B-192482, SEP 26, 1978

B-192482, SEP 26, 1978

DIGEST: 1. CONTRACTING OFFICER WHO IS FAMILIAR WITH STATE LICENSING REQUIREMENTS FOR FIRMS OFFERING GUARD SERVICES REASONABLY MAY INCLUDE THEM IN SOLICITATION TO INSURE THAT AWARDEE IS LEGALLY ABLE TO PERFORM. 2. REQUIREMENT OF STATE LICENSE FOR FIRMS OFFERING GUARD SERVICES IS MATTER OF RESPONSIBILITY, AND MAY BE MET AFTER BID OPENING. ASSUMING LOW BIDDER IS OTHERWISE RESPONSIVE AND RESPONSIBLE, AND CAN OBTAIN LICENSE WITHIN REASONABLE TIME, GAO WILL NOT OBJECT TO AWARD BECAUSE FIRM LACKS LICENSE AT TIME OF BID OPENING. PROTEST ON THIS BASIS IS SUMMARILY DENIED. 3. UNDER RECENT COURT AND COMP.GEN. DECISIONS, BIDDER DOES NOT FALL WITHIN PROHIBITION OF ANTI-PINKERTON ACT UNLESS OFFERING "QUASI MILITARY ARMED FORCES" FOR HIRE. GAO RECOMMENDS THAT IN THE FUTURE, CONTRACTING AGENCY OMIT REQUIREMENT FOR EVIDENCE OF COMPLIANCE WITH ACT FROM SOLICITATIONS FOR GUARD SERVICES.

JAMES B. NOLAN COMPANY, INC.:

THE JAMES B. NOLAN COMPANY, INC. (NOLAN), INCUMBENT CONTRACTOR FOR SECURITY SERVICES AT AN INTERNAL REVENUE SERVICE (IRS) FACILITY IN HOLTSVILLE, LONG ISLAND, NEW YORK, PROTESTS DELAY BY THE GENERAL SERVICES ADMINISTRATION (GSA) IN AWARDING A CONTRACT FOR CONTINUING SERVICES. NOLAN ALLEGES THAT IT IS THE LOWEST QUALIFIED BIDDER.

ACCORDING TO THE PROTEST, NOLAN HAS PROVIDED UNIFORMED ARMED GUARDS FOR IRS'S BROOKHAVEN SERVICE CENTER SINCE FEBRUARY 1, 1974. ITS MOST RECENT CONTRACT EXPIRED ON APRIL 30, 1978; SINCE THAT TIME, IT HAS BEEN EXTENDED ON A MONTH-TO-MONTH BASIS.

ON APRIL 11, 1978, NOLAN STATES, BIDS WERE OPENED FOR A NEW CONTRACT UNDER SOLICITATION NO. 2PBO-TCH-19133, ISSUED BY GSA'S PUBLIC BUILDINGS SERVICES, BUILDINGS MANAGEMENT DIVISION. IT WAS TO COVER THE PERIOD FROM APPROXIMATELY MAY 1, 1978, THROUGH APRIL 30, 1979. DESPITE THE FACT THAT GSA, IN A LETTER TO BIDDERS DATED MARCH 22, 1978, STATED THAT ITS REQUIREMENTS WERE URGENT, AWARD HAS NOT YET BEEN MADE.

NOLAN ALLEGES THAT OF THE EIGHT BIDDERS RESPONDING TO THE INVITATION, TWO DID NOT SUBMIT BID BONDS AND TWO OTHERS, ONE OF WHOM HAS SINCE WITHDRAWN, WERE NOT LICENSED TO PERFORM IN NEW YORK. THE LOWEST OF THE REMAINING BIDDERS ARE SPARTAN SECURITY SERVICES (SPARTAN), AT $8.40 AN HOUR, AND NOLAN AT $8.94. ACCORDING NOLAN, SPARTAN DOES NOT HOLD A CURRENT NEW YORK LICENSE REQUIRED BY THE SOLICITATION. NOLAN HAS SUBMITTED A COPY OF ITS OWN LICENSE, VALID UNTIL MARCH 8, 1980, WHICH PERMITS IT TO TRANSACT BUSINESS AS A WATCH/GUARD, OR PATROL AGENCY.

GSA'S DELAY IN AWARDING THE CONTRACT, NOLAN ARGUES, HAS PREVENTED SCHEDULING OF PROFICIENCY TESTS BY COUNTY POLICE, SO THAT THE FIRM'S EMPLOYEES CAN REQUALIFY FOR PISTOL PERMITS. IT ALSO HAS CREATED ADMINISTRATIVE PROBLEMS, PARTICULARLY WITH REGARD TO SCHEDULING AND VACATIONS, AND HAS AFFECTED EMPLOYEE MORALE, NOLAN STATES. NOLAN SEEKS RENEWAL OF ITS CONTRACT WITHOUT FURTHER DELAY.

WE FIND THAT, AS NOLAN ASSERTS, THE SECTION OF THE SOLICITATION DEALING WITH ELIGIBILITY OF BIDDERS SPECIFICALLY REQUIRED BIDDERS TO BE LICENSED TO CONDUCT THE BUSINESS OF A WATCH/GUARD OR PATROL AGENCY. THIS IS A STATUTORY REQUIREMENT IMPOSED BY THE STATE OF NEW YORK UPON FIRMS SUPPLYING PROTECTIVE SERVICES. N. Y. GENERAL BUSINESS LAW SEC. 70 (MCKINNEY, 1968). WHERE, AS HERE, THE CONTRACTING OFFICER IS AWARE OF AND FAMILIAR WITH SUCH LOCAL REQUIREMENTS, OUR OFFICE HAS STATED THAT HE REASONABLY MAY INCLUDE THEM IN A SOLICITATION, IN ORDER TO ASSURE THAT THE AWARDEE IS LEGALLY ABLE TO PERFORM. SEE MINORITY TRUCKING-TRANSPORTATION DEVELOPMENT CORPORATION, B-191231, AUGUST 15, 1978, 78-2 CPD 118 AND CASES CITED THEREIN.

POSSESSION OF SUCH A LICENSE IS, HOWEVER, A MATTER OF BIDDER RESPONSIBILITY, RATHER THAN RESPONSIVENESS. ID. SEE ALSO HALIFAX ENGINEERING INCORPORATED, B-190405, MARCH 7, 1978, 78-1 CPD 178. IN THIS CASE, THE SOLICITATION INDICATED THAT IF THE SUCCESSFUL BIDDER HAD NOT OBTAINED A LICENSE BY THE TIME OF BID OPENING, IT SHOULD SUBMIT ONE BEFORE BEGINNING PERFORMANCE. UNDER THESE CIRCUMSTANCES, WE SEE NO REASON FOR REJECTING SPARTAN'S BID, ASSUMING THAT THE FIRM IS OTHERWISE RESPONSIVE AND RESPONSIBLE AND THAT IT CAN OBTAIN THE WATCH/GUARD OR PATROL LICENSE WITHIN A REASONABLE TIME. SEE GENERALLY NOBLE PINE PRODUCTS CO., B-189420, JULY 24, 1978, 78-2 CPD 65.

ACCORDINGLY, NOLAN'S PROTEST WITH REGARD TO SPARTAN'S LACK OF AN APPROPRIATE NEW YORK LICENSE IS SUMMARILY DENIED, WITHOUT REQUESTING A REPORT FROM THE CONTRACTING AGENCY.

WE NOTE, HOWEVER, THAT IN THE SAME SECTION OF THE SOLICITATION, BIDDERS WERE INFORMED THAT THEY WOULD NOT BE ELIGIBLE FOR AWARD IF THEY FELL WITHIN THE PROHIBITION OF THE SO-CALLED ANTI-PINKERTON ACT. WHILE IT IS NOT ENTIRELY CLEAR FROM THE SOLICITATION, THIS IS A SEPARATE, FEDERAL STATUTORY REQUIREMENT. THE ACT OF MARCH 3, 1893, 5 U.S.C. 3108, PROHIBITS EMPLOYMENT BY THE GOVERNMENT OF EMPLOYEES OF THE PINKERTON DETECTIVE AGENCY OR ANY SIMILAR AGENCY. AS EVIDENCE OF COMPLIANCE, EACH BIDDER WAS ASKED FOR (1) A COPY OF ITS CORPORATE CHARTER, PARTNERSHIP AGREEMENT, CERTIFICATE OF DOING BUSINESS, OR SIMILAR DOCUMENTATION AND (2) A STATEMENT OF ITS LICENSING STATUS UNDER STATE AND LOCAL LAWS APPLICABLE TO FIRMS PERFORMING DETECTIVE WORK.

RECENTLY THE FIFTH CIRCUIT, IN UNITED STATES EX REL. WEINBERGER V. EQUIFAX, 557 F.2D 456 (5TH CIR., 1977), CERT. DENIED JANUARY 16, 1978 (46 U.S.L.W. 3446), REHEARING DENIED, MARCH 6, 1978 (46 U.S.L.W. 3556), HAS CONSTRUED THE ANTI-PINKERTON ACT. IN THIS FIRST REPORTED JUDICIAL INTERPRETATION OF THE ACT, THAT COURT HELD THAT AN ORGANIZATION IS NOT "SIMILAR" TO THE PINKERTON DETECTIVE AGENCY UNLESS IT OFFERS "QUASI MILITARY ARMED FORCES" FOR HIRE.

IN A DECISION TO HEADS OF FEDERAL DEPARTMENTS AND AGENCIES, B-139965, JUNE 7, 1978, WE STATED:

"WE HAVE CAREFULLY CONSIDERED THE COURT'S DECISION AND FIND OURSELVES IN ESSENTIAL AGREEMENT WITH IT. *** IT SEEMS CLEAR THAT A COMPANY WHICH PROVIDES GUARD OR PROTECTIVE SERVICES DOES NOT THEREBY BECOME A 'QUASI- MILITARY ARMED FORCE,' EVEN IF THE INDIVIDUAL GUARDS ARE ARMED.

"IN THE FUTURE, WE WILL FOLLOW THE DECISION OF THE FIFTH CIRCUIT IN EQUIFAX IN INTERPRETING AND APPLYING THE ANTI-PINKERTON ACT; THAT IS, THE STATUTORY PROHIBITION WILL BE APPLIED ONLY IF AN ORGANIZATION CAN BE SAID TO OFFER QUASI-MILITARY ARMED FORCES FOR HIRE."

PRIOR DECISIONS, IN WHICH OUR OFFICE HAD ATTEMPTED TO DISTINGUISH BETWEEN A DETECTIVE AGENCY AND A "PROTECTIVE" AGENCY BY CONSIDERING SUCH THINGS AS THE NATURE OF THE FUNCTIONS THAT IT MIGHT PERFORM UNDER ITS CORPORATE CHARTER AND STATE LICENSING ARRANGEMENTS, WOULD NO LONGER BE FOLLOWED, WE STATED. SEE ALSO PROFESSIONAL SECURITY OFFICERS COMPANY, 57 COMP.GEN. 480 (1978), 78-1 CPD 396.

IN VIEW OF THESE DECISIONS, WE BELIEVE THAT THE SOLICITATION REQUIREMENT FOR EVIDENCE OF COMPLIANCE WITH THE ANTI-PINKERTON ACT IS UNNECESSARY, AND ALL THAT SHOULD BE REQUIRED IS CERTIFICATION BY A BIDDER OR A FINDING BY THE CONTRACTING OFFICER THAT THE BIDDER IS NOT OFFERING "QUASI-MILITARY ARMED FORCES."

IN THE INSTANT CASE, THERE IS NO EVIDENCE THAT ANY BIDDER OR PROSPECTIVE BIDDER WAS PREJUDICED BY THE REQUIREMENT FOR COMPLIANCE WITH THE ANTI- PINKERTON ACT. MOREOVER, ALTHOUGH ISSUED AFTER THE FIFTH CIRCUIT CONSTRUED THE ACT, THIS SOLICITATION PRECEDED OUR OFFICE'S DECISIONS ON THE MATTER. WE THEREFORE DO NOT BELIEVE THAT CORRECTIVE ACTION IS NECESSARY WITH REGARD TO THIS PROCUREMENT.

IN THE FUTURE, HOWEVER, WE RECOMMEND THAT GSA OMIT ALL REQUIREMENTS FOR COMPLIANCE WITH THE ANTI-PINKERTON ACT FROM ITS SOLICITATIONS FOR GUARD SERVICES AND, BY LETTER OF TODAY, ARE ADVISING THE ADMINISTRATOR OF OUR VIEWS.