Young v. General Services Admin.

• Decision Date: 01 June 2000
• Docket Number: Civil Action No. 99-671-(EGS).
• Citation: 99 F.Supp.2d 59
• Parties: Donald YOUNG, et al., Plaintiffs, v. GENERAL SERVICES ADMINISTRATION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

99 F.Supp.2d 59

Donald YOUNG, et al., Plaintiffs, v. GENERAL SERVICES ADMINISTRATION, et al., Defendants.

Civil Action No. 99-671-(EGS).

United States District Court, District of Columbia.

June 1, 2000.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Nicholas C. Yost, Gillian W. Thackray, Sonnenschein, Nath & Rosenthal, San Francisco, CA, Kirk R. Ruthenberg, Stuart E. Hunt, Drew W. Marrocco, Sonnenschein, Nath & Rosenthal, Washington, DC, for Plaintiffs.

Daria J. Zane, Assistant U.S. Attorney, Washington, DC, Gregory Andrew Castanias, Donald B. Ayer, Robin L. Juni, Jones, Day, Reavis & Pogue, Washington, DC, for Defendants.

MEMORANDUM OPINION

SULLIVAN, District Judge.

INTRODUCTION

Plaintiffs Donald and Diane Young, James Burke, and Charles E. Smith Realty L.P. ("Smith Realty") [hereinafter "plaintiffs"] commenced this lawsuit to enjoin defendants General Services Administration ("GSA") and United States Patent and Trademark Office ("PTO") [hereinafter "the government"] from awarding a contract to defendant-intervenor LCOR Alexandria L.L.C. [hereinafter "LCOR"] to develop the government's proposed project to consolidate PTO facilities in Alexandria, Virginia. Plaintiffs claim that the government has failed to comply with the National Environmental Policy Act ("NEPA") in its preparation of an Environmental Impact Statement ("EIS") by refusing to consider plaintiff Smith Realty's Alternative Scenario for the consolidation project and for allegedly failing to take the requisite "hard look" at various environmental impacts created by the project. The government counters that plaintiffs' proposal need not be considered because it would not result in the increased efficiency that is the project's purpose.

The Court consolidated plaintiffs' application for a preliminary injunction with a hearing on the merits pursuant to Fed. R.Civ.P. 65(a)(2). Pending before the Court are cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56. The Court has considered the parties' motions, oppositions, replies, and counsels' oral arguments on August 20, 1999, as well as the applicable statutory and case law.

The Court finds that the case law supports the government's and intervenor's position with respect to Smith Realty's Alternative Scenario. The government need not consider the Alternative Scenario because it is not a reasonable alternative and will not bring about the government's desired objectives of efficiency. The Court also upholds the agency's modification of the "No Action" alternative to include the effects of reasonably foreseeable development. Finally, the Court concludes that the Final Environmental Impact Statement ("FEIS") submitted by the government has taken a sufficiently "hard look" at environmental impacts of the proposed project.

For those reasons, which are explained in greater detail in the body of the opinion, the Court GRANTS the motions of the federal defendant and intervenor-defendant LCOR for summary judgment,¹ and DENIES plaintiffs' motion for summary judgment and a preliminary injunction.

FACTUAL AND PROCEDURAL BACKGROUND

I. Parties

Plaintiffs Donald P. Young, Diane G. Young, and James W. Burke are residents of the Carlyle Towers in Alexandria, Virginia, which is located across the street from the Carlyle site² that is proposed for the PTO Consolidation project. Plaintiff Smith Realty is the bidder whose Crystal City site was not selected for the PTO Consolidation project. Defendant PTO is an agency within the Department of Commerce that is responsible for issuing patents, registering trademarks, disseminating information, and administering the laws of the United States related to intellectual property. Defendant GSA is the federal agency with the statutory authority to obtain and assign office space to federal agencies. Intervenor-defendant LCOR is the bidder whose proposal was chosen for the PTO Consolidation project.

II. Events

PTO is currently housed in eighteen separate buildings in the Crystal City area of Arlington, Virginia.³ In July 1995, GSA and PTO sought Congressional approval for a long-term lease to consolidate PTO's facilities. GSA submitted a prospectus to Congress that called for a twenty-year lease of 2.168 million to 2.387 million square feet.⁴ PTO initiated this project because "[m]any of [its] leased buildings are in need of alterations to meet fire, life safety, and handicapped accessibility guidelines. Mechanical and electrical upgrades are also needed for the agency's automation and organizational requirements." Final Fed.Defs.' Opp'n to Pls.' Mot. for Summ.J. at 4. In addition, PTO stated that "[s]ignificant growth in the number of patent and trademark applications filed has greatly increased PTO's workload.... Expansion space is required to house personnel, their files, and reference materials that support the patent and trademark application processes." Id. The Need and Purpose of the project was⁵ summarized in the Draft Environmental Impact Statement ("DEIS"):

The purpose of the proposed PTO consolidation is to provide a facility that can improve operational efficiency and better meet the needs of PTO's employees and customers.... Therefore, the proposed action includes expansion space to accommodate projected increases in patent and trademark filings, consolidation of PTO's space into no more than eight buildings to maximize and improve efficiency, and upgraded physical facilities that meet all current regulations and PTO's automation needs.

Id. (citing DEIS, Section 1.2).

On June 26, 1996, GSA issued Solicitation for Offers ("SFO") No. 96.004, seeking competitive lease proposals for PTO's consolidated space needs. According to GSA, the SFO:

represents a detailed description of PTO's minimum needs for its consolidated headquarters that, for purposes of NEPA, reflects the underlying purpose and need of the project. The SFO includes a number of detailed performance specifications ... [which] will specifically enhance the operational efficiency of PTO's headquarters space consistent with the general purpose and need of improving operational efficiency and consolidating operations set forth in the FEIS.

Id. at 4-5 (emphasis added). The PTO's minimum requirements for its headquarters included dedicated service elevators, multipurpose storage and receiving areas, a mailroom, a fitness facility, a health unit, a cafeteria, an auditorium, and other required meeting rooms. The SFO also contained specifications for structural live floor load, passenger elevator performance criteria, electrical requirements, communications rooms, and service elevators, and incorporated a provision for a fit-out allowance of $88 million. Offerors were required to provide for an interior build out in this amount as part of their offered rental rate.

On April 21, 1997, GSA issued a Notice in the Federal Register of its intent to prepare an EIS under NEPA related to the proposed lease consolidation of PTO. On June 4 and 5, 1997, GSA conducted two public "scoping" meetings prior to its preparation of a DEIS and considered the testimony presented at the hearings, as well as written comments submitted during the scoping process. GSA solicited this information in order to quantify the environmental impacts it should analyze in connection with the consolidation project. Following the scoping process, GSA analyzed information relevant to the presence of hazardous substances at the offerors' sites.⁶

Plaintiff Smith Realty filed a bid protest concerning the SFO with the General Accounting Office on June 30, 1997. On August 8, GSA amended the SFO to provide, among other things, that environmental impacts and mitigation measures identified as part of the government's review of the proposed leasing action under NEPA⁷ and an offeror's ability and willingness to resolve such impacts and implement such mitigation measures, would be considered as part of the Phase Two technical evaluation.⁸ After the four remaining offerors, including Smith Realty, submitted their Phase Two proposals on October 27, 1997, the offeror of the Potomac Yards site withdrew from the procurement. Smith Realty submitted one proposal that purported to satisfy all SFO requirements and another "Alternative Scenario" that failed to satisfy all SFO requirements.

On April 3, 1998, GSA issued the DEIS for public comment and received comments from federal, state, regional, and local government agencies, the offerors, private organizations, and interested members of the public. On April 29 and 30, 1998, GSA received oral testimony on the DEIS. The government then made changes in response to the comments and, on October 9, 1998, GSA requested that the remaining three Phase Two Offerors submit their Best and Final Offers ("BAFOs") by November 16, 1998. At this time, GSA informed Smith Realty that a proposal would not be considered for award if it failed to satisfy the minimum requirements of the SFO.

Smith Realty filed an Agency Protest with the GSA Contracting Officer on November 13, 1998, to complain about certain SFO requirements. Smith Realty and the remaining two offerors submitted their BAFOs three days later, and Smith Realty again submitted a proposal that purported to satisfy all SFO requirements in addition to its Alternative Scenario. On December 18, the Contracting Officer denied Smith Realty's Agency Protest, and on December 28, Smith Realty filed a complaint in the United States District Court for the Eastern District of Virginia related to the SFO and the procurement.⁹ On January 22, 1999, Contracting Officer James Smale informed Smith Realty that its Alternative Scenario failed to meet the minimum requirements.

On January 22, 1999, GSA issued the FEIS, which consisted of two volumes. The first volume described any changes to GSA's analysis and characterization of environmental impacts, published comments that GSA received on the DEIS, and responded to the substantive comments; the second volume...