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DHS will waive contracting laws for first time to speed up construction of border wall


The Department of Homeland Security announced this week that it will waive several contracting laws, an unprecedented step that is intended to speed up wall construction on the US-Mexico border.

DHS, for the first time, is using its authority granted by Congress to bypass a handful of federal procurement laws, including ones that encourage open competition. It’s the latest step the administration has taken to push forward on President Donald Trump’s signature campaign promise, and it has already angered one key lawmaker.

The move allows DHS to take “immediate action” to construct new fencing and replace existing barriers, acting Homeland Security Secretary Chad Wolf said in a Federal Register notice, adding that there is “an acute and immediate need” to stop people from illegally entering the US.

Although the Trump administration has already waived dozens of laws to speed construction in California, Arizona and Texas, Wolf is the first secretary since Trump took office to waive laws related to the procurement process.

DHS says the move will speed up the contracting process in part by preventing protest litigation — the way companies can fight to win a federal contract.

“In a setting where Congress is perhaps less supportive than the administration might have hoped, this is part of the President’s larger effort to fulfill his campaign promise to build the wall,” Jamil Jaffer, founder and executive director at the National Security Institute, Antonin Scalia Law School at George Mason University, told CNN.

The waivers would affect 177 miles of border wall projects in four states from California to Texas, where officials have said there are concerns about reports of drug smuggling and illegal entry.

In a lot of ways, Jaffer said, these provisions are more about speed than money, although money plays a critical role in building a border wall.

Earlier this month, the President extended his national emergency on the US-Mexico border for another year. The move paved the way for Trump to unlock billions of dollars in federal funds to construct additional barriers on the southern border, after lawmakers refused to meet his multibillion-dollar fund request.

The Defense Department announced last week that it plans to divert $3.83 billion in Pentagon funding to border wall construction, which was met with bipartisan criticism.

The wall construction money will come from congressionally appropriated funds as well as reprogrammed Defense Department funding, according to Wolf.

“Now that the administration has found the money, it’s a question of how fast it gets built. And these waivers are designed to ensure that it can be built faster,” Jaffer said.

The time from funding to shovel-in-the-ground is currently around nine months. With the waivers, that could be reduced to as little as five months in some areas, said a senior DHS official.

With the waivers, DHS — working with the Army Corps of Engineers and the Department of Defense — will use contractors that are “already vetted and experienced,” DHS spokesperson Heather Swift said, adding that the companies that will be used already have contracts with the federal government.

“The United States remains in a border emergency with more than 36,000 individuals caught trying to illegally enter our country and 54,000 pounds of narcotics seized at the southwest border in January alone,” said Swift. “President Trump is fulfilling his promise to the American people to secure the border and build a high-tech border wall system. Under the President’s leadership, we are building more wall, faster than ever before.”

Officials with DHS and the Army Corps of Engineers did not provide CNN with specifics about the vetting process, including the companies that have already been vetted.

Most of the contracting laws favor having competition to the greatest extent possible, the theory being that the government and the taxpayer will receive the greatest benefits via competition, either through low prices or a better product or service, according to Kara Sacilotto, an attorney in the government contracts division at the firm Wiley Rein.

The waivers also eliminate some requirements on pricing and cost data, as well as wages, according to DHS and attorneys.

“There are mechanisms to still protect the taxpayer here. It just makes it a lot harder because you’re removing the checks at the front end,” Sacilotto said, adding that eliminating protests also eliminates oversight by the market.

“In fairness, the normal procurement process can take a long time sometimes,” she said. “Rome wasn’t built in a day, and we put these things in place to make sure that billions of dollars are appropriately spent.”

The government already has processes that allow it to essentially forgo full and open competition when it can show either urgent and compelling circumstances or because a certain contractor has unique capabilities, according to Amy Conant Hoang, an attorney in K&L Gates’ government contracts group and US national security law and policy group.

By waiving these laws, DHS would not have to go through the justification and approval process in order to make a direct award to a company, she said.

A few of the waivers “get at the same end result, which is to make it easier and faster to get through the procurement process. And to potentially make it more difficult for a competitor who was not selected to launch a bid protest against an award which would further delay the procurement process,” she said.

The department has previously used its waiver authority for border wall and roads construction 21 times, primarily to avoid environmental regulations and laws, Wolf said Tuesday on “Fox & Friends.”

The previous waivers, which bypassed environmental, health and safety laws, have been challenged in court. But despite the litigation, DHS has been allowed to move ahead. In January, conservation groups petitioned the US Supreme Court to review the court rulings that have allowed the department to use the waivers.

Pushback on the waiver announcement was immediate. House Homeland Security Chairman Bennie Thompson said the President “broke his promise to make Mexico pay for the wall.”

“Now he’s not only sticking the American people with the bill, but also waiving procurement laws meant to protect taxpayers from government waste, fraud, and abuse,” the Mississippi Democrat added in a statement.

Last year, House Homeland Security Committee member Rep. Kathleen Rice, a New York Democrat, introduced a bill to rescind a 2005 law that granted the Homeland Security secretary authority to waive laws, including the Endangered Species Act and the Clean Air Act, to expedite border barrier construction.

The bill passed out of committee last March and there will be a hearing on the issue next week. The next step is for the legislation to be brought to the House floor for consideration.

“This sweeping waiver authority has allowed irreversible damage to wildlife, wildlands and communities along our Southwest border for far too long and it is long past time to end it,” Defenders of Wildlife President Jamie Rappaport Clark said in a statement at the time. “Americans rely upon federal laws to protect their environment, their health, their civil rights and their businesses.”

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