B-177137, FEB 12, 1973

B-177137: Feb 12, 1973

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THE CONTRACTING OFFICER'S DETERMINATION THAT STOVALL WAS A PROTECTIVE AGENCY AND NOT A DETECTIVE AGENCY WAS PROPER. 38 COMP. APPEARS NOT TO HAVE BEEN VIOLATED. THE AWARD TO STOVALL WAS PROPER AND THE PROTEST IS DENIED. INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 25. WHICH WAS ISSUED AUGUST 4. WHILE YOUR BID WAS THE FIFTH LOWEST. BEFORE AWARD WAS MADE. YOU CONTENDED THAT THESE FIRMS WERE DETECTIVE AGENCIES AND THAT THE GOVERNMENT WAS PROHIBITED FROM CONTRACTING WITH THEM BY 5 U.S.C. 3108 AND ASPR 22-108. 5 U.S.C. 3108. ASPR 22-108 IS MERELY A RECOGNITION OF THE ABOVE STATUTE. IT READS AS FOLLOWS: "THERE IS A STATUTORY PROHIBITION AGAINST ENTERING INTO A CONTRACT WITH A DETECTIVE AGENCY OR ITS EMPLOYEES REGARDLESS OF CHARACTER OF THE CONTRACT SERVICES TO BE PERFORMED (5 U.S.C. 3108).".

B-177137, FEB 12, 1973

BID PROTEST - PROTECTIVE DISTINGUISHED FROM DETECTIVE AGENCY - STATUTORY PROHIBITION DECISION DENYING THE PROTEST OF OPTRON SYSTEMS, INC., AGAINST THE AWARD OF A CONTRACT TO STOVALL'S SECURITY SERVICE UNDER A SOLICITATION ISSUED BY THE DEPARTMENT OF THE AIR FORCE. SINCE THE STATE OF CALIFORNIA GRANTED A PRIVATE PATROL OPERATIONS LICENSE TO STOVALL, THE CONTRACTING OFFICER'S DETERMINATION THAT STOVALL WAS A PROTECTIVE AGENCY AND NOT A DETECTIVE AGENCY WAS PROPER. 38 COMP. GEN. 881 (1959). THEREFORE, SINCE 5 U.S.C. 3108, WHICH PROHIBITS THE GOVERNMENT FROM CONTRACTING WITH DETECTIVE AGENCIES, APPEARS NOT TO HAVE BEEN VIOLATED, THE AWARD TO STOVALL WAS PROPER AND THE PROTEST IS DENIED.

TO OPTRON SYSTEMS, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 25, 1972, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT BY THE DEPARTMENT OF THE AIR FORCE UNDER SOLICITATION F04602-73-B-0008 TO STOVALL'S SECURITY SERVICE.

THE SOLICITATION, WHICH WAS ISSUED AUGUST 4, 1972, AT HAMILTON AIR FORCE BASE, CALIFORNIA, INVITED BIDS FOR FURNISHING SECURITY SERVICES AT SUNNYVALE AIR FORCE STATION, SUNNYVALE, CALIFORNIA, FOR THE PERIOD OCTOBER 1, 1972, THROUGH JUNE 30, 1973. SIXTEEN FIRMS SUBMITTED BIDS BY BID OPENING ON AUGUST 21, 1972, RANGING FROM $108,000 TO $180,000. STOVALL SUBMITTED THE LOWEST BID, WHILE YOUR BID WAS THE FIFTH LOWEST. BEFORE AWARD WAS MADE, YOU PROTESTED TO THE CONTRACTING OFFICER THAT THE CONTRACT COULD NOT LEGALLY BE AWARDED TO STOVALL OR TO ANY OF THE OTHER LOWER BIDDERS. YOU CONTENDED THAT THESE FIRMS WERE DETECTIVE AGENCIES AND THAT THE GOVERNMENT WAS PROHIBITED FROM CONTRACTING WITH THEM BY 5 U.S.C. 3108 AND ASPR 22-108.

5 U.S.C. 3108, THE ANTI-PINKERTON STATUTE, PROVIDES THAT:

"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."

ASPR 22-108 IS MERELY A RECOGNITION OF THE ABOVE STATUTE. IT READS AS FOLLOWS:

"THERE IS A STATUTORY PROHIBITION AGAINST ENTERING INTO A CONTRACT WITH A DETECTIVE AGENCY OR ITS EMPLOYEES REGARDLESS OF CHARACTER OF THE CONTRACT SERVICES TO BE PERFORMED (5 U.S.C. 3108)."

THE CONTRACTING OFFICER DETERMINED THAT STOVALL HAD ONLY A STATE OF CALIFORNIA PRIVATE PATROL OPERATIONS LICENSE, AND THAT THIS LICENSE DID NOT AUTHORIZE STOVALL TO OPERATE AS A PRIVATE DETECTIVE OR PRIVATE INVESTIGATOR WITHIN THE STATE OF CALIFORNIA. ACCORDINGLY, HE CONCLUDED THAT STOVALL WAS A PROTECTIVE AGENCY AND NOT A DETECTIVE AGENCY. SEE 38 COMP. GEN. 881 (1959). SINCE THE CONTRACTING OFFICER CONSIDERED IT ESSENTIAL TO AWARD THE CONTRACT BY SEPTEMBER 15, 1972, IN ORDER THAT THE CONTRACTOR WOULD HAVE SUFFICIENT TIME TO MOBILIZE, TRAIN AND QUALIFY APPROPRIATE PERSONNEL TO BEGIN PERFORMANCE UNDER THE CONTRACT BY OCTOBER 1, AWARD WAS MADE TO STOVALL ON SEPTEMBER 15, 1972. YOUR FIRM WAS NOTIFIED OF THE DENIAL OF YOUR PROTEST BY LETTER DATED SEPTEMBER 25, 1972.

YOU NOTE, HOWEVER, THAT STOVALL'S SECURITY SERVICE IS LISTED IN THE OAKLAND YELLOW PAGES UNDER TWO HEADINGS, GUARD AND PATROL SERVICES, AND DETECTIVE AGENCIES. IT IS YOUR CONTENTION THAT STOVALL EITHER WAS IN FACT CONDUCTING A DETECTIVE AGENCY WITHOUT A LICENSE OR WAS GUILTY UNDER CALIFORNIA LAW OF PUBLISHING FALSE AND MISLEADING ADVERTISING, AND THAT IN EITHER CASE AWARD TO STOVALL WAS IMPROPER.

AS REPORTED PREVIOUSLY, STOVALL HAD ONLY A PRIVATE PATROL OPERATIONS LICENSE IN THE STATE OF CALIFORNIA AND THIS LICENSE DID NOT AUTHORIZE IT TO ENGAGE IN DETECTIVE WORK. WE HAVE EXAMINED THE EDITION OF THE YELLOW PAGES WHICH YOU CITE AND FOUND THAT IN THE "DETECTIVE AGENCIES" SECTION, STOVALL MERELY LISTED ITS NAME, ADDRESS AND TELEPHONE NUMBER, WHEREAS IN THE "GUARD AND PATROL SERVICES" SECTION, STOVALL ALSO INCLUDED AN ADVERTISEMENT DETAILING THE SERVICES OFFERED BY IT. THIS ADVERTISEMENT IS LIMITED TO PROTECTIVE FUNCTIONS AND MAKES NO MENTION OF DETECTIVE OR INVESTIGATIVE SERVICES. IN THIS REGARD, THE CONTRACTING OFFICER REPORTS THAT THE CONTACTED VARIOUS OFFICIALS OF THE TELEPHONE COMPANY AND WAS INFORMED THAT THE "COMPANY DOES NOT UNDERTAKE TO DETERMINE THE LEGAL, CONTRACTUAL, OR OTHER RIGHT TO THE USE OF A NAME TO BE LISTED IN A TELEPHONE DIRECTORY OF THE COMPANY." THE CONTRACTING OFFICER STATES THAT HE WAS ALSO ADVISED BY A TELEPHONE COMPANY OFFICIAL THAT IN SELLING ADVERTISING SPACE IN THE TELEPHONE DIRECTORY, AN EFFORT IS MADE TO SELL SPACE UNDER VARIOUS HEADINGS THAT THE SALESPERSON DEEMS TO HAVE THE BEST POTENTIAL FOR SECURING BUSINESS FOR THE ADVERTISER.

BASED ON THE RECORD, WE ARE UNABLE TO CONCLUDE THAT STOVALL WAS IN FACT ENGAGING IN THE BUSINESS OF A DETECTIVE AGENCY OR WAS OTHERWISE INELIGIBLE FOR THE AWARD MERELY BECAUSE THE FIRM LISTED ITS NAME UNDER THE "DETECTIVE AGENCIES" SECTION OF THE YELLOW PAGES OF THE TELEPHONE DIRECTORY. AS THE INFORMATION OBTAINED FROM A TELEPHONE COMPANY OFFICIAL SUGGESTS, THE LISTING IN QUESTION MAY HAVE BEEN SIMPLY AN ATTEMPT ON THE PART OF STOVALL TO INFORM PROSPECTIVE CUSTOMERS OF THE FIRM'S EXISTENCE. IT IS CONCEIVABLE THAT MEMBERS OF THE PUBLIC, UNLESS THEY HAD PREVIOUS DEALINGS WITH ORGANIZATIONS OF THIS NATURE, WOULD FAIL TO MAKE ANY DISTINCTION BETWEEN A DETECTIVE AGENCY AND A PROTECTIVE SERVICE, AND THAT STOVALL'S LISTING IN THE "DETECTIVE AGENCIES" SECTION MAY BE NO MORE THAN AN ATTEMPT TO RECTIFY THIS POSSIBLE MISCONCEPTION. OF COURSE, WE ARE NOT IN A POSITION TO DETERMINE WHETHER STOVALL HAS VIOLATED ANY STATE STATUTES BY VIRTUE OF THIS LISTING. UNDER THE FACTS PRESENTED, WE FIND NO BASIS TO CONCLUDE THAT THE AWARD WAS IMPROPER.

ACCORDINGLY, YOUR PROTEST IS DENIED. THE DEPARTMENT OF THE AIR FORCE NOTES THAT THE DENIAL OF YOUR PROTEST AND THE AWARD TO STOVALL WERE BOTH ACCOMPLISHED ON SEPTEMBER 15, 1972, WHILE THE NOTICE OF THE DENIAL OF YOUR PROTEST WAS MAILED TO YOUR FIRM BY LETTER DATED SEPTEMBER 25, 1972. THE AIR FORCE STATES THAT IT IS INITIATING ACTION TO PROVIDE FOR MAILING OF A DENIAL TO THE PROTESTER PRIOR TO AWARD IN FUTURE CASES OF THIS TYPE.