20-001138BID Ambar Trail, Ltd vs. Naranja Lakes Housing Partners, Lp, Slate Miami Apartments, Ltd., And Florida Housing Finance Corporation Status: Closed Recommended Order on Friday, April 3, 2020.

Summary: Petitioner failed to demonstrate that they could receive funding under any scenario or that the process was otherwise fundamentally unfair; therefore, recommended dismissal for lack of standing.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A MBAR T RAIL , L TD ,

Petitioner ,

vs. Case No. 20 - 1138BID

F LORIDA H OUSING F INANCE C ORPORATION ,

Respondent ,

and

N ARANJA L AKES H OUSING P ARTNERS , LP,

AND S LATE M IAMI A PARTMENTS , L TD .,

Intervenors.

/

S IERRA M EADOWS A PARTMENTS , L TD .,

Petitioner,

vs. Case No. 20 - 1139BID

F LORIDA H OUSING F INANCE C ORPORATION ,

Respondent ,

and

N ARANJA L AKES H OUSING P ARTNERS , LP,

AND S LAT E M IAMI A PARTMENTS , L TD .,

Intervenors.

/

Q UAIL R OOST T RANSIT V ILLAGE I V , L TD .,

Petitioner ,

vs. Case No. 20 - 1140BID

F LORIDA H OUSING F INANCE C ORPORATION ,

Respondent ,

and

N ARANJA L AKES H OUSING P ARTNERS , LP,

AND S LATE M IAMI A PARTMENTS , L TD .,

Intervenors.

/

P ARC G ROVE , LLC ,

Petitioner ,

vs. Case No. 20 - 1141BID

F LORIDA H OUSING F IN ANCE C ORPORATION ,

Respondents ,

and

N ARANJA L AKES H OUSING P ARTNERS , LP,

AND H ARBOUR S PRINGS , LLC.,

Intervenors.

/

R ECOMMENDED O RDER OF D ISMISSAL

A telephonic hearing was conducted in this case on March 23, 2020, before

James H. Peterson, III, Administrative Law Judge with the Division of

Administrative Hearings (DOAH) . The telephonic hearing was convened to

consider the Joint Motion to Dismiss , f iled on March 13, 2020, by Naranja

Lakes Housing Partners, LP, and Slate Miami Apartments, Ltd., joined by

Flor ida Housing Finance Corporation (Florida Housing) . By agreement of the

parties, the telephonic hearing constituted the first day of the final hea ring in

this case. As this Recommended Order recommends the dismissal of Case

Numbers 20 - 1138 BID , 20 - 1139BID, and 20 - 1140BID in the above - styled

consolidated cases, and given the fact that the Petitioner in the remaining

consolidated case, Case Number 20 - 1 141BID, filed a Notice of Voluntary

Dismissal on March 24, 2020, no further d ays of final hearing before D OAH

are anticipated in this case.

A PPEARAN CES

For Petitioners Ambar Trail, Ltd. ; Sierra Meadows Apartments, Ltd.;

and Quail Roost Transit Villag e IV, Ltd.:

Donna Elizabeth Blanton, Esquire

Brittany Adams Long, Esquire

Radey Law Firm, P.A.

Suite 200

301 South Bronough Street

Tallahassee, Florida 32301

For Petitioner Parc Grove, LLC:

Maureen McCarthy Daughton, Esquire

Maureen McCarthy Daughton, LLC

Suite 3 - 231

1400 Village Square Boulevard

Tallahassee, Florida 32312

For Respondent Florida Housing Finance Corporation:

Hugh R. Brown, General Counsel

Betty Zachem, Esquire

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301 - 1329

For Intervenor Nar anja Lakes Housing Partners, LP:

J. Stephen Menton, Esquire

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551 (32302)

Tallahassee, Florida 32301

For Intervenor Slate Miami Apartments, Ltd.:

M. Christopher Bryant, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302 - 1110

For Intervenor Harbour Springs, LLC. :

Michael P. Donaldson, Esquire

Carlton Fiel ds Jorden Burt, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, Florida 32302 - 0190

S TATEMENT OF T HE I SSUE

Whether the Petitions filed by Ambar Trai l, Ltd. ; Sierra Meadows

Apartments, Ltd.; and Quail Roost Transit Village IV , Ltd., should be

dismissed for lack of standing.

P RELIMINARY S TATEMENT

I n February 2020, Petitioners Ambar Trail, Ltd . (Ambar Trail) ; Sierra

Meadows Apartments, Ltd. (Sierra Meadows) ; and Quail Roost Transit

Village IV, Ltd. (Quail Roost) filed separate f ormal written protests and

petitions for administrative hearings, alleging that the entire Request for

Applications (RFA) 2019 - 112 and the preliminary funding award decisions

issued for that RFA by the Florida Housing should be rescinded. On March 2,

2020 , Florida Housing forwarded the petitions, together with another petition

filed by Parc Grove, LLC (Parc Grove) , 1 to DOAH.

Following assignment of the cases to the undersigned to conduct the

requested administrative hearings , o n March 5, 2020, based on a n Unopposed

Motion to Consolidate, an Order of Consolidation was entered consolidating

the four peti tions. The style of t he Order of Consolidation, and filings

thereafter , erroneously identify t he preliminarily awarded bidders, who are

technically interven ors, as respondents . Therefore, the style of this case is

corrected as reflected above, to properly show that the preliminarily awarded

bidders are ÑIntervenors , Ò aligned with Florida Housing in each case, as

opposed to ÑRespondents.Ò

A fter a telephonic s cheduling conference with the parties, an Order on

Telephonic Scheduling Status Conference (Scheduling Order) was entered on

March 6, 2020, together with a Notice of Hearing and Prehearing

Instructions with provisions for expedited discovery. In accordance with the

Scheduling Order, a Joint Motion to Dismiss was filed on March 13, 2020, by

Naranja Lakes Housing Partners, LP (Naranja Lakes) , and Slate Miami

Apartments, Ltd. (Slate Miami) , joined by Flor ida Housing , challenging the

standing of Ambar Trail, Si erra Meadows , and Qua il Roost (collectively the

Petitioners) . Thereafter, on March 20, 2020, a Response to the Joint Motion

to Dismiss was filed .

O n March 23, 2020, a telephonic hearing was held during which the Joint

Motion to Dismiss, the Response to th e Motion to Dismiss, the Petitions filed

by the Petitioners, and arguments of counsel were considered and discussed.

At the end of those discussions, the undersigned announced that the Joint

1 The Petitio n filed by P arc Grove challenged Florida HousingÔs preliminary funding awards,

but did not seek to rescind the RFA.

Motion to Dismiss was well take n and that a favorable written O rd er thereon

would be entered .

In accordance with the Scheduling Order and agreement of the parties,

the telephonic hearing held March 23, 2020, constituted the first day of the

administrative hearing in the consolidated cases. The proceedings were

recorde d. At the time of that telephonic hearing, because the Petition filed by

Parc Grove was still pending and not subject to the Joint Motion to Dismiss,

it was anticipated that a second day of hearing, as scheduled in the Notice of

Hearing in this case , would be held on April 13, 2020. However, on March 24,

2020, Parc Grove filed a Notice of Voluntary Dismissal of its Petition.

Therefore, because this Recommended Order of Dismissal recommends the

dismissal of the remaining Peti tions filed by the Petitioners , n o further dates

for the administrative hearing before DOAH in these cases have been

scheduled.

F INDINGS OF F ACT 2

1. Florida Housing i s a public corporation created under Florida l aw to

administer the gov e rnmental function of financing or refinancing affor dable

ho u s ing and related facilities in Florida.

2. F lorida Housing administers a competitive solicitation proc e ss to

imple m ent the provisions of the housing credit program , under which

develope r s apply and compete for funding for projects in response to R FAs

developed by Florida Housing.

3. The RFA in this case was spe c ifically targeted to provide affordable

ho u s i n g in Miami - Dade County, F lorida. The R F A introduction provides :

2 As this Recommended Order of Dismissal is based upon a motion to dismiss, the factual

allegations of the three Petitions filed by the Pet itioners in this consolidate case are accepted

as true, and the Findings of Fact are derived from the four corners of those Petitions, see

Madison Highlands. LLC v. Florida Housing Finance Corp., 220 So. 3d 467, 473 (Fla. 5th

DCA 2017 ), and facts that are not otherwise in dispute.

This Requ e st for Applications (R F A) is open to

Applicants proposing the de v e lop ment of

affordabl e , multifami l y housi n g lo c a ted in Miami -

Dade County.

Under this R F A, Florida Housing F i nan c e

Corporation (the Corporation) e x p e c ts to have up

to an e s timated $7,195,917 of Housing Credits

ava i lab l e for award to prop o s e d D e v elopments

locat ed in Miami - Dade C o unt y .

4. After Florida Housing announced its preliminary funding award

decisions for RFA 2019 - 112 for Housing Credit Financing for Affordable

Housing Developments Located in Miami - Dade C ounty, each o f the

Petitioners filed Petitions cha llenging the decisions .

5. Petitioners do not allege that Florida Housing improperly scored or

evaluated the applications selected for funding , nor do they contend that

Petitioners' applications should be funded. Instead, Petitioner s allege that

the evalua tion was fundamentally unfair and seek s to have the entire R F A

rescinded based on alleged improprieties of one responding entity and its

affiliates.

6. Petitioners claim that the evaluation process was fundamentally

unfair is based entirely on allegations that several entities associated with

Housing Trust Group, LLC ( HTG ), combined to submit 15 Priority I

applications in contravention of the limitation in the R F A on the number of

Priority I applications that could be submitted. Even assuming Petitioners'

a ssertions are correct, there is no scenario in which Petitioners can reach

the funding range for this RFA.

7. In order to break ties for those applicants that achieve the maximum

number of points and meet the mandatory eligibility requirements, the

R F A set s forth a series of tie - breakers to determine which applications will

be awarded funding. The instant R F A included specific goals t o fund

certain types of developments and set s forth sorting order tie - breakers to

distinguish between applicants. The relevan t R F A provisions are as

follows:

1. Goals

a. The Corporation has a goal to fund one (1)

proposed Development that ( a ) selected the

Demographic Commitment of Family at

questions 2.a. of Exhibit A and (b) qualifies for

the Geographic Areas of Opportunity/SA DDA

Goal as outlined in Section Four A. 11. a.

b. The Corporation has a goal to fund one (1)

proposed Development that selected the

Demographic Commitment of Elderly (Non - ALF)

at question 2.a. of Exhibit A.

*Note: During the Funding Selection Process

outl ined below, Developments selected for these

goals will only count toward one goal.

2. Applicant Sorting Order

All eligible Priority I Applications will be ranked

by sorting the Applications as follows, followed by

Priority II Applications.

a. First, fr om highest score to lowest score;

b. Next, by the Application's eligibility for the

Proximity Funding Preference (which is outlined

in Section Four A.5.e. of the RFA) with

Applications that qualify for the preference listed

above Applications that do not q ualify for the

preference;

c. Next, by the Application's eligibility for the Per

Unit Construction Funding Preference which is

outlined in Section Four A.lO.e. of the RFA (with

Applications that qualify for the preference listed

above Applications that do not qualify for the

preference ) ;

d. Next, by the Application's eligibility for the

Development Category Funding Preference which

is outlined in Section Four A.4.(b)(4) of the R F A

(with Applications that qualify for the preference

listed above Applicatio ns that do not qualify for

the preference ) ;

e. Next, by the Applicant's Leveraging

Classification, applying the multipliers outlined

in Item 3 of Exhibit C of the RFA (with

Applications having the Classification of A listed

above Applications having the Cl assification of B ) ;

f. Next, by the Applicant's eligibility for the

Florida Job Creation Funding Preference which is

outlined in Item 4 of Exhibit C of the RFA ( with

Applications that qualify for the preference listed

above Applications that do not qualify for the

preference); and

g. And finall y, b y lot t erv numbe r , resulti n g in the

lowest lott e ry number receivi n g p reference.

8. This RFA was similar to previous RFAs issued by Florida Housing,

but included some new provisions limiting the number of Priority I

applications that could be submitted.

9. Specifically, the R F A provided:

Priori t y Desi g n a tion of A p p lications

A p p licants m a y submit no more than three ( 3 )

Priorit y I A p p lications. There is no limit to the

number of Priori t y II A p p lications that can be

submitted; howeve r , no Princi p al can be a

Princ i p al, as defined in Rule Ch a p ter 67 -

48.00 2 ( 9 4 ), F.A.C. , of more than three ( 3 ) Priori t y

1 A p p lications.

For purposes of scoring, Florida Housing will rely

on the Principals of the Applicant and

Developer(s) Disclosure Form (Rev. 05 - 2019)

outlined below in order to determine if a Principal

is a Principal on more than three (3) Priority 1

Applications. If duri n g scori n g it is determined

that a Princ i p al is disclosed as a Princ i p al on

more than three ( 3 ) Priori t y I A p p lication s , a ll

such Priorit y I A p p lications will be deemed

Priorit y II.

If it is later determined that a Principal, as

defined in Rule Chapter 67 - 48.002(94), F.A.C.,

was not disclosed as a Principal and the

undisclosed Principal causes the maximu m set

forth above to be exceeded, the award (s) for the

affected Application(s) will be rescinded and all

Principals of the affected Applications may be

subject to material misrepresentation, even if

Applications were not selected for funding, were

deemed i neligible, or were withdrawn.

10. The Petitioners all timely submitted applications in response to the

R F A.

11. L ottery numbers were assigned by Florida Housing, at random, to

all applications shortly after the applications were received and before any

sc oring began.

12. Lottery numbers were assigned to the applications without regard to

whether the application was a Priority I or Priority II.

13. The RFA did not limit the number of Priority II Applications that

could be submitted.

14. Review of the applic ations to determine if a p rincipal was a p rincipal

on more than three Priority 1 Applications occurred during the scoring

process, well after l ottery numbers were assigned.

15. The leveraging line, which would have divided the Priority I

A pplications into Group A and Group B, was established after the

eligibility determinations were made. All applications were included in

Group A. There were no Group B applications. Thus, all applications were

treated equally with respect to this preference.

16. The applica tions were ultimately ranked according to l ottery

number and funding goal.

17. If Florida Housing had determined that an entity or entities

submitted more than three Priority I A pplications with related principals,

the relief set forth in the R F A was to mo ve those applications to Priority II .

18. Florida Housing did not affirmatively conclude that any of the 15

c hallenged applications included undisclosed p rincipals so as to cause a

violation of the maximum number of Priority I A pplications that could be

su bmitted.

19. All of the application s that were deemed eligible for funding,

including the Priority II A pplications, scored equally , and met all of the

funding preferences.

20. After the applications were evaluated by the Review Committee

appointed by Flor ida Housing, the scores were finalized and preliminary

award recommendations were presented and approved by Florida

Housing's Board. Consistent with the procedures set forth in the RFA,

Florida Housing staff reviewed the Principal Disclosure Forms to

deter mine the number of Priority I A pplications that had been filed by

each applicant. This review did not result in a determination that any

applicant had exceeded the allowable number of Priority I A pplications

that included the same p rincipal.

21. One of the HTG Applications (Orchid Pointe, App. No. 2020 - 148C)

was initially selected to satisfy the Elderly Development goal.

Subsequently, three applications, including Slate Miami, that had initially

been deemed ineligible due to financial arrearages were later determined

to be in full compliance and , thus , eligible as of the close of business on

January 8, 2020. The Review Committee reconvened on January 21, 2020,

to reinstate those three applications. Slate Miami was then recommended

for funding.

22. The Review Committee ultimately recommended to the Board the

following applications for funding: Harbour Springs (App. No. 2020 - 101C),

which met the Geographic Areas of Opportunity/SADDA Goal; Slate

Miami (App. No. 2020 - 122C), which met the Elderly (non - ALF) Goal; a nd

Naranja Lakes (App. No. 2020 - 117C), which was the next highest - ranked

eligible Priority I Application.

23. The Board approved the Committee's recommendations at its

meeting on January 23, 2020, and approved the preliminary selection of

Harbour Springs, Slate Miami , and Naranja Lakes for funding.

24. The applications selected for funding held Lottery numbers 1 (Harbour

Springs), 2 (Naranja Lakes ) , and 4 (Slate Miami).

25. Petitioners' l ottery numbers were 16 (Quail Roost), 59 (Sierra

Meadows) and 24 (Am bar Trail).

26. The three applications selected for funding have no affiliation or

association with HTG, or any of the entities that may have filed

applications in contravention of the limitation in the R F A for Priority I

applications.

27. The a pplications alleged in the Petitions as being affiliated with HTG

received a wide range of l ottery numbers in the random selection , including

numbers : 3, 6, 14, 19, 30, 38, 40, 42, 44, 45, 49, 52 through 54, and 58.

28. If Petitioners prevailed in demons trating an im proper p rincipal

relationship between the HTG applications, the relief specified in the RFA

(the specifications of which were not challenged) would have been the

conversion of the offending HTG applications to Priority II applications. The

relief would not have been the removal of those applications from the pool of

applications, nor would it have affected the assignment of lottery numbers to

any of the applicants, including HTG.

29. T he Petitions do not allege any error in scoring or ineligibility with

re spect to the three applications preliminarily approved for funding.

C ONCLUSIONS OF L AW

30. Florida Housing is a public corporatio n organized pursuant to

c hapter 420, Part F, Florida Statutes, to administer the financing of

affordable housing in Florida . Fl orida Housing is designated as the housing

credit agency for Florida and has the responsibility to competitively allocate

and distribute low income housing tax credits to help fund affordable housing

developments. 3 Because the demand for tax credits provid ed by the federal

government far exceeds the available supply, qualified affordable housing

developments must compete for this funding. See Ybor III. Ltd. v. Florida

Housing Finance Corp , 843 So. 2d 344, 345 (Fla. 1st DCA 2003).

31. Section 420.507(48) a uthorizes Florida Housing to allocate tax credits

and other funding by means of a request for proposal or other competitive

solicitatio n. Florida Housing has adopted Florida Administrative Code Rule

C hapter 67 - 60 to govern the competitive solicitation proc ess for tax credits

and other programs administered by Florida Housing. The adopted rules

incorporate the bid protest provisions of s ection 120.57(3), Florida Statutes,

for resolving disputes related to the allocation of tax credits. See Fla. Admin.

Code r ule 67 - 60.001 .

32. The competitive process begins with Florida Housing issuing a n

RFA. See Florida Administrative Code Rule 67 - 60.003 .

33. In an administrative proceeding, standing is a jurisdictional

threshold issue equivalent to assessing subject matter jurisdiction. See

Abbott Lab . v. Mylan Pharm . , Inc., 15 So. 3d 642 (Fla. 1st DCA 2009);

Grande Dune s . Ltd. v. Walton C t y . , 714 So. 2d 473, 475 (Fla. 1st DCA 1998).

DOAH lacks jurisdiction to consider the merits of a petition unless and

until a petitioner a ffirmatively establishes standing. Westi n g house Elec.

C o r p . v. Jacksonville Tran s p . Auth. , 491 So. 2d 1238, 1240 - 41 (Fla. 1st

DCA 1986).

34. P ursuant to section 120.57(3), to have standing for a bid protest, a

petitioner must establish that the agency's in tended decision "adversely

affected" the petitioner's substantial interests. See Madison H i g hland s .

LLC v. Fl a. Hous . Fin . Corp. , 220 So. 3d 467, 473 (Fla. 5th DCA 2017)(citing

Preston Carroll Co. , v. Fla. K e y s A q ueduct Auth ., 400 So. 2d 524, 525

(Fla. 3d DCA 1981)). To establish a substantial interest, the protesting

3 Unless otherwise indicated, all references to Florida Statutes or the Florida Administrative

Code are to current versions.

entity must meet the two - prong "substantial interest" test forth in A gr i co

Chemical Co mpany v. Department of Environmental Regulation , 406 So.

2d 478 (Fla. 2d DCA 1981). See Madison H i g h lands , LLC , at 473 (Fla. 5th

DCA 2017); Ybor III. Lt d .. supra , at 346.

35. Agrico requires a challenging party to show: "(1) that he will suffer

injury in fact which is of sufficient immediacy to entitle him to a section

120.57 hearing, and (2) that his substant ial injury is of a type or nature

which the proceeding is designed to protect." Agrico , 406 So. 2d at 482.

"The first aspect of the test deals with the degree of injury. The secon d

deals with the nature of the injury." Id .

36. An injury - in - fact must result from the challe n g ed a g en c y action and

be real and immediate, not conjectural or hypothetical. Abstract injury is

insufficient to establish standing. See Florida DepÔt of Rehab. v. J e rr y ,

353 So. 2d 1230 (Fla. 1st DCA 1978); Madison H i g h lands at 473 ("Unde r

the first prong of Agrico , the injury must be actual and immediate, and not

based on a hypothetical scenario."). In this case, the Petitioners fail to allege

sufficient facts to establis h that Florida Housing's preliminary funding

awards will cause Petit ioners Ô injury - in - fact that satisfies the first prong of

the Agrico test. Even if Petitioners can prove their allegations regarding

HTG and its affiliates, the R F A expressly provides a remedy that does not

alter or rescind the preliminary funding awards.

3 7. A lower - ranked bidder only meets the substantial interest test if it

demonstrates that it would be funded if a higher - ranked bidder is

disqualified. Even a fifth - place bidder can establish standing if they

"establish that the four higher - ranked applicat ions must all be rejected or re -

evaluated, resulting in the protesting filer being ranked the highest ."

Madison H i g hlands at 474; Preston Carroll at 525.

38. Here, as apparent from the Petitions, Petitioners have no chance of

achieving funding through this R F A because all of their applications are

behind the applications selected for funding.

39. While there were three HTG - related applications with better lottery

numbers (i.e., 3, 6 and 14) than Quail Roost, even if the three HTG - related

applications were d eemed ineligible or were relegated to Priority II status,

Quail Roost would still only be the 12 th - ranked application and would not

advance to the funding range.

40. The inability to advance to the funding range is also true for Ambar

Trail and Sierra Mea dows. Ambar Trail held lottery number 24 , making it

the 23rd - ranked eligible Priority I application by lottery number. There

were four HTG - related applications with better lottery numbers than

Ambar Trail. Even if all the HTG - related applications with bett e r lottery

numbers were deemed ineligible or relegated to Priority II, Ambar Trail

would only advance to the 18th highest lottery number among eligible

Priority I applicants, far behind all three of the preliminarily awarded

applicants.

41. Similarly, Sier ra Meadows, with its lottery number of 59, would only

move to the ranking of 37th, after the elimination of any ineligible

applications, Priority II applications, and all HTG - related applications with

better lottery numbers .

42. Instead of challenging Flor ida Housing's scoring or evaluation of the

applications selected for funding, Petitioners assert that:

Florida Housi n g 's failure to take a n y action with

re s p ect to the 15 affiliated Priori t y I a pp lications

p laced other A p p licants, including Petitioner Ï

Ap plicants who followed the RFA's limitations

regarding submission of the Priority I

Applications, and who did not act to eliminate

competition . . . at a competitive disadvantage and

rendered the entire RFA's scoring and selection

process fundamentally unf air.

* * *

By manipulating the Leveraging Classification

calculations to ensure that all of its Applications

were in Group A, the HTG entities effectively

rendered the Levering Classification procedures

meaningless and placed greater emphasis on

lottery numbers in determining which Applicants

would be funded. Because HTG entities submitted

15 Prior i ty I Applications instead of the three

Priorit y I A p p lications other Devel o p ers were

allowe d , the HTG entities increased their cha n g es

of obtaini n g lower (bet ter) lott e ry numbers. Had

HTG submitted on l y three Applications, there

would have been 51 total Applicants instead of

63. The mathematical chances of a rule - abiding

Developer obtaining a more favorable lottery

number are far more when one Developer is

allo wed to submit five times the number of

applications as the rule - abiding developer.

43. During the hearing on t he Joint Motion to Dismiss, PetitionersÔ

counsel conceded that even if all of the HTG applications were taken out of

the process, none of the Pe titioners would be moved into the funding range.

It is otherwise mere speculation that that the purported manipulation of

the leveraging had a negative impact on Petitioners or any other applicant

or g a ve any applicant a better lottery number.

44. All appl ications received a randomly generated lottery number from

the same batch of numbers. Moreover, under the terms of the R F A, a

developer could submit as many Priority II applications as it wished,

without limitation . Improperly submitted Priority I applicat ions are,

pursuant to the terms of the RFA, converted to Priority II applications. They

are not removed from the pool of applications. Thus, whether the HTG -

related applications were labeled as Priority I or Priority II is irrelevant to

the assignment of l ottery numbers, which was done through a random

number generator when the applications were received.

45. Further, Petitioners' argument presupposes that the number of

applications submitted by HTG and related entities would somehow have

been different if Florida Housing deemed HTG and related entities to be in

violation of the limitation on the number of Priority 1 applications.

However, under the terms of the RFA, such a determination by Florida

Housing would always come after lottery numbers were assigne d.

Therefore, there is no support for the argument that Petitioners would

receive a better number because the numbers were already issued.

46. Petitioners try to avoid their standing problems b y alleging that the

process was so fundamentally unfair that th e entire RFA should be thrown

out. However, the remedy established in the unchallenged RFA

specifications is clear -- applications exceeding the Priority I limit would be

converted to P riority II. They would not be removed from the pool, and they

would not b e assigned different lottery numbers. If Petitioners had an issue

with the ÑfairnessÒ of the process, they could have challenged the

specification. They did not. A s the preliminary awards would not change ,

whether or not the HTG applications are considered , is contrary to the

PetitionersÔ assertion that the alleged improprieties of HTG somehow

subverted the process or made it fundamentally unfair.

47. W hile certainly, everything would change if all of the applications

were thrown out and everyone was allowe d to resubmit applications, whether

Petitioners would receive an award or a more favorable lottery number with

respect to any subsequent R F A is pure conjectur e and speculation.

Moreover, to throw out all applications on such speculation would be

fundamenta lly unfair to applicants like Naranja Lakes , Slate Miami , and

Harbour Springs who are entitled to funding based on the terms of the

R F A. The alleged improprieties of HTG should not be used to unjustifiably

penalize them.

48. In sum, Petitioners do not meet the Agrico test because they failed to

demonstrate that their substantial interests are adversely affected by

Florida Housing's preliminary awards. Petitioners do not cite to any

binding authority, nor could the undersigned locate any such authority,

that would support the assertion that, even if an applicant has no chance

of getting an award for that applicant, that applicant has standing to

challenge the Ñ fundamental fairness Ò of the process. A mere assertion that

the fundamental fairness of the procurem ent process was flawed does not

relieve the Petitioners of the requirement to establish standing by meeting

both prongs of the Agrico test and demonstrating a substantial interest

that is adversely affected by the intended agency action. See Madison

H i g h la nds, supra at 474 .

49. Fairbanks v. Department of Tran s p ortation , 635 So. 2d 58 (Fla. 1st

DCA 1984), cited by Petitioners in support of the argument that one does

not have to be an eligible bidder in line for an award to have standing, "does

not involve a bid protest pursuant to [s ection Rather, it involves

the denial of a request for a formal hearing pursuant to section

See Id . at 61. The dispute in Fairbanks was o ver the

specifications in a construction contract that had been awa rded. The

awarded contractor submitted plans to the Department that included

Fairbanks' equipment. The Department rejected the submitted plans

because the contract specifications specifically called for the use of

Fairbanks' competitor's product. Fairbanks requested a formal s ection

120.57(1) hearing to challenge the contract specifications. The Department

challenged Fairbanks' standing since it was not a bidder for the

construction contract. The Department argued that c hapter 337, Florida

Statutes, which c ontrol s construction contracts, was intended to protect

only the interest of bidders, not suppliers like Fairbanks. Id at. 59. The

First District Court of Appeal disagreed, finding that Fairbanks Ô

substantial interests were adversely affected. Id . at 61.

5 0. Unlike the appellant in Fairbanks , the Petitioners have failed to show

that their substantial interests were affected by the agencyÔs actions. Florida

Housing's alleged inaction regarding the HTG applications has no bearing

on the propriety of Florida H ousing's scoring and intended selection of

Naranja Lakes , Slate Miami , and Harbour Springs for funding.

51. Petitioners cannot establish that, but for an error on the p art of

Florida Housi n g , Petitioners' applications would have been selected for

funding , or that Petitioners' applications would have received a higher

lottery number. Here, Petitioners were not prevented from competing for

funding nor were any of Petitioners Ô applications rejected during the

process. The Petitioners Ô failure to make the fundi ng range was not due to

any error by Florida Housing or any actions by the applicants selected for

funding. In fact, Petitioners' failure to obtain funding cannot be directly

tied to any HTG - related action .

52. In sum, the Petitioner s failed to demonstrate that the assignment of

lottery numbers or treatment of HTG applications failed to comply with the

express terms of the RFA, or was otherwise Ñ fundamentally unfair ,Ò and did

not demonstrate that the outcome could have changed such that their

interests are substantially affected in order to meet the standing

requirements to challenge th e preliminary awards or maintain the Petitions

filed in this case . Therefore, for the reasons set forth above and in the Joint

Motion to Dismiss, the Petitioners and Petitions should be dismissed for lack

of standing.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that a f i n a l o rd e r b e en t e r e d finding that Petitioners lack

standing and d is m iss in g t h e Petitions with prejudice .

D ONE A ND E NTERED this 3rd day of April , 2020 , in Tallahassee, Leon

County, Florida.

S

JAMES H. PETERSON, III

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 3rd day of April , 2020.

C OPIES F URNISHED :

Maureen McCarthy Daughton, Esquire

Maureen McCarthy Daughton, LLC

Suite 3 - 231

1400 V illage Square Boulevard

Tallahassee, Florida 32312

(eServed)

Michael P. Donaldson, Esquire

Carlton Fields Jorden Burt, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, Florida 32302 - 0190

(eServed)

Donna Elizabeth Blanton, Esq uire

Brittany Adams Long, Esquire

Radey Law Firm, P.A.

Suite 200

301 South Bronough Street

Tallahassee, Florida 32301

(eServed)

Hugh R. Brown, General Counsel

Betty Zachem, Esquire

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301 - 1329

(eServed)

M. Christopher Bryant, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302 - 1110

(eServed)

J. Stephen Menton, Esquire

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551 (32302)

Tallahassee, Florida 32301

(eServed)

Corporation Clerk

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301 - 1329

(eServed)

N OTICE O F R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit exceptions within 10 days from the date

of the Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency that will issue the final order in this case.