22-000080BID Ability Vna, Llc vs. Florida Housing Finance Corporation Status: Closed Recommended Order on Thursday, March 31, 2022.

Summary: Florida Housing's determination that Madison Grove was eligible for the 2019 and 2020 Prior Submission Preference was clearly erroneous; Florida Housing's scoring decision as it applies to Ability VNA, LLC's application is not clearly erroneous.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A BILITY V NA , LLC ,

Petitioner ,

vs. Case No. 22 - 0080BID

F LORIDA H OUSING F INANCE

C ORPORATION ,

Respondent,

and

M ADISON G ROVE , LLC; H TG H IDDEN

L AKE , L TD .; A ND T HE V ERANDAS OF

P UNTA G ORDA III, L LLP ,

Interv enors .

/

R ECOMMENDED O RDER

On February 9, 2022, Administrative Law Judge Robert J. Telfer III, of

the Florida Division of Administrative Hearings (DOAH), conducted a final

hearing pursuant to section 120.57(3), Florida Statutes (2021), via the Zoom

platform.

A PPEARANCES

For Petitioner Ability VNA, LLC:

M. Christopher Bryant, Esquire

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

P ost Office Box 1110

Ta llahassee, Florida 32302 - 1110

For Respondent Florida Housing Finance Corporation:

Betty C. Zachem, Esquire

Florida Housing Finance Corporation

227 North Bronough Street, Suite 5000

Tallahassee, Florida 32301

For Intervenor Ma dison Grove, LLC:

J. Timothy Schulte, Esquire

Zimmerman, Kiser & Sutcliffe, P.A.

315 East Robinson Street, Suite 600

Post Office Box 3000

Orlando, Florida 3280 2

For Intervenor Verandas of Punta Gorda III, LLLP:

Michael P. Donaldson, Esquire

Carlton, Fields, Jorden, Burt, P.A.

Post Office Drawer 190

Tallahassee, Florida 32302

For Intervenor HTG Hidden Lake, Ltd.:

J. Stephen Menton, Esquire

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

11 9 South Monroe Street, Suite 202

Tallahassee, Florida 32301

S TATEMENT OF T HE I SSUE

Whether Respondent Florida Housing Finance CorporationÔs (Florida

Housing) intended award of funding under Request for Applications 2021 - 201

(RFA) was contrary to its governing statutes, rules, and policies, or the terms,

conditions, and specifications of the RFA.

P RELIMINARY S TATEMENT

On July 20, 2021, Florida Housing issued the RFA through which it

expected to award up to $14,971,500 of housing credits to proposed

d evelopments in medium - size counties, and up to $1,573,250 of housing

credits to proposed developments in small counties. The RFA established an

August 26, 2021, deadline for applications. On December 10, 2021, Florida

Housing announced its intent to award funding to 12 of the 78 applicants,

including Intervenors Madison Grove, LLC (Madison Grove) ; Verandas of

Punta Gorda III, LLLP (Verandas) ; and HTG Hidden Lake, Ltd. (Hidden

Lake).

On December 15, 2021, Petitioner , Ability VNA, LLC (Ability) , filed a

Noti ce of Intent to Protest, and on December 28, 2021, filed a Formal Written

Protest and Petition for Administrative Proceedings (Petition). Florida

Housing forwarded the Petition to DOAH on January 10, 2022, which was

subsequently assigned to the undersigned and docketed as Case N o. 22 -

0080BID. 1 After conducting a telephonic status conference, the undersigned

noticed this matter for final hearing on February 9, 2022, via the Zoom

platform.

Madison Grove entered a Notice of Appearance as a Specifically Named

Party prior to Florida Housing forwarding the Petition to DOAH. On

January 24, 2022, Hidden Lake filed a Motion to Intervene, which the

undersigned granted that same day. On January 27, 2022, Verandas filed a

Motion to Intervene, which the undersigned gran ted on January 28, 2022.

1 Florida Housing also forwarded to DO AH, on January 10, 2022, the Formal Written Protest

and Petition for Administrative Hearing filed by Autumn Palms Pondella, LLC, filed on

December 28, 2021. This matter was assigned to the undersigned, and docketed as Case No.

22 - 0081BID. On January 12, 20 22, the undersigned entered an Order Granting Unopposed

Motion to Consolidate Cases, consolidating Case N o s . 22 - 0080BID and 22 - 0081BID.

However, on February 3, 2022, Autumn Palms Pondella, LLC , filed a Notice of Voluntary

Dismissal in Case N o . 22 - 0081BID, and on February 4, 2022, the undersigned entered an

Order Closing File and Relinquishing Jurisdiction.

The undersigned conducted the final hearing, as scheduled, on

February 9, 2022. The previous afternoon, on February 8, 2022, Hidden Lake

filed a Motion to Compel, which the undersigned considered and denied at

the conclusion of t he final hearing; the undersigned entered a written Order

Denying Intervenor HTG Hidden Lake, Ltd.Ôs Motion to Compel on

February 11, 2022. Florida Housing presented the testimony of Marissa

Button, its Director of Multifamily Allocations. The undersigned admitted

Joint Exhibits 1 through 3, 5 through 7, 9, 11, and 12 into evidence. Ability

presented the testimony of Shannon Nezworth, President and CEO of Ability

Housing. The undersigned admitted Exhibits VNA - 1 through VNA - 3 into

evidence. Madison Grove pre sented the testimony of Stach Banach, a self -

employed affordable housing developer. The undersigned admitted into

evidence Exhibits MG - 1 through MG - 6 into evidence. Additionally, the

undersigned admitted into evidence Hidden LakesÔs Exhibits HTG - 1 and

HTG - 2.

At the conclusion of the final hearing, in addition to considering Hidden

LakesÔs Motion to Compel, the undersigned considered additional argument

concerning a Joint Pre - hearing Stipulation, Recommended Order, and Final

Order in a previous bid protest concerning a different RFA that included

some of the parties in the instant proceeding in DOAH Case Nos. 21 -

0515BID, 21 - 0516BID, 21 - 0517BID, 21 - 0518BID, and 21 - 0519BID. After

some discussion, the parties agreed to submit a Joint Post Hearing

Stipulation, w hich was filed on February 11, 2022.

The two - volume Transcript was filed with DOAH on March 1, 2022. The

parties timely submitted Proposed Recommended Orders, which the

undersigned has considered in preparing this Recommended Order. 2

All statutory refere nces are to the 2021 codification of the Florida Statutes

unless otherwise indicated.

F INDINGS OF F ACT

1. Florida Housing is a public corporation created pursuant to section

420.504, Florida Statutes. Its purpose is to promote the public welfare by

admini stering the governmental function of financing affordable housing in

Florida. Pursuant to section 420.5099, Florida Housing is designated as the

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

the Internal Revenue Code, and h as the responsibility and authority to

establish procedures for allocating and distributing low - income housing tax

credits.

2. The low - income housing tax credit program (commonly referred to as

tax credits or housing credits) was enacted to incentivize th e private market

to invest in affordable rental housing. These housing credits are awarded

competitively to housing developers in Florida for rental housing projects

which qualify. These credits are then normally sold by developers for cash to

raise capita l for their projects. The effect is that it reduces the amount that

the developer would have to borrow otherwise. Because the total debt is

lower, a housing credit property can (and must) offer lower, more affordable

rents. Developers also covenant to keep rents at affordable levels for periods

of 30 to 50 years as consideration for receipt of the housing credits.

2 Verandas filed a Notice of Joinder in Proposed Recommended Order, stating that it Ñhereby

adopts, joins in and incorporates by reference the Proposed R ecommended Orders submitted

by Florida Housing and Ability.Ò

3. The demand for housing credits provided by the federal government

exceeds the supply.

The Competitive Application Process

4. Section 420.5 07(48) authorizes Florida Housing to allocate housing

credits and other funding through requests for proposals or other competitive

solicitations, and Florida Housing has adopted Florida Administrative Code

Chapter 67 - 60 to prescribe the competitive solici tation process. Chapter 67 - 60

provides that Florida Housing allocate its competitive funding through the

bid protest provisions of section 120.57(3).

5. Applicants for funding request, in their applications, a specific dollar

amount of housing credits to be given to the applicant each year for a period

of ten years. Applicants normally will sell the rights to the future stream of

income housing credits (through the sale of almost all of the ownership

interest in the applicant entity) to an investor to gene rate the amount of

capital needed to build the development. The amount an applicant can

receive depends on several factors, such as a certain percentage of the

projected total development cost; a maximum funding amount per

development based on the county i n which the development will be located;

and whether the development is located within certain designated areas of

some counties. These are just examples of the factors considered, and this is

by no means an exhaustive list.

6. Housing credits are made av ailable through a competitive application

process that starts with the issuance of an RFA. Rule 67 - 60.009(4) provides

that an RFA Ñshall be considered a Órequest for proposal.ÔÒ

7. Florida Housing issued the RFA in this case on July 20, 2021, with

respons es due August 26, 2021.

8. Through the RFA, Florida Housing expects to award up to an estimated

$14,971,500 of housing credits to proposed developments in medium - sized

counties, and up to an estimated $1,573,250 of housing credits to proposed

developments in small counties.

9. Florida Housing received 78 applications in response to RFA 2021 - 201.

10. Florida Housing appointed a Review Committee to review the

applications and make recommendations to Florida HousingÔs Board of

Directors (Board). The Review Committee found 74 applications eligible and

four applications ineligible. Through the ranking and selection process

outlined in the RFA, the Review Committee recommended ten applications

for preliminary funding. The Review Committee developed charts listi ng its

eligibility and funding recommendations to be presented to the Board. After

the Review CommitteeÔs recommendation of preliminary funding of the ten

applications, $567,850 in housing credits remained.

11. Two housing credits from RFAs issued in 2018 in 2019 were returned

to Florida Housing. Ms. Button recommended to the Board to combine this

returned funding Ð which was $3,378, 0 00 Ð with the $567,850 in remaining

credits, for the overall funding amount of RFA 2021 - 201, for a total amount of

$3,954 , 850. W ith that additional funding, Ms. Button recommended that the

Board preliminarily fund two additional applications in the RFA: 2022 - 203C

Hibiscus Apartments Phase 2; and 2022 - 075C Bristol Manor.

12. On December 10, 2021, the Board met and considered the

re commendations of the Review Committee and Ms. Button for RFA 2021 -

201. At approximately 9:51 a.m. that day, all of the applicants in RFA 2021 -

201 received notice that the Board determined whether applications were

eligible or ineligible for consideration f or funding, and that certain eligible

applications were preliminar ily selected for funding, subject to satisfactory

completion of the credit underwriting process. Florida Housing provided

notice through the posting of two spreadsheets, one listing the Boar d -

approved scoring results in RFA 2021 - 201, and one identifying the

applications which Florida Housing proposed to fund, on Florida HousingÔs

website.

13. In the December 10, 2021, posting, Florida Housing announced its

intention to award funding to 12 ap plicants, including Madison Grove,

Hidden Lake, and Verandas.

14. Petitioner timely filed its Petition, and Intervenors timely intervened.

RFA 2021 - 201 Ranking and Selection Process

15. The RFA contemplates a structure in which an applicant is scored on

eligibility items and obtains points for other items. A summary of the

eligibility items is available in Section 5.A.1 of the RFA, beginning at

page 71. Only applications that meet all of the eligibility requirements will be

eligible for funding and consi dered for funding selection.

16. The instant challenge does not raise any issues with respect to the

total points awarded to the applicants.

17. The RFA sets forth the following funding goals:

a. The Corporation has a goal to fund six Medium

County Devel opments that qualify for the Local

Government Areas of Opportunity Funding Goal

outlined in Section Four A.11.a. of the RFA, with

the following preferences:

(1) Two Applications that qualify for the

Developments that were Previously Submitted in

RFA 2019 - 113 and RFA 2020 - 201 but were not

Awarded Preference described in Section Four,

A.11.b.(1) of the RFA; and

(2) Two Applications that qualify for the

Developments that were Previously Submitted in

RFA 2020 - 201 but not Awarded Preference

described in Sectio n Four, A.11.b.(2) of the RFA;

and

(3) Two additional Applications that qualify for the

Local Government Area of Opportunity Goal,

regardless of whether the Applications were

previously submitted, as described in Section Four,

A.11.b.(3) of the RFA.

b. Th e Corporation has a goal to fund one

Development that qualifies for the SunRail Goal

outlined in Section Four, A .5.e.(5) of the RFA.

c. The Corporation has a goal to fund on e

Development that qualifies for the Local

Revitalization Initiative Goal outlined in Section

Four A.5.h. of the RFA.

d. The Corporation has a goal to fund two

Developments with a Demographic commitment of

Family that select and qualify for the Geographic

Areas of Opportunity / SADDA Goal outlined in

Section Four , A.10.a.(1)(d) of the RFA.

*Note: During the Funding Selection Process

outlined below, an Applicant that is selected for

funding may meet more than one goal. For

instance, if an Application that was selected to

meet the Local Government Areas of Opportunity

Goal also qualifies for the Local Revitalization

Initiative Goal, the Local Revitalization Initiative

Goal will also be considered met. If an Application

that was selected to meet the Local Government

Areas of Opportunity Goal and/or SunRail Goal

also qualifies for the Revit alization Goal, the

Revitalization Goal will also be considered met.

There is one exception to this. Applications selected

to meet the Local Government Areas of

Opportunity Goal, SunRail Goal, or Local

Revitalization Initiative Goal will not count

towards meeting the Geographic Areas of

Opportunity / SADDA Goal, eve n if the Application

also qualifies for the Geographic Areas of

Opportunity / SADDA Goal.

18. The RFA sets forth the sorting order to be used when selecting

applications to meet the Local Gov ernment Areas of Opportunity Funding

Goal, as follows:

The highest scoring Applications will be

determined by first sorting together all eligible

Priority I Medium County Applications that qualify

for the Local Government Area of Opportunity Goal

from high est score to lowest score, with any scores

that are tied separated in the following order. This

will then be repeated for Priority II Applications:

(1) First, Applications that submit a Local

Government Verification of Contribution Ï Loan

Form or Local Go vernment Verification of

Contribution Ï Grant Form executed by any of the

following Local Governments will receive lower

preference, as further described in Section Four,

11.c. of the RFA: Bradenton; Cape Coral; Clay

County; Cocoa; Lakeland; Milton; New Sm yrna

Beach; Panama City; City of Sarasota; St. Lucie.

The remaining Local Governments will receive

higher preference.

(2) Next, by the ApplicationÔs eligibility for the Per

Unit Construction Funding Preference which is

outlined in Section Four , A.10.e. of the RFA (with

Applications that qualify for the preference listed

above Applications that do not qualify for the

preference);

(3) Next, by the ApplicationÔs eligibility for the

Development Category Funding Preference which

is outlined in Section Four , A. 4.b.(4) of the RFA

(with Applications that qualify for the preference

listed above Applications that do not qualify for t he

preference);

(4) Next, by the ApplicationÔs Leveraging

Classification, applying the multipliers outlined in

Item 3 of Exhibit C of the RFA (with Applications

having the Classification A listed above

Applications having the Classification B);

(5) Next, by the ApplicationÔs 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);

(6) And finally, by lottery number, resulting in the

lowest lottery number preference.

19. The RFA next sets forth the sorting order to be used when selecting

applications to meet the SunRail Goal:

The highest scoring Priority I Applications will be

determined by first sorting together all eligible

Applications from highest score to lowest score,

with any scores that are tied separated in the

following order. This will then be repeated for

Priority II Applications.

(1) First, by the ApplicationÔs eligibility for the Per

Unit Construction Funding Preference which is

outlined in Section Four , A.10.e. of the RFA (with

Applications that qualif y for the preference listed

above Applications that do no qualify for the

preference);

(2) Next, by the ApplicationÔs eligibility for the

Development Category Funding Preference which

is outlined in Section Four , A.4.b.(4) of the RFA

(with Applications th at qualify for the preference

listed above Applications that do not qualify for the

preference);

(3) Next, by the ApplicationÔs Leveraging

Classification, applying the multipliers outlined in

Item 3 of Exhibit C of the RFA (with Applications

having the Cl assification of A listed above

Applications having the Classification of B);

(4) Next, by the ApplicationÔs 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);

(5) And finally, by lottery number, resulting in the

lowest lottery number receiving preference.

20. The RFA then sets forth the sorting order to be used when selecting

a pplications to meet the Local Revitalization Initiative Goal:

The highest scoring Priority I Applications will be

determined by first sorting together all eligible

Applications from highest score to lowest score,

with any scores that are tied separated in the

following order. This will then be repeated for

Priority II Applications.

(1) First, Applications that submit a Local

Government Verification That Development Is Part

Of A Local Revitalization Plan form executed by

any of the following Local Governmen ts will receive

lower preference, as further described in Section

Four, 5.h. of the RFA: Bradenton; Cape Coral; New

Smyrna Beach; City of Sarasota; Newtown; City of

Tallahassee; Escambia County; Pasco County; and

Sanford. The remaining counties will receiv e higher

preference;

(2) Next, by the ApplicationÔs eligibility for the Per

Unit Construction Funding Preference which is

outlined in Section Four A.10.e. of the RFA (with

Applications that qualify for the preference listed

above Applications that do not qualify for the

preference);

(3) Next, by the Application Ô s eligibility for the

Development Category Funding Preference which

is outlined in Section Four , A.4.b.(4) of the RFA

(with Applications that qualify for the preference

listed above Applications th at do not qualify for the

preference);

(4) Next, by the ApplicationÔs 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 Cla ssification of B);

(5) Next, by the ApplicationÔs 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 qual ify for the

preference);

(6) And finally, by lottery number, resulting in the

lowest lottery number receiving preference.

21. Next, the RFA sets forth the sorting order to be used after selecting

Applications to meet the Local Government Areas of Opport unity Funding

Goal, SunRail Goal, and Local Revitalization Initiative Goal as follows:

The highest scoring Priority I Applications will be

determined by first sorting together all eligible

Applications from highest score to lowest score,

with any scores th at are tied separated in the

following order. This will then be repeated for

Priority II Applications:

(1) First, by the ApplicationÔs eligibility for the Per

Unit Construction Funding Preference which is

outlined in Section Four , A.10.e. of the RFA (with

Applications that qualify for the preference listed

above Applications that do not qualify for the

preference);

(2) Next, by the ApplicationÔs eligibility for the

Development Category Funding Preference which

is outlined in Section Four , A.4.b.(4) of the RFA

(with Applications that qualify for the preference

listed above Applications that do not qualify for the

preference);

(3) Next, by the ApplicationÔs 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 Classification of B);

(4) Next, by the ApplicationÔs eligibility for the

Proximity Funding Preference (which is outlined in

Section Four , A.5.e. of the RFA) with Application s

that qualify for the preference listed above

Applications that do not qualify for the preference;

(5) Next, by the ApplicationÔs eligibility for the

Florida Job Creation Funding Preference which is

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

Applic ations that qualify for the preference listed

above Applications that do not qualify for the

preference);

(6) And, finally, by lottery number, resulting in the

lowest lottery number having preference.

22. The RFA includes a Funding Test where (a) Small County

Applications will be selected for funding only if there is enough Small County

funding ($1,573,250) available to fully fund the Eligible Housing Credit

Request Amount, and (b) Medium County Applications will be selected for

funding only if there is enough Medium County funding ($14,971,500)

available to fully fund the Eligible Housing Credit Request Amount.

23. The RFA outlines a specific County Award Tally as follows:

As each application is selected for tentative

funding, the county where the propo sed

Development is located will have on Application

credited towards the County Award Tally.

Throughout the selection process, the Corporation

will prioritize eligible unfunded Priority I

Applications that meet the Funding Test and are

located within coun ties that have the lowest

County Award Tally above other eligible unfunded

Priority I Applications with a higher County Award

Tally that also meet the Funding Test, even if the

Priority I Applications with a higher County Award

Tally are higher ranked, and above all Priority II

Applications.

The Corporation will prioritize eligible unfunded

Priority II Applications that meet the Funding Test

and are located within counties that have the

lowest County Award Tally above other eligible

unfunded Priority II Ap plications with a higher

County Award Tally that also meet the Funding

Test, even if the Priority I Applications with a

higher County Award Tally are higher ranked.

24. The RFA outlines the selection process as follows:

a. Six Applications that qualify fo r the Local

Government Areas of Opportunity Funding Goal

(1) Preference for Two Developments that were

Previously Submitted in RFA 2019 - 113 and RFA

2020 - 201 but not Awarded .

The first two Applications that will be selected for

funding will be the highest ranking eligible

Medium County Priority I Applications that qualify

for the Preference for Developments that were

Previously Submitted in RFA 2019 - 113 and RFA

2020 - 201 but not Awarded as described in Section

Four, A.11.b.(1) of the RFA, subject to the Fund ing

Test and the County Award Tally.

Priority I Applications will continue to be selected

until this preference is met. If there are no

remaining eligible unfunded Priority I Applications

that qualify for this preference, then the process

will continue us ing Priority II Applications until

this preference is met.

(2) Preference for Two Developments that were

Previously Submitted in RFA 2020 - 201 but not

Awarded .

The first two Applications that will be selected for

funding will be the highest ranking eligib le

Medium County Priority I Applications that qualify

for the Preference for Developments that were

Previously Submitted in RFA 2020 - 201 but not

Awarded as described in Section Four, A.11.b.(2) of

the RFA, subject to the Funding Test and the

County Award T ally.

Priority I Applications will continue to be selected

until this preference is met. If there are no

remaining eligible unfunded Priority I Applications

that qualify for this preference, then the process

will continue using Priority II Applications un til

this preference is met.

(3) Preference for additional Applications that

qualify for the Local Government Area of

Opportunity Goal, regardless of whether the

Applications were previously submitted

The next Applications that will be considered for

fund ing will be the highest ranking eligible

Medium County Priority I Applications that qualify

for the Local Government Areas of Opportunity

Funding Goal, regardless of whether the

Applications were previously submitted, subject to

the Funding Test and the Co unty Award Tally.

Priority I Applications will continue to be selected

until this Goal is met. If there are no remaining

eligible unfunded Priority I Applications that

qualify for this Goal, then the process will continue

using Priority II Applications un til this Goal is met

or until it is determined that there are no eligible

unfunded Applications that can meet this Goal.

b. One Application that qualifies for the SunRail

Goal .

If an Application that was selected to meet the

Local Government Areas of Opp ortunity Goal

described in a. above also qualifies for the SunRail

Goal, this Goal will be considered met without

selecting an additional Application.

If none of the Applications selected to meet the

Local Government Areas of Opportunity Goal also

qualify for the SunRail Goal, the next Application

selected for funding will be the highest ranking

eligible unfunded Priority I Application that

qualifies for the SunRail Goad, subject to the

Funding Test and the County Award Tally.

If there are no eligible unf unded Priority I

Applications that qualify for this Goal, then the

highest ranking eligible unfunded Priority II

Application that qualifies for the SunRail Goal will

be selected, subject to the Funding Test and the

County Award Tally.

c. One Application th at qualifies for the Local

Revitalization Initiative Goal .

If an Application that was selected to meet the

Local Government Areas of Opportunity Goal

described in a. above or SunRail Goal described in

b. above also qualifies for the Local Revitalization

I nitiative Goal, this Goal will be considered met

without selecting an additional Application.

If none of the Applications selected to meet the

Local Government Areas of Opportunity Goal or

SunRail Goal, also qualify for the Local

Revitalization Initiative Goal, the next Application

selected for funding will be the highest ranking

eligible unfunded Priority I Application that

qualifies for the Local Revitalization Initiative

Goal, subject to the Funding Test and the County

Award Tally.

If there are no elig ible unfunded Priority I

Applications that qualify for this Goal, then the

highest ranking eligible unfunded Priority II

Application that qualifies for the Local

Revitalization Initiative Goal will be selected,

subject to the Funding Test and the County Aw ard

Tally.

d. Two Family Applications that qualify for the

Geographic Areas of Opportunity/HUD - designated

SADDA Goal .

The next two Applications selected for funding will

be the highest ranking eligible unfunded Priority I

Family Applications that qualify for the Geographic

Areas of Opportunity/HUD - designated SADDA

Goal, subject to the Funding Test and the County

Award Tally.

Priority I Applications will continue to be selected

until this Goal is met. If there are no remaining

eligible unfunded Priority I Applications that

qualify for this Goal, then the process will continue

using Priority II Applications until this Goal is met

or until it is determined that there are no eligible

unfunded Applications that can meet this Goal.

e. The next Applications sel ected for funding will be

the highest ranking eligible unfunded Priority I

Small County Applications that (i) can meet the

Small County Funding Test and (ii) have a County

Award Tally that is less than or equal to any other

eligible unfunded Small County P riority I

Applications. If Small County funding remains and

no unfunded eligible Small County Priority I

Application can meet the Small County Funding

Test, then the process will continue using Priority

II Applications until this Goal is met or until no

un funded eligible Small County Priority II

Application can meet the Small County Funding

Test.

If Small County funding remains and no unfunded

eligible Small County Application can meet the

Small County Funding Test, no further Small

County Applications wil l be selected, and the

remaining Small County funding will be added to

the Medium County funding amount.

f. The next Applications selected for funding will be

the highest ranking eligible unfunded Priority I

Medium County Applications that (i) can meet th e

Medium County Funding Test and (ii) have a

County Award Tally that is less than or equal to

any other eligible unfunded Medium County

Priority I Applications. If Medium County funding

remains and no unfunded eligible Medium County

Priority I Application can meet the Medium County

Funding Test, then the process will continue using

Priority II Applications until this Goal is met or

until no unfunded eligible Medium County

Priority II Application can meet the Small County

Funding Test.

If Medium County fund ing remains and no

unfunded eligible Medium County Application can

meet the Medium County Funding Test, no further

Applications will be selected and the remaining

funding will be distributed as approved by the

Board.

25. After the description of the sort ing process, the RFA specifies:

Funding that becomes available after the Board

takes action on the CommitteeÔs

recommendation(s), due to an Applicant

withdrawing, an Applicant declining its invitation

to enter credit underwriting or the ApplicantÔs

inabili ty to satisfy a requirement outlined in this

RFA, and/or provisions outlined in Rule Chapter

67 - 48, F.A.C., will be distributed as approved by

the Board.

26. All 78 applications for RFA 2021 - 201 were received, processed, deemed

eligible or ineligible, sc ored, and ranked, pursuant to the terms of the RFA,

Florida Administrative Code C hapters 67 - 48 and 67 - 60, and applicable

federal regulations.

Madison Grove Application

27. During the scoring process, Florida Housing determined that the

Madison Grove appl ication was eligible for funding and preliminarily selected

Madison Grove for funding under the goal to fund two applications that

qualify for the Local Government Areas of Opportunity (LGAO) funding for

developments that were previously submitted in RFA 2 019 - 113 and RFA

2020 - 201, but not awarded (2019 and 2020 Prior Submission Preference). As

will be discussed below, Ability challenges this determination, and Florida

Housing has, during the course of this proceeding, changed its position on

Madison GroveÔs eligibility under this particular funding goal. Madison Grove

and Hidden Lake, on the other hand, both contend that Madison Grove

satisfied this funding goal. Hidden Lake offers additional challenges to the

Madison Grove application.

28. An applicant mus t meet the following criteria to qualify for the 2019

and 2020 Prior Submission Preference:

• The question at 11.b.(1) of Exhibit A must

reflect confirmation that the development was

previously submitted in RFA 2019 - 113 and RFA

2020 - 201, but not awarded;

• Th e application in RFA 2019 - 113 and RFA

2020 - 201 must have provided a Local

Government Verification of Contribution Ï Loan

or Grant form demonstrating the minimum

LGAO funding amount outlined in that RFA;

• The application in RFA 2020 - 201 was submitted

as a P riority I application;

• The application number in RFA 2019 - 113 and

RFA 2020 - 201 must be provided;

• The Demographic Commitment of the propose d

development must be identical to the

Demographic Commitment as the application

submitted in RFA 2019 - 113 and RFA 2 020 - 201;

• The number of units of the proposed

development must be equal to at least

90 percent of the number of units a s the

application previously submitted in RFA 2019 -

113 and RFA 2020 - 201. Note: if an application

was submitted in both RFAs 2019 - 113 and

2020 - 201 but consisted of a different number of

units in each submission, the proposed

development must be equal to at least 90

percent of the number of units of the previously

submitted application with the lesser number of

units;

• The Development Locatio n Point and latitude

and longitude coordinates for all Scattered Sites

of the application submitted in RFA 2019 - 113

and RFA 2020 - 201 must be located on the same

site(s) as the proposed development. These

coordinates do not need to be identical.

Additionall y, the size of the site(s) of the

proposed development does not need to be

identical to the application previously submitted

in RFA 2019 - 113 or RFA 2020 - 201. The

proposed development site may be larger o r

smaller than the previously submitted

application i f other requirements are also met

(Location Criteria);

• At least one of the entities that is a principal for

the applicant disclosed on the Principal

Disclosure Form submitted for the proposed

development must also have been a principal for

the applicant d isclosed on the Principal

Disclosure Form in RFA 2019 - 113 and RFA

2020 - 201; and

• The application submitted in RFA 2019 - 113 and

RFA 2020 - 201 was not invited to enter credit

underwriting.

29. Ability challenges Madison GroveÔs entitlement to the 2019 and 20 20

Prior Submission Preference, alleging that Madison Grove failed to meet the

seventh bullet point criteria Ï the Location Criteria.

30. Neither the RFA, the Florida Statutes, nor any rule promulgated by

Florida Housing defines the terms Ñdevelopment site Ò or Ñsite.Ò

31. Rule 67 - 48.002(34) defines Development Location Point (DLP) as:

a single point selected by the Applicant on the

proposed Development site that is located within

100 feet of a residential building existing or to be

constructed as part of t he proposed Development.

For a Development which consists of Scattered

Sites, this means a single point on the site with the

most units that is located within 100 feet of a

residential building existing or to be constructed as

part of the proposed Developm ent.

32. Rule 67 - 48.002(106) defines Scattered Sites as:

unless otherwise stated in a competitive

solicitation, as applied to a single Development,

means a Development site that, when taken as a

whole, is comprised of real property that is not

contiguous (each such non - contiguous site within a

Scattered Site Development, is considered to be a

ÑScattered SiteÒ). For purposes of this definition

ÑcontiguousÒ means touching at a point or along a

boundary. Real property is contiguous if the only

intervening re al property interest is an easement,

provided the easement is not a roadway or a street.

All of the Scattered Sites must be located in the

same county.

33. Madison Grove did not propose a Scattered Sites Development in its

Application.

34. For RFA 2019 - 113, the development site in Madison GroveÔs

application was located on tracts five and six of a parcel of land known as the

Stevens Plantation Corporate Campus Replat (Stevens Plantation). Madison

Grove placed the DLP on tract six.

35. For RFA 2020 - 201, the development site in Madison GroveÔs

application was located on tracts four and five. Madison Grove placed the

DLP on tract five.

36. And, for RFA 2021 - 201, the development site in Madison GroveÔs

application was located on tracts four and five, and di d not include tract six.

Madison Grove placed the DLP on tract five.

37. The DLP in Madison GroveÔs application for RFA 2019 - 113 is not

located on the same development site as it proposed in its application for

RFA 2021 - 201. According to Ability (and Flor ida Housing during the course

of this proceeding), because the DLP in RFA 2019 - 113 is not the same as the

DLP in RFA 2021 - 201, Madison grove is ineligible for the 2019 and 2020

Prior Submission Preference because it does not meet the requirements of the

Lo cation Criteria.

38. Madison Grove and Hidden Lakes contend that the Location Criteria

for the 2019 and 2020 Prior Submission Preference (a) by its plain language,

only applies to Ñall Scattered SitesÒ and, because Madison Grove did not

propose a Scattere d Sites development, the Location CriteriaÔs requirement

that a DLP be located on the same site as the development site is

inapplicable, or (b) is ambiguous, and should be resolved in Madison GroveÔs

favor under controlling precedent. Alternatively, Madiso n Grove and Hidden

Lakes contend that any non - conformance to this requirement in the RFA

should be waived as a minor irregularity.

39. The Location Criteria states, in part:

The Development Location Point and latitude and

longitude coordinates for all Sca ttered Sites of the

application submitted in RFA 2019 - 113 and

RFA 2020 - 201 must be located on the same site(s)

as the proposed development.

Madison GroveÔs contentions that the Location Criteria only applies to

Scattered Sites, or that the Location Criter ia language is ambiguous, are not

reasonable. The phrase Ñfor all Scattered SitesÒ applies to the immediately

preceding phrase of Ñlatitude and longitude coordinates[,]Ò not to the DLP.

Additionally, as Ms. Button testified, the parenthesis around the ÑsÒ in the

next sentence Ð Ñmust be located on the same site(s)Ò Ð provides clear,

unambiguous intent that Florida Housing intended for the Location Criteria

to apply to single and Scattered Sites developments.

40. Ms. ButtonÔs testimony provided additional clari ty on this issue. She

testified that a policy objective in including the 2019 and 2020 Prior

Submission Preference in the RFA was Ñto make sure that the submissions

for the prior submission preference were substantially similar to the proposed

developments that were presented in this RFA.Ò

41. Madison Grove and Hidden LakeÔs contention that the Location

Criteria language is either inapplicable or unambiguous is unreasonable for

an additional reason: such a reading of this RFA provision Ð where the

Location C riteria only applies to Scattered Sites Ð would mean that Florida

Housing could not consider location criteria of non - Scattered Sites

developments in determining whether an applicant would qualify for the

2019 and 2020 Prior Submission Preference. Such an in terpretation is

contrary to the plain language of the RFA, and the policy objective of Florida

Housing.

42. Madison Grove presented evidence that Mr. Banach sent an email to

Ms. Button on August 19, 2020, which inquired about the criteria in RFA

2020 - 201:

We submitted a LGAO application last year in RFA

2019 - 113 and are anticipating submitting it again

this year for RFA 2020 - 201. We would like to get

clarification from FHFC as to whether the

application would be considered a Ñpreviously

submittedÒ applicat ion or a ÑnewÒ application.

We know the application will meet all the (5)

criteria items in the RFA for a Ñpreviously

submittedÒ application except for the 3rd bullet

point. The city has asked us to switch lots, which

are all adjacent. This changes the le gal description

and the DLP lat/longÈ. We are swapping Tracts

5&6 for Tracts 4&5.

The 3rd bullet point on page 68 of the RFA reads:

ÑThe Development Location Point and latitude and

longitude for all Scattered Sites stated at question

5 È of Exhibit A of t he proposed Development and

the Application submitted in RFA 2019 - 113 must

be identical.Ò

If we donÔt have a scattered site, does this 3rd

bullet item still apply?

43. Ms. Button responded to Mr. BanachÔs email the next day, stating,

Ñ[w]e have an updat ed draft coming out today that should answer your

question.Ò The next draft of RFA 2020 - 201 contained the same language in

the above - quoted Ñthird bullet point.Ò

44. Madison Grove contends that this email exchange was evidence of

Florida HousingÔs agreeme nt with its position that the DLP is required only

for Scattered Sites, and that it relied on this email exchange, at least in part,

in submitting its application under RFA 2020 - 201. Putting aside the fact that

that exchange was related to a previous RFA t hat is not the subject of this

proceeding, with substantively different language than the Location Criteria

in RFA 2021 - 201, both RFAs explicitly provided for a question - and - answer

time period where any interested party could submit written inquiries

regar ding the respective RFAs and Florida Housing would provide a written

response. Both RFAs also state that Ñ[n]o other means of communication,

whether oral or written, shall be construed as an official response or

statement from the Corporation.Ò Madison Gro ve did not submit a question

through this prescribed question - and - answer process for this RFA, and the

undersigned finds that the email communication between Mr. Banach and

Ms. Button from a previous RFA was not an official response from Florida

Housing in RFA 2021 - 201 that would evidence Florida HousingÔs agreement

with Madison GroveÔs position in the instant matter.

45. Madison Grove and Hidden Lake also argue that because Madison

Grove met the preference for a prior submission from RFA 2019 - 113 in

RFA 2 020 - 201 (the 2019 - 113 Preference), the undersigned should find that

Madison Grove qualifies for the 2019 and 2020 Prior Submission Preference

in RFA 2021 - 201. 3

46. With respect to RFA 2020 - 201, Florida Housing initially determined

that Madison Grove did n ot qualify for the prior submission preference

because it failed to meet certain criteria regarding the identity of its

principals. In Fletcher Black II, LLC v. Fl orida Housing Fin ance Cor poration ,

DOAH Case No. 21 - 0515BID ( Fla. DOAH Apr. 14, 2021; Fla. FH FC Apr. 30,

2021), which contested Florida HousingÔs determination in RFA 2020 - 201, all

3 Among the requirements to qualify for the 2019 - 113 Preference, RFA 2020 - 201 required the

following:

The Development Location Point and latitude and longitude

coordinates for all Scattered Site s stated at question 5. of

Exhibit A for the proposed Development must be located on

the same site(s) as the Application submitted in RFA 2019 -

113. These coordinates do not need to be identical to the

Application submitted in RFA 2019 - 113[.]

of the parties entered into a Joint Pre - hearing Stipulation that, inter alia,

agreed that Madison Grove met the requirements for the 2019 - 113

Preference. The Recommende d Order, following the Joint Pre - hearing

Stipulation, found that, under the plain language of RFA 2021 - 201, Madison

Grove (and other applicants) met the requirements regarding the identity of

its principals and, thus was eligible for the 2019 - 113 Preferenc e. The

Recommended Order made no findings concerning the location criteria for the

2019 - 113 Preference because that was not an issue in that litigation. 4

47. The undersigned notes that Madison Grove appears to meet the 2020 -

201 Preference in RFA 202 1 - 201. Its DLP for its proposed development in

2020 was located on tract five, which was the same site as the application it

submitted in RFA 20 21 - 201 .

48. However, the location criteria in RFA 20 19 - 113 differs from the

Location Criteria in RFA 2021 - 201. RFA 20 20 - 201 required the DLP listed in

the application to be located on the same development Ñsite(s)Ò submitted in

RFA 2019 - 113. RFA 2021 - 201 required the DLPs listed in RFAs 2019 - 113

and 2020 - 201 to be located on the same development Ñsite(s)Ò proposed in

RFA 2021 - 201. As Madison GroveÔs DLP for RFA 20 19 - 113 was located on

tract six , it did not meet the requirements for the Location Criteria.

49. Madison Grove and Hidden Lake also contend that the undersigned

should find that any failure by Madison Grove to c omply with the Location

Criteria for the 2019 and 2020 Prior Submission Preference is a minor

irregularity and, thus, should be waived.

50. The undersigned has considered the locations of tracts four, five, and

six. The undersigned has also considered the testimony of Mr. Banach, who

testified that the City of St. Cloud requested that Madison Grove move

development sites from tracts five and six to tracts four and five so that the

City could sell a portion of the Stevens Plantation to a prospective buyer.

Mr. Banach testified that in moving the location of development sites, the

4 Hidden Lake was not a party to the bid protest in DOAH Case No. 21 - 0515BID.

DLP moved by approximately 180 feet from the application submitted in

RFA 2019 - 113 to the application submitted in RFA 2020 - 201.

51. Mr. Banach also testified that, for RFA 2019 - 11 3, Madison Grove

could have located the DLP on tract five, but did not do so.

52. Ms. Button testified why Florida Housing did not consider Madison

GroveÔs failure to comply with the Location Criteria for the 2019 and 2020

Prior Submission Preference a wa ivable minor irregularity:

So the material Ï there is that they did not meet

the criteria for the preference because the 2019

DLP was not on the 2021 development site. And

when we look at the rule for what we define as

minor irregularities and what can be considered a

waivable minor irregularity, we look at deviations

in the RFA requirements, but they canÔt Ï there is a

number of things of criteria within that minor

irregularity analysis we look at to determine

whether or not we could consider it a minor

ir regularity.

And the one that sticks out to me regarding this

particular error is that È the error canÔt provide a

competitive advantage that the beneficiary would

receive that other similarly situated applicants

wouldnÔt be able to receive. And the irregu larity

canÔt be contrary to the interest of Florida Housing

or the public.

And so when È Florida Housing looks at an error Ï

and particularly when youÔve asked me about the

error here on the application for Madison Grove Ï I

donÔt think it meets the thres hold to be a minor

irregularity because, for us to agree to that, it

would provide a competitive advantage to Madison

Grove because they would be receiving a funding

preference that any other similarly situated

applicant would not receive.

And so if there were other applicants within this

RFA that had a similar circumstance where they

had a DLP È from the 2019 or 2020 applications

that were not on the 2020 site È Madison Grove []

would be getting an advantage in waiving this that

potentially another applic ant didnÔt receive.

And also there is an impact because other

applicants that may not have Ï decided not to apply

because of that reason, as they will compete for

that preference, are also not able to receive that

preference.

The undersigned finds Ms. Bu ttonÔs testimony credible and agrees that

Madison GroveÔs failure to comply with the Location Criteria for the 2019 and

2020 Prior Submission Preference is not a waivable minor irregularity. 5

53. Hidden Lake also contends that if the undersigned were to f ind that

Madison Grove is ineligible for the 2019 and 2020 Prior Submission

Preference, and if the undersigned were to find that the corresponding

documents provided in its application in RFA 2021 - 201 to support Madison

GroveÔs eligibility for the 2019 and 2020 Prior Submission were not accurate,

then Madison Grove would not meet the requirements for its Applicant

Certification and Acknowledgment Form, and its application in RFA 2021 -

201 would thus be ineligible.

54. As an eligibility item, the RFA require s applicants to include an

Applicant Certification and Acknowledgment Form that is specific to the RFA

and which is executed by the Authorized Principal Representative of the

Applicant.

55. As Attachment 1 to its application to the RFA, Madison Grove

subm itted an Applicant Certification and Acknowledgment Form, executed

by its Authorized Principal Representative, Patrick E. Law.

56. The Applicant Certification and Acknowledgment Form, in relevant

part, includes the following provisions:

5 The parties at hearing stated, and Florida Housing in its P roposed R ecommended O rder

states, that the RFA also contains a separate preference for developments that were

previously submitted in RFA 2020 - 201 but not awarded (2020 Prior Submission Preference),

which Madison Grove also selected in its application for the RFA. Florida Housing admits

that Madison Grove meets the 2020 Prior Submission Preference because its DLPs for the

development site in RFA s 2020 - 201 and 2021 - 201 are the same.

15. In eliciting i nformation from third parties

required by and/or included in this Application, the

Applicant has provided such parties information

that accurately describes the Development as

proposed in this Application. The Applicant has

reviewed the third - party informa tion included in

this Application and/or provided during the credit

underwriting process and the information provided

by any such party is based upon, and accurate with

respect to, the Development as proposed in this

Application.

* * *

21. The undersigne d is authorized to bind the

Applicant entity to this certification and warranty

of truthfulness and completeness of the

Application.

Under the penalties of perjury, I declare and certify

that I have read the foregoing and that the

information is true, cor rect and complete.

57. Mr. Banach testified that Madison Grove did not elicit information

from third parties to determine whether it met the Location Criteria. The

undersigned finds that there was no competent, substantial evidence in the

record to demon strate that Madison Grove violated a provision of the

Applicant Certification and Acknowledgment Form when it selected, in its

application, that it qualified for the 2019 and 2020 Prior Submission

Preference.

58. The undersigned finds that Madison Grove d oes not qualify for the

2019 and 2020 Prior Submission Preference. 6

6 Florida Housing notes in its P roposed R ecommended O rder that if Madison Grove is not

entitled to the 2019 and 2020 Prior Submission Preference, Ability would then be selected for

funding under the 2019 and 2020 Prior Submission Preference. Florida Housing also notes in

its P roposed R ecommended O rder that under this scenario, Madison Grove will be selected

for funding under the 2020 Prior Submission Preference, and Ability will be selected for

funding, but H idden Lake will then not be selected for funding.

Ability Application

59. Florida Housing deemed AbilityÔs application eligible pursuant to the

terms of the RFA, but did not select Ability for preliminary funding.

60. As an eligibilit y item, the RFA requires that applicants upload a

Principals of the Applicant and Developer(s) Disclosure Form (Principals

Disclosure Form). The RFA states that Ñthe Principals Disclosure Form must

identify, pursuant to subsections 67 - 48.002(94), 67 - 48.007 5(8) and 67 -

48.0075(9), F.A.C., the Principals of the Applicant and Developer(s) as of the

Application deadline.Ò

61. The application deadline for the RFA was August 26, 2021.

62. Rule 67 - 48.002(94) defines ÑPrincipalÒ as follows:

(94) ÑPrincipalÒ has th e meanings set forth below

and any Principal other than a natural person

must be a legally formed entity as of the

Application deadline:

(a) For a corporation, each officer, director,

executive director, and shareholder of the

corporation.

(b) For a limi ted partnership, each general partner

and each limited partner of the limited

partnership.

(c) For a limited liability company, each manager

and each member of the limited liability company.

(d) For a trust, each trustee of the trust and all

beneficiarie s of majority age (i.e.; 18 years of age)

as of the Application deadline.

(e) For a Public Housing Authority, each officer,

director, commissioner, and executive director of

the Authority.

63. Rule 67 - 48.0075(8) and (9) provide additional requirements r egarding

the disclosure of the principals of each applicant.

64. Although Madison Grove and Hidden Lake argued at the final hearing

that Ability failed to disclose all of its principals on its Principals Disclosure

Form, neither raised this issue in their P roposed R ecommended O rders.

65. In its application for the RFA, Ability listed its Manager and Non -

Investor Member as Ability VNA NM, LLC. The sole Member and Manager of

Ability VNA NM, LLC, is Ability Housing, Inc. AbilityÔs application for the

RFA lis ts the executive director and the officers/directors of Ability Housing,

Inc. Ability also disclosed Ability Housing, Inc., as the sole developer of the

development Ð Villages of New Augustine.

66. Ability Housing, Inc., is a Florida nonprofit corporation. It is a

nonprofit affordable housing developer that started in Jacksonville, and has

expanded to Orlando. The undersigned finds competent, substantial evidence

supports that the Board of Directors of Ability Housing, Inc., as of the

August 26, 2021, applic ation deadline for the RFA, was accurately reflected

in the Principals Disclosure Form.

C ONCLUSIONS OF L AW

67. DOAH has jurisdiction over the subject matter and the parties to this

proceeding in accordance with sections 120.569 and 120.57(3 ) .

68. Section 420.507 authorizes Florida Housing to allocate low - income

housing tax credits by competitive solicitation, stating:

The corporation shall have all the powers necessary

or convenient to carry out and effectuate the

purposes and provisions of this part, incl uding the

following powers which are in addition to all other

powers granted by other provisions of this part:

* * *

(49) To award its annual allocation of low - income

housing tax credits, nontaxable revenue bonds, and

State Apartment Incentive Loan Progr ams

appropriated by the Legislature and available to

allocate by request for proposals or other

competitive solicitation.

69. Protests to competitive contract solicitations or awards are governed

by section 120.57(3)(f), which provides in part:

(f) In a protest to an invitation to bid or request for

proposals procurement, no submissions made after

the bid or proposal opening which amend or

supplement the bid or proposal shall be considered.

In a protest to an invitation to negotiate

procurement, no submis sions made after the

agency announces its intent to award a contract,

reject all replies, or withdraw the solicitation which

amend or supplement the reply shall be considered.

Unless otherwise provided by statute, the burden of

proof shall rest with the pa rty protesting the

proposed agency action. In a competitive -

procurement protest, other than a rejection of all

bids, proposals, or replies, the administrative law

judge shall conduct a de novo proceeding to

determine whether the agencyÔs proposed action is

contrary to the agencyÔs governing statutes, the

agencyÔs 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, arbitra ry, or capricious.

70. As the party challenging Florida HousingÔs proposed award, Ability

bears the burden of proof with respect to its challenge.

71. Petitioner and Intervenors have standing. All have established that

the agency action affects their su bstantial interests.

72. Although chapter 120 uses the term Ñde novoÒ to describe competitive

solicitation proceedings, courts have recognized that a different kind of Ñde

novoÒ is contemplated for this particular type of agency action. Unlike truly

de no vo proceedings, bid disputes are a form of intra - agency review in which

the purpose of the proceeding is to evaluate the action taken by the agency.

State Contracting & EngÔg Corp. v. DepÔt of Transp. , 709 So. 2d 607, 609 (Fla.

1st DCA 1998).

73. However, proceedings to challenge a competitive award are not simply

a record review of the information that was before the agency. The

proceedings remain Ñde novoÒ in that the evidence presented at hearing is not

restricted to what was before the agency when it m ade its preliminary

decision. A new evidentiary record based upon the historical, objective facts is

developed. Asphalt Pavers, Inc. v. DepÔt of Transp. , 602 So. 2d 55 8 , 560 - 61

(Fla. 1st DCA 1992). The new findings of fact must support the final order to

b e issued by the agency. Gtech Corp. v. DepÔt of Lottery , 737 So. 2d 615, 619

(Fla. 1st DCA 1999).

74. Facts are determined based upon the evidence presented at hearing.

However, applicants are not permitted to submit information that should

have been, but was not, included in the application submitted in response to

the RFA. Section 120.57(3) expressly prohibits this type of evidence, stating,

Ñno submissions made after the bid or proposal opening which amend or

supplement the bid or proposal shall be cons idered.Ò The application must

stand on its own, as originally submitted, in light of determined facts.

§ 120.57(3), Fla. Stat.

75. After the administrative law judge determines the relevant facts based

upon the evidence presented at hearing, the agencyÔs intended action must be

considered in light of those facts, and the agencyÔs determinations must

remain undisturbed unless they are clearly erroneous, contrary to

competition, arbitrary, or capricious. A proposed award will be upheld unless

it is contrary to governing statutes, the agencyÔs rules, or the terms of the

RFA.

76. A decision is considered to be clearly erroneous when, although there

is evidence to support it, after review of the entire record, the tribunal is left

with the definite and firm con viction that a mistake has been committed.

U.S. v. U.S. Gypsum Co. , 333 U.S. 364, 395 (1948); Tropical Jewelers, Inc. v.

Bank of Am., N.A., 19 So. 3d 424, 426 (Fla. 3d DCA 2009). With respect to

conclusions of law, the First District has held that the clea rly erroneous

standard requires that an agencyÔs legal interpretations will be upheld if the

agencyÔs construction falls within the permissible range of interpretations,

Colbert v. Department of Health , 890 So. 2d 1165, 1166 (Fla. 1st DCA 2004),

unless the agencyÔs interpretation conflicts with the plain and ordinary

meaning of the law. Fla. Hosp. v. Ag. for Health Care Admin. , 823 So. 2d 844,

848 (Fla. 1st DCA 2002).

77. An agencyÔs decision is contrary to competition if it unreasonably

interferes with th e purposes of competitive procurement, which the Supreme

Court of Florida describes as protecting the public against collusive contracts

and securing fair competition upon equal terms to all bidders. Wester v.

Belote, 103 Fla. 976, 981 - 82, 138 So. 721, 723 - 24 (Fla. 1931); see also Harry

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

1977).

78. Finally, an action is arbitrary if it is not supported by logic or the

necessary facts, and is capricious if it is adopted without thought or reason,

or if it is irrational. Hadi v. Liberty Behav . Health Corp. , 927 So. 2d 34, 38 - 39

(Fla. 1st DCA 2006); Agrico Chem. Co. v. DepÔt of Env Ô t Reg ul . , 365 So. 2d 759,

763 (Fla. 1st DCA 1978). To determine whether an agency acted in an

arbitrary or c apricious manner, the undersigned must determine whether an

agency has considered all of the relevant factors; has given actual, good faith

consideration to those factors; and has used reason rather than whim to

progress from considering those factors to r eaching a final decision. Adam

Smith Enter. v. DepÔt of Env Ô t Reg ul . , 553 So. 2d 1260, 1273 (Fla. 1st DCA

1989). However, if a decision is justifiable under any analysis that a

reasonable person might use to reach a decision of similar importance, the

deci sion is not arbitrary or capricious. Dravo Basic Materials Co. v. DepÔt of

Transp. , 602 So. 2d 632, 635 n.3 (Fla. 2d DCA 1992).

79. While an application containing a material deviation is unacceptable,

not every deviation from a competitive solicitation i s fatal. A deviation is only

fatal if it is material. The deviation is Ñonly material if it gives the bidder a

substantial advantage over the other bidders and thereby restricts or stifles

competition.Ò Tropabest Foods, Inc. v. Fla . DepÔt of Gen. Servs., 4 93 So. 2d 50,

52 (Fla. 1st DCA 1986).

80. Rule 67 - 60.008 further provides:

Minor irregularities are those irregularities in an

Application, such as computation, typographical, or

other errors, that do not result in the omission of

any material information ; do not create any

uncertainty that the terms and requirements of the

competitive solicitation have been met; do not

provide a competitive advantage or benefit not

enjoyed by other Applicants; and do not adversely

impact the interests of the Corporation o r the

public. Minor irregularities may be waived or

corrected by the Corporation.

Madison Grove Application

81. Ability has met its burden to prove that Madison Grove materially

deviated from the requirements in the RFA for the 2019 and 2020 Prior

Submis sion Preference, and is therefore not entitled to this preference.

82. To qualify for the 2019 and 2020 Prior Submission Preference, the

RFA requires that an applicant meet nine criteria. Madison Grove failed to

meet the Location Criteria, although it cla ims that it should still be entitled

to the 2019 and 2020 Prior Submission Preference.

83. Madison Grove and Hidden LakeÔs interpretation of the RFAÔs

Location Criteria Ð that the DLP requirement only applies to Scattered Sites

Developments or is ambiguous Ð is illogical, unreasonable, and contrary to

the plain language in the RFA. The phrase Ñfor all Scattered SitesÒ applies to

the immediately preceding phrase of Ñlatitude and longitude coordinates[,]Ò

not to the DLP. The use of parentheticals in the word Ñsi te(s)Ò in the Location

Criteria demonstrates that the DLP requirement applies to developments

containing single site or contiguous site developments, as well as Scattered

Sites developments. Madison Grove and Hidden LakeÔs contention that the

Location Crit eria only applies to Scattered Sites would thus mean that

Florida Housing could not consider location criteria of non - Scattered Sites

developments in determining whether an applicant would qualify for the

2019 and 2020 Prior Submission Preference, which is contrary to the plain

language of the RFA, and, as Ms. Button testified, the policy objective of

Florida Housing.

84. Madison GroveÔs and Hidden LakeÔs contention that Florida Housing

must follow the Joint Pre - hearing Stipulation and precedent in Fletche r

Black II, LLC , which contested Florida HousingÔs determination in RFA

2020 - 201 and, according to Madison Grove and Hidden Lake , stipulated that

Madison Grove met the requirements for the prior submission preference in

RFA 2019 - 113, is also unavailing. Th e Recommended Order made no findings

concerning the location criteria for the 2019 - 113 Preference because that was

not an issue in that litigation. Additionally, the facts are different in the

instant matter. For RFA 2020 - 201, the DLP listed in the 2020 ap plication

had to be located on the development site(s) proposed in the 2019 application.

In RFA 2021 - 201, the DLPs listed in the 2019 and 2020 applications had to

be on the development site(s) proposed in the 2021 application.

85. The undersigned has con sidered the Hidden LakeÔs contention that

Florida Housing is required to follow prior precedent that contains similar

facts. See Villa Capri Assoc. v. Fla. Hous. Fin. Corp. , 23 So. 3d 795 (Fla. 1st

DCA 2009). However, as the facts in the instant matter dif fer from the facts

in the Fletcher Black II litigation Ð as detailed in paragraph 84 above Ð the

undersigned concludes that Villa Capri Ôs holding on this point is inapplicable.

86. The undersigned also concludes that Madison GroveÔs failure to satisfy

the Loc ation Criteria is not a waivable, minor irregularity, under rule 67 -

60.008. As found above, Madison GroveÔs failure to comply with the Location

Criteria is not a minor irregularity because it provides a competitive

advantage not enjoyed by other applicants , and adversely impacts the

interest of Florida Housing. See, e.g., Quail Roost Transit Village 1, Ltd. v .

Fla. Hous. Fin. Corp. , DOAH Case No. 20 - 3094BID (Fla. DOAH Aug. 12,

2020; Fla. FHFC Oct. 19, 2020)(ALJ Stevenson, concluding in paragraphs 81 -

82 of t he Recommended Order that the applicantÔs omission of principals

form Principals Disclosure Form and providing latitude and longitude

coordinates for a Scattered Sites Development that were not located on the

proposed development site constituted a Ñfailur e to comply with an express

term of the RFA [that] cannot be dismissed as a minor irregularity.Ò).

87. Madison Grove materially failed to comply with a requirement in

order to achieve the 2019 and 2020 Prior Submission Preference. This is not a

minor irre gularity. Ability has demonstrated, by a preponderance of the

evidence, that Florida HousingÔs proposed action in finding Madison Grove

eligible for the 2019 and 2020 Prior Submission Preference was contrary to

the RFA specifications and clearly erroneous.

88. With respect to Hidden LakeÔs allegation that if Madison Grove is

ineligible for the 2019 and 2020 Prior Submission Preference, it would not

meet the requirements for its Applicant Certification and Acknowledgment

Form, and its application in RFA 202 1 - 201 would thus be ineligible, the

undersigned concludes that Hidden Lake has not met its burden. There is no

evidence in the record to demonstrate that Madison Grove violated a

provision of the Applicant Certification and Acknowledgment Form when it

sele cted, in its application, that it qualified for the 2019 and 2020 Prior

Submission Preference.

Ability Application

89. At the final hearing, Madison Grove and Hidden Lake alleged that

Ability failed to meet the RFAÔs requirements for disclosure of its pr inicpals

in the Principals Disclosure Form. Neither Madison Grove nor Hidden Lake

addressed this contention in their P roposed R ecommended O rders.

90. As stated in the F indings of F act, the Board of Directors of Ability

Housing, Inc., as of the August 26, 2021, application deadline for the RFA,

was accurately reflected in the Principals Disclosure Form included in

AbilityÔs application for the RFA.

91. Madison Grove and Hidden Lake failed to meet their burden to

demonstrate that Florida HousingÔs scoring of AbilityÔs application is contrary

to Florida HousingÔs governing statutes, rules, policies, or the RFA. The

undersigned concludes that Florida HousingÔs scoring decision as it relates to

AbilityÔs application is not clearly erroneous, contrary to competit ion,

arbitrary, or capricious.

92. The undersigned is aware that the result of this Recommended Order

and, if adopted, Florida HousingÔs f inal o rder, could have a cascading effect

on other applicant parties, causing some to possibly become eligible for

fun ding, causing some to possibly become eligible for funding in different

preference categories, and causing other parties to possibly become ineligible

for funding. Some of the parties have argued that the undersigned should

make legal conclusions and recom mendations concerning the effect of this

R ecommended O rder on these other parties. The undersigned declines to

make such additional conclusions and recommendations, in accordance with

section 120.57(3).

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the

undersigned hereby R ECOMMENDS that (a) Florida HousingÔs determination

that Madison Grove qualified for the 2019 and 2020 Prior Submission

Preference is reversed, and that Madison Grove is ineligible for this

preference; a nd (b) Florida HousingÔs determination that AbilityÔs application

met Florida HousingÔs governing statutes, rules, policies, or the RFA is

affirmed, and Ability is eligible for the 2019 and 2020 Prior Submission

Preference.

D ONE A ND E NTERED this 31st day of March , 2020 , in Tallahassee, Leon

County, Florida.

S

R OBERT J. T ELFER III

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 31st day of March , 2020 .

C OPIES F URNISHED :

J. Timothy Schulte, Esquire J. Stephen Menton, Esquire

Zimmerman, Kiser & Sutcliffe, P.A. Rutledge Ecenia, P.A.

315 East Robinson Street 119 South Monroe Street, Suite 202 Post

Post Office Box 3000 Office Box 551

Orlando, Florida 32802 Tallahassee, Florida 32302

Michael P. Donaldson, Esquire Tana D. Storey, Esquire

C arlton Fields P.A. Rutledge Ecenia, P.A.

Post Office Drawer 190 Suite 202

Tallahassee, Florida 32302 119 South Monroe Street

Tallahassee, Florida 32301

Hugh R. Brown, General Counsel

Florida Housing Finance Corporation Betty Zachem, Esquire

Suite 5000 Florida Housing Finance Corporation

227 North Bronough Street Suite 5000

Tallahassee, Florida 32301 - 1329 227 North Bronough Street

Tallahassee, Florida 32301

M. Christopher Bryant, Esquire Christopher Dale McGuire, Esquire

Oertel, Fern andez, Bryant Florida Housing Finance Corporation

& Atkinson, P.A. Suite 5000

Post Office Box 1110 227 North Bronough Street

Tallahassee, Florida 32302 - 1110 Tallahassee, Florida 32301

Corporation Clerk

Florida Housing Finance Corporation

Suite 5000

227 North Bronough Street

Tallahassee, Florida 32301 - 1329

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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

the date of this Recommended Order. Any exceptions to this Recommended

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

case.