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HUD Announces Plan to ask for U.S. Supreme Court Review in PBCA Contracting Case

NAHMA has learned that HUD has said it will file for a Writ of Certiorari, which is a petition for judicial review of a case, to the U.S. Supreme Court, asking for a ruling to overturn the decision of the U.S. Court of Appeals for the Federal Circuit in the suit challenging HUD’s process for awarding new contracts to performance-based contractors in the project-based Section 8 program.

Following is an excerpt from a press release issued late yesterday by Navigate Affordable Housing Partners (Navigate), a nonprofit affordable housing provider and PBCA based in Birmingham, Ala.:

WASHINGTON, DC (November 4, 2014) — The US Department of Housing and Urban Development (HUD) this week further delayed complying with a mandate from the US Court of Appeals for the Federal Circuit to implement full and open competition in selecting contractors to support HUD’s administration of the project-based Section 8 housing program.

HUD announced that it will file a petition for a writ of certiorari to the US Supreme Court, asking it to consider its appeal of a March 25 Federal Circuit Court ruling. That federal appeals court panel unanimously determined that HUD must compete these contracts under the standard contracting procedures used by every other federal agency.

“The Federal Circuit gave HUD clear direction in its decision in March and again when it denied HUD’s request for a rehearing in August,” said Robert K. Tompkins, a partner at Holland & Knight, LLP, which represents Navigate Affordable Housing Partners (Navigate) and argued the plaintiffs’ case to the Federal Circuit.

The most recent action in the case occurred on August 8, 2014, when the U.S. Court of Appeals for the Federal Circuit denied HUD’s request that the full court rehear the case, CMS Contract Management Services, Inc., et al. v. United States. In March 2014, the court sided with the plaintiffs and ruled that HUD violated federal law in deeming administrative services contracts as “cooperative agreements” and avoiding a competitive contracting process, a departure from HUD’s past practice.

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