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
**********************************************************************

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.