Matter of:Staber Industries, Inc.

B-276077 May 09, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights 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. (3) the existing LCC formula was formulated using data from Department of Energy regulations applicable to washing machines. Bid prices for the machines are to be evaluated to determine life cycle cost (LCC) using formulas provided in the solicitation. 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. View Decision Matter of: Staber Industries, Inc. File: B-276077 Date: May 9, 1997 DIGEST Attorneys 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.