01-001819BID Adorno &Amp; Zeder, P.A., And Knowles, Marks &Amp; Randolph vs. Florida Housing Finance Corporation
 Status: Closed
Recommended Order on Thursday, July 19, 2001.

View Dockets  
Summary: Responses to Request for Qualifications could be updated after initial written responses were filed and evaluated. Bid protest dismissed.



8ADORNO & ZEDER, P.A., and )



20Petitioners, )


23vs. ) Case No. 01- 1819BID





37Respondent, )


40and )



48L.L.P., and HICKS & PEISNER )

54P.A., )


57Intervenors. )



62Pursuant to notice, a final hearing was held in this case on

74June 8, 2001, at Tallahassee, Florida, before Claude B.

83Arrington, a duly-designated Administrative Law Judge of the

91Division of Administrative Hearings.


96For Petitioners : Mitchell R. Bloomberg, Esquire

103Michael W. Ford, Esquire

107Adorno & Zeder , P.A.

1112601 South Bayshore Drive, Suite 1600

117Miami, Florida 33133

120For Respondent : Maureen McCarthy Daughton, Esquire

127Nabors , Giblin & Nickerson , P.A.

1321500 Mahan Drive, Suite 200

137Tallahassee, Florida 32308

140For Intervenors : Alan L. Briggs, Esquire

147Squire, Sanders & Dempsey, L.L.P.

1521201 Pennsylvania Avenue, Northwest

156Post Office Box 407

160Washington, D.C. 20044-0407

163Reginald D. Hicks, Esquire

167Hicks & Peisner , P.A.

171Post Office Box 2248

175Orlando, Florida 32802-2248


182Whether Respondent's selection of Squire, Sanders and

189Dempsey, L.L.P., jointly with Hicks and Peisner, P.A., as one of

200four offerors to provide services as bond counsel is contrary to

211applicable law, is clearly erroneous, is arbitrary, is

219capricious, or is contrary to competition.

225Whether an offeror engaged in a prohibited business

233solicitation communication.

235Whether an offeror violated the anti-collusion certificate

242of the Request for Qualifications.


249On February 2, 2001, Respondent, Florida Housing Finance

257Corporation ("FHFC"), issued a "Request for Qualifications

2662001/01 to serve as Bond Counsel for the Florida Housing Finance

277Corporation ("RFQ")." Ten offerors timely responded to the RFQ.

288Three of the offerors were Petitioners (who filed a joint

298response); Squire, Sanders and Dempsey, L.L.P. (Squire Sanders);

306and Annis, Mitchell, Cockey, Edwards and Roehn, P.A. (AMCER),

315jointly with Hicks and Peisner, P.A. (Hicks). In their response

325on behalf of AMCER and Hicks, the principal bond attorneys for

336AMCER advised that AMCER was likely to dissolve, that the

346principal bond attorneys intended to continue practicing

353together, and that they were likely to join another law firm in

365the near future.

368The RFQ required each offeror to provide responses to

377certain objective items that could be scored and responses to

387other items that were for the FHFC's information. An evaluation

397committee scored the objective items and ranked the ten responses

407based on that scoring. The informational items were summarized.

416After the evaluation committee prepared its ranking and

424summary, but before the FHFC made its selections, the principal

434bond attorneys that had been a part of AMCER advised Respondent's

445Executive Director that they were joining Squire Sanders.

453Thereafter, Respondent treated the applications of AMCER and

461Hicks as having been merged into that of Squire Sanders.

471The Evaluation Committee's ranking and summary were provided

479to the Board of Directors of FHFC ("Board"), the governing body

492of FHFC. Thereafter, the offerors made an oral presentation

501before the Board. Prior to the oral presentations, FHFC's

510Executive Director informed the Board of the change of status of

521the AMCER and Hicks offer.

526Following the oral presentations, Respondent's Executive

532Director recommended that four offerors be selected, one of which

542was Squire Sanders. Petitioners' offer was not recommended to

551the Board. The Board voted to accept the Executive Director's


562Thereafter, Petitioners timely filed this bid protest, the

570matter was referred to the Division of Administrative Hearings,

579and this proceeding followed. Petitioners contend that Squire

587Sanders should be disqualified because it impermissibly amended

595or supplemented its response to the RFQ between the time it

606submitted its response and the oral presentation. Petitioners

614assert that they are entitled to the contract that FHFC intends

625to award to Squire Sanders.

630In addition, the formal protest contested the intended

638selection of another offeror (Hawkins, Delafield and Wood). At

647the final hearing, Petitioners announced that they were no longer

657contesting the intended selection of that firm.

664At the final hearing, the parties offered 17 consecutively

673marked joint exhibits, each of which was admitted into evidence.

683Petitioners presented the testimony of Mark Kaplan, Respondent's

691Executive Director. No other party presented any additional

699witness or exhibit.

702A transcript of the final hearing was filed June 20, 2001.

713The parties submitted Proposed Recommended Orders, which have

721been duly considered by the undersigned in the preparation of

731this Recommended Order.


7371. Part V of Chapter 420, Florida Statutes, consisting of

747Sections 420.501 - 420.517, Florida Statutes, is the Florida

756Housing Finance Corporation Act (Act). FHFC, created by the

765provisions of Section 420.504, Florida Statutes, is a public


7752. Pursuant to Section 420.504(2), Florida Statutes, FHFC

783is an agency of the State of Florida for the purposes of

795Chapter 120, Florida Statutes.

7993. At all times pertinent to this proceeding, Mark Kaplan

809served as the Executive Director of FHFC.

8164. As provided by the Act, a Board of Directors governs

827FHFC. The Board consists of eight members appointed by the

837Governor from specifically designated industries and backgrounds

844plus the Secretary of the Department of Community Affairs, who is

855an ex-officio and voting member of the Board.

8635. Pursuant to Section 420.507, Florida Statutes, FHFC has

872all powers necessary or convenient to carry out and effectuate

882the purposes and provisions of the Act. FHFC has the authority

893to issue bonds and hire bond counsel.

9006. On February 2, 2001, FHFC issued the RFQ at issue in

912this proceeding. Through the RFQ, FHFC solicited competitive,

920sealed responses from qualified law firms to act as bond counsel

931on behalf of FHFC.

9357. The RFQ defined the term "offeror" to mean a law firm

947that submits a response to the RFQ or two or more law firms that

961submit a joint response to the RFQ.

9688. The RFQ defined the term "response" to mean a written

979submission by an offeror that responds to the RFQ.

9889. The RFQ required written responses to be filed no later

999than 5:00 p.m. on March 2, 2001.

100610. By subparagraph B.3. of Section Three of the RFQ, FHFC

1017reserved the right to obtain any information concerning any or

1027all offerors from all sources.

103211. By subparagraph B.4. of Section Three of the RFQ, FHFC

1043reserved the right to request an oral interview from any or all


105612. FHFC received ten responses to the RFQ, including a

1066joint response from Petitioners, a response from Squire Sanders,

1075and a joint response from AMCER and Hicks.

108313. Stephen J. Mitchell and David L. Lapides submitted the

1093response on behalf of AMCER. Reginald Hicks submitted the Hicks

1103response jointly with the AMCER response.

110914. The submission letter for AMCER, signed by Mr. Lapides,

1119stated, in part, as follows:

1124Stephen J. Mitchell and David L. Lapides,

1131on behalf of [AMCER] are pleased to join with

1140Reginald D. Hicks to respond to [FHFC's]

1147request for proposals [sic] in its efforts to

1155select a law firm to serve as its bond

1164counsel in multi-family and single-family

1169bond issuances. AMERC, which served as

1175[FHFC's] bond counsel since 1996, may merge

1182with another firm. The attorneys who have

1189served [FHFC] intend to continue to practice

1196together. We want to assure [FHFC] that,

1203regardless of the name we may practice under,

1211the individuals who have worked with [FHFC]

1218look forward to continuing our relationship

1224with you.

122615. The submission letter for Hicks, signed by Mr. Hicks,

1236stated, in part, as follows:

1241Reginald D. Hicks, on behalf of [Hicks] is

1249pleased to join with Stephen J. Mitchell and

1257David L. Lapides to respond to [FHFC's]

1264request for proposals [sic] in its effort to

1272select a law firm to serve as its bond

1281counsel in multi-family and single-family

1286bond issuances.

128816. The AMCER and Hicks response stated, in part, as


1299Stephen J. Mitchell, David L. Lapides,

1305Michael J. Nolan, Joseph D. Edwards, Fred B.

1313Karl and Hillary M. Black are continuing the

1321municipal bond practice of [AMCER]. As of

1328the date of the RFQ response, AMCER continues

1336its legal existence as a Florida professional

1343services corporation. It is anticipated

1348that, if selected to continue as [FHFC's]

1355bond counsel, the contract will be accepted

1362in the name of a successor firm.

136917. As required by the RFQ, the response filed jointly on

1380behalf of AMCER and Hicks described their municipal bond practice

1390group, their tax group, and set forth the qualifications and

1400experience of each member of the groups that would be providing

1411services to FHFC. That response responded to all other items in

1422the RFQ, including information as to minority involvement.

143018. The response filed by Squire Sanders responded to all

1440items in the RFQ.

144419. The joint response filed by Petitioners responded to

1453all items in the RFQ.

145820. The responses consisted of objective items that could

1467be scored and other items that were for the Board's information. 1

1479Each member of an evaluation committee separately evaluated each

1488response. The objective items were scored and ranked

1496competitively based on that scoring. The informational items

1504were summarized. The ranking and the summary were provided to

1514each member of the Board.

151921. The ranking of the objective items of the written

1529responses was a preliminary step in the evaluation process. It

1539was not intended to be a final ranking of the offerors.

155022. Pertinent to this proceeding, the joint response of

1559AMCER and Hicks was ranked third, the joint response of

1569Petitioners was ranked fourth, and the response of Squire Sanders

1579was ranked fifth.

158223. FHFC invited all ten offerors to make an oral

1592presentation to the Board at its meeting on April 6, 2001. The

1604Board was scheduled to select bond counsel at that meeting

1614immediately after the oral presentations.

161924. The preliminary agenda for the April 6, 2001, meeting

1629reflected that each of the ten offerors would be making an oral

1641presentation and set the order for those presentations.

164925. Approximately three days before the April 6, 2001,

1658meeting, Stephen J. Mitchell informed Mr. Kaplan by telephone

1667that he, Mr. Lapides, and several other lawyers who had been

1678employed by AMCER were going to join Squire Sanders.

1687Mr. Mitchell advised that Hicks was still a part of their team.

1699Mr. Mitchell also told Mr. Kaplan that AMCER and Hicks and Squire

1711Sanders would not be making separate presentations at the Board

1721meeting scheduled for April 6, 2001.

172726. There was no evidence submitted that the telephone

1736conversation between Mr. Mitchell and Mr. Kaplan touched on the

1746merits of any response.

175027. After this conversation, a revised agenda for the

1759April 6, 2001, meeting was prepared ref lecting that nine offerors

1770would be making oral presentations, not ten. The following

1779appeared on the amended agenda under Agenda Item IV of the

1790section styled Oral Interviews ( RFQ2001/01) for Bond Counsel:

1799Squire, Sanders & Dempsey L.L. P. (formerly

1806known as : Annis, Mitchell, Cockey, Edwards &

1814Roehn, P.A.)

181628. Each offeror was permitted to make a ten-minute oral

1826presentation to the Board and to present the Board a single sheet

1838handout. The handout presented on behalf of Squire Sanders

1847contained the following:

1850Annis Mitchell Group now a part of Squire, Sanders

1859Squire, Sanders & Dempsey and Steve

1865Mitchell are pleased to announce that the

1872Annis Mitchell group (the "Steve Mitchell

1878Lawyers") that has served the Florida Housing

1886Finance Corporation ("Florida Housing") as

1893its bond counsel for the past 5 years, has

1902now become a part of Squire Sanders. The

1910group joining us is headed by Steve Mitchell,

1918Joe Edwards, and David Lapides.

1923Enhancement of our Commitment to Florida Housing

1930The combined group brings to Florida

1936Housing greater depth and strengths. Squire

1942Sanders is one of the largest and best known

1951national public finance law firms. Out of

1958our 700 lawyers worldwide, 60 of our lawyers

1966practice exclusively in the public finance

1972area, comprising one of the largest public

1979finance practice groups in the United States.

1986Our Firm's public finance tax partners are

1993also recognized as one of the nation's finest

2001tax groups.

2003Strong Presence in Florida

2007The Squire Sanders team has an incredibly

2014strong Florida presence in the public finance

2021marketplace. Squire Sanders has ranked as

2027the number one bond counsel in Florida, on a

2036cumulative basis over the last eight years.

2043Nationwide, Squire Sanders has consistently

2048ranked in the top 10 bond counsel law firms

2057in the nation over the last 12 years. Our

2066Florida offices are in Miami, Tampa and

2073Jacksonville and include 7 lawyers who are

2080exclusively engaged in the public finance


2087Reginald D. Hicks is part of our Team

2095We are pleased that Reginald Hicks will be

2103part of our Florida Housing team. Mr. Hicks

2111has participated in over $500 million of tax

2119exempt bond issuances and has served as

2126co -bond counsel to Florida Housing.

2132Strong Housing Experience

2135Together with the Steve Mitchell lawyers,

2141the Squire Sanders team has been involved in

2149over 43 housing bond issues in Florida during

2157the last five years alone, for numerous

2164Florida housing finance authorities. Our

2169Steve Mitchell Lawyers have served as Florida

2176Housing's bond counsel on 31 bond issues

2183totaling over $618 million. Nationwide, the

2189combined team has been involved in more than

2197183 housing transactions as bond counsel ,

2203underwriters counsel, credit enhancer's

2207counsel and in other roles over the past 5

2216years covering the broad spectrum of housing


2224Our Continued Commitment

2227With your confidence, we would look forward

2234to our continued service as bond counsel for

2242the Florida Housing Finance Corporation,

2247which will now be greatly strengthened and

2254enriched by the joinder of the Steve Mitchell

2262Lawyers with Squire Sanders.

226629. Prior to the presentations, Mr. Kaplan stated the

2275following to the Board (beginning at page 71, line 24 of Joint

2287Exhibit 2):

2289. . . Just by way of background,

2297Mr. Chairman, this board authorized staff to

2304issue an RFQ for potential bond counsel to

2312serve the corporation. We received 10

2318responses to the RFQ. Those were scored by

2326staff pursuant to the scoring matrix that was

2334in the proposal.

2337There was no committee meeting. Each staff

2344member scored individually, those scores were

2350aggregated and averaged, and preliminarily

2355score reports were made. You have as Exhibit

2363A (Joint Exhibit 7) to this information a

2371detailed matrix that shows how that scoring

2378played out. You have all 10 respondents

2385[sic] and you have the narrative of every

2393question that was scored, the number of

2400potential maximum points, and the average

2406points that each participant received, so you

2413can see as a board where the distinctions

2421arose between various respondents [sic].

2426Those scores are one factor to go into your

2435evaluation in determining who you wish bond

2442counsel contracts with.

2445Also relevant are nonscored items from the

2452application. You have Exhibit B (Joint

2458Exhibit 8) that includes some of the

2465nonscored items, such as, the amount of

2472insurance each respondent has.

2476You also have as part of that response to

2485questions, "Have you ever been sued? Tell us

2493about it."

2495And Exhibit C (Joint Exhibit 9) is the

2503nonscored portion of the fee proposals that

2510each bond firm gave us. The RFP [sic] says

2519that those proposals on fees will be used as

2528a guideline in negotiating the ultimate fee

2535contracts. And I believe that what it says

2543is that from those selected we will then make

2552a determination as to the fee that will be

2561paid to all bond counsel.

2566The fourth evaluation that should go into

2573your evaluation is what's about to happen,

2580which is the oral presentations by the bond

2588counsel firms. All respondents were invited

2594to make their presentations.

2598There is one change to the printed agenda

2606that is before you. We've broken them up,

2614but [there is] one change, and you have

2622information of that in front of you. We had

2631several [sic] proposals from the Annis

2637Mitchell firm, Reginald Hicks, and the

2643Squire, Sanders and Demsey firm. The Annis

2650Mitchell group of lawyers are now part of

2658Squire, Sanders, and Demsey, so they will

2665make a single presentation on the number four

2673spot on your agenda. Each participant's

2679[sic] been given 10 minutes to make their

2687[sic] presentation. . . .

269230. Stephen Mitchell, Reginald Hicks, and Ken Meyers (a

2701Squire Sanders partner ), made the presentation under Agenda

2710Item IV on behalf of Squire Sanders. That presentation

2719represented that Mr. Mitchell, Mr. Lapides, Joe Edwards, and Fred

2729Karl and others at the former AMCER firm had been approved for

2741membership in the Squire Sanders firm. The presentation

2749emphasized the combined strengths of the former AMCER lawyers

2758with the resources of Squire Sanders.

276431. Following that presentation, Mr. Kaplan made the

2772following statement to the Board (beginning at page 148, line 17

2783of Joint Exhibit 2):

2787. . . Given the merger of the group that

2797filed the Annis Mitchell application into the

2804Squire Sanders firms, we are treating the two

2812applications as having also been merged and

2819become one application.

282232. Following the nine oral presentations Mr. Kaplan

2830recommended to the Board that FHFC select four offerors to

2840provide services as bond counsel on a rotating basis. In

2850response to a request to do so, Mr. Kaplan recommended his top

2862four offerors to serve as bond counsel. The four included

2872Squire, Sanders, and Demsey, jointly with Hicks. Mr. Kaplan did

2882not recommend Petitioners. The Board therafter adopted

2889Mr. Kaplan's recommendations.

289233. There was no evidence that Squire Sanders, Hicks, or

2902the former AMCER lawyers received any unfair competitive

2910advantage by the FHFC's treating their responses as having been


292134. Section Five of the RFQ contains an anti-collusion

2930provision which requires an offeror to certify the following:

2939The response is made without prior

2945understanding, agreement, or connection with

2950any person or entity submitting a response

2957for the same service - except for any such

2966agreement with a person or entity with whom

2974the Response is Jointly Filed or such Joint

2982Filing is made clear on the face of the

2991response - and is in all respects fair and

3000without collusion or fraud.

300435. There was insufficient evidence to establish that any

3013party violated the foregoing anti-collusion provision.

301936. All offerors in this proceeding have the basic

3028qualifications to perform the services required by FHFC.


303937. The Division of Administrative Hearings has

3046jurisdiction of the parties to and the subject of this

3056proceeding. Sections 120.569 and 120.57(3), Florida Statutes.

306338. Section 120.57(3), Florida Statutes, controls this

3070proceeding. Paragraph (3)(f) provides in relevant part as


3079(f ) In a competitive-procurement protest,

3085no submissions made after the bid or proposal

3093opening shall be considered. Unless otherwise

3099provided by statute, the burden of proof shall

3107rest upon the party protesting the proposed

3114agency action. In a competitive-procurement

3119protest, other than a rejection of all bids,

3127the administrative law judge shall conduct a

3134de novo proceeding to determine whether the

3141agency’s proposed action is contrary to the

3148agency’s governing statutes, the agency’s

3153rules or policies, or the bid or proposal

3161specifications. The standard of proof for

3167such proceedings shall be whether the proposed

3174agency action was clearly erroneous, contrary

3180to competition, arbitrary, or capricious.

318539. Pursuant to Section 120.57(3), Florida Statutes, the

3193undersigned must first determine, in a de novo setting, whether

3203FHFC's action is "contrary to the agency’s governing statutes,

3212the agency’s rules or policies, or the bid or proposal

3222specifications." Within that factual framework, it must then be

3231determined if FHFC's action is ”clearly erroneous, contrary to

3240competition, arbitrary, or capricious."

324440. FHFC clearly has the authority to employ bond counsel

3254pursuant to Section 420.507, Florida Statutes, and it has wide

3264discretion in determining how such counsel is to be selected. In

3275this proceeding, FHFC chose to use the RFQ process, which was

3286appropriate considering the nature of the procurement.

329341. The procurement of legal services is not subject to the

3304procurement requirements contained in Chapter 287, Florida

3311Statutes, but is, instead, subject to Section 120.57(3), Florida

3320Statutes, and its duly-adopted rules pertaining to procurement

3328contained in Chapter 67-49, Florida Administrative Code.

333542. Rule 67-49.005, Florida Administrative Code, provides,

3342in pertinent part, as follows:

3347. . . [FHFC] shall reserve the right to

3356waive minor irregularities in an otherwise

3362valid bid, proposal or response when it is

3370deemed to be in [FHFC's] best interest to do

3379so. Bidders and offerors may not supplement

3386their proposals, bids or responses once they

3393have been opened by the Corporation.

339943. Rule 67-49.001, Florida Administrative Code, defines

3406the terms "Invitation to Bid," Request for Proposals," and

"3415Request for Qualifications" as follows:

3420(6) "Invitation to Bid" means a written

3427solicitation for competitive sealed bids with

3433the title, date, and hour of the public bid

3442opening designated and specifically defining

3447the commodity, group of commodities or group

3454of services for which bids are sought. It

3462includes instructions prescribing all

3466conditions for bidding and shall be

3472distributed to all prospective bidders

3477simultaneously. The Invitation to Bid is

3483used when the Corporation is capable of

3490specifically defining the scope of work for

3497which a contractual service is required or

3504when the Corporation is capable of

3510establishing precise specifications defining

3514the actual commodity or group of commodities


3522* * *

3525(9) "Request for Proposals" means a

3531written solicitation for competitive sealed

3536proposals with the title, date, and hour of

3544the public opening designated. The Request

3550for Proposals is used when the Corporation is

3558incapable of specifically defining the scope

3564of work for which the commodity, group of

3572commodities or contractual service is

3577required and when the corporation is

3583requesting that a qualified offeror propose a

3590commodity, group of commodities or

3595contractual service to meet the

3600specifications of the solicitation document.

3605The Request for Proposals includes general

3611information, applicable laws and rules,

3616functional or general specifications,

3620statement of work, proposal instructions and

3626evaluation criteria.

3628(10) "Request for Qualifications" means a

3634written solicitation for qualifications. The

3639Request for Qualifications is utilized when

3645the Corporation does not have a specific

3652immediate need for a particular service, but

3659desires to have qualified individuals or

3665firms under contract which can be assigned

3672duties as the need arises over a period of

3681time. The Request for Qualifications

3686includes general information, applicable laws

3691and rules, functional or general

3696specifications, statement of work,

3700instructions and evaluation criteria.

370444. Petitioners established that Squire Sander's oral

3711presentation contained information not available when it and the

3720other written responses were filed. That fact does not establish

3730that Squire Sanders supplemented its response to the RFQ in

3740violation of Section 120.57(3), Florida Statutes, or Rule 67-

374949.005, Florida Administrative Code.

375345. Respondent's rules do not define when a response to an

3764RFQ has been "opened by the Corporation", as that phrase is used

3776in Rule 67-40.005, Florida Administrative Code, and within the

3785meaning of Section 120.57(3), Florida Statutes.

379146. A distinction should be drawn between this proceeding

3800and a proceeding involving an Invitation to Bid or a Request for

3812Proposals, where one bidder or proposer can achieve significant

3821competitive advantage over another by changing its bid or

3830proposals after the opening of bids or proposals. There was no

3841such unfair competitive advantage achieved in this proceeding

3849because of the nature of the procurement and the nature of the

3861evaluation process.

386347. The RFQ clearly contemplated that FHFC could consider

3872any relevant information about any offeror up to the time the

3883Board made its final selection. The written responses filed by

3893the offerors were only a part of the information-gathering

3902process. FHFC explicitly reserved the right to gather

3910information about any offeror from any source throughout the

3919evaluation process. The oral interviews, scheduled for the

3927meeting at which the Board made its final selections, provided

3937the Board an opportunity to have all current, relevant

3946information when it made its selection. It was both fair and

3957appropriate for an offeror to inform the Board of any material

3968changes in its response. Indeed, it would be incumbent upon an

3979offeror to do so.

398348. Because of the on-going nature of the information-

3992gathering process, there was no "opening" of the RFQ within the

4003meaning of Rule 67-40.005, Florida Administrative Code, and

4011Section 120.57(3), Florida Statutes. Consequently, it is found

4019that Petitioners failed to establish that the intended award to

4029Squire Sanders was contrary to the agency’s governing statutes,

4038the agency’s rules or policies, or the RFQ.

404649. A decision is "clearly erroneous" when it is

4055unsupported by substantial evidence, or contrary to the clear

4064weight of the evidence, or induced by an erroneous view of the

4076law. Assessment Systems, Inc. v. Department of Business and

4085Professional Regulations , DOAH Case 98- 1867BID, July 14, 1998.

4094The intended action of FHFC at issue in this proceeding is not

4106clearly erroneous.

410850. The Florida Supreme Court discussed the object and

4117purpose of competitive bidding statutes in Wester v. Belote , 103

4127Fla. 976, 138 So. 721 (1931). The following language, found at

4138paragraphs 3 and 4 of the Syllabus by the Court, is frequently

4150cited in cases involving bid disputes:

41563. The object and purpose of competitive

4163bidding statutes is to protect the public

4170against collusive contracts; to secure fair

4176competition upon equal terms to all bidders;

4183to remove, not only collusion, but temptation

4190for collusion and opportunity for gain at

4197public expense; to close all avenues to

4204favoritism and fraud in its various forms; to

4212secure the best values at the lowest possible

4220expense; and to afford an equal advantage to

4228all desiring to do business with the public

4236authorities, by providing an opportunity for

4242an exact comparison of bids.

42474. Laws requiring contracts to be let by

4255public authorities to the lowest responsible

4261bidder serve the object of protecting the

4268public against collusive contracts and

4273prevent favoritism toward contractors by

4278public officials; because they tend to remove

4285temptation on the part of public officers to

4293seek private gain at the taxpayers' expense,

4300they are of highly remedial character, and

4307should always receive a construction which

4313effectuates their true intent and avoids the

4320likelihood of their being circumvented,

4325evaded, or defeated

432851. The intended action of FHFC at issue in this proceeding

4339is not inconsistent with the object and purpose of competitive

4349bidding statutes and rules.

435352. An "arbitrary" decision is one not supported by facts

4363or logic. A "capricious" action is one that is taken without

4374thought or reason, or irrationally. See Dravo Basic Materials

4383Co. v. State Doartment of Transportation , 602 So. 2d 632 (Fla. 2d

4395DCA 1992) ; Agrico Chemical Co. v. State Department of

4404Environmental Regulation , 365 So. 2d 759 (Fla. 1st DCA 1978),

4414cert. denied sub nom. ; and Askew v. Agrico Chemical Co. , 376

4425So. 2d 74 (Fla. 1979). Th e intended action of FHFC at issue in

4439this proceeding is not arbitrary or capricious.

444653. As long as FHFC acted in a manner that is not

4458arbitrary, capricious, fraudulent, or dishonest, it had wide

4466discretion in the solicitation and acceptance of the responses to

4476the RFQ. See Department of Transportation v. Groves-Watkins

4484Constructors , 530 So. 2d 912 (Fla. 1988), and Liberty County v.

4495Baxter's Asphalt and Concrete, Inc. , 421 So. 2d 505 (Fla. 1982).

450654. Petitioners did not establish that the telephone

4514conversation on or about April 3, 2001, between Mr. Mitchell and

4525Mr. Kaplan constituted a prohibited business communication.

453255. As reflected by the Findings of Fact, there was no

4543evidence that any offeror violated the anti-collusion certificate

4551of the RFQ.

455456. Petitioners failed to establish that Respondent's

4561intended action to select Squire Sanders as one of four offerors

4572to serve as bond counsel was clearly erroneous, contrary to

4582competition, arbitrary, or capricious. Accordingly, Petitioners

4588have failed to meet its burden of proof, and the subject bid

4600protest should be dismissed.


4605Based on the foregoing Findings of Fact and Conclusions of

4615Law, it is RECOMMENDED that Respondent enter a final order

4625dismissing this bid protest.

4629DONE AND ENTERED this 19th day of July, 2001, in

4639Tallahassee, Leon County, Florida.



4647Administrative Law Judge

4650Division of Administrative Hearings

4654The DeSoto Building

46571230 Apalachee Parkway

4660Tallahassee, Florida 32399-3060

4663(850) 488- 9675 SUNCOM 278-9675

4668Fax Filing (850) 921-6847


4673Filed with the Clerk of the

4679Division of Administrative Hearings

4683this 19th day of July, 2001.


46901/ The RFQ solicited a response pertaining to fees. This was an

4702informational item, not an objective item. All offerors selected

4711to serve as bond counsel were to be compensated based on one fee



4727Mitchell R. Bloomberg, Esquire

4731Michael W. Ford, Esquire

4735Adorno & Zeder , P.A.

47392601 South Bayshore Drive

4743Suite 1600

4745Miami, Florida 33133

4748Maureen McCarthy Daughton, Esquire

4752Nabors , Giblin & Nichkerson , P.A.

4757Post Office Box 11008

4761Tallahassee, Florida 32302-1008

4764Harold Knowles, Esquire

4767Knowles, Mark & Randolph

4771528 East Park Avenue

4775Tallahassee, Florida 32301

4778Alan L. Briggs, Esquire

4782Squire, Sanders & Dempsey, L.L.P.

47871201 Pennsylvania Avenue, Northwest

4791Post Office Box 407

4795Washington, D.C. 20044-0407

4798Reginald D. Hicks, Esquire

4802Hicks & Peisner , P.A.

4806Post Office Box 2248

4810Orlando, Florida 32802-2248

4813Mark Kaplan, Executive Director

4817Florida Housing Finance Corporation

4821227 North Bronough Street, Suite 5000

4827Tallahassee, Florida 32301

4830Elizabeth Arthur, General Counsel

4834Florida Housing Finance Corporation

4838227 North Bronough Street, Suite 5000

4844Tallahassee, Florida 32301


4853All parties have the right to submit written exceptions within 10

4864days from the date of this Recommended Order. Any exceptions to

4875this Recommended Order should be filed with the agency that will

4886issue the final order in this case.

48931 The RFQ solicited a response pertaining to fees. This was an

4905informational item, not an objective item. All offerors selected

4914to serve as bond counsel was to be compensated based on one fee


Select the PDF icon to view the document.
Date: 07/19/2001
Proceedings: Recommended Order
Date: 07/19/2001
Proceedings: Recommended Order issued (hearing held June 8, 2001) CASE CLOSED.
Date: 07/19/2001
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
Date: 07/06/2001
Proceedings: Signature page of Reginald Hicks to the Intervenor`s Proposed Recommended Order (filed via facsimile).
Date: 07/05/2001
Proceedings: Intervenors` Proposed Recommended Order (filed via facsimile).
Date: 07/05/2001
Proceedings: Intervenor`s Recommended Order with Findings of Fact and Conclusions of Law (filed via facsimile).
Date: 07/03/2001
Proceedings: Florida Housing Finance Corporation`s Proposed Recommended Order filed.
Date: 06/20/2001
Proceedings: Transcript filed.
Date: 06/20/2001
Proceedings: Notice of Filing Transcript filed.
Date: 06/11/2001
Proceedings: Intervenor`s Notice of Serving Answers to First Interrogatories to Intervenors Squire, Sanders & Dempsey, L.P.P. and Hicks & Peisner, P.A. filed.
Date: 06/08/2001
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
Date: 06/08/2001
Proceedings: Intervenor`s Squire, Sanders & Dempsey, L.P.P. and Hicks & Peisner, P.A. Notice of Additional Witness (filed via facsimile).
Date: 06/07/2001
Proceedings: Order Denying Motion to Compel issued.
Date: 06/07/2001
Proceedings: Pre-Hearing Brief of Intervenors Squire, Sanders & Dempsey L.P.P. and Hicks & Peisner, P.A. (filed via facsimile).
Date: 06/06/2001
Proceedings: Joint Pre-Hearing Stipulation filed.
Date: 06/05/2001
Proceedings: Respondent Florida Housing Finance Corporation`s Notice of Supplementation of Amended Response to Petitioners` First Interrogatories filed.
Date: 05/31/2001
Proceedings: Petitioners` Notice of Serving First Interrogatories to Intervenors Squire, Sanders & Dempsey L.P.P. and Hicks & Peisner, P.A. filed.
Date: 05/30/2001
Proceedings: Petitioner`s Amended Motion to Compel Answer to Interrogatories filed.
Date: 05/29/2001
Proceedings: Respondent`s Response to Petitioners` Motion to Compel Answers to Interrogatories filed.
Date: 05/29/2001
Proceedings: Petitioner`s First Interrogatories to Florida Housing Finance Corporation filed.
Date: 05/29/2001
Proceedings: Respondent Florida Housing Finance Corporation`s Notice of Filing Amended Response to Petitioner`s First Interrogatories filed.
Date: 05/29/2001
Proceedings: Order Granting Intervention issued (Suire, Sanders & Dempsey, L.L.P and Hicks & Pesiner, P.A.)
Date: 05/29/2001
Proceedings: Petitioners` Notice of Serving Responses to Florida Housing Finance Corporation`s First Request for Production of Documents filed.
Date: 05/29/2001
Proceedings: Petitioners` Motion to Compel Answers to Interrogatories (with exhibits) filed.
Date: 05/24/2001
Proceedings: Respondent Florida Housing Finance Corporation`s Notice of Response to Petitioner`s First Interrogatories filed.
Date: 05/22/2001
Proceedings: Petitioners` Notice of Serving Answers to Florida Housing Finance Corporation`s First Interrogatories (filed via facsimile).
Date: 05/21/2001
Proceedings: Respondent`s Response to Petitioners` First Request for Production of Documents filed.
Date: 05/21/2001
Proceedings: Notice of Compliance with Order of Pre-hearing Instructions filed by Respondent.
Date: 05/18/2001
Proceedings: Petitioners` Notice of Serving Petitioners` First Interrogatories to Florida Housing Finance Corporation (filed via facsimile).
Date: 05/18/2001
Proceedings: (Proposed) Order (unsigned) filed by A. Briggs.
Date: 05/18/2001
Proceedings: Memorandum of Squire, Sanders & Dempsey L. L. P. and Hicks & Peisner, P. A. in Support of Motion to Intervene filed.
Date: 05/18/2001
Proceedings: Petition for Leave to Intervene (filed by A. Briggs and R. Hicks).
Date: 05/17/2001
Proceedings: Entry of Appearance (filed by M. Ford via facsimile).
Date: 05/17/2001
Proceedings: Notice of Taking Deposition (M. Kaplan) filed.
Date: 05/15/2001
Proceedings: Defendant`s Notice of Serving First Interrogatories to Petitioners Adorno & Zeder, P. A. and Knowles, Marks & Randolph, P. A. filed.
Date: 05/15/2001
Proceedings: Petitioners` Notice of Serving Petitioners` First Request for Production of Documents filed.
Date: 05/15/2001
Proceedings: Florida Housing Corporation`s First Interrogatories to Adorno & Zeder, P. A. and Knowles, Marks & Randolph, P. A. filed.
Date: 05/15/2001
Proceedings: Notice of Appearance of Counsel (filed by M. Daughton).
Date: 05/15/2001
Proceedings: Florida Housing Finance Corpoation`s First Request for Production of Documents to Adorno & Zeder, P. A. and Knowles, Marks & Randolph, P. A. filed.
Date: 05/11/2001
Proceedings: Notice of Hearing.
Date: 05/11/2001
Proceedings: Order of Pre-hearing Instructions issued.
Date: 05/09/2001
Proceedings: Protest and Petition for Administrative Hearing filed.
Date: 05/09/2001
Proceedings: Agency referral filed.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Tallahassee, Florida
Department of Community Affairs


Related Florida Statute(s) (6):

Related Florida Rule(s) (2):