GAO: Security contracts don’t violate ban on quasi-military forces

The Government Accountability Office ruled last week that two Army solicitations for cargo transportation and security services in Iraq do not run afoul of governmentwide restrictions on the use of quasi-military armed forces for hire.

The agency denied bid protests filed in response to two Army requests for proposals issued in May and June. One required the contractor to provide security escorts for cargo convoys, with specifications for the number of armed escort vehicles to be provided per truck escorted.

The other asked the contractor to propose labor, weapons and equipment for internal security operations at the Victory Base Complex in Iraq, including providing armed escorts for Iraqi laborers. It also specified that the contractor would "repel and control" destructive activity targeting the base.

The protests were brought by Brian Scott, an individual who said he could have provided the specified services if the contested portions of the RFPs were not included. Scott argued that some aspects of the proposal requests would require contractor personnel to engage in combat operations, and would thus violate the 1892 Anti-Pinkerton Act and Defense Department regulations.

The Anti-Pinkerton Act was passed against a backdrop of labor protests, when various entities were hiring companies such as the Pinkerton Detective Agency to disrupt or harass labor organizers. It prevents the federal government from using those tactics by legislating that "an individual employed by the Pinkerton Detective Agency, or similar organization, may not be employed by the government of the United States."

GAO wrote that in 1978, the 5th U.S. Circuit Court of Appeals interpreted the statute to mean that an organization was similar to the Pinkerton Detective Agency if it offered for hire the services of "mercenary, quasi-military forces as strikebreakers and armed guards."

The court declined to define the term "quasi-military forces," GAO noted in a 1978 memo to federal agency heads on the decision. But, GAO wrote, "it seems clear that a company which provides guard or protective services does not thereby become a 'quasi-military armed force.'"

In the recent cases, the protester proposed to define that term as "private sector contractors that are hired by the U.S. government to engage in or be prepared to engage in offensive or defensive combat." But GAO rejected that proposal as unrelated to any statutory or regulatory definition.

Noting that provisions in the statements of work would require the contractor to summon support in case of any attack, and that the base security contract explicitly bars the contractor from involvement in offensive operations, GAO concluded that the contracts did not require offering "quasi-military forces as strikebreakers" and thus would not violate the act.

With respect to Defense Department regulations, GAO rejected the protester's argument. It cited a passage in Instruction 3020, on contractor personnel accompanying the U.S. armed forces, which specifies that contractors operating near major combat operations can be authorized to guard military supply routes, facilities, personnel or property.