Multiple Regulations Waived for Border Wall


On Thursday (Feb. 20), a waiver made by the Department of Homeland Security's Acting Director Chad Wolf went into effect, surrendering certain procurement laws as to expedite construction on portions of the U.S.-Mexico border wall.

Affected areas include the following counties: 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.

Border Wall Saga

In September 2017, the first border wall contracts were awarded to four different companies to develop prototypes that would work in conjunction with the border in the San Diego area. U.S. special forces spent weeks attempting to breach the eight prototype models of the proposed U.S.-Mexico border wall, which proved to withstand jackhammers, torches and climbing tools.

Since then, the government has worked to speed up the project. In October 2018, the U.S. Department of Homeland Security announced that any environmental regulations regarding the construction or repair of a section of the border wall for certain areas in Texas would be waived, drawing ire from environmentalists and private property owners alike. The announcement detailed exemptions in Cameron County; another announcement made the following day detailed similar measures for Hidalgo County.

Through the course of late 2018 and into 2019, construction began on section of border wall gates in the Rio Grande Valley sector, with several million in border wall contracts being awarded for work elsewhere. In mid-2019, a judge blocked the president’s use of money originally intended for military funding, for work on the border wall. The injunction only accounted for roughly $1 billion in funding for the border wall, money that the Department of Defense had funneled away from Army personnel to the Department of Homeland Security.

In September, Secretary of Defense Mark Esper approved $3.6 billion in funding—largely pulled from military construction projects, including housing—to go toward building 175 miles of the border wall. At the end of that same month, Jonathan Hoffman, assistant to the secretary of defense for public affairs, reported that roughly a mile of border wall is being built every day.

Additionally, in November, Trump allowed for construction to begin on a section of the wall in Texas without customary environmental reviews. December also saw funding stemming from canceled military projects being assigned to three new contracts for the construction of over 30 miles of replacement fencing along the U.S.-Mexico border, totaling $316 million in work.

At the beginning of January, the 5th Circuit Court of Appeals, based out of New Orleans, ruled 2-1 that a certain set of Department of Defense funding could be used for border wall construction and lifted the injunction. The Washington Post reports that due to this ruling, the president and his administration viewed the matter as an invitation to take money again in 2020.

By the end of the month, President Trump announced plans to divert $7.2 billion of military funds—roughly five times what Congress authorized to spend in the 2020 budget from Pentagon funding—for border wall construction. According to the plans, the diverted funds would allow the government to complete an additional 885 miles of new fencing by spring 2022, approximately 376 more miles than the administration had slated for the U.S. border with Mexico.

What’s Happening Now

According to reports, companies that are eligible to work under the waiver are those that were shortlisted by the U.S. Army Corps of Engineers back in May to bid on construction work sometime during the next five years. The contracts are worth up to $5 billion total and will include both design-build and design-bid-build projects.

The 12 contractors chosen at the time included: BFBC (Bozeman, Montana); Texas Sterling Construction Co. (Houston); Bristol Construction Services LLC (Anchorage, Alaska); Burgos Group LLC (Albuquerque, New Mexico); Gibraltar-Caddell JV (Montgomery, Alabama); Fisher Sand & Gravel (Dickinson, North Dakota); Southwest Valley Constructors Co. (Albuquerque); Randy Kinder Excavating Inc. (Dexter, Missouri); Martin Brothers Construction (Sacramento, California); SLSCO Ltd. (Galveston, Texas); Posillico Civil Inc. Coastal Environmental Group Inc. (Farmingdale, New York); and CJW JV (Santa Ana, California).

Work covered by the waiver includes access roads to and around the designated projects, earthwork, excavation, site preparation, installation and maintenance of barriers, drainage and erosion controls, and safety and security features.

As reported in the DHS waiver, the following rules will not apply to the designated projects:

  • 10 U.S.C. 2304: Competition requirements;
  • 10 U.S.C. 2306a: Prohibition of using cost-plus-a-percentage-of-cost contracts and the requirement that procurement agencies attempt a sealed bid procedure prior to other methods;
  • 10 U.S.C. 2305(a)-(c), (e)-(f): Planning, soliciting, evaluating and awarding contracts that promote and support competition;
  • Section 813 of Public Law 114-328 (as amended by Section 822 of Public Law 115-91): Use of lowest-priced, technically-acceptable sources;
  • 48 CFR 17.205: Documentation of special contracting methods;
  • 48 CFR 17.207: Exercising advantageous contract options;
  • 48 CFR 22.404-5: Wage determinations reflecting prevailing wages and fringe benefits; and
  • 48 CFR 28.102-1(c): Requirement that contractors post payment and performance bonds.

Wolf also added a notice that reads: “This waiver does not revoke or supersede any other waiver determination made pursuant to section 102(c) of IIRIRA. Such waivers shall remain in full force and effect in accordance with their terms.”


Tagged categories: Bidding; Contracts; Design build; Government; Government contracts; Infrastructure; Infrastructure; Latin America; NA; North America; Ongoing projects; President Trump; Program/Project Management; Project Management; Regulations; SA; South America; U.S. Army Corps of Engineers

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