Court Rules HUD PBCA NOFA Invalid

The U.S. Court of Appeals for the Federal Circuit's decision has ruled against the U.S. Department of Housing and Urban Development (HUD) in the lawsuit on the Performance-Based Contract Administration (PBCA) case, reversing the earlier decision by the U.S. Court of Federal Claims.  The Court of Appeals rules that the PBCA Annual Contributions Contracts (ACCs) are procurement contracts and not cooperative agreements that could be issued under a Notice of Funding Available (NOFA.)

The Court of Appeals found that the PBCA ACCs should be awarded through procurement contracts because the ACCs’ primary purpose is to hire PBCAs to support HUD staff and provide assistance with the oversight and monitoring of Section 8 housing assistance.  The Court cites as evidence HUD’s stated intentions in creating the PBCA program in 1999, as well as more recent HUD statements describing how PBCAs have helped HUD reduce improper payments and improve efficiency.

Currently the NYS PBCA contract is held by the New York State Housing Trust Fund Corporation (HTFC) and CGI that has a ACC contract with HUD through June.  HUD would likely extend existing PBCA contracts for 18-24 months while it develops a procurement process.

Due to the ACC not being finalized, several HUD projects have not had a Management and Occupancy Review (MOR) for several years. This court decision will most likely delay MORs for at least several months.

HUD has not commented on how the procurement process would be administered for the PCBA contracts.

Contact: Ken Harris, kharris@leadingageny.org, 518-867-8835