B-157050, AUG. 9, 1965

B-157050, AUG. 9, 1965

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED JULY 22, 1965, FROM THE CHIEF, PROCUREMENT OPERATIONS DIVISION, DIRECTORATE, PROCUREMENT POLICY, DCS/S AND L, FORWARDING A REPORT ON THE PROTEST OF POST PATROL AGENCY AGAINST CONSIDERATION OF A BID FROM BURNS SECURITY SYSTEMS, INCORPORATED, FOR THE PERFORMANCE OF SECURITY GUARD SERVICES AT EDWARDS AIR FORCE BASE, CALIFORNIA. THE BID WAS SUBMITTED IN RESPONSE TO INVITATION FOR BIDS (IFB) NO. 04-611-65-254. THE IFB HAS SINCE BEEN CANCELLED BECAUSE OF AN EXPERIENCE REQUIREMENT IN THE SPECIFICATIONS WHICH WAS CONSIDERED TO BE RESTRICTIVE, IN LINE WITH OUR DECISION B-155990, JUNE 8, 1965, IN A SIMILAR PROCUREMENT.

THE BASIS OF THE POST PATROL PROTEST IS THAT BURNS SECURITY, THE LOW BIDDER, IS A SUBDIVISION OF BURNS DETECTIVE AGENCY, INCORPORATED (WILLIAM J. BURNS INTERNATIONAL DETECTIVE AGENCY, INCORPORATED), AND THEREFORE, COMES WITHIN THE DETECTIVE AGENCY EMPLOYMENT PROHIBITION IN THE ACT OF MARCH 3, 1893, 5 U.S.C. 53. IN THIS CONNECTION, POST PATROL CITES OUR DECISION B-153681, MARCH 18, 1965, 44 COMP. GEN. - , WHICH HELD THAT A CORPORATION ORGANIZED TO OPERATE AS A PROTECTIVE AGENCY AND MAINTAINING ITS SEPARATE CORPORATE IDENTITY DID NOT COME WITHIN THE STATUTORY PROHIBITION MERELY BY REASON OF THE FACT THAT IT WAS A WHOLLY-OWNED SUBSIDIARY OF A CORPORATION WHICH WAS A DETECTIVE AGENCY, AND CONTENDS THAT THE DECISION VIOLATES THE STATUTORY PROVISIONS. ALTHOUGH THE CANCELLATION OF THE IFB HAS RENDERED THE PROTEST MOOT, OUR COMMENTS HAVE BEEN SOLICITED BY THE CHIEF, PROCUREMENT OPERATIONS DIVISION, CONCERNING THE APPLICABILITY OF THE RULE SET FORTH IN THAT DECISION IN THE EVENT BURNS SECURITY SHOULD AGAIN BE THE LOW BIDDER UNDER THE READVERTISEMENT OF THE PROCUREMENT.

WHILE WE CANNOT PROPERLY RENDER A BINDING DECISION ON THE QUESTION PROPOUNDED, WHICH MUST BE CONSIDERED AS HYPOTHETICAL AT THIS TIME, IT IS TO BE NOTED THAT OUR DECISION OF MARCH 18, 1965, B-153681, WAS RENDERED UPON A REQUEST FOR RECONSIDERATION OF OUR PRIOR DECISION IN THE SAME CASE, AND AFTER THOROUGH CONSIDERATION OF AN EXHAUSTIVE BRIEF SUBMITTED BY EMINENT LEGAL COUNSEL. IN VIEW OF THE FULL REVIEW AT THAT TIME OF THE LEGAL POINTS INVOLVED WE ARE AWARE OF NO REASONABLE BASIS FOR DOUBT AS TO THE WEIGHT TO BE GIVEN THAT DECISION BY THIS OFFICE AS PRECEDENT FOR THE LEGAL PROPOSITIONS THEREIN STATED, ALTHOUGH WE WOULD OF COURSE BE REQUIRED TO CONSIDER ANY QUESTIONS WHICH MIGHT BE PRESENTED AS TO THE APPLICABILITY OF SUCH LEGAL CONCLUSIONS TO THE BURNS ORGANIZATION.

THE FILE FORWARDED WITH THE LETTER OF JULY 22 IS RETURNED, TOGETHER WITH A COPY OF OUR DECISION OF TODAY TO THE PROTESTING BIDDER.