The Issue The issue to be determined in this bid protest matter is whether Respondent, Florida Housing Finance Corporation’s, intended award of funding under Request for Applications 2017- 108, entitled “SAIL Financing of Affordable Multifamily Housing Developments To Be Used In Conjunction With Tax-Exempt Bond Financing And Non-Competitive Housing Credits” was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes. Its purpose is to provide and promote public welfare by administering the governmental function of financing affordable housing in Florida. Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code. As such, Florida Housing is authorized to establish procedures to distribute low income housing tax credits and to exercise all powers necessary to administer the allocation of these credits. § 420.5099, Fla. Stat. For purposes of this administrative proceeding, Florida Housing is considered an agency of the State of Florida. To promote affordable housing in Florida, Florida Housing offers a variety of programs to distribute housing credits. (Housing credits, also known as tax credits, are a dollar-for-dollar offset of federal income tax liability.) One of these programs is the State Apartment Incentive Loan program (“SAIL”), which provides low-interest loans on a competitive basis to affordable housing developers. SAIL funds are available each year to support the construction or substantial rehabilitation of multifamily units affordable to very low- income individuals and families. See § 420.5087, Fla. Stat. Additional sources of financial assistance include the Multifamily Mortgage Revenue Bond program (“MMRB”) and non- competitive housing credits. Florida Housing administers the competitive solicitation process to award low-income housing tax credits, SAIL funds, nontaxable revenue bonds, and other funding by means of request for proposals or other competitive solicitation. Florida Housing initiates the competitive application process by issuing a Request for Applications. §§ 420.507(48) and 420.5087(1), Fla. Stat.; and Fla. Admin. Code R. 67-60.009(4). The Request for Application at issue in this matter is RFA 2017-108, entitled “SAIL Financing of Affordable Multifamily Housing Developments to Be Used in Conjunction with Tax-Exempt Bond Financing and Non-Competitive Housing Credits.” Florida Housing issued RFA 2017-108 on August 31, 2017. Applications were due by October 12, 2017.6/ The purpose of RFA 2017-108 is to distribute funding to create affordable housing in the State of Florida. Through RFA 2017-108, Florida Housing intends to award approximately $87,000,000 for proposed developments serving elderly and family demographic groups in small, medium, and large counties. RFA 2017-108 allocates $46,279,600 to large counties, $32,308,400 to medium counties, and $8,732,000 to small counties. RFA 2017-108 established goals to fund: Two Elderly, new construction Applications located in Large Counties; Three Family, new construction Applications located in Large Counties; One Elderly, new construction Application located in a Medium County; and Two Family, new construction Applications located in Medium Counties. Thirty-eight developers submitted applications in response to RFA 2017-108. Of these applicants, Florida Housing found 28 eligible for funding, including all Petitioners and Intervenors in this matter. Florida Housing received, processed, deemed eligible or ineligible, scored, and ranked applications pursuant to the terms of RFA 2017-108, Florida Administrative Code Chapters 67- 48 and 67-60, and applicable federal regulations. RFA 2017-108 provided that applicants were scored based on certain demographic and geographic funding tests. Florida Housing sorted applications from the highest scoring to the lowest. Only applications that met all the eligibility requirements were eligible for funding and considered for selection. Florida Housing created a Review Committee from amongst its staff to review and score each application. On November 15, 2017, the Review Committee announced its scores at a public meeting and recommended which projects should be awarded funding. On December 8, 2017, the Review Committee presented its recommendations to Florida Housing’s Board of Directors for final agency action. The Board of Directors subsequently approved the Review Committee’s recommendations and announced its intention to award funding to 16 applicants. As a preliminary matter, prior to the final hearing, Florida Housing agreed to the following reassessments in the scoring and selection of the applications for funding under RFA 2017-108: SP Lake and Osprey Pointe: In the selection process, Florida Housing erroneously determined that SP Lake was eligible to meet the funding goal for the “Family” demographic for the Family, Medium County, New Construction Goal. (SP Lake specifically applied for funding for the “Elderly” demographic.) Consequently, Florida Housing should have selected Osprey Pointe to meet the Family, Medium County, New Construction Goal. Osprey Pointe proposed to construct affordable housing in Pasco County, Florida. Florida Housing represents that Osprey Pointe is fully eligible for funding under RFA 2017-108. (While Osprey Pointe replaces SP Lake in the funding selection for the “Family” demographic, SP Lake remains eligible for funding for the “Elderly” demographic.) Sierra Bay and Northside II: In the scoring process, Florida Housing erroneously awarded Sierra Bay proximity points for Transit Services. Upon further review, Sierra Bay should have received zero proximity points. Consequently, Sierra Bay’s application is ineligible for funding under RFA 2017-108. By operation of the provisions of RFA 2017-108, Florida Housing should have selected Northside II (the next highest ranked, eligible applicant) for funding to meet the Elderly, Large County, New Construction Goal. Florida Housing represents that Northside II is fully eligible for funding under RFA 2017-108. Harbour Springs: Florida Housing initially deemed Harbour Springs eligible for funding under RFA 2017-108 and selected it to meet the Family, Large County, New Construction Goal. However, because Harbour Springs and Woodland Grove are owned by the same entity and applied using the same development site, under rule 67-48.004(1), Harbour Springs is ineligible for funding. (Florida Housing’s selection of Woodland Grove for funding for the Family, Large County, New Construction Goal, is not affected by this determination.) The sole disputed issue of material fact concerns Liberty Square’s challenge to Florida Housing’s selection of Woodland Grove to meet the Family, Large County Goal. Liberty Square and Woodland Grove applied to serve the same demographic population under RFA 2017-108. If Liberty Square successfully challenges Woodland Grove’s application, Liberty Square, as the next eligible applicant, will be selected for funding to meet the Family, Large County Goal instead of Woodland Grove. (At the hearing on December 8, 2017, Florida Housing’s Board of Directors awarded Woodland Grove $7,600,000 in funding.) The focus of Liberty Square’s challenge is the information Woodland Grove provided in response to RFA 2017-108, Section Four, A.5.d., entitled “Latitude/Longitude Coordinates.” Liberty Square argues that Woodland Grove’s application is ineligible because its Development Location Point, as well as the locations of its Community Services and Transit Services, are inaccurate. Therefore, Woodland Grove should have received zero “Proximity” points which would have disqualified its application for funding. RFA 2017-108, Section Four, A.5.d(1), states, in pertinent part: All Applicants must provide a Development Location Point stated in decimal degrees, rounded to at least the sixth decimal place. RFA 2017-108 set forth scoring considerations based on latitude/longitude coordinates in Section Four, A.5.e, entitled “Proximity.” Section Four, A.5.e, states, in pertinent part: The Application may earn proximity points based on the distance between the Development Location Point and the Bus or Rail Transit Service . . . and the Community Services stated in Exhibit A. Proximity points will not be applied to the total score. Proximity points will only be used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding Preference ” In other words, the Development Location Point identified the specific location of an applicant’s proposed housing site.7/ Applicants earned “proximity points” based on the distance between its Development Location Point and selected Transit and Community Services. Florida Housing also used the Development Location Point to determine whether an application satisfied the Mandatory Distance Requirement under RFA 2017-108, Section Four A.5.f. To be eligible for funding, all applications had to qualify for the Mandatory Distance Requirement. The response section to Section Four, A.5.d., is found in Exhibit A, section 5, which required each applicant to submit information regarding the “Location of proposed Development.” Section 5 specifically requested: County; Address of Development Site; Does the proposed Development consist of Scattered Sites?; Latitude and Longitude Coordinate; Proximity; Mandatory Distance Requirement; and Limited Development Area. Section 5.d. (Latitude and Longitude Coordinates) was subdivided into: (1) Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place Longitude in decimal degrees, rounded to at least the sixth decimal place In its application, Woodland Grove responded in section 5.a-d as follows: County: Miami-Dade Address of Development Site: NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032. Does the proposed Development consist of Scattered Sites? No. Latitude and Longitude Coordinate; Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place: 25.518647 Longitude in decimal degrees, rounded to at least the sixth decimal place: 80.418583 In plotting geographic coordinates, a “-” (negative) sign in front of the longitude indicates a location in the western hemisphere (i.e., west of the Prime Meridian, which is aligned with the Royal Observatory, Greenwich, England). A longitude without a “-” sign places the coordinate in the eastern hemisphere. (Similarly, a latitude with a negative value is south of the equator. A latitude without a “-” sign refers to a coordinate in the northern hemisphere.) As shown above, the longitude coordinate Woodland Grove listed in section 5.d(1) did not include a “-” sign. Consequently, instead of providing a coordinate for a site in Miami-Dade County, Florida, Woodland Grove entered a Development Location Point located on the direct opposite side of the planet (apparently, in India). At the final hearing, Florida Housing (and Woodland Grove) explained that, except for the lack of the “-” sign, the longitude Woodland Grove recorded would have fallen directly on the address it listed as its development site in section 5.b., i.e., the “NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032.” In addition to the longitude in section 5.d., Woodland Grove did not include a “-” sign before the longitude coordinates for its Transit Services in section 5.e(2)(b) or for any of the three Community Services provided in section 5.e(3). Again, without a “-” sign, the longitude for each of these services placed them in the eastern hemisphere (India) instead of the western hemisphere (Miami-Dade County). In its protest, Liberty Square contends that, because Woodland Grove’s application listed a Development Location Point in India, Florida Housing should have awarded Woodland Grove zero proximity points under Section Four, A.5.e. Consequently, Woodland Grove’s application failed to meet minimum proximity eligibility requirements and is ineligible for funding. Therefore, Liberty Square, as the next eligible applicant, should be awarded funding for the Family, Large County Goal, under RFA 2017-108.8/ Liberty Square asserts that a correct Development Location Point is critical because it serves as the beginning point for assigning proximity scores. Waiving an errant Development Location Point makes the proximity scoring meaningless. Consequently, any such waiver by Florida Housing is arbitrary, capricious, and contrary to competition. At the final hearing, Woodland Grove claimed that it inadvertently failed to include the “-” sign before the longitude points. To support its position, Woodland Grove expressed that, on the face of its application, it was obviously applying for funding for a project located in Miami-Dade County, Florida, not India. In at least five places in its application, Woodland Grove specified that its proposed development would be located in Miami-Dade County. Moreover, several attachments to Woodland Grove’s application specifically reference a development site in Florida. Woodland Grove attached a purchase agreement for property located in Miami-Dade County (Attachment 8). To satisfy the Ability to Proceed requirements in RFA 2017-108, Woodland Grove included several attachments which all list a Miami-Dade address (Attachments 9-14). Further, Woodland Grove submitted a Local Government Verification of Contribution – Loan Form executed on behalf of the Mayor of Miami-Dade County, which committed Miami-Dade County to contribute $1,000,000.00 to Woodland Grove’s proposed Development (Attachment 15). Finally, to qualify for a basis boost under RFA 2017-108, Woodland Grove presented a letter from Miami-Dade County’s Department of Regulatory and Economic Resources, which also referenced the address of the proposed development in Miami-Dade County (Attachment 16). In light of this information, Woodland Grove argues that its application, taken as a whole, clearly communicated that Woodland Grove intended to build affordable housing in Miami-Dade County. Nowhere in its application, did Woodland Grove reference a project in India other than the longitude coordinates which failed to include “-” signs. Accordingly, Florida Housing was legally authorized to waive Woodland Grove’s mistake as a “harmless error.” Thus, Florida Housing properly selected the Woodland Grove’s development for funding to meet the Family, Large County Goal. Florida Housing advocates for Woodland Grove’s selection to meet the Family, Large County Goal, under RFA 2017- 108. Florida Housing considers the omission of the “-” signs before the longitude coordinates a “Minor Irregularity” under rule 67-60.002(6). Therefore, Florida Housing properly acted within its legal authority to waive, and then correct, Woodland Grove’s faulty longitude coordinates when scoring its application. In support of its position, Florida Housing presented the testimony of Marisa Button, Florida Housing’s current Director of Multifamily Allocations. In her job, Ms. Button oversees the Request for Applications process; although, she did not personally participate in the review, scoring, or selection decisions for RFA 2017-108. Ms. Button initially explained the process by which Florida Housing selected the 16 developments for funding under RFA 2017-108. Ms. Button conveyed that Florida Housing created a Review Committee from amongst its staff to score the applications. Florida Housing selected Review Committee participants based on the staff member’s experience, preferences, and workload. Florida Housing also assigned a backup reviewer to separately score each application. The Review Committee members independently evaluated and scored their assigned portions of the applications based on various mandatory and scored items. Thereafter, the scorer and backup reviewer met to reconcile their scores. If any concerns or questions arose regarding an applicant’s responses, the scorer and backup reviewer discussed them with Florida Housing’s supervisory and legal staff. The scorer then made the final determination as to each application. Ms. Button further explained that applicants occasionally make errors in their applications. However, not all errors render an application ineligible. Florida Housing is authorized to waive “Minor Irregularities.” As delineated in RFA 2017-108, Section Three, A.2.C., Florida Housing may waive “Minor Irregularities” when the errors do not provide a competitive advantage or adversely impact the interests of Florida Housing or the public. See Fla. Admin. Code R. 67- 60.002(6) and 67-60.008. Such was the case regarding Woodland Grove’s application. Heather Green, the Florida Housing staff member who scored the “Proximity” portion of RFA 2017-108, waived the inaccurate longitude coordinates as “Minor Irregularities.” Ms. Green then reviewed Woodland Grove’s application as if the proposed development was located in Miami-Dade County, Florida. Florida Housing assigned Ms. Green, a Multifamily Loans Manager, as the lead scorer for the “Proximity” portion of RFA 2017-108, which included the Development Location Point listed in Exhibit A, section 5.d. Ms. Green has worked for Florida Housing since 2003 and has scored proximity points for Request for Applications for over ten years. At the final hearing, Florida Housing offered the deposition testimony of Ms. Green. In her deposition, Ms. Green testified that she is fully aware that, to be located in the western hemisphere (i.e., Miami-Dade County), a longitude coordinate should be marked with a negative sign or a “W.” Despite this, Ms. Green felt that the longitude coordinates Woodland Grove used without negative signs, particularly its Development Location Point, were clearly typos or unintentional mistakes. Therefore, Ms. Green waived the lack of a negative sign in front of the longitude coordinates in section 5.d. and section 5.e. as “Minor Irregularities.” Ms. Green understood that she was authorized to waive “Minor Irregularities” by rule under the Florida Administrative Code. Ms. Green felt comfortable waiving the inaccurate longitude coordinates because everywhere else in Woodland Grove’s application specifically showed that its proposed housing development was located in Miami-Dade County, not India. Accordingly, when scoring Woodland Grove’s application, Ms. Green corrected the longitude entries by including a negative sign when she plotted the coordinates with her mapping software. Ms. Green then determined that, when a “-” was inserted before the longitude, the coordinate lined up with the address Woodland Grove listed for the Development Location Point. Therefore, Woodland Grove received proximity points and was eligible for funding under RFA 2017-108. (See RFA 2017-108, Section Five.A.1.) However, Ms. Green acknowledged that if she had scored the application just as it was presented, Woodland Grove would not have met the required qualifications for eligibility. Ms. Button relayed that Florida Housing fully accepted Ms. Green’s decision to waive the missing negative signs in Woodland Grove’s response to section 5.d. and 5.e. as “Minor Irregularities.” Ms. Button opined that Woodland Grove’s failure to place a “-” mark before the longitude was clearly an unintentional mistake. Ms. Button further commented that Florida Housing did not believe that scoring Woodland Grove’s development as if located in the western hemisphere (instead of India), provided Woodland Grove a competitive advantage. Because it was evident on the face of the application that Woodland Grove desired to develop a housing site in Miami-Dade County, Ms. Green’s decision to overlook the missing “-” sign did not award Woodland Grove additional points or grant Woodland Grove an advantage over other applicants. Neither did it adversely impact the interests of Florida Housing or the public. However, Ms. Button also conceded that if Ms. Green had scored the application without adding the “-” sign, Woodland Grove would have received zero proximity points. This result would have rendered Woodland Grove’s application ineligible for funding. Ms. Button also pointed out that Ms. Green waived the omission of “-” signs in two other applications as “Minor Irregularities.” Both Springhill Apartments, LLC, and Harbour Springs failed to include negative signs in front of their longitude coordinates. As with Woodland Grove, Ms. Green considered the development sites in those applications as if they were located in Miami-Dade County (i.e., in the western hemisphere). Ms. Green also waived a mistake in the Avery Commons application as a “Minor Irregularity.” The longitude coordinate for the Avery Commons Development Location Point (section 5.d(1)) was blank. However, Ms. Green determined that Avery Commons had placed the longitude in the blank reserved for Scattered Sites coordinates (section 5.d(2)). When scoring Avery Commons’ application, Ms. Green considered the coordinate in the appropriate section. According to Ms. Button, Florida Housing felt that this variation did not provide Avery Commons a competitive advantage. Nor did it adversely impact the interests of Florida Housing or the public. Finally, Ms. Button explained that the application Florida Housing used for RFA 2017-108 was a relatively new format. In previous Request For Applications, Florida Housing required applicants to submit a Surveyor Certification Form. On the (now obsolete) Surveyor Certification Form, Florida Housing prefilled in an “N” in front of all the latitude coordinates and a “W” in front of all the longitude coordinates. However, the application used in RFA 2017-108 did not place an “N” or “W” before the Development Location Point coordinates. Based on the evidence presented at the final hearing, Liberty Square did not establish, by a preponderance of the evidence, that Florida Housing’s decision to award funding to Woodland Grove for the Family, Large County Goal, under RFA 2017-108 was clearly erroneous, contrary to competition, arbitrary, or capricious. Florida Housing was within its legal authority to waive, then correct, the missing “-” sign in Woodland Grove’s application as “Minor Irregularity.” Therefore, the undersigned concludes, as a matter of law, that Petitioner did not meet its burden of proving that Florida Housing’s proposed action to select Woodland Grove for funding was contrary to its governing statutes, rules or policies, or the provisions of RFA 2017-108.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing Finance Corporation enter a final order dismissing the protest by Liberty Square. It is further recommended that Florida Housing Finance Corporation rescind the intended awards to Sierra Bay, SP Lake, and Harbour Springs, and instead designate Northside II, Osprey Pointe, and Pembroke Tower Apartments as the recipients of funding under RFA 2017-108.10/ DONE AND ENTERED this 19th day of April, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 19th day of April, 2018.
The Issue Whether Respondent Southeast Grove Management, Inc., is indebted to Petitioner in the amount of $5,560.08 for limes grown by Petitioner and picked and sold by Respondent Southeast?
Findings Of Fact Petitioner Joyce McKiness is a grower of limes in Homestead, Florida. Respondent Southeast Grove Management, Inc., (hereinafter "Southeast") goes to individual groves and picks the limes, then brings them to the packing house where they are graded, sized, and shipped to be sold at prices according to size. When the recipient of the limes pays Southeast after receipt of the limes, Southeast ascertains what prices were paid for the limes, and then calculates its costs and pays the grower the difference. Between the weeks ending March 4 and July 8, 1988, Southeast picked 1,165.1 bushels of limes grown by Petitioner. There is no dispute as to the number of bushels of Petitioner's limes picked by Southeast. Petitioner disputes Southeast's calculations as to the price which Southeast received for the limes, the percentage of the limes picked by Southeast which `graded out' for sale, and the amount of picking and inspection fees charged by Southeast. Petitioner bases the price that she claims Southeast received for the limes, for the eight separate pickings in question in this cause, on her belief that 1988 lime prices were 25% higher than 1987 lime prices. She, therefore, added 25% to the prices of limes picked in 1987 for the same months. No competent, substantial evidence was offered in support of Petitioner's belief. In one instance, Southeast paid her a higher price per bushel than she claims. Petitioner claims that 80% of each picking was saleable citrus. Southeast's records reflect that Petitioner was given credit for 80% of her limes on one of the eight pickings. For the remainder of the pickings, however, Southeast gave her credit for as little as 45.4% of the bushels picked and as high as 99.7% of the bushels picked. No competent, substantial evidence was offered to justify Petitioner's selection of 80% for all eight pickings. The 80% figure selected by Petitioner allows for no differences in the amount of marketable limes from each picking, and there is no evidence to support the proposition that no matter when during the season the limes are picked exactly 80% of them will be marketable. No competent, substantial evidence was offered as to how Petitioner computed the picking and inspection fees paid by Southeast, which fees were then deducted by Southeast from the sale price of the limes before crediting Petitioner with the balance of the sale price. In two instances, the picking and inspection fees charged by Southeast were less than what Petitioner claims they should be. Southeast admits that for lime pool #809 for the week ending March 4, 1988, it owes petitioner the amount of $393.36.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered finding that Southeast Grove Management, Inc., is indebted to Petitioner Joyce McKiness in the amount of $393.36 and that such monies should be paid to her within fifteen days from the entry of the Final Order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of January, 1990. LINDA M. RIGOT 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 30 day of January, 1990. COPIES FURNISHED: Cliff Willis Florida Farm Bureau Mutual Insurance Company 1850 Old Dixie Highway Homestead, Florida 33033 Don Reynolds c/o Aaron Thomas, Inc. 11010 North Kendall Drive, Suite 200 Miami, Florida 33176 Joyce McKiness 20350 Southwest 346th Street Homestead, Florida 33034 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Benjamin S. Schwartz, Esquire #1 CenTrust Financial Center 36th Floor 100 Southeast 2nd Street Miami, Florida 33131 Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
The Issue The issues in this bid protest are whether Respondent's preliminary decision to award low-income housing tax credits to Intervenor should be implemented, notwithstanding the fact that, unbeknownst to Respondent during the evaluation and scoring of the competing applications, Intervenor's application contained a material misrepresentation about a transit service, which Intervenor urges is a minor irregularity that can be waived; and, if the preliminary decision is set aside, whether Respondent should award the credits to Petitioner, who is next in line, but whose application, Intervenor alleges, contains material deviations from the specifications that render it nonresponsive.
Findings Of Fact Respondent Florida Housing Finance Corporation ("FHFC") is the housing credit agency for the state of Florida whose responsibilities include the awarding of low-income housing tax credits, which developers use to finance the construction of affordable housing. Tax credits are made available annually pursuant to a competitive cycle that starts with FHFC's issuance of a Request for Applications. On November 21, 2014, FHFC issued Request for Applications 2014-115 (the "RFA"), whose full title——"Housing Credit Financing for Affordable Housing Developments Located in Broward, Duval, Hillsborough, Orange, Palm Beach, and Pinellas Counties"——generally describes the developments for which FHFC expects to award tax credits totaling up to approximately $15.5 million to selected applicants proposing to construct such projects in accordance with the specifications of the RFA, FHFC's generally applicable standards, and all other governing laws. Applications were due on February 3, 2015. Applicants were required to make a commitment to serve one of several populations: Family, Elderly, or Homeless. Under the selection process that the RFA prescribes, only one project targeted for either the Family or Elderly population in Duval County will be selected for funding. The dispute in this case arises from FHFC's preliminary decision regarding the award of credits for the Duval County development intended to serve the Family or Elderly demographic. Petitioner Houston Street Manor Limited Partnership ("Houston Street") and Intervenor Powers Avenue Senior Apartments, Ltd., d/b/a Pine Grove Senior Apartments ("Pine Grove") each timely submitted an application proposing to build affordable housing for elderly residents in Duval County, making them direct competitors for the sole award available for such a project. The RFA provided that applications would be evaluated and scored by a committee, with the scoring to be based on "Mandatory Items" and "Point Items" identified in a table included in the RFA. Upon completing its evaluation, the committee was required to list the eligible applications in order from highest total score to lowest total score, and to make a recommendation to FHFC's Board of Directors. In theory, the award should go to the applicant with the highest score. Because of the likelihood, however, that multiple applications will get perfect scores——as it happened, all 49 of the eligible applications in the Family or Elderly Demographic Commitment category received the maximum score of 23 points——the RFA established a sequence of six tiebreakers, the sixth being a lottery, with the award falling to the application having the lowest, randomly assigned lottery number. Knowledgeable developers understood that, in practice, most of the successful applications would be lottery winners owing their selection largely to luck. It is therefore not surprising that all eight eligible applications proposing to serve the Family or Elderly population in Duval County received the full 23 points. None of the first five tiebreakers separated these applications, which forced a lottery. Pine Grove had the lowest lottery number (14), followed by Houston Street Manor (25). Thus, Pine Grove was chosen for preliminary funding, as FHFC announced on May 8, 2015. The RFA specifies two Point Items in the Family or Elderly Demographic Commitment category. One Point Item is "Local Government Contributions," for which a maximum of 5.0 points could be awarded. The other is "Proximity to Transit and Community Services," which was worth a maximum of 18 "proximity points." To be considered eligible for funding, an applicant needed to receive at least 10.25 proximity points, including a minimum of 2.0 points for Transit Services.1/ Significantly, an applicant who earned 12.25 or more proximity points would be given the maximum Total Proximity Score of 18. Thus, to be eligible an applicant needed to qualify for a Transit Service Score of at least 2.0 plus win 8.25 additional proximity points; to be competitive, however, it had to win at least 10.25 additional proximity points, to "bump up" to 18. During the evaluation and scoring, Pine Grove received a Transit Service Score of 5.0, which, together with the 9.5 proximity points that Pine Grove earned for its proximity to other community services, gave Pine Grove a raw score of 14.5 and, consequently, a Total Proximity Score of 18——the maximum. Pine Grove's Transit Service Score, however, was based upon a representation of material fact that——it is undisputed——was not correct. To understand the problem requires a more detailed explanation of the Transit Services criteria. The RFA required an applicant to select one——and only one——Transit Service upon which its Transit Service Score would be based. The category of Transit Services comprises five specifically defined services divided into three subgroups as follows: (1) Private Transportation — 2 points; (2) Public Bus Stop – maximum 2 points; and (3) Public Bus Transfer Stop; Public Bus Rapid Transit Stop; or Public Rail Station — maximum 6 points. The services relevant to this case are Public Bus Stop and Public Bus Transfer Stop. The RFA defines Public Bus Stop in relevant part as follows: Public Bus Stop means a fixed location at which passengers may access one or two routes of public transportation via buses. The Public Bus Stop must service at least one bus route with scheduled stops at least hourly during the times of 7am to 9am and also during the times of 4pm to 6pm Monday through Friday, excluding holidays, on a year-round basis. RFA at 21. The pertinent provisions of the definition of Public Bus Transfer Stop provide as follows: Public Bus Transfer Stop means a fixed location at which passengers may access at least three routes of public transportation via buses. Each qualifying route must have a scheduled stop at the Public Bus Transfer Stop at least hourly during the times of 7am to 9am and also during the times of 4pm to 6pm Monday through Friday, excluding holidays, on a year-round basis. This would include both bus stations (i.e., hubs) and bus stops with multiple routes. RFA at 21. The number of proximity points that would be awarded for a Public Bus Stop or a Public Bus Transfer Stop, if an applicant chose one or the other as the sole service upon which its Transit Service Score would be based, was not committed to the discretion of the evaluators. Rather, the RFA prescribes the precise number of points to be assigned, based on an objective criterion, namely the distance in miles between the proposed development and the particular service. Thus, a Public Bus Stop would be scored as follows: RFA at 24. A Public Bus Transfer Stop, in contrast, would be awarded points pursuant to the following schedule: RFA at 25. The RFA required applicants to attach to their applications a Surveyor Certification Form completed and signed by a licensed surveyor. On this form, the surveyor must state the latitude and longitude coordinates for, among other things, the selected Transit Service, e.g., Public Bus Stop or Public Bus Transfer Stop, together with the distance in miles between such service and the proposed development. By signing the form, the surveyor declares, under penalties of perjury, "that the foregoing statement is true and correct." RFA at 86. Pine Grove submitted a Surveyor Certification Form which identified a Public Bus Transfer Stop as its Transit Service: Joint Ex. 3 at 52 of 101. Because the distance between this service and the proposed development was stated to be 0.55 miles, Pine Grove received 5.0 proximity points pursuant to the schedule reproduced above. The site whose coordinates are shown in Pine Grove's Surveyor Certification Form is, in fact, a bus stop, which the Jacksonville Transportation Authority ("JTA") refers to as Stop #4203. But, as the parties have stipulated, only two routes serve Stop #4203 during the morning and afternoon rush hours. Consequently, contrary to the representation in Pine Grove's application, Stop #4203 is not a Public Bus Transfer Stop as that term is defined in the RFA, but a less-prized Public Bus Stop. Houston Street raised this issue as a protest ground in its formal petition challenging the proposed award to Pine Grove. During discovery, Pine Grove confessed error and admitted that Stop #4203 is only a Public Bus Stop, not a Public Bus Transfer Stop. Thereafter, FHFC announced that it would side with Houston Street in arguing that Pine Grove's application must be rejected as ineligible since Stop #4203, as a Public Bus Stop greater than 0.30 miles from the proposed development, earns just 0.0 points under the applicable scoring schedule——2.0 points less than the Required Minimum Transit Service Score of 2.0. Pine Grove would be dead in the water at this point but for an unlikely, yet undisputed, factual twist. It turns out that JTA Stop #1397, which is located 0.48 miles from Pine Grove's proposed development, happens to qualify as a Public Bus Transfer Stop. Had Pine Grove identified Stop #1397 as its Transit Service, it legitimately would have been entitled to 5.5 points. In other words, Pine Grove could have offered an actual Public Bus Transfer Stop that is closer to its proposed development than Stop #4203 (and thus more valuable in terms of proximity points), but instead it identified a Public Bus Stop—— which it misrepresented as a Public Bus Transfer Stop——that was worth less in proximity points than Stop #1397 even if it truly were a Public Bus Transfer Stop, and is worthless as the Public Bus Stop it truly is. Houston Street and FHFC have framed their objection to Pine Grove's application in terms of responsiveness, contending that Pine Grove's failure to identify a Transit Service eligible for at least the Required Minimum Transit Service Score is a material deviation that the agency cannot waive. This has opened the door to Pine Grove's argument that falsely describing Stop #4203 in its Surveyor Certification Form as a Public Bus Transfer Stop worth 5.0 proximity points should be deemed a minor irregularity given the existence of Stop #1397, which everyone agrees is a Public Bus Transfer Stop that would have been worth 5.5 proximity points to Pine Grove, had Pine Grove relied upon Stop #1397. Pine Grove's position is part "no competitive advantage" (as indeed citing Stop #4203 was not advantageous in light of the superior alternative) and part "no harm, no foul." Before examining the questions of whether Pine Grove's designating Stop #4203 as its Transit Service was a deviation from the specifications and, if so, whether such a lack of responsiveness should be considered a material deviation or a minor irregularity, the undersigned wants to mention a point that the parties have not raised, but which nevertheless warrants consideration. Preliminarily, though, the undersigned stresses that no allegation was made, no evidence was received, and no finding is being made that Pine Grove intended to deceive FHFC by holding out Stop #4203 as a Public Bus Transfer Stop. Rather, although there is no direct evidence in the record, the logical and reasonable inference based on the circumstances is that Pine Grove simply made an unfortunate and costly mistake in failing timely to discover that Stop #4203 does not qualify as a Public Bus Transfer Stop, as Pine Grove honestly had believed. That said, by identifying Stop #4203 in its Surveyor Certification Form as a Public Bus Transfer Stop, Pine Grove unequivocally represented that the material facts concerning this particular stop satisfied the RFA's definition of a Public Bus Transfer Stop——and they did not. Not to put too fine a point on it, the representation that Stop #4203 is a Public Bus Transfer Stop was a false statement of material fact——objective fact at that, not ultimate fact involving the exercise of discretion or judgment, and not opinion. To be sure, this material misrepresentation was not intentionally false. But it was false. Like all applicants, Pine Grove was required to submit with its application a fully executed Applicant Certification and Acknowledgment Form. Among the statements therein whose truth Pine Grove confirmed is the following: In eliciting information from third parties required by and/or included in this application, the Applicant has provided such parties information that accurately describes the Development as proposed in this Application. The Applicant has reviewed the third party information included in this Application and/or provided during the credit underwriting process and the information provided by any such party is based upon, and accurate with respect to, the Development as proposed in this Application. Joint Ex. 3 at 26 of 101 (emphasis added). In signing this form, Pine Grove's agent "declare[d] and certif[ied] that [he] ha[d] read the foregoing and that the information is true, correct, and complete." As is now known, a third party (Pine Grove's surveyor) provided information about Stop #4203 that was not accurate with respect to the proposed development. Pine Grove's submission of third party information that contained a false statement of material fact (i.e., that Stop #4203 is a Public Bus Transfer Stop located 0.55 miles from the proposed development) was a deviation from the RFA's specifications, including the provisions of the Applicant Certification and Acknowledgment Form set forth above. The undersigned is inclined to believe that a false statement of material fact in a bid or similar response to a public solicitation should almost always be deemed a material deviation. Agencies reasonably and justifiably rely upon the statements of fact contained in such documents, and therefore the disincentives to making factual misstatements, even innocently, should be strong and consistently applied. Here, however, as mentioned, no party has urged that Pine Grove's application be deemed nonresponsive for misrepresenting the true nature of Stop #4203, and therefore the undersigned will not recommend that the case be decided on this basis. Nevertheless, it should be stated that to treat Pine Grove's application as having accurately identified Stop #4203 as a Public Bus Stop, which is the premise behind Houston Street and FHFC's position, is to waive the material misrepresentation in Pine Grove's Surveyor Certification Form——a significant, and arguably unduly generous, threshold concession to Pine Grove. Once the misrepresentation is overlooked, it is not obvious that a deviation exists that would make Pine Grove's application nonresponsive. Bus Stop #4203 meets the RFA's definition of a Public Bus Stop worth up to 2.0 points. Thus, it is an Eligible Service that does not depart from the specifications for a Public Bus Stop. Pine Grove's application was not "nonresponsive" for identifying a Public Bus Stop as its Transit Service. Located at a distance of 0.55 miles from the proposed development, Bus Stop #4203 was entitled to a score of 0.0 according to the RFA's scoring schedule, which requires that 0.0 points be awarded to a Public Bus Stop that is farther than 0.30 miles from the proposed development. That Bus Stop #4203 must be awarded no points does not, of itself, make Pine Grove's application nonresponsive; it just means that the application will receive fewer points than the maximum available for this item. The RFA pointedly does not state that reliance upon a Public Bus Stop located more than 0.30 miles from the proposed development will result in a finding of noncompliance, and it strongly implies otherwise by instructing that distant Public Bus Stops shall be given a score, albeit a score of zero. Pine Grove's application was not "nonresponsive" merely for identifying a faraway Public Bus Stop as its Transit Service. Because Bus Stop #4203 could be awarded no more than 0.0 points, however, Pine Grove's application fails to earn the Required Minimum Transit Service Score of 2.0, which makes it ineligible to be considered for funding. Being found ineligible for funding due to a low score is different from being deemed nonresponsive to the specifications. To be sure, in this instance the effect is the same, either way. But still, it is at best debatable whether there is any deviation here that FHFC could waive as a minor irregularity, even if it wanted to. Putting aside that technicality, the irreducible problem for Pine Grove is that, to remain in line for the award, it must receive at least 2.75 proximity points for its Transit Service. Pine Grove needs a Transit Service Score of 2.75 to get a raw score of 12.25 and hence an adjusted Total Proximity Score of 18. Without a Total Proximity Score of 18, Pine Grove will not have a perfect overall score of 23, and without a perfect overall score, Pine Grove is out of the lottery. Pine Grove's irreducible problem is insoluble because a Public Bus Stop such as Stop #4203 cannot receive more than 2.0 points, and Pine Grove needs 2.75. Therefore, even if FHFC could deem Pine Grove's reliance upon a Public Bus Stop that is situated beyond the 0.30-mile limit a "minor irregularity"; and even if FHFC could then award Pine Grove the full 2.0 points for Stop #4203, these extraordinary (and probably impermissible) steps still would be insufficient to keep Pine Grove in first place for preliminary funding. Obviously FHFC could not award Pine Grove more than the maximum score of 2.0 points for a "nonresponsive" distant Public Bus Stop. The only way for Pine Grove to hold on to its preliminary funding would be for FHFC to treat Stop #4203 as a Public Bus Transfer Stop even though, pursuant to the unambiguous specifications of the RFA, it is a Public Bus Stop. This, it seems to the undersigned, would not be a matter of waiving a "minor irregularity," but instead would amount to pretending that one clearly defined Transit Service (Public Bus Stop) is another clearly defined Transit Service (Public Bus Transfer Stop), for the sole purpose of raising an applicant's score above that which the RFA plainly requires. Such agency conduct would be both clearly erroneous and contrary to competition——in short, impermissible. Pine Grove has a point when it asserts that the existence of Stop #1397 means that its proposed development actually would be located close to adequate transportation services——a fact that is undisputed——and therefore that the needs behind the Transit Services component of the proximity criteria would be fulfilled notwithstanding Pine Grove's misplaced reliance upon Stop #4203. Rejecting Pine Grove's application for lack of a nearby Transit Service while knowing that a nearby Transit Service exists does seem somewhat unfair. This sense of unfairness is ameliorated in part, however, by the recognition that Pine Grove's preliminary selection was, after all, the result of the "luck of the draw"——not qualitative superiority over other applicants. It is eliminated by the recognition that to accept Pine Grove's application as the winner would require FHFC to give Pine Grove a Transit Service Score to which it clearly is not entitled——in effect handing out "bonus points" ultimately explicable, if with a wink and a nod, only as an impermissible tribute to Stop #1397.2/ In sum, Pine Grove's application was technically responsive to the RFA. Unbeknownst to Pine Grove and FHFC, however, Pine Grove's application contained a material misrepresentation——namely that Stop #4203 is a Public Bus Transfer Stop——upon which FHFC reasonably relied in giving Pine Grove a Transit Service Score of 5.0, which, under the RFA's unambiguous scoring schedule, was the correct score to give for a Public Bus Transfer stop located 0.55 miles from the proposed development. As everyone now agrees, Stop #4203 is not a Public Bus Transfer Stop, but a Public Bus Stop——an Eligible Service, without question, but one which, under the RFA's scoring schedule, earns just 0.0 points. Adjusting Pine Grove's Transit Service Score to 0.0, as must be done after forgiving and correcting the misrepresentation, makes Pine Grove's application ineligible for further consideration for failure to achieve the Required Minimum Transit Score of 2.0. Even if eligible, however, Pine Grove necessarily would be out of the running, for with a Transit Service Score of 0.0 (ignoring eligibility), Pine Grove's overall score falls short of the perfect 23 that seven other competitors achieved. If Pine Grove is eliminated from consideration, as the undersigned will recommend, the next applicant in line is Houston Street, holder of the second lowest lottery number. Pine Grove asserts that Houston Street's application is nonresponsive for two reasons: (1) failure to demonstrate site control and (2) failure to prove its ability to proceed. These issues will be taken up in turn. "Evidence of Site Control" is an unscored Mandatory Item. The RFA instructs that the "Applicant must demonstrate site control by providing, as Attachment 14 to Exhibit A, the documentation required . . . below. If the proposed Development consists of Scattered Sites, site control must be demonstrated for all of the Scattered Sites." RFA at 31. As relevant to this case, the document necessary to establish site control is an "Eligible Contract," which is an instrument defined in pertinent part as follows: For purposes of the RFA, an eligible contract is one that has a term that does not expire before July 31, 2015 or that contains extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than July 31, 2015; specifically states that the buyer's remedy for default on the part of the seller includes or is specific performance; and the buyer MUST be the Applicant unless an assignment of the eligible contract which assigns all of the buyer's rights, title and interests in the eligible contract to the Applicant, is provided. RFA at 31. Houston Street's proposed development would be located on property comprising two contiguous parcels, each of which Houston Street has under contract to purchase. Houston Street provided both contracts as evidence of site control, attaching them to its application as instructed. One of the two parcels is 0.09 acres owned by Kesher Investments, LLC ("Kesher"), for which Houston Street has agreed to pay $750,000. Based on the Real Estate Purchase Agreement supplied as evidence of site control, the Kesher parcel remained on the market as of the date Houston Street submitted its application to FHFC. Paragraph 18 of the contract provides: RIGHT OF FIRST REFUSAL. It is understood that Purchaser is planning to apply for housing tax credits from the FHFC. Seller shall continue to market the property until FHFC approved or denies Purchasers application for tax credits, bonds or other similar financing. If any other written purchase offer for Property is submitted and deemed acceptable to Seller, the offer shall be presented to Purchaser and Purchaser shall have ten (10) days in which to match the terms of written offer or terminate this Agreement and receive a full refund of the Deposit and neither party shall have any further obligations under this Agreement. Only exception to this First Right of Refusal is if such submitted written offer is from an entity that would be a competitor for FHFC tax credits, bonds or other type of similar financing then that offer will be deemed unacceptable. Joint Ex. 2 at 65 of 111. The Real Estate Purchase Agreement requires the parties to close on the Kesher parcel "no later than August 31st, 2015, unless the closing date is extended." Joint Ex. 2 at 59 of 111. The agreement provides extension options, as follows: Purchaser shall have the right to extend the closing for the payment of Two Thousand Five Hundred Dollars ($2,500) per 30 day ("Extension Period") for Four (4) Extension Periods. The extension fee(s) shall be released to Seller by the Escrow Agent immediately upon notice from Purchaser to Seller to extend the contract. Payment of extension fee(s) to be deducted from the Earnest Money Deposit. All extension fee(s) released to Seller through Escrow Agent shall be non-refundable, but applicable to the purchase price, and shall be deemed to be liquidated damages in the event this transaction does not close and is earned as such by Seller. Joint Ex. 2 at 59 of 111. The other parcel is owned by Downtown Station, LLC. It is 0.50 acres, and Houston Street has agreed to purchase the property for $975,000. Like the Kesher parcel, this half-acre piece of land remained on the market as of the date Houston Street submitted its application, according to a provision of the Real Estate Purchase Agreement which provides as follows: Continued Marketing/Right of First Refusal. It is agreed that Seller herein, shall continue to market the subject Property and entertain any and all offers to purchase the said Property by others. Should Seller receive an offer to purchase the subject property from any other person or entity, with terms and conditions acceptable to Seller, Seller shall provide Purchaser herein notice of same. Purchaser shall have ten (10) days from notice of the foregoing that it wishes to purchase the subject property on the same terms and conditions as offered by another buyer. If Purchaser herein does not agree to purchase the subject property in accordance with said terms and conditions, then Seller shall have the right to proceed to sell the subject property to the subsequent buyer and this Agreement shall be null and void, at which time any and all deposits placed by Purchaser herein shall be returned to Purchaser. Joint Ex. 2 at 80 of 111. Closing on the Downtown Station parcel is to occur "no later than August 31st, 2015, unless the closing date is extended." Joint Ex. 2 at 74 of 111. The purchase and sale agreement gives the buyer four successive options to extend the closing date for 30-day periods, respectively, upon payment of $2,500 for each extension, pursuant to a provision which is identical to the one in the Kesher agreement, quoted above. Pine Grove argues that Houston Street has failed to demonstrate site control because the properties it has under contract are still for sale, and because exercising a right of first refusal could require Houston Street to meet conditions besides the payment of additional monies. Pine Grove's position first raises the question of whether both of the agreements Houston Street provided with its application satisfy the definition of an "Eligible Contract." If this question were answered in the negative, then Houston Street's application would be nonresponsive because the submission of an Eligible Contract is necessary to demonstrate site control. If the answer were affirmative, however, a second question would arise, and that is whether an Eligible Contract is sufficient to demonstrate site control. If so, then Houston Street's application would be responsive. If not, then it would be necessary to scrutinize the terms and conditions of the Eligible Contracts to ascertain whether they demonstrate site control or (as Pine Grove maintains) a lack thereof. The contracts that Houston Street submitted satisfy the plain and literal meaning of the language used in the RFA to define an Eligible Contract. Neither agreement expires before July 31, 2015, and in any event both agreements contain extension options which Houston Street can exercise solely by paying additional monies. The other requirements of the relevant definition, e.g., the availability of specific performance as a buyer's remedy, are met. Therefore, Houston's Street's application is responsive to the specifications mandating that an Eligible Contract be provided as evidence of site control. The foregoing determination gives rise to the question of whether an Eligible Contract is sufficient to establish site control. On this point, the RFA is ambiguous. The provisions dealing with site control reasonably could be understood as directing that the submission of an Eligible Contract is both necessary and sufficient to establish the requisite degree of control over the proposed development site. Under this interpretation, the inquiry into Houston Street's site control ends, for Houston Street provided FHFC with Eligible Contracts relating to the parcels it hopes to develop. Alternatively, the RFA's site control provisions reasonably could be read as directing that the submission of an Eligible Contract is necessary, but not sufficient, to prove the requisite degree of site control. Pine Grove has offered evidence showing that, in past cycles, FHFC has examined the terms and conditions of "Qualified Contracts" (the substantial equivalent of Eligible Contracts under the RFA) to determine the existence of site control, and found the site-control evidence to be insufficient. This suggests that providing the necessary contract does not necessarily demonstrate site control. Indeed, Pine Grove asserts that under FHFC's previous interpretations of "site control," Houston Street's documentation should be found wanting. In one earlier instance, FHFC expressed concern over a Qualified Contract that was subject to a right of first refusal belonging to a third party. In other words, by exercising its right of first refusal, a third party over whom the applicant had no control could purchase the proposed development site, and the applicant had no contractual means of stopping such a sale, which would deprive the applicant of the subject site. In another past instance, FHFC found fault with a provision in a Qualified Contract which gave the seller the right (until a certain date) to sell the property to a third party but did not grant the applicant a right of first refusal. Here then, once again, a third party over whom the applicant had no control could purchase the proposed development site, and the applicant had no contractual means of stopping such a sale, which would deprive the applicant of the subject site. Despite some superficial similarities, Houston Street's situation is distinguishable from these historical situations because Houston Street, as a holder of first-refusal rights, possesses a measure of control over the potential sale(s) of the development site(s) to a third party or parties that the previous applicants lacked. Unlike them, Houston Street has at its disposal contractual means of stopping another person from buying the subject parcel(s). The decision whether to meet the terms and conditions of a competing offer is Houston Street's to make; therefore, Houston Street controls its own destiny with regard to the purchase of the proposed development site. Consequently, assuming that an Eligible Contract is not sufficient under the RFA to prove site control, but instead must be examined to ascertain whether site control exists, the undersigned determines that Houston Street's sellers' continued marketing of the parcels comprising the development site subject to Houston Street's rights of first refusal is not inconsistent with Houston Street's retention of adequate control over its acquisition of the site. In short, it is determined, as a matter of ultimate fact, that Houston Street has demonstrated site control adequately for purposes of the RFA. At the very least, it is determined that FHFC's determination to the same effect was not clearly erroneous.3/ The RFA requires that an applicant provide documentation establishing its "Ability to Proceed," including the following items: Status of Site Plan Approval. The Applicant must provide, as Attachment 7 to Exhibit A, the properly completed and executed Florida Housing Finance Corporation Local Government Verification of Status of Site Plan Approval for Multifamily Developments form (Form Rev. 11-14). Appropriate Zoning. The Applicant must provide, as Attachment 8 to Exhibit A, the applicable properly completed and executed verification form: (a) Florida Housing Finance Corporation Local Government Verification that Development is Consistent with Zoning and Land Use Regulations form (Form Rev. 11-14) or (b) Florida Housing Finance Corporation Local Government Verification that Permits are not Required for this Development form (Form Rev. 11-14). RFA at 60. Attachment 7 relates to the status of the project's site plan approval. The form directs the person who signs it to mark one of three alternative statements to signify which is applicable to the proposed development. On the form attached to Houston Street's application, the following statement was selected: ? The above-referenced Development is (a) new construction, or (b) rehabilitation with new construction, or (c) rehabilitation, without new construction, that requires additional site plan approval or similar process, and (i) this jurisdiction provides either preliminary site plan approval or conceptual site plan approval which has been issued, or (ii) site plan approval is required for the new construction work and/or the rehabilitation work; however, this jurisdiction provides neither preliminary site plan approval nor conceptual site plan approval, nor is any other similar process provided prior to issuing final site plan approval. Although there is no preliminary or conceptual site plan approval process and the final site plan approval has not yet been issued, the site plan, in the zoning designation stated above, has been reviewed. The necessary approval and/or review was performed on or before the submission deadline for the above referenced FHFC Request for Proposal/Application by the appropriate City/County legally authorized body; e.g. council, commission, board, department, division, etc., responsible for such approval process. Joint Ex. 2 at 39 of 111. The Local Government Verification of Status of Site Plan Approval must be "signed by the applicable City's or County's Director of Planning and Zoning, chief appointed official (staff) responsible for determination of issues related to site plan approval, City Manager, or County Manager/Administrator/Coordinator." Houston Street's form was signed by Folks Huxford, Chief of the Current Planning Division for the City of Jacksonville. By signing the form, Mr. Huxford certified that he had the authority "to verify status of site plan approval as specified above and . . . that the information stated above is true and correct." Mr. Huxford was an acceptable signatory. Pine Grove asserts that Houston Street did not obtain the conceptual site plan approval for which local law allegedly provides, and therefore that Houston Street's Local Government Verification of Status of Site Plan Approval form is incorrect and, accordingly, nonresponsive. Pine Grove bases its argument on certain provisions of the Jacksonville, Florida, Code of Ordinances, about whose meaning Pine Grove disagrees with Mr. Huxford, and on the fact that no conceptual site plan approval had been issued for Houston Street's proposed development. A good place to start in evaluating Pine Grove's position is with a look at the site-plan status form's purpose. It is clear from the language of the form that what FHFC wants, in a nutshell, is an authoritative statement from the local government advising that the local government either has approved, or is currently unaware of grounds for disapproving, the proposed development's site plan. The relevance of this statement lies not so much in its being correct, per se, but in the fact that it was made by a person in authority whose word carries the weight of a governmental pronouncement. Put another way, the statement is correct if made by an official with the authority to utter the statement on behalf of the local government; it is a verbal act, a kind of approval in itself. FHFC might, of course, deem a fully executed site-plan status form nonresponsive for a number of reasons. If it were determined that the person who signed the form lacked the requisite authority to speak for the government; if the statement were tainted by fraud, illegality, or corruption; or if the signatory withdrew his certification, for example, FHFC likely would reject the certification. No such grounds were established in this case, or anything similar. Instead, Pine Grove contends that Mr. Huxford simply erred, that he should not have signed the Local Government Verification of Status of Site Plan Approval. Pine Grove makes a reasonable, or at least plausible, case to this effect. The fatal flaw in Pine Grove's argument, however, is that the decision whether to grant or deny this particular form of (preliminary) local governmental approval to Houston Street's site plan must be made by the local government having jurisdiction over the proposed development, i.e, the City of Jacksonville——not by Pine Grove, Houston Street, FHFC, or the undersigned. Mr. Huxford was empowered to make the statement for the city. He made it. No compelling reason has been shown here to disturb FHFC's acceptance of Mr. Huxford's certification as a valid expression of the City of Jacksonville's favorable opinion, as of the application submission deadline, regarding Houston Street's site plan. Attachment 8 relates to local zoning and land use regulations and requires a local official to confirm the following representations: The proposed number of units and intended use are consistent with current land use regulations and the referenced zoning designation or, if the Development consists of rehabilitation, the intended use is allowed as a legally non-conforming use. To the best of my knowledge, there are no additional land use regulation hearings or approvals required to obtain the zoning classification or density described herein. Assuming compliance with the applicable land use regulations, there are no known conditions which would preclude construction or rehabilitation (as the case may be) of the referenced Development on the proposed site. Joint Ex. 2 at 41 of 111. Mr. Huxford signed Houston Street's form, verifying that the proposed development is consistent with the City of Jacksonville's "local land use regulations and the [applicable] zoning designation." Mr. Huxford had the authority to make this statement on the city's behalf. Pine Grove claims that Houston Street's Local Government Verification That Development Is Consistent With Zoning and Land Use Regulations form is incorrect and nonresponsive because Houston Street has not yet obtained all the necessary land use approvals, including the allegedly available conceptual site plan approval mentioned previously. Pine Grove's argument in this regard is identical to its objection to Houston Street's site-plan status form, which was rejected above. For the reasons previously given, therefore, it is found that FHFC did not err in accepting Mr. Huxford's verification of consistency with local zoning and land use regulations as a valid expression of the City of Jacksonville's position on these matters in relation to Houston Street's proposed project. Thus, it is determined, as matters of ultimate fact, that Houston Street's application satisfied the RFA's specifications pertaining to Evidence of Site Control and Ability to Proceed, and that FHFC made no mistakes in deeming the application compliant with these requirements.
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 rescinding the preliminary award to Pine Grove and designating Houston Street as the recipient of the tax credits being made available for the development in the "Family or Elderly Demographic Commitment" category to be built in Duval County. DONE AND ENTERED this 18th day of August, 2015, 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 August, 2015.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order that Petitioner, J & L Farms, Inc., take nothing on its complaint and that the respondents, Bloomingdale Landscape Nursery, Inc., and Southeastern Casualty & Indemnity Insurance Company, go hence without day. DONE and ENTERED this 2nd day of March, 1989, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 2nd day of March, 1989.
Conclusions An Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings has entered an Order Closing File which relinquishes jurisdiction to the Department of Community Affairs (“Department”) of all of the issues raised in the Petition. A copy of the Order is attached to this Final Order as Exhibit A.
Findings Of Fact Respondent, Lincoln A. Herreid, was, at all times material hereto, licensed to practice land surveying in the State of Florida, having been issued license number 3015. At issue in these proceedings are three surveys, which Respondent admits he performed, signed and sealed, to wit: A survey of the real property located at 9 East Lucy Street, Florida City, Florida; a survey of a portion of the real property located in Florida Fruitland Company's Subdivision No. One, Dade County, Florida; and, a survey of the real property located at 20301 S.W. 117 Avenue, Miami, Florida. 9 East Lucy Street Survey On December 17, 1983, Respondent signed and sealed a Sketch of Survey" for Lots 1 and 2, Block 1, Hays Subdivision, Plat Book 55, Page 53, Public Records of Dade County, Florida, commonly known as 9 East Lucy Street, Florida City, Florida. The Lucy Street property is rectangular in shape, and abuts streets on its north, east and west sides. The survey shows only one angle and no bearings, fails to reflect the measured distance to the nearest intersection of a street or right-of-way, and fails to reflect whether any monument was found, or set, at the southeast corner of the property. The evidence establishes that no monument was found, or set, at the southeast corner of the property. Respondent avers that no monument was set because debris, composed of paints and chemicals, preempted the area and precluded the setting of a monument. However, no offset witness point was set, nor did the survey reflect why a monument had not been set. Florida Fruitland Company Subdivision Survey On February 24, 1984, Respondent signed and sealed a "Waiver of Plat," a survey of a portion of Tract 21, Section 15, Township 53 South, Range 40 East, of Florida Fruitland Company's Subdivision No. One, Plat Book 2, Page 17, Public Records of Dade County, Florida. The Waiver of Plat shows only one angle and no bearings, indicates the four corners of the property by "Pipe," without reference to whether the pipe was set or found, fails to reflect the measured distance to the nearest intersection or right-of- way, fails to reference the source documents for the legal description of the property, and fails to provide vertical datum and benchmark descriptions. Further, the survey incorrectly positioned the property, reflected inaccurate boundary measurements, and established an incorrect elevation. The property, which is the subject of the Waiver of Plat, is rectangular in shape, zoned commercial (no side set- backs required), and its front (the northern boundary of the property) abuts Northwest 70th Street, between N.W. 82nd Avenue and N.W. 84th Avenue, Miami, Florida. The evidence establishes that the north/south dimensions of the property, as reflected by Respondent's survey, were overstated by 2.1' on the west boundary line, and 2.01' on the east boundary line. Although Respondent correctly depicted the correct distances of the east/west property line, the positioning of that line in relation to the fractional line was in error by .12', and the northwest and northeast corner placements were in error by .24' and .20', respectively. The elevation established by Respondent's survey was in error by one foot. 20301 S.W. 117 Avenue Survey On June 13, 1984, Respondent signed and sealed a "Sketch of Survey," for Lot 17, Block 6, Addition J., South Miami Heights, Plat Book 68, Page 74, Public Records of Dade County, Florida commonly known as 20301 S.W. 117 Avenue, Miami, Florida. The Sketch of Survey reflects only one angle and no bearings, and failed to set a monument or offset witness point for the northeast corner of the property.
The Issue The issues in this bid protest are whether, in making a preliminary decision to award a public contract, Respondent acted contrary to a governing statute, rule, policy, or project specification; and if so, for each such instance, whether the misstep was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact On May 18, 2004, Respondent School Board of Broward County ("School Board" or "SBBC")2 issued Request for Proposals No. 2021-24-01 (the "RFP") to solicit offers on a contract for the design and construction of a middle school (the "Project"). Proposals were submitted by Petitioner Magnum Construction Management Corporation, d/b/a MCM Corp. ("MCM"); Intervenor James P. Pirtle Construction Company, Inc. ("Pirtle"); Seawood Builders, a Division of Catalfumo Construction, LLC ("Seawood"); Stiles Construction Co. ("Stiles"); James A. Cummings, Inc. ("Cummings"); and Skanska USA Building, Inc. ("Skanska"). SBBC opened these six proposals on August 31, 2004. In accordance with the evaluation procedure set forth in the RFP, the proposals were reviewed by a Consultant's Review Committee ("CRC"), whose task was to evaluate the proposals and prepare a "short list" of between three and six firms for the School Board, which would make the final determination. At its first meeting on September 14, 2004, the CRC rejected Skanska's proposal as nonresponsive for failing to submit an original bid bond. On September 30, 2004, the CRC met again and, after deliberating, decided to place the five remaining proposers on the "short list." Following the CRC's review, the evaluation proceeded pursuant to Section 1.21 of the RFP, which states: The Facilities and Construction Management Division will forward to the Superintendent of Schools the completed short-list of the Proposer's Submittal. The Superintendent will then forward the Short- List to The School Board of Broward County, Florida for its use in the interview and final selection of the successful Proposer(s). The short list of [sic] will be forwarded to the School Board of Broward County, Florida unranked. The short-listed firms shall present their design solutions to The School Board of Broward County, Florida. Short-listed firms will be notified of the time and place for their respective presentations. Proposer may utilize any media for their presentations, but shall restrict their presentations to 30 minutes total (5 minutes for set-up, 10 minutes for presentation, and 15 minutes for questions and answers). At the conclusion of the Proposer's presentation to the Board, Board Members may ask questions concerning the presentation, the Proposer's assembled Design/Build team, and the Design Criteria Professional's assessment of the Proposer’s submittal or topic of the Board Member's choice [sic] preliminary design concept for the project, including means and methods. At the conclusion of the presentation and interview of all short-listed firms, The School Board of Broward County, Florida will deliberate and utilize the short-listing evaluation criteria and point schedule to finalize a selection of the successful Proposer. The Board reserves the right to award a contract for the project or award no contract (reject all submittals). During and at the conclusion of the presentation and interview of all short- listed firms, the School Board of Broward County, Florida will assign points to each Proposer utilizing the above evaluation criteria and rank them according to their scores. The firm receiving the most points by a Board Member will be considered the first choice of that Board member. The firm that receives a majority of the first choice votes may be awarded the contract.[3] In the event of a tie, a voice vote will be taken until the tie is broken. The Board reserves the right to award a contract for the project or award no contract. The "evaluation criteria and point schedule" referred to in Section 1.21(D) and (E) are found in Section 1.20, which provides as follows: The School Board of Broward County, Florida's final selection will be based on the Selection Criteria Score Sheet. Evaluation Criteria Maximum Points Profile & Qualifications of Proposer's Team 6 Proposed Project Scheduling 7 Past Work Performance and References 10 Site Design 7 Building Design 23 Cost proposal 25 S.I.T. Award 15 MBE Participation 7 Total Points Possible 100 The School Board of Broward County, Florida will award points up to a maximum, for evaluation criteria numbers listed above as based upon an evaluation of the Proposer's submittal and presentation. On October 12, 2004, the School Board held a special meeting to discuss the procurement with staff, hear the presentations of the short-listed proposers, and grade the proposals. Eight board members participated.4 One subject that generated considerable discussion was the "S.I.T. Award," an evaluation criterion worth 15 points. The S.I.T. Award (the acronym stands for School Infrastructure Thrift) was based on a mathematical calculation that left no room for discretion. Points were awarded on a predetermined scale according to the percentage by which a proposer's base proposal amount fell below, or exceeded, the Project's established budget as a function of cost per student station. Because the allowable cost per student station is $15,390 and the Project calls for 1,998 student stations, the budget, for purposes of the S.I.T. Award, is $30,749,200. As the School Board's staff had determined before the special board meeting on October 12, 2004, MCM's base proposal amount is 15.48 percent below the S.I.T budget. The cost of Cummings' proposal is 11.36 percent below the budget, Pirtle's about three percent below $30.7 million, Seawood's roughly equal to the budget, and Stiles' proposal 12 percent above the established budget. On these percentages, using the scoring scale prescribed in the RFP, MCM and Cummings were entitled to 15 points apiece in the S.I.T. Award category, Pirtle seven points, Seawood six points, and Stiles zero points. The School Board was informed of these scores before its members graded the proposals on the seven remaining criteria. After the proposers had made their presentations, the board members individually assigned points to the proposals. MCM received the highest aggregate score (713), followed by Pirtle (705), Cummings (698), Seawood (668), and Stiles (541). Pirtle, however, received the most first choice votes of any proposer——four. Cummings received two first choice votes, and MCM and Seawood were each ranked first by one member. The following table depicts the rankings by member: Budnick Carter Gallagher Kraft Parks Rubinstein Wexler Williams 1 Seawood MCM Pirtle Pirtle Cummings Pirtle Cummings Pirtle 2 MCM (-1) Cummings MCM/Seawood (-4) Seawood MCM (-2) MCM (-1) MCM (-1) Cummings 3 Cummings Pirtle Cummings Pirtle Cummings Pirtle/Seawood MCM 4 Pirtle Seawood Cummings MCM Seawood Seawood Seawood 5 Stiles Stiles Stiles Stiles Stiles Stiles Stiles Stiles The parenthetic numbers in the second row show by how many points MCM trailed the first choice. Although Pirtle did not receive a majority of the first choice votes, the School Board nevertheless voted to award the contract to Pirtle.5 Pirtle has argued that MCM lacks standing to maintain this protest because MCM came in tied (with Seawood) for third—— behind Pirtle and Cummings, respectively——according to the number of first choice votes each proposal received. While the RFP does not specify a procedure for ranking the proposals behind the number one choice, the method suggested by Pirtle is inconsistent with the RFP's plain language, which is clearly intended to ensure that the contract is awarded to the first choice of a majority of the board members. To determine second place, the proper question is not, Who had the most first choice votes after Pirtle? but rather, Who would be the first choice of a majority if Pirtle were unavailable? To begin to answer the relevant question, Pirtle must be removed from the rankings of the respective members, and each proposer below Pirtle moved up a spot. When this is done, the rankings look like this: Budnick Carter Gallagher Kraft Parks Rubinstein Wexler Williams 1 Seawood MCM MCM/Seawood Seawood Cummings MCM Cummings Cummings 2 MCM Cummings Cummings MCM Cummings MCM MCM 3 Cummings Seawood Cummings MCM Seawood Seawood Seawood Seawood 4 Stiles Stiles Stiles Stiles Stiles Stiles Stiles Stiles 5 What the foregoing table shows is that without Pirtle, there is no clear favorite, but essentially a three-way tie between Seawood, MCM, and Cummings. Under the RFP, the School Board would need to take a voice vote until one of the three commanded majority support. That, of course, did not occur in the event. Therefore, it is impossible to determine, on the instant record, which proposer was the School Board's second choice (or third or fourth choice, for that matter). On October 15, 2004, MCM timely filed a notice of intent to protest the School Board's preliminary decision to award Pirtle the contract. MCM followed its notice of intent with a formal written protest, which was timely filed on October 25, 2004. MCM's protest rests on two pillars. The first is a contention that the School Board employed an unstated evaluation criterion, namely a preference for builders who had previously done work for SBBC. The second is an argument that Pirtle's proposal is materially nonresponsive for failing to comply with the RFP's directives on M/WBE participation.6 The findings that follow are pertinent to MCM's specific protest grounds. Regarding the alleged unstated evaluation criterion, it is undisputed that the RFP does not expressly disclose that past work for SBBC will or might count for more than similar work for another school district. The RFP does, however, contain a clear and unambiguous statement of experiential preferences, in Section 1.1(E), which states: The School Board of Broward County would prefer to select a Design/Builder with proven successful experience in the Design and Construction of 3 school projects completed within the past 5 years in the State of Florida. This sentence enumerates five discrete experience- related preferences, which are that, (1) in the past five years, the builder should have (2) designed and built school projects (3) on three occasions, (4) in the State of Florida, (5) each of which was a proven success. The list of experiential preferences in Section 1.1(E) is clearly exclusive, meaning that it does not purport to include other similar or related preferences, but rather is intended to identify all such preferences. This is demonstrated by the absence of any language, such as "including but not limited to" or "among other things," manifesting an intention to include other matters that are ejusdem generis7 with the items listed. Notice, too, that of the five experiential preferences, three are purely objective. Specifically, preference nos. 1, 3, and 4 (as numbered herein) are simply matters of historical fact that either happened or did not happen, for reasons wholly extrinsic to the mind of any School Board member. Moreover, the satisfaction of these three experience-related preferences is not a matter of degree: the desired quality is either objectively present, or it is absent; there is no discretionary middle ground. The upshot is that, as between two proposers who, as a matter of fact, have experience satisfying preference nos. 1, 3, and 4, no qualitative distinction can rationally be drawn as to those particulars. The other two experiential preferences, in contrast, are infused, in varying degrees, with elements of subjectivity. Thus, preference no. 2 allows the individual evaluator some discretion to determine what constitutes a "school project" and, more important, to distinguish qualitatively between one "school project" and another. Preference no. 5 is even more subjective, for "success," like beauty, is in the eye of the beholder. Rational distinctions could be drawn, therefore, between one proposer and another, based on personal (i.e. subjective) assessments of the relative "success" of the respective builders' prior "school projects."8 In evaluating the five short-listed proposals, seven of the eight participating board members9 did, in fact, award more points (on some criteria) to proposers that previously have built schools for SBBC (namely Pirtle, Cummings, and Seawood), while deducting or withholding points (on some criteria) from proposers who have not previously done work for SBBC (MCM and Stiles), based on each proposer's status as a former SBBC- contract holder or a newcomer to SBBC contracting.10 This strong parochial preference most dramatically affected the scoring of the Past Work Performance and References criterion, although some board members also considered a proposer's past work for SBBC (or lack thereof) in scoring Profile & Qualifications of Proposer's Team and even Proposed Project Scheduling.11 The preference for builders having previous business experience with SBBC had a palpable impact on the scoring and was likely decisive. Although it is impossible to quantify precisely the effect of the parochial preference, its influence can easily be seen in a comparison of the scores awarded, on the criterion of Past Work Performance and References, by the seven board members who favored SBBC-experienced builders: MCM Cummings Pirtle Stiles Seawood Budnick 7 10 10 3 8 Gallagher 3 5 10 6 8 Kraft 7 9 10 9 9 Parks 9 10 10 9 10 Rubinstein 5 10 10 8 6 Wexler 7 10 10 8 8 Williams 5 9 10 5 5 As the table shows, Pirtle, who has performed the most work for SBBC of any of the five competitors, received the maximum score from all seven of the board members who employed the parochial preference. Cummings, whose previous work for SBBC is significant but less extensive than Pirtle's, received an average score of 9 in the past work category. Seawood, which has performed some construction work for SBBC in the past, but not as much as either Pirtle or Cummings, received an average score of 7.71. Stiles and MCM, neither of which has done construction work for SBBC, received average scores of 6.86 and 6.14, respectively. At bottom, MCM and Stiles received, in the past work category, at least a point less, on average, than the lowest-ranked of the three builders having previous experience with SBBC. Given that three board members (Budnick, Rubinstein, and Wexler) ranked MCM just one point below their respective first choices, the parochial preference could well have determined the result even if its application produced only a small scoring discrepancy in a single evaluative category. One aspect of the preference for SBBC-experienced builders needs to be repeated for emphasis. The preference was manifested not only as an advantage conferred on builders having such experience, but also as a disadvantage imposed on builders lacking previous experience with SBBC. Builders having worked for SBBC received more points, for that reason, than they would have been awarded, had their previous projects been performed for owners other than SBBC, whereas builders who had not worked for SBBC received fewer points than they would have received, if their previous projects had been built for SBBC. The parochial preference, in other words, operated as a two-edged handicap, making it doubly powerful. In fact, the preference was so strong that SBBC experience was not, for seven evaluators out of eight, simply a factor to be considered in evaluating a builder's past work; it was effectively a condition of, or a prerequisite to, receiving the total possible points of 100. That is, the effect of the preference was such that unless a builder had previous experience with SBBC, the builder could not receive 10 points in the past work category from most of the board members, regardless of how extensive——and how successful——its experience in building schools for others had been. In sum, it is determined that the School Board used an undisclosed preference for builders having experience with SBBC in scoring and ranking the proposals, and that the use of this preference had a material effect on the evaluation——probably even deciding the outcome. Indeed, but for the use of this undisclosed preference, there is a good chance (though it is not certain) that MCM would have been the first choice of a majority of the board members. Whether the School Board's conduct in this regard requires that the proposed award to Pirtle be set aside will be taken up in the Conclusions of Law below. Turning to MCM's other principal contention, it is alleged that Pirtle's proposal deviated materially from the RFP's specifications because Pirtle allegedly failed to comply with the minimum requirements for minority participation in the Project. On the subject of minority participation, the RFP states, in relevant part: The School Board of Broward County, Florida is committed to affirmatively ensuring a substantial increase in the awarding of construction subcontracts to Minority Businesses. Design/Build firms selected to participate in this RFP must . . . have M/WBE subcontracting goals[,] and [the successful firm must] fully participate in the MBE Program. The M/WBE Contract Goal Range for this project is 20-22 percent. The Proposer should attempt to fulfill the goal with the following ethnic distributions: African American 6-8 percent Hispanic: 4-5 percent White Female 4-6 percent Other 0-3 percent The School Board encourages the use of minority subcontractors in excess of the minimum goal ranges established for this project. Section 00030, page 2. In addition, Section 1.13 requires that the following M/WBE-related information be submitted with a proposal: Document 00466 – Statement of Commitment [containing the proposer's pledge to comply with the M/WBE program] Document 00470 – Letter of Intent: M/WBE Subcontractor Participation [from each certified minority business that has agreed to participate in the Project, describing the subject of the subcontract and the dollar amount thereof] Separate Section with a sub tab: M/WBE Participation Briefly discuss how the Proposer will address the M/WBE participation goals. Identify proposed M/WBE team members, their role, and their anticipated percentage of participation. Include past experience with the team. Proposers shall submit evidence of dollar ($) participation for the past two (2) years, both internal and agency documentation of its M/WBE utilization, and, evidence of any M/WBE outreach, internship, and apprenticeship programs it conducts. Proposers, if awarded a contract, shall submit monthly M/WBE Utilization reports on forms provided by The School Board of Broward County, Florida, M/WBE Compliance Office, with each request for payment. Such reports shall also include evidence of dollar participation for the past 2 years, both internal and agency documentation of its M/WBE utilization, and evidence of any M/WBE outreach, internship, and apprenticeship programs it conducts. The foregoing language, which is contained in an addendum to the RFP that was issued on June 16, 2004, supplanted provisions in the first release of the RFP that would have required proposers to submit even more information relating to the satisfaction of M/WBE goals. Pirtle's proposal clearly complied with Sections 1.13(G) and 1.13(H)(1)(a)-(c) of the RFP. Where Pirtle fell short, according to MCM, was on the requirement to submit letters of intent from minority subcontractors. Pirtle did, in fact, attach a couple of letters of intent to its proposal——but these showed minimal minority participation, far below the prescribed range of 20-22 percent. MCM contends that proposers were required to submit letters of intent documenting minority participation meeting the M/WBE goals for the Project. Put another way, it is MCM's position each proposer needed to line up most or all of its minority subcontractors before submitting a proposal. The School Board asserts that proposers were not required to submit all of their letters of intent, but merely some letters as the fruit of good faith efforts to reach the mandated M/WBE goals.12 The evidence supports the School Board's contention that this was indeed the operative interpretation and understanding of Sections 1.13(G) and 1.13(H). Under this interpretation, a proposal such as Pirtle's that included some letters of intent would be deemed responsive; a paucity or plethora of letters of intent would then be a factor for the evaluators to consider in scoring MBE Participation, a selection criterion worth seven points. Whether the plain meaning of Section 1.13(H) supports MCM's or the School Board's position, or alternatively whether the School Board's interpretation is clearly erroneous, is a legal question that will be addressed below.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered that rescinds the proposed award to Pirtle. In addition, while recognizing that the choice of remedies for invalid procurement actions is within the agency's discretion, it is nevertheless recommended that a meeting be convened for the purposes of reassigning points to each proposer using the published selection criteria, re-ranking each proposer according to its respective scores, and awarding the contract to the firm that receives a majority of the first choice votes. DONE AND ENTERED this 21st day of March, 2005, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 21st day of March, 2005.
The Issue The issue to be determined in this case is whether the amendments to the Manatee County Comprehensive Plan (Manatee Plan) adopted by the Board of County Commissioners of Manatee County via Ordinance No. 13-10 on December 5, 2013, are “in compliance,” as defined in section 163.3184(1)(b), Florida Statutes (2013).
Findings Of Fact The Parties Katie Pierola is a resident and landowner in Manatee County. Mrs. Pierola made timely objections and comments to Manatee County on the 2013 Amendments. Greg Geraldson is a resident and landowner in Manatee County. Mr. Geraldson made timely objections and comments to Manatee County on the 2013 Amendments. Manatee County is a political subdivision of the State and has adopted the Manatee Plan, which it amends from time to time pursuant to section 163.3184, Florida Statutes. Robinson Farms is a Florida corporation doing business in Manatee County and owning real property in the County. It owns the property affected by the 2013 Amendments. The 2013 Amendments The 2013 Amendments would amend the Future Land Use Map of the Manatee Plan to change the future land use classification of approximately 20 acres of land owned by Robinson Farms from RES-1 to RES-3. The land is described by metes and bounds in Exhibit A to Ordinance No. 13-10. It is located on the north side of 9th Avenue Northwest, about 600 feet east of 99th Street. The RES-1 classification allows one dwelling unit per acre (du/a). The RES-3 classification allows up to three du/a. The General Introduction chapter of the Manatee Plan, Section D – Special Plan Interpretation Provisions, would be amended to add the following new text: D.5.16 Ordinance 13-10 (ROBINSON FARMS PLAN AMENDMENT) The 20± acre property identified as the Robinson Farms Plan Amendment and designated RES-3 on the Future Land Use Map pursuant to Manatee County Ordinance No. 13-10 shall be limited to a maximum of thirty eight (38) residential units. Coastal Evacuation Area and Coastal High Hazard Area All 20 acres of the Robinson Farms property is within the Coastal Evacuation Area (CEA). The CEA is defined in the Manatee Plan as: The evacuation Level A for a Category 1 hurricane as established in the regional evacuation study applicable to Manatee County, as updated on a periodic basis. Future Land Use Element (FLUE) Policy 2.2.2.4.2, which addresses the purposes of the CEA, states in part: To limit population in the Category 1 hurricane evacuation area requiring evacuation during storm events. To limit the amount of infrastructure, both private and public, within the CEA Overlay District and thereby limit magnitude of public loss and involvement in mitigating for loss of private infrastructure to Manatee County residents. To, through exercise of the police power, increase the degree of protection to public and private property, and to protect the lives of residents within the CEA, and reduce the risk of exposing lives or property to storm damage. All but 4.68 acres is within the Coastal High Hazard Area (CHHA). The CHHA is defined in the Manatee Plan as: The geographic area below the Category 1 storm surge line as established by a Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model, pursuant to applicable law, as updated on a periodic basis. FLUE Policy 2.2.2.5.2, which addresses the purposes of the CHHA, repeats the same purposes that are set forth above for the CEA. Relevant Goals, Objectives, and Policies Goal 4.3 of the Coastal Element of the Manatee Plan is: Protection of the Residents and Property Within the Coastal Planning Area from the Physical and Economic Effects of Natural Disasters Coastal Element Objective 4.3.1 states: Limit development type, density and intensity within the Coastal Planning Area and direct population and development to areas outside the Coastal High Hazard Area to mitigate the potential negative impacts of natural hazards in the area. Coastal Element Policy 4.3.1.1 states: Direct population concentrations away from the Coastal Evacuation Area FLUE Policy 2.2.2.4.5(a), which addresses development restrictions in the CEA, states: Prohibit any amendment to the Future Land Use Map which would result in an increase in allowable residential density on sites within the Coastal Evacuation Area. FLUE Policy 2.2.2.4.4(a) states, in part: The area designated under the CEA Overlay District on the Future Land Use Map shall also be subject to all goals, objectives and policies for any land use category overlaid by the CHHA District, except where policies associated with the CEA Overlay conflict with such goals, objectives and policies. In this event, policies associated with the CHHA Overlay District shall override other goals, objectives and policies. FLUE Policy 2.2.2.5.5(a), which addresses development restrictions in the CHHA, states: Prohibit any amendment to the Future Land Use Map which would result in an increase in allowable residential density on sites within the Coastal High Hazard Area Overlay District. FLUE Policy 2.2.2.5.4(a) states that, in the event of a conflict between CHHA policies and other policies in the Manatee Plan, the CHHA policies shall override. Data and Analysis Petitioners contend that the 2013 Amendments are not based on best available data and analysis as required by Florida Administrative Code Rule 9J-5.005(2). However, that rule was repealed in 2011. Section 163.3177(1)(f) requires that plan amendments be based on “relevant and appropriate data and analysis.” This section explains: To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue. Petitioners contend that the proposed reclassification of the Robinson Farms property from RES-1 to RES-3 does not react appropriately to the data which show the Robinson Farms property lies within the CEA and CHHA. However, as explained in the Conclusions of Law, it is not the mapping of the CEA and CHHA that creates a conflict with the 2013 Amendments. The conflict is created by the policies which address future land uses in the CEA and CHHA. Internal Consistency Petitioners contend that the 2013 Amendments make the Manatee Plan internally inconsistent with Coastal Element Objective 4.3.1 and Coastal Element Policy 4.3.1.1 which require “population concentrations” to be directed away from the Coastal Evacuation Area. No evidence was presented by Petitioners or by Manatee County on the County’s interpretation of the term “population concentrations.” However, FLUE Policy 2.2.2.4.5(a) prohibits any increase in residential density in the CEA. Therefore, assuming as we must that the Manatee Plan is internally consistent, it follows that “population concentrations” in Coastal Element Objective 4.3.1 and Policy 4.3.1.1 means any increase in residential density. Because the 2013 Amendments increase residential density in the CEA, they are inconsistent with this objective and policy. Because the 2013 Amendments would amend the Future Land Use Map to increase allowable residential density on a site within the CEA they are inconsistent with FLUE Policy 2.2.2.4.5(a), which prohibits any amendment to the Future Land Use Map that would increase allowable residential density on sites within the CEA. Because the 2013 Amendments would amend the Future Land Use Map to increase allowable residential density on a site within the CHHA they are inconsistent with FLUE Policy 2.2.2.5.5(a), which prohibits any amendment to the Future Land Use Map that would increase allowable residential density on sites within the CHHA. Competing Policies Manatee County and Robinson Farms argue that there are other policies in the Manatee Plan, such as those that discourage urban sprawl and encourage infill in the Urban Core Area, which the County must weigh along with the policies discussed above. The County contends that it weighed these conflicting policies and reached a fairly debatable determination that the 2013 Amendments are consistent with the Manatee Plan. Contradicting this argument are FLUE Policy 2.2.2.4.4(a) and FLUE Policy 2.2.2.5.4(a), which state that the CEA and CHHA policies shall override any conflicting goals, objectives, and policies in the Manatee Plan. Urban sprawl, infill, and other policies of the Manatee Plan cannot be invoked to avoid the specific prohibitions in FLUE Policies 2.2.2.4.5(a) and 2.2.2.5.5(a) against any amendment to the Future Land Use Map that would result in an increase in allowable residential density on sites within the CEA and CHHA. Density Offsets Manatee County and Robinson Farms argue that the County’s reduction in dwelling units in other parts of the CHHA over the past several years is a valid consideration in determining whether an increase in residential density on the Robinson Farms property is permissible despite the prohibition in FLUE Policy 2.2.2.5.5(a). In support of their argument, they cite Department of Community Affairs v. Leeward Yacht Club, LLC, DOAH Case No. 06-0049GM, 2006 WL 2497934 (Nov. 16, 2006). However, the Leeward Yacht Club case involved the comprehensive plan of Lee County, which did not prohibit increases in residential density in the CHHA. In contrast, the Manatee Plan quite plainly prohibits “any amendment” to the Future Land Use Map that would increase residential density in the CHHA. Previous Proceedings These same parties were involved in a dispute regarding an earlier proposed amendment to the Manatee Plan to reclassify property owned by Robinson Farms from RES-1 to RES-3. The 2010 Amendment was different in that it affected 28 acres (which encompasses the 20 acres in the 2013 Amendments). The 2010 Amendment would have increased the residential density on the 28 acres from 28 dwelling units to 105 dwelling units, all in the CEA. It would have added 56 dwelling units to the CHHA. Petitioners challenged the amendment and an evidentiary hearing was held before Administrative Law Judge D.R. Alexander (DOAH Case No. 11-0009GM). On April 13, 2011, Judge Alexander entered a Recommended Order which recommended that the 2010 Amendment be determined not in compliance because: The amendment was not based on relevant and appropriate data because the most current SLOSH model results were not used; The amendment was inconsistent with FLUE Policy 2.2.2.4.5(a) which prohibits any increase in residential density in the CEA. The amendment was inconsistent with Coastal Element Objective 4.3.1 and Policy 4.3.1.1 which require that population and development be directed to areas outside the CHHA. The Recommended Order went to the Administration Commission, which ultimately dismissed the case when Manatee County rescinded Ordinance No. 10-02 and the 2010 Amendment. In Manatee County Ordinance No. 11-035, which was the ordinance used to rescind the 2010 Amendment, the Board of County Commissioners determined that the 2010 Amendment was internally inconsistent with FLUE Policy 2.2.2.4.5(a), Coastal Element Objective 4.3.1, and Coastal Element Policy 4.3.1.1 because the amendment increased residential density in the CEA and CHHA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission issue a final order determining that the 2013 Amendments adopted by Manatee County Ordinance No. 13-10 are not in compliance. DONE AND ENTERED this 8th day of July, 2014, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 8th day of July, 2014. COPIES FURNISHED: James A. Minix, Esquire Manatee County Attorney's Office Post Office Box 1000 Bradenton, Florida 34206 Edward Vogler, II, Esquire Vogler Ashton, PLLC 2411-A Manatee Avenue West Bradenton, Florida 34205-4948 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Peter Antonacci, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Robert N. Sechen, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128
