B-176307(1), MAR 21, 1973

B-176307(1): Mar 21, 1973

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IS NOT ESTABLISHED BY THE EXISTENCE OF BROAD LANGUAGE IN THE ARTICLES OF INCORPORATION OF THE CONTRACTOR WHICH WOULD SEEM TO ALLOW FOR DETECTIVE SERVICES. NOR IS IT ESTABLISHED BY THE FACT THAT THE CONTRACTOR HOLDS A D.C. NOR IS IT ESTABLISHED BY THE MERE EXISTENCE OF TELEPHONE DIRECTORY LISTINGS WHICH SEEM TO SHOW THAT THE CONTRACTOR HOLDS HIMSELF OUT AS A DETECTIVE AGENCY. THESE INFERENCES ARE NEGATED BY THE CONTRACTOR'S EXECUTION OF AN ANTI-PINKERTON ACT CERTIFICATION. THE RESOLUTION OF A CONTRACTOR'S RESPONSIBILITY IS VESTED IN THE CONTRACTING OFFICER WHOSE DETERMINATION IS NOT SUBJECT TO OBJECTION BY GAO ABSENT EVIDENCE THAT HE ABUSED THIS DISCRETION. THE BID OF INTERSEC WAS DETERMINED TO BE LOWEST AND AWARD WAS MADE TO THAT FIRM ON JUNE 12.

B-176307(1), MAR 21, 1973

BID PROTEST - ANTI-PINKERTON ACT - RESPONSIBILITY DECISION DENYING THE PROTEST OF PLANT SECURITY, INC., AGAINST THE AWARD OF A CONTRACT TO THE INTERNATIONAL SECURITY CORPORATION UNDER AN IFB ISSUED BY THE NATIONAL CAPITAL HOUSING AUTHORITY FOR GUARD AND SECURITY SERVICES IN THE DISTRICT OF COLUMBIA. A VIOLATION OF THE ANTI-PINKERTON ACT, 5 U.S.C. 3108, IS NOT ESTABLISHED BY THE EXISTENCE OF BROAD LANGUAGE IN THE ARTICLES OF INCORPORATION OF THE CONTRACTOR WHICH WOULD SEEM TO ALLOW FOR DETECTIVE SERVICES, SEE 41 COMP. GEN. 819, 822 (1962), NOR IS IT ESTABLISHED BY THE FACT THAT THE CONTRACTOR HOLDS A D.C. DETECTIVE LICENSE SINCE D.C. ALSO ISSUES SUCH LICENSES TO FIRMS WHO ONLY PROVIDE GUARD SERVICES, NOR IS IT ESTABLISHED BY THE MERE EXISTENCE OF TELEPHONE DIRECTORY LISTINGS WHICH SEEM TO SHOW THAT THE CONTRACTOR HOLDS HIMSELF OUT AS A DETECTIVE AGENCY. B-177137, FEBRUARY 12, 1973. THESE INFERENCES ARE NEGATED BY THE CONTRACTOR'S EXECUTION OF AN ANTI-PINKERTON ACT CERTIFICATION. ALSO, THE RESOLUTION OF A CONTRACTOR'S RESPONSIBILITY IS VESTED IN THE CONTRACTING OFFICER WHOSE DETERMINATION IS NOT SUBJECT TO OBJECTION BY GAO ABSENT EVIDENCE THAT HE ABUSED THIS DISCRETION. SEE 51 COMP. GEN. 233, 235 (1971).

TO AMRAM, HAHN & SANDGROUND:

WE REFER TO YOUR LETTER OF NOVEMBER 10, 1972, AND PRIOR CORRESPONDENCE ON BEHALF OF PLANT SECURITY, INC., PROTESTING AGAINST THE AWARD OF A CONTRACT FOR GUARD AND SECURITY SERVICES IN THE DISTRICT OF COLUMBIA TO THE INTERNATIONAL SECURITY CORPORATION (INTERSEC) UNDER INVITATION FOR BIDS (IFB) NO. 43, ISSUED ON MAY 25, 1972, BY THE NATIONAL CAPITAL HOUSING AUTHORITY (NCHA).

OF THE THREE BIDS RECEIVED BY THE BID OPENING DATE (JUNE 8), THE BID OF INTERSEC WAS DETERMINED TO BE LOWEST AND AWARD WAS MADE TO THAT FIRM ON JUNE 12. YOU MAINTAIN THAT THE AWARD WAS IMPROPER BECAUSE INTERSEC (1) WAS NOT A RESPONSIBLE BIDDER; (2) WAS INELIGIBLE FOR AWARD UNDER THE ANTI- PINKERTON ACT (5 U.S.C. 3108); AND (3) HAD FALSELY COMPLETED THE IFB CERTIFICATION THAT IT WAS NOT A DETECTIVE AGENCY. THAT STATUTE PROVIDES:

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.

FOR THE REASONS WHICH FOLLOW, WE FIND NO BASIS TO OBJECT TO THE AWARD.

FIRST, INTERSEC'S ARTICLES OF INCORPORATION DO NOT SPECIFICALLY AUTHORIZE IT TO ENGAGE IN THE DETECTIVE SERVICES BUSINESS. NEITHER DO WE FEEL THAT THE BROAD LANGUAGE THEREOF AUTHORIZING INTERSEC TO ENGAGE IN ANY BUSINESS INCIDENTAL TO THE SPECIFIC AUTHORITY TO ENGAGE IN THE SECURITY SERVICES BUSINESS MAY BE REASONABLY RELIED UPON TO REACH THE CONCLUSION THAT CONTRACTING WITH INTERSEC FOR GUARD SERVICES WAS INTERDICTED BY THE ACT. SEE, IN THIS RESPECT, 41 COMP. GEN. 819, 822 (1962).

SECOND, ALTHOUGH INTERSEC HOLDS A DETECTIVE LICENSE, WE NOTE THAT THE DISTRICT OF COLUMBIA DOES NOT ISSUE LICENSES FOR GUARD SERVICES ALONE; INSTEAD, IT ISSUES DETECTIVE LICENSES TO FIRMS WHICH DESIRE ONLY TO PROVIDE GUARD SERVICES IN THE DISTRICT OF COLUMBIA. IN THIS SINGLE LICENSE CONTEXT, WE CANNOT GIVE ANY CONCLUSIVE EFFECT TO INTERSEC'S DETECTIVE LICENSE AS DETERMINING ITS STATUS UNDER THE ACT.

HOWEVER, AS PROOF OF ITS POSITION THAT INTERSEC IS A DETECTIVE AGENCY AND, AS SUCH, BARRED FROM RECEIVING ANY AWARD BY REASON OF 5 U.S.C. 3108, PLANT HAS FURNISHED COPIES OF INTERSEC'S ADVERTISEMENTS IN THE YELLOW-PAGE TELEPHONE DIRECTORIES OF PHILADELPHIA AND THE DISTRICT OF COLUMBIA (D.C.). PLANT CONTENDS THAT THESE ADVERTISEMENTS CONSTITUTE A "HOLDING- OUT" BY INTERSEC THAT IT WAS AND IS A DETECTIVE AGENCY. INTERSEC'S ADVERTISING APPEARS UNDER THE "DETECTIVE" HEADING IN THE PHILADELPHIA DIRECTORY AND UNDER THE "GUARD" HEADING IN BOTH THE PHILDELPHIA AND D.C. TELEPHONE DIRECTORIES. ALSO, IT IS POINTED OUT THAT, NOTWITHSTANDING THE "GUARD" HEADING, SOME OF THE SERVICES ADVERTISED - "UNDERCOVER," POLYGRAPH, AND INTEGRITY SHOPPING - ARE DETECTIVE SERVICES. OUR REVIEW OF THE D.C. WHITE-PAGE TELEPHONE DIRECTORY SHOWS THE WORD "INVSTGATNS" FOLLOWING THE LISTING FOR THE INTERNATIONAL SECURITY CORPORATION.

WE DO NOT REGARD TELEPHONE LISTINGS ALONE AS SUFFICIENT EVIDENCE TO SHOW THAT A CONTRACTOR PROVIDING GUARD SERVICES WAS OR IS ENGAGED IN THE BUSINESS OF PROVIDING DETECTIVE SERVICES. B-177137, FEBRUARY 12, 1973, COPY ENCLOSED. IN OUR OPINION, INTERSEC'S SUBSEQUENT ANTI PINKERTON ACT CERTIFICATION NEGATES ANY CONTRARY INFERENCE WHICH MIGHT BE DRAWN FROM THE YELLOW-PAGE LISTINGS. ACCORDINGLY, NO BASIS EXISTS FOR OUR OFFICE TO DISTURB THE AWARD TO INTERSEC. IN FUTURE PROCUREMENTS OF GUARD SERVICES, HOWEVER, WE BELIEVE THAT INTERSEC'S CONTINUED USE OF ITS CURRENT TELEPHONE LISTINGS SHOULD PROMPT NCHA TO INQUIRE FURTHER INTO INTERSEC'S STATUS BEFORE RELYING ON AN ANTI PINKERTON ACT CERTIFICATION.

WITH RESPECT TO INTERSEC'S RESPONSIBILITY, THE RESOLUTION OF THIS MATTER WAS VESTED IN THE CONTRACTING OFFICER WHOSE DETERMINATION IS NOT SUBJECT TO OBJECTION BY OUR OFFICE ABSENT EVIDENCE THAT THE CONTRACTING OFFICER ABUSED HIS DISCRETION. SEE 51 COMP. GEN. 233, 235 (1971); B 176262(1), DECEMBER 4, 1972. IN THIS INSTANCE, THERE IS NOTHING IN THE RECORD WHICH WOULD LEAD US TO A CONTRARY CONCLUSION.