Amid Funding and Design Battles, Border Wall Contracts Are Challenged

U.S. Marines repair the border wall last year near Yuma, Ariz., but new stretches of the structure ordered by President Trump face a host of construction issues.

PHOTO BY CUTLER BRICE/ZUMA PRESS/NEWSCOM

Even as Congressional Democrats push to block transfer of allocated military project funds to U.S.-Mexico border wall construction and President Donald Trump seeks expensive design changes, the government now faces legal challenges on already contracted barrier jobs.

In particular, two contracts awarded last month by the Army Corps of Engineers in Albuquerque, N.M., valued at nearly $1 billion, have hit a wall. One was rescinded, one has a lawsuit pending, and both faced U.S. Government Accountability Office bid protests.

In a May 1 letter ENR obtained from GAO, the Corps said it will cancel a $187-million contract awarded to Barnard Construction in April that was protested by barred bidder Fisher Sand & Gravel. The contract covers construction of 11 miles of bollard-type barrier in the Yuma, Ariz., area of the U.S. Dept. of Homeland Security’s Border Patrol.

The Corps sided with Fisher in determining that it had allowed bidders for the Arizona work that were only eligible for border projects in California, New Mexico and Texas, said Alexandria Tramel, Corps assistant district counsel in Fort Worth, Texas. She said Fisher was improperly excluded.

Barnard did not respond to a request for comment. Fisher also protested the $789-million contract awarded last month to SLSCO, for 46 miles of bollard barrier near Columbus, N.M. On April 25, Fisher sued in federal claims court to stop work under that contract after the Corps overrode GAO’s automatic stay of performance.

Fisher charged in its suit that the solicitation asked bidders to list all current border infrastructure barrier projects on which they were working currently or in the past five years, which was to be the most important selection factor.

“Fisher is aware of only two firms that have been selected for border infrastructure projects in the past five years,” except for small business awards, it said. Those two are Barnard Construction and SLSCO.

The solicitation was issued March 28 and the contract awarded April 9. In its April 18 bid protest, Fisher claimed that the rushed procurement raises serious questions about the thoroughness of the process and its compliance with regulations.

The procurement “effectively suppressed competition and was designed to conduct an artificial process where the end result was known ahead of time,” the protest said. The Corps essentially designated two firms as “sole source contractors,” the protest added, noting that that the heavily weighted qualifying factor violated U.S. rules on full and open competition.

The Corps did not comment.

Meanwhile, Democrats on the Senate Appropriations Committee asked acting Defense Secretary Patrick Shanahan on May 16 not to use milcon funds for wall construction. The committee has not yet taken up its version of fiscal 2020 milcon and Veterans’ Administration spending.

In a bill approved May 9, the House Appropriations Committee barred spending or obligating milcon funds appropriated between fiscal 2015-20 for barriers.

But Shanahan said May 10 that the Corps received $1.5 billion from military accounts, added to $1 billion taken in March for wall work under Trump’s border emergency declaration, said the Associated Press.

More barrier contracts are coming. DOD on May 9 selected from 38 bidders, 12 firms to compete for $5 billion in task orders over five years for wall building in DHS border patrol sectors in California and Arizona, and for the Corps’ Southwestern and South Pacific divisions.

Contracts will be firm-fixed price for design-build and design-bid-build.

Selected were BFBC, Texas Sterling Construction, Bristol Construction Services, Burgos Group, Gibraltar-Caddell JV, Fisher Sand & Gravel, Southwest Valley Constructors, Randy Kinder Excavating, Martin Bros. Construction, SLSCO, Posillico Civil Inc. and CJW JV.

The Corps also said in April it will prequalify firms for another $8 billion in barrier and related work, a list to be used for 18 months after completion. To be eligible, firms must have finished a $100-million or more “horizontal construction” project and have capacity to perform three $500-million projects concurrently.

Trump has pushed Corps and other officials for wall design changes such as black-painted bollards with pointed tips to injure more would-be border crossers, fewer and smaller openings, and a uniform 30-ft height, The Washington Post said May 16.

It said Trump “repeatedly summoned” Corps chief Lt. Gen. Todd T. Semonite on wall issues, including that it be “aesthetically pleasing.”

Mary B. Powers has reported on engineering and construction issues in the global energy and environmental sectors for more than 30 years from Washington, D.C. and Birmingham, Ala. She formerly wrote for the Platt's group of energy sector publications under McGraw Hill and S&P Global that included Inside Energy and Megawatt Daily, and was state editor for the Lexington, Ky., Herald Leader. Mary has a master’s degree in journalism from The American University.

As ENR Editor-at-Large for Energy, Business and Workforce, Debra K. Rubin has a broad vantage for news, issues and trends in global engineering and construction related to key areas of global energy development and transition, corporate business and management, regulation and risk and next-generation workforce development.

Debra also launched and manages ENR's Top 200 Environmental Firms annual ranking, which defines key players in the dynamic global market for environmental services; and is editor of ENR WorkforceToday e-newsletter on industry talent management news and trends. Click here to receive this free monthly newsletter.

She also is a key organizer of ENR's annual Groundbreaking Women in Construction conference, a major AEC industry forum for talent management and women's career advancement. Click here for more detail on plans in formation for the next live event.

Tom Ichniowski has been writing about the federal government as ENR’s Washington Bureau Chief since the George H.W. Bush administration, and he has covered at least five major highway bills. A recognized expert on government policy on infrastructure and regulation, Tom is also a Baltimore native and Orioles fan who grew up rooting for Brooks and Frank Robinson. He is a graduate of Columbia College and Columbia’s graduate school of journalism, where he once used “unrelentless” in a headline.

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