oversight

The Fort Smith Housing Authority Made Inappropriate Guarantees, Did Not Follow Procurement Requirements, and Spent Program Funds on Questionable Activities

Published by the Department of Housing and Urban Development, Office of Inspector General on 2008-10-22.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                                                                Issue Date
                                                                       October 22, 2008
                                                                Audit Report Number
                                                                       2009-FW-1001




TO:         Jesse Westover
            Acting Director, Office of Public Housing, 6FPH

            James E. Slater
            Director, Community Planning and Development Division, 6FD


FROM:       Gerald R. Kirkland
            Regional Inspector General for Audit, Fort Worth Region, 6AGA

SUBJECT: The Fort Smith Housing Authority Made Inappropriate Guarantees, Did Not Follow
         Procurement Requirements, and Spent Program Funds on Questionable Activities


                                   HIGHLIGHTS

 What We Audited and Why

             We audited the Fort Smith Housing Authority (Authority) in response to a request
             from the U. S. Department of Housing and Urban Development’s (HUD) Office
             of Public Housing. The objectives were to determine whether the Authority and
             its instrumentality, North Pointe Limited Partnership (Partnership), spent HUD-
             provided funds in compliance with HUD’s rules and regulations for costs related
             to North Pointe Development (the development), including relocation activities,
             and whether they complied with federal procurement regulations.


 What We Found


             Between November 2006 and April 2007, the Authority and its instrumentality
             improperly encumbered Authority assets. Also, the Authority and its
             instrumentality did not comply with federal procurement regulations for three
                  procurements. Further, between October 2006 and January 2008, the Authority
                  inappropriately spent HUD program funds on activities that did not benefit those
                  programs.

    What We Recommend


                  We recommend that HUD require the Authority to

                          Obtain the release of any encumbered assets and require the Authority to
                          ensure that it will no longer encumber assets,
                          Support or repay $400,000 to its HOME Investment Partnerships Program
                          and more than $94,000 to its Community Development Block Grant
                          program,
                          Support or repay more than $30,0001 to its capital fund grants or HUD, as
                          appropriate, for questionable costs,
                          Ensure that it procures goods and services as required,
                          Support or repay more than $9,700 to its Section 8 project reserve account,
                          as appropriate, for unsupported expenses,
                          Implement written procedures and controls to prevent the use of capital
                          fund (low-rent) grants for unauthorized costs, and
                          Implement written procedures and controls to ensure that its
                          instrumentalities comply with federal procurement regulations.

                  For each recommendation without a management decision, please respond and
                  provide status reports in accordance with HUD Handbook 2000.06, REV-3.
                  Please furnish us copies of any correspondence or directives issued because of the
                  audit.

    Auditee’s Response


                  We provided the draft report to the Authority and HUD on September 19, 2008,
                  with comments due October 8, 2008. We held an exit conference with the
                  Authority on September 26, 2008. The Authority provided a written response on
                  October 7, 2008, and generally disagreed with the findings. We have included the
                  complete text of the Authority’s response, along with our evaluation of that
                  response, in appendix B of this report. Due to the volume, we did not include the
                  attachments included in the Authority’s response. These are available for
                  inspection upon request.




1
     The Authority has repaid $4,440 of this amount.


                                                       2
                            TABLE OF CONTENTS

Background and Objectives                                                            4

Results of Audit
      Finding 1: The Authority Inappropriately Placed Its Public Housing Assets at   5
                 Risk and Could Not Support Three Procurements
      Finding 2: The Authority Spent More Than $108,000 on Questionable Costs        9


Scope and Methodology                                                                11

Internal Controls                                                                    13

Appendixes
   A. Schedule of Questioned Costs                                                   15
   B. Auditee Comments and OIG’s Evaluation                                          16




                                             3
                         BACKGROUND AND OBJECTIVES

In 1940, the Housing Authority of the City of Fort Smith, Arkansas, was created under Arkansas
law to administer public housing programs under the United States Housing Act of 1937 (the
Act). It later changed its name to Fort Smith Housing Authority (Authority). A five-member
board of commissioners appointed by the mayor of the City of Fort Smith (City) governs the
Authority with an executive director managing the day-to-day operations. The Authority also
participates in other U. S. Department of Housing and Urban Development (HUD) programs.

In 1995, the Authority entered into an annual contributions contract with HUD for the funding of
its public housing programs. HUD provided nearly $1 million in annual contributions and
subsidies for its two public housing facilities (448 units), Ragon Homes and Nelson Hall Homes.

In 2005, the Authority planned to demolish and replace Ragon Homes with mixed financed
developments. By August 2008, it had relocated Ragon Homes’ tenants in preparation for the
demolition. North Pointe Development (the development) in Fort Smith, Arkansas, was the first
phase of the Authority’s master plan to replace Ragon Homes. The development consisted of 40
low-income housing tax credit (LIHTC) units and 10 market rate units, which were not public
housing units.


               30       27                                                       Less than or equal to 60%
                                                                                 median area income
               25
               20                                                                Less than or equal to 50%
                                                                                 median area income
               15            10                                  10
                                                                                 Less than or equal to 30%
               10
                                  3                                              median area income
                5
                                                                                 Any income
                0
                             LIHTC                 Market rate



Private investors substantially own the development.2 On January 17, 2006, the Authority
created North Pointe, Inc. (company), to serve as general partner in the development. The
Authority was the company’s sole shareholder. Two of the Authority’s board members, its
executive director, and its director of finance served within the company. On February 7, 2006,
the company established North Pointe Limited Partnership (Partnership) to finance, construct,
own and operate the development. As an instrumentality of the Authority, the Partnership was
required to comply with the Authority’s annual contributions contract.

The audit objectives were to determine whether the Authority and its instrumentality, the
Partnership, spent HUD-provided funds in compliance with HUD’s rules and regulations for
costs related to the development, including relocation activities, and whether they complied with
federal procurement regulations.


2
    Alliant Credit Facility, the limited partner of North Pointe Limited Partnership since April 1, 2007, owned 99.99
    percent interest. The company, as general partner, owned the remaining interest.


                                                         4
                                         RESULTS OF AUDIT

Finding 1: The Authority Inappropriately Placed Its Public Housing
           Assets at Risk and Could Not Support Three Procurements
In violation of requirements, the Authority inappropriately encumbered its assets, spent HUD
funds for other than reasonable and necessary program costs, and could not support that it
provided free and open competition for three procurements. As a result, it placed more than $2.2
million of its public housing assets at risk and spent more than $426,000 for unsupported costs.
Further, the Authority cannot ensure that it received the best price for more than $4.2 million that
it spent for goods and services. This condition occurred because the Authority misunderstood
federal regulations related to instrumentalities and did not follow its procurement policies.



    The Authority Placed Its Public
    Housing Assets at Risk


                   Between November 2006 and April 2007, Authority management violated its
                   annual contributions contract by encumbering assets when it inappropriately
                   entered into agreements that guaranteed the Partnership’s repayment of two loans
                   and its’ performance as general partner. The violations occurred because
                   Authority officials did not believe that they encumbered the Authority’s assets or
                   violated requirements. The Authority did not have sufficient unrestricted reserves
                   to cover the bank loans in the event of default. Therefore, Authority management
                   put public housing assets at risk. While the agreements favored the investors, the
                   loans were paid; thus, the loan guarantees were no longer active. However, the
                   Authority also inappropriately guaranteed the company’s performance as general
                   partner. This guarantee will remain active until all of the activities of the
                   partnership agreement are completed. The Authority did not inform HUD of the
                   guarantees as required.3

                   The Authority Guaranteed Two Bank Loans
                   On November 28, 2006, the Authority guaranteed a $75,000 loan for the
                   Partnership. The Authority granted its irrevocable and unconditional full faith
                   and credit as a primary obligor for the complete performance of the Partnership’s
                   obligations under the loan. Further, on April 3, 2007, the Authority
                   unconditionally guaranteed the full and prompt payment of a $1.9 million
                   construction loan. The loan guarantees were unsecured and did not identify
                   specific Authority assets as collateral. As the following excerpt shows, the
                   Authority could have been responsible for the loan payments if the Partnership
                   had defaulted on the loans.
3
      Annual contributions contract, part A, section 7.


                                                          5
                 Excerpt from the $1.9 million loan guarantee




                 The Authority Guaranteed the Partnership’s Performance
                 To induce the limited partner to invest in the Partnership, the Authority entered
                 into an agreement with the limited partner on April 1, 2007. The Authority
                 guaranteed the Partnership’s/general partner’s performance to the investors for
                 almost every contingency including loss of tax credits, funding of development
                 and operating deficits, and other general partner obligations set forth in the
                 partnership agreements. The Authority also guaranteed that it would make a
                 capital contribution to pay any unpaid portion of the $335,872 development fee.
                 Further, it waived its right to defend enforcement of the agreements and agreed to
                 pay the investors’ legal costs for enforcing the agreements against it.

    The Partnership Did Not
    Properly Procure a $4.2 Million
    Construction Contract

                 The Partnership did not follow federal procurement regulations when it entered
                 into the $4.2 million contract with ERC Construction Group, LLC (ERC), for
                 construction of the development. Although it was subject to federal procurement
                 regulations, the Authority wrongly believed that it did not need to follow the
                 regulations because the Partnership was a private entity. As a result, the
                 Partnership appeared to sole source the contract and did not adequately protect
                 HUD’s interest. The Partnership generally used federal funds to pay for the $4.2
                 million construction contract. It used $400,000 in HOME funds, a $1.9 million
                 construction loan guaranteed by the Authority, and about $1.9 million in tax credit
                 equity.

                 The Partnership, as an instrumentality of the Authority, did not procure the
                 contract with full and open competition as required by HUD.4 In accordance with
                 requirements, the Partnership solicited bids and rejected all of the bidders as
                 permitted.5 However, in violation of procurement requirements, the Partnership


4
     24 CFR (Code of Federal Regulations) 85.36(c).
5
     24 CFR 85.36(d)(2).


                                                      6
                then separately negotiated and contracted with ERC, which had not submitted a
                bid.

                Additionally, the Partnership did not require ERC to obtain a performance and
                payment bond for 100 percent of the contract amount as required by HUD.6
                Federal regulations required the Partnership to get a 100 percent performance and
                payment bond from the contractor unless HUD had determined that its interests
                were adequately protected. HUD did not waive the bond requirement. The
                Partnership initially required the bidders to certify that they could get the required
                performance and payment bond, but when it contracted with ERC, it did not
                require a performance and payment bond for 100 percent of the more than $4.2
                million contract. Instead, ERC provided a $630,000 irrevocable letter of credit,
                slightly less than 15 percent of the contract amount.

    The Authority Did Not Properly
    Procure Legal and
    Architectural Services


                The Authority provided no evidence that it prepared independent cost estimates
                and solicited quotes for the architectural and legal services before selecting the
                service providers as required by its own procurement policy and HUD
                requirements.7 As a result, it could not support that $26,048 capital funds that it
                spent on legal and architectural services from November 2005 through December
                2006 was reasonable and necessary for its public housing program.

                In its fiscal year 2005 audit report, dated June 28, 2006, the independent auditor
                reported that the Authority had not followed its procurement policy. The audit
                report disclosed that the Authority agreed to review all services provided and
                contracts and ensure that it complied with its procurement procedures in the
                future. The independent auditor cleared the finding during the fiscal year 2006
                audit.

                Following the 2005 financial audit, the Authority did not review the procurement
                of legal services to determine whether it complied with procurement procedures.
                The Authority continued to use the attorney throughout this audit period. When
                questioned about the legal services, the Authority could not support that it
                followed procurement requirements, although it entered into another contract with
                the attorney on May 7, 2008.

                Further, the Authority spent up to $7,368 of its capital funds for its
                instrumentality’s legal costs that were not approved by HUD as public housing
                activities. The legal services included various research regarding the limited
                partnership, such as reviewing articles and certificate and code provisions,

6
     24 CFR 85.36(h).
7
     HUD Handbook 7460.8, REV-2.


                                                  7
                reviewing and revising by-laws, reviewing the HOME agreement and letter of
                intent, correspondence with and letters to the limited partner, and research
                regarding CDBG funds. The $7,368 is included in the $26,048 in improper
                procurements noted above.

    Recommendations



                We recommend that the Acting Director, Office of Public Housing, require the
                Authority to

                1A. Obtain the release of any encumbered assets and implement procedures to
                    ensure that it will no longer encumber assets.

                1B. Support or reimburse $26,048 from nonfederal funds to its capital fund
                    grants or HUD, as appropriate,8 for unsupported procurement activities and
                    costs.

                1C. Ensure that it procures goods and services as required by its own
                    procurement policy and HUD procurement requirements.

                We recommend that the Director, Office of Community Planning and
                Development, require the Authority to

                1D. Support or reimburse the HOME program $400,000 from nonfederal funds
                    for unsupported procurement activities.

                1E. Implement written procedures and controls to ensure that its
                    instrumentalities comply with federal procurement regulations.




8
    42 USC (United States Code) 1437(g).


                                                8
Finding 2 The Authority Spent More Than $108,000 on Questionable
          Costs
The Authority spent more than $108,000 for ineligible and unsupported costs. It spent more than
$104,000 in CDBG and Section 8 funds to purchase land for planned housing developments.
However, the land was not zoned for housing, and the City did not approve rezoning. Further,
the Authority spent more than $4,000 in low-rent funds on costs not included in its public
housing plan because it misclassified the costs. As a result, the funds were not available to fund
other activities for the intended program beneficiaries.



    The Authority Spent $104,198
    for Land That Could Not Be
    Used for Housing Purposes


                 In October 2006, the Authority purchased land for $104,198, using $94,430 in
                 CDBG funds and $9,768 in pre-2003 Section 8 administrative fee reserves.
                 Authority officials planned to use the land for housing purposes as required by
                 federal regulations.9 However, the zoning laws did not permit it. Further, the
                 City’s planning commission did not approve a rezoning of the property so that the
                 Authority could use it as planned. If the Authority cannot use the land for
                 housing purposes as required by federal regulations, it should return the $104,198
                 to the CDBG and Section 8 programs.

    The Authority Inappropriately
    Spent $4,440 in Low-Rent
    Funds

                 In violation of its annual contributions contract, the Authority inappropriately
                 spent $4,440 in capital funds on mixed finance activities without HUD approval.
                 Apparently, Authority officials misclassified the costs. The misclassification of
                 funds reduced the funds available for the Authority’s public housing program.

                 Specifically, from August 2007 through January 2008, the Authority spent $4,440
                 for credit checks of individuals who were not public housing tenants. Following
                 discussions with the Authority’s executive director, the Authority repaid $4,440 to
                 its capital fund grants.




9
     24 CFR Parts 982 and 570.


                                                  9
Recommendations



         We recommend that the Acting Director, Office of Public Housing, require the
         Authority to

         2A. Reimburse its capital fund grants or HUD, as appropriate, $4,440 from
             nonfederal funds for ineligible expenses (the Authority has already repaid
             $4,440 to its capital fund grants).

         2B. Support or reimburse $9,768 from nonfederal funds to the pre-2003 Section
             8 project reserve account, as appropriate, for unsupported expenses.

         2C. Implement written procedures and strengthen controls to prevent the use of
             low-rent funds for unauthorized costs.

         We recommend that the Director, Office of Community Planning and
         Development, require the Authority to

         2D. Support or reimburse the CDBG program $94,430 from nonfederal funds for
             land not used for CDBG purposes.




                                        10
                         SCOPE AND METHODOLOGY

Based upon the initial results, we modified the objectives. The initial objectives were to
determine whether the Authority complied with HUD’s procurement regulations and whether it
spent funds provided by HUD in accordance with HUD’s rules and regulations for the period
October 1, 2005, through September 30, 2007. We modified the objectives to focus on
procurement and costs related to the relocation and its instrumentality’s development activities.
To accomplish the objectives, we expanded the audit period through January 31, 2008. We
performed audit fieldwork at the Authority’s administrative office in Fort Smith, Arkansas, and
our office in Oklahoma City, Oklahoma.

To accomplish the objectives, we performed the following steps:

      Reviewed the Authority’s financial records, policies, and procedures.
      Reviewed the Authority’s audited financial statements, annual contributions contract, and
       annual performance plans.
      Reviewed loan and guarantee agreements related to the development.
      Reviewed relevant federal regulations and other criteria.
      Conducted interviews with HUD officials, Authority officials, and other individuals
       involved in development activities.
      Toured Ragon Homes and the development on February 12, 2008.
      Reviewed the $4.2 million construction contract for the development.
      Reviewed all of the Authority’s payments for apparent development and relocation
       activities not paid to the developer, which totaled $401,290.

For the period October 1, 2005, through January 31, 2008, we reviewed the development
agreement for the development. Using a nonstatistical method, we reviewed two of 15 payments
from low-rent funds to the developer for relocation costs. The $18,257 in selected payments
represented 9 percent of the $199,314 charged under the agreement. We reviewed the two
samples to determine whether the developer had records to support costs charged for the
development services. We compared the developer’s records to the invoices. The developer had
records to support all of the charges for the two invoices. Since we found no discrepancies, we
did not test the remaining $181,057.

For the period October 1, 2005, through January 31, 2008, we reviewed $331,140 (12 percent) of
$2,825,852 in payments from the Authority’s CDBG, HOME, and low-rent funds to determine
whether the Authority complied with its procurement policy and HUD’s procurement
requirements. The population did not include payments for the development or relocation
activities. We used a nonstatistical sample to review the payments. For the sample of 20
payments, we selected five of the seven vendors with the top total payments and reviewed the
largest payment to each vendor. For 13 of the remaining 15 samples, we selected payments that
exceeded $5,000 each. We also reviewed the contracts for accounting and legal services. The



                                                11
conclusions reached relate only to the sample items tested and cannot be projected to the entire
population.

We conducted the audit in accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain sufficient, appropriate
evidence to provide a reasonable basis for our findings and conclusions based on our audit
objectives. We believe that the evidence obtained provides a reasonable basis for our findings
and conclusions based on our audit objectives.




                                                12
                             INTERNAL CONTROLS

Internal control is an integral component of an organization’s management that provides
reasonable assurance that the following objectives are being achieved:

       Effectiveness and efficiency of operations,
       Reliability of financial reporting, and
       Compliance with applicable laws and regulations.

Internal controls relate to management’s plans, methods, and procedures used to meet its
mission, goals, and objectives. Internal controls include the processes and procedures for
planning, organizing, directing, and controlling program operations. They include the systems
for measuring, reporting, and monitoring program performance.



 Relevant Internal Controls
              We determined the following internal controls were relevant to our audit objectives:

                      Compliance with laws and regulations – Policies and procedures that
                      management has implemented to reasonably ensure that resource use is
                      consistent with laws and regulations.

                      Safeguarding resources – Policies and procedures that management has
                      implemented to reasonably ensure that resources are safeguarded against
                      waste, loss, and misuse.

              We assessed the relevant controls identified above.

              A significant weakness exists if management controls do not provide reasonable
              assurance that the process for planning, organizing, directing, and controlling
              program operations will meet the organization’s objectives.


 Significant Weaknesses


              Based on our review, we believe the following items are significant weaknesses:

                  Compliance with laws and regulations – Authority management violated the
                  Authority’s annual contributions contract with HUD when it inappropriately
                  encumbered the Authority’s assets, spent funds on nonprogram activities, and
                  required tenants to waive their right to relocation assistance. Further, the



                                               13
Authority and its instrumentality, the Partnership, did not comply with
procurement regulations.

Safeguarding resources – Authority management inappropriately encumbered
public housing assets by guaranteeing payment of loans needed to fund private
development activities. Further, management exposed the Authority to large
contingent liabilities when it inappropriately guaranteed the Partnership’s
performance regarding the development activity.




                            14
                                              APPENDIXES

Appendix A

                        SCHEDULE OF QUESTIONED COSTS



                    Recommendation number                 Ineligible 1/         Unsupported 2/

                                  1B                                                     $ 26,048
                                  1D                                                      400,000
                                  2A                           $4,440
                                  2B                                                         9,768
                                  2D                           _______                      94,430

                                Totals                         $4,440                    $530,246




1/   Ineligible costs are costs charged to a HUD-financed or HUD-insured program or activity that the auditor
     believes are not allowable by law; contract; or federal, state, or local policies or regulations.

2/   Unsupported costs are those costs charged to a HUD-financed or HUD-insured program or activity when we
     cannot determine eligibility at the time of audit. Unsupported costs require a decision by HUD program
     officials. This decision, in addition to obtaining supporting documentation, might involve a legal interpretation
     or clarification of departmental policies and procedures.




                                                          15
Appendix B

        AUDITEE COMMENTS AND OIG’S EVALUATION


Ref to OIG Evaluation   Auditee Comments




Comment 1
Comment 2




Comment 1
Comment 2




                         16
17
Comment 3




Comment 3




            18
Comment 1




Comment 1




Comment 3




            19
Comment 1




Comment 3




Comment 1




            20
Comment 4




            21
Comment 1




            22
Comment 2




Comment 5




            23
24
Comment 5



Comment 6




            25
Comment 7




            26
Comment 7




Comment 8




            27
28
Comment 7

Comment 9




            29
30
Comment 10




             31
                         OIG Evaluation of Auditee Comments

Comment 1
            We disagree with the Authority’s statement that it did not encumber public
            housing assets in violation of its annual contributions contract. In its response,
            the Authority wrote that PIH (Public and Indian Housing) 2007-15 (the notice)
            did not apply to its guarantees because HUD issued the notice after the Authority
            entered into the agreements. Contrary to the Authority’s opinion, HUD did not
            create new regulations under the notice, but clarified existing requirements. The
            notice was prepared to explain existing requirements regarding public housing
            activities, including mixed-finance development.

            Even though the guarantees were unsecured, they did not include language that
            would prohibit the lender or limited partner from claiming a judgment against
            public housing assets. The Authority had obligations to pay for costs that it
            guaranteed under the agreements. Furthermore, the Authority waived its right to a
            trial by jury.

            The Authority placed its public housing assets at risk. According to the $1.9
            million guarantee, the lender could “receive a security interest in any property”
            without notifying the Authority. It could also assign or transfer all of the loan
            obligations without notifying the Authority. The Authority’s guarantee remained
            in effect should the lender assign or transfer the loan obligations to another entity.
            Thus, the lender could assign the obligations to any entity that had in its
            possession the Authority’s funds.

            The Partnership was fortunate that the contractor completed the construction
            project as planned. However, had there been problems with the construction,
            renting the units, and the project’s ability to pay its expenses, the lenders and the
            partnership had the Authority’s guarantees they could have used against the
            Authority.

            The Partnership guaranty will remain effective until all of the activities of the
            partnership agreement are completed. The Authority has guaranteed to fund
            development and operating deficits, loss of tax credits, and other general partner
            obligations set forth in the partnership agreements. The Authority will be
            responsible for tax credit shortfalls should the Internal Revenue Service limit or
            not allow the tax credits. Total tax credits over a 12-year period exceed $4
            million.

Comment 2
            We disagree with the Authority’s assertion that the Partnership did not need to
            comply with federal procurement regulations at 24 CFR Part 85 because it was
            not the Authority’s instrumentality. Federal regulations required the Partnership
            to comply with 24 CFR Part 85 if the Authority exercised significant functions




                                              32
                  within the entity. 10 The Authority believes that it lacked “effective control” over
                  the Partnership to make it an instrumentality. The Authority stated that Alliant
                  Credit Facility had "effective control" over the Partnership. This argument is
                  flawed in that at the time of the ERC Construction procurement, Alliant was not
                  in the Partnership and the Authority had effective control.

                         DATE                                         DESCRIPTION
                  February 7, 2006               North Pointe Limited Partnership agreement signed by
                                                 North Pointe, Inc. (company), the general and limited
                                                 partner
                  October 1 and 8, 2006          Advertisement for bids for construction of North Pointe
                                                 development
                  October 26, 2006               Bids received and reviewed; at least one, if not two, of
                                                 the contractors met all the qualifications
                  March 20, 2007                 North Pointe, Inc. entered into the construction contract
                                                 with ERC Construction that did not bid on the
                                                 construction
                  April 1, 2007                  Alliant Credit Facility entered the Partnership as the
                                                 limited partner; the company remained the general
                                                 partner

                  As the timetable above clearly shows, the company was the only partner of the
                  Partnership. As previously explained, the Authority was the company’s sole
                  shareholder. Two of the Authority’s board members, its executive director, and
                  its director of finance served within the company. Thus, the Authority controlled
                  the company and the company controlled the Partnership. As a result, the
                  Partnership was the Authority’s instrumentality and was required to comply with
                  federal procurement regulations.

Comment 3
                  The Authority’s guarantees encumbered assets covered by its annual contributions
                  contract. As stated in the finding, the Authority violated its annual contributions
                  contract when it entered into the guarantees without informing HUD. The annual
                  contributions contract precluded the Authority from entering into those
                  agreements without prior HUD approval. 11

Comment 4
                  This was not the issue. We agree that the Authority did not pledge its public
                  housing assets.

Comment 5
                  We disagree with the Authority’s assertion that the Partnership was not the
                  Authority’s instrumentality. The Authority had effective control over the

10
     24 CFR 941.602.
11
     Annual contributions contract, part A, section 7.


                                                         33
                 Partnership because the Authority owned 100 percent of the only partner. Thus,
                 the Partnership was the Authority’s instrumentality.

Comment 6
                 The Partnership did not comply with federal regulations at 24 CFR Part 85. The
                 regulations state that any arbitrary action on the part of the contracting agency is
                 restrictive of full and open competition. The Partnership chose ERC Construction
                 based on the following arbitrary actions that were restrictive of open competition.
                 Violating requirements,12 the Partnership did not support its noncompetitive
                 procurement by determining that competition was inadequate. Upon reviewing
                 and rejecting the bids, the Partnership rejected two qualified contractors because
                 their bids exceeded the independent cost estimate. The Partnership should have
                 met with the qualified bidders to discuss the differences between their bids and
                 the cost estimate. If it determined that the cost estimate was good, it should have
                 gone back through the request for proposal process. However, there is no
                 evidence that the Partnership either began a new bidding process or worked with
                 the qualified contractors to determine why their bids were higher than the
                 estimate. Instead, the Partnership used the bids to negotiate and select a firm that
                 did not even bid on the construction.

Comment 7
                 We commend the Authority for acknowledging the improper expenditures and
                 commitment to repay its capital fund account. The Authority should work with
                 HUD to ensure that it repays the funds to the correct program or to HUD, as
                 appropriate.

Comment 8
                 The Authority stated that it intends to use the $104,198 land for affordable
                 housing purposes, as required by federal regulations. The Authority needs to
                 work with HUD to clear the recommendation by either successfully getting the
                 land re-zoned or repaying the funds.

Comment 9
                 Based on the Authority’s response, we have removed the matter from the report.

Comment 10
                 Based on the Authority’s response and consultations with HUD, we removed the
                 matter from the report.




12
     24 CFR 85.36(d)(4).


                                                  34