On July 1, 2011, The U.S. Department of Housing and Urban Development (HUD) announced the PBCAs who would perform contract administration duties for the Section 8 program. This was followed by several protests regarding the manner in which the awards were decided. Shortly thereafter, HUD withdrew 42 of the 53 PBCA awarded contracts with the intent to re-compete them again under a new Notice of Funding Availability (NOFA). The 11 awards which did move forward were for uncontested contracts in 9 states and 2 territories: Iowa, Maine, Minnesota, Montana, New Hampshire, North Dakota, Puerto Rico, South Dakota, Vermont, Wyoming and U.S. Virgin Islands. NTHDC was awarded the U.S. Virgin Islands PBCA contract and has been the PBCA for the territory since 10/1/2011. On March 10, 2012, HUD released a new NOFA to re-compete awards of the 42 contracts which were withdrawn from the previous procurement. This introduced significant changes to the selection process and expectations under the PBCA contract. Some of those changes include “risk based” management reviews, preference for in-state applicants, a cap on the administrative fee and changes to the scoring of the application.

Following the release of that NOFA, several groups filed protests with the Government Accountability Office (GAO). The protests were based on the use of the NOFA and the significant restrictions it applied to open competition.

In August 2012, a GAO decision sided with the groups protesting and stated that the NOFA used by HUD to obtain bids for the 42 states was improper. GAO recommended the NOFA be removed and replaced with a contract procurement. HUD was provided up to 60 days to respond to the GAO recommendation. Their response exceeded the allowed time and in December 2012 HUD informed GAO that it would move forward with the NOFA. This was followed by several PBCAs filing lawsuits against HUD stating the Notice of Funding Availability (NOFA) was not appropriate for awarding of the PBCA contracts

In February 2013, additional arguments were heard in the U.S. Court of Federal Claims in Washington, DC. These centered on HUD’s use of a NOFA to select PBCA and the restriction on competition. Out-of-state applicants in states where qualified in-state applicants submitted bids were fundamentally eliminated from competing due to the in-state preference. In April 2013, the U.S. Court of Federal Claims ruled in favor of HUD allowing them the authority to use the NOFA process. This was followed by a joint appeal from contract administrators and the case was escalated to the Court of Appeals in May 2013.

In August 2013, HUD moved forward with the NOFA process and announced PBCA awards for the 42 states that were part of the competition. Following this announcement, an injunction was granted by the court. This decision prevents HUD from awarding the new contracts in the 42 states until this case is decided by the Appeals court. HUD released the following statement in response…”On August 27, 2013, the United States Court of Appeals granted the Plaintiff-Appellants’ motion for a stay pending appeal. Thus, HUD may not execute the new ACCs until the case is resolved. Further, no transition activities should occur until further notice. Any additional information will be provided as soon as it is available.”

With the injunction, there will be no transition taking place until the case is decided by the court. NTHDC will continue to fulfill its duties as PBCA in the state of Florida and the current PBCA contract with HUD is in effect until December 31, 2013. We anticipate another contract extension at some point while the court decides the matter. For the U.S. Virgin Islands, the PBCA contract also runs through the end of 2013. HUD has indicated a two year extension will follow for the U.S. Virgin Islands PBCA contract.

It is difficult to summarize a process that has been going on for an agonizing number of years now, but we wanted you to know the status of the situation that is beyond our control.

Regards,
Don Shea
Director and Contract Administrator, NTHDC

Want to Read the Complete Newsletter, Download the Print Version Here