BNUMBER:  B-276077 
DATE:  May 9, 1997
TITLE: Matter of:Staber Industries, Inc. 

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

Matter of:Staber Industries, Inc.

File:     B-276077

Date:May 9, 1997

James E. Staber II for the protester.
Marie Adamson Collins, Esq., General Services Administration, for the 
agency.
Jeanne W. Isrin, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that solicitation's life cycle cost (LCC) evaluation formula 
should include water and detergent consumption cost factors for 
washing machines is denied, since (1) there is no statutory or 
regulatory requirement that such a factor be used, (2) the agency has 
not yet determined whether consideration of those costs is feasible 
or, if so, what factor should be used, and (3) the existing LCC 
formula was formulated using data from Department of Energy 
regulations applicable to washing machines.  

DECISION

Staber Industries, Inc. protests provisions of invitation for bids 
(IFB) No. 6FES-B1-96B102-S, issued by the General Services 
Administration for indefinite quantities of clothes washers, drying 
tumblers, and dishwashing machines.

We deny the protest.

The IFB, which contemplates award of a fixed-price requirements 
contract, contains specifications and estimated quantities for 21 
different types of machines.  Bid prices for the machines are to be 
evaluated to determine life cycle cost (LCC) using formulas provided 
in the solicitation.  For this purpose, bidders are required to 
provide energy consumption data for each offered machine.  Award is to 
be made on an item-by-item basis to the firm submitting the lowest 
acceptable evaluated price for each item.

Staber maintains that the IFB's LCC formula for clothes washers will 
not accurately measure cost (specifically as to line items 43-45) 
because, although it factors in energy cost, it fails to take into 
account the cost of water and detergent consumption.  Staber asserts 
that the formula therefore contravenes Executive Order No. 12902, 
"Energy Efficiency and Water Conservation at Federal Facilities," 
March 8, 1994, 59 Fed. Reg. 11463 (1994) (hereinafter "EO 12902"), and 
the Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776 
(codified in scattered sections of Titles 16, 25, 26, 30, and 42 of 
the United States Code) ("EP Act").

Agencies have broad discretion in selecting evaluation factors 
appropriate for an acquisition, and we will not object to the absence 
or presence of particular factors, so long as the factors used 
reasonably relate to the agency's needs in choosing a contractor that 
will best serve the government's interests.  ViON Corp., B-256363, 
June 15, 1994, 94-1 CPD  para.  373 at 10; U.S. Defense Sys., Inc., B-251544 
et al., Mar. 30, 1993, 93-1 CPD  para.  279 at 5.  This discretion carries 
over to LCC analyses; the contracting agency is in the best position 
to assess the impact of various factors on future costs, and its 
informed judgments are properly within its administrative discretion.  
ViON Corp., supra.

Staber's arguments are without merit.  There is no statutory or 
regulatory requirement that water and detergent consumption be 
factored into an LCC evaluation.  First, section 702 of EO 12902 
states that the order "is intended only to improve the internal 
management of the executive branch and is not intended to, and does 
not create, any right to administrative or judicial review."  Thus, by 
the terms of the order itself, any failure by GSA to adhere to the 
order's provisions would not provide a basis for protest.  In any 
case, EO 12902 nowhere requires that agencies take into account water 
and detergent consumption in procurements such as the one here; 
rather, it focuses primarily on the need for agencies to develop and 
implement programs intended to reduce energy consumption and conserve 
water in federal facilities and buildings.  The only provision that 
speaks to procurements of items such as those here, section 507(a), 
requires only that agencies purchase energy-efficient products from 
listings developed by the Office of Management and Budget in 
consultation with other agencies, pursuant to section 161 of the EP 
Act; this listing is not in issue here.  Finally, we note that EO 
12902, section 112, defines LCC as "the total cost of owning, 
operating, and maintaining a building, over its useful life (including 
its fuel, energy, labor, and replacement components) determined on the 
basis of a systematic evaluation and comparison of alternative 
building  systems."  10 C.F.R.  sec.  436.11 (1996).  Neither water nor 
detergent consumption is among the factors encompassed by this 
definition.

Similarly, the EP Act (as relevant here) refers only to energy 
efficient products.  In this regard, section 161 of the Act, 42 U.S.C.  sec.  
8262g (1994), entitled "Procurement and identification of energy 
efficient products," requires that GSA (and certain other agencies), 
in consultation with the Department of Energy (DOE), "implement, in 
conjunction with carrying out their procurement and supply functions, 
a program to identify and designate those energy efficient products 
that offer significant potential savings, using, to the extent 
practicable, the life cycle cost methods and procedures developed 
under section 8254. . . ."  42 U.S.C.  sec.  8262g.  The statute also 
provides for the issuance of guidelines to encourage the acquisition 
and use by all federal agencies of energy efficient products.  The 
statute does not refer to water or detergent consumption.  Thus, the 
terms of the EP Act do not require GSA to factor water and detergent 
consumption into its LCC analysis.[1]

GSA based its LCC formula on uniform test procedures for measuring 
energy consumption for different types of appliances, as set forth in 
Department of Energy  regulations, 10 C.F.R.  sec.  430.23, and is 
specifically based on data set forth in
10 C.F.R.  sec.  430.23(j), which deals with clothes washers.  Given that 
neither law nor regulation compels consideration of water/detergent 
consumption in an evaluation, and that nothing in the provision (or 
elsewhere in the regulations) references water or detergent costs, 
GSA's formula is reasonable.  

We note that, in responding to Staber's protest, GSA personnel 
reviewed the possibility of using a water/detergent consumption factor 
in its evaluation.  While the record in this regard suggests that GSA 
does not disagree that use of such a factor theoretically could result 
in a more accurate LCC determination, it also shows that the agency 
questions whether the cost to the government of water/detergent 
consumption would be significant enough to warrant evaluation, and 
whether a meaningful factor can be developed in light of the numerous 
variables involved.  In this latter regard, since the washing machines 
here are to be used throughout the country, and water/sewerage rates 
vary significantly among locales, different factors might have to be 
developed and applied depending upon where machines will be located.  
In any case, it is clear that the agency currently lacks the 
information necessary to develop a reliable water/detergent factor 
that could be applied under this IFB.  See ViON Corp., supra at 
10-11.[2]

The protest is denied.

Comptroller General
of the United States

1. We also note that Federal Acquisition Regulation subpart 23.2, 
establishes energy conservation as a mandatory consideration in 
acquisitions, but does not refer to water or any other type of 
conservation.

2. Staber urges that the LCC analysis be based on the National 
Institute of Standards and Technology (NIST) Handbook 135, paragraph 
5.1.2, which contains factors for both water and other non-fuel 
operating costs.  However, given that the agency has not yet 
determined whether evaluating water consumption and other costs is 
feasible or, if so, which variables should be included in any formula, 
there is no basis for compelling the agency to use the NIST standard 
in the LCC evaluation here.