Acting Homeland Security Secretary Chad Wolf on Feb. 20 waived federal contracting rules to expedite construction of the U.S-Mexico border wall in California, Arizona, New Mexico and Texas, citing legal authority under several U.S. laws, some dating back to the 1990s, to deal with what he claimed is "an acute and immediate need to construct physical barriers and roads ... to prevent unlawful entries."
But the move, set to affect about 177 miles of border wall, raised concerns about how contractor work and accountability will be kept in check.
“Agencies can buy services quickly but there has to be proper oversight to prevent profiteering and to make sure taxpayers are not robbed,” says Scott Amey, general counsel for the Project on Government Oversight, a nonpartisan independent watchdog that investigates waste and corruption.
Projects will be awarded to contractors selected last year by the U.S. Army Corps of Engineers to compete for projects, but Amey worries that there will be no incentive for them to provide the best cost value.
Wolf said in a Federal Register notice that he requested the U.S. Defense Dept. to assist in constructing border wall fencing, roads and lighting in those states, and also noted that he has the sole discretion to waive all legal requirements to expedite construction of the barriers and supporting infrastructure.
The rules waived are those that require competition and use of the lowest-priced, technically-acceptable provider; prohibit cost-plus-a-percentage-of-cost contracts; allow losing bidders to protest award decisions; and mandate the use of sealed bids, payment of prevailing wages and contractor posting of payment and performance bonds, among others.
Contractors that the Corps chose last May include BFBC, Bozeman, Mont.; Texas Sterling Construction, Houston; Bristol Construction Services, Anchorage Alaska; Burgos Group, Albuquerque; and a Gibraltar-Cadell joint venture, Montgomery, Ala.;
Also selected were Fisher Sand & Gravel, Dickinson, N. D.; Southwest Valley Constructors Co., an Albuquerque unit of Kiewit; Randy Kinder Excavating, Dexter, Mo.; and Martin Brothers Construction, Sacramento.
The list also includes SLS, Galveston, Texas; a joint venture of Posillico Civil and Coastal Environmental Group, Farmingdale, N.Y., and CJW, Santa Ana, Calif..
Border 'Emergency' Extended
The waiver, effective with its Feb. 20 publication in the Federal Register, follows by days President Donald Trump's announced extension of a "national emergency" along the border that enables diversion of military funding for wall construction, and the U.S. Defense Dept. announcement if would shift about $3.8 billion in fiscal 2020 funds from allocated military weapon purchases to wallbuilding projects.
Trump said in his State of the Union speech earlier this month that up to 500 miles of barrier would be finished "early next year."
"We don't have much information readily available regarding the waiver since this decision is very recent and the specifics are still being worked through," Corps spokesperson Raini W. Brunson told ENR is an email. "Determinations regarding acquisition strategy are fact specific and dependent on the requirements assigned to [the Corps] for execution. DHS's waiver of certain procurement laws will provide increased flexibility to streamline acquisitions where it is appropriate."
In a statement, Rep. Bennie Thompson, (D-Miss)., chairman of the House Homeland Security Committee, criticized the procurement waiver, noting that "his cronies are likely to be the beneficiaries, while we are left overpaying for border wall that doesn’t work or, as we saw recently, literally falls over.”
Thompson is referring to a 30-m section of steel barrier under construction in Calexico, Calif. that toppled Jan. 30 from high winds.
The DOD Inspector General is currently probing the Corps award of a border wall contract award last year worth up to $400 million to Fisher Sand & Gravel that followed the appearance of the firm's CEO on Fox News touting its capabilities.
The firm also had used the now-waived bid protest mechanism after it was unsuccessful in bidding earlier border wall procurements.