North Dakota contractor Fisher Sand and Gravel’s efforts to build U.S.-Mexico border walls are generating new work, but also lots of new controversy and pushback.
The U.S. Defense Dept Inspector General has agreed to probe the firm's win of its first big federal border wall contract, for $400-million awarded Dec. 2 by the U.S. Army Corps of Engineers in Arizona.
The investigation was requested Dec. 4 by the chairman of the U.S. House of Representatives Committee on Homeland Security, linking the award o numerous pitches made to President Donald Trump on Fox News cable channels by firm President Tommy Fisher and questioning the firm's capabilities.
In a letter to the committee, the IG said it is "assessing the methodology of that audit and will formally announce the audit soon."
The company has not responded to ENR, but Tommy Fisher said on Dec. 12 that there would be “nothing to find” in an audit, and that the firm was told it was "the lowest price and the best value," according to an Associated Press report.
Meanwhile, federal and state authorities issued restraining orders to halt Fisher’s work on a privately funded wall section on private land along the Rio Grande in Texas, which legal documents claim is unauthorized and unpermitted.
Committee chairman Rep. Bernie Thompson (D-Miss.) has asked the U.S. Defense Dept. Inspector General’s office to review the Corps award to Fisher to design and build a border structure in the Cabeza Prieta National Wildlife Refuge in Yuma County, Ariz.
A DOD announcement said the firm will receive $270 million to build 31 miles of wall by the target date of Dec. 30, 2020, with the rest of the contract funds awarded if options are exercised.
Try, Try Again
The federal wall construction contract win is the first for Fisher, despite numerous previous attempts—including its submission of a border wall prototype design in 2017 and successful bid protests and a court challenge earlier this year of other wall contract awards from which it had been barred from bidding.
Thompson said Fisher had not been awarded a construction contract prior to Dec. 2 because its proposals reportedly did not meet the operational requirements of U.S. Customs and Border Protection.
“Nevertheless, President Trump has personally repeatedly urged [the Corps] to award construction contracts” to the firm, he said, adding that U.S. Dept. of Homeland Security officials toured a private border barrier being built by Fisher in New Mexico a week before the Corps award. El Paso, Texas, Border Patrol sector chief Gloria Chavez told reporters that the private wall allowed more effective border enforcement in the area.
But Thompson said administration actions “raise concerns about the possibility of inappropriate influence on contracting decisions.”
He asked the IG to review Fisher’s bid to ensure it met solicitation standards and that the award was made in line with federal procurement law and regulations. Rep. Raúl M. Grijalva (D-Ariz.), whose district includes Cabeza Prieta, supports a review of the contract, saying “it’s being facilitated by shady handouts and blatant corruption.”
The Corps said in a statement that it follows federal regulations when it awards contracts.
“Companies are awarded contracts when they are determined to provide the best value to the government for the particular procurement action undertaken,” the agency said. “It is not uncommon for companies that submit offers on government contracts over a period of time to provide both unsuccessful and successful offers.”A Corps spokesman said it has not received any bid protests of the award.
Fisher did not respond to an ENR inquiry related to the award, but in a statement, Sen. Kevin Cramer (R-N.D.), who media reports say received a $10,000 campaign donation from Tommy Fisher, said in a statement, “I know they will do very well, performing high quality work at a good bargain.” He told the Washington Post that the firm submitted “an acceptable design with the low bid.”
Sen. John Hoeven, (R-N.D.), said on his Senate website that Fisher "has the right experience to build the wall on the southern border.”
Related to Fisher’s private wall building, a state court in Hidalgo County, Texas, on Dec. 3 issued the temporary halt to its project near Mission, Texas, following a complaint filed by the North American Butterfly Association/National Butterfly Center, which claims flood risks from the 3.5-mile structure to its immediately adjacent property.
The private wall is being developed by We Build the Wall, an activist group that raised $25 million through a GoFundMe page “to help President Trump fund the building of a border wall … without governmental approval or oversight,” says the complaint.
“Defendants have committed willfully, maliciously and with an actual and subjective intent to commit great harm to the plaintiff,” state Judge Keno Vasquez said when granting the restraining order.
“They can do what they want on private property, but what they can’t do is damage others.”
– Javier Pena, Butterfly Center attorney
The butterfly sanctuary’s complaint says defendants “claim that they can single-handedly build a border wall faster than the government and at a fraction of the price. They fail to mention … [it’s] because they do not get approvals for their plans, comply with any laws regarding construction nor do they conduct studies to ensure they will not cause more harm than good.”
The center says excavation and construction adjacent to its property will cause surface water diversion onto its property, changing erosion patterns that could destroy portions of land.
“They can do what they want on private property, but what they can’t do is damage others,” Javier Pena, Butterfly Center attorney, said.
The U.S. Justice Dept. also filed a complaint to stop unauthorized land clearing and construction by Fisher and We Build the Wall along the Rio Grande because the work lacked a permit required by international treaty from the International Boundary and Water Commission.
The federal temporary restraining order, issued Dec. 5, prohibits Fisher from “constructing a bollard structure, wall or similar structure, pouring concrete or any other permanent structure within the floodplain of the Rio Grande or shaving or cutting of the bank” until it complies with international treaty rules.
Earth Justice has asked the Corps to immediately investigate the project’s apparent lack of federal clean water act permits.
Fisher parent firm Fisher Industries did submit two documents to the commission related to the hydraulic effect of its proposed bollard structure, but Justice said in its complaint that they “contained very little substance and failed to show the extent of any hydraulic testing that may have been conducted by Fisher or We Build the Wall.”
The complaint also noted “scant detail about the planned work on the bank of the Rio Grande.”
Fisher began clear-cutting a 120-ft-wide swath along the Rio Grande and has completely cleared almost the entire riverbank without a permit, Justice said.
Fisher has not responded further to the complaints, nor did it return an ENR query about them.
News reports confirmed that construction has continued after both orders were issued.
“We have to supercharge it now.
– 'Foreman Mike', We Build the Wall, activist border wall advocacy group
“We are getting it built,” Brian Kolfage, founder of We Build the Wall, said on the day of the state-issued halt. He posted a video depicting a burly hard hat-wearing field manager named “Foreman Mike,” who explains how Fisher subcontractor Stinger Bridge & Iron would begin placing bollard panels within 48 hours and would complete the wall by Jan. 15. “We have to supercharge it now,” he said. His role with project participants could not be confirmed.
The Hidalgo County sheriff’s office said it was told by the builders that construction was not going to stop, according to U.K. publication The Guardian, which documented on Dec. 6 that work was continuing.
A spokesman for the sheriff’s office would not confirm the report to ENR.