B-400215, G. Koprowski, August 12, 2008

B-400215 Aug 12, 2008 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights 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, 1428, 117 Stat. 1392, 1670 (2003). We deny the protest. View Decision 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 BranchMedicalClinicNavalTrainingCenter 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).