TITLE: B-298370; B-298490, Brian X. Scott, August 18, 2006
BNUMBER: B-298370; B-298490
DATE: August 18, 2006
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B-298370; B-298490, Brian X. Scott, August 18, 2006

   Decision

   Matter of: Brian X. Scott

   File: B-298370; B-298490

   Date: August 18, 2006

   Brian X. Scott for the protester.

   Maj. Peter G. Hartman, Department of the Army, for the agency.

   Jonathan L. Kang, Esq., and Michael R. Golden, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Solicitations for cargo transportation and security services and for base
   security services in Iraq will not result in an award that violates the
   Anti-Pinkerton Act or Department of Defense policies regarding contractor
   personnel because the services required under the resultant contract are
   guard and protective services, and not "quasi-military armed forces"
   activities.

   DECISION

   Brian X. Scott protests the terms of request for proposals (RFP) Nos.
   W91GY0-06-R-0015 (RFP-0015) and W91GER-06-R-0013 (RFP-0013), issued by the
   Department of the Army, Joint Contracting Command-Iraq/Afghanistan, for
   cargo transportation and security services in and around Iraq and for base
   security services in Iraq.[1] The protester contends that each
   solicitation's statement of work (SOW) requires performance of security
   services that constitute the provision of "quasi-military armed forces for
   hire," which would result in the award of a contract that violates the
   Anti-Pinkerton Act, 5 U.S.C. sect. 3108 (2000), and Department of Defense
   (DoD) instructions and regulations.

   We deny the protests.

   BACKGROUND

   RFP-0015 was issued on May 14, 2006, and anticipates multiple awards of
   indefinite-delivery/indefinite-quantity (ID/IQ) contracts with fixed-price
   task orders for cargo transportation services in Iraq, Kuwait, and Jordan.
   The base ordering period is 1 year, with one 6-month option period.
   Offerors are required to propose vehicles, personnel, and other equipment
   necessary for contract performance. The SOW requires contractors to
   provide security escorts for the cargo convoys, including a "minimum of
   three (3) vehicle escorts with radios and weapons for every
   10 transportation trucks and 5 ton trucks (includes 2 1/2 ton trucks)
   [and] [f]or all sensitive cargo the contractor will include a minimum of
   two (2) Ex-Pat security escort vehicles." RFP-0015, SOW, at 2.

   RFP-0013 was issued on June 19, 2006, and anticipates multiple awards of
   ID/IQ contracts with fixed-price task orders for internal security
   operations services at the Victory Base Complex (VBC) in Iraq. The base
   ordering period is from the date of contract award until July 2008, with
   one 6-month option period. Offerors are required to propose "all labor,
   weapons, equipment, and other essential requirements to supplement and
   augment security operations" at VCB. RFP-0013, SOW, para. 1. The RFP
   describes the security requirements as follows:

     The objective is to maintain a high level of security at select entry
     control points and perimeter security operations. The tasks will be
     accomplished by providing internal operations at entry control points,
     manning perimeter towers, securing selected facilities, providing armed
     escorts for local national laborers, and maintaining a liaison cell at
     Area Defense Operations Centers (ADOC) and the Base Defense Operations
     Center (BDOC).

   Id.

   Contractors must also "provide management/administrative oversight of
   designated (in this SOW) security functions and personnel," and "shall
   repel and control any unlawful or destructive activity directed towards
   the VCB." Id. paras. 1.1.1, 1.1.2.

   The agency states that contracts that require provision of armed
   personnel, such as those anticipated by the two solicitations, are subject
   to DoD Instruction (DoDI) No. 3020.41, "Contractor Personnel Authorized to
   Accompany the U.S. Armed Forces." The DoDI "establishes and implements
   policy and guidance, assigns responsibilities, and serves as a
   comprehensive source of DoD policy and procedures concerning DoD
   contractor personnel authorized to accompany the U.S. Armed Forces." DoDI
   No. 3020.41, at 1. The DoDI categorizes contractor personnel who are
   authorized to accompany U.S. Armed Forces as "contingency contractor
   personnel." Id. These personnel are considered civilians under the Geneva
   Convention. Id. paras. 6.1.1, E.2.1.3.

   DISCUSSION

   The protester contends that the security requirements of both
   solicitations violate the Anti-Pinkerton Act and DoDI No. 3020.41 to the
   extent that each will require contingency contractor personnel to engage
   in combat operations.[2] The protester argues that if the services that he
   believes are prohibited under the Act and the DoDI were removed from the
   solicitations, he could provide the remaining services. That is, if the
   security requirements for RFP-0015 were removed, the protester contends
   that he could provide the cargo transportation services, and if RFP-0013
   were amended to remove what he characterizes as combat requirements, he
   could provide the remaining guard services.

   (1) ANTI-PINKERTON ACT

   The protester first contends that the security requirements of each of the
   RFPs would result in contracts that violate the Anti-Pinkerton Act. The
   Anti-Pinkerton Act states: "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." 5 U.S.C. sect. 3108. The Anti-Pinkerton Act was enacted by
   Congress in 1892 in response to reports that businesses had employed
   various groups and individuals, including the Pinkerton Detective Agency,
   to disrupt or harass labor organizers during disputes in the 1880s and
   early 1890s. See Letter to John C. Stennis, United States Senate,
   B-139965, Mar. 6, 1980. The Act, however, was not interpreted by a court
   until more than 80 years later, in United States ex rel. Weinberger v.
   Equifax, 557 F.2d 456 (5th Cir. 1977), cert. denied, 434 U.S. 1035
   (1978).[3] In Equifax, the court rejected a challenge to the award by the
   government of a contract to a credit reporting company that provided
   information regarding prospective government employees on grounds that the
   firm utilized private detectives, in violation of the Act. The court
   interpreted the history and purpose of the Act as follows:

     The purpose of the Act and the legislative history reveal that an
     organization was "similar" to the Pinkerton Detective Agency only if it
     offered for hire mercenary, quasi-military forces as strikebreakers and
     armed guards. It had the secondary effect of deterring any other
     organization from providing such services lest it be branded a "similar
     organization." The legislative history supports this view and no other.

   Equifax, 557 F.2d at 462.

   Following the Fifth Circuit's decision in Equifax, our Office advised that
   we would "follow [the] court's interpretation" of the Anti-Pinkerton Act.
   Letter To The Heads Of Federal Departments And Agencies, B-139965, June 7,
   1978, 57 Comp. Gen. 524. Our Office agreed with the court's reasoning, but
   observed that the court, in ruling that the Act only barred contracts with
   offerors who provide a "quasi-military armed force," did not define that
   operative term. [4] Id. We similarly declined to provide a specific
   definition for that term, and stated as follows:

     We have carefully considered the court's decision and find ourselves in
     essential agreement with it. We note that the court did not define
     "quasi-military armed force," nor do we see the need to attempt it here.
     Nevertheless, 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, and even though the
     company may also be engaged in the business of providing general
     investigative or "detective" services. 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 of this office inconsistent with
     the Equifax interpretation will no longer be followed.

   Id.[5]

   The parties here agree that the key definition for purposes of the protest
   is whether the solicitations require provision of "quasi-military armed
   forces." Although neither the court in Equifax nor our Office has provided
   a definition of "quasi-military armed forces," these precedents clearly
   identified services that are not prohibited by the Act, namely "guard or
   protective services . . . even if the individual guards are armed." Id.

   The protester contends that the solicitations' security requirements
   constitute "offensive or defensive combat," a term he argues encompasses a
   broader range of activities than that permitted for performance by
   non-military contingency contractor personnel. The protester argues that
   "[t]he purpose of guard or protective services is to provide active
   surveillance, documentation, reporting and physical presence in order to
   deter harm to persons or property and safeguard military assets," whereas
   "quasi-military armed force refers to private security contractors that
   are hired by the US government to engage in or be prepared to engage in
   offensive or defensive combat." Protest of RFP-0013 at 3.

   The agency responds that the protester's definitions of offensive or
   defensive combat and guard or protective services are not based on
   statutory or regulatory definitions, and thus are not relevant for
   establishing whether the activities contemplated by the solicitation are
   activities that cannot be performed by a government contractor under the
   Act. We agree with the agency.

   The provisions of the SOWs describe guard or protective services that are
   often performed in the private sector, such as bank guards or armed
   escorts for valuable cargo, as opposed to combat operations reserved
   solely for performance by the armed forces. For example, RFP-0013 states
   that although the contractor must provide security escorts for cargo
   convoys, the contractor must notify the agency and summon support in the
   event of an attack. Specifically, the SOW for RFP-0013 states as follows:

     In case of attack, the contractor is authorized to defend themselves
     with force according to the rules established by the Use of Force and
     Escalation of Force policies in effect at that time. . . . Additionally,
     the convoy will carry a `panic' button on every mission and if attacked
     this button must be pushed to notify the [Logistics Management Control
     Center] to send military support to assist, if available.

   RFP-0013 at C-1(c).

   RFP-0015 also states that "[u]nder no conditions are contract security
   forces involved in offensive operations," and that they must "request
   Coalition forces support for any threats to VCB facilities and personnel."
   Id. para. RFP-0015, SOW, paras. 1, 1.1.3.

   In sum, the protester provides no basis for concluding that the
   solicitations' requirements include activities that Congress sought to bar
   government contractors from performing under the Anti-Pinkerton Act. See
   Equifax, 557 F.2d at 462. The plain meaning and legislative history of the
   Act, as interpreted by the courts and our Office, point to a strict
   reading of the statutory language to prohibit contracts with the Pinkerton
   Detective Agency and other entities offering quasi-military forces as
   strikebreakers. We therefore do not believe that the Act prohibits
   contracts with security guards, even if the guards are armed. Accordingly,
   we find no basis to conclude that either solicitation at issue here would
   result in a contract that would violate the Anti-Pinkerton Act.

   (2) DoDI No. 3020.41

   The protester next argues that DoDI No. 3020.41, which the agency states
   is the DoD policy that governs the types of services sought under this
   solicitation, prohibits the performance by contingency contractor
   personnel of the security services identified in the SOWs.[6] The
   protester contends that although the DoDI authorizes contingency
   contractor personnel to "be armed for individual self-defense," it also
   states that such contractor personnel "may not participate in mutual
   defense." DoDI No. 3020.41 para. 6.3.4.1. The protester argues that this
   language prohibits contractor personnel from engaging in activities that
   will require the use of firearms or the provision of defense for any
   purpose other than personal self-defense.[7]

   In the context of other provisions of the DoDI, it is clear that the
   language cited by the protester is not intended to prohibit the services
   sought under the solicitations. For example, the DoDI provides explicit
   instruction for authorizing the "Use of Contingency Contractor Personnel
   for Security Services," stating as follows:

     If consistent with applicable U.S., [host nation], and international
     law, and relevant SOFAs [status of forces agreements] or other
     international agreements and this Instruction, a defense contractor may
     be authorized to provide security services for other than uniquely
     military functions. Contracts for security services shall contain
     provisions informing the contractor of any known or potentially
     hazardous situations. Whether a particular use of contract security
     personnel to protect military assets is permissible is dependent on the
     facts and requires legal analysis. Variables such as the nature of the
     operation, the type of conflict, any applicable status agreement related
     to the presence of U.S. forces, and the nature of the activity being
     protected require case-by-case determinations. The use of force by
     contingency contractor personnel is often strictly limited by laws and
     not protected by SOFA provisions. Contingency contractor personnel
     providing security services and who exceed the limits imposed by
     applicable law may be subject to prosecution.

   Id. para. 6.3.5.

    

   In addition, the provisions regarding arming contingency contractor
   personnel detail an authorization procedure that clearly anticipates
   performance of security or guard services similar to those sought under
   the solicitations. For example, the DoDI states as follows:

     Requests for permission to arm contingency contractor personnel to
     provide security services shall be reviewed on a case-by-case basis by
     the appropriate Staff Judge Advocate to the geographic Combatant
     Commander to ensure there is a legal basis for approval. The request
     will then be approved or denied by the geographic Combatant Commander or
     a specifically identified designee, no lower than the general or flag
     officer level.

     Contracts shall be used cautiously in contingency operations where major
     combat operations are ongoing or imminent. In these situations, contract
     security services will not be authorized to guard U.S. or coalition
     military supply routes, military facilities, military personnel, or
     military property except as specifically authorized by the geographic
     Combatant Commander (non-delegable).

   Id. paras. 6.3.5.1, 6.3.5.2.

   The foregoing provisions clearly anticipate, as relevant to the
   solicitations, situations in which contractor personnel may be authorized
   to provide security services to guard "coalition military supply routes,
   military facilities, military personnel, or military property."[8]

   Additionally, an interim amendment to Defense Federal Acquisition
   Regulation Supplement (DFARS) parts 212, 225, and 252, published in the
   Federal Register on June 16, 2006, states that although contingency
   contractor personnel may be authorized to use force as part of security
   responsibilities, they are prohibited from participating in direct combat
   activities. The amendment, which is intended to conform the DFARS to DoDI
   No. 3020.41, states as follows:

     Private security contractor personnel are also authorized to use deadly
     force when necessary to execute their security mission to protect
     assets/persons, consistent with the mission statement contained in their
     contract. It is the responsibility of the combatant commander to ensure
     that the private security contract mission statements do not authorize
     the performance of any inherently Governmental military functions, such
     as preemptive attacks, or any other types of attacks. Otherwise,
     civilians who accompany the U.S. Armed Forces lose their law of war
     protections from direct attack if and for such time as they take a
     direct part in hostilities.

   71 Fed. Reg. 34,826, 34,826-27 (June 16, 2006).

   This interim amendment to the DFARS provides additional clarification that
   the services sought under the solicitations are limited to guard and
   protective services in that contractor personnel are not permitted to
   engage in "preemptive attacks, or any other types of attacks." In sum, we
   believe that nothing in DoDI No. 3020.41 or the DFARS prohibits
   contingency contractor personnel from performing the services sought under
   the solicitations; rather, the services sought under the solicitations
   appear to comport with the DoD policies and regulations which state that
   security contractors are not allowed to conduct direct combat activities
   or offensive operations.[9]

   The protests are denied.

   Gary L. Kepplinger

   General Counsel

   ------------------------

   [1] The protester filed two separate protests, which we address here in a
   single decision based on the commonality of issues; protest B-298370
   challenges the terms of RFP-0015, and protest B-298420 challenges the
   terms of RFP-0013.

   [2] The protester also argues that the requirement to provide truck
   drivers under RFP-0015 violates the Anti-Pinkerton Act and DoD policies,
   and that RFP-0013 improperly bundles security services with non-security
   services. These arguments, which constitute alleged solicitation
   improprieties, are untimely, because each was raised for the first time in
   the protester's comments on the agency reports, after the time set for
   receipt of proposals. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1)
   (2006). In any event, we have considered each argument and conclude that
   neither has merit.

   [3] The court in Equifax provided this further background:

   The Anti-Pinkerton Act is an expression of legislative frustration. In the
   1890's, the nascent labor movement was increasingly involved in sometimes
   violent confrontations with factory owners over wages and working
   conditions. When the owners' resort to legal remedies proved fruitless or
   when the local police force was ineffectual in handling strikes, owners
   frequently engaged the Pinkerton Agency to supply large bodies of armed
   men to discourage strikers from interfering with the orderly operation of
   business. One particularly violent and bloody confrontation occurred in
   Homestead, Pennsylvania, when the Amalgamated Association of Iron and
   Steel Workers struck a Carnegie Steel Mill. Managers of the mill employed
   an armed force of 300 Pinkertons to protect the mill. As the Pinkertons
   approached the mill, floating on barges down the Monongahela River, a
   firefight ensued between them and strikers on the banks. Numerous injuries
   and some deaths resulted from this struggle. The Homestead incident
   prompted congressional investigations on ways to prevent employers'
   reliance on Pinkertons to solve labor disputes. See S. Rep. No. 1280, 52d
   Cong., 2d Sess. (1893); H. Rep. No. 2447, 52d Cong., 2d Sess. (1893).

   Equifax, 557 F.2d at 461.

   [4] Our Office has noted that "it has become apparent in recent years that
   the act has outlived the circumstances which produced it, and whether the
   act continues to serve a useful purpose has been frequently questioned."
   Letter To The Heads Of Federal Departments And Agencies, supra. Similarly,
   we have stated that "[i]t is our belief that a review of the act's
   legislative history . . . leaves no doubt but that whatever may have been
   the overriding policy considerations leading to enactment of this
   legislation almost 90 years ago, they do not have much, if any, bearing on
   the current practices of the government in contracting for guard
   services." Letter to John C. Stennis, supra.

   [5] Our Office's discussion in Letter To The Heads Of Federal Departments
   And Agencies is referenced in Federal Acquisition Regulation (FAR) sect.
   37.109, which applies the provisions of the Anti-Pinkerton Act: "Contracts
   with `Pinkerton Detective Agencies or similar organizations' are
   prohibited by 5 U.S.C. sect. 3108. This prohibition applies only to
   contracts with organizations that offer quasi-military armed forces for
   hire, or with their employees, regardless of the contract's character. An
   organization providing guard or protective services does not thereby
   become a `quasi-military armed force,' even though the guards are armed or
   the organization provides general investigative or detective services.
   (See 57 Comp. Gen. 524)."

   [6] Because our Office's jurisdiction is limited to consideration of
   whether a procurement statute or regulation has been violated, 31 U.S.C.
   sections 3551-3552 (2000), violation of an internal agency instruction or
   directive would generally not constitute a valid basis of protest. See RMS
   Indus., B-246082 et al., Jan. 22, 1992, 92-1 CPD para. 104 at 2. As
   explained below, however, DoD has issued an interim amendment to conform
   the Defense Federal Acquisition Regulation Supplement to the provisions of
   DoDI challenged here by the protester; thus, our review of the DoDI is
   appropriate to the extent that a violation of the DoDI could potentially
   result in a violation of similar provisions in the amended regulations.

   [7] The protester also contends that contingency contractor personnel are
   prohibited from performing "uniquely governmental" work, such as combat
   operations. See Protest of RFP-0013 at 3. The protester's argument,
   however, assumes that the services sought under the two solicitations are
   combat operations, and thus run afoul of the prohibition on such
   operations under the DoDI. As discussed herein, there is no basis to
   conclude that the services sought under the protested solicitations
   constitute prohibited combat operations.

   [8] The agency notes that, at the time the agency submitted its report for
   the protest of RFP-0013, the authorization for use of force had not been
   issued for that solicitation. We nonetheless review the protester's
   challenges here because offerors are required to submit proposals based on
   the assumption that authorization may occur.

   [9] The protester makes several additional allegations, including
   arguments that the security services sought results in a violation of a
   "taboo" against hiring mercenaries under U.S. military tradition, and that
   the services also infringe on Iraqi sovereignty. To the extent that they
   are within our Office's bid protest jurisdiction (that is, they constitute
   claims that a federal agency has violated federal procurement statutes or
   regulations), we have reviewed the protester's additional arguments and
   find no basis for sustaining the protests.