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OIG: ICE Does Not Hold Detention Facility Contractors Accountable for Failing to Meet Standards

U.S. Immigration and Customs Enforcement (ICE) contracts with 106 detention facilities to detain removable aliens. In a review, the Office of Inspector General (OIG), Department of Homeland Security, sought to determine whether ICE contracting tools hold immigration detention facilities to applicable detention standards, and whether ICE imposes consequences when contracted immigration detention facilities do not maintain standards.

Although ICE employs a multi-layered system to manage and oversee detention contracts, OIG found that ICE does not adequately hold detention facility contractors accountable for not meeting performance standards and that ICE fails to consistently include its quality assurance surveillance plan (QASP) in facility contracts. The QASP provides tools for ensuring facilities meet performance standards. Only 28 out of 106 contracts OIG reviewed contained the QASP.

Because the QASP contains the only documented instructions for preparing a Contract Discrepancy Report and recommending financial penalties, there is confusion about whether ICE can issue Contract Discrepancy Reports and impose financial consequences absent a QASP. Between October 1, 2015, and June 30, 2018, ICE imposed financial penalties on only two occasions, despite documenting thousands of instances of the facilities’ failures to comply with detention standards.

The investigation found that instead of holding facilities accountable through financial penalties, ICE issued waivers to facilities with deficient conditions, seeking to exempt them from complying with certain standards. However, OIG says ICE has no formal policies and procedures to govern the waiver process, has allowed officials without clear authority to grant waivers, and does not ensure key stakeholders have access to approved waivers. Further, the organizational placement and overextension of contracting officer’s representatives impede monitoring of facility contracts. Finally, the report states ICE does not adequately share information about ICE detention contracts with key officials.

Recommendations and responses

As a result of the investigation, OIG recommends the Executive Associate Director for Management and Administration develop a process to decide when to seek to include a QASP in existing contracts and IGSAs that are not subject to a QASP and all future detention contracts and IGSAs.

ICE concurred with the recommendation and says it will ensure that all contract detention facilities, service processing centers, and dedicated inter-governmental service agreement (IGSA) facilities will have a QASP. ICE will develop a process to evaluate whether to include a QASP in the remaining contracts or IGSAs. For each contract and IGSA that remains without a QASP, ICE will document the reason why a QASP was not included. ICE will provide training and issue procurement guidance to summarize the actions available to contracting officers and CORs when contractors fail to meet applicable detention standards. ICE anticipates completing these actions by March 31, 2019.

Secondly, OIG recommends the same director also develops protocols to guide contracting officers’ representatives (CORs) and contracting officers in issuing Discrepancy Reports and imposing appropriate financial penalties against detention facility contractors in response to contract noncompliance. The protocols should include: clear guidance for determining when to issue a Discrepancy Report; instructions for issuing and approving a Discrepancy Report; clear guidance for determining when to impose a financial penalty and what type of financial penalty to impose; instructions for imposing a financial penalty; and a process to track all Discrepancy Reports issued and financial penalties imposed by ICE, to include data regarding the final resolution of the issue that led to the Discrepancy Report or financial penalty.

ICE concurred and has already begun providing additional training to all ERO CORs responsible for detention contracts, consisting of six training sessions that cover various aspects of COR duties. The training includes sessions that cover various methods to ensure contract compliance, monitoring and inspections, and dealing with unsatisfactory contractor performance. ICE will also provide more specific training on monitoring and inspections and dealing with unsatisfactory performance to Acquisitions Management contracting officers responsible for detention contracts.

In addition, OIG recommends that the Executive Associate Director for Enforcement and Removal Operations develop protocols to ensure that all existing and future waivers are: approved by ICE officials with appropriate authority; distributed to key stakeholders, such as contracting officers, COR, and detention service managers (DSMs), who need the waivers to perform core job functions; consistent with contract terms; and compliant with FAR requirements, as applicable.

ICE again concurred. It will document the waiver process in a policy or standard operating procedure (SOP) that is accessible to stakeholders, such as contracting officers, CORs, and on-site DSMs. The policy or SOP will clearly address when waivers need to be incorporated via contract modification. ICE will also review all current waivers to determine continuing applicability and, if appropriate, cancel any waivers that are no longer needed. ICE will also ensure that the annual or more frequent review of approved waivers by appropriate personnel is included in its documented waiver process. Finally, ICE will ensure stakeholders have access to approved waivers and expand waiver distribution to DSMs, contracting officers, CORs, and other staff who monitor detention conditions or contract performance, in addition to the Enforcement and Removal Operations (ERO) Field Office personnel and facility management staff who already receive the waivers. ICE anticipates completing these actions by April 30, 2019.

OIG recommends that the Executive Associate Director for Enforcement and Removal Operations should also develop a staffing plan for detention CORs, to permit adequate contract oversight and ensure an achievable workload. If CORs remain under Field Office supervision, OIG says safeguards should be put in place to prevent Field Office supervisors from interfering with CORs’ ability to fulfill their contract oversight duties.

Concurring, ICE will review the workload of its detention facility CORs, and determine an ideal staffing level to oversee its existing contracts. ICE will consider the operational placement of CORs under Field Office supervisors. If CORs remain under Field Office supervision, ERO leadership will ensure Field Office managers are fully aware of the importance of the CORs’ responsibilities and allowing them sufficient time and resources to complete their contract oversight duties. ICE anticipates completing these actions by September 30, 2019.

Finally, OIG recommends the Executive Associate Director for Management and Administration develops protocols to ensure that CORs and DSMs have full and expedient access to the contract documentation they need to perform core job functions.

ICE concurred with the fifth and final recommendation and stated that it will require that every contract document be available electronically on a shared drive. ICE will give CORs and DSMs read-only access to this system to allow them efficient access to contract documentation. ICE anticipates completing this action by June 30, 2019.

Read the full OIG report here

Kylie Bielby has 20 years' experience in reporting and editing a wide range of security topics, covering geopolitical and policy analysis to international and country-specific trends and events. She is an editor and contributor for Jane's by IHS Markit, a columnist for security and counter-terror publications, and a former managing editor for Homeland Security Today.

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