The Issue The issues in this protest are, first, whether Respondent clearly erred in determining that Petitioner's application for funding, which had failed to include all of the required financial information concerning its "non-corporation" lender, was ineligible for consideration due to a material, nonwaivable deviation from the specifications of the solicitation; if Petitioner's application was not, in fact, materially nonresponsive, then it will be necessary to decide whether Respondent should exercise its discretion to waive the minor irregularity in Petitioner's application.
Findings Of Fact Respondent Florida Housing Finance Corporation ("FHFC") is a statutorily created, public corporation whose mission is to dispense financial assistance intended to create affordable housing opportunities in the state of Florida. On January 22, 2016, FHFC issued Request for Applications 2016-101 (the "RFA"), whose full title——"Home Financing to Be Used for Rental Developments in Rural Areas"—— generally describes the developments for which FHFC expects to lend approximately $15 million available through the HOME Investment Partnerships Program. The loans are to be made on a competitive basis to selected applicants proposing to construct affordable housing in accordance with the specifications of the RFA, FHFC's generally applicable standards, and all other governing laws. Applications were due on February 25, 2016. Applicants were required to submit a completed and executed application, together with all applicable attachments. One part of the application, which is relevant to the instant dispute, comprised a multipage Development Cost Pro Forma ("Pro Forma"). To complete the Pro Forma, applicants needed to itemize their projected development costs and disclose the sources and amounts of their anticipating funding, the total of which was supposed to equal or exceed expected costs. The RFA divided lenders into two mutually exclusive classes: (a) Regulated Mortgage Lenders, a category which consists essentially of standard banks and credit unions whose operations are overseen by state or federal agencies that regulate financial institutions; and (b) all other lenders, referred to in the RFA as "Non-Corporation" sources. If an applicant chose to rely upon Non-Corporation funding for its project, then it was required under the RFA to provide evidence of the lender's ability to fund the loan, including the lender's financial statements. The failure to submit sufficient evidence of a Non-Corporation lender's wherewithal to finance the project constituted grounds for FHFC not to count that lender as a funding source, which might create a funding shortfall that would render the applicant ineligible. FHFC received nine applications in response to the RFA, including that of Petitioner National Development Foundation, Inc. ("NDF"), an Oviedo-based, Florida corporation that builds affordable housing. In accordance with the RFA, FHFC selected a review committee to evaluate, score, and rank the nine applications. NDF proposed to obtain a first mortgage loan from Neighborhood Lending Partners, Inc. ("NLPI"), to provide both construction and permanent financing for a 30-unit apartment complex to be developed in Macclenny, Florida. NLPI is a multi- bank lending consortium that provides financing to developers of affordable housing. Although NLPI is not a Regulated Mortgage Lender, its member banks are in that category. Nevertheless, it is undisputed that NLPI is a Non-Corporation lender for purposes of the RFA under consideration. Consequently, NDF was required to submit evidence of NLPI's ability to fund the mortgage loan. NDF provided a detailed Term Sheet from NLPI, which described the proposed financing. NDF did not, however, provide NLPI's financial statements with its application. There is no dispute that NDF's application did not strictly conform to the RFA's specifications in this regard. As will be seen, the most hotly contested issue here is whether this deficiency constitutes a nonwaivable material deviation or, rather, a minor irregularity which could be waived at FHFC's discretion. FHFC's review committee determined that, because NLPI did not meet the definition of a Regulated Mortgage Lender, and because NDF had failed to provide the necessary evidence of NLPI's ability to fund, NDF's proposed Non-Corporation funding should not be counted, which effectively removed essential first mortgage financing from NDF's Pro Forma, creating a disqualifying funding shortfall for the applicant. As a result, the committee deemed NDF's application ineligible for lack of financing. At its meeting on May 6, 2016, FHFC's Board of Directors (the "Board"), as urged by its staff, approved the review committee's recommendations with regard to the distribution of funds being allocated under the RFA, including the recommendation to reject NDF's application as ineligible to receive funding. No discussion was had concerning the relative materiality of NDF's failure to provide evidence of NLPI's ability to fund. The Board's action, however, strongly implies that it believed the defect was a nonwaivable material deviation, which is how, in this proceeding, FHFC currently characterizes the deficiency. The question of whether the Board clearly erred in determining that NDF's application was materially nonresponsive is made more complicated by the undisputed fact that, during the meeting on May 6 at which NDF's application was rejected, the Board voted to award funds being made available under a separate program to an applicant (Grove Pointe) whose application had the very same deficiency as NDF's. The material facts of that case, in brief, are that Grove Pointe applied under RFA 2016-104 (the "SAIL RFA") for State Apartment Incentive Loan funding. Grove Pointe was the only applicant. The SAIL RFA required documentation of a Non-Corporation lender's ability to finance, just as did the RFA in this case. Like NDF, Grove Pointe submitted a mortgage loan proposal from NLPI, but failed to provide the consortium's financial statements. The review committee accordingly declined to count the funds Grove Pointe expected to borrow from NLPI, thereby creating a funding shortfall which, in the committee's view, rendered Grove Pointe ineligible for an award. In short, Grove Pointe and NDF ended up in the same situation, for the same reason, after the respective review committees had completed their assigned tasks. At the Board meeting, however, the two similarly situated applicants' fortunes diverged, as staff recommended that the Board offer funding to Grove Pointe on the condition that, within 21 days after the meeting, Grove Pointe cure the deficiency in its application by submitting acceptable evidence of NLPI's ability to provide financing. The Board adopted this recommendation, tacitly waiving the irregularity in Grove Pointe's application (the "Grove Pointe Decision"). The rationale for the Grove Pointe Decision is not entirely clear. When a variance exists between the response to a competitive solicitation and the specifications of the request, the agency must, as a threshold matter, determine whether the variance is a "material deviation" or a "minor irregularity." This is because a material deviation cannot be waived; a response suffering from a material deviation is fatally flawed and must be rejected. If the agency determines, as a matter of ultimate fact, that the deviation is material, therefore, the inquiry is over. If, however, the agency determines that the deviation is not material, but rather is merely a minor irregularity, then it must make another decision, namely whether to waive the minor irregularity, which requires the exercise of discretion. In making the Grove Pointe Decision, the Board did not explicitly decide the threshold question, and even here, in this proceeding, FHFC has not plainly taken an unequivocal position as to whether, in its view, Grove Pointe's failure to provide NLPI's financial statements was a material deviation or a minor irregularity. Careful examination of the Grove Pointe Decision is necessary to assess the strength of NDF's position, which relies heavily upon that "precedent." That is, NDF argues that considerations of consistency and fairness (sometimes called administrative stare decisis) require FHFC to follow the Grove Pointe Decision, which NDF believes is on all fours, in determining NDF's substantial interests. Simply put, it is NDF's contention that FHFC, having approved Grove Pointe's identically defective application, must likewise approve NDF for funding. For its part, FHFC argues that the Grove Pointe Decision is distinguishable and hence inapposite. (Notably, FHFC does not suggest that the decision to fund Grove Pointe was incorrect and should be disregarded for that reason.) Because the parties disagree as to what the Board "held" in the other case, it is important to ascertain the reasoning behind the Grove Pointe Decision. The record shows that the Grove Pointe Decision was taken on three grounds——although one was arguably something of an afterthought, and the others are really two sides of the same coin. The interrelated reasons boil down to the fact that because Grove Pointe was the sole applicant, FHFC could fund Grove Pointe, despite its ineligibility, without having to deny any other applicant's request for funding. Grove Pointe's win, in other words, was not someone else's loss——not, at least, someone identifiable. The absence of other applicants led FHFC to conclude that awarding funding to Grove Pointe would not give the developer a "competitive advantage" over other applicants. Thus, one basis for the Grove Pointe Decision was the supposed lack of a competitive advantage. That there was more funding available than could be awarded to all the applicants——or to the one applicant, as it happened——also prompted FHFC to invoke the "Returned Allocation provision" in the SAIL RFA, which stated as follows: Funding that becomes available after the Board takes action on the Committee's recommendations, due to an Applicant withdrawing its Application, an Applicant declining its Invitation to enter credit underwriting, or an Applicant's inability to satisfy a requirement outlined in this RFA, will be distributed as approved by the Board. Putting aside whether this language actually applies under the circumstances facing FHFC at the time, the reasons for the agency's reliance on the Returned Allocation provision focused, again, on the fact that Grove Pointe was the only applicant, which meant that there was lots of leftover money to distribute, and no one to complain if Grove Pointe received funding, so FHFC might as well get the deal done with the applicant it had, notwithstanding Grove Pointe's apparent ineligibility. The no competitive advantage/unallocated balance grounds can be summed up as the "no harm, no foul" rationale, which, ultimately, provided the principal justification for the Grove Pointe Decision. Notice, however, that this rule applies equally to the waiver of any variance, whether a material deviation or a minor irregularity, for the determinative factor is not the significance of the variance, but rather on how its waiver actually——i.e., not in theory, but in fact——would affect competitors.1/ As mentioned, FHFC has never clearly articulated its determination regarding the materiality of the Grove Pointe application's deficiency, leaving open two possibilities: (a) FHFC believes it has the authority to waive a material deviation where doing so results in "no harm"; or (b) FHFC believes that a variance which, if waived, would result in "no harm" is, for that reason, a minor irregularity that, in the exercise of sound discretion, should be waived. Either of these, therefore, could be considered the rule of the Grove Pointe Decision. The third basis for funding Grove Pointe, which the Board considered but arguably did not view as essential, was FHFC's favorable experience with NLPI, whose ability to provide financing had been proven in past projects, and whose financial statements FHFC had reviewed within the preceding 17 months. FHFC, in other words, was already familiar with the fact of NLPI's fiscal health despite Grove Pointe and NDF's failure to provide evidence thereof. NDF interprets the Grove Pointe Decision as standing for the proposition that the failure to provide financial statements for NLPI is a minor irregularity that should be waived because FHFC knows from experience that NLPI is able to fund mortgage loans.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Housing Finance Corporation enter a final order (i) determining that NDF's failure to include with its application evidence of NLPI's ability to lend funds to NDF constitutes a minor irregularity and (ii) waiving the minor irregularity on the condition that NDF supply the missing information within 21 days after the entry of the final order; or, alternatively, stating the facts and circumstances upon which its discretionary decision not to waive the minor irregularity has been based, so that the outcome will not appear to be arbitrary or capricious, and also to enable a reviewing court to determine whether or not the agency's discretion was abused. DONE AND ENTERED this 18th day of July, 2016, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2016.
The Issue The issues in this case are twofold: (1) Did the Respondent properly adopt its bid methodology for processing VOCA grants and, if not, (2) did the Respondent demonstrate a suitable factual base for its non-rule policy.
Findings Of Fact The Federal Victim of Crimes Act ("VOCA"), 42 U.S.C., Sections 10601- 10605, authorizes the granting of federal funds to the individual states for the purpose of awarding grants to eligible subgrantees who provide direct assistance to victims of crime. The U.S. Department of Justice, Office of Victims of Crime, has published guidelines for the implementation of the program. Listed among the factors that a state should take into account when distributing VOCA awards are (1) the range of victim services needed throughout the state, (2) the track record of continuation programs, and (3) the extent to which other sources of funding are available for proposed programs. See, 54 Fed. Reg. 21499, 21503 (May 18, 1989)(Respondent's Exhibit The federal guidelines provide, inter alia, that the states which receive these monies have sole discretion as to which programs within the state shall be awarded subgrants, as long as the subgrantees meet the eligibility criteria of VOCA and the guidelines. The Department of Labor and Employment Security, Division of Workers' Compensation, Bureau of Crimes Compensation and Victim Witness Services (the "Bureau") is the agency of the State of Florida responsible for administering the VOCA subgrant program. The Petitioner, Metro-Dade Department of Justice Assistance ("MDJA"), is a nonprofit organization based in Dade County, Florida, which is devoted to providing specialized psychological counseling and related services to victims of child sexual abuse and domestic violence in previously underserved populations; both priority areas under VOCA. Petitioner has been a VOCA grant recipient for the last four years. Petitioner's subject VOCA grant application for FY 1990-91 is the fifth consecutive year in which it has sought VOCA funds through Respondent. Petitioner is currently the only program in Dade County providing free specialized counseling to victims of child sexual abuse and domestic violence. The VOCA award Petitioner is seeking for FY 1990-91 would fund specialized counseling, outreach programs, intervention services, and other related services for between 450-550 victims of child sexual abuse and domestic violence in Dade County. Since the inception of the VOCA program, the Bureau has solicited applications from the State's victim services organizations by means of a request for bid process. The Bureau annually prepares and distributes a VOCA grant manual and application and awards subgrants on the basis of a scoring system set forth in the VOCA grant manual. On March 6, 1990, Respondent sent all prospective applicants, who had indicated by telephone or letter of intent to apply for FY 1990-1991 VOCA funding, a grant manual and application packet, including necessary forms, instructions and filing deadlines, with which to apply for FY 1990-1991 VOCA continuation funding and new and expanded funding. Included with these materials was a grant application timetable notifying respective applicants of deadlines for filing both a Notice of Intent to submit an application and the grant application itself. In addition, this timetable advised prospective applicants that an applicants' conference would be held in Tallahassee, Florida, on March 22, 1990, at 1:00 p.m., "to provide all applicants the opportunity to ask specific questions about the manual or the application process." Although MDJA did not attend the applicants' conference, at the applicants' conference, no one commented or questioned the requirement for filing a Notice of Intent or objected to the deadline for filing the same. The applicants' conference provided a question and answer session through which the Bureau was able to clarify most of the questions posed by the 50 or so potential applicants who attended the conference. No substantive changes to the VOCA grant manual or forms were recommended by the attendees and the Bureau did not make any substantive revisions to the VOCA grant application requirements; specifically, no comment or revisions were made on the Notice of Intent provisions. The manual required for the first time a Notice of Intent. The provisions relating to the Notice of Intent are found in three (3) separate parts of the VOCA grant manual and the application: Page 1 of the VOCA Grant Manual reads: Deadlines for the submission of Notices Intent to Submit a Proposal and Grant Application deadlines must be followed. Any Notices of Intent to Submit a Proposal and Grant Application deadlines must be followed. Any Notices of Intent to Submit a Proposal and Applications received after the deadline will not be considered for funding and will be returned to the applicant. Section II.A.2. of the VOCA Grant Manual provides: 2. Notice of Intent to Submit a Proposal. A Notice of Intent to Submit a Proposal must be submitted by all programs intending to file a proposal or they will not be permitted to submit an application. Applicants must complete the entire form provided in the, Application. The purpose of the Notice of Intent is to estimate the number of proposals and the total amount of money being requested. A Notice of Intent to Submit a Proposal does not constitute an application for VOCA funds. The Notice of Intent to: Submit a Proposal must be signed by the appropriate agency representative designated to sign on behalf of the agency. The original Notice and one copy must be submitted for it to be accepted by the department. The deadline for accepting a Notice of Intent to Submit a Proposal is March 29, 1990, at 2:00 p.m. Eastern Standard Time. Notices arriving after this time will not be considered for funding and will be returned. (FAXED COPIES ARE NOT ORIGINALS AND THEREFORE WILL NOT BE ACCEPTED.) Notice of Intent to Submit a Proposal for the 1990- 91 Victims of Crime Act Funding ("VOCA"), also provides: Notices are due no later than March 29, `1990 at 2:00 p.m. Eastern Standard Time. Any Notices received after this time and date will be returned to the applicant and will not be considered for funding. In late February or early March of 1991 Respondent received a telephone call from an employee of Petitioner notifying the Respondent that MDJA would be filing a grant application for FY 1990-91 VOCA funds and specifically requesting Respondent to send to MDJA a VOCA grant manual and related application forms. It is uncontroverted that MDJA, made this telephone call, that it was received by Respondent, and that pursuant thereto, Respondent sent the aforementioned VOCA packet and related forms to MDJA. The Executive Director of MDJA completed and signed the Notice of Intent form provided by Respondent on Friday, March 23, 1990. This form was sent certified mail to Respondent on Monday morning, March 26, 1990, via courier. Although dispatched from MDJA's office on March 26, 1990, for some inexplicable reason, the Notice of Intent was not postmarked and dispatched from the mail room until Wednesday afternoon, March 28, 1990, and was not received by the office of Respondent until 10:05 a.m. on Friday, March 30, 1990, approximately four business hours after the March 29, 1990, 2:00 p.m. deadline. It was postmarked March 28, 1990. On March 30, 1990, fearing that MDJA's Notice of Intent may have been delayed in the mail, the Bureau telephoned MDJA at approximately 9:00 a.m. to inquire if it had mailed the Notice of Intent form. MDJA then informed Respondent that its Notice of Intent had been sent on Monday, March 26 1990, and that such Notice should have been received by the Thursday deadline. Shortly thereafter, at 10:05 a.m., on March 30, 1990, MDJA's Notice of Intent did arrive at Respondent's office, via certified mail. MDJA filed its actual application for VOCA funding for FY 1990-91 prior to the April 12, 1990 for applications. It is not disputed that Respondent received oral notification from MDJA, prior to March 29, 1990, that MDJA would be filing an application for VOCA funding far FY 1990-91. It is not disputed that MDJA was a four-year continuation program. All of the information sought in the Notice of Intent form, including MDJA's name, contact person, address, telephone number, whether the applicant was a continuation program, and the 1990-91 amount sought (which is limited by what the MDJA received the previous year, plus 5%), was already in Respondent's possession prior to the March 29, 1990 filing deadline. It is uncontroverted that MDJA's Notice of Intent being received approximately four business hours after the deadline in no way inconvenienced Respondent or in any way impaired their ability to carry out their duties aid responsibilities. The Respondent, by letter dated April 3, 1990, advised MDJA that it was ineligible for funds in the 1990-91 grant year due to its failure to comply with the March 29, 1990 deadline. Notices of Intent to Submit a Proposal were submitted by 91 applicants. Two (2) of those Notices were received after the deadline (including MDJA's), and the Bureau advised both of them that they were ineligible for funding. One such ineligible applicant, I-Care, also filed a protest. A hearing was held on March 1, 1990, before a Hearing Officer of the Division of Administrative Hearings. Said Hearing Officer issued a Recommended Order on May 11, 1990 recommending that the Department enter a Final Order denying I-Care's petition.
The Issue Whether Respondent's Notice Of Intent To Award RFP-DOT-91/92-1005 to OHM Remediation Services Corporation is fraudulent, arbitrary, illegal, or dishonest.
Findings Of Fact By RFP-DOT-91/92-1005, the Florida Department of Transportation (DOT), Respondent, sought bid responses to provide equipment and services on an as needed basis to assess and/or clean up contaminants in rights-of-way to be acquired for road construction projects. Principal contaminants envisioned were those resulting from abandoned and leaking petroleum tanks or other business whose waste disposal threatened ground water in the area with contamination. The Requests For Proposals (RFP) provided for technical proposals and price proposals to be submitted for evaluation. The technical evaluation is the process of reviewing the proposer's Executive Summary Management Plan and Technical Plans for understanding the project. The price evaluation is the process of examining a prospective price without evaluation of the separate cost elements and proposed profit of the potential provider (Exhibit 3). The only issue here is the price proposal. In evaluating the Price Proposals, the RFP (Exhibit 3, Section 1.16.2) provided: The Department will determine a "typical project" prior to receipt of proposals. The District Procurement Office will compute costs for the "typical project" based on fees submitted by each proposer. All responsive bid proposals will be scored in relation to the lowest computed cost for the "typical project" using the following formula: (Lowest "Typical Project" cost - by subject "Typical Project" cost) x 40 = Awarded points for price proposal. The "typical project" was prepared by Raymond Nottingham, District I Contamination Coordinator, prior to the proposals being received and opened. Although the exact content of the typical project was not included in the RFP, bidders were informed of the typical type of project they could expect to encounter under the contract during the prebid meeting and in the RFP. The price evaluation was done by matching up the prices offered by the bidders in their price proposals to the items and tasks listed in the DOT's typical project to come up with the bidders typical project cost. This is the first RFP for remediation services offered by DOT District I. In preparing this RFP, the administrative section of the statewide RFP earlier consummated by the department was utilized; however, for more specific pricing bids the price part of the RFP was largely adopted from a similar RFP prepared by DOT District VI in Miami, Florida. As a result of mixing the two RFPs, a slight possibility existed that some proposers would follow the more general descriptions allowed in the earlier statewide RFP rather than the more specific provisions of the District VI RFP. However, a careful reading of the instant RFP would have eliminated any such confusion. Section 1.17.3 of the RFP provided in pertinent part: The Price Proposal information is to be submitted in a separate sealed package marked "Price Proposal Number RFP-DOT- 91/92-1005.(sic) The Price Proposal information shall be submitted on the forms provided in the Request for Proposal or on Proposers' own forms provided the Department format is followed. The Department reserves the right to reject any proposal that is not submitted in this format. The format included in the RFP was broken down into the following classifications: Labor Classification, Heavy Equipment, Mobile Equipment, Water Equipment, Personal Protective Clothing and Equipment, Drilling, Field Analytical Equipment, Treatment Equipment, and Other. The format further indicated one fee for each item listed under the classification at an hourly rate and overtime hourly rate. The proposal submitted by Petitioner included prices for equipment offered under the following classifications: Trucks and Trailers, Personal Protective Equipment, On-Site Recovery and Treatment, Sampling and Testing Equipment, Construction and Excavation Equipment, Miscellaneous Equipment, Rental Equipment, and Expendables. The proposal submitted by Petitioner contained no price for an air stripper or crane. It lists three prices for three sizes of carbon cells, three prices for three sizes of submersible pumps, three prices for three sizes of pools, two prices for drums, three prices for pool liners, separate prices for hood and suit of protective clothing, and three prices for boots. Petitioner was the only proposer of the 17 submitting proposals that failed to submit a price for an air stripper and crane. Several proposers omitted prices for items on which the other proposers submitted a price. In attempting to keep all bidders in the process by not declaring their bid nonresponsive while being fair to all other proposers, the Department adopted different procedures for different items. Generally, when a proposers omitted a price for a particular piece of equipment, the Department inserted the highest price received from other proposers for that piece of equipment in the proposal in calculating the total bid. On other occasions where the proposer submitted more than one price and did not select the price himself, the Department averaged the prices submitted and used that figure to calculate the price for that item. Where there was obviously a lot of confusion and a wide disparity in the proposals as in establishing well point systems and quality control blanks, the Department omitted those items in calculating the prices. In totaling the bids received, only the daily rate offered was used because the RFP specified only a daily rate, and all proposers did not submit weekly and monthly rates. Part of the confusion stemmed from other parts of the RFP which did indicate that weekly and monthly rates were desired. However, since the other section did not require the submission of weekly and hourly rates, the Department in evaluating the bids did not use those rates in determining the bid price. Petitioner contends that the air stripper and crane to be used on a project can vary widely, and it is not practicable to submit a proposal for a fixed price for such an item. However, it is significant that Petitioner was the only proposer that failed to submit a price for these items. Intervenor utilized the bid forms provided with the RFP and, although Intervenor in its supplementary material listed varying prices for different sizes of the same item or different materials, it entered one price, usually the lowest, on the bid form for calculating its bid. Petitioner contends that had Respondent brought forth the lowest price for items Petitioner submitted several prices on, and disallowed the prices on air strippers and cranes, then Petitioner's bid would have been lower than the Intervenor's bid. However, in the final ranking of proposers, Petitioner stood fifth. No evidence was presented that had Petitioner's contentions been granted and applied to all proposers that Petitioner's proposal would have been lower than the other bidders whose proposals were initially deemed superior to Petitioner's proposal. By failing to follow the format contained in the RFP Petitioner's proposal was not responsive.
Recommendation It is recommended that a Final Order be entered dismissing Westinghouse Remediation Services, Inc. protest to the award of RFP-DOT-91/92-1005 and OHM Remediation Services Corporation. DONE and ORDERED this 12th day of May, 1992, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1992. APPENDIX Proposed findings submitted by Respondent and Intervenor are accepted. Those not included in Hearing Officer's findings were deemed to be unnecessary to the conclusions reached. Proposed findings submitted by Petitioner are accepted except as noted below. Those not noted below or included in Hearing Officer's findings were deemed to be unnecessary to the conclusions reached. 8. Rejected that Petitioner's price proposal followed FDOT format. 22. Rejected. 28. Rejected. Additional reasons for rejection was the wide fluctuation in prices indicating the bidders did not understand the scope of the item. 37. Rejected. Although an inappropriate substitution was selected, the price for the item was below the maximum price offered for a crane. Accordingly, Petitioner benefited from the decision to substitute an item rather than use the highest price offered. 39. While it is true that OHM and Petitioner were the only bidder submitting weekly and monthly rates the reason for FDOT using only daily rates. See HO #13. 43. Rejected. 45. Rejected. See HO #13. 47. Rejected. Table 1. Rejected. This evidence was not submitted at the hearing. COPIES FURNISHED: Neal Smith, District Manager Westinghouse Remediation Services, Inc. 675 Park North Boulevard Building F, Suite 100 Clarkston, GA 30021 Susan P. Stephens, Esquire Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Vasilis C. Katsafanas, Esquire Post Office Box 1873 Orlando, FL 32802 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building 562 Suwannee Street Tallahassee, FL 32399-0458
Conclusions This cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto as Exhibit A. On November 19, 2008, Respondent Monroe County (County) adopted an amendment to its comprehensive plan by Ordinance No. 029-2008 (Amendment). The Department reviewed the Amendment, determined that it did not meet the criteria for compliance set forth in Section 163.3184(1) (b), Florida Statutes, and caused to be published a Notice of Intent to find the Amendment not ‘in compliance.” The Department then instituted this administrative proceeding against the County pursuant to Section 163.3184(10), Florida Statutes. On May 19, 2010, the County repealed the Amendment by Ordinance No. 016-2010. By virtue of this rescission, the FINAL ORDER No. DCA10-GM-121 instant controversy has been rendered moot, and this proceeding must be dismissed. See Department of Highway Safety & Motor Vehicles v. Heredia, 520 So. 2d 61 (Fla. 3d DCA 1988) (dismissing case on appeal as moot where suspension of driver’s license was rescinded by the Department).
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. 3 of 5 FINAL ORDER No. DCA10-GM-121 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this day of , 2010. Paula Ford Agency Clerk By U.S. Mail The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Robert B. Shillinger, Jr., Esquire Monroe County Attorney’s Office Post Office Box 1026 Key West, Florida 33041-1026 Derek V. Howard, Esquire Monroe County Attorney’s Office Post Office Box 1026 Key West, Florida 33041-1026 Christine Hurley, AICP Growth Management Director Monroe County 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 4 of 5 By Hand Delivery Richard E. Shine Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100 FINAL ORDER No. DCA10-GM-121
The Issue The issues to be considered in the course of this Recommended Order concern the question of whether Baxter's Asphalt & Concrete, Inc. or White Construction Company, Inc. should be accepted as a successful bidder on State Project No. 53050-3514, Jackson County, Florida, as advertised by the State of Florida, Department of Transportation.
Findings Of Fact The State of Florida, Department of Transportation, (DOT), advertised for bids on State Project No. 53050-3514, Jackson County, Florida. This was a project in which DOT had determined that 10 percent of the funding within the State Department of Transportation Trust Fund, as allotted for the project, would be devoted to economically disadvantaged individuals, also referred to as Disadvantaged Business Enterprises (DBE). This decision was in keeping with Section 339.081, Florida Statutes. Consequently, interested bidders were called upon to submit bids reflecting a DBE participation of a minimum of 10 percent of the bid submitted. Baxter's Asphalt & Concrete, Inc. (Baxter) and White Construction Company, Inc. (White) responded to the bid opportunity. The bids were opened on July 25, 1984, and Baxter's bid was the apparent low bid. The bid amount was $882,641.25. White was the second low bidder offering a bid of $928,353. Both bids were within the DOT estimate of construction costs. When the bids were reviewed, Baxter's bid was rejected by DOT based upon the belief that the bid failed to meet the DBE 10 percent requirement or to offer explanation of good faith attempts by Baxter to comply with the DBE contract requirement amount. See Section 14-78.03(2)(b)4., Florida Administrative Code. No other claim of error was made by DOT on the subject of the acceptability of the Baxter bid. The White bid is conforming. In preparing the bid, bidders are required to use DBE Utilization Form No. 1 to reflect the amount of DBE participation as a percentage of the overall bid estimate. In submitting its form as part of its bid blank, Baxter indicated that the total project cost was $884,000, and indicated that Ozark Striping, a DBE subcontractor, would be given $20,000 of that work or 3 percent, and that Glenn Powell, DBE subcontractor, would be afforded 7 percent of the total contract in the amount of $55,000. The total percentage according to Baxter is 10 percent, thus meeting the required DBE participation. This form is found as part of the joint Exhibit No. 1 offered by the parties. In fact, the Ozark Striping participation was 2.26 percent, and the Glenn Powell participation was 6.22 percent, for a total of 8.48 percent of the estimate reflected in the Form No. 1. Contrasted against the actual estimate of $882,641.25, these projections constitute 8.49 percent of that estimate. Thus, they are less than the 10 percent required. Given the fact that this DBE projection is less than the 10 percent, and in the absence of any attempt to offer a good faith explanation why Baxter failed to comply with the requirement, the bid was rejected for this irregularity. The Contract Awards Committee of DOT, when confronted with the irregularity of the Baxter bid, then determined to recommend the rejection of all bids. This was in keeping with the fact that the difference between the unsuccessful apparent low bid, with irregularities, and the second low bid exceeded 1 percent of the contract amount. At the time of this decision to reject all bids, DOT felt that the difference would justify re-advertising the bids. That policy position had been abandoned at the point of final hearing in this cause, wherein DOT expressed the opinion that it would be better served to accept the bid of White, and not re-advertise, again for cost reasons. In the face of the initial action to reject all bids and in accordance with Section 120.53, Florida Statutes, Baxter and White appealed that decision and by that appeal requested recognition as a successful bidder. This led to the present Section 120.57(1), Florida Statutes hearing. Baxter has never attempted to offer a good faith explanation of its non-compliance. It chooses to proceed on the theory that the mistake in computation can be rectified by allowing Baxter to submit a supplemental Form No. 1, bringing its total above the DBE requirement. In its contention, Baxter indicates that Glenn Powell could have provided $126,000 of the DBE goal, which is in excess of the 10 percent requirement. Baxter also alludes to the fact that it had contacted other DBE enterprises, such as Oglesby and Hogg, Michael Grassing, and J.E. Hill. All told, Baxter indicates that if given the opportunity, it would allow $146,000 of DBE participation to include $126,000 by Glenn Powell, and $20,000 by Ozark. This comment is suspect, given the lack of compliance in the initial bid response, and the realization that within that bid response on the item related to Glenn Powell, the original amount of work attributed to Glenn Powell was $100,000, and was struck through in favor of the $55,000, leaving a fair inference that Baxter was attempting to meet the DBE goal with a projection as close to the 10 percent as could be achieved. They fell short because in adding the $20,000 for Ozark, and the $55,000 for Glenn Powell, the addition in the Form No. 1 showed $85,000, which is more than 10 percent of the $884,000 shown on the form, when in fact the two amounts were $75,000, and less than the 10 percent required. Baxter characterizes its mistake in computation as a technical error, which can be remedied without harm to the bid process. The Baxter position must be examined in the context of action by DOT relating to compliance with DBE requirements. Prior to June 1984, a time before the subject July 25, 1984 bid opening, bidders had been allowed to amend the Form No. 1 to show compliance with the DBE requirements or demonstrate good faith efforts of compliance. That amendment as to compliance through listing of the DBE subcontractors or submission of good faith effort documentation had to be offered within 10 days per former Section 14-78.03, Florida Administrative Code. Beginning with the June 1984 bid-lettings, all documentation had to be submitted with the bid, reflecting compliance or describing good faith efforts at compliance per Section 14-78.03(2)(b), Florida Administrative Code, effective May 1984. This change was brought about to prevent the apparent low bidder, as indicated at the point of bid-letting, from shopping the quotations by the DBE's found in its original quote against other quotes from DBE's not listed in the bid documents initially submitted, and by amendment to the DBE statement prejudicing the former DBE group. The change was also made to avoid the possibility that the apparent low bidder could evade his bid by rendering it non-conforming, in the sense of refusing to submit the required documentation of compliance with DBE requirements or to the offer of a good faith explanation of non-compliance after the bid-letting. The change of May 1984, removed the possibility of bid shopping and bid avoidance. Both versions of Section 14-78.03, Florida Administrative Code, pre and post May 1984, indicate that failure to satisfy the DBE requirements or offer a showing of a good faith attempt at compliance, would result in the contractor's bid being deemed non-responsive, and cause its rejection. Baxter has been able to comply with the DBE goals of DOT in its bidding prior to the present controversy.
The Issue Whether the Respondent, the Gadsden County School Board (Respondent or Board), acted illegally, arbitrarily, fraudulently, or dishonestly in rejecting all proposals for telecommunications services as set forth in its E-Rate application for the school year 2003-2004 (the sixth year).
Findings Of Fact The Petitioner is a municipal corporation operating under authority of law. NetQuincy is the utility/entity through which the City sought to provide "information technology resources" as requested by the Board's RFP. NetQuincy is capable of providing internet access and related telecommunication services. "T1" is a specific type of information technology that identifies internet access. It is undisputed that the Petitioner sought to provide such service in connection with the RFP at issue. On October 9, 2002, the Respondent posted a Form 470 requesting various telecommunication services to be provided during the 2003-2004 school year (the sixth year). T1 service was among the requested technological services identified. Form 470 is required pursuant to E-rate guidelines. In connection with the Form 470, the Board also posted the RFP that is the subject of the instant dispute. The original RFP was amended and reposted on October 25, 2002. T1 service for all eligible school sites was specifically noted on the revised RFP. A vendor's meeting regarding the revised RFP was conducted on October 31, 2002. The Petitioner's representative attended the vendor's meeting. On December 2, 2002, three vendors timely submitted responses to the RFP: the Petitioner, the Intervenor, and Trillion (not a party herein). None of the submittals was evaluated. Instead, the Respondent posted a notice on December 6, 2002, that rejected all responses. More specifically, the notice provided in connection with the service in dispute in this cause: **We would like to thank all those who submitted quotes for this section of our RFP, however, during the 28 day period of the bidding process, the School District learned that the Florida Learning Alliance will be providing this service for us. Since this means zero costs for the School District, we will NOT be filling [sic] for E-rate discounts for this service for the 2003-2004 (Year Six) time period. The rejection notice did not contain the language set forth in Section 120.57(3), Florida Statutes. Nevertheless, the City filed a Notice of Intent to Protest the decision to reject all responses. The timeliness of the Notice of Intent to Protest or the Petition for Administrative Hearing has not been challenged. On December 16, 2002, the Florida Learning Alliance (FLA) filed an RFP requesting vendors for the same services identified in the Respondent's revised request. That is, T1 service for all eligible school sites for E-rate (the sixth year). The deadline for submittals to FLA's RFP was January 16, 2003. No decision on FLA's RFP was rendered as the instant action was initiated on December 23, 2002. The parties contend that by operation of law the bid solicitation process for both RFPs (the Board's and FLA's) was suspended. Thus it is uncertain whether the Respondent will be able to participate in the E-rate program for the sixth year. The E-rate program has existed since the 1998-1999 school year. It provides funding to enable schools to obtain internet access and services. The Schools and Libraries Division (SLD) administers the program and offers funding to eligible school districts computed as a "discount." The level of discount is determined by the level of poverty within the population to be served. The Respondent has participated in the E-rate program for several years. Depending on the school to be served, the Respondent's discount is 86 or 87 percent. The remaining amount, the "undiscounted portion" is not paid by the SLD. Participants in the E-rate program are entitled to apply in two ways: individually (as the Respondent has done) or through a consortium. In this case, the FLA is an alliance through which the Respondent may receive E-rate services. FLA is comprised of three educational consortia covering 34 small rural school districts. The Panhandle Area Educational Consortium (PAEC) encompasses the geographical area within which the Respondent is located. As a member of PAEC, the Respondent is entitled to participate with FLA. By virtue of FLA's Technology Innovation Challenge Grant rural schools may receive T1 lines such as requested herein. More important, however, is FLA's ability to provide the undiscounted portion of the E-rate. That means FLA will provide the 13 or 14 percent not covered by the SLD. In order to benefit in this manner, the Form 470 for the services requested must be filed through the FLA. In this case, the Respondent confirmed this potential benefit of receiving the services at no cost only after its Form 470 and RFP had been posted. When they elected to withdraw their own RFP (to allow FLA to pursue the matter in their behalf) the instant protest followed. The Petitioner did file a response to FLA's RFP in order to be considered for the sixth year E-rate. The issue related to the sixth year is complicated by the fact that unbeknownst to the Respondent FLA acted on behalf of the Board for Year 5 T1 connectivity. As to Year 5, when no vendor replied to the FLA's RFP for T1 service, the Intervenor was selected as the "carrier of last resort." No contract was required or signed in connection with Year 5. The Intervenor was selected for Year 5 because TDS provided service in the areas designated for T1 service E-rate Year 5. That is how it was deemed "carrier of last resort." Other vendors provided services in other areas where they were similarly deemed the "carrier of last resort." In fact it was not until October 2002 that the Year 5 funding was made available. During the discussions over the Year 5 services (and with the deadline for filing the application for the sixth year fast approaching) Respondent filed Form 470 without knowing how or if FLA would participate in the sixth year process. When it later confirmed FLA would be available to administer the sixth year E-rate, the Respondent elected to abandon its revised RFP related to T1 service (thereby hoping to save the 13 or 14 percent not covered by the SLD funding). The revised RFP contained the following information: For Year 6 (July 1, 2003-June 30, 2004), the school district is planning to seek the services listed below. Any company that desires to submit a proposal for these services must meet the following criteria: * * * Be willing to enter into an agreement contingent upon E-Rate funding award. In other words, if the District is not successful in obtaining E-Rate funding on the particular service, the agreement will become invalid. Be willing to accept payment of only the non-discounted portion of the service from the school district and bill the SLD for the remaining portion. (this averages to be 86%) When a vendor is selected to provide E-rate services, SLD requires Form 471 to identify the provider and to complete the requisition started by the process (Form 470). The deadline for filing a Form 471 pertinent to this case (the sixth year) was February 6, 2003. Neither the Respondent nor FLA filed a Form 471 for the T1 services at issue. When the deadline for filing Form 471 passes, the opportunity to receive E-rate funding closes. As of the time of hearing in this cause the possibility of the Respondent receiving E-rate funding was slim to none. No entity filed a Form 471 for T1 services for the sixth year. The Respondent has not selected any vendor to provide E-rate services for the sixth year. The Respondent did not direct FLA to submit the Form 471 with the Intervenor as the provider for T1 during the E-rate sixth year. FLA has not submitted such form. The Respondent did not reject all bids for the purpose of avoiding the procurement process. The Respondent does not have a contract with the Intervenor for T1 services for E-rate, Year 6. The Respondent has not attempted to circumvent policies, rules, laws or statutes governing competitive procurement. The T1 services for the sixth year E-rate are "information technology resources" as defined in Section 282.303(13), Florida Statutes. As such they are not subject to any provision requiring competitive procurement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Amended Formal Notice of Protest/Petition for Administrative Hearing be dismissed. DONE AND ENTERED this 1st day of May, 2003, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2003. COPIES FURNISHED: Sterling Dupont, Superintendent Gadsden County School Board 35 Martin Luther King Boulevard Quincy, Florida 32351-4400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Stephen C. Emmanuel, Esquire Ausley & McMullen 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302-0391 Roosevelt Randolph, Esquire Knowles, Marks & Randolph, P.A. 215 South Monroe Street, Suite 130 Tallahassee, Florida 32301 William E. Williams, Esquire Huey, Guilday, Tucker, Schwartz, & Williams, P. A. 1983 Centre Pointe Boulevard Suite 200 Post Office Box 12500 Tallahassee, Florida 32308
Findings Of Fact Petitioner is a Florida corporation located in Leon County, Florida. It prepares applications for CDBG funding for cities and counties. If those cities and counties are awarded grant funds, Petitioner administers the projects for the cities and counties. Having investigated the possibility for obtaining a grant to revitalize a water/sewer system in a neighborhood in Okaloosa County, and having rejected that project as infeasible, Petitioner made application for Okaloosa County for the project which is at issue here. The application was submitted to the Respondent on November 29, 1990, for grant award in the small cities CDBG housing category. The application stated that Okaloosa County had adopted a fair housing ordinance prior to the submission deadline date for applications that was consistent with state and federal housing laws. That feature in the application allowed Okaloosa County to receive 35 points in the scoring system in competition with other grant applicants. That 35 point score for the fair housing ordinance was crucial to the applicant's success in obtaining the grant funds. The record does not reveal that the Petitioner had any responsibility to assure itself that Okaloosa County had enacted a fair housing ordinance prior to the application submission deadline, although Petitioner does render advice to local governments concerning adoption of ordinances and other necessary policies in support of CDBG programs. Petitioner also estimates costs of projects, participates in public hearings to get comments from the public concerning the projects that Petitioner is involved with in connection with CDBG grants. The support role by Petitioner includes preparing needed documentation and advising local governments about associated activities within the grant programs. Those grants are in association with the United States Housing and Urban Development Agency and are known as Block Grants. The grants are to provide funding for the housing category at issue here, as well as neighborhood revitalization, commercial revitalization and economic development program categories. Here use of the term "CDBG" refers to the Florida Small Cities Community Development Block Grant Program. Respondent administers that program consistent with federal guidelines. In addition Respondent establishes applicant eligibility, application criteria, application procedures, a competitive scoring system for comparing applicants and specific program requirements for the various categories within the CDBG program, together with grant administration requirements for the various CDBG grant categories. On the same day that Okaloosa County, through Petitioner, submitted its application for CDBG funding in the housing category, it established procurement policies and procedures for CDBG programs and projects. That document pertains to the purchase or procurement of personal property, supplies, equipment and services, to be accomplished in accordance with applicable state and federal law. That document established a requirement for records keeping that basically indicated that appropriate arrangements would be made for generation and maintenance of all files, records and documentation that would be needed to evidence compliance with requirements delineated in the document itself. The document set forth procurement standards, procurement administration, procurement classification, solicitation and contract awards pursuant to invitations to bid and requests for proposals. The document spoke to the need for compliance with affirmative action/equal opportunity goals, contracts related to the provision of housing and the means to resolve protests over contracting procedures. The document was not designed to address the arrangements between Petitioner and Okaloosa County for administrative services provided to the county associated with the CDBG grant at issue. The agreement between Okaloosa County and the Petitioner by which Petitioner would provide administrative services was as set forth in a November 19, 1990 contract between those parties. Its effective date was contingent upon Okaloosa County receiving the applied for CDBG funding under an award agreement with Respondent. Subject to that award Petitioner agreed to provide services consistent with Section III to the contract with Okaloosa County which stated: III. Scope of Services Intent of the Contract CRA agrees, under the terms and conditions of this Contract and the applicable federal, state and local laws and regulations, to undertake, perform, and complete the necessary Administration Services required to implement and complete the County's CDBG project in compliance with applicable laws and regulations. Scope of Services The scope of services relevant to the CDBG project is included as Attachment "C" to this agreement. If the Agreement between the County and the Agency is amended, the scope of work for the project shall be amended to be consistent with the Agreement. The amount of consideration and the method of payment was as described in Section IV which stated: Consideration and Method of Payment Amount of Consideration CRA shall be paid by the County for Administrative Services the sum specified in the Scope of Work and Payment, attachment "C". Method of Payment CRA will submit a monthly (or other appropriate periodic) invoice specifying accomplishments toward meeting the Administration Services as specified in the Work Order. The invoice shall be submitted to the County for the County's review and approval. Payment will be issued within two days of approval of the invoice, subject to availability of project funds. Any intent to modify the terms of the contract between Okaloosa County and Petitioner had to comply with Section VII which stated: Modification of Contract Modifications of the provisions of this Contract shall only be valid when they have been reduced to writing, duly signed by the parties hereto, and attached top the original of this Contract. CRA hereby agrees to amend the Work Order pertaining to each project to remain consistent with the County/Agency Agreement if said Agreement is amended. The amount of compensation to be paid to CRA will not be amended without mutual agreement of the County and CRA, formally executed in writing, subject to availability of funds from the Agency. The fee and payment schedule between Okaloosa County and Petitioner was set forth in attachment "C". It stated: Fee and Payment Schedule For Administrative Services, the County will pay CRA the sum of 15 percent of the grant award. No more than $5,000 shall be obligated by the County for CRA's services under Phase I. Upon the Department's Release of Funds, Phase II shall be initiated by CRA and the County. The fee amount shall be issued by the County to CRA in 24 equal monthly payments. If the project is completed before the 24 month grant period expires, the balance of the administrative fee will be paid to Clark, Roumelis and Associates, Inc., by the tenth calendar day of the month after completion and submission of the close-out report to DCA. Okaloosa County obtained the CDBG grant funding which it applied for and entered into an award agreement with Respondent as executed on June 28, 1991. The grant was subject to Sections 290.041 through 290.049, Florida Statutes, as amended; Public Law 93-383, as amended; 24 C.F.R. Part 570; Chapter 9B-43, Florida Administrative Code; OMB Circulars and 25 C.F.R., Part 85. The agreement between Okaloosa County and Respondent was for a period of 24 months after signature unless terminated earlier in accordance with Clause (14). Clause (14) dealt with suspension or termination and it stated: SUSPENSION OR TERMINATION. The Department reserves the right to suspend payments to a Recipient when the reports required in Section (9) of this Agreement are delinquent. The Department may terminate this Agreement for cause upon such written notice as is reasonable under the circumstances. Cause shall include, but not be limited to, misuse of funds; fraud; lack of compliance with applicable rules, laws and regulations; failure to perform in a timely manner; and refusal by the Recipient to permit public access to any document, paper, letter, or other material subject to disclosure under Chapter 119, Fla. Stat. as amended. Suspension or termination is an appealable action under Chapter 120, Fla. Stat. as amended. Notification of suspension or termination shall include notice of appeal rights and time frames. The Department reserves the right to exercise corrective remedial actions including, but not limited to, requesting additional information from the Recipient to determine the reasons for, or extent of non-compliance or lack of performance; issuing a written warning advising that the Agreement may be suspended or terminated if the situation is not remedied; advising the Recipient to suspend, discontinue or not incur costs for activities in question; or requiring the Recipient to reimburse the Department for the amount of costs. The Recipient shall return grant funds to the Department if found in noncompliance with laws, rules, regulations governing the use of CDBG funds or this Agreement. If at any time after the effective date of this Agreement, the Department determines that an activity to be funded is not eligible pursuant to 24 C.F.R. Part 570 or any subsequent federal regulation which supersedes it, the Department may unilaterally amend this Agreement to delete the ineligible activity and deobligate any unencumbered funds attributable to the ineligible activity. The funding for the grant was in an amount not to exceed $650,000 for Respondent's share subject to the availability of federal funds to support that amount. Requests for disbursement of funds were to be made in accordance with Clause (4)(d) to the agreement which stated: Each request for funds shall be for an amount of not less than $5,000 unless it is the final request for funds and shall be on a form approved by the Department and shall be certified by an agent of the Department and shall be certified by an agent of the Recipient who has been identified as having signatory power on the signature form received by the Department. The Recipient shall immediately notify the Department in writing of any change in agents. The reporting requirements of Okaloosa County under the terms of the agreement were as set forth in Clause (10) which stated in pertinent part: (a) At a minimum, the Recipient shall provide the Department with quarterly reports, and with a close-out report, on forms provided by the Department. If program income is produced, a semi-annual program income report shall be provided. * * * (c) The close-out report is due 45 days after termination of this Agreement or upon completion of the activities contained in this Agreement. Under the terms of the agreement Respondent was required to make periodic review of the performance of Okaloosa County in completing the program contemplated by the CDBG grant. Clause (13) to the agreement sets forth Okaloosa County's liability in its dealings with other entities, to include Petitioner and holds Respondent harmless against claims by those third parties that arise from performance of the work under the terms of the agreement. The validity of the agreement between Okaloosa County and Respondent was contingent upon the truth and accuracy of information in the application, as required by Clause (18) (b) to the agreement. In the event that the application was not found to be truthful and accurate, Respondent upon 30 days written notice to Okaloosa County could cause the termination of the agreement and the release of the Respondent from obligations to Okaloosa County. Should Okaloosa County fail to honor its agreement with Respondent, Petitioner in its obligation to Okaloosa County could suspend or terminate services which were affected by the breach of the agreement between Okaloosa County and Respondent. This was in accordance Section VIII (D) to the contract between Okaloosa County and Petitioner. Section VIII (D) stated: If the County shall fail to fulfill in a timely manner its obligations under this Contract or its Agreement with the Agency, CRA may, at its option and without liability, suspend afforded services until such time the County remedies the breach. CRA may also, without liability, terminate the affected portion of this Contract for breach within 10 days of giving written notice to the County of such termination and the reason(s) therefore. Neither of these options shall operate to deprive CRA of entitlement to remuneration for services rendered in accordance with this Contract. As Grant Administrator Petitioner was entitled to $97,500 should the full $650,000 grant funding be disbursed. If the full amount was disbursed over the 24-month life of the grant then Petitioner would receive $4,062.50 for each monthly installment. Commencing September 12, 1991, and ending on May 5, 1992, Petitioner submitted monthly invoices for reimbursement of costs associated with administrative services. Those invoices in the total amount of $40,625.00 were honored by Respondent. This approximated the monthly disbursement contemplated by the agreement between Petitioner and Okaloosa County. The arrangement was one in which the invoices had been approved by Okaloosa County and provided to the Respondent for reimbursement through Requests for Funds. The invoices described were for administrative services provided through April, 1992. The overall reimbursement in the project through Requests for Funds, to include the January 7, 1992 period, was $208,816.00. Those cost reimbursements pertain to housing rehabilitation, temporary relocation and administration. That overall amount also reflected the circumstance on May 13, 1992. On April 23, 1992, Judith J. Foxworth, a grants administrator for Petitioner and Robert J. Rase, an employee for the Respondent, were performing a monitoring visit concerning the grant program at issue. At that time Ms. Foxworth had been assigned as administrator to the Okaloosa County grant program. The purpose of the monitoring visit was to insure program compliance with requirements of state and federal law. Janice A. Mack attended the monitoring visit as representative for Okaloosa County. During the monitoring visit Mr. Rase raised the question of whether the fair housing ordinance that has been referred to before had been passed on November 20, 1990, which would have indicated that the fair housing ordinance was in effect at the time the application was made for grant funding. To assure himself concerning this topic Mr. Rase asked Okaloosa County to provide the minutes of the meeting at which the fair housing ordinance is said to have been passed. While the passage of a fair housing ordinance had been discussed, as noted in the November 20, 1990 minutes, the ordinance was not shown to have been passed on that date. With this revelation through the minutes of the meeting, Ms. Foxworth became aware of this fact as did Mr. Rase. Someone in this conversation between the representatives of the Petitioner, Respondent and Okaloosa County suggested the possibility that tapes of the November 20, 1990 meeting might reveal the passage of the fair housing ordinance and the possibility that it was an oversight that the passage of the fair housing ordinance had not been noted in the minutes, given the busy agenda being considered by the Okaloosa County Board of County Commissioners on that date. Ms. Mack also referred Foxworth and Rase to Bob McQuire, a deputy clerk for Okaloosa County, to see if McQuire had some recollection of the passage of the fair housing ordinance on November 20, 1990. Mr. McQuire was unable to assist in the inquiry. Some other discussion was held with the clerk to the Board of County Commissioners about the possible transcription of tapes associated with the November 20, 1990 meeting. Ms. Mack indicated that they could possibly transcribe the tapes and listen to them; however, it was indicated that the county had some priority items to attend to and it probably would be several days or even a week before these arrangements could be made. No indication was given in the present record that tapes of the meeting of November 20, 1990 were prepared for consideration by the Petitioner or Respondent beyond April 23, 1992 or what the tapes of the meeting of November 20, 1990 may have revealed concerning the passage of the fair housing ordinance. However, based upon the record in this case, it has been established that the fair housing ordinance was passed upon a date subsequent to the time of the application for grant funding. This caused Respondent to revise the scores received by Okaloosa County. As a consequence Okaloosa County's application dropped below the fundable range in that inadequate points were received to allow the project to be funded. After April 23, 1993, neither Ms. Foxworth nor any other person affiliated with Petitioner took action to confirm that the fair housing ordinance had been passed on November 20, 1990. By contrast Respondent wrote to the Okaloosa County chairperson on May 20, 1992. The correspondence mentioned that Respondent had reviewed information received from the Deputy Clerk of Okaloosa County in response to a request to verify information in the application for funding. That review by Respondent's staff revealed that the fair housing ordinance had not been adopted until January 15, 1991, in a setting in which the deadline for submission of applications was November 29, 1990. As a consequence the 35 points were deducted from the application reducing the score from 824.18 to 789.18, hence the Okaloosa County application was outside the fundable range. The May 20, 1992 correspondence to the chairperson in Okaloosa County reminded the county that the Respondent believed that there had been a violation of Section 290.0475(7), Florida Statutes, which would allow rejection of the application based upon a misrepresentation in the application. Respondent was persuaded that the failure to pass a fair housing ordinance until January 15, 1991, in a setting in which Okaloosa County had reported the date of passage as November 20, 1990, specifically on March 1, 1991, in response to a completeness letter requested by Respondent on February 22, 1991, evidenced the misrepresentation by Okaloosa County. As a consequence, through the May 20, 1992 correspondence, Okaloosa County was given the following instructions by Respondent concerning the future of the CDBG award agreement: Based upon these findings, the Department is hereby providing the County with notice, pursuant to Section (18)(b) of your grant agreement, that the award agreement will be terminated in thirty (30) days from receipt of this letter. The validity of the award agreement was subject to the truth and accuracy of all the information, representations, and materials submitted or provided by the County in the application, in any subsequent submission, or response to a Department request. The lack of accuracy thereof or any material change shall, at the option of the Department and with thirty (30) days written notice to the County, cause the termination of the agreement and release of the Department from all its obligations to the County under the agreement. The County should incur no additional costs from the date of receipt of this letter. While the Department has the ability to recover any costs incurred under this grant contract, due to the fact that the grant funds were spent on eligible activities to assist low and moderate income persons, the Department will not seek to recover monies already expended. However, no additional funds shall be disbursed from the contract. The correspondence offered Okaloosa County the right to contest the preliminary agency action concerning termination of the grant agreement by resort to a formal hearing in accordance with Section 120.57(1), Florida Statutes, or an informal hearing in accordance with Section 120.57(2), Florida Statutes. In the end Okaloosa County accepted the termination upon the grounds stated in the May 20, 1992 correspondence. Okaloosa County received the notification of termination on May 26, 1992. Petitioner received a copy of the May 20, 1992 correspondence directed to Okaloosa County. The May 20, 1992 correspondence constituted notice to the county not to incur additional costs as well as notification of termination. Between April 23, 1992 and May 26, 1992, the dates when Petitioner first was made aware that there was a problem with passage of the fair housing ordinance and project fundability and the date upon which Respondent officially confirmed the significance of those problems, housing improvements contracts were entered into between home owners and contractors. A significant number of those contracts were entered into commencing April 28, 1992 and ending May 12, 1992. As project administrator Petitioner had been acting in the interest of the home owners in soliciting competitive bids from contractors who would do the home improvement work associated with the grant activities. Following the correspondence of May 20, 1992, Petitioner and Okaloosa County directed a number of inquiries to Respondent concerning proper use of remaining grant funds. As of May 20, 1992, when Respondent gave the termination notice, it had effectively informed Petitioner and Okaloosa County concerning Respondent's intention not to recover the $208,816.00 already disbursed, but had withheld details about the amount of money it might disburse in the future from what remained of the $650,000.00 award. Associated with the balance of the funds, what was known was that Respondent considered the agreement between itself and Okaloosa County terminated effective June 25, 1992. Respondent did not immediately honor a May 21, 1992 Request for Funds, which it mistakenly believed had been submitted subsequent to the May 20, 1992 notification to Okaloosa County that the agreement was terminated effective 30 days from receipt of notice of termination. Again the County did not receive that notice of termination until May 26, 1992, subsequent to its submission of the Request for Funds. One member of the Respondent's staff considered the submission of the May 21, 1992 Request for Funds to be a blatant attempt to obligate the balance of the grant monies with the "suspension pending". That was not the intention by Okaloosa County when submitting the May 21, 1992 Request for Funds. Suspension of funding is a consequence of the termination. By correspondence of June 17, 1992, directed to the chairperson of the Okaloosa County Commission, with a copy to Petitioner, Respondent replied to the inquiries from Petitioner and Okaloosa County concerning whether any additional costs could and would be reimbursed subsequent to the notice of suspension of funds and termination dated May 20, 1992. On June 17, 1992, Respondent informed Okaloosa County, and indirectly informed Petitioner, concerning the basis for determining cost reimbursement above the cost amounts already drawn and paid. Again, this is taken to mean that Okaloosa County and Petitioner were being told that $208,816.00 would not be reclaimed by Respondent and that the basis for deciding the issue of payment of other funds sought by Okaloosa County would be in accordance with guidelines set forth in 24 C.F.R., Part 85. In particular, Respondent had this to say concerning the basis for reimbursing any other costs: To aid the County, the Department offers the following guidelines which will be followed in determining which costs shall be reimbursed from the CDBG contract, beyond those already drawn and paid. The federal regulations in 24 CFR Part 85, Administrative Requirements for Grant to Sates and Local Governments, outlines the guidelines in the event of suspension and termination. Specifically, Section 85.43(c) states the following standards. Costs resulting from obligations incurred during a suspension or after termination of an award are not allowable without express authorization from the awarding agency, which in this case is the Department. Other costs during suspension or after termination which are necessary and not reasonably avoidable are allowable, provided the following tests are met. The costs result from obligations which were (1) properly incurred before the effective date of suspension or termination, (2) are not in anticipation of the suspension or termination, and (3) in the case of termination, whether the obligations are noncancellable; and The costs would have been allowable if the award had not be suspended or the contract had expired normally at the end of the funding period. Okaloosa County was further instructed in the June 17, 1992 correspondence as follows: The County should evaluate each cost that it seeks to have reimbursed from the grant and certify to the Department that the costs meet the above outlined standards. In addition, you should provide copies of all contracts obligating the costs, notices to proceed, and invoices for costs incurred to support each cost item requested for reimbursement. The Department will evaluate all costs on a case-by-case basis and make its determination applying the standards contained in 24 CFR Part 85.43(c). Once the determination is made, you will be notified in writing of the Department's final action. Consistent with the instructions set forth in the June 17, 1992 correspondence Okaloosa County through Petitioner submitted detailed documentation of costs incurred over and above the $208,816.00. The amounts claimed are discussed in Respondent's September 22, 1992 interoffice memorandum from Thomas Pierce, Planning CDBG Program to Pat Pepper, Director of the Division of Housing and Community Development. The memorandum describes the following costs claimed: Temporary relocation $ 1,600.00 Housing rehabilitation 214,967.36 Permanent relocation 88,063.00 Demolition 3,000.00 Administration 43,274.92 The memorandum sets out the position of the Respondent concerning payment of those costs where it says: Based on the review of the contracts submitted, the notices to proceed, and invoices, it appears that the direct assistance activity costs under temporary relocation, housing rehab, permanent relocation and demolition are justified for reimbursement. These costs were clearly obligated prior to our termination, and the contracts do not provide for costs avoidance in the event of grant cancellation. Therefore, the $307,630.36 for these direct assistance costs are recommended to be reimbursed by the grant to avoid undue hardship on the low and moderate income clients assisted. With regard to the payment of administrative costs, the review did not find adequate documentation to support reimbursement. The invoice submitted sought payment for preparation of the June 30, 1992 quarterly status report, attending a June 12, 1992 County Commission meeting and preparing request for funds and closeout reports. All of these are activities performed after the May 20 termination date, and therefore are not eligible for reimbursement, even though there was a contract executed for administrative services prior to the termination date. Therefore, we recommend that the administrative costs of $43,274.92 not be reimbursed by the CDBG Program. These costs are an obligation of County and would have to be paid by non-CDBG funds. Prior to this memorandum Respondent had received a July 8, 1992 Request for Funds and a July 23, 1992 status report which addressed the $43,279.92 claim for administrative costs. In addition, on July 1, 1992, Petitioner had prepared an Amended Administrative Services Invoice #15. On September 30, 1992, Okaloosa County wrote to Petitioner to inform Petitioner that the invoice was approved by Okaloosa County contingent upon receipt of funds from Respondent. On October 8, 1992, Petitioner transmitted this invoice to Respondent. Amended Administrative Services Invoice #15 gave the following account concerning claims for payment: DUE UPON RECEIPT Please issue payment to Clark, Roumelis and Associates, Inc., for services performed from May, 1992 through June 24, 1992, in accordance with out contract. Prepared and coordinated the signing of the final two rehab contracts. Prepared Notices to Proceed on the 3 demo/ relos and the final 12 rehabs. Monitored construction progress with inspections at least weekly on all the final units (3 demo/relos and 17 rehabs). Change Orders were prepared on three rehab units. Prepared and coordinated the necessary paperwork for pay request for the contractors, homeowners, rental unit and recording fees. Provided County Commission with project status report. Liaisoned with local financial record keeper to update and verify monthly financial transactions. Prepared Quarterly Status Report by compiling data on accomplishments and beneficiaries and thorough update of financial records on June 22, 1992. Discussed final Request for Funds and financial reimbursements by County for CDBG expenditure with Mike Arciola, Jan Mack and CRA housing Specialist. Prepared final Request for Funds on June 22, 1992, for signature by the County. Attended County Commission meeting June 16, 1992, to discuss alternatives associated with timely closeout of the grant contract. Presented an issue paper and pros/cons of various actions Attorney. Administrative Services discussed the with the County Contract amount $97,500.00 Previously Billed 40,625.00 Total billed to date including this invoice 83,899.92 Total Received to date 40,625.00 Total Due Upon Receipt 43,274.92 Later, when Respondent arrived at its proposed agency action concerning cost reimbursement it wrote to the chairman of the Okaloosa County Commission, with a copy to Petitioner. This correspondence was dated January 28, 1993. In its operative terms it stated: The Department of Community Affairs has reviewed the documentation submitted on the costs incurred under the above referenced Community Development Block Grant (CDBG) which was terminated by the Department in June 1992. Based on the provisions of 24 CFR 85.43 and our review of the documentation submitted, the Department finds that the following direct assistance costs were properly incurred before the effective date of the termination, were not incurred in anticipation of the termination, and were not cancellable. Further, the costs would otherwise have been eligible for grant reimbursement. These costs will be reimbursed by the Department immediately upon receipt of a Request for Funds form, signed by the County. Line Item Amount Temporary Relocation $ 1,600.00 Housing Rehabilitation 214,967.36 Permanent Relocation 88,063.00 Demolition 3,000.00 TOTAL $307,630.36 With regard to invoice #15 for administrative costs, the Department does not find adequate contract authority in your agreement with the grant consultant to make a payment for $43,274.92. As your contract was a lump sum contract, payable in equal monthly installments, the Department finds that the only authorized payments would be the monthly payment for May, given receipt by the County on May 26, 1992 of the Department's notice of termination of your grant and notice to incur no additional costs from that date. Further, the Department reads Section IV (B) of the contract for administrative services to condition payments upon the availability of grant funds by the County. Given the notice of termination, the Department finds that the County did not have funding available beyond May 26, 1992 upon which to make payments. Therefore, the Department finds that the administrative costs were cancellable and as such would not be allowable under the federal guidelines contained in 24 CFR Part 85.43 (c) (1). The Department will, however, process a revised invoice that covers the monthly fee for May, as that cost was allowable and eligible prior to the notice of termination and notice to incur no additional costs. On May 5, 1992, $4,062.50 in administrative services costs was approved by Okaloosa County through invoice #1501. This amount was in addition to the $40,625 already paid for administrative services. It is included within the $43,274.92 in dispute. As described in the January 28, 1993 proposed agency action it is an amount that Respondent would pay, notwithstanding that the invoice was not submitted to it. However, the $4,062.50 from May 1992 has not been paid to Petitioner. Okaloosa County did not proceed to contest the determination concerning disbursement of funds as described in the January 28, 1993 correspondence. While Petitioner was not specifically noticed of its rights to administrative relief it sought and was granted the opportunity to contest the refusal to pay $43,274.92 in administrative costs set forth in Amended Administrative Services Invoice #15. Under the circumstances wherein Respondent terminated its agreement with Okaloosa County prior to the normally anticipated concluding date, Petitioner did not prepare a close-out report. Petitioner did provide a status report dated July 23, 1992, which sets out its administrative claim of $43,274.92. Petitioner believes that it has performed its obligations pursuant to the agreement with Okaloosa County and is entitled to receive the disputed $43,274.92.
Recommendation Based upon consideration of the findings of facts found and the conclusions of law reached, it is, RECOMMENDED: That the final order be entered directing the payment of administrative costs in the amount of $43,274.92. DONE and ENTERED this 29th day of September, 1993, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1306 The following discussion is given concerning the proposed findings of fact submitted by the parties: Petitioner's Facts: Paragraphs 1 through 6 are subordinate to facts found. Paragraph 7 is contrary to facts found. Paragraphs 8 through 14 are subordinate to facts found. Paragraph 15 is not necessary to the resolution of the dispute. Paragraph 16 is subordinate to facts found. Paragraphs 17 and 18 are not necessary to the resolution of the dispute. Paragraph 19 is subordinate to facts found. Paragraphs 20 through 22 are not necessary to the resolution of the dispute. Paragraph 23 is subordinate to facts found. Paragraph 24 is not necessary to the resolution of the dispute. Paragraph 25 is subordinate to facts found. Paragraphs 26 through 28 are not necessary to the resolution of the dispute. Paragraphs 29 through 31 are subordinate to facts found. Paragraphs 32 and 33 are not necessary to the resolution of the dispute. Paragraphs 34 through 37 are subordinate to facts found. Paragraph 38 is not necessary to the resolution of the dispute. Paragraph 39 is subordinate to facts found. Paragraph 40 is not necessary to the resolution of the dispute. Paragraphs 41 and 42 are subordinate to facts found. Paragraphs 43 through 46 are not necessary to the resolution of the dispute. Paragraph 47 is subordinate to facts found. Paragraph 48 is not necessary to the resolution of the dispute. Paragraphs 49 and 50 are subordinate to facts found. Paragraphs 51 and 52 are not necessary to the resolution of the dispute. Paragraph 53 is subordinate to facts found. Paragraph 54 constitutes a conclusion of law. Paragraph 55 is subordinate to facts found. Paragraphs 56 through 59 are not necessary to the resolution of the dispute. Paragraph 60 is subordinate to facts found. Paragraph 61 is not necessary to the resolution of the dispute. Respondent's Facts: Paragraphs 1 through 7 are subordinate to facts found. Paragraph 8 with the exception of the second sentence is subordinate to facts found. The second sentence is contrary to facts found. Paragraphs 9 and 10 are subordinate to facts found. The Second Paragraph 10 is not necessary to the resolution of the dispute. Paragraphs 12 through 15 are subordinate to facts found. Paragraph 16 is not accepted in its suggestion that Petitioner as opposed to Respondent had some obligation to decide the point at which the agreement between Respondent and Okaloosa County would be terminated and the consequences that would pertain upon that termination. Paragraph 17 is subordinate to facts found. Paragraph 18 see discussion concerning Paragraph 16. Paragraph 19 is subordinate to facts found. The first two sentences to Paragraph 20 are subordinate to facts found. The remaining sentences within that paragraph are not necessary to the resolution of the dispute. Paragraphs 22 and 23 are subordinate to facts found with the exception that the date set forth in Paragraph 23 as September 19, 1992 should be September 20, 1992. Paragraphs 24 through 27 are subordinate to facts found. Paragraph 28 see discussion as to Paragraph 16. Paragraph 29 is not necessary to the resolution of the dispute. COPIES FURNISHED: Stephen Marc Slepin, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 Alfred O. Bragg, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File and relinquishing jurisdiction in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK. BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DCA11-GM-008 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished to the persons listed below jn the manner described, on this — day of January, 2011. yy A fas 4 Paula Ford, Agency Clerk DEPARTMENT OF COMMUNITY AFFAIRS 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 By U.S. Mail and electronic mail: Thomas A. Cloud, Esq. Clayton Bricklemeyer, Esq. City Attorney, Polk City David Smolker, Esq. GRAY ROBINSON, P.A. Bricklemeyer & Smolker, P.A. Post Office Box 3068 500 East Kennedy Boulevard, Suite 200 Orlando, Florida 32802-3068 Tampa, Florida 33602-4708 tcloud@gray-robinson.com claytonb@bsbfirm.com davids@bsbfirm.com Jack P. Brandon, Esq. Michael T. Gallaher, Esq. Peterson & Myers, P.A. Post Office Box 1079 Lake Wales, FL 33859-1079 jbrandon@petersonmyers.com mgallaher@petersonmyers.com STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, Case Nos. 10-0045GM 10-2797DRI vs. CITY OF POLK CITY, Respondent, and POLK CITY ASSOCIATES, LLC, AND COLE'S PROPERTY, LLC, Intervenors. ORDER CLOSING FILES This cause having come before the undersigned on the Notice of Voluntary Dismissal, filed January 10, 2011, and the undersigned being fully advised, it is, therefore, ORDERED that the files of the Division of Administrative Hearings in the above-captioned matter are hereby closed. DONE AND ORDERED this llth day of January, 2011, in Tallahassee, Leon County, Florida. Blac aad J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us EXHIBIT Filed with the Clerk of the Division of Administrative Hearings this llth day of January, 2011. COPIES FURNISHED: David L. Jordan, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 Jeffery Sullivan, Esquire Stidham & Stidham, P.A. 150 East Davidson Street Bartow, Florida 33831 Jack P. Brandon, Esquire Peterson & Myers Post Office Box 1079 Lake Wales, Florida 33859-1079 K. Clayton Bricklemyer, Esquire Bricklemyer, Smolker & Bolves, P.A. 500 East Kennedy Boulevard, Suite 200 Tampa, Florida 33602 Thomas A. Cloud, Esquire Gray Robinson, P.A. 301 East Pine Street, Suite 1400 Post Office Box 3068 Orlando, Florida 32802-3068
