B-60799, NOVEMBER 6, 1946, 26 COMP. GEN. 303

B-60799: Nov 6, 1946

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THAT THE PROCUREMENT OF WATCHMAN AND ARMED GUARD SERVICES IS NECESSARY IN CONNECTION WITH THE CARE. IT IS NOT MATERIAL THAT THE SERVICES OF SAID AGENCIES ARE NOT TO BE OF A DETECTIVE OR INVESTIGATIVE NATURE BUT WOULD INVOLVE THE FURNISHING OF GUARDS AND WATCHMEN FOR THE PROTECTION OF GOVERNMENT PROPERTY. 1946: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 19. AS FOLLOWS: THE RECONSTRUCTION FINANCE CORPORATION AND THE WAR ASSETS CORPORATION HERETOFORE ENTERED INTO COST REIMBURSABLE CONTRACTS WITH WAREHOUSE OPERATORS WHEREBY THESE CONTRACTORS ARE RESPONSIBLE FOR THE CARE AND PRESERVATION OF GOVERNMENT SURPLUS PROPERTY. ARMED GUARD AND WATCHMAN SERVICE SUBCONTRACTS WERE ENTERED INTO BY THESE WAREHOUSE OPERATORS WITH CERTAIN SPECIALLY QUALIFIED FIRMS INCLUDING THE PINKERTON DETECTIVE AGENCY.

B-60799, NOVEMBER 6, 1946, 26 COMP. GEN. 303

PERSONAL SERVICES - PROTECTION OF SURPLUS PROPERTY - APPLICABILITY OF DETECTIVE EMPLOYMENT PROHIBITION A SUBCONTRACT WITH A DETECTIVE AGENCY FOR PROTECTIVE ARMED GUARD AND WATCHMAN SERVICES ENTERED INTO BY A COST-PLUS-A-FIXED-FEE CONTRACTOR PERFORMING WAREHOUSING SERVICES IN CONNECTION WITH THE DISPOSAL OF SURPLUS PROPERTY DOES NOT CONSTITUTE A HIRING OR DIRECT EMPLOYMENT BY THE GOVERNMENT OF THE SERVICES OF THE AGENCY OR ITS EMPLOYEES IN CONTRAVENTION OF THE PROHIBITION IN THE ACT OF MARCH 3, 1893, AGAINST THE EMPLOYMENT BY THE GOVERNMENT OF EMPLOYEES OF THE PINKERTON DETECTIVE AGENCY OR SIMILAR AGENCY, SO AS TO PRECLUDE REIMBURSEMENT OF THE COST OF SUCH SERVICES TO THE CONTRACTOR. PROVIDED IT BE DETERMINED BY THE WAR ASSETS ADMINISTRATION, PURSUANT TO THE PROVISIONS OF THE THIRD DEFICIENCY APPROPRIATION ACT, 1946, THAT THE PROCUREMENT OF WATCHMAN AND ARMED GUARD SERVICES IS NECESSARY IN CONNECTION WITH THE CARE, HANDLING, AND DISPOSITION OF SURPLUS PROPERTY, SUCH SERVICES MAY BE PROCURED BY DIRECT CONTRACT WITH PROTECTIVE AGENCIES, AS DISTINGUISHED FROM DETECTIVE AGENCIES AS TO WHICH WOULD APPLY THE PROHIBITION IN THE ACT OF MARCH 3, 1893, AGAINST THE EMPLOYMENT BY THE GOVERNMENT OF EMPLOYEES OF THE PINKERTON DETECTIVE AGENCY OR SIMILAR AGENCY. THE PROHIBITION IN THE ACT OF MARCH 3, 1893, AGAINST THE EMPLOYMENT BY THE GOVERNMENT OF EMPLOYEES OF THE PINKERTON DETECTIVE AGENCY OR SIMILAR AGENCY OPERATES WITH RESPECT TO THE EMPLOYMENT OF SUCH EMPLOYEES REGARDLESS OF THE CHARACTER OF SERVICE TO BE PERFORMED, AND IT IS NOT MATERIAL THAT THE SERVICES OF SAID AGENCIES ARE NOT TO BE OF A DETECTIVE OR INVESTIGATIVE NATURE BUT WOULD INVOLVE THE FURNISHING OF GUARDS AND WATCHMEN FOR THE PROTECTION OF GOVERNMENT PROPERTY.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, WAR ASSETS ADMINISTRATION, NOVEMBER 6, 1946:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 19, 1946, AS FOLLOWS:

THE RECONSTRUCTION FINANCE CORPORATION AND THE WAR ASSETS CORPORATION HERETOFORE ENTERED INTO COST REIMBURSABLE CONTRACTS WITH WAREHOUSE OPERATORS WHEREBY THESE CONTRACTORS ARE RESPONSIBLE FOR THE CARE AND PRESERVATION OF GOVERNMENT SURPLUS PROPERTY. IN ORDER ADEQUATELY TO PROVIDE SUCH PROTECTION, ARMED GUARD AND WATCHMAN SERVICE SUBCONTRACTS WERE ENTERED INTO BY THESE WAREHOUSE OPERATORS WITH CERTAIN SPECIALLY QUALIFIED FIRMS INCLUDING THE PINKERTON DETECTIVE AGENCY.

THESE CONTRACTS AND SUBCONTRACTS WHICH WERE ENTERED INTO BY RECONSTRUCTION FINANCE CORPORATION AND WAR ASSETS CORPORATION WERE TRANSFERRED BY OPERATION OF LAW, PURSUANT TO EXECUTIVE ORDER NO. 9689 (11 F.R. 1265), TO THIS ADMINISTRATION EFFECTIVE MARCH 25, 1946 AND THE QUESTION THUS PRESENTED INVOLVES THE APPLICATION OF THE ACT OF MARCH 3, 1893, 27 STAT. 591 (5 U.S.C. 53), WHICH PROVIDES AS FOLLOWS:

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

IT IS SUBMITTED THAT THIS LEGISLATION WAS INTENDED TO PRECLUDE THE USE BY THE GOVERNMENT OF DETECTIVES AND THAT THERE WAS NO INTENTION TO PROHIBIT THE GOVERNMENT FROM ENGAGING THE SERVICES OF ARMED GUARDS FOR THE PURPOSE OF PROTECTING GOVERNMENT PROPERTY. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO 34 OP. ATTY. GEN. 241 WHEREIN REFERENCE WAS MADE TO A PROPOSED BILL WHICH WOULD HAVE PROHIBITED OFFICERS OF THE GOVERNMENT FROM CONTRACTING WITH FIRMS WHO EMPLOY PINKERTON DETECTIVES OR ANY OTHER ASSOCIATION OF MEN AS ARMED GUARDS BUT WHICH WAS REPLACED BY A BILL WHICH BECAME THE ABOVE-QUOTED ACT OF 1893. THE IMPLICATION THUS RAISED IS THAT CONGRESS EXPRESSED ITS INTENTION TO PERMIT THE GOVERNMENT'S CONTRACTING WITH FIRMS WHICH EMPLOY ARMED GUARD SERVICES AS DISTINGUISHED FROM DETECTIVE SERVICES.

THE SERVICES PERFORMED BY PINKERTON IN THE INSTANT CASES WERE NEITHER INVESTIGATIVE NOR DETECTIVE IN ANY RESPECT. THE EXPRESS TERMS OF THE SUBCONTRACTS PROVIDE ONLY FOR "PROTECTIVE GUARD AND WATCHMAN SERVICES" AND CONTAIN NO PROVISION, EXPRESS OR IMPLIED, FOR THE PERFORMANCE OF DETECTIVE OR INVESTIGATIVE SERVICES. MOREOVER, OUR COMPLIANCE ENFORCEMENT DIVISION, WHICH IS ADEQUATELY STAFFED WITH QUALIFIED PERSONNEL, PERFORMS INVESTIGATIVE SERVICES WHENEVER THE NEED ARISES.

THERE ARE SOME INSTANCES WHERE THIS ADMINISTRATION, ITSELF, OPERATES ITS WAREHOUSE OR STORAGE POINTS, AND CIRCUMSTANCES SUCH AS THOSE ABOVE RELATED, ARE PRESENT. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO B- 32894, DATED MARCH 29, 1943, WHEREIN IT WAS HELD THAT YOUR OFFICE WOULD INTERPOSE NO OBJECTION TO THE PROCUREMENT, BY THE OFFICE OF PRICE ADMINISTRATION, OF ARMED GUARD SERVICES FOR THE PROTECTION OF RATION COUPONS. IT WAS POINTED OUT IN THAT CASE THAT THE SUBJECT ACT OF 1893 RELATES PRIMARILY TO DETECTIVE AGENCIES AND WOULD NOT NECESSARILY BE FOR APPLICATION TO A PROTECTIVE AGENCY NOT ENGAGED IN DETECTIVE WORK.

IN VIEW OF THE FOREGOING CIRCUMSTANCES, YOUR DECISION IS REQUESTED AS TO THE FOLLOWING QUESTIONS:

(1) WHETHER THE GENERAL ACCOUNTING OFFICE WOULD BE REQUIRED TO OBJECT TO OTHERWISE PROPER DISBURSEMENTS MADE BY WAR ASSETS ADMINISTRATION TO REIMBURSE A COST-PLUS-FIXED-FEE-CONTRACTOR UNDER A CONTRACT TRANSFERRED TO WAR ASSETS ADMINISTRATION BY EXECUTIVE ORDER 9689, OR UNDER A WAR ASSETS ADMINISTRATION CONTRACT, FOR COSTS INCURRED SUBSEQUENT TO JUNE 30, 1946, UNDER A SUBCONTRACT WITH THE PINKERTON DETECTIVE AGENCY OR SIMILAR AGENCIES FOR PROTECTIVE GUARD AND WATCHMAN SERVICES;

(2) WHETHER THIS ADMINISTRATION MAY CONTRACT DIRECTLY WITH PROTECTIVE AGENCIES AS DISTINGUISHED FROM DETECTIVE AGENCIES TO PROVIDE WATCHMAN AND ARMED GUARD SERVICES NECESSARY FOR THE PROTECTION OF GOVERNMENT PROPERTY; AND

(3) WHETHER THE WAR ASSETS ADMINISTRATION MAY CONTRACT DIRECTLY (WITH) THE PINKERTON DETECTIVE AGENCY OR SIMILAR AGENCIES FOR SUCH SERVICES, SINCE THE PINKERTON DETECTIVE AGENCY WILL NOT IN FACT BE CALLED UPON NOR PERMITTED TO ENGAGE IN DETECTIVE WORK UNDER EITHER DIRECT CONTRACTS OR SUBCONTRACTS BUT RATHER IS RESTRICTED TO THE USE OF GUARDS AND WATCHMEN IN PROTECTING GOVERNMENT-OWNED PROPERTY.

IN THE OPINION OF THE ATTORNEY GENERAL CITED IN YOUR LETTER (34 OP. ATTY. GEN. 241), CONSTRUING THE ACT OF MARCH 3, 1893, 27 STAT. 591, THE LEGISLATIVE HISTORY OF THE STATUTE WAS REVIEWED AND UPON THE BASIS THEREOF --- PARTICULARLY THE FACT THAT, IN THE CONSIDERATION OF THE MEASURE, THE CONGRESS HAD REJECTED PROVISIONS WHICH WOULD HAVE MADE UNLAWFUL GOVERNMENT CONTRACTS WITH THOSE WHO EMPLOYED DETECTIVES OF THE PINKERTON AGENCY OR SIMILAR AGENCIES--- IT WAS CONCLUDED THAT THE PROVISIONS THEREOF APPLY ONLY TO THOSE "DIRECTLY EMPLOYED" BY THE GOVERNMENT. 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. KELLOGG V. UNITED STATES, 74 U.S. 361; H. HERFURTH, JR., INC., V UNITED STATES, 89 C.CLS. 122. THEREFORE, WHERE THE SERVICES OF THE PINKERTON DETECTIVE AGENCY OR A SIMILAR AGENCY ARE OBTAINED UNDER A SUBCONTRACT WITH A COST REIMBURSABLE CONTRACTOR OF YOUR ADMINISTRATION, 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 1893 STATUTE. ACCORDINGLY, QUESTION (1) IS ANSWERED IN THE NEGATIVE.

BY SECTION 11 (D) OF THE SURPLUS PROPERTY ACT OF 1944, 58 STAT. 765, 770, THE WAR ASSETS ADMINISTRATION IS CHARGED WITH RESPONSIBILITY FOR THE CARE AND HANDLING OF PROPERTY DECLARED SURPLUS TO IT PENDING THE DISPOSITION OF SUCH PROPERTY, AND THE PROVISIONS OF THE THIRD DEFICIENCY APPROPRIATION ACT, 1946, PUBLIC LAW NO. 521, APPROVED JULY 23, 1946, 60 STAT. 607, EXPRESSLY AUTHORIZE THE---

* * * TEMPORARY (NOT IN EXCESS OF ONE YEAR) OR INTERMITTENT SERVICES OF EXPERTS OR CONSULTANTS OR ORGANIZATIONS THEREOF * * * BY CONTRACT OR OTHERWISE, WITHOUT REGARD TO THE CIVIL-SERVICE AND CLASSIFICATION LAWS * * * PROCUREMENT OF SUPPLIES, EQUIPMENT; REPORTS AND SERVICES IN CONNECTION WITH THE CARE, HANDLING, AND DISPOSITION OF SURPLUS PROPERTY WITHOUT REGARD TO THE PROVISIONS OF SECTION 3709 OF THE REVISED STATUTES (41 U.S.C. 5) UPON DETERMINATION BY THE ADMINISTRATOR OR BY ANY OFFICIAL DESIGNATED BY HIM FOR THIS PURPOSE THAT SUCH METHOD OF PROCUREMENT IS NECESSARY * * *.

IN VIEW THEREOF, AND IF IT BE ADMINISTRATIVELY DETERMINED TO BE NECESSARY TO OBTAIN WATCHMAN AND ARMED GUARD SERVICES IN CONNECTION WITH THE "CARE, HANDLING, AND DISPOSITION OF SURPLUS PROPERTY," I HAVE TO ADVISE, IN ANSWER TO QUESTION (2), THAT NO OBJECTION WILL BE INTERPOSED BY THIS OFFICE TO THE PROCUREMENT OF SUCH SERVICES BY DIRECT CONTRACT WITH PROTECTIVE AGENCIES AS DISTINGUISHED FROM DETECTIVE AGENCIES. SEE DECISION OF MARCH 29, 1943, B-32894, CITED IN YOUR LETTER.

WITH REFERENCE TO QUESTION (3), THE TERMS OF THE ACT OF MARCH 3, 1893, ARE PLAIN AND UNAMBIGUOUS. THE PROHIBITION IN THE STATUTE IS AGAINST THE EMPLOYMENT OF EMPLOYEES OF THE AGENCY NAMED THEREIN OR ANY SIMILAR AGENCY, REGARDLESS OF THE CHARACTER OF SERVICE TO BE PERFORMED, AND THE FACT THAT THE SERVICES OF SAID AGENCIES ARE NOT TO BE OF A DETECTIVE OR INVESTIGATIVE NATURE IS NOT MATERIAL. SEE 8 COMP. GEN. 89, AND THE CASES CITED THEREIN. ACCORDINGLY, SAID QUESTION IS ANSWERED IN THE NEGATIVE.