drawer 190

135Tallahassee, Florida 32302 - 0190

140For Respondent Florida Housing Finance Corporation :

147Marisa G. Button, Esquire

151Betty Zachem, Esquire

154Florida Housing Finance Corporation

158Suite 5000

160227 North Bronough Street

164Tallahassee, Florida 32301

167For Intervenor Verbena, LLC:

171J. Stephen Menton, Esquire

175Tan a D. Storey, Esquire

180Rutledge Ecenia, P.A.

183Suite 202

185119 South Monroe Street

189Tallahassee, Florida 32301

192For Intervenor GM Silver Creek, Ltd.:

198Derek E. Bruce, Esquire

202Sarah K. Vespa, Esquire

206Gunster, Yoakley & Stewart, P.A.

211Suite 1400

213200 South Orange Avenue

217Orlando, Florida 32801

220STATEMENT OF THE ISSUE

224The issue for determination in this conso lidated bid

233protest proceeding is whether the Florida Housing Finance

241Corporation (ÐFlorida HousingÑ) acted arbitrarily, capriciously,

247or contrary to competition by deem ing the applications of Joe

258Moretti Phase Three, LLC. (ÐMoretti Phase Three Ñ) and Stirr up

269Plaza Phase T hree, LLC. (ÐStirrup Plaza Phase Three Ñ) ineligible

280for Request for Applications 2016 - 114, Housing Credit Financing

290for Affordable Housing Developments Located in Miami - Dade County

300(ÐRFA 2016 - 114Ñ).

304PRELIMINARY STATEMENT

306On February 16, 2017, GM Silver Creek, Ltd. (ÐGM Silver

316CreekÑ) filed a ÐPetition for Formal Administrative HearingÑ

324with Florida Housing challenging the final scoring and ranking

333given to Ambar Key, LtdÓs (ÐAmbar KeyÑ) a pplication for RFA

3442016 - 114.

347On February 20, 2017 , Moretti Phase Three and Stirrup Plaza

357Phase Three separately filed Ð Formal Written Protest [s] and

367Petition [s] for Administrative Hearing [s] Ñ challenging Florida

376HousingÓs determination that Moretti Phase Three Ós and Stirrup

385Plaza Phase Three Ó s applicatio n s w ere ineligible for funding

398pursuant to RFA 2016 - 114.

404On March 13, 2017, Florida Housing referred all

412three cases to DOAH for administrative hearings pursuant to

421section 120.57(3), Florida Statutes. Moretti Phase ThreeÓs case

429was assigned DOAH Case No. 17 - 1543, Stirrup Plaza Phase Three Ós

442case was assigned DOAH Case No. 17 - 1544, and GM Silver Creek Ós

456case was assigned DOAH Case No. 17 - 154 5.

466Because the t hree cases involved Ðsubstantially similar

474issues of law and closely related issues of fact,Ñ Fl orida

486Housing filed an ÐUnopposed Motion to Consolidate CasesÑ on

495March 14, 2017.

498On March 26, 2017, the undersigned granted Florida

506HousingÓs ÐUnopposed Motion to Consolidate Cases . Ñ

514In response to a ÐPetition to InterveneÑ filed by Verbena,

524LLC (ÐVer benaÑ) alleging that it could be displaced from funding

535if Moretti Phase ThreeÓs challenge i s successful , the

544undersigned issued an Order on March 23, 2017, granting the

554aforementioned Petition. However, the undersigned specified

560that

561[i]n issuing this r uling, the undersigned

568has not overlooked Joe Moretti Phase Three,

575LLCÓs ÐResponse to Verbena, LLCÓs Motion to

582InterveneÑ and the assertion that Verbena,

588LLC will be seeking to raise issues that

596should not be considered. Joe Moretti

602Phase Three, LLC may r aise this argument

610through a motion in limine filed on or

618before March 29, 2017, and Verbena, LLC may

626file a response within seven days

632thereafter.

633On March 23, 2017, the undersigned issued an Order granting

643Ambar KeyÓs ÐPetition for Leave to Intervene. Ñ

651Moretti Phase Three file d a ÐMotion in LimineÑ on March 29,

6632017, asserting that Verbena Ðintends to raise additional issues

672that go beyond the scope of this proceeding and the challenged

683agency action.Ñ In support thereof, Moretti Phase Three argued

692that Ð[i]t is settled law in Florida that an intervenor must

703accept the record and pleadings as he finds them and cannot

714raise new issues, but rather is limited to arguing the issues

725raised by the parties as they apply to him.Ñ

734In a r esponse filed on Apr il 5, 2017, Verbena explained its

747position as to why it should be allowed to introduce an issue

759into the instant proceeding:

763As additional grounds to support Florida

769HousingsÓ determination that MorettiÓs

773application is ineligible, Verbena sets

778forth in it s Petition to Intervene an

786argument that the requisite Ðsewer

791availability letterÑ in MorettiÓs

795application does not meet the requirements

801of the RFA which requires the applicant to

809demonstrate, as of the application deadline,

815that sewer capacity, package treatment or

821septic tank service is available to the

828entire proposed development site. That

833argument is framed by the documents at issue

841in this proceeding and relates directly to

848the material issue of whether Florida

854HousingÓs scoring of MorettiÓs applic ation

860was inconsistent with the RFA or Florida

867HousingÓs policies and whether the review

873and actions taken by Florida Housing were

880arbitrary or capricious, clearly erroneous

885and contrary to competition.

889* * *

892Unless and until Moretti filed a challe nge

900to the determination that it was ineligible,

907there was no reason or basis for Verbena to

916initiate an unnecessary proceeding. It was

922only when VerbenaÓs preliminary funding

927award was put at issue that Verbena had a

936reason and an opportunity to point ou t

944additional grounds for determining Moretti

949is ineligible. Accordingly, the instant

954case is VerbenaÓs only opportunity to raise

961any and all scoring issues it believes are

969relevant to MorettiÓs application.

973On April 11, 2017, GM Silver Creek, Ambar Key , and Florida

984Housing filed a j oint m otion asking the undersigned to sever and

997relinquish jurisdiction over Case No. 17 - 1545. In support

1007thereof, the aforementioned p arties asserted that they had

1016reached agreements regarding certain aspects of Ambar KeyÓs and

1025GM Silver CreekÓs applications.

1029The final hearing commenced as scheduled on April 12, 2017.

1039At the outset of the final hearing, the undersigned orally

1049granted the aforementioned j oint m otion, and an Order to that

1061effect was issued on April 20, 2017 .

1069At the outset of the final hearing, the undersigned also

1079addressed Moretti Phase ThreeÓs Motion in Limine by elect ing to

1090defer ruling, and the Motion in Limine is addressed in the

1101Conclusions of Law below.

1105Moretti Phase Three presented the testimony of Anthony

1113Del Pozzo, the Vice President of Finance for the Related Group ,

1124and Ken Reecy, Florida HousingÓs Director of Multifamily

1132Programs .

1134The undersigned accepted Joint Exhibits 1 through 13 into

1143evidence.

1144Florida Housing introduced one E xhibit th a t was accepted

1155into evidence.

1157As agreed to during the final hearing, Verbena filed its

1167composite Exhibit 1 on April 26, 2017.

1174The T ranscript from the f inal hearing was filed on

1185April 27, 2017.

1188After receiving a one - day extension of time via an Order

1200i ssued on May 4, 2017, Moretti Phase Three, Stirrup Plaza Phase

1212Three , Verbena, and Florida Housing filed timely Proposed

1220Recommended Order s on May 9, 2017. GM Silver CreekÓs Proposed

1231Recommended Order was officially filed at 8:00 a.m . on May 10,

12432017. Al l of the aforementioned Proposed Recommended Orders

1252have been considered in the preparation of this Recommended

1261Order.

1262FINDING S OF FACT

1266Facts Regarding F lorida Housing and Affordable Housing Tax

1275Credits

12761. F lorida Housing is a public corporation cre ated

1286pursuant to section 420.504, Florida Statutes. 1/ Its purpose is

1296to promote public welfare by administering the governmental

1304function of financing affordable housing in Florida.

13112. Pursuant to section 420.5099, F lorida Housing is

1320designated as the housing credit agency for Florida within the

1330meaning of section 42(h)(7)(A) of the Internal Revenue Code.

1339Accordingly, F lorida Housing has the responsibility and

1347authority to establish procedures for allocating and

1354distributing low - income housing tax cred its.

13623. The low - income housing tax credit program was enacted

1373to incenti vize the private market to invest in affordable rental

1384housing. Tax credits are awarded competitively to housing

1392developers in Florida for rental housing projects which qualify.

1401The se credits are then normally sold by developers for cash to

1413raise capital for their projects. This reduces the amount o f

1424capital that developers have to borrow. Because the total debt

1434is lower, a tax credit property can (and must) offer lower, more

1446affor dable rents.

14494. Developers also covenant to keep rents at affordable

1458levels for periods of 30 to 50 years as consideration for

1469receipt of the tax credits.

14745. Tax credits are not tax deductions. For example, a

1484$1,000 deduction in a 15 percent tax brack et reduces taxable

1496income by $1,000 and reduces tax liability by $150, while a

1508$1,000 tax credit reduces tax liability by $1,000.

15186. The demand for tax credits provided by the federal

1528government exceeds the supply. Accordingly, Florida

1534Administrative Co de Chapter 67 - 60 provides that F lorida Housing

1546allocates its tax credits, which are made available to F lorida

1557Housing on an annual basis by the U.Seasury, through the bid

1568protest provisions of section 120.57(3), Florida Statutes.

15757. In their applicati ons for tax credits, applicants

1584request a specific dollar amount of housing credits to be

1594supplied each year for a period of 10 years. Applicants will

1605normally sell the rights to that future stream of income tax

1616credits (through the sale of almost all of the ownership

1626interest in the applicant entity) to an investor to generate the

1637amount of capital needed to build the development.

16458. Tax credits are made available through a competitive

1654application process commenced by the issuance of a Request for

1664Appl ications (ÐRFAÑ). An RFA is equivalent to a Ðrequest for

1675proposal.Ñ See Fla. Admin. Code R. 67 - 60.009( 4 ) (providing that

1688Ð[f]or purposes of Section 120.57(3), F.S., any competitive

1696solicitation issued under this rule chapter shall be conside re d

1707a Òrequest for proposal . ÓÑ).

17139. ÐApplicants not selected for funding under any

1721competitive solicitation issued pursuant to [Chapter 67 - 60,

1730F.A.C.] may only protest the results of the competitive

1739solicitation process pursuant to the procedures set forth in

1748Section 120.57(3), F.S., and Chapter 28 - 110, F.A.C.Ñ Fla.

1758Admin. Code R. 67 - 60.009(2).

1764Facts Specific to RFA 2016 - 114

177110. RFA 2016 - 114 describe s its purpose as follows:

1782This Request for Applications (RFA) is open

1789to Applicants proposing the development of

1795aff ordable, multifamily housing located in

1801Miami - Dade County.

1805Under this RFA, Florida Housing Financing

1811Corporation (the Corporation) expects to

1816have up to an estimated $5,682,725 of

1825Housing Credits available for award to

1831proposed Developments located in Mia mi - Dade

1839County. The Corporation is soliciting

1844applications from qualified Applicants that

1849commit to provide housing in accordance with

1856the terms and conditions of this RFA,

1863inclusive of Exhibits A, B, C, an D,

1871applicable laws, rules and regulations, and

1877t he CorporationÓs generally applicable

1882construction and financial standards.

188611. Florida HousingÓs Board of Directors approved the

1894issuance of RFA 2016 - 114 on June 24, 2016.

190412. Prior to the issuance of RFA 2016 - 114, F lorida Housing

1917conducted a public workshop on Au gust 25, 2016.

192613. A draft ver sion of RFA 2016 - 114 was posted on F lorida

1941Housing Ós websi te on September 15, 2016.

194914. The final version of RFA 2016 - 114 was issued on

1961October 28, 2016, and applications were due by 11:00 a . m .,

1974Eastern Ti me on December 15, 2016.

198115. There were no challenges to the terms of RFA 201 6 -

1994114 after it was issued.

199916. A provision within RFA 2016 - 114 stated that

2009Ð[a]pplicants should review subsection 67 - 48.023(1), F.A.C., to

2018determine eligibility to apply for the Housing Credits offered

2027in this RFA. Ñ

203117. The aforementioned rule provides in pertinent part

2039that an applicant is ineligible to apply for competitive housing

2049credits if

2051[t]he proposed Development site or any part

2058thereof is subject to any Land Use

2065Restriction Agreement or Extended Use

2070Agreement , or both, in conjunction with any

2077Corporation affordable housing finance

2081intended to foster the development or

2087maintenance of affordable housing . . . . Ñ

2096(emphasis added).

209818. An Extended Use Agreement (ÐEUAÑ) is an agreement

2107between an applicant seeking tax credits and F lorida Housing .

2118An EUA runs with a particular piece of property and is meant to

2131assure that the property is devoted to affordable housing .

214119. In addition, Florida Administrative Co de Rule 67 -

215148.002(44) defines an ÐEUAÑ in the context of this tax credit

2162program as Ðan agreement which sets forth the set aside

2172requirements and other Development requirements under the

2179housing credit program.Ñ Set aside requirements reflect how

2187much of the development is set aside for low - income te nants.

220020. An applicant can seek to have an EUA amended by filing

2212a request with F lorida Housing . The request would begin with a

2225staff member of F lorida Housing , move to F lorida Housing Ós

2237assistant director of multifamily programs, and then to the

2246director of multifamily programs for a n ultimate decision.

225521. The process by which an EUA is amended is not set

2267forth in a rule or policy manual.

227422. There is no established time by which F lorida Housing

2285mus t act on a request to amend an EUA.

229523. T here is no typical time by which F lorida Housing

2307grants or denies a request to amend an EUA.

231624. Also, there is nothing requiring F lorida Housing to

2326expedite a decision on whether to grant or deny a request to

2338amend an EUA.

234125. F lorida Housing received 25 applications in response

2350to RFA 2016 - 114. F lorida Housing received, processed,

2360evaluated, scored, and ranked each of the applications pursuant

2369to the terms of RFA 2016 - 114, Florida Administrative Code

2380Cha pters 67 - 48 and 67 - 60, and applicable federal regulations.

239326. The Executive Director of F lorida Housing, Ken Reecy,

2403appointed a R eview C ommittee of F lorida Housing staff to conduct

2416the aforementioned evaluation, scoring, and ranking.

242227. F lorida Hou sing only considered an application for

2432funding if it was deemed ÐeligibleÑ based on whether that

2442application complied with Florida HousingÓs various content

2449requirements.

245028. Of the 25 applications submitted, F lorida Housing

2459deemed 19 to be Ðeligible, Ñ and six were deemed Ðineligible.Ñ

247029. F lorida Housing proposed to award funding to three

2480developments: Ambar Key, Verbena, and Northside Property IV ,

2488Ltd.

248930. As discussed below, F lorida Housing deemed the Moretti

2499Phase Three and Stirrup Plaza Ph ase Three applications to be

2510ineligible because the properties associated with those

2517applications w ere still subject to EUAs at the December 15,

25282016, deadline for RFA 2016 - 114.

2535Facts Regarding Moretti Phase Three Ós and Stirrup Plaza Phase

2545Three Ós Appli cations

254931. Moretti Phase Three submitted an application seeking

2557$2,400,000 in annual allocation of housing credits to finance

2568the construction of a 103 - u nit development.

257732. Stirrup Plaza Phase Three submitted an application

2585seeking $1,950,000 in a nnual allocation of housing credits to

2597finance the construction of an 85 - unit development.

260633. The Moretti Phase Three and Stirrup Plaza Phase Three

2616applications represent subsequent phases of existing

2622developments , and both of those developments are de voted to

2632affordable housing.

263434. All of the land associated with both developments had

2644been subject to EUA s since 201 5.

265235. Because Moretti Phase Three and Stirrup Plaza Phase

2661Three wanted to obtain tax credit financing, they needed to have

2672those EUA s amended. 2 /

267836. Anthony Del Pozzo is the v ice p resident for Moretti

2690Phase Three and Stirrup Plaza Phase Three . Mr. Del Pozzo

2701focuses much of his attention on affordable housing and has

2711assisted with the preparation of 30 to 50 tax credit

2721applications to F lorida Housing .

272737. After RFA 2016 - 114 was issued, Mr. Del Pozzo contacted

2739F lorida Housing via telephone calls and e - mails in order to

2752ascertain the process by which the EUAs could be amended .

276338. Mr. Del PozzoÓs initial e - mail to F lorida Housing

2775re garding amending the EUA s was transmitted on November 1, 2016,

2787and stated the following:

2791Libby, I will be sending this request to

2799you, Amy a nd Lisa to modify the EUAÓs

2808for our Joe Moretti (first phase) and

2815Stirrup Plaza (f irst phase) properties,

2821both of wh ich are 9% dea ls. I will also

2832have to modify the EUA for our Seville

2840Place deal, which was financed with bonds

2847and 4% credits. Will that one also go to

2856the same people or should I reach out to

2865Bill Cobb or someone else?? Thanks!!

287139. Mr. Del PozzoÓs initial e - mail was acknowledged by an

2883F lorida Housing employee (Libby OÓNeil) later that day.

289240. On November 2, 2016, Mr. Del Pozzo transmitted an

2902e - mail to Amy Garmon, Libby OÓNeil, and Lisa Nickerson of

2914F lorida Housing formally requesting to amen d the Moretti Phase

2925Three EUA:

2927Please accept this e - mail as our formal

2936request to modify the legal description of

2943the EUA for Joe Moretti Preservation Phase

2950One, LLC. Attached please find a copy of

2958the recorded EUA, a sketch with Phase I

2966modified legal de scription and a site plan

2974showing the entire site and the portion

2981where the Phase One building is located

2988(cross - hatched). As you can see from the

2997sketch we are modifying the legal

3003description to include only the portion of

3010the property where the building is located.

3017We will be submitting a portion of the

3025remainder of the property for 9% tax credits

3033in the 2016 RFA . [ 3 / ]

3042(emphasis added).

304441. Lisa Nic kerson is a multifamily programs manager at

3054F lorida Housing , and one of her duties involves work ing with

3066developers seeking EUA amendments. Ms. Nickerson completed the

3074initial processing of all EUA Amendment requests at all times

3084relevant to the instant case . However, Ms. Nickerson wa s not

3096responsible for approving EUA amendments.

310142. On November 3, 2016, Ms. Nickerson responded to

3110Mr. Del PozzoÓs November 2, 2016, e - mail with the following e -

3124mail:

3125We are happy to assist. Because this is a

3134change to the legal description, we will

3141treat it as a site change. Before we can

3150amend the EUA we need the followin g, as

3159outlined in the carryover agreement:

3164Ʊ $500 processing fee

3168Ʊ Affidavit from a Florida licensed

3174surveyor certifying that the tie - breaker

3181measurement point has not moved and that the

3189change in the development site has not

3196affected any zoning requirements. If the

3202tie - breaker measurement poin t has moved from

3211the location provided in the application,

3217the change in location cannot affect the

3224score and a new surveyor certification form

3231is required.

3233Upon receipt of the above items, we will

3241process [an ] amendment to the EUA.

324843. On November 8 , 2016, Mr. Del Pozzo sen t Ms. Nickerson

3260an e - mail stating that he has a ÐPDF copy of the Survey

3274Affidavit.Ñ Mr. Del Pozzo then ask ed if he need ed the surveyor

3287to send him Ðan original for my package to FHFC??Ñ

329844. Ms. Nickerson responded three minutes later by stating

3307that F lorida Housing Ðcan use the PDF to start drafting the

3319amendment, but we will need the original for the file.Ñ

332945. On November 9, 2015, Ms. Nickerson sent an e - mail

3341to Mr. Del Pozzo stating that she had reviewed the affidavit

3352and found that application numb er was incorrect. She gave

3362Mr. Del Pozzo the correct application number, asked him to make

3373that change, and resend the affidavit.

337946. In anothe r e - mail transmitted to Mr. Del Pozzo on

3392November 9, 2016, Ms. Nickerson also aske d him to send an

3404up dated legal description.

340847. At 6:52 p . m . o n November 9, 2016, Mr. Del Pozzo

3423transmitted an e - mail asking Ms. Nickerson to confirm Ðif this

3435revised affidavit is acceptable. As requested, IÓve also

3443attached a copy of the legal descrip tion. Thanks again for all

3455your help.Ñ

345748. At 10:04 a . m . on November 10, 2016, Mr. Nickerson

3470responded with an e - mail stating, ÐThis looks good. As soon as

3483I receive the originals and the $500 fee I will send the amended

3496EUA for you to sign.Ñ

350149. On November 10, 2016, Mr. Del Pozzo transmitted a n

3512e - mail notifying Ms. Nickerson that he Ðwill be submitting a

3524similar modification request for Stirrup Plaza Preservation

3531Phase One, LLC.Ñ

35345 0 . Accordingly, Ms. Nickerson received later that day a

3545draft af fidavit, a copy of the legal description of the property

3557associated with the Stirrup Plaza Phase Three property, and a

3567survey identifying the two parcels t hat were being carved out.

35785 1 . However, on November 1 4, 2016, Mr. Del Pozzo sent

3591Ms. Nickerson an e - mail stating that Ð[w]e will be making some

3604additional revisions to the legal description for Stirrup Plaza.

3613Please hold off on the request to modify the EUA on that one

3626until I confirm the correct legal description. I apol ogize for

3637the inconvenience.Ñ

36395 2 . By November 14, 2016, F lorida Housing had received an

3652explanation letter, a $500 fee, an affidavit, and a new legal

3663description for the Moretti Phase Three EUA amendment.

367153. Florida Housing cashed a $500 check pertaining to the

3681Moretti Phase Thre e application on approximately November 14,

36902016.

369154. As a result, the request to amend the Moretti Phase

3702Three EUA was transferred to K en R eecy on November 29, 2016 , for

3716final approval .

371955. Ken Reecy is F lorida Housing Ós Dir ector of Multifamily

3731Prog rams and is generally responsible for the program that

3741allocates tax credits in order to finan ce affordable housing.

3751In addition, Mr. Reecy is the person ultimately responsible for

3761determining whether a request to amend an EUA will be approved.

377256. Up on receiving the paperwork associated with the

3781request to amend the Moretti Phase T hree EUA, Mr. Reecy noticed

3793that it was seeking to release an unusually large amount of

3804land. That was a concern for Mr. Reecy because releasing that

3815land from the EUAÓs re strictions would enable it to become a

3827Ðmarket rate development that could be worth . . . millions of

3839dollars.Ñ In contrast, F lorida Housing wants land to remain

3849affordable in the future and thus takes a very conservative

3859approach toward releasing land un der restrictions.

386657. Due to his concern regarding the amount of land in

3877question and because he was very busy with other work, Mr. Reecy

3889put the Moretti Phase Three EUA amendment aside.

389758. At this point in time, Mr. Reecy was unaware that the

3909Mor etti Phase Three EUA had to b e amended prior to the

3922December 15, 2016 , deadline for RFA 2016 - 114.

393159. On December 1, 2016, Ms. Nickerson transmitted an

3940e - mail to Mr. Del Pozzo regarding the Moretti Phase Three

3952amendment stating that, ÐI received your voicemail. I am

3961waiting for the site change approval to come back to me. Once I

3974have it, I will email a copy of the EUA amendment with

3986instructions. I am hopeful you will have it early next week, if

3998not before.Ñ

400060. While all of the required documen tation for the

4010Moretti Phase Three EUA amendment was received by November 14,

40202016, F lorida Housing did not receive the explanation letter or

4031the affidavit pertaining to the Stirrup Plaza Phase Three EUA

4041until December 5, 2016.

404561. After receiving the a ffidavit pertaining to the

4054Stirrup Plaza Phase Three EUA, Ms. Nic kerson sent Mr. Del Pozzo

4066an e - mail on December 5, 2016, stating, ÐThank you, Tony. I

4079will get this underway, this week.Ñ

408562. Mr. Reecy received the paperwork for the Stirrup Plaza

4095Phase Three EUA amendment on approximately December 7, 2016.

4104However, he was unaware that this amendment was necessary in

4114order for Stirrup Plaza Phase Three to apply for RFA 2016 - 114.

412763. As the December 15, 2016, deadline for the RFA 2016 -

4139114 applications drew near, F lorida Housing had yet to approve

4150Moretti Phase Three Ós and Stirrup Plaza Plaza Phase ThreeÓs

4160request s to amend their EUAs. Accordingly, Mr. Del Pozzo wrote

4171the following e - mail to Ms. Nickerson on Monday, December 12,

41832016, at 1:54 p . m . :

4191I le ft a voicemail message for Ken [Reecy]

4200this morning, asking him to follow up with

4208me if he had any questions or needed any

4217additional information to sign - off on the

4225modifications to the EUAs. I also wanted to

4233make sure he was aware that we are modifying

4242t he EUAÓs so that we can submit new phases

4252to the projects in this yearÓs 9% LIHTC RFA

4261for Miami - Dade County. Applications are due

4269on 12/15. So, we would greatly appreciate

4276it if he could sign off on the modifications

4285in advance of the application deadlin e. I

4293will take scanned copies whenever they are

4300ready.

430164. This wa s the first time that Mr. Del Pozzo had

4313communicated to F lorida Housing staff that there was any sort of

4325time constraint associated with the requests to amend the

4334Moretti Phase Three and Stirrup Plaza Phase Three EUAs.

434365. On Tuesday, December 13, 2016, at 11:50 a.m.,

4352Mr. Del Pozzo sent the follow ing e - mail to Mr. Reecy and

4366Ms. Nickerson:

4368I know that you are both extremely busy, so

4377IÓm sorry for being so persistent. As I

4385mentioned to Lis a over the phone and

4393indicated in my e - mail below, we will be

4403submitting new phases of the Joe Moretti and

4411Stirrup Plaza projects for funding in RFA

4418#2016 - 114 for Miami - Dade County. As such,

4428we have been working with Lisa for the past

4437several weeks to ens ure that we have

4445submitted all of the information necessary

4451to modify the Extended Use Agreements for

4458the initial phases of these properties. We

4465are removing the portion of the land that

4473will be part of the new phases from the

4482legal descriptions in the EU As.

4488Based on our latest discussions, I believe

4495everything is in order and we are only

4503awaiting final sign - off. If you could

4511please sign off on these modifications in

4518advance of the RFA due date (12/15/16), we

4526would greatly appreciate it. Please call m e

4534if you have any questions or need any

4542additional information. Thanks for all of

4548your help.

455066. Four minutes later, Ms. Nickerson responded to the

4559above e - mail by stating, ÐWe are aware and your requests are

4572currently under review. Thank you for your patience.Ñ

458067. December 13, 2016, is the first day that Ms. Nickerson

4591was aware that Moretti Phase Three and Stirrup Plaza Phase Three

4602were planning to file applications in respon se to RFA 2016 - 114.

461568. On Thursday, December 15, 2016, at 8:30 a.m . , A lbert

4627Milo 4 / s ent the following e - mail to Ms. Nickerson and Mr. Reecy:

4643Good morning, Lisa I hope you are doing

4651well. Just wanted to follow up again on the

4660EUA modifications for our two projects since

4667today is the Application Deadline. Can you

4674please let me know if FHFC has finalized it?

4683Thanks for your assistance. Have a great

4690day.

469169. Mr. Reecy responded at 9:01 a.m . with an e - mail asking

4705Mr. Milo Ðwhat is the best number t o call you right now?Ñ

471970. Mr. Reecy wanted to confer with Mr. Milo because

4729Florida Housing had no verification that the land associated

4738with the Stirrup Plaza Phase Three project was under a

4748declaration of trust (ÐDOTÑ). Without a DOT, Mr. Reecy was

4758concerned that the land would not be used for affordable

4768h ousing.

477071. In con trast, F lorida Housing already had verification

4780that the land associated with Moretti Phase Three was under a

4791DOT.

479272. On December 15 , 2016, prior to 11:00 a.m . , Mr. Reecy

4804advised a representative from Moretti Phase Three and Stirrup

4813Plaza Phase Three v ia a telephone call that he would approve

4825Stirrup Plaza Phase ThreeÓs EUA Amendment request if he could be

4836provided with verification that the Stirrup Plaza Phase Three

4845development site was subject to a DOT.

485273. During the same phone call, Mr. Reecy adv ised the

4863representative that he did not believe that Moretti Phase Three

4873and Stirrup Plaza Phase Three would be eligible for funding

4883under RFA 2016 - 114 because their proposed development locations

4893would still be subject to EUAs at the application deadline.

490374. On December 15, 2016, at 9:55 a.m ., Mr. Milo sent an

4916e - mail to Mr. Reecy providing him with the copy of the Stirrup

4930Plaza Phase Three DOT:

4934Hi Ken as per our conversation here is a

4943copy of the actual DOT for Stirrup Plaza

4951Preservation Phase one. I have also

4957requested a letter from PHCD confirming the

4964same. As I mentioned this was a

4971Preservation deal that consisted of the

4977rehabilitation of 100 Public Housing units.

4983Please let me know if you need anything else

4992from us. Thanks for your assistance getting

4999this finalized. We really appreciate it.

500575. Exactly one hour later, Mr. Milo sent the following

5015e - mail to Mr. Reecy:

5021Hi Ken just want to confirm our conversation

5029this morning where you informed me that you

5037had approved and signed off on the EUA

5045modification for Joe Moretti Preservation

5050Phase One.

5052As it relates to Stirrup Plaza Preservation

5059Phase One, we have sent you a copy of the

5069DOT and a letter from PHCD confirming the

5077DOT. Please let me know if you require any

5086additional information fro m us to finalize

5093your approval as you mentioned in our phone

5101conversation. Thanks for your assistance in

5107this matter.

510976. Moretti Phase Three and Stirrup Plaza Phase Three

5118filed applications for funding under RFA 2016 - 114 by the

5129application deadline.

513177. As of the 11:00 a.m. application deadline, the Moretti

5141Phase Three and Stirrup Plaza Phase Three proposed developments

5150were subject to existing EUAs.

515578. At 1:05 p . m . on December 15, 2016, Ms. Nickerson

5168e - mailed the following information to Mr. Milo:

5177Attached, please find the First Amendment to

5184the EUAs for Joe Moretti Preservation Phase

5191One and for Stirrup Plaza Preservation Phase

5198One. The amendments reflect the changes to

5205the legal descriptions found at Exhibit A.

5212Please review and execu te the amendments,

5219and return to me with a check made payable

5228to the appropriate county in which the

5235agreements will be recorded. Standard

5240recording fees are $10 for the first page

5248and $8.50 for every page thereafter.

5254However, please contact the appropri ate

5260county for confirmation of their fees and

5267any form of payment restrictions.

527279. On December 15, 2016, at 2:37 p . m . , Moretti Phase

5285Three and Stirrup Plaza Phase Three e - mailed F lorida Housing PDF

5298copies of the executed Amended EUAs and indicated the originals

5308and recording fee checks were being sent via FEDEX the same day.

532080. Mr. Reecy received the signed amendments and then

5329signed them himself on December 20, 2016. Mr. ReecyÓs signature

5339was the final step in the EUA amendment process other than the

5351actual recording of the amended EUAs.

535781. The amended EUAs for Moretti Phase Three and Stirrup

5367Plaza Phase Three were recor ded on February 6, 2017.

537782. F lorida Housing scored the applications for RFA 2016 -

5388114 on January 25, 2017.

539383. On Febru ary 3, 2017, Florida Housing announced its

5403intention to award funding to three applicants, two of which

5413were Ambar Key and Verbena.

541884. Florida Housing did not select the applications of

5427Moretti Phase Three and Stirrup Plaza Phase Three for funding

5437beca use those applications were deemed ineligible given that the

5447proposed development sites were subject to EUAs at the time

5457their applications were filed.

5461Findings Regarding F lorida Housing Ós Treatment of the EUA

5471Amendment Applications

547385. The greate r weight of the evidence demonstrates that

5483no relevant personnel at Florida Housing knew about the time -

5494sensitive nature of the requests to amend the EUAs before

5504December 12, 2016.

550786. If Ms. Nickerson and/or Mr. Reecy had been advised of

5518the time - sens itive nature within a reasonable time prior to

5530December 15, 2016 , the greater weight of the evidence indicates

5540they would have made good faith efforts to expedite the process

5551and that the EUAs would have likely been amended prior to the

5563deadline.

556487. The greater weight of the evidence demonstrates that

5573no one at Florida Housing did anything to delay the

5583applications , to amend the EUAs , or anything to undermine

5592Moretti Phase Three Ós or Stirrup Plaza Phase ThreeÓs

5601applications for RFA 2016 - 114.

560788. In sum, the greater weight of the evidence

5616demonstrates that Florida Housing did not act arbitrarily,

5624capriciously, or contrary to competition.

5629CONCLUSIONS OF LAW

563289. Florida Housing has jurisdiction over this matter,

5640pursuant to sections 120.569, 120.57(2), and 120.57(3), Florida

5648Statutes. Florida Housing has contracted with DOAH to provide

5657an Administrative Law Judge to conduct the informal hearing in

5667this case.

566990. Florida HousingÓs decisions in this competitive

5676process impact the substantial interests of e ach party, and each

5687party has standing to challenge Florida HousingÓs scoring in

5696this proceeding.

569891. This is a competitive procurement protest proceeding

5706and, as such, is governed by section 120.57(3)(f) , 5 / which

5717provides as follows in pertinent part:

5723Unless otherwise provided by statute, the

5729burden of proof shall rest with the party

5737protesting the proposed agency action. In a

5744competitive - procurement protest, other than

5750a rejection of all bids, proposals, or

5757replies, the administrative law judge shall

5763conduct a de novo proceeding to determine

5770whether the agencyÓs proposed action is

5776contrary to the agencyÓs governing statutes,

5782the agencyÓs rules or policies, or the

5789solicitation specifications. The standard

5793of proof for such proceedings shall be

5800whether the proposed agency action was

5806clearly erroneous, contrary to competition,

5811arbitrary, or capricious. . . .

581792. As the applicants for funding in this proceeding,

5826Moretti Phase Three and Stirrup Plaza Phase Three have the

5836burden of establishing entitlemen t to the funding the y seek by a

5849preponderance of the evidence . See Fla. DepÓt of Transp. v .

5861J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981) ; DepÓt of

5874Banking and Fin. v. Osborne Stern and Co. , 670 So. 2d 933 (Fla.

58871996) .

588993. Moretti Phase Three an d Stirrup Plaza Phase Three

5899assert that the actions (or inactions) of Florida Housing at

5909issue in the instant case were arbitrary, capricious, or

5918contrary to competition, and their argument is summarized in the

5928following excerpts from their Proposed Recomm ended Order:

5936It appears this is a case of first

5944impression in that the PetitionersÓ

5949challenge here is not necessarily tied to a

5957review of any document submitted with the

5964Applications but instead is limited to the

5971consideration of the documentation that

5976wou ld have existed had Florida Housing

5983processed these requests for Amended EUAs in

5990a timely manner. In the instant case there

5998is no disagre ement that Amended EUAs had

6006not been executed as of the Application

6013Deadline. A ccording to Florida Housing

6019and Interv enors, therefore PetitionersÓ

6024Applications did not meet the rule

6030requir ements and are ineligible. Mr. Reecy

6037indicated that had the Amended EUAs been

6044signed by the Application Deadline then the

6051Moretti Three and Stirrup Three Applications

6057would have been d eemed eligible. However,

6064the reason the Amended EUAs were not timely

6072signed rests upon Florida HousingÓs own

6078failure to process the Amendments in a

6085timely manner, rather than anything within

6091the control of Petitioners.

6095* * *

6098While no malicious intent was argued or

6105found, Florida HousingÓs delay in approving

6111the requests is the sole reason behind the

6119ineligibility determination. At a minimum

6124Florida HousingÓs action or inaction has

6130created Ðan appearance of an opportunity for

6137favoritism,Ñ and can be s een as an action

6147that erodes public confidence that contracts

6153are being awarded equitably, and certainly

6159causes the procurement process to appear

6165generally unfair. It is found that based on

6173the established facts these actions clearly

6179put Moretti Three and Stirrup Three at a

6187competitive disadvantage and therefore

6191Florida HousingÓs actions in not using

6197reasonable efforts to review the requests to

6204meet the deadline and then using the

6211deadline as a reason for ineligibility was

6218contrary to competition.

6221DOAH Has Jurisdiction to Provide the Relief Sought by Moretti

6231Phase Three and Stirrup Plaza Phase Three

623894. As a threshold matter, Florida Housing argues that

6247DOAH has no jurisdiction to award the equitable relief sought by

6258Moretti Phase Three and Stirrup Pla za Phase Three . 6 /

627095. As stated in Florida HousingÓs Proposed Recommended

6278Order:

6279PetitionersÓ true underlying challenges as

6284articulated in the Petitions, is not Florida

6291HousingÓs scoring of the Applications, but

6297rather, Florida HousingÓs processing of

6302P etitionersÓ EUA Amendment requests. In

6308effect, Petitioners are seeking equitable

6313relief that would deem the Amended EUAs to

6321be effective prior to the Application

6327Deadline, and/or to estopp [sic] Florida

6333Housing from scoring the Applications in

6339accordance with the applicable RFA and Rule

6346requirements.

6347* * *

6350The amendment of the EUA agreements was not

6358final agency action, nor was it some type of

6367relief that Petitioners had a statutory

6373right to receive, nor was it relief with a

6382corresponding Ðdeemer claus eÑ where failure

6388of an agency to respond to a request in a

6398definitive time period would result in a

6405deemed approval of the request at issue.

6412* * *

6415The EUA amendment requests and the RFA

6422Application submissions are two separate

6427issues and Florida Housi ng had the

6434discretion to approve or reject the EUA

6441amendment requests.

6443* * *

6446DOAH does not have jurisdiction to

6452adjudicate the propriety of the agency

6458action that does not fall under its purview,

6466such as the processing of the requests to

6474amend EUAs.

647696. However, Florida HousingÓs reasoning is erroneous and

6484could lead to situations susceptible to favoritism .

649297. First of all, Florida HousingÓs own precedent

6500indicates that an a pplicant for tax credits can challenge

6510Florida HousingÓs determination t hat the applicant is

6518ineligible for funding. See Trinity Towers Preservation Assoc .

6527LLLP v. Fla. Housing Fin. Corp. , FHFC Case No. 2012 - 024UC,

65392012 Fla. Div. Admin. Hear. LEXIS 869 (FHFC Final Order June 8,

65512012)(adopting a hearing officerÓs recommended c onclusion of law

6560that Ð[b]ecause Florida Housing determined that Petitioner was

6568ineligible for funding due to failure to meet a threshold

6578requirement, PetitionerÓs substantial interests are affected by

6585Florida HousingÓs proposed agency action.Ñ ); § 120.569 (1), Fla.

6595Stat. (providing that Ð[t]he provisions of this section apply in

6605all proceedings in which the substantial interests of a party

6615are determined by an agency, unless the parties are proceeding

6625under s. 120.573 or s. 120.574.Ñ).

663198. M oreover, unde r the circumstances of the instant case,

6642it is inaccurate to take the position that Ð[t] he EUA amendment

6654requests and the RFA Application submissions are two separate

6663issues .Ñ

666599. By requiring through r ule 67 - 48.023(1) that lands

6676associated with propos ed developments not be subject to an EUA,

6687Florida Housing has tied the EUA amendment process and the RFA

6698application process together. This is especially true in light

6707of the fact that prospective applic ants for tax credits must

6718obtain approval for an EUA amend ment from Florida Housing.

6728100. Therefore, under the circumstances of the instant

6736case, Florida HousingÓs actions (or inactions) pertaining to

6744PetitionersÓ requests to amend their EUAs are inextricably

6752linked to Florida HousingÓs proposed agency a ction deeming

6761PetitionersÓ applications ineligible for funding under RFA 2016 -

6770114.

6771101. A contrary determination concluding that FloridaÓs

6778Housing actions (or inactions) pertaining to PetitionersÓ EUA

6786amendment requests are immune from any sort of review would

6796create an opportunity for Florida Housing to engage in

6805favoritism or to act contrary to competition by expeditiously

6814processing requests from preferred applicants and delaying the

6822processing of request s from less favored applicants.

6830102. If Florid a HousingÓs rationale was to be generally

6840applied to all types of bid protests, then any applicant who

6851needed some sort of credential or other documentation from the

6861contracting agency would have no means of redress if the

6871contracting agency intentionally withheld that

6876credential/documentation or unreasonably (but non - maliciously)

6883delayed provision of t hat credential/documentation.

6889103. Such a result would undermine the intent behind the

6899Administrative Procedure Act and section 120.57(3). See

6906generally Commercial Consultants Corp. v. DepÓt of Bus. Reg . ,

6916363 So. 2d 1162 , 1163 (Fla. 1 st DCA 1978)(stating that Ð[t]he

6928APA applies to all agency action affecting the substantial

6937interests of a party.Ñ); Eduardo S. Lombard, Bid Dispute

6946Resolution , Fla. Admin. Pr actice § 11.4 (10 th ed. 2015)

6957(explaining that Ð[t]he ultimate question in procurement

6964disputes is whether one vendor has received an advantage over

6974other vendors. If one bidder is or potentially could be

6984provided an advantage not enjoyed by the other ven dors, the

6995potential for favoritism arises and the ultimate purpose of

7004requiring competitive solicitations is thwarted.Ñ).

7009104. Accordingly, the undersigned concludes that DOAH has

7017jurisdiction to assess whether any delay by Florida Housing in

7027granting t he amended EUAs for Moretti Phase Three and Stirrup

7038Plaza Phase Three was arbitrary, capricious, or contrary to

7047competition .

7049Florida HousingÓs Actions and/or Inactions Toward PetitionersÓ

7056Requests to Amend the EUAs Were Not Arbitrary, Capricious, or

7066Contr ary to Competition.

7070105. As discussed above, Moretti Phase Three and Stirrup

7079Plaza Phase Three argu e that Florida HousingÓs actions (or

7089inactions) pertaining to the requests to amend the EUAs w ere

7100arbitrary, capricious, or contrary to competition. In o ther

7109words, the issue for determination is whether Florida Housing

7118acted arbitrarily, capriciously, or contrary to competition when

7126it failed to act more expeditiously in granting the request s to

7138amend the EUAs.

7141106. An agency takes action Ð contrary to competition Ñ when

7152it unreasonably interferes with the objectives of competitive

7160bidding. Those objectives have been stated to be:

7168[T]o protect the public against collusive

7174contracts; to secure fair competition upon

7180equal terms to all bidders; to remove n ot

7189only collusion but temptation for collusion

7195and opportunity for gain at public expense;

7202to close all avenues to favoritism and fraud

7210in various forms; to secure the best values

7218for the [public] at the lowest possible

7225expense; and to afford an equal adva ntage to

7234all desiring to do business with the

7241[government], by affording an opportunity

7246for an exact comparison of bids.

7252Harry Pepper & Assoc., Inc. v. City of Cape Coral , 352 So. 2d

72651190, 1192 (Fla. 2d DCA 1977)(quoting Wester v. Belote , 138 So.

7276721, 72 3 - 724 (Fla. 1931)).

7283107. ÐA capricious action is one taken without thought or

7293reason or irrationally. An arbitrary decision is one not

7302supported by facts or logic, or [one that is] despotic.Ñ Agrico

7313Chem. Co. v. DepÓt of Envtl. Reg. , 365 So. 2d 759, 7 63 (Fla. 1 st

7329DCA 1978).

7331108. In the instant case, there is no persuasive evidence

7341that Ms. Nickerson, Mr. Reecy, or any other relevant personnel

7351at Florida Housing were aware prior to Mr. Del Pozzo

7361transmitting the following e - mail on December 12, 2016, that

7372Moretti Phase Three and Stirrup Plaza Phase Three were seeking

7382to amend the EUAs so that they could apply for RFA 2016 - 114:

7396I left a voicemail message for Ken [Reecy]

7404this morning, asking him to follow up with

7412me if he had any questions or needed a ny

7422additional information to sign - off on the

7430modifications to the EUAs. I also wanted to

7438make sure he was aware that we are modifying

7447the EUAÓs so that we can submit new phases

7456to the projects in this yearÓs 9% LIHTC RFA

7465for Miami - Dade County. Applicatio ns are due

7474on 12/15. So, we would greatly appreciate

7481it if he could sign off on the modifications

7490in advance of the application deadline. I

7497will take scanned copies whenever they are

7504ready.

750510 9 . There is also no persuasive evidence that

7515Ms. Nickerson, Mr. Reecy, or any other relevant personnel at

7525Florida Housing were aware prior to the above - quoted e - mail that

7539any sort of time constraint was associated with their requests

7549to amend the EUAs.

75531 10 . Without any persuasive evidence that Florida Housing

7563was aware or timely notified that Moretti Phase Three and

7573Stirrup Plaza Phase Three were working under a deadline , the

7583undersigned cannot conclude that Florida HousingÓs failure to

7591act more expeditiously on the requests to amend the EUAs was

7602arbitrary, caprici ous, or unreasonably interfere d with the

7611objectives of competitive bidding.

761511 1 . In contrast, if Mr. Del Pozzo had advised Florida

7627Housing on November 1, 2016, or soon thereafter that it needed

7638the EUAs to be amended by December 15, 2016, t hen any

7650unrea sonable delay by Florida Housing in processing those

7659requests could have potentially serve d as a basis for concluding

7670that Florida Housing acted arbitrarily, capriciously, or

7677contrary to competition. In other words , any unreasonable delay

7686on Florida Housi ng Ós part could have led a reasonable person to

7699infer that Florida Housing preferred other applicant s and was

7709intentionally attempting to undermine the applications of

7716Moretti Phase Three and Stirrup Plaza Phase Three .

772511 2 . However, there is no persuasi ve evidence that Florida

7737Housing unreasonably or intentionally dela yed the processing of

7746the applications. Ms. Nickerson provided timely responses to

7754Mr. Del PozzoÓs e - mails, she made appropriate requests for more

7766documentation, and she transferred the ap plications to Mr. Reecy

7776within a reasonable amount of time. While Mr. Reecy had the

7787request to amend the Moretti EUA by November 29, 2016, he did

7799not immediately approve the request because he had a concern

7809regarding the large amount of land involved. 7 /

781811 3 . The parties did not cite any analogous cases in their

7831Proposed Recommended Orders , and the undersigned was unable to

7840find any Florida cases with a similar fact pattern .

785011 4 . However, after expanding the search for relevant case

7861law beyond Florida, the undersigned found MVS USA, Inc. v. U.S. ,

7872111 Fed. Cl. 639 ( 2013).

787811 5 . MVS involved a Request for Quote (ÐRFQÑ) for a

7890spectrum of satellite communication services to support the

7898Joint Battle Command - Platform Blue Force Tracking under the

7908Future Com mercial Satellite Communications Services Acquisition

7915Program (Ðthe FCSA ProgramÑ). The FCSA Program was a

7924partnership between the General Services Administration (ÐGSAÑ)

7931and the Defense Information Systems Agency (ÐDISAÑ). Id. at

7940643.

794111 6 . On Novembe r 15, 2012, DISA issued an RFQ seeking

7954quotes for the aforementioned satellite services. The quotes

7962were due by December 14, 2012, and the contract was to be

7974awarded by February 1, 2013. Id. at 645. Bidders had to have

7986security clearance.

798811 7 . On Dec ember 6, 2012, MVS submitted an application for

8001security clearance to Anne Miller, a GSA contract specialist.

8010Ms. Miller then forwarded the application to Donald Carlson, the

8020FCSA Program Security Manager. MVS at 645.

80271 1 8 . O n February 13, 2013, DISA det ermined that MVS had

8042submitted the lowest - priced technically acceptable quote.

8050However, MVSÓs quote was ineligible because MVS did not have the

8061required security clearance. As a result , DISA awarded the

8070contract to Northrup Grumman. Id. at 646.

80771 1 9 . In ruling against MVSÓs challenge to GSAÓs actions in

8090handling MVSÓs request for security clearance, the Court of

8099Federal Claims ruled as follows:

8104The record reflects a long period of

8111inaction between December 6, 2012, and

8117February 1, 2013, on the part of GS A.

8126During that time, MVS did not contact GSA to

8135inquire about its application for a facility

8142security clearance until it received a

8148letter from DISA requesting a final

8154quotation revision and proof of facility

8160clearance. See AR 32 - 1788 to - 89 (Request

8170for Final Quotation Revision). MVS

8175represents that its inactivity was

8180reasonable, because it contends that the

8186evaluation notices sent by DISA in late

8193December made no mention that MVS's

8199submission with respect to a facility

8205clearance was deficient. See Hr' g Tr. 72:2 -

821418. It claims that it acted promptly to

8222resolve the matter after receiving notic e

8229from DISA that proof of a security clearance

8237would be needed in February. See Hr'g Tr.

824572:18 - 22. The court concurs that MVS's

8253actions are understandable in ligh t of the

8261circumstances. MVS did not hinder the

8267facility clearance application process in

8272any manner.

8274Regarding GSA's actions, Mr. Carlson

8279provides an explanation for his delay in

8286processing MVS's facility clearance request.

8291He notes tha t between December 6, 2012,

8299and February 1, 2013, he worked "on the

8307development of [six] DD - 254 packages,

8314including MVS's, as well as . . . numerous

8323others that were in various stages of

8330development or modification award

8334processing." Decl. of Donald V. Carlson

8340("Carlson De cl.") ¶ 14 (May 10, 2013), ECF

8351No. 44. He states that he also worked on a

8361security audit report and was on personal

8368leave for sixteen days during that time

8375period. Id. Mr. Carlson additionally

8380says he halte d the processing of DD Form

8389254 requests for a two - week period in

8398January while DSS "was questioning

8403whether a bona fide need existed for any

8411facility clearances under SINs 132 - 54 and

8419132 - 55 under Schedule 70." Id. ¶ 15. He

8429resumed processing requests after that issue

8435was resolved and "worked on all the

8442vendors['] requests for facility clearances

8447and did not expedite the request of any

8455particular vendor." Id. ¶ 16. Mr. Carlson,

8462however, notes that he did expedite the

8469processing of MVS's request as soon as he

8477was informed that the matter required pro mpt

8485consideration. Id. ¶ 17.

8489Under these circumstances, the court cannot

8495say that MVS's quote and attendant request

8502for a facility security clearance did not

8509receive fair consideration as required by

8515FAR 8.405 - 2(c)(3)(iii). While Mr. Carlson

8522certainly di d not act with alacrity, vigor,

8530or timeliness, he provided a propinquent

8536level of bureaucratic service and

8541consideration. He did not actively ignore

8547any indications that MVS's request was

8553urgent, and he provided MVS with appropriate

8560action once he became aware of the exigency.

8568In sum, MVS has not demonstrated that the

8576government, acting through GSA or DISA, has

8583committed a violation of FAR 8.405 -

85902(c)(3)(iii).

8591MVS at 652 - 53.

85961 20 . Just like Mr. Carlson , Florida HousingÓs staff:

8606(a) provided a reasonable level of bureaucratic service and

8615consideration ; (b) did not ignore any indications that the

8624Moretti Phase Three and Stirrup Plaza Phase Three requests were

8634urgent; and (c) provided appropriate action when they became

8643aware of the urgency.

864712 1 . Therefor e, Florida HousingÓs actions or inactions

8657pertaining to the Moretti Phase Three and Stirrup Plaza Phase

8667Three requests were not arbitrary, capricious, or contrary to

8676competition. 8 /

8679RECOMMENDATION

8680Based on the foregoing Findings of Fact and Con clusions

8690o f Law, it is RECOMMENDED that the Florida Housing Finance

8701Corporation issue a final order awarding funding to Ambar Key,

8711Ltd. ; Verb e na , LLC ; and Northside Property IV, Ltd.

8721DONE AND ENTERED this 9 th day of June, 2017, in

8732Tallahassee, Leon County, Flor ida.

8737S

8738G. W. CHISENHALL

8741Administrative Law Judge

8744Division of Administrative Hearings

8748The DeSoto Building

87511230 Apalachee Parkway

8754Tallahassee, Florida 32399 - 3060

8759(850) 488 - 9675

8763Fax Filing (850) 921 - 6847

8769www.doah.state.fl.u s

8771Filed with the Clerk of the

8777Division of Administrative Hearings

8781this 9 th day of June, 2017.

8788ENDNOTE S

87901/ Unless stated otherwise, all statutory references will be to

8800the 2016 version of the Florida Statutes.

88072 / Moretti Phase Three and Stirrup Pl aza Phase Three had one or

8821more representatives present at the workshop for RFA 2016 - 114,

8832and an argument could be made that they could have moved to

8844amend the EUAs at issue as soon as it became evident that RFA

88572016 - 114 would prohibit any proposed develop ment from being

8868subject to an EUA . However, Mr. Del Pozzo persuasively

8878explained that draft RFAs are subject to change and that moving

8889to amend an RFA prior to it being finalize d could lead to wasted

8903effort.

89043/ Mr. Del Pozzo asserted at the final hear ing that the

8916underlined portion of his e - mail should have put Florida

8927Housing on notice that Moretti Phase Three was preparing an

8937application for RFA 2016 - 114 because that was to be the last RFA

8951for 2016. However, the undersigned finds that sentence to be

8961insufficiently explicit to support a finding that such notice

8970was conveyed to Florida Housing.

89754/ W hile Mr. Del Pozzo i s the Vice President of Finance for the

8990Related Group, Mr. Milo is the Principal and Senior Vice

9000President of the Related Group .

90065 / Al though competitive solicitation /bid protest proceedings are

9016described in section 120.57(3), as being de novo in nature,

9026courts acknowledge that these de novo proceedings are not like

9036other substantial interest proceedings under section 120.57.

9043Heari ngs pursuant to section 120.57(3)(f) have been described as

9053a Ðform of intra - agency review. The judge may receive evidence,

9065as with any formal hearing under § 120.57(1), but the object of

9077the proceeding is to evaluate the action taken by the agency.Ñ

9088Sta te Contracting and EngÓg Corp. v. DepÓt of Transp. , 709 So.

91002d 607, 609 (Fla. 1 st DCA 1998).

91086 / DOAHÓs jurisdiction was n ot set forth as an issue in

9121the Pre - hearing Stipulation or a motion to dismiss, and was

9133not discussed during the formal hearing. Under normal

9141circumstances, that would lead the undersigned to rul e that an

9152issue was not properly raised. See Palm Beach Polo Holdings,

9162Inc. v. Broward Marine, Inc. , 174 So. 3d 1037, 1038 - 39 (Fla. 4 th

9177DCA 2015)(stating that Ð[p]retrial stipulations pres cribing the

9185issues on which a case is to be tried are binding upon the

9198parties and the court, and should be strictly enforced.Ñ ); Fla.

9209Admin. Code R. 28 - 106.204(2)(providing that Ð[u]nless otherwise

9218provided by law, motions to dismiss the petition or reque st for

9230hearing shall be filed no later than 20 days after assignment of

9242the presiding officer, unless the motion is based upon a lack of

9254jurisdiction or incurable errors in the petition.Ñ). However,

9262Florida HousingÓs argument appears to implicate DOAHÓs s ubject

9271matter jurisdiction. Therefore, the undersigned elected to

9278address Florida HousingÓs jurisdiction argument because

9284Ð[p]arties may not confer subject matter jurisdiction by waiver,

9293failure to object, or consent where none is given by law.Ñ

9304DepÓt of High . Saf . & Motor Veh . , Div. of Highway Patrol v.

9319Kropff , 491 So. 2d 1252 , 1254 n.1 (Fla. 3d DCA 1986).

93307 / Mr. Reecy persuasively testified that he did not delay the

9342requests. Also, he would have acted more quickly if he had

9353known of the time constr aint .

93608 / In light of this ruling , there is no need to address Moretti

9374Phase ThreeÓs Motion in Limine. Accordingly, it is denied as

9384being moot.

9386COPIES FURNISHED:

9388Hugh R. Brown, General Counsel

9393Florida Housing Finance Corporation

9397Suite 5000

9399227 No rth Bronough Street

9404Tallahassee, Florida 32301 - 1329

9409(eServed)

9410Michael P. Donaldson, Esquire

9414Carlton Fields Jorden Burt, P.A.

9419Post Office Drawer 190

9423Tallahassee, Florida 32302 - 0190

9428(eServed)

9429Marisa G. Button, Esquire

9433Florida Housing Finance Corporation

9437Suite 5000

9439227 North Bronough Street

9443Tallahassee, Florida 32301

9446(eServed)

9447Betty Zachem, Esquire

9450Florida Housing Finance Corporation

9454Suite 5000

9456227 North Bronough Street

9460Tallahassee, Florida 32301

9463(eServed)

9464Sarah Kathleen Vespa, Esquire

9468Gunster, Yoakley & Stewart, P.A.

9473401 East Jackson Street

9477Tampa, Florida 33602

9480(eServed)

9481Derek E. Bruce, Esquire

9485Gunster, Yoakley & Stewart, P.A.

9490Suite 1400

9492200 South Orange Avenue

9496Orlando, Florida 32801

9499(eServed)

9500Tana D. Storey, Esquire

9504Rutledge Ecenia, P.A.

9507Suit e 202

9510119 South Monroe Street

9514Tallahassee, Florida 32301

9517(eServed)

9518J. Stephen Menton, Esquire

9522Rutledge Ecenia, P.A.

9525119 South Monroe Street, Suite 202

9531Post Office Box 551 (32302)

9536Tallahassee, Florida 32301

9539(eServed)

9540M. Christopher Bryant, Esquire

9544Oerte l, Fernandez, Bryant & Atkinson, P.A.

9551Post Office Box 1110

9555Tallahassee, Florida 32302 - 1110

9560(eServed)

9561James A. Boyd, Esquire

9565Boyd Law Office, P.A.

9569Post Office Box 69

9573Panama City, Florida 32402

9577(eServed)

9578Kate Flemming , Corporation Clerk

9582Florida Housing Finance Corporation

9586Suite 5000

9588227 North Bronough Street

9592Tallahassee, Florida 32301 - 1329

9597(eServed)

9598NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

9604All parties have the right to submit written exceptions within

96141 0 days from the date of this Recomm ended Order. Any exceptions

9627to this Recommended Order should be filed with the agency that

9638will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 11/27/2017
Proceedings: Agency Final Order filed.
PDF:
Date: 11/27/2017
Proceedings: Agency Final Order filed.
PDF:
Date: 07/28/2017
Proceedings: Agency Final Order
PDF:
Date: 07/28/2017
Proceedings: Agency Final Order
PDF:
Date: 06/19/2017
Proceedings: Respondent, Florida Housing Finance Corporation, and Intervenor, GM Silver Creek, LTD's Joint Exceptions to Recommended Order filed.
PDF:
Date: 06/09/2017
Proceedings: Recommended Order
PDF:
Date: 06/09/2017
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 06/09/2017
Proceedings: Recommended Order (hearing held April 12, 2017). CASE CLOSED.
PDF:
Date: 05/10/2017
Proceedings: Intervenor, GM Silver Creek, Ltd.'s Proposed Recommended Order filed.
PDF:
Date: 05/10/2017
Proceedings: Intervenor, GM Silver Creek, Ltd's Notice of Filing Proposed Recommended Order filed.
PDF:
Date: 05/09/2017
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 05/09/2017
Proceedings: Intervenor's Notice of Filing Proposed Recommended Order filed.
PDF:
Date: 05/09/2017
Proceedings: (Joe Moretti Phase Three, LLC and Stirrup Plaza Phase Three, LLC Proposed) Recommended Order filed.
PDF:
Date: 05/09/2017
Proceedings: Notice of Filing Petitioners' Proposed Recommended Orders filed.
PDF:
Date: 05/04/2017
Proceedings: Order Granting Extension of Time.
PDF:
Date: 05/04/2017
Proceedings: Unopposed Motion for Extension of Time to File Proposed Recommended Orders filed.
PDF:
Date: 04/20/2017
Proceedings: Order Granting "Joint Motion to Sever and Relinquish Jurisdiction of Case Number 17-1545BID." (DOAH Case No. 17-1545BID is Closed.)
Date: 04/12/2017
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 04/11/2017
Proceedings: Notice of Appearance (James Boyd) filed.
PDF:
Date: 04/11/2017
Proceedings: Notice of Appearance (James Boyd; filed in Case No. 17-001545BID).
PDF:
Date: 04/11/2017
Proceedings: GM Silver Creek, Ltd., Ambar Key, Ltd., and Florida Housing Finance Corporation's Joint Motion to Sever and Relinquish Jurisdiction of Case Number 17-1545BID filed.
PDF:
Date: 04/11/2017
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 04/11/2017
Proceedings: Order Granting "Unopposed Motion to Extend Time for Filing Joint Pre-hearing Stipulation".
PDF:
Date: 04/10/2017
Proceedings: Unopposed Motion to Extend Time for Filing Joint Pre-hearing Stipulation filed.
PDF:
Date: 04/10/2017
Proceedings: Notice of Service of Verbena, LLC's Unverified Answers to Joe Moretti Phase Three, LLC's 1st Interrogatories to Verbena, LLC filed.
PDF:
Date: 04/10/2017
Proceedings: Petitioner GM Silver Creek, LTD.'s Notice of Filing Affidavit of Gerald E. Bryan filed.
PDF:
Date: 04/07/2017
Proceedings: Intervenor Ambar Key, LTD.'s Notice of Re-scheduled Telephonic Deposition of Rey Villar (amended as to date and time) filed.
PDF:
Date: 04/05/2017
Proceedings: Intervenor Ambar Key, Ltd.'s Notice of Taking Telephonic Deposition of Rey Villar filed.
PDF:
Date: 04/05/2017
Proceedings: Verbena, LLC's Response to Joe Moretti Phase Three, LLC's Motion in Limine (filed in Case No. 17-001545BID).
PDF:
Date: 04/05/2017
Proceedings: Notice of Appearance (J. Menton; filed in Case No. 17-001545BID).
PDF:
Date: 04/04/2017
Proceedings: Joe Moretti Phase Three, LLC's Notice of Service of First Interrogatories to Verbena, LLC filed.
PDF:
Date: 04/03/2017
Proceedings: Petitioner GM Silver Creek's Response to Ambar Key's Request for Admission filed.
PDF:
Date: 04/03/2017
Proceedings: GM Silver Creek, LTD.'s Notice of Service of Answers and Objections to Intervenor, Ambar Key, LTD.'s First Set of Interrogatories and First Request to Produce filed.
PDF:
Date: 04/03/2017
Proceedings: Intervenor Ambar Key, LTD.'s Response to Petitioner GM Silver Creek, LTD.'s Request for Admissions filed.
PDF:
Date: 04/03/2017
Proceedings: Intervenor Ambar Key, LTD.'s Notice of Service of Answers and Objections to Petitioner GM Silver Creek, LTD.'s First Set of Interrogatories and First Request for Production filed.
PDF:
Date: 03/30/2017
Proceedings: Amended Notice of Taking Deposition (Amended as to Date, Time, and Location) filed.
PDF:
Date: 03/29/2017
Proceedings: Joe Moretti Phase Three, LLC's Motion in Limine filed.
PDF:
Date: 03/29/2017
Proceedings: Intervenor Ambar Key, LTD.'s First Requests for Admission to Petition GM Silver Creek, LTD filed.
PDF:
Date: 03/29/2017
Proceedings: Intervenor Ambar Key, Ltd.'s Notice of Service of First Set of Interrogatories and First Request to Produce to Petitioner GM Silver Creek, Ltd filed.
PDF:
Date: 03/28/2017
Proceedings: Petitioner, GM Silver Creek's Request for Admissions to Intervenor, Ambar Key, Ltd., filed.
PDF:
Date: 03/28/2017
Proceedings: Petitioner, GM Silver Creek's First Request for Production Intervenor, Ambar Key, Ltd., filed.
PDF:
Date: 03/28/2017
Proceedings: Notice of Serving Petitioner, GM Silver Creek's First Set of Interrogatories to Intervenor, Ambar Key, Ltd., filed.
PDF:
Date: 03/28/2017
Proceedings: Notice of Taking Deposition filed.
PDF:
Date: 03/28/2017
Proceedings: Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 03/27/2017
Proceedings: Petitioners' Joe Moretti Phase Three, LLC and Stirrup Plaza Phase Three, LLC's Notice of Taking Depositions Duces Tecum filed.
PDF:
Date: 03/23/2017
Proceedings: Order Regarding GM Silver Creek's "Motion For Leave To Intervene".
PDF:
Date: 03/23/2017
Proceedings: Order Granting Ambar Key, LTD.'s Unopposed " Petition for Leave to Intervene".
PDF:
Date: 03/23/2017
Proceedings: Order Granting Verbena, LLC's " Petition to Intervene".
PDF:
Date: 03/21/2017
Proceedings: Joe Moretti Phase Three, LLC's Response to Verbena, LLC's Motion to Intervene filed.
PDF:
Date: 03/20/2017
Proceedings: Ambar Key, Ltd's Unopposed Petition for Leave to Intervene filed.
PDF:
Date: 03/20/2017
Proceedings: Notice of Appearance (J. Menton) filed.
PDF:
Date: 03/20/2017
Proceedings: Notice of Appearance (Tana Storey) filed.
PDF:
Date: 03/20/2017
Proceedings: Verbena, LLC's Petition to Intervene filed.
PDF:
Date: 03/20/2017
Proceedings: Verbena, LLC's Petition to Intervene filed.
PDF:
Date: 03/17/2017
Proceedings: Notice of Appearance (Derek Bruce; filed in Case No. 17-001545BID).
PDF:
Date: 03/17/2017
Proceedings: Notice of Appearance (Derek Bruce; filed in Case No. 17-001544BID).
PDF:
Date: 03/17/2017
Proceedings: Notice of Appearance (Derek Bruce) filed.
PDF:
Date: 03/17/2017
Proceedings: Notice of Appearance (Sarah Vespa) filed.
PDF:
Date: 03/17/2017
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 03/17/2017
Proceedings: Notice of Hearing (hearing set for April 12, 2017; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 03/17/2017
Proceedings: Notice of Appearance of Co-Counsel (Betty Zachem; filed in Case No. 17-001545BID).
PDF:
Date: 03/17/2017
Proceedings: Notice of Appearance (filed in Case No. 17-001545BID).
PDF:
Date: 03/17/2017
Proceedings: Notice of Appearance of Co-Counsel (filed in Case No. 17-001544BID).
PDF:
Date: 03/17/2017
Proceedings: Notice of Appearance of Co-Counsel filed.
PDF:
Date: 03/16/2017
Proceedings: Order of Consolidation (DOAH Case Nos. 17-1543BID, 17-1544BID and 17-1545BID).
PDF:
Date: 03/16/2017
Proceedings: Notice of Appearance (Marisa Button) filed.
PDF:
Date: 03/14/2017
Proceedings: Notice of Intent to Protest filed.
PDF:
Date: 03/14/2017
Proceedings: Unopposed Motion to Consolidate Cases filed.
PDF:
Date: 03/14/2017
Proceedings: GM Silver Creek's Motion for Leave to Intervene filed.
PDF:
Date: 03/14/2017
Proceedings: Verbena, LLC's Petition to Intervene filed.
PDF:
Date: 03/14/2017
Proceedings: Notice to All Bidders on RFA 2016-114 filed.
PDF:
Date: 03/14/2017
Proceedings: Formal Written Protest and Petition for Administrative Hearing filed.
PDF:
Date: 03/14/2017
Proceedings: Agency referral filed.

Case Information

Judge:
G. W. CHISENHALL
Date Filed:
03/14/2017
Date Assignment:
03/14/2017
Last Docket Entry:
11/27/2017
Location:
Tangerine, Florida
District:
Middle
Agency:
ADOPTED IN PART OR MODIFIED
Suffix:
BID
 

Counsels

Related Florida Statute(s) (6):

Related Florida Rule(s) (2):