CMS Contract Management Services v. Massachusetts Housing Finance Agency
2014 U.S. App. LEXIS 5432
| Fed. Cir. | 2014Background
- FGCAA mandates using a procurement contract when the principal purpose is to acquire property or services for the U.S. government; cooperative agreements are used when transferring a thing of value to carry out a public purpose with substantial agency involvement.
- HUD's Section 8 program historically used Housing Assistance Program contracts (HAP contracts) with project owners or Annual Contributions contracts (ACCs) with PHAs; PHAs administer HAP contracts with HUD funds to subsidize rent.
- MAHRA (1997) allowed renewal of expiring HAP contracts and transferred or shared contract administration functions to state/local entities; outsourcing of certain contract administration began.
- HUD initiated a nationwide ACC competition in 1999; PBACCs were awarded to PHAs, with incentives; HUD stated it would follow many FAR principles but not be a formal FAR procurement.
- In 2012 HUD re-characterized PBACCs under a NOFA as cooperative agreements and barred out-of-state applicants if an in-state applicant existed; this shifted the perceived instrument and eligibility.
- GAO concluded PBACCs were procurement contracts and recommended canceling the NOFA; HUD proceeded with the 2012 NOFA awards, prompting pre-award CF protests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are PBACCs procurement contracts or cooperative agreements? | CMS argues PBACCs are procurement contracts. | HUD contends PBACCs are cooperative agreements under NOFA. | PBACCs are procurement contracts. |
| If applicable, were NOFA anticompetitive provisions arbitrary and capricious under the APA? | Appellants contend NOFA provisions are arbitrary/capricious. | HUD asserts no need to address under APA due to contract type. | APA question not addressed; remand focuses on contract type. |
Key Cases Cited
- CMS Contract Mgmt. Servs. v. United States, 110 Fed. Cl. 537 (2013) (case assessing PBACCs and MAHRA context in federal contracting)
- Baird Corp. v. United States, 1 Cl. Ct. 662 (1983) (weight given to GAO recommendations in bid protests)
- Maint. Eng’rs v. United States, 749 F.2d 724 (Fed. Cir. 1984) (question of law on procurement vs cooperative instruments)
- PAI Corp. v. United States, 614 F.3d 1347 (Fed. Cir. 2010) (standards for reviewing contract type determinations)