Watchdog: Army Corps of Engineers Should Reevaluate Border Contracting Strategies 

A government watchdog recently suggested the Army Corps of Engineers reevaluate its acquisition processes, after reviewing how the agency issued contracts for construction on the U.S.-Mexico border wall during the Trump administration. 

The Army Corps of Engineers obligated $10.7 billion from fiscal years 2018 to 2020 to support “border barrier efforts” ($10.6 billion of which went to construction contracts), following then-President Trump’s declaration of a national emergency at the border in February 2019. The declaration––issued upon Trump signing the fiscal 2019 spending bill into law, ending the 35-day partial government shutdown that stemmed from border funding disagreements––was to redirect military funds to building the border wall.

“Some Department of Defense funding was only available for a short time before expiring, giving the Corps a tight schedule for awarding contracts,” said the Government Accountability Office in a report published on June 17. “This—and the emergency declaration—led the Corps to depart from its planned acquisition approach,” launched at the beginning of the Trump administration in 2017. Therefore, “the Corps focused on starting construction quickly and maximizing the miles of border barrier panels it could build” and to do so, it granted $4.3 billion in noncompetitive contracts and awarded several contracts before finalizing the terms.

Overall, everything the Army Corps of Engineers did was “permissible;” however, it awarded “a substantial amount of money through contracting approaches that may carry more risk,” GAO said. Competition helps the government get a good price and when contract provisions, such as prices and other specifications, are not defined, contractors have fewer incentives to control their costs, said GAO.

Another flexibility the Trump administration used to speed up the construction process was waiving environmental and real estate reviews, GAO reported. “[Army Corps of Engineers] project management officials said that while the environment review requirements were waived, they took steps to substantively address the requirements using best management practices,” said the report. However, “we did not assess these steps as part of our review.”

As a result of the review, the watchdog recommended the Army Corps of Engineers “reassess” its acquisition strategy for border construction projects going forward and identify lessons learned from this situation. The Army Corps of Engineers agreed. 

Robert Miceli and Brig. Gen. Richard Heitkamp, deputy director of contracting and deputy commander, respectively, said the agency “takes the GAO recommendation seriously and is considering creating additional tools for emergency response.” 

They pointed out the Army Corps “currently has tools for the more constant, ‘predictable’ emergency responses such as hurricanes and similar natural disasters.” Whereas, the “unpredictable, largely undefined, unusual and compelling emergencies such as the presidential declaration of emergency cited above ... are more difficult to preposition contracts with the capacity and expertise needed to be responsive,” they wrote. 

GAO said that about 87% of the $10.6 billion in contract obligations went to four companies––Fisher Sand and Gravel Company, Southwest Valley Constructors Company, SLSCO Limited Company and BFBC Limited Liability Company.

ProPublica and The Texas Tribune reported last October that top officials at these companies have been frequent donors to Republican political candidates and some of the companies have had extensive safety violations from the Occupational Safety and Health Administration. 

The Pentagon inspector general took up a review in December 2019 of how Fisher Sand and Gravel Company received one of its contracts, as requested by a top House Democrat who cited possible improper influence. 

The Pentagon IG said in December 2020 that the Defense Department was slow-walking its requests for information, Bloomberg reported. The IG office told Government Executive on Monday that the review is ongoing. 

Besides the Defense Department, the Army Corps of Engineers “has a long-standing role as the design and construction agent supporting [Customs and Border Protection’s] border barrier activities,” said GAO.  

The Homeland Security IG office told Government Executive on Monday it doesn’t have any ongoing projects currently regarding the border wall, but flagged a report it issued in July 2020 titled, “CBP Has Not Demonstrated Acquisition Capabilities Needed to Secure the Southern Border.” 

Right after coming into office the Biden administration paused construction on the border wall and at the time, the Army Corps of Engineers had built about 450 miles of border barriers; however, about 15% of these miles had finished wall systems. 

A few days before this report came out, GAO issued a legal determination on whether or not the Biden administration’s decision to freeze construction of a border wall between the United States and Mexico violated the Impoundment Control Act. GAO said the pause was for “programmatic delays, not impoundments,” unlike the Trump administration's handling of the Ukraine funding in 2019 that led to Trump’s first impeachment in the House.