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

   ------------------------

   [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.