Concrete being laid at the El Paso 1 project, spanning 46 miles, near Deming, N.M., on Jan. 28, 2020. (Photo by Jeremy Bell/U.S. Army Corps of Engineers, South Pacific Border District)

DHS Acting Secretary Waives Procurement Laws to Accelerate Border Barrier Projects

Several contracting laws are being waived by the Department of Homeland Security in order to speed up construction of 177 miles of fencing across the U.S.-Mexico border.

The move marks the first time that waivers — which have been previously used to bypass environmental impact reviews at the border — have been applied to federal procurement rules.

“We hope that will accelerate some of the construction that’s going along the southwest border,” Acting Homeland Security Secretary Chad Wolf told Fox News on Tuesday, stating that a waiver would allow the government “to speed up a lot of our contracts that the Army Corps has, anywhere from 30 to 45 to 60 days.”

The waiver, set to be published Thursday in the Federal Register, states that “the Acting Secretary of Homeland Security has determined, pursuant to law, that it is necessary to waive certain laws, regulations, and other legal requirements in order to ensure the expeditious construction of barriers and roads in the vicinity of the international land border in San Diego County, California, Imperial County, California, Yuma County, Arizona, Pima County, Arizona, Santa Cruz County, Arizona, Cochise County, Arizona, Luna County, New Mexico, Doña Ana County, New Mexico, El Paso County, Texas, Val Verde County, Texas, and Maverick County, Texas.”

Citing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Wolf continued, “I hereby waive in their entirety, with respect to all contracting actions associated with the construction of physical barriers and roads (including, but not limited to, accessing the project areas, creating and using staging areas, the conduct of earthwork, excavation, fill, and site preparation, and installation and upkeep of physical barriers, roads, supporting elements, drainage, erosion controls, safety features, lighting, cameras, and sensors) in the project areas, all of the following statutes and regulations, including any legal requirements of, deriving from, or related to the subject of, the following statutes and regulations.”

These include:

  • 10 U.S.C. 2304, which outlines requirements for competitive procedures in procurement
  • 10 U.S.C. § 2304c, which outlines task and delivery order contracts
  • 10 U.S.C. 2306a, which requires offerors, contractors, and subcontractors to make cost or pricing data available
  • 10 U.S.C. 2305(a)-(c) and (e)-(f), dealing with proper planning, solicitation, evaluation, and award procedures
  • Section 813 of Public Law 114-328, as amended by Section 822 of Public Law 115-91 (National Defense Authorization Act use of lowest price technically acceptable source selection process)
  • 15 U.S.C. 657q, consolidation of contract requirements
  • 48 CFR 17.205, which outlines what the contracting officer must justify in writing
  • 48 CFR 17.207, exercise of options
  • 10 U.S.C. 2305a(b)-(e), design-build selection procedures
  • 48 CFR 22.404-5, expiration of project wage determinations
  • 48 CFR 28.102-1(c), which requires that “the contractor shall furnish all bonds or alternative payment protection, including any necessary reinsurance agreements, before receiving a notice to proceed with the work or being allowed to start work”

“Working closely with the Army Corps of Engineers and Department of Defense, the Department of Homeland Security is exercising its Congressionally-granted authority to waive procurement regulations in six high-traffic border sectors, which will allow us to use already vetted and experienced contractors to build an additional 177 miles of new border wall system,” said DHS spokeswoman Heather Swift.

House Homeland Security Committee Chairman Bennie Thompson (D-Miss.) noted that procurement laws are “meant to protect taxpayers from government waste, fraud, and abuse,” and added that the president’s “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.”

“This waiver is another example of bait and switch by the president,” Thompson said. “If he really cared about stopping the drugs that are killing our kids, he’d strengthen ports of entry because that’s where 90 percent of opioids are entering this country.”

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Bridget Johnson is the Managing Editor for Homeland Security Today. A veteran journalist whose news articles and analyses have run in dozens of news outlets across the globe, Bridget first came to Washington to be online editor and a foreign policy writer at The Hill. Previously she was an editorial board member at the Rocky Mountain News and syndicated nation/world news columnist at the Los Angeles Daily News. Bridget is a senior fellow specializing in terrorism analysis at the Haym Salomon Center. She is a Senior Risk Analyst for Gate 15, a private investigator and a security consultant. She is an NPR on-air contributor and has contributed to USA Today, The Wall Street Journal, New York Observer, National Review Online, Politico, New York Daily News, The Jerusalem Post, The Hill, Washington Times, RealClearWorld and more, and has myriad television and radio credits including Al-Jazeera, BBC and SiriusXM.

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