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Update on GAO's Decision to Sustain the Protests for the Project-Based Section 8 PBCA NOFA

As you may have learned, the Government Accountability Office (GAO) sustained the protests filed against HUD’s project-based Section 8 performance-based contract administrator (PBCA) Notice of Funding Availability (NOFA) on August 15.

Under the August 15 decision, GAO determined that HUD’s use of a NOFA to award the PBCA contracts to administer the project-based Section 8 HAP contracts “was improper because the “principal purpose” of the NOFA was to obtain contract administration services for HUD’s direct benefit and use, which should be acquired under a procurement instrument that results in the award of a contract.”

GAO recommended that HUD cancel the NOFA and award the PBCA contracts through a procurement instrument. GAO recommended that “should address the other concerns expressed by the protesters to the extent appropriate.” Finally, the Office recommended that HUD reimburse the protestors for their costs of filing and pursuing the protests. Protestors certified claims for costs-which must detail the time expended and costs incurred-must be submitted to HUD within 60 days of the decision (August 15).

NAHMA reached out to GAO for more information. The GAO has informed us that, when the Office sustains or upholds a big protest, it is required to recommend a remedy. To that end, GAO has recommended that HUD use a procurement instrument, rather than a cooperative agreement, for its contracts for the administration of project-based Section 8 housing assistance payments (HAP).

HUD now has 60 days from the issuance of the GAO’s decision (August 15) to inform the GAO whether or not it will follow the recommendations. GAO has told NAHMA that the vast majority of the GAO’s protest recommendations are followed. However, the GAO does not know yet whether or not HUD will follow its recommendations.

If HUD does not follow the GAO’s recommendation, then the Office must provide written notice of that decision to several Congressional Committees. The issue then becomes a matter between the Legislative Branch and the Executive Branches of government.

In addition, NAHMA has learned that the protestors may have the option of suing HUD in federal court if HUD does not follow the GAO’s recommendations.

To read GAO’s decision in its entirety, please click here

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