TITLE: B-400215, G. Koprowski, August 12, 2008
BNUMBER: B-400215
DATE: August 12, 2008
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B-400215, G. Koprowski, August 12, 2008
Decision
Matter of: G. Koprowski
File: B-400215
Date: August 12, 2008
G. Koprowski, the protester.
Julia P. Hatch, Esq., Department of the Navy, for the agency.
Lauren I. Grossman and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that solicitation for medical research services requiring the work
to be performed on-site at agency violates statute barring agencies from
discouraging government contractors from allowing their employees to
telecommute is denied where the record shows that the agency reasonably
determined that on-site performance was necessary to meet its needs
because, among other reasons, the contractor will need to use highly
specialized government equipment located on-site to conduct the research,
as well as interact with research subjects and other government personnel.
DECISION
G. Koprowski protests the terms of request for quotations (RFQ) No.
N0025908T0135, issued by the Naval Medical Center San Diego (NMCSD) for
ophthalmologic research services. Mr. Koprowski asserts that the
solicitation, which requires the proposed work to be performed on-site,
violates certain provisions relating to employee telecommuting in the
Services Acquisition Reform Act of 2003 (SARA), Pub. L. No. 108-136, sect.
1428, 117 Stat. 1392, 1670 (2003).
We deny the protest.
BACKGROUND
NMCSD is a medical treatment facility in San Diego that provides health
care services and conducts medical research for military personnel and
other eligible individuals. According to the agency, NMCSD needs critical
research and development (R&D) services relating to optical care for
active duty personnel, especially for test pilots and others in
specialized fields.
The solicitation, issued as a total small business set-aside on May 23,
2008, seeks a senior R&D associate for the Navy Refractive Surgery Center
(NRSC) at NMCSD. The RFQ requires the contractor to perform a number of
R&D services, including developing research protocols, collecting and
analyzing data, interfacing with a team of doctors and technicians, and
actively participating in clinical research trials. The RFQ requires the
contractor to work 30 hours per week, between 7 a.m. and 6 p.m., at NMCSD
and the Branch Medical Clinic Naval Training Center in San Diego, using
government-furnished facilities, equipment, and supplies. The RFQ
contemplates the issuance of a fixed-price order for an estimated 12
months; quotations were due by June 2.
On May 27, Mr. Koprowski contacted the agency to inquire about the
solicitation requirement for on-site services. Citing SARA, discussed in
more detail below, Mr. Koprowski challenged the solicitation's limitation
on telecommuting proposals. The agency responded that contractors were
required to work on-site to meet its requirements, including ensuring data
security. Mr. Koprowski subsequently filed this protest with our Office on
May 30.
DISCUSSION
Mr. Koprowski challenges the solicitation requirement that the work be
performed on-site in San Diego. Mr. Koprowski asserts that the RFQ
violates the SARA provisions which prohibit agencies from discouraging
contractors from allowing their employees to telecommute in the
performance of government contracts. In relevant part, SARA provides as
follows:
. . . [S]olicitations for the acquisition of property or services may
not set forth any requirement or evaluation criteria that would--
(1) render an offeror ineligible to enter into a contract on
the basis of the inclusion of a plan of the offeror to permit the
offeror's employees to telecommute, unless the contracting officer first
determines that the requirements of the agency, including security
requirements, cannot be met if the telecommuting is permitted and
documents in writing the basis for that determination; or
(2) reduce the scoring of an offer on the basis of the
inclusion in the offer of a plan to permit the offeror's employees to
telecommute, unless the contracting officer first determines that the
requirements of the agency, including security requirements, would be
adversely impacted if telecommuting is permitted and documents in
writing the basis for that determination.
Pub. L. No. 108-136, sect. 1428(b), 117 Stat. at 1670. See also Federal
Acquisition Regulation sect. 7.108 (incorporating statutory provision).
Thus, under the plain statutory language, an agency can exclude or
unfavorably rate offerors with a plan to telecommute if the agency's
requirements would not be met as a result. Here, the agency asserts that
on-site services are integral to the R&D associate's role, and thus it
reasonably determined that its requirements could not be met by an offeror
with a plan to telecommute. We agree.
A contracting agency has the discretion to determine its needs and the
best method to accommodate them. Mark Dunning Indus., Inc. , B-289378,
Feb. 27, 2002, 2002 CPD para.46 at 3-4. An agency's justification is
considered reasonable if it can withstand logical scrutiny.
Chadwick-Helmuth Co., Inc., B-279621.2, Aug. 17, 1998, 98-2 CPD para. 44
at 3. A protester's mere disagreement with the agency's judgment
concerning the agency's needs and how to accommodate them does not show
that the agency's judgment is unreasonable. See AT&T Corp., B-270841 et
al., May 1, 1996, 96-1 CPD para. 237 at 7-8.
Here, the agency has set forth a number of reasonable explanations for its
determination that its requirements would not be met if the contractor
worked from a remote location. First, the agency explains that data
security will be implicated if the contractor does not work on-site.
Specifically, the contractor will need to collect data on-site at NRSC
using highly specialized and unique equipment. Additionally, the
contractor will need to personally interact with active duty research
subjects and government personnel. Further, the agency notes that the
research equipment cannot be relocated without compromising data safety
and disrupting other critical research. The agency also explains that the
solicitation requires the contractor to be on-site for several other
reasons, including the need for the contractor to participate in on-site
clinical research trials, present research at government facilities, and
manage entire research protocols in San Diego. While the protester
disagrees generally with the agency's position, he does not respond to or
attempt to rebut any of the specific factors the agency relies on to
support its position that the work cannot be performed at a remote
location.
In sum, while the agency agrees that some work could be performed
remotely,[1] we conclude that the agency reasonably determined that the
majority of the work called for under the solicitation needs to be
performed on-site. As a result, we see no basis to conclude that the RFQ
violates the statutory provisions regarding telecommuting which, as noted
above, specifically recognize that the provisions do not apply where the
agency determines that its requirements cannot be met if telecommuting is
permitted.
The protest is denied.
Gary L. Kepplinger
General Counsel
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[1] The agency states that no more than 10 percent of the specifications
could be performed conveniently from a remote location, and no more than
20 percent could be performed without the assistance of a local clerk
on-site. Agency Report, Tab 4, Affidavit of NRSC Research Director, June
24, 2008, at para. 3.