B-400215, Aug 12, 2008
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.
B-400215, G. Koprowski, August 12, 2008
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.
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).
NMCSD is a medical treatment facility in
The solicitation, issued as a total small business set-aside on
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.
Mr. Koprowski challenges the solicitation requirement that the work be performed on-site in
. . . [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,
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
In sum, while the agency agrees that some work could be performed remotely, 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
 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,