B-149192, NOV. 2, 1962
Highlights
OR PATROL AS WELL AS INVESTIGATIVE BUSINESS IS NOT PRECLUDED FROM CONTRACTING WITH THE FEDERAL OR DISTRICT OF COLUMBIA GOVERNMENTS UNDER THE ACT OF 1893 WHERE THE CORPORATION IS NOT AUTHORIZED UNDER ITS CHARTER TO ENGAGE IN INVESTIGATIVE ACTIVITIES. THE FOLLOWING ADDITIONAL CONCLUSIONS WERE SET FORTH: 1. THAT A CORPORATION NOT LICENSED AS A DETECTIVE AGENCY NOR EMPOWERED BY ITS CHARTER TO DO INVESTIGATIVE WORK WOULD BE ELIGIBLE UNDER THE ACT TO RECEIVE A FEDERAL AGENCY CONTRACT FOR GUARD SERVICES NOTWITHSTANDING IT IS A WHOLLY-OWNED SUBSIDIARY OF AN INELIGIBLE DETECTIVE AGENCY WITH MUTUAL DIRECTORS AND OFFICERS. THAT A CORPORATION EXPRESSLY PROHIBITED UNDER ITS CHARTER FROM ENGAGING IN DETECTIVE SERVICES IS NOT INELIGIBLE UNDER THE ACT BECAUSE THE STOCK OF SUCH CORPORATION IS OWNED BY THE SAME INDIVIDUALS WHO OWN STOCK IN A DETECTIVE AGENCY.
B-149192, NOV. 2, 1962
MR. MELVIN L. BEDRICK:
BY LETTER OF OCTOBER 23, 1962, YOU REQUESTED THAT WE CLARIFY, WITH RESPECT TO THE MATTER OF DICTUM, OUR DECISION OF JUNE 29, 1962, B 149192, PUBLISHED AT 41 COMP. GEN. - , CONCERNING APPLICABILITY OF THE ACT OF MARCH 3, 1893, PROHIBITING FEDERAL OR DISTRICT OF COLUMBIA EMPLOYMENT OF PINKERTON DETECTIVE AGENCY OR SIMILAR AGENCY EMPLOYEES.
IN THE REFERENCE DECISION WE HELD PRIMARILY THAT A CORPORATION THAT HOLDS A PRIVATE DETECTIVE LICENSE UNDER A STATE STATUTE WHICH DEFINES "PRIVATE DETECTIVE" AS INCLUDING PERSONS WHO FOR FEE OR REWARD ENGAGE IN WATCH, GUARD, OR PATROL AS WELL AS INVESTIGATIVE BUSINESS IS NOT PRECLUDED FROM CONTRACTING WITH THE FEDERAL OR DISTRICT OF COLUMBIA GOVERNMENTS UNDER THE ACT OF 1893 WHERE THE CORPORATION IS NOT AUTHORIZED UNDER ITS CHARTER TO ENGAGE IN INVESTIGATIVE ACTIVITIES. AND, ALTHOUGH NOT NECESSARY TO DISPOSITION OF THE QUESTION CONSIDERED IN THE DECISION, THE FOLLOWING ADDITIONAL CONCLUSIONS WERE SET FORTH:
1. THAT AN OTHERWISE INELIGIBLE CONTRACTOR CANNOT ESCAPE THE PROHIBITION OF THE 1893 ACT BY AGREEING TO REFRAIN, DURING THE PERIOD OF CONTRACT, FROM BIDDING UPON OR ENGAGING IN ANY OPERATION WHICH WOULD MAKE HIM INELIGIBLE TO PERFORM UNDER THE PROVISIONS OF THE ACT.
2. THAT A CORPORATION NOT LICENSED AS A DETECTIVE AGENCY NOR EMPOWERED BY ITS CHARTER TO DO INVESTIGATIVE WORK WOULD BE ELIGIBLE UNDER THE ACT TO RECEIVE A FEDERAL AGENCY CONTRACT FOR GUARD SERVICES NOTWITHSTANDING IT IS A WHOLLY-OWNED SUBSIDIARY OF AN INELIGIBLE DETECTIVE AGENCY WITH MUTUAL DIRECTORS AND OFFICERS, AND
3. THAT A CORPORATION EXPRESSLY PROHIBITED UNDER ITS CHARTER FROM ENGAGING IN DETECTIVE SERVICES IS NOT INELIGIBLE UNDER THE ACT BECAUSE THE STOCK OF SUCH CORPORATION IS OWNED BY THE SAME INDIVIDUALS WHO OWN STOCK IN A DETECTIVE AGENCY.
YOU STATE THAT FROM THE DECISION OF JUNE 29, IT APPEARS THAT THE ACT OF 1893 IS NOT APPLICABLE TO YOUR CLIENT, PINKERTON ELECTRIC-SECURITY CORPORATION, A WHOLLY-OWNED SUBSIDIARY OF PINKERTON'S NATIONAL DETECTIVE AGENCY, INC. FROM YOUR LETTER AND ACCOMPANYING MEMORANDUM, IT APPEARS THAT PESC, WHILE A LICENSED DETECTIVE AGENCY UNDER A DELAWARE STATUTE SIMILAR TO THE ONE CONSIDERED IN THE CITED DECISION, IS SPECIFICALLY PRECLUDED BY ITS CHARTER FROM ACTING OR SERVING AS A PRIVATE DETECTIVE OR INVESTIGATOR AND THAT A MAJORITY OF THE BOARD OF DIRECTORS OF PESC IS COMPOSED OF OFFICERS OF A PARENT COMPANY CLEARLY WITHIN THE PURVIEW OF THE ACT.
YOU ARE, OF COURSE, AWARE THAT WE ARE NOT REQUIRED NOR AUTHORIZED TO RESPOND TO YOUR INQUIRY WITH A DECISION WHICH WOULD BE BINDING. HOWEVER, APPRECIATING THE POSITION OF YOUR CLIENT, WE WOULD SAY THAT WHILE A NUMBER OF THE CONCLUSIONS EXPRESSED IN THE DECISION OF JUNE 29, 1962, ARE IN THE NATURE OF DICTUM, THE MATTERS INVOLVED WERE THOROUGHLY CONSIDERED AND WE ARE NOT PRESENTLY AWARE OF ANY REASON FOR NOT FOLLOWING THE RATIONALE OF THOSE CONCLUSIONS IN THE FUTURE.