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B-139965, JUL. 10, 1970

B-139965 Jul 10, 1970
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THE ENCLOSURE TO YOUR LETTER IS A COPY OF PAGE 1 OF THE SPECIAL PROVISIONS TO BE INCLUDED. IS QUOTED AS FOLLOWS: 'AN INDIVIDUAL EMPLOYED BY THE PINKERTON DETECTIVE AGENCY. HELD THAT THE ABOVE PROHIBITION IS APPLICABLE TO CONTRACTS OR AGREEMENTS WITH DETECTIVE OR INVESTIGATIVE AGENCIES AS WELL AS TO CONTRACTS WITH INDIVIDUAL EMPLOYEES OF SUCH AGENCIES AND THAT THE UNITED STATES GOVERNMENT MAY NOT ENTER INTO CONTRACTS WITH DETECTIVE OR INVESTIGATIVE AGENCIES EVEN THOUGH THE SERVICES BEING PROCURED ARE NOT TO BE OF A DETECTIVE OR INVESTIGATIVE NATURE. IN ORDER THAT AWARD OF THE CONTRACT WILL NOT BE IN VIOLATION OF THE ABOVE CITED LAW. THE BIDDER IS REQUESTED TO COMPLETE AND SIGN THE CERTIFICATION WHICH IS CONTAINED ON PAGE 1 OF THE SCHEDULE.".

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B-139965, JUL. 10, 1970

TO MR. JESSE R. NELSON:

THE HONORABLE JACK EDWARDS, UNITED STATES HOUSE OF REPRESENTATIVES, HAS TRANSMITTED YOUR LETTER OF JUNE 4, 1970, WITH ENCLOSURE, TO THIS OFFICE FOR CONSIDERATION AND REPLY. YOUR LETTER CONCERNS 5 U.S.C. 3108 AND ITS APPLICATION TO CONTRACTS FOR SECURITY SERVICES WITH GOVERNMENT AGENCIES.

THE ENCLOSURE TO YOUR LETTER IS A COPY OF PAGE 1 OF THE SPECIAL PROVISIONS TO BE INCLUDED, PRESUMABLY IN AN INVITATION FOR BIDS TO FURNISH GUARD SERVICES TO THE GOVERNMENT. PROVISION 1(D) PROVIDES AS FOLLOWS:

"FEDERAL LAW AS CONTAINED IN SECTION 3108 OF TITLE 5 OF THE U.S.C. IS QUOTED AS FOLLOWS: 'AN INDIVIDUAL EMPLOYED BY THE PINKERTON DETECTIVE AGENCY, OR SIMILAR ORGANIZATION, MAY NOT BE EMPLOYED BY THE GOVERNMENT OF THE UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA.' THE COMPTROLLER GENERAL IN HIS DECISION B-139965, JUNE 30, 1959, (38 COMP. GEN. 881), HELD THAT THE ABOVE PROHIBITION IS APPLICABLE TO CONTRACTS OR AGREEMENTS WITH DETECTIVE OR INVESTIGATIVE AGENCIES AS WELL AS TO CONTRACTS WITH INDIVIDUAL EMPLOYEES OF SUCH AGENCIES AND THAT THE UNITED STATES GOVERNMENT MAY NOT ENTER INTO CONTRACTS WITH DETECTIVE OR INVESTIGATIVE AGENCIES EVEN THOUGH THE SERVICES BEING PROCURED ARE NOT TO BE OF A DETECTIVE OR INVESTIGATIVE NATURE. IN ORDER THAT AWARD OF THE CONTRACT WILL NOT BE IN VIOLATION OF THE ABOVE CITED LAW, THE BIDDER IS REQUESTED TO COMPLETE AND SIGN THE CERTIFICATION WHICH IS CONTAINED ON PAGE 1 OF THE SCHEDULE."

YOU EXPLAIN THAT THE ENFORCEMENT OF 5 U.S.C. 3108, AND OUR DECISION OF JUNE 30, 1959, CONCERNING THAT STATUTE, HAVE MADE IT IMPOSSIBLE FOR BRASWELL & BOYKIN, INC., APPARENTLY A SECURITY AND INVESTIGATIVE AGENCY, TO SUBMIT A BID FOR A CONTRACT WHICH INVOLVES THE SOCIAL SECURITY BUILDING AND ATHENS BUILDING IN BIRMINGHAM, ALABAMA, WHICH YOU SAY WILL BE TAKEN BY THE GENERAL SERVICES ADMINISTRATION IN ATLANTA, GEORGIA, ON JUNE 30, 1970. YOU STATE THAT IN YOUR OPINION A LAW SUCH AS THIS HAS NO JUSTIFICATION WHATSOEVER AND VIOLATES A MAN'S RIGHT TO COMPETE IN THE WORLD OF BUSINESS.

THE "ANTI-PINKERTON" LAW, AND OUR DECISION, IN QUESTION ARE STILL IN EFFECT. THE LAW WAS ADOPTED ORIGINALLY IN 1892, AS A TEMPORARY LIMITATION IN AN APPROPRIATION MEASURE, AND WAS MADE PERMANENT THE FOLLOWING YEAR. ITS ENACTMENT AROSE OUT OF CONGRESSIONAL CONCERN OVER THE USE IN PRIVATE INDUSTRY OF ARMED GUARDS OF THE PINKERTON AND OTHER DETECTIVE AGENCIES AS LABOR SPIES AND STRIKEBREAKERS, GIVING RISE TO ACTS OF VIOLENCE. BILLS HAVE BEEN INTRODUCED IN THE PAST PROPOSING THE OUTRIGHT REPEAL OF THE STATUTE OR TO LIMIT ITS APPLICATION ONLY TO PRECLUDE THE EMPLOYMENT OF DETECTIVE PERSONNEL FOR THE PURPOSE OF PROVIDING INVESTIGATIVE SERVICES. NONE OF THESE BILLS HAS PASSED, AND THE MATTER IS PROPERLY FOR THE ATTENTION OF CONGRESS AS THIS OFFICE HAS NO SPECIAL INFORMATION AS TO THE CONSIDERATIONS INVOLVED.

YOU ALSO QUESTION THE PROPRIETY UNDER THE STATUTE OF THE PRACTICE OF GOVERNMENT CONTRACTORS EMPLOYING DETECTIVE AGENCIES TO PROVIDE GUARD SERVICES UNDER SUBCONTRACTS. THIS QUESTION WAS CONSIDERED BY OUR OFFICE IN 26 COMP. GEN. 303 (1946). IN THAT DECISION WE OBSERVED THAT WHERE A SUBCONTRACT IS ENTERED INTO WITH AN INDEPENDENT CONTRACTOR OF THE UNITED STATES, THE GOVERNMENT IS IN NOWISE A PARTY TO THE AGREEMENT NOR IS THERE CREATED ANY PRIVITY OF CONTRACT BETWEEN THE SUBCONTRACTOR AND THE UNITED STATES. WE THEREFORE HELD THAT WHERE THE SERVICES OF THE PINKERTON DETECTIVE AGENCY OR A SIMILAR AGENCY ARE OBTAINED UNDER A SUBCONTRACT WITH A GOVERNMENT CONTRACTOR, THERE DOES NOT RESULT A HIRING OR DIRECT EMPLOYMENT BY THE GOVERNMENT OF THE SERVICES OF SAID AGENCIES OR THEIR EMPLOYEES IN CONTRAVENTION OF THE STATUTE.

WE TRUST THIS SERVES THE PURPOSE OF YOUR LETTER TO CONGRESSMAN EDWARDS.

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