Case 50

Birmingham Realty Company v. General Services Administration, 497 F. Supp. 1377 (N.D. Ala. 1980).

In 1979, two Federal agencies in Birmingham, Alabama, requested the General Services Administration (GSA) to procure office space for them. GSA conducted a market survey of the area and issued a solicitation for offers for the space required. GSA received six offers in response to its solicitation, one from plaintiff for the Stallings Building. The Advisory Council on Historic Preservation had found the Stallings Building to have historic significance under the terms of the Public Buildings Cooperative Use Act (PBCUA), but the building had not been determined to be eligible for or listed in the National Register of Historic Places as specified by the National Historic Preservation Act (NHPA).

GSA rejected plaintiff's bid because it was higher than other bids and had not met all of the requirements in GSA's solicitation for offers. Although GSA had a policy to accord precedence to historic buildings eligible for or listed in the Register, it did not consider the historic significance of the building in rejecting plaintiff's bid because the Stallings Building was neither listed in nor determined eligible for the Register. The court denied plaintiff's motion for a temporary restraining order.

One of the issues in the case was whether the Public Buildings Cooperative Use Act applied. Section 601a of the act requires GSA to use space in "suitable buildings of historic, architectural, or cultural significance, unless use of such space would not prove feasible and prudent compared with available alternatives." The court found that Section 601a was not limited to buildings actually listed or eligible to be listed in the National Register. 497 F. Supp. at 1384. Rather, the section requires that whenever GSA undertakes a survey of Government building needs, it must identify all historically, architecturally, or culturally significant buildings that would be suitable. Id. at 1385. Nevertheless, the court concluded that the act was not applicable in this case because it does not affect the Government's authority to lease buildings. Rather, PBCUA is aimed at acquiring, constructing, altering, repairing, remodeling, or extending buildings that would be under Federal control. Id. at 385.

Next, the court held that GSA had violated Executive Order No. 12072, which required GSA to consider use of historic buildings as an alternative in meeting Federal space needs. Id. at 1386, 1391. Unlike PBCUA, the Executive Order applies to leases. Id. at 1386. Nevertheless, the court declined to enjoin the lease on this ground because consideration of the peculiar unsuitability of the Stallings Building for the needs of the agencies outweighed consideration of historic significance. Id. at 1387.

Third, the court held that NHPA did not apply because the building had been neither listed in the Register nor determined eligible for the Register by any Federal or State agency. That the Council had declared the building to be historically significant under PBCUA was not sufficient. Id. at 1388. The court did not read Section 800.2 of the Council's regulations to expand NHPA's coverage to include properties that meet the criteria of eligibility but have not been formally determined to be eligible for the Register by the Secretary of the Interior. Id. at 1387.

Finally, the court found laches to be applicable. Plaintiff unreasonably delayed bringing his action for two months while the successful bidder proceeded to prepare his building for Government occupancy. Id. at 1390.

The Court declined to issue an injunction setting aside the award of the lease. Id. at 1391.

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