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