Court Issues Injunction: HUD Cannot Proceed with PBCA Awards

On Tuesday, August 27, 2013 the U.S. Federal Circuit Court of Appeals issued an injunction in the case CMS Contract Management et al v. United States, in which eight Performance-Based Contract Administrators had challenged HUD’s procedures and criteria for awarding PBCA contracts through a Notice of Funding Availability (NOFA) process.

In late April of 2013, the Court of Federal Claims had made its ruling, in favor of HUD, to validate HUD’s NOFA method of awarding contracts to administer the Department’s project-based rental assistance programs. The Court found that these contracts were cooperative agreements; therefore the manner in which HUD awarded these contracts was proper.

This decision was appealed to the U.S. Federal Circuit Court, and in issuing the injunction, the Court of Appeals has barred HUD from moving forward with awarding the PBCA contracts that HUD had announced on August 6, 2013.

The Appeal is scheduled to be heard in Wilmington, DE on October 10, 2013.  We believe that HUD will most likely offer existing PBCAs in the 42 contested states/areas another 3-month contract extension, from January 1, 2014 through March 31, 2014.

If the Appeals Court finds in HUD’s favor, we believe that they will proceed with the awards and transition process, most likely for a January transition start with an April implementation.  If the Appeals Court rules against HUD, we believe there will be a delay of 1-2 years while HUD goes back to the drawing board to re-issue an RFP (Request for Proposals).