22-000004BID Madison Trace, Llc; American Residential Communities, Llc; And New South Residential, Llc vs. Florida Housing Finance Corporation Status: Closed Recommended Order on Friday, April 1, 2022.

Summary: Petitioner failed to prove that Florida Housing?s intended award of housing tax credits is contrary to its governing statutes, rules, or the solicitation specifications.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ADISON T RACE , LLC; A MERICAN

R ESIDENTIAL C OMMUNITIES , LLC; A ND

N EW S OUTH R ESIDENTIAL , LLC ,

Petitioner s ,

vs. Case No. 22 - 0004BID

F LORIDA H OUSING F INANCE

C ORPORATION ,

Respondent,

and

B EACON A T C REATIVE V ILLAG E

P ARTNERS , L TD .,

Intervenor .

/

R ECOMMENDED O RDER

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 (2021), 1

on February 4, 2022, in Tallahassee, Florida.

A PPEARANCES

For Petitioner s Madison Trace, LLC; American Residential Communities,

LLC; and New South Residential, LLC:

J. Timothy Schulte, Esquire

Zimmerman, Kiser & Sutcliffe, P.A.

315 East Robinson Street

Post Office Box 3000

Orlando, Florida 32802

1 Unless otherwise stated, all citations to the Florida Statutes are to the 202 1 version .

For Respondent Florida Housing Finance Corporation:

Christopher Dale McGuire, Esquire

Florida Ho using Finance Corporation

227 North Bronough Street, Suite 5000

Tallahassee, Florida 32301

For Intervenor Respondent Beacon At Creative Village Partners, LTD:

M. Christopher Bryant, Esquire

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

Post Office Box 111 0

Tallahassee, Florida 32302 - 1110

S TATEMENT OF T HE I SSUE

The issue in this bid protest matter is whether Respondent 's , Florida

Housing Finance Corporation, intended award of funding under Request for

Applications 2021 - 202 was contrary to its governing st atutes, rules, or the

solicitation specifications.

P RELIMINARY S TATEMENT

This matter involves the protest by Petitioner s , Madison Trace, LLC,

American Residential Communities, LLC, and New South Residential, LLC

(collectively referred to as "Madison Trace "), to the intended decision of

Respondent Florida Housing Finance Corporation ("Florida Housing") of an

award under Request for Applications 2021 - 202 ("RFA 2021 - 202").

On July 20, 2021, Florida Housing issued RFA 2021 - 202 soliciting

applications to allo cate competitive tax credits for affordable housing

development s to be located in Broward, Duval, Hillsborough, Orange, Palm

Beach, and Pinellas Counties , Florida. 2

2 No protests were made to the specifications or terms of RF A 2021 - 202 .

On December 10, 2021, Florida Housing posted notice of its intent to

award funding for the development that qualified for the Family Designation

in Orange County to Intervenor Beacon At Creative Village Partners, LTD

("Beacon").

On December 28, 2021, Madison Trace timely filed a formal written

protest challenging the eligibility and selection of Beacon's application. 3

On January 3, 2022, Florida Housing referred Madison Trace's protest to

the Division of Administrative Hearings ("DOAH") for assignment to an

Administrative Law Judge ("ALJ") to conduct a chapter 120 evidentiary

hearing.

The fi nal hearing was held on February 4, 2022. Joint Exhibits 1

through 6 were admitted into evidence. Madison Trace's Exhibits 1, 2, 5,

and 7 were also admitted into evidence. Madison Trace called Marisa Button

as a witness, from whom all parties elicited test imony. Beacon also offered

the testimony of W. Scott Culp. In addition, the parties stipulated to a

number of facts in a Joint Pre - Hearing Statement filed on February 2, 2022.

The Transcript of the final hearing was electronically filed with DOAH on

Febru ary 28, 2022. At the close of the hearing, the parties were advised of a

ten - day time frame after 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.

3 Madison Trace subsequently moved to amend its written protest on January 20, 2022, and

January 27, 2022. Both motions were granted.

F INDINGS OF F ACT

1. Florida Housing is a public corporation created pursuant 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 the state of Florida. For purposes of this administrative

proceeding, Florida Housing is considered an agency of the state of Florida.

2. Madison Trace submitted an application (Application Number 2022 -

116C) to Florida Housing seeking an alloca tion of competitive housing credits

through RFA 2021 - 202 for a proposed affordable housing development to be

located in Orlando, Florida. American Residential Communities, LLC , and

New South Residential, LLC , are "Developer" entities for Madison Trace as

d efined by Florida Housing in Florida Administrative Cod e R ule 67 -

48.002(28). Florida Housing deemed eligible, but did not select, Madison

Trace's application for funding under RFA 2021 - 202.

3 . Beacon also applied for the housing credits to be allocat ed thr ough RFA

2021 - 202 for a proposed affordable housing development in Orlando, Florida.

Florida Housing deemed Beacon's application (Application Number 2022 -

122C) eligible for funding and selected Beacon for an award of housing

credits for Orange County, Flor ida.

4 . As background, Florida Housing is designated as the housing credit

agency for the state of Florida within the meaning of section 42(h)(7)(A) of

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

establish procedures to distribute low - income housing tax credits (commonly

referred to as "housing credits" or "tax credits") and to exercise all powers

necessary to administer the allocation of those credits. § 420.5099, Fla. Stat.

5 . Florida Housing's low - income housing tax credit progra m was enacted

to incentivize the private market to invest in affordable rental housing. The

affordable housing industry relies heavily on public funding, subsidies, and

tax credits to support projects that may not be financially sustainable in light

of the sub - market rents they charge. The housing credits provide an "equity

infusion" into prospective housing developments. For this reason, housing

credits allow developers to reduce the amount necessary to fund housing

projects. Concomitantly, applicants who are awarded housing credits can

(and must) offer the subject property at lower, more affordable rents.

6 . Florida Housing uses a competitive solicitation process to award the

housing credits. Florida Housing initiates the solicitation process by issuing a

request for applications ("RFA"). §§ 420.507(48) and 420.5093, Fla. Stat.; and

Fla. Admin. Code Ch . 67 - 48 and 67 - 60.

7 . The RFA competitive solicitation process begins when Florida Housing

requests its Board of Directors (the "Board") to approve Florida Housing's

plan for allocating resources through various RFAs. If the Board approves the

plan, Florida Housing begins work on each individual RFA.

RFA 2021 - 202 :

8 . The RFA at issue in this matter is RFA 2021 - 202, entitled "Housing

Credit Financing for Affo rdable Housing Developments Located in Broward,

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

purpose of RFA 2021 - 202 is to distribute funding to develop affordable,

multifamily housing in the named Florida counties. Through RFA 2021 - 202,

Florida Housing intends to provide an estimated $18,791,580 .00 of housing

credit financing.

9 . Florida Housing issued RFA 2021 - 202 on July 20, 2021. RFA 2021 - 202

set forth the information each Applicant was required to provide. This

information incl uded a number of submission requirements, as well as a

general description of the type of project that would be considered for

funding.

10 . Applications for the housing credit funding were due to Florida

Housing by August 31, 2021. Florida Housing received 21 applications for

housing credits under RFA 2021 - 202, including applications from both

Madison Trace and Beacon .

1 1 . Florida Housing appointed a three - person Review Committee from

amongst its staff to evaluate and score the applications. The Review

Comm ittee independently reviewed, deemed eligible or ineligible, scored, and

ranked applications pursuant to the terms of RFA 2021 - 202, as well as

c hapters 67 - 48 and 67 - 60, and applicable federal regulations.

1 2 . Through the scoring and evaluation process out lined in RFA 2021 - 202

Section Five , the Review Committee found both Madison Trace and Beacon

eligible for funding under RFA 2021 - 202 . Beacon's application , however,

received a scoring advantage because Beacon qualified for Local Government

Areas of Opportu nity points. W ith its application, Beacon produced evidence

of a "local government" contribution from Orange County , which

demonstrated to Florida Housing that Orange County was committed to

Beacon's housing project. Madison Trace's application, on the oth er hand, did

not include a local government contribution. Consequently, Beacon's

application received five additional points over Madison Trace's application.

(RFA 2021 - 202, Section Five A.2.) Beacon, therefore , was the highest - ranking

Applicant for an awa rd of the tax credits in Orange County .

13. Following its assessment, the Review Committee recommended eight

applications to the Board for funding in the designated counties . Included in

the Review Committee's recommendations was Beacon's application for the

Family Demographic for Orange County.

1 4 . On December 10, 2021, the Board formally approved the Review

Committee recommendations. As part of its determinations, the Board

selected Beacon's application. T he Board awarded Beacon $2,375,000 .00 in

housin g credits.

The Madison Trace Protest :

1 5 . Madison Trace protests the Board's selection of Beacon's development

instead of its own. Madison Trace, the second ranked Applicant for Orange

County, challenges Florida Housing's determination of the eligibility o f, and

award to, Beacon. I f Madison Trace successfully demonstrates that Florida

Housing erred in accepting, then scoring, Beacon's application, or the

evidence demonstrates that Beacon's application was ineligible or

nonresponsive, then Madison Trace will be entitled to an award of housing

credits for Orange County through RFA 2021 - 202 instead of Beacon. 4

1 6 . Madison Trace raises four objections to Beacon's application.

Specifically, Madison Trace points to three alleged deficiencies in Beacon's

"Site Con trol" documentation , as well as Beacon 's alleged fail ure to disclose a

" Developer " in its application. Madison Trace argues that these flaws render

Beacon's application ineligible for funding. Consequently, Florida Housing

should have disqualified Beacon f rom an award under RFA 2021 - 202.

1 7 . To explain RFA 2021 - 202's provisions requiring Site Control, as well

as Florida Housing's selection of Beacon for its intended award, Florida

Housing (and Madison Trace) presented the testimony of Marisa Button.

Ms. Bu tton is Florida Housing's Managing Director of Multifamily Programs.

In her job, Ms. Button oversees the allocation of federal and state resources

for the development and rehabilitation of multifamily affordable rental

housing throughout the state of Flori da. She is also responsible for Florida

Housing's RFA process.

1 8 . Regarding Site Control, Ms. Button reported that RFA 2021 - 202

Section Four A.7.a required each A pplicant to demonstrate Site Control over

the property the Applicant intended to develop usi ng the housing tax credits.

Ms. Button relayed that evidence of Site Control provides Florida Housing

reasonable assurances that the Applicant's housing development will proceed

if it receives an award of funding.

1 9 . Ms. Button further explained that an Applicant evinced its Site

Control by providing with its application a "properly completed and executed"

Florida Housing Finance Corporation Site Control Certification form (the

4 No party alleged that Madison Trace's application failed to satisfy all eligibility

requirements or was oth erwise ineligible for funding under RFA 2021 - 202.

"Site Control Form"), a blank template of which was included in RFA 2021 -

202 a t Exhibit A, Attachment 8.

20 . Ms. Button added that , during the scoring process, the Review

Committee did not consider the enforceability or validity of the actual

contents of the Site Control Form. Instead, the Review Committee simply

ensured that the A pplicant provided complete documentation. (RFA 2021 -

202, Section Four A.7.a) . Ms. Button disclosed that, should an Applicant's

Site Control documents not meet the RFA specifications, Florida Housing

reserved the right to rescind any award during the credit underwriting

process, which occurs after the competitive solicitation phase is finished.

2 1. RFA 2021 - 202 Section Four A.7.a state s that for the Site Control Form

to be "considered complete," the Applicant must attach documentation

"demonstrating that it is a party to an eligible contract or lease, or is the

owner of the subject property. Such documentation must include all relevant

intermediate contracts, agreements, assignments, options, conveyances,

intermediate leases, and subleases."

22 . RFA 2021 - 20 2 S ection Four A.7.a further instructs, in pertinent part:

(1) An eligible contract must meet all of the

following conditions:

(a) It must have a term that does not expire before

February 28, 2022, or that contains extension

options exercisable by the pu rchaser and

conditioned solely upon payment of additional

monies which, if exercised, would extend the term

to a date that is not earlier than February 28, 2022;

(b) It must specifically state that the buyer ' s

remedy for default on the part of the seller includes

or is specific performance;

(c) The Applicant must be the buyer unless there is

an assignment of the eligible contract, signed by

the assignor and the assignee, which assigns all of

the buyer's rights, title and interests in the eligible

contra ct to the Applicant .

Madison Trace's challenge regarding Site Control focuses on Beacon's

compliance with these specifications. Madison Trace specifically asserts the

following arguments:

A. Contrary to RFA 2021 - 202 Section Four A.7.a, the "eligible contr act"

Beacon submitted with its application does not include all "relevant"

documents :

23 . Madison Trace complains that the "eligible contract" Beacon attached

to its application did not include all "relevant" documents as expressly

mandated by RFA 2021 - 20 2 Section Four A.7.a . As stated above, RFA 2021 -

202 Section Four A.7.a required each Applicant to "[d]emonstrate site control

by providing È the properly completed and executed [Florida Housing] Site

Control Certification form." For the Site Control F orm t o be "consider ed

complete," the Applicant was required to submit documentation that

includes:

all relevant intermediate contracts, agreements,

assignments, options, conveyances, intermediate

leases, and subleases. (emphasis added) .

24 . To demonstrate Sit e Control, the "eligible contract" Beacon included

with its application was a Purchase Agreement, dated July 19, 2021, for

certain property located in Orange County, Florida. (Beacon application,

Attachment 8) . As explained below, the Purchase Agreement wa s between

the City of Orlando as Seller of the property and Creative Village

Development, LLC ("CVD") , as Buyer. With the Purchase Agreement, Beacon

included nine additional pages, consisting of Exhibits A through G, which

were incorporated by reference in section 9.2 of the Purchase Agreement.

(The Purchase Agreement, plus attachments, is 20 total pages.)

25 . What Beacon did not include with its application were copies o f

additional documents , which were incorporated by Purchase Agreement

section 9.1. Th ese documents include a Purchase Option Agreement (referred

to in the Purchase Agreement as "POA") and a Master Development

Agreement (referred to in the Purchase Agreement as "MDA"). 5

Consequently, Madison Trace argues that BeaconÔs Site Control

documenta tion is incomplete because Beacon did not include "relevant"

documents that are necessary to interpret and apply the terms of the

Purchase Agreement.

26 . In response to Madison Trace's challenge, Ms. Button testified that

Florida Housing does not consider either the POA or the MDA as "relevant"

documents that Beacon should have included with its application. Ms. Button

stated that Florida Housing views the term "relevant" to refer to documents

that invoke a requirement set forth in the RFA. Contrary to Mad ison Trace's

argument, Ms. Button asserted that no provisions or terms within the

Purchase Agreement establish that the POA or the MDA had any bearing on

whether Beacon's Site Control Form meets the express terms of RFA 2021 -

202.

27 . Beacon, to address thi s allegation, presented the testimony of W. Scott

Culp. Mr. Culp is a principal of Atlantic Housing Partners II, LLC ("Atlantic

Housing II"), the Developer of the property for which Beacon seeks housing

credits. Mr. Culp was directly involved in all aspect s of Beacon's application

for housing credits under RFA 2021 - 202.

5 Purchase Agreement, section 9.1 . specifically states:

All of the provisions of the POA and MDA referred to herein

are incorporated herein by reference for all purposes;

provided, however, any reference i n such provisions to the

POA shall be deemed for purposes of this Section to mean or

refer to this Purchase Agreement.

The POA and MDA are also mentioned in approximately a dozen other paragraphs

throughout the Purchase Agreement.

28. Initially, Mr. Culp relayed that Beacon is in the business of developing

affordable, primarily rental, housing communities. He further insisted that

BeaconÔs application satisfies all e ligibility requirements of RFA 2021 - 202,

including Site Control, and was properly selected for funding by Florida

Housing.

29 . Mr. Culp confirmed that the Purchase Agreement attached to Beacon's

application a s Attachment 8 contains all the information Bea con submitted to

establish its S ite C ontrol over the property for which it seeks housing credits.

Likewise, Mr. Culp declared that all the information necessary to

demonstrate Beacon's Site Control can be found in the Purchase Agreement

(with E xhibits A th rough G ). Mr. Culp explained that the Purchase

Agreement, together with its incorporated E xhibits, consists of a single

contract between three parties: the property landowner/Seller (City of

Orlando), the Buyer/Assignor (CVD), and the Assignee (Beacon). Ac cording to

Mr. Culp, the Purchase Agreement distinctly identifi es Beacon as CVD's

Assignee.

30. Supporting Mr. Culp's testimony, the recitals on the first page of the

Purchase Agreement establish the existence and status of the "Assignee of

Buyer, pursuan t to Exhibit B and Exhibit F attached to this Purchase

Agreement." Thereafter, Exhibit B, entitled "Assignment of Option to Buyer,"

directly refers to Beacon as the "' Assignee of Buyer' as defined in Section 1.1

of this Purchase Agreement." 6 Exhibit F of t he Purchase Agreement, entitled

"General Assignment," states that CVD :

[H]ereby assigns, sells, transfers, sets over and

delivers unto [Beacon] ("Assignee" or "Assignee of

Buyer") all of Assignor's estate, right, title and

interest in and to the following which relates to the

land described on Exhibit A attached hereto.

6 Purchase Agreement , section 1.1, defines "Assignee of Buyer" as "The party named in

Exhibit B attached to this Purchase Agreement."

3 1. Mr. Culp pressed , therefore, that the terms of the Purchase Agreement

(with E xhibits A through G ) contain all the "relevant" Site Control

information necessary to provide Florida Housi ng " reasonable assurances "

that Beacon's housing development will proceed if it receives tax credit

funding. Further, contrary to Madison TraceÔs argument, no evidence

indicates that language in either the POA or the MDA will affect or impact

the City of O rlando's sale of the property to CVD, or CVD's assignment of the

property to Beacon.

B. Contrary to RFA 2021 - 202 Section Four A.7.a(1)(a), the "eligible

contract" Beacon attached to its application is not "effective" because

the property buyer has not clo sed on the development property :

32 . Ms. Button testified that when considering an Applicant's Site Control

documents, Florida Housing recognize s that in certain circumstances the

Applicant might not be the corporate entity that w ill actually buy or own the

property which it intend s to develop. Therefore, as set forth in RFA 2021 - 202

Section Four A.7.a(1)(c), Florida Housing is prepared to accept applications

where the Applicant is not the property buyer, but is assigned "all of the

buyer's rights, title and interests in the eligible contract."

33 . Such was the case for Beacon's housing project. Beacon intends to

develop certain property identified as Lot 2, Creative Village, Phase I, in

Orlando, Florida (the "Development Property"). The Development Prop erty is

currently owned by the City of Orlando. For Beacon to obtain the right to

build on the Development Property, the plan is for CVD to buy the

Development Property from the City of Orlando, then assign it s rights to

Beacon. Therefore, i n its applicati on, because it will not b e the actual buyer ,

Beacon submitted with its Site Control Form the documents through which

CVD purported to assign its rights to the Development Property to Beacon

(the Purchase Agreement with E xhibits A through G ).

34 . With the Purchase Agreement, Beacon included Exhibit B , entitled

" Assignment of Option to Buyer. " Exhibit B states that CVD assigns its

option to the Development Property to Beacon, "provided, however, that this

Assignment shall become effective only upon Closing."

35 . For its second argument, Madison Trace asserts that, as of the RFA

application deadline (August 31, 2021), the closing had not occurred. 7

Further, neither Exhibit B nor any other Purchase Agreement document

establishes when the closing is to occur , a nd Purchase Agreement ,

section 2.4 , authorizes the Buyer/Assignor (CVD) to terminate the Purchase

Agreement at its discretion prior to the c losing d ate. Consequently, Madison

Trace contends that the Purchase Agreement does not create a legally

binding ass ignment because the Buyer (CVD) must close on the property

before the assignment becomes effective. Therefore, the Purchase Agreement

documents do not establish Beacon's Site Control over the Development

Property as of the application deadline, and Florida Housing should have

found Beacon's application ineligible for funding.

36 . In response, Ms. Button was not alarmed at the language in Exhibit B

regarding the closing date. On the contrary, Ms. Button testified that the

RFA specifications did not prohibi t such "closing language" in the Site

Control documents, and RFA 2021 - 202 did not contain any specifications

establishing when an assignment of an eligible contract must be come

operational . Ms. Button testified that, even if the assignment in Exhibit B

doe s not become effective until a closing occurs , the Purchase Agreement as a

whole still meets the requirements of RFA 2021 - 202 for an " eligible contract. "

She remarked that the Purchase Agreement documents that Beacon

submitted with its application provided Florida Housing sufficient

assurances that Beacon will obtain the property on which it plans to develop

its housing project.

7 RFA 2021 - 202 Section Four A.7.a (1)(a) also states that the "eligible contract" (the Purchase Agreement)

"must have a term t hat does not exp ire before February 28, 2022 ." Beacon correctly asserts that the

Purchase Agreement does not contain any provisions that expire before February 28, 2022.

37 . Ms. Button further commented that, in her experience, it is common

practice for developers to include language in purchase and sale agreements

that condition a contract on future events. She testified that Florida Housing

routinely reviews property sales agreements contingent on the award of

housing credits.

38 . Mr. Culp explained that the parties to the Purchase Agreement

in cluded the "only upon Closing" language in Exhibit B becau se the Seller

(the City of Orlando) only wanted to communicate with the Buyer (CVD)

regarding the sale , not the Assignee. Mr. Culp further testified that the

Purchase Agreement specifically states t hat its terms became effective

August 1, 2021 (Purchase Agreement, para graph 1.5), and will remain

effective until December 10, 2022 (Purchase Agreement, para graph 1.13).

Mr. Culp urged that this time period should provide ample opportunity for

Beacon (as Assignee) to gain full control over the property on which it intends

to locate its housing project. Therefore, Mr. Culp asserted that the fact that

the City of Orlando and CVD have not yet closed on the purchase of the

Development Property does not affect the efficacy or eventuality of the

assignment of the p roperty to Beacon.

C. Contrary to RFA 2021 - 202 Section Four A.7.a(1)(c), the Assignee

(Beacon) did not sign the assignment of the eligible contract :

39 . RFA 2021 - 202 Section Four A.7.a(1)(c) states:

The Applicant must be the buyer unless there is an

assignment of the eligible contract, signed by the

assignor and the assignee , which assigns all of the

buyer's rights, title and interests in the eligible

contract to the Applicant. (emphasis added) .

40 . Madison Trace argues that, contrary to the express terms of RFA

2021 - 202 Section Four A.7.a(1)(c), Beacon , the Assignee , did not sign the

Purchase Agreement. Consequently, CVD's assignment of its rights to Beacon

is not legally binding or effective. Madiso n Trace asserts that, without a

proper signature from Beacon show ing Beacon's acceptance of the

a ssignment , Beacon lack s Site Control over the property it intends to develop.

In other words, Beacon did not produce with its application a legally

enforceable agreement that, on its face, requires the Buyer (CVD) to assign

the Development P roperty to the Assignee (Beacon). Therefore, if the

Buyer/Assignor elects not to consummate the sale of the property, the

assignment terms will be wholly meaningless , and Bea con will be left with no

Site Control. As a result, Beacon's application did not comply with RFA 2021 -

202 specifications, and Florida Housing should not have found Beacon's

application eligible for an award of housing credits.

4 1. Both Beacon and Florida H ousing acknowledge Madison Trace's

argument that no "stand - alone" document assigning the buyer's rights, title,

and interests under the Purchase Agreement to Beacon is signed by both the

Buyer/Assignor (CVD) and the Assignee (Beacon). 8 Ms. Button further

c onceded that the Purchase Agreement, itself, does not bear a signature of a

Beacon representative.

42 . However, both Beacon and Florida Housing assert that the "entirety"

of the Purchase Agreement documents clearly contemplate and incorporate :

( 1) CVD's a greement to purchase the subject property ; ( 2) CVD's assignment

of its property rights to Beacon ; and ( 3) Beacon's acceptance of that

assignment. Beacon (through Mr. Culp) and Florida Housing (through

Ms. Button) point out that the Purchase Agreement inco rporates several

exhibits. These exhibits contain the signatures and/or initials of two Beacon

representatives, Mr. Culp and Jay P. Brock. Both Mr. Culp and Ms. Button

maintain that these signatures and initials, taken as a whole, plainly

indicate that Bea con agreed to accept the assignment of all the buyer's rights

and obligations to the Development Property.

8 Both the City of Orlando and CVD signed the Purchase Agreement document.

43 . Specifically, Mr. Culp testified that, contrary to Madison Trace's

assertions, several representatives signed the Purchase Agreement (with

exhib its) on behalf of Beacon. At the final hearing, Mr. Culp noted the

following marks:

a. Purchase Agreement , Exhibit F , entitled " General Assignment ," is

signed by Jay P. Brock on behalf of Beacon . Beacon is designated on

Exhibit F above Mr. Brock's signatur e line as the "Assignee." Beacon

identified Mr. Brock as its "Authorized Principal Representative" in its

application. (Beacon application, page 3) . Mr. Brock also signed Beacon's Site

Control Form cover page. (Beacon application, Exhibit 8, page 1) . Mr. C ulp

staunchly represented that Beacon authorized Mr. Brock to sign the General

Assignment document on its behalf.

b. Mr. Culp, himself, initialed all but one page of the Purchase Agreement

and exhibits in the lower right corner. Mr. Culp declared that his initials

served as his signature. 9 Mr. Culp testified that he ascribed his initials on

behalf of Beacon , and Beacon authorized him to initial /sign on its behalf.

Mr. Culp voiced that he marked the Purchase Agreement and attachments as

evidence that Beacon acknowledged that it is the Assignee of the Purchase

Agreement.

c. On Exhibit F, the General Assignment (page 18 of the Purchase

Agreement with exhibits, and the one page Mr. Culp did not initial), Mr. Culp

signed as a witness to Mr. Brock's signature.

44 . Mr. Culp contended that, given the clear intent of CVD and Beacon to

treat the entire Purchase Agreement with exhibits as a single document, the

absence of the "Assignee's" signature on the Purchase Agreement document

itself does not negate CVD's assignm ent of its rights to the Development

9 At the final hearing, parsing through his function versus Mr. Brock's role, Mr. Culp

explained that he was representing Beacon when he initialed the Purchase Agreement.

However, Mr. Brock was acting as Beacon's official authorized representative when he signed

the General Assig nment document (Exhibit F).

P roperty to Beacon. Mr. Culp proclaimed that Beacon is bound by the

Purchase Agreement.

45 . Mr. Culp further expressed that the Purchase Agreement , with

exhibits, shows that the City of Orlando was clearly aware that C VD

intended to assign its rights to the Development Property to Beacon. The

Purchase Agreement expressly incorporated Exhibit B into its terms.

Exhibit B plainly identifie s Beacon as the "Assignee of Buyer." Therefore, the

terms of the Purchase Agreement establish that when the City of Orlando

and CVD executed the Purchase Agreement document , not only were the

parties thereto aware that CVD would assign the Development Property, but

th ey were also aware th at Beacon would be the Assignee.

46 . Florida Housin g ( Ms. Button ) takes the position that the Purchase

Agreement, together with its incorporated exhibits, sufficiently demonstrates

that the Assignee, Beacon, accepted the assignment of the Buyer's rights to

the Development Property under the Purchase Agreem ent. Therefore,

Ms. Button urged that the Purchase Agreement contains the requisite

signatures to meet the requirements of RFA 2021 - 202. Ms. Button further

testified that RFA 2021 - 202 did not explicitly require a separate, enumerated

document signed by bot h Assignor and Assignee. Neither did RFA 2021 - 202

require Applicants to designate a specific person to sign the assignment

document(s). On the contrary, Ms. Button opined that Beacon's Site Control

Form could be signed by anyone who had authority to sign o n Beacon's

behalf. In addition, Ms. Button represented that Florida Housing has

historically recognized initials as "acceptable forms" of a signature on

assignment documents.

D. Contrary to RFA 2021 - 202 Section Four A.3.b(1), Beacon's application

does not disclose all of its Developers or co - Developers :

47 . For its final challenge, Madison Trace argues Beacon violated

RFA 2021 - 202 specifications by failing to disclose the identity of one of its

Developers or co - Developers in its application. Madison Trace identified this

missing entity as Banc of America Community Development Corporation

("BoA CDC").

48 . RFA 2021 - 202 Section Four A.3.b(1) instructs each A pplicant to

"[s]tate the name of each Developer, including all co - Developers."

49 . RFA 2021 - 202 Section Four A.3.c further provides:

c. Principals Disclosure for the Applicant and for

each Developer and Priority Designation ( 5 points )

(1) Eligibility Requirements

To meet the submission requirements, upload the

Principals of the Applicant and Developer(s)

Disclosure Form (Form Rev. 05 - 2019) ("Principals

Disclosure Form") as outlined in Section Three

above.

* * *

To meet eligibility requirements, the Principals

Disclosure Form must identify, pursuant to

subsections 67 - 48.002(94), 67 - 48.0075(8) and 67 -

4 8.0075(9), F.A.C., the Principals of the Applicant

and Developer(s) as of the Application Deadline.

50 . During her testimony, Ms. Button relayed that Florida Housing (and

RFA 2021 - 202) requires Applicants to disclose the identity of its Developers

(and P rincipals) so that Florida Housing is aware of the entities with whom it

is dealing. Ms. Button explained that certain entities, such as those

companies or individuals who owe arrearages to Florida Housing, are

prohibited from participating in a solicitati on for housing credits. See Fla.

Admin. Code R. 67 - 48.004(2). Consequently, an Applicant that does not fully

disclose or misrepresents its Developers may be rendered ineligible for an

award through an RFA.

5 1. Beacon submitted a Principal Disclosures for the Developer form (the

"Developer Disclosure Form") with its application. On its Developer

Disclosure Form, Beacon did not list BoA CDC. 10

52 . Madison Trace, to support its position , introduced documents at the

final hearing showing that on July 19, 2021, just over a month before Beacon

submitted its application, BoA CDC and BeaconÔs general partner, SAS

Beacon at Creative Village Managers, L.L.C. ("SAS Beacon"), entered into an

Ownership Agreement. The Ownership Agreement provided that BoA CDC:

[I]s enti tled to participation in the developer fee

("Developer Fee") earned specifically with regard to

the development of an affordable housing project to

be known as Beacon at Creative Village (the

"Property") È under Florida Housing Finance

Corporation ("FHFC") RFA 2021 - 202 on Lot 2,

Creative Village, Phase I.

The Ownership Agreement was signed by Mr. Brock on behalf of Beacon.

53 . Madison Trace calls attention to rule 67 - 48.002(29), which defines

"Developer Fee" as "the fee earned by the Developer." Hence, bec ause BoA

CDC is entitled to receiv e a Developer Fee fr om the Beacon housing project,

Madison Trace argues that BoA CDC should be considered a "Developer" of

Beacon. Consequently, because Beacon failed to identify BoA CDC on the

Developer Disclosure Form pe r Section Four A.3.c , Madison Trace asserts

that Florida Housing should have deemed Beacon's application ineligible for

housing credits under RFA 2021 - 202.

54 . To buttress its argument, Madison Trace elicited testimony from

Ms. Button confirming that an A pplicant's failure to identify one of its

Developers or co - Developers would render the application ineligible for award

of housing credits. Ms. Button further acknowledged that an entity that

receives a Developer Fee is "usually" considered a Developer on the project.

10 Beacon identified Atlantic Housing Partners II, L.L.C., as its sole Developer.

55 . On the other hand, Ms. Button asserted that she did not believe that

BoA CDC meets the definition of a "Developer" of Beacon as set forth in

rule 67 - 48.002(28). 11 Further, Ms. Button was not aware of any source or

document that established that BoA CDC would operate in the capacity of

"Developer" for, or otherwise participate in, Beacon's housing project as of the

application deadline (August 31, 2021) . In particular, Ms. Button did not

believe that BoA CDC became a "Developer" under Florid a Housing rules or

the RFA specifications by virtue of the language in the Ownership

Agreement. She further commented that should Beacon decide to bring a co -

Developer onto the project after funding is awarded, Florida Housing has a

process in place to rev iew that action. Therefore, Ms. Button contended that

Beacon's decision not to list BoA CDC on its Developer Disclosure Form did

not conflict with the terms of RFA 2021 - 202, despite the fact that BoA CDC

may participate in the "Developer Fee" from the Beac on housing project .

56 . Mr. Culp also firmly rebuffed Madison Trace's allegation that Beacon

failed to disclose a Developer entity in its application. Mr. Culp emphatically

declared that, at the time of the application deadline, BoA CDC was not a

Developer , Principal, or partner in Beacon's housing project. Neither did BoA

CDC participate in any way with Beacon's request for housing credits

through RFA 2021 - 202.

57. To Madison Trace's specific point, Mr. Culp represented that BoA CDC

funded a significant p ortion of the upfront cost s o f the Development Property,

which included several million dollars in infrastructure costs. Mr. Culp

further conceded that, in the future, Beacon might contract with BoA CDC to

11 Rule 67 - 48.002 (28) defines ÑDeveloperÒ as :

[A] ny individual or legal entity which possesses the requisite

skill, experience, and credit worthi ness to successfully

produce affordable housing as required in the Application.

Unless otherwise stated in a competitive solicitation, as used

herein, a Ólegal entityÔ means a corporation, association, joint

venturer, or partnership legally formed as of Ap plication

deadline.

serve as a sub - Developer in the project. However, Mr. Culp maintained that

BoA CDC is not currently a Developer on Beacon's project.

58 . Regarding the Ownership Agreement, Mr. Culp admitted that SAS

Beacon has agreed to give BoA CDC some portion of the "Developer Fee" from

the Beacon housing project. Mr. Culp explained that Beacon will pay its

Developer, Atlantic Housing II , a developer fee for its services. Thereafter,

should Atlantic Housing II contract with any other entities for services, such

as BoA CDC, Atlantic Housing II will pay them directly for their

contributions, not Beacon.

59. Mr. Culp further represented that, despite entering into a contract

entitled "Ownership Agreement," SAS Beacon did not convey "ownership" of

any portion of Beacon or its housing project to BoA CDC. Instead, the

Owners hip Agreement only established that BoA CDC would obtain a

security interest in SAS Beacon's "net cash flow in connection with [the

Development] Property." The security interest would only exist until BoA

CDCÔs "participation in the Developer Fee È is paid in full." (Ownership

Agreement, para graph E) . Therefore, Mr. Culp declared that BoA CDC only

obtained an "indicia of ownership" in the Development Property without

actually becoming an owner. For this reason, when Beacon prepared its

Developer Disclosure Form, Mr. Culp instructed Beacon to remove any

reference to BoA CDC. Mr. Culp further reflected that, based on BoA CDC's

organizational structure and the number of its shareholders, it would be

difficult, if not impossible, to provide a comprehensive repor t of all BoA CDC

owners and principals on Beacon's Principals of the Applicant and

Developer(s) Disclosure Form.

60 . Ms. Butt on concluded her testimony by maintaining that Florida

Housing appropriately deemed Beacon's application eligible for housing

credi t funding. Ms. Button asserted that Beacon's application, particularly its

Site Control Form and its Developer Disclosure Form , fully complied with

Florida Housing's governing statutes, rules, and the RFA 2021 - 202

specifications. Therefore, Florida Housing 's decision to award housing credits

to Beacon did not contravene applicable law.

61 . Ms. Button's explanation detailing why Beacon's application was

eligible for consideration for housing credits under RFA 2021 - 202 is credible

and is credited. Ms. Button persuasively testified that the information

B eacon included with its application legally complied with RFA 2021 - 202

requirements and allowed Florida Housing to effectively evaluate its request

for funding for its housing project . Ms. Button further capably refuted

Madison Trace' s allegation that B eacon's application was deficient in some

manner, or th at Beacon failed to present information required by RFA 2021 -

202 specifications.

62 . Similarly, Mr. Culp's testimony is credible and is credited. Mr. Culp

coge ntly explained how Beacon's application contained all the information

necessary to fulfill the RFA 2021 - 202 requirements. Mr. Culp further

persuasively countered Madison Trace's protest alleging that Beacon's

application was deficient in some manner. Mr. C ulp effectively explained how

Beacon's a pplication, including its Site Control documentation and its

Developer disclosure information , satisfie d all eligibility requirements of

RFA 2021 - 202.

63 . Accordingly, based on the evidence in the record, Madison Tr ace did

not demonstrate, by a preponderance of the evidence, that Florida Housing's

award of housing credits to Beacon was clearly erroneous, contrary to

competition, arbitrary, or capricious. Therefore, Madison Trace did not meet

its burden of proving tha t Florida Housing's intended award of housing credit

funding to Beacon under RFA 2021 - 202 was contrary to its governing

statutes, rules , or policies, or the solicitation specifications.

C ONCLUSIONS OF L AW

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

6 5. Madison Trace challenges Florida Housing's selection of Beacon's

application for an award of hou sing credit funding under RFA 2021 - 202.

Pursuant to section 120.57(3)(f), the burden of proof in this matter rests on

Madison Trace as the party protesting the proposed agency action. See State

Contracting & Eng'g Corp. v. Dep't of Transp. , 709 So. 2d 607, 609 (Fla. 1st

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

[T]he administrative law judge shall conduct a de

novo proceeding to determine whether the agency's

proposed action is contrary to the agency's

governing statutes, the agency's rules or policies, or

the solicitation specifications. The standard of

proof for such proceedings shall be whether the

proposed agency action was clearly erroneous,

contrary to competition, arbitrary, or capricious.

66 . The phrase "de novo proce eding" in section 120.57(3)(f) describes a

form of intra - agency review. The purpose of the ALJ 's review is to "evaluate

the action taken by the agency." J.D. v. Fla. Dep't of Child. & Fams. , 114

So. 3d 1127, 1132 (Fla. 1st DCA 2013); and State Contracting , 709 So. 2d at

609. A de novo proceeding "simply means that there was an evidentiary

hearing ... for administrative review purposes" and does not mean that the

ALJ "sits as a substitute for the [agency] and makes a determination whether

to award the bid de novo ." J.D. , 114 So. 3d at 1133; Intercontinental Props.,

Inc. v. Dep't of Health & Rehab. Servs ., 606 So. 2d 380, 386 (Fla. 3d DCA

1992). "The judge may receive evidence, as with any formal hearing under

section 120.57(1), but the object of the proceedin g is to evaluate the action

taken by the agency." State Contracting , 709 So. 2d at 609.

67 . Accordingly, Madison Trace, as the party protesting the intended

award, must prove, by a preponderance of the evidence, that Florida

Housing's proposed action is e ither: (a) contrary to its governing statutes;

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

RFA 2021 - 202. The standard of proof that Madison Trace must meet to

establish that Florida Housing's intended award violates this statutory

standard of conduct is that Florida Housing's decision was: (a) clearly

erroneous; (b) contrary to competition; or (c) arbitrary or capricious.

§§ 120.57(3)(f) and 120.57(1)(j), Fla. Stat.; and AT&T Corp. v. State, Dep't of

Mgmt. Servs. , 201 So. 3d 852, 854 (Fla. 1st DCA 2016).

68 . The "clearly erroneous" standard has been defined to mean "the

interpretation will be upheld if the agency's construction falls within the

permissible range of interpretations." Colbert v. Dep't of Health , 890 So. 2d

1 165, 1166 (Fla. 1st DCA 2004). A factual determination is "clearly

erroneous" when the reviewer is "left with a definite and firm conviction that

[the fact - finder] has made a mistake." Tropical Jewelers Inc. v. Bank of Am.,

N.A. , 19 So. 3d 424, 426 (Fla. 3 d DCA 2009); see also Holland v. Gross , 89 So.

2d 255, 258 (Fla. 1956)(when a finding of fact by the trial court "is without

support of any substantial evidence, is clearly against the weight of the

evidence or ... the trial court has misapplied the law to the established facts,

then the decision is 'clearly erroneous.'").

6 9 . An agency action is "contrary to competition" if it unreasonably

interferes with the purpose of competitive procurement. As described in

Wester v. Belote , 138 So. 721, 723 - 24 (Fla. 19 31):

[T]he object and purpose [of the bidding process] È

is to protect 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 a t

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

exac t comparison of bids.

In other words, the "contrary to competition" 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

t he procurement process to be genuinely unfair or unreasonably exclusive; or

(d) are abuses, i.e., dishonest, fraudulent, illegal, or unethical. See § 287.001,

Fla. Stat.; and Harry Pepper & Assoc. v. City of Cape Coral , 352 So. 2d 1190,

1192 (Fla. 2d DCA 1 977).

7 0 . Finally, section 120.57(3)(f) requires an agency action be set aside if it

is "arbitrary, or capricious." An "arbitrary" decision is one that is "not

supported by facts or logic, or is despotic." Agrico Chemical Co. v. Dep't of

Envtl. Reg. , 365 So. 2d 759, 763 (Fla. 1st DCA 1978), cert. denied , 376 So. 2d

74 (Fla. 1979). A "capricious" action is one which is "taken without thought or

reason or irrationally." Id. See also Hadi v. Liberty Behav. Health Corp. , 927

So. 2d 34, 40 (Fla. 1st DCA 2006).

71 . To determine whether an agency acted in an "arbitrary" or "capricious"

manner, consideration must be given to "whether the agency: (1) has

considered all relevant factors; (2) given actual, good faith consideration to

the factors; and (3) has used rea son rather than whim to progress from

consideration of these factors to its final decision." Adam Smith Enter. v.

Dep't 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 C o. v.

Department of Transportation , 602 So. 2d 632, 632 n.3 (Fla. 2d DCA 1992), as

follows: "If an administrative decision is justifiable under any analysis that a

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

would seem that th e decision is neither arbitrary nor capricious."

72 . Florida Housing's governing statutes, rules, or policies in this matter

include chapter 67 - 60, which Florida Housing implemented pursuant to its

rulemaking authority under section 420.507(12). Florida Ho using adopted

chapter 67 - 60 to administer the competitive solicitation process. 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 Housing],

the Application shall be considered ineligible.

73 . The pertinent solicitation specifications inclu de the following:

a. RFA 2021 - 202 Section Three F.3 . , which provides that, by applying,

each Applicant certifies that:

Proposed Developments funded under this RFA will

be subject to the requirements of the RFA, inclusive

of all Exhibits, the Application r equirements

outlined in Rule Chapter 67 - 60, F.A.C., the

requirements outlined in Rule Chapter 67 - 48,

F.A.C. and the Compliance requirements of Rule

Chapter 67 - 53, F.A.C.

b. RFA 2021 - 202 Section Four A.3.c(1), which provides, in pertinent part:

To meet el igibility requirements, the Principals

Disclosure Form must identify, pursuant to

subsections 67 - 48.002(94), 67 - 48.0075(8) and 67 -

48.0075(9), F.A.C., the Principals of the Applicant

and Developer(s) as of the Application Deadline.

c. RFA 2021 - 202 Section Five A.1, which provides that:

[O]nly Applications that meet all È Eligibility

Items will be eligible for funding and considered for

funding selection.

The Merits of Madison Trace' s Protest:

74 . Turning to the merits of Madison Trace' s protest, based on the

competent substantial evidence in the record, Florida Housing's decision to

award housing credits under RFA 2021 - 202 to Beacon is not contrary to its

governing statutes, rules , or policies, or the solicitation specifications. The

evidence and testimony presented at the final hearing demonstrates that

Beacon's application complied with the applicable statutes, rules, and criteria

set forth in the RFA and was fully eligible to receive funding under

RFA 2021 - 202. Accordingly, Florida Housing's intended awa rd to Beacon's

housing project was not clearly erroneous, contrary to competition, arbitrary,

or capricious and should not be overturned.

75 . Regarding its specific objections, Madison Trace did not prove that

Beacon's application is ineligible for housing credits based on its submission

of an (allegedly) invalid Site Control Form. Regarding its first challenge,

whether Beacon failed to submit all "relevant" documents, Madison Trace did

not demonstrate that either the POA or the MDA contain "relevant"

infor mation that required their inclusion in BeaconÔs application. Although

the Purchase Agreement references the POA and MDA in several

paragraphs, no terms therein indicate that either document expands or limits

the rights and obligations of the Assignee (Bea con) in the Development

Property. Neither does the Purchase Agreement indicate that either the POA

or the MDA consists of "intermediate contracts, agreements, assignments,

options, conveyances, intermediate leases, [or] subleases" regarding CVD's

assignmen t to Beacon. Accordingly, Madison Trace did not prove, by a

preponderance of the evidence, that Beacon failed to include "relevant"

documentation regarding its Site Control as required by RFA 2012 - 202

Section Four A.7.a.

76 . Similarly, Madison Trace's comp laint regarding the lack of an

established closing date in the Purchase Agreement for the City of Orlando's

sale of the Development Property to CVD also fails. The pertinent provision

of RFA 2021 - 202 directs that no terms of the "eligible contract" (the Pu rchase

Agreement) must expire before February 28, 2022. (RFA 2021 - 202 Section

Four A.7.a(1)) . Ms. Button credibly explained that, although the Assignor

(CVD) had not formally assigned the Development Property to Beacon as of

the application deadline, the P urchase Agreement provided reasonable

assurances that Beacon will timely obtain the rights to the property should it

be awarded housing credits. Mr. Culp further effectively detailed that the

terms of the Purchase Agreement remain enforceable until Decembe r 10,

2022, which should provide the City of Orlando, CVD, and Beacon sufficient

time to formalize the sale and assignment of the Development Property.

77 . Madison Trace also failed to prove that Florida Housing should have

rejected Beacon's Site Control Form because Beacon (allegedly) did not sign

the Purchase Agreement per RFA 2021 - 202 Section Four A.7.a(1)(c). A review

of the Purchase Agreement, with attached exhibits, clearly shows that

Beacon representatives placed their "marks" on the assignment doc uments.

Madison Trace essentially questions whether Beacon is obligated to comply to

the terms of an assignment through the initials/signature on the Purchase

Agreement (Mr. Brock's signature on Exhibit F and Mr. Culp's initials

throughout the Purchase Agr eement and attachments). Mr. Culp credibly

stated that both he and Mr. Brock were authorized to sign on behalf of

Beacon, thereby committing Beacon to the assignment. Mr. Culp's testimony

is bolstered by the fact that Beacon's application specifically iden tifies

Mr. Brock as its "Authorized Principal Representative." Ms. Button also

persuasively articulated that the entirety of the Site Control documentation

contains sufficient evidence that Beacon signed the Purchase Agreement

document as the Assignee, and that CVD and Beacon will be bound by their

agreement to complete the assignment of CVD's rights in the Development

Property to Beacon .

78 . Finally, Madison Trace contends that Beacon failed to disclose a

Developer or co - Developer of its housing project. However, t he preponderance

of the evidence adduced at the final hearing shows that BoA CDC was not a

"Developer" of Beacon "as of the Application Deadline" (August 31, 2021) , as

required by RFA 2021 - 202 Section Four A.3.b(1).

79 . Based on the evidence in the record, the fact that BoA CDC may

"participate" in the Developer Fee, alone, does not prove Madison Trace's

argument. Although the Ownership Agreement between BoA CDC and SAS

Beacon referred to the "Developer Fee," no language in the Ownership

Agreemen t indicates that either party used that expression as the term is

defined in rule 67 - 48.002(28) or (29). Neither do the Ownership Agreement

provisions show that the parties intended to install BoA CDC as a developer

(or Principal or owner) of the Beacon ho using project. No other evidence

establishes that BoA CDC should be considered a Developer of Beacon.

80 . In addition, Mr. Culp convincingly explained that the purpose of SAS

Beacon's agreement to enable BoA CDC to "participate" in the Developer Fee

was to grant BoA CDC a security interest in the "net cash flow" of the

Development Property. However, Madison Trace has identified no provision

of RFA 2021 - 202, or Florida Housing ' s statues, rules, or policies, that

indicates such an arrangement transforms BoA C DC into a "Developer" of

Beacon under rule 67 - 48.002(28). Accordingly, the fact that Beacon did not

include BoA CDC on its Developer Disclosure Form did not render Beacon's

application ineligib le for an award of housing credits under RFA 2012 - 202.

81 . In s um, based on the weight of the competent substantial evidence

introduced at the final hearing, Florida Housing and Beacon present the

more persuasive argument that the documents Beacon submitted with its

application satisfied the Site Control requirements set forth in RFA 2021 - 202

Section Four A.7.a. Further, Florida Housing and Beacon articulated good

faith, factual , persuasive reasons why Beacon was not required to list BoA

CDC as a "Developer" in its application per RFA 2021 - 202 Section Four A.3.c.

82 . Consequently, Madison Trace did not demonstrate that Florida

Housing's award of housing credits under RFA 2021 - 202 was made in a

manner that was clearly erroneous, contrary to competition, arbitrary, or

capricious. Therefore, Madison Trace did not meet its burden of proving that

Florida Housing's decision to award housing credits to Beacon is contrary to

Florida Housing's governing statutes, rules, or policies, or the solicitation

specifications. Accordingly, as a matter of law, Florida Housing is entitled to

proceed with the award of housing credits to Beacon under RFA 2021 - 202 .

R ECOMMENDATION

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

R ECOMMENDED that the Florida Housing Finance Corporation enter a final

order dismissing the pro test of Madison Trace. It is further recommended

that the Florida Housing Finance Corporation select Beacon's application as

the recipient of housing credit funding in Orange County, Florida, under

RFA 2021 - 202.

D ONE A ND E NTERED this 1s t day of April , 202 2 , in Tallahassee, Leon

County, Florida.

S

J. B RUCE C ULPEPPER

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1s t day of April , 2022 .

C OPIES F URNISHED :

Hugh R. Brown, General Counsel M. Christopher Bryant, Esquire

Florida Housing Finance Corporation Oertel, Fe rnandez, Bryant

227 North Bronough Street , Suite 5000 & Atkinson, P.A.

Tallahassee, Florida 32301 - 1329 Post Office Box 1110

Tallahassee, Florida 32302 - 1110

J. Timothy Schulte, Esquire

Zimmerman, Kise r & Sutcliffe, P.A. Christopher Dale McGuire, Esquire

315 East Robinson Street Florida Housing Finance Corporation

Post Office Box 3000 227 North Bronough Street , Suite 5000

Orlando, Florida 32802 Tallahassee, Florida 32301

Betty Zachem, Esquire Corporation Clerk

Florida Housing Finance Corporation Florida Hou sing Finance Corporation

227 North Bronough Street , Suite 5000 227 North Bronough Street , Suite 5000

Tallahassee, Florida 32301 Tallahassee, Florida 32301

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 1 0 days from

the date of this Recommended Order. Any exception s to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.