Cms Contract Management Services v. United States
110 Fed. Cl. 537
| Fed. Cl. | 2013Background
- Consolidated bid protests challenge HUD's 2012 NOFA for PBCA program overseeing Project-Based Section 8 contracts.
- HUD characterizes PBCA awards as cooperative agreements, not procurement contracts, aiming to avoid CICA/FAR requirements.
- MAHRA (1997) and HURRA (1983) govern renewal/administration of project-based HAP contracts and interaction with Section 8(b)(1) vs (b)(2).
- NOFA includes in-state applicant preference and a Q&A favoring state HFAs; GAO protests had sustained issues about procurement status.
- Court addresses statutory framework and FGCAA standards to classify the PBCA relationships and determines PBACCs are cooperative agreements, not procurement contracts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PBCA contracts under the 2012 NOFA are procurement contracts subject to CICA. | Plaintiffs contend PBCA arrangements are procurement contracts. | HUD argues PBCAs are cooperative agreements under FGCAA. | PBACCs are cooperative agreements under FGCAA. |
| Whether MAHRA/MAHRA renewal authority compels HUD to administer renewals directly or via PHAs. | MAHRA mandates renewal of expiring contracts, implying HUD must administer or oversee directly. | MAHRA allows renewal via cooperative agreements with PHAs; no mandatory direct administration. | MAHRA renewal authority can be implemented through cooperative agreements with PHAs; not mandated to HUD to administer. |
| Whether HURRA’s savings clause preserves (b)(2) authority for renewal contracts. | Savings clause preserves (b)(2) grandfathered authority for pre-1984 projects. | Savings clause limited to funds obligated for viable projects; interpretation contested. | Plaintiffs win interpretive points; however, the court ultimately classifies PBCA as cooperative agreements under FGCAA. |
| Whether HUD’s in-state preference in the NOFA violated CICA’s full and open competition. | In-state preference and HFAs violate CICA requirements. | NOFA’s preferences are allowable under statute and FGCAA framework. | Not necessary to resolve for the decision; decision stands on cooperative agreement classification. |
Key Cases Cited
- Park Village Apartment Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d 1150 (9th Cir. 2011) (describes Section 8 program operations and related authorities)
- Park Props. Assocs., L.P. v. United States, 82 Fed. Cl. 162 (2008) (discusses project-based assistance under the 1937 Act)
- Graoch Assocs. #33, L.P. v. Louisville / Jefferson Cnty. Metro Hous. Comm’n, 508 F.3d 366 (6th Cir. 2007) (explains operation of tenant-based vs project-based assistance and related regulations)
- Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009) (provides standard for bid protest review and rational basis analysis)
- Weeks Marine v. United States, 575 F.3d 1352 (Fed. Cir. 2009) (prejudice and two-step APA review in bid protests)
- 360Training.com, Inc. v. United States, 104 Fed. Cl. 575 (Fed. Cl. 2012) (articulates Tucker Act jurisdiction for procurement-related challenges beyond FGCAA)