18-002027BID Four6 Skyway, Llc, And Dda Development, Llc vs. Florida Housing Finance Corporation Status: Closed Recommended Order on Tuesday, July 24, 2018.

Summary: Petitioner failed to prove that Florida Housing's intended award of funding was contrary to its governing statutes, rules, or the solicitation specifications; or, that Florida Housing should have waived Petitioner's error as a "minor irregularity."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FOUR6 SKYWAY, LLC, AND DDA

DEVELOPMENT, LLC,

Petitioners,

vs. Cas e No. 18 - 2027BID

FLORIDA HOUSING FINANCE

CORPORATION AND EAGLE RIDGE

APARTMENTS, LLLP,

Respondents.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was conducted before J.

Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1) and (3), Florida Statutes (201 7), 1/ on May 23, 2018, in

Tallahassee, Florida.

APPEARANCES

For Petitioner s FOUR6 Skyway , LLC ; AND DDA D evelopment , LLC

(ÐFOUR6 SkywayÑ):

Craig D. Varn, Esquire

Manson Bolves Donaldson Varn

106 East College Avenue , Suite 820

Tallahassee, Florida 32301

A my Wells Brennan, Esquire

Manson Bolves Donaldson Varn, P.A.

109 North Brush Street, Suite 300

Tampa, Florida 33602

For Respondent F lorida H ousing F inance C orporation (ÐFlorida

HousingÑ):

Christopher Dale McGuire, Esquire

Florida Housing Finance Corpora tion

227 North Bronough Street , Suite 5000

Tallahassee, Florida 32301

For Respondent E agle R idge A partments , LLLP (ÐEagle RidgeÑ):

Michael P. Donaldson, Esquire

Carlton Fields Jorden Burt, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

T allahassee, Florida 32302 - 0190

STATEMENT OF THE ISSUE

The issue to determine in this bid protest matter is whether

Respondent, Florida Housing Finance CorporationÓs, intended award

of funding under Request for Applications 2017 - 113 was contrary

to its go verning statutes, rules, or the solicitation

specifications.

PRELIMINARY STATEMENT

This matter involves a protest to a Notice of Intent to

Award issued by Florida Housing. On October 6, 2017, Florida

Housing, through Request for Applications 2017 - 113 (ÐR FA 2017 -

113Ñ), solicited applications to allocate competitive housing

credits for affordable housing developments located in Broward,

Duval, Hillsborough, Orange, Palm Beach, and Pinellas Counties.

On March 16, 2018, Florida Housing posted notice of its

in tent to award funding in Pinellas County to Eagle Ridge.

On March 21, 2018, Petitioner timely filed a formal written

protest of th e award with Florida Housing. 2/ On April 18, 2018,

Florida Housing referred the protest to the Division of

Administrative H earings (ÐDOAHÑ) for assignment to an

Administrative Law Judge (ÐALJÑ) to conduct a chapter 120

evidentiary hearing. 3/

The final hearing was held on May 23, 2018. Joint Exhibits

1 through 10 were admitted into evidence. FOUR6 SkywayÓs

Exhibits 1, 8 thro ugh 11, and 19 were admitted into evidence.

Eagle RidgeÓs Exhibits 1 through 4 and 7 were admitted into

evidence . 4/ Florida Housing presented the testimony of Marisa

Button. Eagle Ridge called Alissa Sieben to testify. 5/ Following

the hearing, FOUR6 Sk yway filed the deposition testimony of Karla

Brown, which has been accepted into evidence.

A two - volume Transcript of the final hearing was filed with

DOAH on June 6, 2018. At the close of the hearing, the parties

were advised of a ten - day time frame af ter receipt of the hearing

transcript to file post - hearing submittals. All parties filed

Proposed Recommended Orders , which were duly considered in

preparing this Recommended Order.

FINDING S OF FACT

1. Florida Housing is a public corporation created purs uant

to section 420.504, Florida Statutes. Its purpose is to provide

and promote public welfare by administering the governmental

function of financing affordable housing in Florida.

2. Florida Housing has been designated as the housing credit

agency f or Florida within the meaning of section 42(h)(7)(A) of

the Internal Revenue Code. As such, Florida Housing is authorized

to establi sh procedures to distribute low - income housing tax

credits and to exercise all powers necessary to administer the

allocatio n of these credits. § 420.5099, Fla. Stat. For purposes

of this administrative proceeding, Florida Housing is considered

an agency of the State of Florida.

3. Florida Housing administers the competitive solicitation

process to award low - income housing t ax credits and other funding

by means of request for proposals or other competitive

solicitation. Florida Housing initiates the competitive

solicitation process by issuing a Request for Applications.

§§ 420.507(48) and 420.5087(1), Fla. Stat.; and Fla. Admin.

Code R. 67 - 60.009(4).

4. The low - income housing tax credit program (commonly

referred to as Ðtax creditsÑ or Ðhousing creditsÑ) was enacted to

incentivize the private market to invest in affordable rental

housing. Tax credits are awarded competit ively to real estate

developers in Florida for rental housing projects which qualify.

Typically, developers then sell the tax credits to raise capital

for their housing projects. Because tax credits allow developers

to reduce the amount necessary to fund a housing project, they

can (and must) offer the tax credit property at lower, more

affordable rents. Developers also agree to keep rents at

affordable levels for periods of 30 to 50 years.

5. The Request for Applications at issue in this matter is

RFA 2017 - 113, enti tled ÐHousing Credit Financing f or Affordabl e

Housing Developments Located i n Broward, Duval, Hillsborough,

Orange, Palm Beach, and Pinellas Counties.Ñ The purpose of

RFA 2017 - 113 is to distribute funding to create affordable

housing develo pments in the State of Florida. Through

RFA 2017 - 113, Florida Housing intends to provide an estimated

$14,601,863.00 of housing credit financing.

6. Florida Housing issued RFA 2017 - 113 on October 6, 2017.

Applications were due to Florida Housing by D ecember 28, 2017. 6/

7. Florida Housing received 33 applications in response to

RFA 2017 - 113. Five proposed developments, including FOUR6

Skyway 7/ and Eagle Ridge, applied for funding for housing credits

in Pinellas County. Upon receipt of the applicat ions, Florida

Housing assigned each applicant a lottery number.

8. Florida Housing created a Review Committee from amongst

its staff to score each application. The Review Committee

reviewed, deemed eligible or ineligible, and ranked applications

pursua nt to the terms of RFA 2017 - 113, as well as Florida

Administrative Code Chapters 67 - 48 and 67 - 60, and a pplicable

federal regulations.

9. As further explained below, the Review Committee deemed

FOUR6 SkywayÓs application ineligible for consideration under

RFA 2017 - 113. Specifically, the Review Committee determined that

FOUR6 SkywayÓs application failed to state its housing projectÓs

Development Location Point in Ðdecimal degrees, rounded to at

least the sixth decimal pointÑ as expressly required by Secti on

Four, A.5.d(1) , of RFA 2017 - 113.

10. Conversely, the Review Committee found that Eagle

RidgeÓs application satisfied all mandatory and eligibility

requirements for funding and was awarded 20 out of 20 total

points. Eagle Ridge was assigned a lottery number of 16.

11. On March 16, 2018, the Review Committee presented its

recommendation of preliminary rankings and allocations to Florida

HousingÓs Board of Directors. Based on the Review CommitteeÓs

recommendations, the Board of Directors (without ex planation)

stated that FOUR6 Skyway did not satisfy all mandatory and

eligibility requirements for funding. Consequently, although

FOUR6 Skyway was assigned a lower lottery number of 2 , the Board

of Directors selected Eagle Ridge for funding to develop

af fordable housing in Pinellas County. ( Only applications that

met all eligibility requirements were considered for selection.)

The Board of Directors approved $1,660,000.00 in housing credit

funding for Eagle RidgeÓs housing project.

12. FOUR6 Skyway pro tests Florida HousingÓs selection of

Eagle Ridge instead of its own housing project. FOUR6 Skyway

specifically challenges Florida HousingÓs determination that its

application was ineligible under the terms of RFA 2017 - 113. I f

FOUR6 Skyway successfully de monstrates that Florida Housing erred

in disqualifying its application, FOUR6 Skyway, by virtue of

holding the lower lottery number, will be selected for housing

credit financing in Pinellas County instead of Eagle Ridge.

13. The focus of FOUR6 SkywayÓs challenge is the

information it provided in response to RFA 2017 - 113, Section

Four, A.5.d., entitled ÐLati tude/Longitude Coordinates.Ñ

14. RFA 2017 - 113, Section Four, A.5, entitled ÐLocation of

Proposed DevelopmentÑ instructs, in pertinent part:

a. The Applicant must indicate the county

where the proposed Development will be

located. This RFA is only open to proposed

Developments located in Broward, Duval,

Hillsborough, Orange, Palm Beach, and

Pinellas counties.

* * *

d. Latitude/Longitude Co ordinates

(1) All applicants must provide a

Development Location Point [ 8/ ] stated in

decimal degrees, rounded to at least the

sixth decimal place.

15. In its application, FOUR6 Skyway responded to Section

Four, A.5.d(1), as follows:

[Latitude in decimal degrees, rounded to at

least the sixth decimal place.]

N 27 43 34.215880

[Longitude in decimal degrees, rounded to at

least the sixth decimal place]

W 82 40 47.887360

16. As shown above, FOUR6 Skyway stated its Development

Location Point in a Ðdegre e/minute/secondÑ format instead of the

required Ðdecimal degreesÑ format. 9/ Because FOUR6 Skyway fai led

to comply with the Section A.5.d instruction to state the

Development Location Point in decimal degrees, the R eview

Committee (and subsequently the Boa rd of Directors) determined

that FOUR6 SkywayÓs application was ineligible for funding. 10 /

17. In arguing that its application was eligible under

RFA 2017 - 113, FOUR6 Skyway contends that map coordinates written

in a Ðdegree/minute/secondÑ format may be converted to decimal

degrees by using the following mathematical equation:

Degree minute/60 second/3600 = decimal degrees.

Using this formula, the coordinates FOUR6 Skyway listed in its

application can be converted into the following decimal degrees :

Latitude: N 27 43 34.215880 equals 27.726171

decimal degrees

Longitude: W 82 40 47.887360 eq uals -

82.679969 decimal degrees

18. Florida Housing does not dispute that the

latitude/longitude coordinates FOUR6 Skyway listed (in either the

Ðdegree/minute /secondÑ or decimal degree formats) correspond to a

map location that would have been eligible for funding under

RFA 2017 - 113. Consequently, FOUR6 Skyway argues that Florida

Housing could have, and should have, used this ÐsimpleÑ

mathematical formula to obtain the decimal degrees of its

Development Location Point.

19. FOUR6 Skyway further claims that it included sufficient

information on the face of its application for Florida Housing to

pinpoint the exact location of its proposed housing development

i n Pinellas County. Not only did FOUR6 Skyway list the address

of its development, but it attached to its application a Surveyor

Certification Form which also identified its Development Location

Point using the Ðdegree/minute/secondÑ format. 11/ FOUR6 Skyw ay

asserts that, in light of the fact that the term Ðdecimal

degreesÑ is not defined by statute, rule, or in RFA 2017 - 113,

Florida Housing should have deemed its application eligible for

funding based on the information it provided.

20. Finally, FOUR6 S kyway contends that Fl orid a

Admin istrative Code Rules 67 - 60.002(6) and 67 - 60.008 authorize

Florida Housing to waive Ðminor irregularitiesÑ in applications.

FOUR6 Skyway maintains that Florida Housing should have exercised

its discretion and waived FOUR6 S kywayÓs failure to state its

Development Location Point in decimal degrees as a Ðminor

irregularity.Ñ Therefore, Florida Housing should have found

FOUR6 SkywayÓs application eligible for funding under

RFA 2017 - 113.

21. In response to FOUR6 SkywayÓs ch allenge, Florida

Housing asserts that it properly acted within its legal authority

to disqualify FOUR6 SkywayÓs application. Florida Housing argues

that FOUR6 Skyway, by stating the latitude/longitude coordinates

of its Development Location Point in the ( unacceptable)

Ðdegree/minute/secondÑ format, failed to comply with the express

terms of RFA 2017 - 113, thus rendering its application ineligible

for funding.

22. In support of its position, Florida Housing presented

the testimony of Marisa Button, Flori da HousingÓs Director of

Multifamily Allocations. In her job, Ms. Button oversees the

Request for Applications process.

23. Ms. Button initially explained the procedure by which

Florida Housing awarded funding under RFA 2017 - 113. Ms. Button

conveyed tha t Florida Housing created a Review Committee from

amongst its staff to score the applications. Florida Housing

selected Review Committee participants based on the staff

memberÓs experience, preferences, and workload. Florida Housing

also assigned a backu p reviewer to separately score each

application.

24. Review Committee members independently evaluated and

scored discrete portions of the applications based on various

mandatory and scored items. Thereafter, the scorer and backup

reviewer met to reconci le their scores. If any concerns or

questions arose regarding an applicantÓs responses, the scorer

and backup reviewer discussed them with Florida HousingÓs

supervisory and legal staff. The scorer then made the final

determination as to each application.

25. For RFA 2017 - 113, Florida Housing assigned Karla Brown,

a Multifamily Programs Manager, as the lead scorer for the

ÐproximityÑ portion of RFA 2017 - 113, which included the Section

Four, A.5.d, latitude/longitude coordinates of the Development

Locatio n Point. Ms. Brown has scored proximity points for

Requests for Application for approximately ten years.

26. At the final hearing, Florida Housing offered the

deposition testimony of Ms. Brown. In her deposition, Ms. Brown

testified that, upon reviewi ng FOUR6 SkywayÓs application, she

immediately noticed that FOUR6 Skyway did not use decimal degrees

to record the latitude/longitude coordinates of its Development

Location Point. Ms. Brown explained that Florida HousingÓs

mapping software required appli cants to list their Development

Location Points in decimal degrees in order to locate the

proposed housing project. The software would not allow her to

plot latitude/longitude coordinates written in the

Ðdegree/minute/secondÑ format. Consequently, she wa s not able to

determine the location of (or award ÐproximityÑ points to) the

FOUR6 Skyway development. As a direct result, Ms. Brown

determined that F OUR6 SkywayÓs application was ineligible for an

award of funding under RFA 2017 - 113.

27. Furthermore, Ms. Brown considered whether she should

waive FOUR6 SkywayÓs latitude/longitude coordinates as a Ðminor

irregularity.Ñ She determined that waiving FOUR6 SkywayÓs

Ðdegree/minute/secondÑ coordinates was not appropriate because

RFA 2017 - 113 expressly instruc ted applicants to state the

Development Location Point in the distinct format used by its

mapping software, i.e. , decimal degrees.

28. At the final hearing, Ms. Button elaborated on

Ms. BrownÓs testimony maintaining that an applicantÓs use of

decimal d egrees for its Development Location Point was critical

in Florida HousingÓs review of each application. Ms. Button

reiterated that Florida Housing uses the applicationÓs

Development Location Point to confirm that the proposed housing

project is located in the area covered by the Request For

Applications. M s. Button explained that when latitude/longitude

coordinates are submitted in the wrong format, it is impossible

for Florida Housing staff to plot the Development Location Point

using its internal mappin g software.

29. Regarding FOUR6 SkywayÓs argument that Florida Housing

should have considered its Ðdegree/minute/secondÑ format as a

Ðminor irregularity,Ñ Ms. Button testified that Florida Housing

recognizes that developers occasionally make errors in the ir

applications. In light of this possibility, the rules governing

the competitive solicitation process authorize Florida Housing to

waive Ðminor irregularities.Ñ As provided in rule 67 - 60.008,

[Florida Housing] may waive Minor

Irregularities in an other wise valid

Application. Mistakes clearly evident to the

Corporation on the face of the Application,

such as computation and typographical errors,

may be corrected by the Corporation; however,

the Corporation shall have no duty or

obligation to correct any such mistakes.

See also Fla. Admin. Code R. 67 - 60.002(6) and RFA 2017 - 113,

Section Three, A.2.C.

30. However, Ms. Button declared that the difference

between latitude/longitude coordinates stated in

Ðdegree/minute/secondsÑ versus Ðdecimal degreesÑ is mo re than

just a Ðminor irregularity.Ñ Converting map coordinates into

decimal degrees goes beyond simply correcting a computational or

typographical error. Such action requires the scorer to actually

calculate the coordinate point on behalf of the applica nt.

Ms. Button explained that scorers are not prepared or trained on

how to mathematically determine map coordinates. (In her

deposition, Ms. Brown testified that she did not Ðeven know how

to begin to try to convertÑ a Ðdecimal/minutes/secondÑ coordina te

to decimal degrees. She is a Ðscorer,Ñ not a Ðsurveyor.Ñ

Ms. Brown relayed that she was specific ally trained to use the

decimal degrees numbers, and only the decimal degrees numbers, to

plot Development Location Points in the Flori da Housing mapping

software.)

31. Ms. Button added that, not only would converting

latitude/longitude coordinates into decimal degrees place the

burden on the scorers to correctly enter an applicantÓs data into

the mapping software program, but, a scorer might miscalculate

the plot points. This result would taint the reliability of the

scoring process. Consequently, Florida Housing did not believe

that it should have exercised its discretion to waive FOUR6

SkywayÓs improper latitude/longitude coordinates and convert its

Ð degree/minute/secondÑ Development Location Point into decimal

degrees. Therefore, F lorida Housing fully supported Ms. BrownÓs

decision not to waive FOUR6 SkywayÓs response to S ection Four,

A.5.d. , as a Ðminor irregularity.Ñ

32. Finally, Ms. Button profes sed that transcribing

latitude/longitude coordinates into decimal degrees would be

contrary to competition by relieving an applicant of the minor,

but real, burden of accurately plotting its projectÓs Development

Location Point. Such a practice would allo w a Florida Housing

scorer to independently modify (and thus, benefit) a developerÓs

application, thereby enabling it to prevail over other

applicants.

33. Finally, at the formal hearing, FOUR6 Skyway presented

evidence of other Ðminor irregularitiesÑ F lorida Housing has

waived in past Requests for Applications. 12/ FOUR6 Skyway argues

that, in light of these prior decisions, Florida HousingÓs

failure to waive its nonconforming latitude/longitude coordinates

in this matter was arbitrary and capricious.

3 4. However, FOUR6 Skyway did not offer any evidence or

elicit any testimony that Florida Housing has ever waived similar

coordinate formatting errors. On the contrary, Ms. Button stated

that she was not aware of any other instance where Florida

Housing w aived an applicantÓs listing of latitude/longitude

coordinates in Ðdegree/minute/seconds,Ñ instead of decimal

degrees, as a Ðminor irregularity.Ñ

35. Based on the evidence presented at the final hearing,

FOUR6 Skyway did not establish, by a preponderanc e of the

evidence, that Florida HousingÓs decision finding FOUR6 SkywayÓs

application ineligible for funding was clearly erroneous,

contrary to competiti on, arbitrary, or capricious.

36. Therefore, the undersigned concludes, as a matter of

law, that Peti tioner did not meet its burden of proving that

Florida HousingÓs proposed action to award housing credit funding

to Eagle Ridge under RFA 2017 - 113 was contrary to its governing

statutes, rules or policies, or the provisions of RFA 2017 - 113.

CONCLUSIONS O F LAW

37. DOAH has jurisdiction over the subject matter and the

parties to this competitive procurement protest pursuant to

sections 120.569, 120.57(1), and 120.57(3), Florida Statutes.

See also Fla. Admin. Code R. 67 - 60.009(2).

38. FOUR6 Skyway challen ges Florida HousingÓs selection

of Eagle Ridge for an award of housing credit funding under

RFA 2017 - 113. Pursuant to section 120.57(3)(f), the burden of

proof in this matter rests with FOUR6 Skyway as the party

protesting the proposed agency action. S ee State Contracting &

EngÓg Corp. v. DepÓt of Transp. , 709 So. 2d 607, 609 (Fla. 1st

DCA 1998). Section 120.57(3)(f) further provides that in a

competitive procurement protest:

[T]he administrative law judge shall conduct

a de novo proceeding to determin e whether the

agencyÓs proposed action is contrary to the

agencyÓs governing statutes, the agencyÓs

rules or policies, or the solicitation

specifications. The standard of proof for

such proceedings shall be whether the

proposed agency action was clearly e rroneous,

contrary to competition, arbitrary, or

capricious.

39. The phrase Ðde novo proceedingÑ describes a form of

intra - agency review. The purpose of the ALJÓs review is to

Ðevaluate the action taken by the agency.Ñ J.D. v. Fla. DepÓt of

Child. & Fa ms. , 114 So. 3d 1127, 1132 (Fla. 1st DCA 2013); and

State Contracting , 709 So. 2d at 609. A de novo proceeding

Ðsimply means that there was an evidentiary hearing . . . for

administrative review purposesÑ and does not mean that the ALJ

Ðsits as a substitu te for the [agency] and makes a determination

whether to award the bid de novo .Ñ J.D. , 114 So. 3d at 1133;

Intercontinental Props., Inc. v. DepÓt of Health & Rehab. Servs . ,

606 So. 2d 380, 386 (Fla. 3d DCA 1992). ÐThe judge may receive

evidence, as with any formal hearing under section 120.57(1), but

the object of the proceeding is to evaluate the action taken by

the agency.Ñ State Contracting , 709 So. 2d at 609.

40. Accordingly, FOUR6 Skyway, as the party protesting

Florida HousingÓs intended award, mu st prove, by a preponderance

of the evidence, that Florida HousingÓs proposed action is

either: (a) contrary to its governing statutes; (b) contrary to

its rules or policies; or (c) contrary to the specifications of

RFA 2017 - 113. The standard of proof FO UR6 Skyway must meet to

establish that the award to Eagle Ridge violates this statutory

standard of conduct is whether Florida HousingÓs decision was:

(a) clearly erroneous ; (b) contrary to competition; or

(c) arbitrary or capricious. §§ 120.57(3)(f) an d 120.57(1)(j),

Fla. Stat.

41. The Ðclearly erroneousÑ standard has been defined to

mean Ðthe interpretation will be upheld if the agencyÓs

construction falls within the permissible range of

interpretations.Ñ Colbert v. DepÓt of Health , 890 So. 2d 1165,

1166 (Fla. 1st DCA 2004); see also Holland v. Gross , 89 So. 2d

255, 258 (Fla. 1956)(when a finding of fact by the trial court

Ðis without support of any substantial evidence, is clearly

against the weight of the evidence or . . . the trial court has

misapp lied the law to the established facts, then the decision is

Òclearly erroneous.ÓÑ). However, if Ðthe agencyÓs interpretation

conflicts with the plain and ordinary intent of the law, judicial

deference need not be given to it.Ñ Colbert , 809 So. 2d at 1166 .

42. An agency action is Ðcontrary to competitionÑ if it

unreasonably interferes with the purpose of competitive

procurement. As described in Wester v. Belote , 138 So. 721, 722

(Fla. 1931):

The object and purpose [of the bidding

process] . . . is to pr otect the public

against collusive contracts; to secure

fair competition upon equal terms to all

bidders; to remove not only collusion but

temptation for collusion and opportunity for

gain at public expense; to close all avenues

to favoritism and fraud in its various

forms; to secure the best values . . . at the

lowest possible expense; and to afford an

equal advantage to all desiring to do

business . . . , by affording an opportunity

for an exact comparison of bids.

In other words, the Ðcontrary to comp etitionÑ test forbids agency

actions that: (a) create the appearance and opportunity for

favoritism; (b) reduce public confidence that contracts are

awarded equitably and economically; (c) cause the procurement

process to be genuinely unfair or unreasonab ly exclusive; or

(d) are abuses, i.e. , dishonest, fraudulent, illegal, or

unethical. See § 287.001, Fla. Stat.; and Harry Pepper & Assoc.,

Inc. v. City of Cape Coral , 352 So. 2d 1190, 1192 (Fla. 2d DCA

1977).

43. Finally, section 120.57(3)(f) requires an agency action

be set aside if it is Ðarbitrary, or capricious.Ñ An ÐarbitraryÑ

decision is one that is Ðnot supported by facts or logic, or is

despotic.Ñ Agrico Chemical Co. v. DepÓt of Envtl. Reg. , 365 So.

2d 759, 763 (Fla. 1st DCA 1978), cert. deni ed , 376 So. 2d 74

(Fla. 1979). A ÐcapriciousÑ action is one which is Ðtaken

without thought or reason or irrationally.Ñ Id.

44. To determine whether an agency acted in an Ðarbitrary,

or capriciousÑ manner involves consideration of Ðwhether the

agency: (1) has considered all relevant factors; (2) given

actual, good faith consideration to the factors; and (3) has used

reason rather than whim to progress from consideration of these

factors to its final decision.Ñ Adam Smith Enter. v. DepÓt of

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

standard has also been formulated by the court in Dravo Basic

Materials Co. v. Department of Transportation , 602 So. 2d 632,

632 n.3 (Fla. 2d DCA 1992), as follows: ÐIf an administrative

decision is justi fiable under any analysis that a reasonable

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

would seem that the decision is neither arbitrary nor

capricious.Ñ

45. Turning to the protest at hand, t he central question is

whether Florida Housi ng was legally justified in determining that

FOUR6 SkywayÓs application was ineligible under the terms of

RFA 2017 - 113. And, if so, whether Florida HousingÓs decision not

to waive the error in FOUR6 SkywayÓs application as a Ðminor

irregularityÑ was arbi trary or capricious. If FOUR6 Skyway

demonstrates that Florida Housing should have found its

application eligible (or should have waived the

Ðdegree/minute/secondÑ coordinates format), then Florida

HousingÓs failure to award funding to FOUR6 Skyway would be

contrary to its governing statutes, rules, policies, or the

solicitation specifications.

46. Section 420.507(48) authorizes Florida Housing to award

its annual allocation of low - income housing tax credits by

competitive solicitation. Pursuant to its rulemaking authority

under section 420.507(12), Florida Housing adopted chapter 67 - 60

to administer the competitive solicitation process. See Fla.

Admin. Code R. 67 - 60.001(1).

47. According to rule 67 - 60.006(1):

The failure of an Applicant to supply required

information in connection with any competitive

solicitation pursuant to this rule chapter

shall be grounds for a determination of

nonresponsiveness with respect to its

Application. If a determination of

nonresponsiveness is made by [Florida

Hous ing], the Application shall not be

considered.

48. Rule 67 - 60.006(1) clearly authorized Florida Housing to

determine FOUR6 SkywayÓs application ineligible for funding under

RFA 2017 - 113. The evidence establishes that FOUR6 Skyway failed

to provide the l atitude/longitude coordinates for its Development

Location Point in Ðdecimal degreesÑ as explicitly directed by

Section Four, A.5.d(1). Ms. Button credibly testified that

RFA 2017 - 113 required Ðdecimal degreesÑ for a distinct purpose,

i.e. , its mapping s oftware program exclusively used decimal

degrees to locate the Development Location Point. This fact

provided Florida Housing a good faith factual, logical, and

rational reason to find that FOUR6 Skyway did not respond to

RFA 2017 - 113 as specifically ins tructed.

49. Consequently, as directed by rule 67 - 60.006(1), Florida

Housing did not consider FOUR6 SkywayÓs application when it

awarded funding for Pinellas County. FOUR6 Skyway did not prove

that Florida HousingÓs decision to disqualify its applicati on was

clearly erroneous, contrary to competition, or arbitrary, or

capricious. Therefore, Florida HousingÓs Notice of Intent to

Award housing credit financing in Pinellas County to Eagle Ridge

(the next eligible, responsive applicant) was not contrary to its

governing statutes, rules or policies, the specifications of

RFA 2017 - 113.

50. Notwithstanding the above analysis, Florida HousingÓs

governing rules authorized it to waive Ðminor irregularitiesÑ in

an application submitted in a competitive solicitat ion. As

provided in rule 67 - 60.008:

[Florida Housing] may waive Minor

Irregularities in an otherwise valid

Application. Mistakes clearly evident to

[Florida Housing] on the face of the

Application, such as computation and

typographical errors, may be cor rected by

[Florida Housing]; however, [Florida Housing]

shall have no duty or obligation to correct

any such mistakes.

51. ÐMinor IrregularityÑ is defined in rule 67 - 60.002(6) as:

[A] variation in a term or condition of an

Application pursuant to this ru le chapter that

does not provide a competitive advantage or

benefit not enjoyed by other Applicants, and

does not adversely impact the interests of

[Florida Housing] or the public.

52. Based on the testimony of Ms. Brown, FOUR6 SkywayÓs

latitude/longitud e formatting error was clearly evident on the

face of its application. Therefore, Florida Housing was

authorized (but, had no duty or obligation) to waive FOUR6

SkywayÓs mistake.

53. However, rule 67 - 60.002(6) only empowered Florida

Housing to waive FO UR6 SkywayÓs error if it did not Ðprovide a

competitive advantage or benefit not enjoyed by other Applicants,

and [did] not adversely impact the interests of [Florida Housing]

or the public.Ñ At the evidentiary hearing, Florida Housing

articulated several well - founded reasons why it should not have

considered FOUR6 SkywayÓs latitude/longitude formatting error a

Ðminor irregularityÑ under rule 67 - 60.002(6).

54. Initially, as stated above, the Florida Housing scorers

could not simply discount FOUR6 Skyway Ós Ðdegree/minute/secondÑ

coordinates as computational or typographical errors. Florida

HousingÓs mapping software specifically required applicants to

provide latitude/longitude coordinates in Ðdecimal degrees,

rounded to at least the sixth decimal place . Ñ Otherwise, the

program could not plot the Development Location Point.

55. Ms. Button also persuasively testified that a decision

to convert Ðdegree/minute/secondÑ coordinates into Ðdecimal

degreesÑ would have provided FOUR6 Skyway a competitive advan tage

or benefit over other applicants. If Ms. Brown had corrected

FOUR6 SkywayÓs latitude/longitude coordinates, she would have

affirmatively amended FOUR6 SkywayÓs application by recalculating

its Development Location Point coordinates. As a result,

Ms . Brown would have employed a different scoring methodology and

practice than the standard she applied to the other applicants who

complied with RFA 2017 - 113Ós instructions. Such action would have

raised the specter of favoritism, as well as questions reg arding

whether Florida HousingÓs competitive solicitation process was

conducted on a fair and level playing field.

56. Finally, Florida Housing credibly explained why it would

not have envisioned or expected a scorer (Ms. Brown) to waive,

then correct, F OUR6 SkywayÓs Ðdegree/minute/secondÑ coordinates.

The RFA 2017 - 113 scorers were neither trained to, nor familiar

with, converting Ðdegree/minute/secondÑ coordinates into decimal

degrees. Consequently, entrusting an untrained scorer to

independently recal culate longitude/latitude coordinates into a

different format might threaten the reliability of the

solicitation scoring process.

57. Based on the above evidence, Florida Housing offered

good faith factual, logical, and rational reasons why waiving a

De velopment Location Point stated in Ðdegree/minute/secondÑ

coordinates would have provided FOUR6 Skyway with a competitive

advantage or benefit, as well as adversely impacted the interests

of Florida Housing. Accordingly, Florida HousingÓs decision not

to treat FOUR6 SkywayÓs latitude/longitude coordinates as Ðminor

irregularitiesÑ was not clearly erroneous, contrary to

competition, or arbitrary, or capricious.

58. As a final issue, FOUR6 Skyway introduced evidence of

several prior solicitations during whi ch Florida Housing waived

certain mistakes in applications as Ðminor irregularities.Ñ ( see

endnote 12). FOUR6 Skyway argues that, while rule 67 - 60.008

gives Florida Housing the discretion to waive Ðminor

irregularities,Ñ Florida Housing should not exerci se that

discretion in an ÐarbitraryÑ or ÐcapriciousÑ manner. In other

words, in the competitive solicitation process, Florida Housing

must ensure that similar circumstances reach similar results.

Therefore, to be consistent with its previous practice, Fl orida

Housing should have applied the Ðminor irregularityÑ rule to

FOUR6 SkywayÓs latitude/longitude coordinate formatting error.

59. However, FOUR6 Skyway did not present any evidence that

Florida Housing has ever waived an applicantÓs failure to prese nt

its Development Location Point in the specified latitude/longitude

format ( i.e. , Ðdecimal degreesÑ) as a Ðminor irregularity.Ñ

W hile Florida Housing may have previously waived certain

mathematical errors or omissions, as concluded above, FOUR6

SkywayÓs use of Ðdegree/minute/secondÑ coordinates was more than

a mere computation or typographic oversight. Florida Housing

could not use the information FOUR6 Skyway provided in response

to Section Four, A.5.d(1), unless its scorer conducted an

independent cal culation converting FOUR6 SkywayÓs

Ðdegree/minute/secondÑ coordinates into decimal degrees. Such

action goes beyond correcting Ð computation and typographical

errors.Ñ Consequently, the evidence shows that Florida Housing

reasonably exercised its discreti on under rules 67 - 60.008 and 67 -

60.006(2) not to waive, then correct, the latitude/longitude

coordinates FOUR6 Skyway provided in its application as its

Development Location Point.

60. In sum, the evidence in the record demonstrates that

Florida HousingÓs determination that FOUR6 SkywayÓs application

was ineligible for funding under RFA 2013 - 113 was not contrary to

Florida statutes, rules or policies, or the specifications of

RFA 2017 - 113. Further, Florida HousingÓs determination that the

latitude/longit ude coordinates FOUR6 Skyway provided in its

application did not constitute Ðminor irregularitiesÑ within the

application of rules 67 - 60.002(6) and 67 - 60.008 was not

Ðarbitrary or capricious.Ñ

61. Accordingly, the undersigned concludes that FOUR6

Skyway did not meet its burden of proving, by a preponderance of

the evidence, that Florida HousingÓs award of housing credit

funding in Pinellas County to Eagle Ridge is contrary to its

governing statutes, rules, or policies, or RFA 2107 - 113Ós terms or

provision s. Florida HousingÓs selection of Eagle Ridge should not

be set aside.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Florida Housing Finance Corporation

enter a final order dismissing the protest b y FOUR6 Skyway. It

is further recommended that Florida Housing Finance Corporation

select Eagle Ridge as the recipient of housing credit funding

under RFA 2017 - 113.

DONE AND ENTERED this 24th day of July, 2018 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

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 2 4th day of July, 2018 .

ENDNOTE S

1/ Unless otherwise stated, all citations to the Florida Statutes

and Florida Administrative Code are to the 2017 versions.

2 / No protests were made to th e specifications or terms of

RFA 2017 - 108.

3 / In addition to FOUR6 Skyway, Venetian Isles of Pinellas, LP

(ÐVenetian IslesÑ) , also challenged Florida HousingÓs award of

funding to Eagle Ridge in Pinellas County. Venetian Isles timely

filed a Notice of Protest with Florida Housing. After referral

to DOAH, Venetian IslesÓ bid protest was assigned DOAH Case

No. 18 - 2028BID. On April 26, 2018, the FOUR6 Skyway and Venetian

Isles matters were consolidated.

Following the formal hearing, however, on June 14, 2018, Venetian

Isles voluntarily dismissed its protest. Accordingly, the sole

issue for consideration before DOAH is whether Florida Housing

improperly determined that FOUR6 SkywayÓs application was

ineligible for funding under RFA 2017 - 113.

4 / Venet ian IslesÓ Exhibits 4 through 6 were admitted into

evidence at the formal hearing. Venetian Isles was also allowed

to proffer into evidence its Exhibits 1, 2, and 7. But see

endnote 3 above.

5 / Eagle Ridge called Ms. Sieben specifically to respond to

a llegations raised by Venetian Isles. As Venetian Isles

voluntarily dismissed its bid protest, Ms. SiebenÓs testimony is

no longer relevant to a material issue in DOAH Case No. 18 - 2027

regarding FOUR6 Skyway.

6 / RFA 2017 - 113 was modified on November 1 an d November 29, 2017.

7 / Petitioner DDA Development, LLC (ÐDDAÑ), is the ÐDeveloperÑ

entity for the FOUR6 Skyway housing development as defined by

Florida Housing in Fl orid a Admin istrative Code Rule 67 -

48.002(28).

8 / Rule 67 - 48.002(33) defines ÐDevelopm ent Location PointÑ as Ða

single point selected by the Applicant on the proposed

Development site that is located within 100 feet of a residential

building existing or to be constructed as part of the proposed

Development.Ñ In other words, the Development Location Point

identifies the specific location of an applicantÓs proposed

housing site.

9 / Eagle Ridge provided its Development Location Point in the

proper decimal degrees format.

1 0 / Aside from the latitude/longitude coordinates, FOUR6 SkywayÓs

app lication was otherwise valid and eligible for funding under

RFA 2017 - 113.

1 1 / The Surveyor Certification Form FOUR6 Skyway provided with

its application, as well as the requirement to state the

Development Location Point in the Ðdegree/minute/secondsÑ fo rmat,

was a pplicable to previous Requests f or Applications when Florida

Housing used a different software program to plot Development

Location Points. Florida Housing changed its software program in

2017. At this time (and for all current Requests f or

Ap plications), Florida Housing requires latitude/longitude

coordinates recorded in Ðdecimal degrees, rounded to at least the

sixth decimal place.Ñ

1 2 / At the formal hearing, FOUR6 Skyway presented several

examples of Ðminor irregularitiesÑ Florida Housing has waived in

past competitive solicitations including:

a. HTG Heron Estates Family, LLC v. Fla. Hous. Fin. Corp. ,

Case No. 18 - 2130BID (Fla. DOAH Jun . 29, 2018)(An error in the

applicantÓs site control documentation that misidentified the

propertyÓs sel ler, but had no effect on the applicantÓs control

of the development site, was a Ðminor irregularity.Ñ) .

b. HTG Osprey Pointe, LLC v. Fla. Hous. Fin. Corp. , Case

No. 18 - 0479BID (Fla. DOAH Apr . 19, 2018; Fla. FHFC May 4,

2018)(Florida Housing waived, as a Ðminor irregularity,Ñ the

applicantÓs failure to place a negative sign before a longitude

coordinate. Florida Housing also waived an applicantÓs failure

to place its longitude coordinate on the correct line in its

application.) .

c. HTG Hammock Ridge, L LC v. Fla. Hous. Fin. Corp. , Case

No. 16 - 1137BID (Fla. DOAH Apr . 19, 2016; Fla. FHFC May 6,

2016)(Florida Housing waived a number of Ðminor irregularities , Ñ

including the location of a pharmacy whose doorway threshold was

off by 70 feet, and a bus transfer stop location that was off by

150 feet.) .

d. Heritage at Pompano Hous. Partners, Ltd. v. Fla. Hous.

Fin. Corp. , Case No. 14 - 1361BID (Fla. DOAH Jun . 10, 2014; Fla.

FHFC Jun . 13, 2014)(A surveyorÓs error in the distance between a

bus stop and the Develop ment Location Point (which did not change

the number of proximity points awarded) was a waivable Ðminor

irregularity.Ñ) .

e. Rosedale Holding v. Fla. Hous. Fin. Corp. (Fla. FHFC

Case No. 2013 - 038BP, Jun . 13, 2014)(Florida Housing waived, as a

Ðminor irre gularity,Ñ a multiplication error regarding a tax

credit allocation. Florida Housing has also waived several

errors in equity credit letters.) .

COPIES FURNISHED:

Amy Wells Brennan, Esquire

Manson Bolves Donaldson Varn, P.A.

109 North Brush Street , Suit e 300

Tampa, Florida 33602

(eServed)

Hugh R. Brown, General Counsel

Florida Housing Finance Corporation

227 North Bronough Street , Suite 5000

Tallahassee, Florida 32301 - 1329

(eServed)

Michael George Maida, Esquire

Michael G. Maida, P.A.

1709 Hermit age Boulevard , Suite 201

Tallahassee, Florida 32308

(eServed)

Douglas P. Manson, Esquire

Manson Bolves Donaldson Varn, P.A.

109 North Brush Street , Suite 300

Tampa, Florida 33602 - 2637

(eServed)

Christopher Dale McGuire, Esquire

Florida Housing Finance Corporation

227 North Bronough Street , Suite 5000

Tallahassee, Florida 32301

(eServed)

Craig D. Varn, Esquire

Manson Bolves Donaldson Varn

106 East College Avenue , Suite 820

Tallahassee, Florida 32301

(eServed)

Michael P. Donaldson, Esquire

Carlton Fie lds Jorden Burt, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, Florida 32302 - 0190

(eServed)

Corporation Clerk

Florida Housing Finance Corporation

227 North Bronough Street , Suite 5000

Tallahassee, Florida 32301 - 1329

(eServ ed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 0 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Fin al Order in this case.