Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D2025-1661 _____________________________ BDG FERN GROVE PHASE TWO, LP, Appellant, v. WHFT LL WORKFORCE, LTD, WHFT LL WORKFORCE DEVELOPER, LLC, FLORIDA HOUSING FINANCE CORPORATION, RPV PARCEL D, LP, MHP PASCO III, LLC, HORIZONS OWNER, LLC, CARVER THEATER, LTD., HELM’S BAY LANDING WORKFORCE, LTD., Appellees. _____________________________ On appeal from the Florida Housing Finance Corporation. Sandra Veszi Einhorn, Chairperson. November 12, 2026 M.K. THOMAS, J. Appellant BDG Fern Grove Phase Two, LP (“Fern Grove”) appeals a Final Order of the Florida Housing Finance Corporation (“Florida Housing”) adopting an Administrative Law Judge’s recommended order that its application for state funding under Request for Applications 2024-2313 (RFA) failed to satisfy the RFA’s mandatory Mixed-Use experience requirements. Fern Grove argues that Florida Housing misinterpreted the plain language of the RFA by imposing an unwritten requirement that institutional services be delivered from a physically “dedicated space,” that the decision was arbitrary and capricious in light of Florida Housing’s treatment of comparable applicants, and that the bifurcated review of eligibility and credit-underwriting issues denied Fern Grove a fair proceeding. We agree that the Final Order erroneously injected a “dedicated space” requirement into the RFA’s text. Nevertheless, we affirm under a correct interpretation of the RFA, because the Final Order is supported by independently sufficient and unchallenged factual findings about Fern Grove’s experience. I. On November 20, 2024, Florida Housing issued RFA 2024- 213, soliciting proposals for State Apartment Incentive Loan (“SAIL”) funding under section 420.5087, Florida Statutes, for mixed-income, mixed-use, and urban infill developments, as authorized by the 2023 Live Local Act. The RFA established minimum eligibility requirements, including specific developer and management-company experience criteria. No party protested the RFA’s terms before the application deadline. Florida Housing received sixty-five applications. Its internal review committee scored fifty-seven as eligible, and recommended ten for funding. On January 24, 2025, Florida Housing’s Board of Directors preliminarily approved funding for those ten developments, subject to successful credit underwriting. Appellees, WHFT LL Workforce, Ltd., and WHFT LL Workforce Developer, LLC (collectively, “Catchlight”), were found eligible but were not among the ten initially recommended. Fern Grove submitted a timely application for a 129-unit mid- rise development in Orange County as a Mixed-Use Development under the Mixed-Use Institutional Space subcategory, committing to lease 1,000 square feet within the development to a food pantry and counseling facility operating at least five days per week. To 2 satisfy the RFA’s experience requirements, Fern Grove was required to identify prior developments demonstrating both management and developer experience with Mixed-Use Developments. For management experience, Fern Grove identified Banyan Reserve and Banyan Cove, both managed by AGPM, LLC, with resident services provided by the Treehouse Foundation (“Treehouse”). For developer experience, Fern Grove identified Parramore Oaks, a 120-unit affordable-housing development in Orlando. At Banyan Reserve and Banyan Cove, Treehouse offered workshops, classes, and a helpline Monday through Friday, but did not maintain dedicated space within either development, and was not present on-site five days a week. When services were delivered on-site, they occurred in shared common spaces. At Parramore Oaks, the Orlando Neighborhood Improvement Corporation (“ONIC”) operated a Housing Stability Program from October 2021 through February 2023, primarily from ONIC’s main office rather than the development, and a separate Prodigy Cultural Arts Program beginning in December 2023 that met twice weekly over eight-week sessions. The two programs did not run concurrently, and on-site services were delivered in shared common spaces such as the community room and computer lab. Catchlight timely protested Fern Grove’s preliminary award. Following a final hearing held March 25–26, 2025, the Administrative Law Judge (“ALJ”) issued a Recommended Order concluding that Fern Grove failed to meet the RFA’s mandatory experience requirements and that Florida Housing’s initial eligibility determination was clearly erroneous. Florida Housing’s Board denied Fern Grove’s exceptions and adopted the Recommended Order as its Final Order on June 13, 2025. This appeal followed. II. This Court reviews an agency’s factual findings for competent, substantial evidence; reviews legal conclusions de novo; and reviews the recommended penalty for abuse of discretion. §§ 120.68(7)(b), 120.68(7)(d)–(e), Fla. Stat.; Robinson v. Comm’n on Ethics, 242 So. 3d 467, 470–71 (Fla. 1st DCA 2018). “Section 3 120.68(7) authorizes this Court to remand or set aside agency action that depends on findings unsupported by competent, substantial evidence, or on an erroneous interpretation of law where a correct interpretation compels a different result.” Heritage Oaks, LLP v. Madison Pointe, LLC, 224 So. 3d 215, 218 (Fla. 1st DCA 2019) (quoting Brownsville Manor, LP v. Redding Dev. Partners, LLC, 224 So. 3d 891, 894 (Fla. 1st DCA 2017)). This Court interprets administrative rules and solicitation specifications de novo. Id. Section 120.57(3)(f), Florida Statutes, sets out the following framework by which competitive-procurement protests are reviewed: [O]ther than a rejection of all bids, proposals, or replies, the [ALJ] shall conduct a de novo proceeding to determine whether the agency’s proposed action is contrary to the agency’s governing statutes, the agency’s rules or policies, or the solicitation specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious. In any bid-protest proceeding contesting an intended agency action to reject all bids, proposals, or replies, the standard of review by an administrative law judge shall be whether the agency’s intended action is illegal, arbitrary, dishonest, or fraudulent. Below, it was Catchlight’s burden to demonstrate that Florida Housing’s initial eligibility determination was clearly erroneous, contrary to competition, arbitrary, or capricious. Our review centers on Florida Housing’s interpretation of the terms set forth in the RFA. “An agency may not adopt implausible or unreasonable interpretations of an RFA.” Heritage Oaks, LLP, 277 So. 3d at 218. Neither an agency nor a reviewing court may add words to a governing text that its drafters omitted. Bydalek v. Saenz, 368 So. 3d 508, 511 (Fla. 3d DCA 2023); Dep’t of Mgmt. Servs. v. AFSCME Fla. Council 79, 353 So. 3d 1237, 1242 (Fla. 1st DCA 2022). A solicitation must be interpreted according to its plain and ordinary terms, and requirements absent from the text 4 cannot be imposed after the fact. State v. Mark Marks, P.A., 698 So. 2d 533, 540 (Fla. 1997) (“When the language of a statute is clear and unambiguous, . . . the language should be given effect without resort to extrinsic guides to construction.”); see also Brownsville Manor, 224 So. 3d at 894–95 (reversing an ineligibility determination where the final order referenced the failure to begin a process where that process was not a requirement of the RFA and the applicant had complied with all express requirements at the application stage); City of Sweetwater v. Solo Const. Corp., 823 So. 2d 798, 802 (Fla. 3d DCA 2002) (finding a city’s decision to award a contract “arbitrary and capricious and based upon criteria neither included in the bid documents nor clearly defined in any manner whatsoever”). The RFA defines “Mixed-Use Institutional Space” as “[c]haritable, educational, healthcare, or civic services (local government/state) within a Development that is in operation at least 5 days a week.” “Mixed-Use Commercial Space” is defined as “[r]etail or office space within a Development that produces income for the Development that exceeds the operating expenses.” The Commercial definition uses the word “space” and the Institutional definition does not, though the word appears in both terms’ titles. The use of certain words in one section and the absence of those words in another may support the position that both sections were designed for different purposes. See State v. Bradford, 787 So. 2d 811, 819 (Fla. 2001) (“[Under] well-settled principles of statutory construction . . . ‘[t]he legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended.’”) (quoting Mark Marks, P.A., 698 So. 2d at 541). Both definitions sit within the broader definition of “Mixed- Use Development,” which requires a residential component together with Mixed-Use Commercial Space and/or Mixed-Use Institutional Space as the “non-residential component.” Florida Housing determined that the word “component” itself connotes a physical, definable part of a development. The ALJ accepted this reasoning below, relying on dictionary definitions of “component” and “constituent” to conclude that the development consists of the building, the personal property within it, and the land beneath it, such that each component must be a “definable unit.” 5 We cannot adopt the ALJ’s substitution of “definable unit” for the RFA’s own term. That phrase, like “dedicated space,” appears nowhere in the RFA. Notably, the term “dedicated” is used elsewhere in the RFA but not in either Mixed-Use definition. That selective usage suggests a deliberate drafting choice rather than an oversight. See Headley v. City of Miami, 215 So. 3d 1, 9 (Fla. 2017) (“It is true that when the words in a statute are technical in nature and have a fixed legal meaning, it is presumed that the Legislature intended that the words be given their technical meaning.”). To the extent the Final Order rested on a requirement that institutional experience be shown through a physically dedicated, exclusive space, it imposed a criterion the RFA does not expressly state, and we hold that aspect of the Final Order to be an erroneous interpretation of the RFA. However, identifying error in the “dedicated space” interpretation does not end our inquiry. Pursuant to section 120.68(7), reversal is only required where no alternative ground is available under a correct interpretation of the RFA.. See also Heritage Oaks, 224 So. 3d at 218. Here, a correct interpretation of the RFA does not demand reversal because an alternative ground supports affirmance. See Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (“[T]he ‘tipsy coachman’ doctrine[ ] allows an appellate court to affirm a trial court that ‘reaches the rights result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.’”) (quoting Dade Cnty. Sch. Bd v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999)). As to management experience, Fern Grove conceded that Treehouse was not present within Banyan Cove or Banyan Reserve five days per week. The record reflects that institutional services were delivered sporadically on-site, frequently online or off-site, and scheduled around community need and instructor availability rather than on a fixed five-day basis. Experience in offering and facilitating institutional services at least five days per week remains a requirement, and the ALJ’s finding that Treehouse’s on-site presence did not demonstrate the requisite experience is supported by competent, substantial evidence independent of the “dedicated space” overlay. 6 As to developer experience, the showing at Parramore Oaks suffers the same infirmity. ONIC’s two programs did not operate concurrently, and the Housing Stability Program was conducted primarily at ONIC’s main office rather than within the development. Whether the two programs, considered together, satisfied a five-day-per-week presence within the development is a factual question the record resolves against Fern Grove without reference to any dedicated-space requirement. Because the factual deficiencies underlying the Final Order’s experience determination are independently supported by competent, substantial evidence, the erroneous dedicated-space interpretation does not compel reversal. Fern Grove also argues that Florida Housing acted arbitrarily and capriciously by subjecting its application to scrutiny not applied to roughly sixty other Mixed-Use applications submitted since 2023. The record reflects, however, that the scrutiny Fern Grove received arose from Catchlight’s targeted protest of Fern Grove’s preliminary approval—a protest naming no other applicant. Florida Housing had neither a procedural mechanism nor an obligation to audit every other application in response to a protest directed at one applicant, and the same protest mechanism Catchlight invoked was equally available to Fern Grove or any other participant. An agency does not act arbitrarily or capriciously merely because private parties selectively invoke available protest rights. Fern Grove also contends that fundamental fairness required Florida Housing to defer scrutiny of its experience showing to credit underwriting, just as it deferred Catchlight’s financing shortfall to that stage. We disagree. Developer and management experience are historical facts, existing or not existing at the time of application, whereas the RFA’s own pro forma requirement uses the word “anticipated” to describe financing details expected to be confirmed through the credit-underwriting process contemplated by Florida Administrative Code Rule 67-48.0072. Because these two categories of information differ in kind, their asymmetric treatment reflects that difference, rather than selective enforcement or fundamental unfairness. 7 III. The Final Order erred in reading a “dedicated space” requirement into the RFA’s Mixed-Use Institutional Space definition. That error, however, does not compel a different result, because the Final Order’s determination that Fern Grove’s referenced developments failed to demonstrate the requisite five- day-per-week institutional presence rests on competent, substantial evidence independent of the implied “dedicated space” requirement. Nor was the proceeding below arbitrary, capricious, or fundamentally unfair. AFFIRMED. BILBREY and KELSEY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Michael J. Glazer and Magdalena Ozarowski of Ausley McMullen, Tallahassee, for Appellant. Ethan Katz, Tallahassee, for Florida Housing Finance Corporation. 8