BNUMBER: B-281185; B-281185.2
DATE: December 4, 1998
TITLE: Peachtree 25th LLC d/b/a/ American Management Company, B-
281185; B-281185.2, December 4, 1998
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Matter of:Peachtree 25th LLC d/b/a/ American Management Company
File:B-281185; B-281185.2
Date:December 4, 1998
Paul F. Khoury, Esq., and Daniel A. Silien, Esq., Wiley, Rein &
Fielding, for the protester.
John C. Ringhausen, Esq., General Services Administration, for the
agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. General Services Administration reasonably determined that
protester's building was outside "central business area" (CBA) of city
of Atlanta, and thus was not entitled to consideration for lease under
terms of Executive Order 12072, where it reasonably based CBA
boundaries on information from city, and subsequently made independent
determination that protester's building was neither in "centralized
community business area," nor in "adjacent area of similar character,"
the two areas that comprise CBA.
2. Since CBA, by definition, is comprised of centralized community
business area and similar adjacent areas, agency's independent
determination that protester's building was not in adjacent area of
similar character, and thus was outside CBA, properly was based on
comparison of location of protester's building to centralized
community business area rather than to entire CBA.
DECISION
Peachtree 25th LLC d/b/a/ American Management Company protests the
rejection of the offer it submitted in response to solicitation No.
8GA0017, issued by the General Services Administration (GSA) to lease
office space in Atlanta, Georgia for the Small Business Administration
(SBA). Peachtree argues that GSA improperly concluded that its
offered property is outside the central business area (CBA) in which
properties must be located to be considered for award.
We deny the protest.
The solicitation, reflecting the terms of Executive Order 12072, 3
C.F.R., 1979 Comp., p. 213, reprinted in 40 U.S.C. sec. 490 (1994),
specified that the area of consideration was the CBA of the city of
Atlanta. Solicitation at 4.[1] The Executive Order requires that
GSA, in leasing office space in an urban area, give first
consideration to a city's "centralized community business area" and
"adjacent areas of similar character." Section 1-103. The Federal
Property Management Regulations (FPMR) implementing the Executive
Order designate this area the CBA. FPMR, Interim Rule D-1, sec.
101-17.205(p)(1), 62 Fed. Reg. 42,071 (1997). In identifying a CBA,
GSA is required to consult with local officials, and to consider their
recommendations. FPMR, Interim Rule D-1, sec. 101-17-205(d)(1).
Peachtree argues that its building should have been found to be within
an "adjacent area of similar character," and thus within the CBA and
eligible for award.[2]
We find nothing improper in GSA's determination that Peachtree's site
does not fall within an adjacent area of similar character, and is
outside the CBA. GSA's determination in this regard was based
primarily on the city's recommendation, which the agency subsequently
confirmed through its own analysis. GSA requested the City's Bureau
of Planning to define the CBA for purposes of Executive Order 12072 in
1993. In response, the Bureau submitted a map to GSA which identified
a central business district shaded green, and a larger "Central Area"
which included the green area plus an area shaded pink. Letter from
the Director of the Bureau of Planning to GSA (July 12, 1993). In a
follow-up telephone call, a representative from the Bureau familiar
with the Executive Order explained that, technically, the central
business district was the smaller green area, but that it was
acceptable to Atlanta for GSA to solicit for office space in the
larger central area outlined in pink. GSA Memorandum to File, Aug. 5,
1993. Although the terms used by the Bureau to refer to the areas
were different from the terms used in the Executive Order, the Bureau
essentially identified a CBA that included a centralized community
business area (the green area on the map), and adjacent areas of
similar character (the additional pink area).[3] The protester's
building is outside the northern boundary of this area, and thus is
not in the CBA as defined by the city. When GSA issued the current
solicitation, it relied on this information from the city to identify
the CBA, resulting in the protester's building being excluded from the
competition. Contracting Officer's Statement at 2.
When Peachtree subsequently filed an agency-level protest, GSA
specifically requested that the city identify and define adjacent
areas of similar character for the northern boundary. Letter from GSA
to the Bureau of Planning (July 16, 1998). In response, in a letter
dated September 9, 1998, the Bureau reaffirmed the CBA boundary. It
also stated that it had reviewed the history and framework for the
boundary to determine if there were any adjacent areas of similar
character, but did not definitively state whether such adjacent areas
existed. Therefore, by letter of September 23 to the Bureau, GSA
stated that:
As I understand your response, there are no existing adjacent
areas of similar character. I will proceed based on this
understanding if you do not provide a contrary response by
Friday, September 25, 1998.
The City and GSA also discussed this issue by telephone on October 1,
and on October 5, the Bureau advised GSA by letter as follows:
As we discussed on October 1, and as outlined in my letter to you
on September 9, 1998, I am confirming that the City of Atlanta
has not designated any adjacent areas of similar character, nor
does the City want to expand the boundaries of the Central
Business Area beyond those specified in my letter of September 9,
1998.
Based on this information, the contracting officer again concluded
that the protester's building was not in an adjacent area of similar
character (since it was not within the pink area identified in 1993),
and therefore was not in the CBA.
Peachtree maintains that GSA's conclusion based on its discussions
with the city was unfounded because the city stated only that it had
not designated any adjacent areas, not that none existed. This
semantical argument ignores the record. As outlined above, it is
clear that the city was fully aware of Executive Order 12072 when it
provided its views as to both the appropriate boundaries for the CBA
and the existence of additional similar adjacent areas. Over a span
of years from 1993 to the present, it has been the city's consistent
view that the boundaries established in 1993 should apply for purposes
of the Executive Order. Those boundaries do not recognize any similar
adjacent areas outside the originally designated Central Area (i.e.,
the pink area). More significantly, when specifically asked whether
there were adjacent areas (presumably meaning additional areas outside
the pink area), the city stated that none had been designated and
reiterated its desire that the prior boundaries remain in effect. GSA
reasonably concluded from this that the city did not consider the
protester's building to be within a similar adjacent area. Further,
given that the Executive Order expressly provides for consultation
with local officials, and consideration of their views in identifying
the CBA, we see nothing unreasonable or otherwise improper in the
agency's relying on the city's views in defining the CBA for this
procurement.
In any case, in response to Peachtree's protest, the contracting
officer conducted her own assessment of the CBA and the area
surrounding the protester's building, which affirmed the city's view.
Contracting Officer's Statement at 4. She found that the central part
of the CBA consisted of mid- to high-rise office buildings in close
proximity to rail and bus service, ample parking, north-south, and
east-west highway access, a variety of federal, state, county and city
owned or leased buildings which provided access to a wide variety of
government functions and services, upscale hotels, clearly defined
shopping areas, universities, leisure and entertainment opportunities,
residential housing characterized by high-rise luxury apartments,
low-rise middle income apartment complexes, low-income apartments and
moderate- to low-income public housing shelters, soup kitchens, and
areas of urban blight. Id. at 5, 6, 8, 9. In contrast, the area
surrounding Peachtree's building was characterized by a few mid-rise
office buildings, some restaurants, only north- south highway access,
private residences, a few small apartment buildings, no railroad
access and limited parking. Id. at 7, 8, 9. Based on these
substantial differences, the contracting officer concluded that the
area of the protester's building was not an area similar in character
within the meaning of the Executive Order.
The protester argues that the contracting officer's analysis was
flawed because it was based on a comparison of the area surrounding
its building only with the centralized community business area, the
center of the CBA.[4] Peachtree maintains that the agency should have
based the comparison on the area of the CBA directly adjacent to its
building. The protester asserts that such a comparison would result
in a finding that the areas are similar in character.
This argument is without merit. First, as discussed, we think the
agency reasonably based the CBA on the boundaries established by the
city; thus, there was no need for the agency to conduct an independent
analysis. Further, as indicated above, the CBA (as defined by the
FPMR) is comprised of a centralized community business area and
adjacent areas of similar character. Based on this language, the term
"similar" necessarily refers to similarity to the centralized
community business area; thus, similar adjacent areas logically must
be identified based on a comparison with the centralized community
business area. The contracting officer thus reasonably based her
review on a comparison of the area of the protester's building with
the centralized community business area. We note that the protester's
contrary view would potentially result in expanding the CBA
dramatically beyond the central urban areas the Executive Order was
intended to develop.[5]
The protest is denied.
Comptroller General
of the United States
1. The purpose of the Executive Order is to "strengthen the Nation's
cities" and "conserve existing urban resources and encourage the
development and redevelopment of cities." Executive Order 12072 sec.
1-101. In this regard, President Carter, in signing the Executive
Order, commented that it was designed to help place federal buildings
in urban areas to encourage the migration of jobs, people,
opportunities and growth to abandoned central city areas; the
objective is to "strengthen the backbone of our major cities and to
build up jobs and further investments there." 14 Weekly Comp. of
Pres. Doc. 1,427-28 (Aug. 16, 1978); Helmsman Properties, Inc.,
B-278965, Apr. 20, 1998, 98-1 CPD para. 117 at 2; H&F Enters., B-251581.2,
July 13, 1993, 93-2 CPD para. 16 at 5.
2. Peachtree argues that since GSA has been leasing space in its
building for years, GSA has already acknowledged that the building is
in an adjacent area of similar character. However, each procurement
action is a separate transaction, and the action taken under one is
not relevant to the propriety of the action taken under a different
procurement for purposes of a bid protest. 440 East 62nd St. Co.,
B-276787, July 24, 1997, 97-2 CPD para. 30 at 4 n.5. Thus, the fact that
the agency previously may have defined the Atlanta CBA to include
Peachtree's building does not automatically preclude the agency from
using a different CBA here.
3. It is clear from subsequent correspondence, included in the record,
that this indeed was the city's intent, as the city thereafter
referred to the pink area as the CBA. In this regard, in 1996, in
expressing its intention to expand the "CBA" to include the area where
the protester's building is located, the Bureau referred to the
"current boundaries," i.e., the pink area identified in 1993. Letter
from Michael A. Dobbins, Commissioner to GSA (June 25, 1996). Mayor
Bill Campbell subsequently advised GSA that he was revoking the
Bureau's expansion of the CBA, and that the city desired that GSA
lease property within the previously identified, i.e., pink area,
which he too referred to as the CBA. Letter from Bill Campbell, Mayor
of Atlanta, to GSA (Sept. 10, 1996).
4. Peachtree also argues that since the contracting officer performed
her analysis after Peachtree filed an agency-level protest, her
decision is entitled to little weight. See Boeing-Sikorsky Aircraft
Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at 15.
However, since the agency determined that the CBA was adequately
defined by the city, and excluded Peachtree's proposal on the basis of
that definition, it had no reason to conduct its own analysis at that
time. GSA ultimately conducted its analysis only to respond to
Peachtree's claim that its building was in a similar adjacent area.
Where, as here, the record clearly supports the agency's action, our
concerns about post-protest assessments do not apply.
5. Peachtree also protests that the agency improperly conducted the
procurement on a sole-source basis. As we have concluded that
Peachtree is not eligible to receive a lease award, Peachtree is not
an interested party to raise this issue. 440 East 62nd St. Co.,
supra, at 4 n.3.