Exposing Corruption and Preventing Abuse of Power

“Insecurity”: How the Trump Administration is Placing Border Wall Speed before the Law

U.S. Border Patrol Agents at Border Field State Park in Imperial Beach watch over personnel reinforcing the border wall with concertina wire. (Photo: U.S. Customs and Border Protection / Mani Albrecht)

Days after his inauguration in 2017, President Donald Trump shifted his idea of a border wall that he said would stop illegal immigration from a campaign promise to an “immediate” construction project. Two years later, Trump declared a national emergency in order to circumvent Congress’s constitutional power of the purse, citing “the gravity of the current emergency situation.” Those calls placed speed above contracting best practices. And even now during the global coronavirus pandemic, the administration has continued to prioritize the construction of 576 miles of the new “border wall system” along the Mexico-United States border, risking public health, taxpayer funds, and the environment and wildlife.

The Trump administration is waiving vital laws that protect taxpayers, the environment and wildlife, and work during the pandemic is placing workers, their families, and border town residents at risk.

The New York Timesreported that border town residents in Arizona are fearful that a heavy influx of construction workers may expose them to the coronavirus. “They are bringing people [from] as far away as places like Nebraska and Montana,” said Gail Emrick, executive director of the Southeast Arizona Health Education Center. Emrick also wrote about the dangers of continuing with business as usual, citing the health disparities that many rural communities face and warning that an influx of workers could overwhelm health facilities in border towns. This is particularly a concern now that states are beginning to relax or even completely lift stay-at-home orders and other protective measures. Emrick told the Project On Government Oversight that “with the emergency declaration over it now falls on the responsibility of every citizen to follow safe social distancing.” One case in point is Ajo, Arizona, in Pima county, where hundreds of construction workers have flocked into the town. Residents told The Guardian, even before protective restrictions were relaxed, that the workers were seen not following the safety guidelines. One resident described seeing a gathering of more than 10 people at a house rented to workers. “The backyard was lit up, music was blaring, and they were throwing horseshoes.”

According to the Johns Hopkins School of Medicine, as of June 1, over 2,700 people have tested positive for COVID-19—the disease caused by the new coronavirus—in Pima, Santa Cruz, and Cochise counties in southern Arizona.

An increased health risk isn’t the only risk the continued prioritization of wall construction poses to the public; tax dollars are also in jeopardy. According to a government report from January, new border wall systems will span 576 total miles and are projected to cost taxpayers $11.1 billion. That averages out to $20 million per mile, five times the amount the Bush administration paid per mile on border barriers, NPR reported. As of May 26, Customs and Border Protection estimated that 194 miles of the border wall system have been completed, yet the cost so far is notably absent from the agency’s border wall website. Congress has approved $4.5 billion for border barriers and other measures, and the administration reportedly planned to divert an additional $7.2 billion from the Department of Defense’s military construction and counter-narcotics programs.

According to data compiled by POGO, border wall construction contracts have been awarded for $6.1 billion, which is already more than what Congress appropriated for the wall since Trump took office. The data compiled by POGO also shows that 38 federal border wall prime contracts have been awarded since April 2019 to 22 companies. Some of the companies have not received any border wall work yet, but they have received $2,000, which is the minimum guarantee.

Just two companies received the vast majority of contracting dollars for wall construction. One company, BFBC LLC, an affiliate of Barnard Construction, initially received a contract worth $141 million in May 2019 in a limited bidding process—only nine bids were solicited and only four bids were received. By September 2019, contract modifications brought BFBC’s award to $443 million for a total of 20 miles of border barrier replacement in California and Arizona.

In April 2020, BFBC was also awarded an astonishing $569 million contract to build an additional 17.17 miles of “border wall design-build construction” in California. This total comes to $33 million per mile, far exceeding the estimated $20 million per-mile average of current border wall construction costs.

The second company, Fisher Sand and Gravel—a company “favored” by Trump, according to The Hill—was awarded $7.6 million this spring for “approximately 800 linear feet of 30-foot bollard barrier, roads, drainage improvements, lighting, closed-circuit TV,” and fiber optic cables. That was in addition to a $268 million contract that had been awarded to Fisher late last year. Last month, Fisher received an additional $1.3 billion to construct 42 miles of wall in Arizona, The Hill reported.

Neither Fisher Sand nor BFBC, through Barnard Construction, responded to POGO’s questions and requests for comment.

Even as these and other construction contracts are being awarded, the Trump administration is waiving vital laws that protect taxpayers, the environment and wildlife, and work during the pandemic is placing workers, their families, and border town residents at risk.

Taxpayer Contracting Protections Waived

Citing “an acute and immediate need to construct physical barriers and roads in the vicinity of the border of the United States in order to prevent unlawful entries into the United States,” the administration announced in February that it would waive 11 federal contracting laws designed to protect taxpayers. Acting Department of Homeland Security Secretary Chad Wolf made the announcement on Fox News, citing the 2005 Real ID Act, which gives the Department of Homeland Security (DHS) discretion in waiving federal laws that can impede efforts in constructing a barrier along the southwest border. “The department has used that authority 21 times, mostly waiving environmental regulations and laws. Today we are going to start waiving those for procurement regulations and laws as well” Wolf said.

“We hope that will accelerate some of the construction that’s going on along the southwest border,” Wolf added.

The waivers suspended numerous contracting laws that protect taxpayers—laws that promote contract competition, allow the Department of Defense to obtain cost or pricing data to ensure it is getting fair and reasonable pricing, permit award protests, encourage small business participation, establish contractor financing obligations, and require justifications for the exercise of contract options also known as contract extensions.

With the waivers in place, DHS announced that, working with the Army Corps of Engineers, it would only award contracts to “already vetted and experienced” contractors, according to then- DHS spokesperson Heather Swift. However, by waiving reporting mechanisms it will be challenging to hold the Army Corps of Engineers and DHS accountable.

How many times are we going to rerun this movie? It is entirely possible and plenty of tools available to speed up the process w/o waiving key tenets of public procurement. Guaranteed that, from an acquisition perspective, this will not end well. Never does.

Stan Soloway, former Pentagon acquisition official

The initial 11 waivers expedited the construction of roughly 177 miles of construction along the Mexico-United States border that included physical barriers, roads, and “supporting elements [such as] lighting, cameras, and sensors.” Several lawmakers and experts were quick to warn that these waivers would be problematic for transparency and protecting taxpayers.

House Homeland Security Committee Chairman Bennie Thompson (D-MS) put it bluntly: “President Trump 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.”

POGO’s Scott Amey weighed in, explaining to the Associated Press that waiving the law requiring contractors to provide certified cost or pricing data will result in taxpayers getting ripped off. “It’s equivalent to buying a car without seeing a sticker price. This could be a recipe for shoddy work and paying a much higher price than they should.”

Even Stan Soloway, a consultant with experience as a top acquisition official at the Pentagon, tweeted, “How many times are we going to rerun this movie? It is entirely possible and plenty of tools available to speed up the process w/o [without] waiving key tenets of public procurement. Guaranteed that, from an acquisition perspective, this will not end well. Never does.”

Making matters worse, contracting laws weren’t the only laws shelved for the sake of expediency.

Speed Placed Before the Environment, Preservation, and Wildlife

On March 16, DHS announced an additional 30 waivers to expedite border wall construction in Pima, Santa Cruz, and Cochise counties in southeast Arizona. These waivers impacted standards outlined in the Endangered Species Act, Clean Water Act, National Historic Preservation Act, and Eagle Protection Act, to name just a few. The administration’s decision to waive these laws is yet another example of its disregard of negative impacts its policies may have on wildlife or the environment.

National Geographicreported on the devastating impact waiving environmental regulations would have on wildlife, with a conservationist interviewed for the piece labeling upcoming border wall construction an “ecological disaster in the making.” Most notably, conservationists warned it would block animals from natural migration patterns, as the current design of 30-foot bollard-style barriers would impede endangered species from free movement. Myles Traphagen, a scientist working with the Wildlands Network, told National Geographic that “the recovery of the jaguar in the United States would come to a grinding halt.”

Customs and Border Protection spokesperson Matthew Dyman told National Geographic that even though DHS waived “environmental laws for these projects to ensure the expeditious construction of barrier, CBP remains committed to the protection of the nation’s important cultural and natural resources.” He added that the department “conducts environmental surveys of each project area to [identify] any threatened and endangered species and other sensitive plants and wildlife that may be present.” However, waiving these laws will make it hard to track if this is indeed the case, and it will make it hard for individuals to hold the government accountable if it neglects to include the impact on wildlife and the environment in its calculations.

Most notably, the Department of Defense has continued to award contracts to North Dakota-based firm Fisher Sand and Gravel, which has a long documented history of violating environmental regulations. In 2017, the Arizona Republic reported that Fisher “has been cited hundreds of times by state and local officials for violating environmental regulations.” Last year, CNN delved into the company’s background and found “a history of red flags including more than $1 million in fines for environmental and tax violations.”

Recently, the International Boundary and Water Commission, a bilateral government body, sent Fisher a letter stating that the firm is in potential violation of the Rio Grande treaty for a private wall the company installed in southern Texas. Experts warn that the private wall the firm built, a mere 35 feet from the Rio Grande River, could collect debris and worsen flooding, which would have a devastating impact on the environment and surrounding communities.

Dozens of environmental, wildlife protection, and cultural and historic preservation laws were also waived for portions of the wall in Texas. A DHS press release states that the waiver is necessary to “ensure expeditious construction of approximately 15 miles of new border wall system.”

Are Party Politics Steering Wall Contracts?

Charges of party politics have also plagued the administration, with lucrative contracts going to companies that have contributed substantial money to Republican Party officials. This has opened several calls by lawmakers for independent investigations into allegations of “improper influence.”

The Daily Beast originally reported that, according to Federal Election Commission records, Barnard Construction, which also has received a wall contract, has “thrown a substantial amount of money to Republican politicians.” Barnard and its affiliate BFBC have now received contracts worth nearly $1 billion for wall construction projects along only 20 miles of the border.

After BFBC was awarded the $569 million contract in April, Senator Elizabeth Warren (D-MA) and Representative Bennie Thompson (D-MS) urged the acting inspector general of the Department of Defense to investigate the award and determine whether “federal procurement law may have been subverted in order to reward a political ally of the administration.”

As for Fisher Sand and Gravel, Tommy Fisher, CEO of Fisher Industries, has been touted several times by the Trump administration, even getting a shout out from the president himself on Fox News. He praised Fisher, stating that his company was “recommended strongly by a great new senator, as you know, Kevin Cramer. And they are real. But they have been bidding and so far they haven’t been meeting the bids. I thought they would.” Fisher appeared several times on Fox News, boasting that his company could build 234 miles of wall for $4.3 billion, compared to the $5.7 billion the Trump administration requested from Congress in 2019.

Still, at first, Fisher didn’t receive any of the wall contracts. After the initial wave of contracts was awarded in April 2019, Fisher filed a lawsuit against the federal government claiming that the Army Corps of Engineers “improperly excluded” them from the bidding process. Fisher would eventually end up spending $40 million of its own funds in order to make the case it was able to build the wall faster and cheaper than its competitors. The firm also worked with We Build The Wall, an organization whose team includes Trump allies Steve Bannon, Kris Kobach, and Erik Prince, to erect three miles of wall on private land along the Rio Grande River in Mission, Texas.

Fast-forward to December 2019, Fisher Industries landed a contract worth an estimated $400 million from the Army Corps of Engineers to construct border wall across Yuma County, Arizona. This sparked the Department of Defense inspector general’s office to launch an investigation into whether or not Fisher Industries engaged in “inappropriate influence” in the bidding process.

The debate about the need and cost of the wall will go on for decades to come, but one thing that we should all be able to agree upon is that oversight of the spending is crucial. POGO has long championed contracting reforms such as increased competition, accountability, and transparency. The administration must be open to oversight from executive branch watchdogs, Congress, and the general public at large. Taxpayers must be assured that if their money goes to building a wall, officials will keep public health, cost efficiency, the environment, and wildlife in mind. However, by waiving laws in an effort to speed up construction, it will be difficult for Congress to perform its constitutionally mandated check on the executive branch and to properly oversee the flow of money that is pouring into the construction of the wall.

Neil Gordon and Scott Amey contributed to this analysis.