Senate Border Security/Immigration Bill Circumvents Contracting Protections

June 27, 2013

I really didn’t expect to write anything about the Senate’s border security and immigration bill (S. 744), but then I was told to take a look at a few provisions that appear to get around contracting rules. Section 2108(a)(1) includes a provision that prevents bid protests when exceptions are used to circumvent full and open competition requirements. And despite the existing authority to grant a competition exception (which POGO has advocated should be used only sparingly), the bill includes a competition waiver (2108(a)(2)) that can be granted if a senior procurement executive “determines that the waiver or modification is necessary” and an “explanation” is submitted to Congress. Competition and bid protests are important tools to ensure that costs are low, performance is high, laws are followed, and the process is fair. Gutting those tools is bad for the government and bad for the public.

Section 2108(a)(3) also includes an employee hiring-rule exemption that allows for temporary hiring authority without regard to workforce limits.

Circumventing contracting accountability protections is just as bad. The bill is going to spend billions of dollars to hire and deploy border agents, build 700 miles of fencing, and buy aerial drones and other equipment to monitor the U.S.-Mexico border, and I’m shocked—and frankly, appalled—that the Senate is making it harder to protect taxpayer dollars.

I hope that these provisions are stripped when the Senate votes on the bill later today. As Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) stated, the current bill “reads like a Christmas wish list for Halliburton.” If the Senate keeps the anti-taxpayer provisions, let’s hope the House takes issue with them and ensures that billions of dollars aren’t spent on sole-source contracts that frequently result in terrible deals.

Image from the U.S. Senate Committee on the Judiciary.

Topics: Contract Oversight

Related Content: Arm's Length Negotiations, Competition in Federal Contracting, Contractor Accountability, DHS Spending, Risky Contract Vehicles

Authors: Scott H. Amey, J.D.

Submitted by Scott Amey at: July 1, 2013

A Hill source informed me that Sect. 2108 and its anti-competitive measures is limited to Title II of the bill which covers the immigrant Visa program. The thought was that special procurement authority is needed as a Visa program rulemaking must be established within one year according to Sect. 2110 of the bill. Because some ambiguity still exists and Sect. 2108 uses old US Code citations, I hope that the bill is corrected as it works its way through the Senate and conference. The last thing we need is for DHS to have wide-ranging authority to avoid competition in contracting.

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