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IN-DEPTH: Border Wall ‘Pre-Solicitation’ Amended as CBP Indicates Possible Expansion of RVSS Program

On February 24, Customs and Border Protection (CBP) announced a “Design-Build Structure” “presolicitation” out of its Indianapolis, Indiana office in advance of its intent to issue a formal “solicitation … on or about March 6, 2017 for the design and build of several prototype wall structures in the vicinity of the United States border with Mexico” to cover the currently more than 1,250 unsecured miles of the US border.

On March 3, however, CPB amended its pre-solicitation notice to provide additional information to interested bidders and due to a revision in strategy based on input received after the original posting.

CBP said it “intends on issuing a solicitation in electronic format on or after March 8 for the design and build of several prototype wall structures in the vicinity of the United States border with Mexico. Detailed requirements will be included in the Request for Proposal (RFP), but for planning we anticipate procuring concrete wall structures, nominally 30 feet tall, that will meet requirements for aesthetics, anti-climbing and resistance to tampering or damage.”

“This procurement will be conducted in accordance with the procedures outlined in FAR Part 36.3, Two Phase Design Build Procedures,” the amended pre-solicitation said. “Phase 1 of the RFP will be due on or about March 20, 2017 and will require vendors to submit a concept paper of their prototype which will result in the evaluation and down select of offerors. Phase 2 will require the down select of phase 1 offerors to submit proposals in response to the full RFP, including pricing, which will be due on or about May 3, 2017."

CBP said it "intends to issue multiple award Indefinite Delivery Indefinite Quantity (IDIQ) contracts. Some limited number (yet to be defined) of additional miles are contemplated to be included by competing the requirements among the successful IDIQ contract holders. The intent of this procurement is to acquire and evaluate available wall prototypes and provide some initial construction of some wall segments, but is not intended as the vehicle for the procurement of the total wall solution for the border with Mexico.”

Originally, CBP stated, "pursuant to Trump’s Executive Order mandating a border ‘wall,’ “The procurement will be conducted in two phases, the first requiring vendors to submit a concept paper of their prototype(s) by March 10 which will result in the evaluation and down select of offerors by March 20. The second phase will require the down select of phase 1 offerors to submit proposals in response to the full RFP by March 24, which will include price. Multiple awards are contemplated by mid-April for this effort,” with an option for additional miles be included in each contract award.

As of Monday, 475 companies had registered as interested vendors, including at least one bid protest attorney, which isn’t surprising.

Raytheon protested CBP’s awarding the $145 million Southwest border Integrated Fixed Tower (IFT) contract to Israeli-based Elbit Systems’ US subsidiary, Fort Worth, Texas-based EFW, Inc. CBP eventually re-awarded the contract to Elbit following a careful review of the Government Accountability Office’s (GAO) decision to uphold Raytheon’s protest. A CBP spokesperson told Homeland Security Today “corrective actions we took regarding the contract … and concurred with by the GAO, was to re-evaluate specific portions of the Technical and Past Performance Factors” component of Raytheon’s contesting of the award. “Those re-evaluations were then considered for the impact to the overall evaluation and a new award decision was made.”

In addition to its presolicitation for prototype southwest border wall structures, CBP also recently announced it’s “contemplating” an expansion of CBP’s second most recent big ticket program, the $224 million Remote Video Surveillance System (RVSS) Upgrade Program across the entire Southwest and Northern borders, to include the following southern Border Patrol (USBP) Sectors: Laredo, Del Rio, Big Bend (Marfa), El Paso, El Centro and San Diego, and Detroit, Buffalo, Blaine and Swanton as part of the Northern border.

Funding issues may – and are likely — to set back the border wall contract award date until the White House is able to get Congress’ support to authorize and approve the funding necessary to begin construction.

While Trump’s January Executive Order calling to start breaking ground on the US-Mexico border project with "existing [DHS] funds,” an internal Department of Homeland Security (DHS) document recently distributed to congressional budget staff revealed DHS could only find a paltry $20 million capable of being redirected to the project, which basically would finance CBP’s presolicitaion contracts for prototype wall structures.

However, recent reports stated DHS only searched for available funds within its $376 million budget for border security fencing, infrastructure and technology. If true, in order for DHS to identify funds elsewhere within the department, Congress will have to approve reprograming these funds.

An internal DHS report estimated the wall will cost $21.6 billion, a far cry from Trump’s insistence he could get the project done for $12 billion. Congressional Republicans have estimated the cost to be $15 billion.

Nevertheless, Trump and DHS Secretary John Kelly both have said wall construction will begin within a few months and have dismissed construction cost estimates. Kelly recently told Fox News he expected “the funding will come relatively quickly, and, like I said, we will build it where it’s needed first as identified by the men and women who work the border.”

On February 20, a month after President Trump issued his January 25 Executive Order, Border Security and Immigration Enforcement Improvements, Kelly issued his memorandum, Implementing the President’s Border Security and Immigration Enforcement Improvements Policies.

In his directive, Kelly stated, “A wall along the southern border is necessary to deter and prevent the illegal entry of aliens and is a critical component of the President’s overall border security strategy. Congress has authorized the construction of physical barriers and roads at the border to prevent illegal immigration in several statutory provisions, including section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended, 8 U.S.C. § 1103 note.”

The directive stated, “Consistent with the President’s Executive Order, the will of Congress and the need to secure the border in the national interest, CBP, in consultation with the appropriate executive departments and agencies and nongovernmental entities having relevant expertise-and using materials originating in the United States to the maximum extent permitted by law-shall immediately begin planning, design, construction and maintenance of a wall, including the attendant lighting, technology (including sensors) as well as patrol and access roads along the land border with Mexico in accordance with existing law, in the most appropriate locations and utilizing appropriate materials and technology to most effectively achieve operational control of the border.”

“The Under Secretary for Management, in consultation with the Commissioner of CBP, shall immediately identify and allocate all sources of available funding for the planning, design, construction and maintenance of a wall, including the attendant lighting, technology (including sensors) as well as patrol and access roads, and develop requirements for total ownership cost of this project, including preparing Congressional budget requests for the current fiscal year (e.g., supplemental budget requests) and subsequent fiscal years,” the directive said.

Following Trump’s Executive Order requiring Commissioning a Comprehensive Study of Border Security, Kelly stated in his directive, “The Under Secretary for Management, in consultation with the Commissioner of CBP, Joint Task Force (Border) and Commandant of the Coast Guard, is directed to commission an immediate, comprehensive study of the security of the southern border (air, land and maritime) to identify vulnerabilities and provide recommendations to enhance border security. The study should include all aspects of the current border security environment, including the availability of federal and state resources to develop and implement an effective border security strategy that will achieve complete operational control of the border.”

Trump’s Executive Order mandated the DHS Secretary “shall immediately take the following steps to obtain complete operational control, as determined by the secretary, of the southern border:”

  • In accordance with existing law, including the Secure Fence Act and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [IIRIRA], take all appropriate steps to immediately plan, design and construct a physical wall along the southern border, using appropriate materials and technology to most effectively achieve complete operational control of the southern border;
  • Identify and, to the extent permitted by law, allocate all sources of federal funds for the planning, designing and constructing of a physical wall along the southern border; Project and develop long-term funding requirements for the wall, including preparing congressional budget requests for the current and upcoming fiscal years; and
  • Produce a comprehensive study of the security of the southern border, to be completed within 180 days of this order, that shall include the current state of southern border security, all geophysical and topographical aspects of the southern border, the availability of federal and state resources necessary to achieve complete operational control of the southern border, and a strategy to obtain and maintain complete operational control of the southern border.

According to CBP documents, a segment of the border between PoEs is considered under effective control when CBP can simultaneously and consistently achieve the following: detect illegal entries into the United States, identify and classify these entries to determine the level of the threat, efficiently and effectively respond to these entries and bring each event to a satisfactory law enforcement resolution.

Consequently, persistent surveillance is the critical capability – the lynchpin, if you will — that CBP must have in place and in operating order to establish and maintain control of the southwest border. Long range persistent surveillance enables CBP to efficiently and effectively manage rural and remote areas of interest.

The RVSS upgrade program

As CBP has made clear, it is “contemplating an expansion of the RVSS Upgrade Program across the Southwest and Northern borders to include the following US Border Patrol (USBP) Sectors: Laredo, Del Rio, Big Bend (Marfa), El Paso, El Centro and San Diego, and Detroit, Buffalo, Blaine and Swanton on the Northern border.

Located on elevated fixed towers and building structures, RVSS provides a persistent wide area electro-optic and infrared surveillance capability to enable the detection, tracking, identification and classification of illegal border entries. The system provides CBP agents the necessary situational awareness needed to detect, track, identify and classify illegal incursions between POEs.

A source familiar with the program told Homeland Security Today at the time that "the RVSS winner better do a good job on the RVSS required five tower test, an RVSS required post-selection requirement," explaining then assistant commissioner and chief acquisition executive of CBP’s Office of Technology Innovation and Acquisition, “[had] pretty much told [the bidding companies] ‘you’ve all submitted great proposals about what you can do, now prove it!’”

In July 2013, CBP awarded General Dynamics One Source the contract to upgrade RVSS along the southern border. The contract has a potential value of approximately $103 million over 10 years if all options are exercised. General Dynamics One Source is comprised of General Dynamics Information Technology and General Dynamics Mission Systems.

In October 2015, General Dynamics successfully upgraded surveillance and response capabilities with its initial field deployment and test of the RVSS upgrade for CBP. At that time, General Dynamics had deployed a new command-and-control system and installed upgraded RVSS camera suites on five new and 12 legacy tower sites supporting the Nogales Border Patrol Station. During the test, the system was used to assist field agents in real-world missions.

“This test demonstrated many technical capabilities of the RVSS system and is a key program milestone in its deployment schedule,” General Dynamics said, noting that, “Border Patrol agents are currently operating the RVSS in Nogales, Arizona and CBP has also initiated deployments in both Naco and Douglas, Arizona.”

“The Remote Video Surveillance System is a critical element of our overall plan to secure the border, increase our mission effectiveness and protect our agents,” CBP’s chief procurement official said at the time.

CBP’s January 27, 2017 Request for Information (RFI) sought to obtain information from industry to provide CBP with insight into market conditions, capabilities and/or scientific advances to aid the agency in formation of an expanded and upgraded RVSS acquisition strategy. As of Monday, 60 vendors had responded.

In its "Estimated RVSS Tower and C2 Quantities," and "RVSS Operational Requirements" documents, CBP stated they’re for RFI purposes only, but, CBP noted, “All existing BPS Towers are assumed to require upgrade,” and that, “All [Fixed or relocatable Command and Control (C2)] system facilities are assumed to require renovation or modular unit.”

While CBP made clear in the RFI announcement that its “RFI is issued solely for information, planning purposes and market research only,” and “does not constitute a Request for Proposal or a promise to issue an RFP,” as CBP “is not seeking proposals at this time,” the agency stated in another related document that, “The RVSS Upgrade Program estimates a solicitation release date between October and December 2017,” and is “is not seeking to acquire components,” but rather … seeking to buy a fully integrated Commercial-off-the-Shelf or Non-developmental Item system.”

The RFIs were due February 8, after which CBP said it “may conduct‘One-on-One’ discussions with responders with existing, fully-developed and integrated system solutions that meet the operational requirements, as well as, with other responders to gather additional information. CBP may also seek to gather additional information and provide interested vendors an opportunity to learn more about this requirement by hosting an Industry Day.”

CBP may also “utilize support contractors to review and analyze vendor responses to this RFI,” and that, “Each support contract reviewer will be required to sign a Department of Homeland Security Non-Disclosure Agreement prior to commencing review and analysis of RFI responses.”

The law seems to be on DHS’s side

According to the Congressional Research Service (CRS) report, Barriers Along the US Borders: Key Authorities and Requirements, by Michael John Garcia, CRS Acting Section Research Manager, “Pursuant to IIRIRA Section 102, Congress has conferred DHS with clear authority to construct barriers and roads along the international land borders to deter illegal crossings in areas of high illegal entry. More specifically, it has required fencing to be constructed along specified mileage of the southwest border. In recent years, legislative attention has primarily focused upon the fencing requirements contained in IIRIRA Section 102(b). Prior versions of Section 102(b) imposed specific requirements as to the location where fencing was to be installed and the layers of fencing to be constructed. The current provision affords DHS with significantly greater discretion to determine the appropriate location, layers and types of fencing to be installed along the southwest border.”

Garcia wrote that, “Whether DHS has discretion to construct less fencing than the amount specified under IIRIRA Section 102(b), on account of a proviso that posits that the agency is not required to construct fencing at any ‘particular location’ where it deems fencing to be inappropriate, has been the subject of disagreement (and apparently inconsistent views by DHS itself). While there appears to be stronger support for construing Section 102(b) to establish a firm mandate for the deployment of fencing along 700 miles of the border, with the agency retaining discretion as to the locations along the border where fencing should be installed, it is not clear whether a court would have the ability to compel DHS to install additional fencing (or that a plaintiff would have standing to bring such a claim). If Congress disagrees with DHS’s implementation of the fencing mandate under Section 102(b), it would likely need to enact legislation to modify or clarify the fencing requirements found in current statute.”

"But even assuming that DHS satisfies the fencing requirements under Section 102(b), the general authority conferred to the agency under Section 102(a) permits it to construct additional fencing or other barriers along the US land borders,” Garcia stated. “Moreover, Section 102(b) authorizes DHS to deploy additional physical barriers—beyond the mandated fencing along 700 miles of the southwest border—in order to obtain operational control of the southwest border. There is nothing in current statute that would appear to bar DHS from potentially installing hundreds of miles of additional fencing or other physical barriers along the border, at least so long as the action was determined appropriate to deter illegal crossings in areas of high illegal entry. In addition, IIRIRA Section 102(c) grants DHS authority to waive any legal requirement that would impede the expeditious construction of additional barriers and roads.”

Garcia wrote that, “DHS’s decision not todeploy a substantial amount of additional fencing, beyond what is required under IIRIRA Section 102(b), appears primarily premised on policy considerations and funding constraints, rather than significant legal impediments. Accordingly, policymakers may deem it appropriate to review and assess the scope of DHS’s authority to construct barriers, and the manner in which such authority is exercised, even after any requirements under IIRIRA Section 102(b) are satisfied.”

According to the CRS report, which CRS doesn’t make public, “The primary statute authorizing the deployment of fencing and other barriers along the international borders is Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA; P.L. 104-208, div. C). Congress made significant amendments to IIRIRA Section 102 through three enactments—the REAL ID Act of 2005 (P.L. 109-13, div. B), the Secure Fence Act of 2006 (P.L. 109-367) and the Consolidated Appropriations Act of 2008 (P.L. 110-161, div. E). These amendments required DHS to construct hundreds of miles of new fencing along the US-Mexico border, and they also gave the Secretary of DHS broad authority to waive ‘all legal requirements’ that may impede construction of barriers and roads under IIRIRA Section 102. These statutory modifications, along with increased funding for border projects, resulted in the deployment of several hundred miles of new barriers along the southwest border between 2005 and 2011. But in the years following, DHS largely stopped deploying additional fencing, as the agency altered its enforcement strategy in a manner that place[d] less priority upon barrier construction.”

Continuing, Garcia noted, “Federal law authorizes DHS to construct barriers along the US borders to deter illegal crossings. DHS is also required to construct reinforced fencing along at least 700 miles of the land border with Mexico (a border that stretches 1,933 miles). Congress has not provided a deadline for DHS to meet this 700-mile requirement, and as of the date of this report, fencing would need to be deployed along nearly 50 additional miles to satisfy the 700-mile requirement. Nor has Congress provided guidelines regarding the specific characteristics of fencing or other physical barriers (e.g., their height or material composition) deployed along the border, beyond specifying that required fencing must be reinforced.”

Further, Garcia determined, “Until recently, interest in the framework governing the deployment of barriers along the international border typically focused on the stringency of the statutory mandate to deploy fencing along at least 700 miles of the US-Mexico border. But, attention has now shifted to those provisions of law that permit deployment of fencing or other physical barriers along additional mileage. IIRIRA Section 102 authorizes DHS to construct additional fencing or other barriers along the US land borders beyond the 700 miles specified in statute. Indeed, nothing in current law would appear to bar DHS from installing hundreds of miles of additional physical barriers, at least so long as this action was determined appropriate to deter illegal crossings in areas of high illegal entry or was deemed warranted to achieve ‘operational control’ of the southern border.”

The Fiscal Year 2012 House Homeland Security Appropriations Conference Report noted that the committee “has consistently directed that CBP employ a comprehensive strategy for achieving operational control of the border, including identifying and utilizing the right mix of people, infrastructure and technology.”

Both CBP’s 2009-2014 Strategic Plan, and Border Patrol’s 2012-2016 national strategy, emphasized CBP must establish and maintain effective control of air, land and maritime borders through the use of the appropriate mix of infrastructure, technology and personnel.

Until Trump was elected President and issued his Executive Order requiring a southern border barrier, Garcia said, “DHS’spolicy not to deploy a substantial amount of additional fencing, beyond what is expressly required by law, appeared primarily premised on policy considerations and funding constraints, rather than significant legal impediments.”

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