B-139965, JUNE 30, 1959, 38 COMP. GEN. 881

B-139965, JUNE 30, 1959, 38 COMP. GEN. 881

PERSONAL SERVICES - DETECTIVE EMPLOYMENT PROHIBITION - LOW BID FOR GUARD, ETC., SERVICES THE DETECTIVE EMPLOYMENT PROHIBITION IN THE ACT OF MARCH 3, 1893, 5 U.S.C. 53, IS APPLICABLE TO CONTRACTS OR AGREEMENTS WITH DETECTIVE AGENCIES AS WELL AS TO CONTRACTS WITH INDIVIDUAL EMPLOYEES OF SUCH AGENCIES AND PRECLUDES THE EMPLOYMENT OF A DETECTIVE AGENCY OR ITS EMPLOYEES, REGARDLESS OF THE CHARACTER OF THE SERVICES TO BE PERFORMED AND EVEN THOUGH THE SERVICES ARE NOT TO BE OF A DETECTIVE OR INVESTIGATIVE NATURE; THEREFORE, A LOW BID FOR FURNISHING MAINTENANCE, SECURITY AND GUARD SERVICES TO A MILITARY INSTALLATION SUBMITTED BY A CONCERN WHICH IS IN FACT A DETECTIVE AGENCY IS SUBJECT TO THE PROHIBITION AND MUST BE REJECTED.

TO THE FIDELITY DETECTIVE BUREAU, INC., JUNE 30, 1959:

REFERENCE IS MADE TO YOUR ATTORNEYS' LETTER OF JUNE 23, 1959, PROTESTING THE PROPOSED ACTION OF THE BUREAU OF YARDS AND DOCKS, DEPARTMENT OF THE NAVY, IN REJECTING YOUR BID SUBMITTED IN RESPONSE TO INVITATION NO. NBY- 22246.

IN RESPONSE TO OUR REQUEST, THE BUREAU OF YARDS AND DOCKS HAS FURNISHED INFORMATION IN THE MATTER, INCLUDING COPIES OF PERTINENT PAPERS.

THE INVITATION WAS ISSUED BY THE DISTRICT PUBLIC WORKS OFFICE, NAVAL BASE, PHILADELPHIA, PENNSYLVANIA, ON MAY 14, 1959, REQUESTING BIDS--- TO BE OPENED JUNE 11, 1959--- FOR PROVIDING MAINTENANCE AND SECURITY FOR THE NAVAL INDUSTRIAL RESERVE ORDNANCE PLANT, PITTSBURGH ( HAYS), PENNSYLVANIA, INCLUDING GUARD SERVICE, MAINTENANCE SERVICE, AND NECESSARY LABOR AND MATERIAL TO PROTECT, MAINTAIN AND PERFORM PRESERVATION OF MACHINERY AND EQUIPMENT DURING THE PERIOD FROM JULY 1, 1959, TO JUNE 30, 1960. RESPONSE TO THE INVITATION, YOU SUBMITTED THE OF $70,352.90. THE FIVE OTHER BIDS RECEIVED RANGED FROM $80,931 TO $209,000. YOU REQUEST THAT AWARD BE MADE TO YOU AS LOW BIDDER AND YOU PROTEST AGAINST THE CONTEMPLATED AWARD TO THE SECOND LOW BIDDER WHICH IS PROPOSED BY THE BUREAU OF YARDS AND DOCKS FOR THE STATED REASON THAT AWARD TO YOU IS PROHIBITED BY THE ACT OF MARCH 3, 1893, 27 STAT. 591, 5 U.S.C. 53, PROHIBITING THE EMPLOYMENT OF DETECTIVE AGENCIES.

THE CITED ACT PROVIDES:

NO EMPLOYEE OF THE PINKERTON DETECTIVE AGENCY, OR SIMILAR AGENCY, SHALL BE EMPLOYED IN ANY GOVERNMENT SERVICE OR BY ANY OFFICER OF THE DISTRICT OF COLUMBIA.

IT IS CONTENDED IN YOUR ATTORNEY'S LETTER OF JUNE 23 THAT THE ACT DOES NOT PROHIBIT A CONTRACT WITH A DETECTIVE AGENCY BUT ONLY PROHIBITS THE EMPLOYMENT BY THE GOVERNMENT OF AN EMPLOYEE OF SUCH AGENCY. IT IS CONTENDED ALSO THAT IF THE STATUTE IS HELD TO BE APPLICABLE TO A DETECTIVE AGENCY AS WELL AS TO THEIR EMPLOYEES, IT SHOULD NOT BE APPLIED TO FIDELITY DETECTIVE BUREAU, INC., WHICH IS NOT SIMILAR TO THE PINKERTON DETECTIVE AGENCY.

THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE HELD UNIFORMLY THAT THE CITED STATUTE IS A PLAIN PROHIBITION AGAINST THE EMPLOYMENT IN GOVERNMENT SERVICE OF EMPLOYEES OF DETECTIVE AGENCIES AND IS APPLICABLE TO CONTRACTS OR AGREEMENTS WITH A DETECTIVE AGENCY AS A FIRM AS WELL AS TO CONTRACTS WITH, OR APPOINTMENTS OF, INDIVIDUAL EMPLOYEES OF SUCH AGENCY. IN 8 COMP. GEN. 89, IT WAS HELD (QUOTING SYLLABUS):

THE ACT OF MARCH 3, 1893, 27 STAT. 591, PROHIBITS THE EMPLOYMENT IN ANY GOVERNMENT SERVICE OF EMPLOYEES OF THE PINKERTON DETECTIVE AGENCY, OR SIMILAR AGENCY, FOR ANY CHARACTER OF SERVICE, EITHER BY CONTRACT WITH THE AGENCY OR BY DIRECT HIRE OF SUCH EMPLOYEES.

PAYMENT FROM PUBLIC FUNDS TO A DETECTIVE AGENCY FOR FURNISHING ARMED WATCHMEN TO GUARD CERTAIN ALCOHOL AT A UNITED STATES CUSTOMHOUSE PENDING SHIPMENT TO THE PANAMA CANAL, IS NOT AUTHORIZED, IN THE ABSENCE OF A SHOWING THAT THE WATCHMEN WERE NOT EMPLOYEES OF THE AGENCY OR THAT THE AGENCY IS NOT SIMILAR TO THE PINKERTON DETECTIVE AGENCY WITHIN THE MEANING OF THE ACT OF MARCH 3, 1893, 27 STAT. 591.

IT HAS BEEN HELD ALSO THAT THE PROHIBITION OF THE STATUTE IS AGAINST THE EMPLOYMENT OF A DETECTIVE AGENCY OR ITS EMPLOYEES, REGARDLESS OF THE CHARACTER OF THE SERVICES TO BE PERFORMED AND THAT THE FACT THAT THE SERVICES OF THE SAID AGENCIES ARE NOT TO BE OF A DETECTIVE OR INVESTIGATIVE NATURE IS NOT MATERIAL. SEE 26 COMP. GEN. 303, 306.

IT IS TO BE OBSERVED THAT IN 26 COMP. GEN. 303 ABOVE CITED, AND IN OTHER DECISION, IT HAS BEEN HELD THAT SERVICES MAY BE PROCURED BY THE GOVERNMENT BY DIRECT CONTRACT WITH PROTECTIVE AGENCIES AS DISTINGUISHED FROM DETECTIVE AGENCIES. HOWEVER, IT IS UNDERSTOOD THAT YOUR CORPORATION IS IN FACT A DETECTIVE AGENCY AND, THEREFORE, SUBJECT TO THE PROHIBITION OF THE ACT OF MARCH 3, 1893. THE ASSERTION IN YOUR ATTORNEYS' LETTER THAT YOUR CORPORATION HAS NEVER ENGAGED IN SUCH OBJECTIONABLE PRACTICES AS THOSE ATTRIBUTED TO THE PINKERTON DETECTIVE AGENCY IS NOT TO BE REGARDED AS REMOVING THE CORPORATION FROM THE PROHIBITION OF THE STATUTES AS IT HAS BEEN UNIFORMLY INTERPRETED.

IN VIEW OF THE FOREGOING, THERE IS NO BASIS FOR OBJECTION BY OUR OFFICE TO THE PROPOSED REJECTION OF YOUR BID BY THE BUREAU OF YARDS AND DOCKS.