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Chapter 19 – The Lion and the Unicorn
Last week, we looked at Pinkerton’s National Detective Agency, their role in the Homestead Strike, and the resulting “Anti-Pinkerton Act.” This time, we look at how the Pinkerton Act disrupted
Oh, and we also have news about a PSC helicopter being shot down.
First, though, let’s finish the review of Mr. Scott’s Pinkerton protests.
The Appropriations Shuffle—Again?
Just like changes (old and new) in posse comitatus, UCMJ authority, and PSC training and engagement authority, the Pinkerton Act originally came to us as a provision in an appropriations bill. Specifically a “sundry civil appropriation bill for 1892.”
That 1892 provision, however, was only a temporary one. So Congress made it permanent—by jamming it into the sundry civil appropriations bill for 1894.
For those who don’t get the significance of this practice, it is that—as the Senate expressly acknowledged with regard to the Pinkerton Act—the legislation is enacted with little if any discussion, objection or debate.
Nonetheless, the Act became law of the land. As we saw last time, the Act is set out in the federal code as follows: “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.”
We Means What We Says
What is interesting, though, is what the Act does not say. For example, it could have read ‘no hiring of armed guards,’ ‘no hiring of military-like forces,’ or even “no mercenaries.” Guess they weren’t thinking about our convenience in blogging about PSC issues. Bummer.
Instead, the Act set out “a broad proscription against employment of a class. Rather than specifically defining the class, it used one example by which others falling in the class could be identified.”
Man, would that approach lead to trouble.
Congress promptly forgot about the statute, and it was ignored by the courts for over eighty years. The Comptroller General and the Comptroller of the Treasury, however, got busy, issuing “numerous decisions” interpreting the Pinkerton Act.
Their take was that the Act precluded government use of detective agencies, regardless of the services performed.
In other words, the twin titans of comptrolling looked at the (then) present-day Pinkertons structure and services, not the 1892 Pinkertons. They repeatedly ruled that the Act prohibited hiring detective companies for any reason, but use of a protective services (i.e., rent-a-cop) company that did not provide detective services was A-OK.
Just Repeal That Sucka
By 1963, someone in D.C. had noticed the inanity of such an interpretation, and the Senate gave us a bill called S.1543, which would have repealed the Pinkerton Act entirely.
Since the bill never made it into law, it doesn’t add much to our discussion. But the accompanying Senate Report on the Pinkerton Act itself is illuminating.
Specifically, it asserts the Act has two effects. First, it discriminates against organizations that provide both types (detective and guard) of services, in favor of those providing only guard services. Second, the Act “is detrimental to the interest of the Government since it serves to eliminate from competitive bidding” companies that would otherwise bid on guard services work.
More importantly, the Report is the Senate itself telling us its understanding of the purpose of the Act. Namely reducing the use of “armed guards who were allegedly used as strikebreakers and labor spies, giving rise to acts of violence.”
That First Big Case
Every statute needs its first big legal test, and why not have it be kicked off by a colorful character?
Guy by the name of David P. Weinberger graduates
After Mr. Weinberger tried to get into the Civil Service, he noticed that, as part of its contract to do background checks on potential government employees, Equifax did some investigative work. So just a year or two out of law school, he takes on Equifax, claiming they were illegally providing detective services to the government. And so he should get 15 to 30 percent. Plus attorney fees.
The court looked at Equifax and asked whether it was a “similar organization” with regard to the 1892 Pinkertons. The interesting thing is that the court didn’t really focus on whether Equifax provided armed watchmen /guards like the old Pinks.
Instead, they cooked up the idea of a “quasi-military” test. The court said the question was whether a company “offered for hire mercenary, quasi-military forces as strikebreakers and armed guards.”
Whoa. Now we see why Mr. Scott could reasonably say the Pinkerton Act means no government-employed PSCs. Of course, the Weinberger case doesn’t solve everything:
- First, the clerk for that court apparently cherry-picked the term “quasi-military” out of the legislative history without reading the whole section. In context, the full statement (from the ranking member of the conference committee) was that a general “quasi-military” ban was too broad. Instead, a narrowly tailored rule was needed, and multiple exceptions were expressly envisioned. (See here, page 4).
- Second, we’re not the sharpest tools in the shed, but when it comes to
- Good or bad, this is pretty much judge-made law. (Ever notice how, for most people, whether that is fantastic or an abomination usually depends on the particular issue and the specific judge?) In the same vein is the idea that any court which doesn’t “work under” this court will find Weinberger interesting, but not dispositive.
A Litigation Avalanche
After Weinberger, the floodgates were opened for a wave of Pinkerton Act litiga … no, wait. Actually there was not another single stinkin’ Anti-Pinkerton suit until Mr. Scott came along.
There were a few cases that mentioned the Pinkerton Act, in passing, in completely unrelated contexts (e.g., Medicare kickbacks), but in terms of meaningful analysis of the Pinkerton Act, zip, zilch, nada.
Mr. Scott Doth Protest
Mr. Scott launched his Pinkerton protest career in early 2006, while still a government procurement analyst. The GAO quickly dispatched his protest because federal employees can’t bid on federal contracts. Fortunately for us all, however, the Army provides helpful tips on how to better bog down its contracts in disputes, and it gave Mr. Scott some pointers on how to maintain his next protest (see “Lesson Learned” on page 6).
Fresh out of his government contracting career, Brian Scott launched another round with the GAO. He “posed as a contractor” and filed bids on two
This time, the GAO actually got to the merits of his protest. Fortunately for our protagonist, the GAO had adopted the ‘mercenary, quasi-military forces’ language for Pinkerton issues shortly after Weinberger. Unfortunately, the same policy letter “clearly identified services that are not prohibited by the Act, namely ‘guard or protective services … even if the individual guards are armed.’”
So the GAO determined that the Act precludes hiring companies that offer “quasi-military forces as strikebreakers” but does not prohibit hiring armed security guards. (A fact no doubt appreciated by the 10,000 contract guards working for the Federal Protective Service.)
Third Time … Still No Charm
In January, 2007, the U.S. Army issued a contract solicitation for operation of its Reconstruction Operations Centers in
This time, Mr. Scott didn’t even bother with a bid, he just submitted his usual Pinkerton protest. And the GAO responded with its usual rejection.
So Scott trotted off to the Court of Federal Claims and filed a lawsuit to get an injunction against award of the contract. And, since the court would require that any challenger be a bona fide contractor, suddenly Mr. I-have-no-intention-of-carrying-out-a-contract is certifying to the court that he’s “a contractor capable of carrying out a contract provision that calls for running an operations center.” Curious, that.
While it sorted the matter out, the Court issued a temporary stay on award of the contract, which led to the brief anti-Iraq euphoria we noted last time.
If we haven’t already put you to sleep, you can read through the whole opinion (linked above) and it should do the job.
The bottom line is that the court ruled
Thus, the suit was dismissed on August 23, 2007, and so far there has been no appeal.
Where From Here?
Whether you view the issue of Pinkerton Act applicability to federal PSC contracting to be closed or not probably has a pretty close correlation with whether or not you stridently oppose the very existence of PSCs.
Those who support the use of armed contractors are likely to believe that the Pinkerton Act is all about armed guards as strikebreakers during labor disputes. Most of those who consider PSCs to be bloodthirsty mercenaries are probably going to argue that the Pinkerton Act says no mercenary quasi-military forces can legally be hired.
Much like the Army “Lessons Learned” on how to better file protests, the Court to some extent provides a roadmap for the next suit. The prospective plaintiff will need to have the resources to actually perform the contract in question, and they will have to actually submit a bid (and lose).
Although PSC haters aren’t likely to acknowledge it, a staggering amount of expertise and organizational muscle is required to be anything but a sham bidder on mega-million dollar security contracts. So, unless a PSC sues to claim that the Pinkerton Act prevents award of the contract it lost, we may never see a qualified-bidder plaintiff.
And whoever it is, Don Quixo, er, Brian Scott will definitely have handed off his lance to someone else, because he “refuse[s] to bid on contracts for mercenary services.”
Of course, even if our new plaintiff wins, it won’t mean the end of PSCs. The structure of the Pinkerton Act means that it only applies to prime contractors, not subcontractors.
Get to the Helicopter Part Already
For as much anticipation, uproar, and hyperbole as there has been over the long-awaited September report to Congress about
We listened to the testimony. Here was one among many interesting exchanges:
AMB. CROCKER: The reality is, for example, on the security function, much of our security—most of our security is provided by contractors. It is overseen by diplomatic security officers—Foreign Service officers, but there is simply no way at all that the State Department's Bureau of Diplomatic Security could ever have enough full-time personnel to staff the security function in Iraq. There is no alternative except through contracts.
And I would have to say that the capability and courage of the individuals who provide security under contract is worthy of respect of all Americans. One of Blackwater’s helicopters went down yesterday—a hostile fire incident. Fortunately no one was killed in that accident, but over 30 of our contract security Americans have been killed keeping the rest of us safe. So it is something that we've got to do because we don't have enough people in the State Department to do this, but I think it's being done very well.
SEN. MCCASKILL: Well, I think privatization is the future. I just think we need to work harder at getting it right. And I don't question that they're very brave and courageous people. I think most of them are former
The real reason we bring this up, though, is the latter part of Senator McCaskill’s statement. We may just refer to it again, because The Rabbit agrees with it absolutely.
Just not in the way she meant it.
But that will have to wait until after we’ve done a series on government contracting. (Yawn.)
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Next time: New Blackwater video.
What people are saying about The Rabbit:
“The White Rabbit? Oh, I just wuv bunnies!! ELLIOT!! Get me a rabbit. NOW.” – Paris Hilton, if only we could have reached her, would have said. Damn that restraining order.
2 comments:
Any thoughts on the license revocation?
Remember the story earlier this summer about how many PSCs don't have licenses? This was an IED and small arms ambush with no State people hurt--if State didn't run them off earlier, why would they now?
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