Slapdash bidding process revealed
Emails between builders, CBP chronicle confusion
SAN DIEGO – Construction workers synchronized the movements of two yellow cranes, creating a delicate dance between the machines as they hoisted a 30-foot-long concrete panel. The first crane lifted the panel off the bed of an 18-wheeler, while the second pulled it upright into position.
Workers repeated the process one last time to complete one prototype of what could become President Donald Trump’s border wall.
Nearby, on the fenced site a few yards from the U.S.-Mexico border, another set of workers laid the foundation for a competing border-wall design.
Crews, which were given 30 days to do the work, now have about a week left to finish building eight border-wall prototypes. As of Friday, workers had completed six.
Despite logistical challenges — given six crews hurriedly working in close quarters — U.S. Customs and Border Protection said construction has gone off without a hitch.
But behind that scene was the unusually confusing and haphazard process that hundreds of bidders faced as they tried to submit proposals in March and April to build these prototypes.
In response to a Freedom of Information Act request, the USA TODAY NETWORK obtained nearly 200 pages of emails sent to and from a CBP email address that was set up in March for companies to ask questions about the bidding process. They chronicle continuous confusion over the most basic details of the process — deadlines, page counts, how to submit bids, where to submit bids and so on.
Government officials wanted all proposals submitted in 12 days. During that time, they added seven amendments to their original requests for proposals — which were already more than 130 pages — containing hundreds of answers to questions. Then, with hours before the deadline, they decided to give companies another week to submit bids but still limited all proposals to 10 pages. Each winner would be awarded up to $300 million over the next five years.
“This shows me the government still does not know what they want, is still developing specifications and spending a great deal of money trying to figure out what they want to do,” said Patrick Malyszek, who runs a consulting firm for government contractors called M3 Federal and has more than 35 years of experience working with federal contracts. “The more questions you get is a direct indication that there is something wrong with the procurement relative to the design or expectations.”
Ultimately, six companies were chosen to build a total of eight border-wall prototypes. But experts and companies who submitted bids agreed — the border-wall bidding process was rushed, and qualified candidates may have been overlooked for the sake of speed. One company says it’s taking the government to court.
On March 17, two months after Donald Trump was sworn into office, the controversial rhetoric that fueled his campaign — “Build the wall” — became more than just words.
That’s when CBP publicly issued two requests for proposals to build prototypes for the border wall. Eighteen to 30 feet high and 30 feet long, the prototypes would be designed and built by a select few companies with the best bids and would inform the construction of the entire “big, beautiful wall” Trump promised along the 2,000-mile border.
Interested companies noticed issues right away. The initial request for proposals, or solicitation, was canceled an hour after it was posted online, and the link to the document outlining the request sent people to an error page. CBP then posted a short message containing spelling errors that seemed to only add to the confusion: “FBO is having& nb sp; problems with uploads-This solicitation& nb sp; will be posted as soon as the issues are resolved.”
In the next few hours, CBP issued three solicitations — two identical solicitations for a “Concrete Border Wall” and another called “Other Border Wall” that was for nonconcrete designs. It was unclear why two identical requests were sent to the public.
Each solicitation was 132 pages long, and the deadline wasn’t listed until the top of page 37: “Phase I Response Date: Responses to Phase 1 – Concept Papers/Qualifications Statements shall be received no later than 4 PM on March 29, 2017.”
That gave companies 12 days to submit their proposals, even though companies are typically given at least 30 days to bid on government projects, experts said.
As a part of standard procedure, CBP set up an email address and gave businesses five days to send in any questions they had about the solicitations. In that time, CBP received at least 48 emails containing 196 questions, many asking for basic information that, typically, is easily accessible on a government solicitation.
“Is this still the current deadline?”
“Please confirm if drawings of the Prototype are to be included in the 10 page limit ...”
“Would it be possible to get a one week extension?”
“Can you confirm that the Solicitation 2 file is the one we are to use?”
“Will the government please confirm that the due date stands at 4:00 Eastern?”
“Why were there two separate RFPs issued?”
“2nd request as no reply received. Pls advise where we can review the reply.”
“Is the submittal allowed in a PDF?”
“We respectfully request the 10 (ten) page limit to be increased.”
“None of our 12 questions we submitted were answered.”
Even after the deadline to submit questions, dozens more continued to roll in by email. On March 28, one day before proposals were due, CBP extended the deadline by a week, giving contractors until April 4.
In a five-day window from March 28 to April 1, CBP posted seven amendments attached to the original request to address the hundreds of questions it received, sometimes answering the same question more than once because companies were still unsure of the answer.
In the first amendment CBP posted, there were six questions about the 10page limit. In the third amendment, there were three more. In the fourth, another sixteen questions. Then two more in the fifth amendment and three in the sixth.
“It seemed more like an effort to get something done in a certain time frame and take credit for moving the border-wall idea along, and make good on a campaign promise, than on getting or soliciting ideas that may be in the best interest of government taxpayers,” said Scott Amey, general counsel for the watchdog nonprofit Project on Government Oversight.
“Having a rushed process is going to lead to some shortcuts by the federal government,” he added. “You may not end up with the best pool of vendors when you put something on the fast track.”
CBP spokesman Carlos Diaz said in a statement that given the “exceptionally high number of proposals,” the number of questions was “rather modest.”
“In fact many of the vendors who submitted proposals were new to the Federal Government procurement process,” he said. “CBP is committed to fair and open competition, and we are always interested in increasing the number of vendors to compete in that process.”
In emails to CBP, companies expressed frustration that the deadline and page limits didn’t give them enough time to describe their proposals and their work experience, which could put them at a disadvantage.
One emailer wrote: “[REDACTED] possess a solution which we believe will meet or exceed all of the project requirements and utilize existing systems. However, given the inherent risks associated with the complex nature of the proposed barrier structure, i.e. geographic features and the politically contentious design build program. Our group of companies [REDACTED] do hereby respectfully request an extension of 7 calendar days in order to responsibly respond to the subject line RFP.” The names and companies listed on emails obtained by USA TODAY were redacted.
For a project of this
“They could’ve gotten more qualified contractors and probably a lot better pricing, too.”
scope, these page limits and short deadlines were “not reasonable ,” said Malyszek, the government contract consultant. The proposals submitted with these constraints couldn’t give CBP a full understanding of what each company was capable of, Malyszek said, which could have led CBP to choose less qualified businesses over more qualified ones to build the prototypes.
“You don’t have enough to review costs, past performance and no way to verify the work can be done by that contractor,” he said. “They could’ve gotten more qualified contractors and probably a lot better pricing, too.”
Three of the six companies selected to build prototypes have federal government contracting experience, primarily involving the Department of Defense. However, only one, Arizona-based KWR Construction, has done work on or near the U.S.-Mexico border — a qualification CBP said it wanted but was not required.
Separately, four of the companies have been fined amounts ranging from $34,000 to $3.1 million by the federal government over the past decade for worker-safety or environmental violations, or to settle lawsuits, according to the non-profit Good Jobs First.
CBP’s bidding restrictions also could have prevented small businesses from applying, since they wouldn’t have the manpower to submit proposals quickly enough.
“Twelve days would almost exclude small business,” said Joe Breen, owner of Breen Consulting Group, which consults with companies on obtaining federal contracts. “That’s why companies hire us. Small business typically wouldn’t have the infrastructure in place to respond that quickly.”
Diaz from CBP said both small and large companies submitted proposals and that vendors were “given a reasonable amount of time” to send in their bids.
But some companies pointed to other requirements in CBP’s proposals and emailed the federal agency to complain that their solicitations were unfair.
“The requirement that the Lead Designer be registered/licensed in California is another example of an unfair competitive advantage for firms located or operating in very specific locations,” one person said in an email to CBP. “Fairness demands that such requirements be eliminated or, at least, made competitively neutral.”
Companies raised various concerns about building prototypes in California — for one, border-wall prototypes built in San Diego may look very different than a wall built on the rocky terrain covering much of the U.S.-Mexico border. Companies also questioned why they would build in California considering the higher wages they would have to pay their employees and the long distances they would need to transport building materials to get there.
One company told CBP that “both solicitations include several inherently biased and extremely uncompetitive provisions. Most notably are what could be called Californiacentric provisions.”
The company requested that CBP move the location of prototype construction to another portion of the border. CBP denied that request, but in the end, none of the six companies chosen to build prototypes were based in California. The state threatened to blacklist any companies that entered a bid.
Portions of the border wall that were built under previous administrations didn’t go through a bidding process like this one, experts and businesses agreed.
In 2006, then-President George W. Bush signed the Secure Fence Act to construct hundreds of miles of fencing along the U.S.-Mexico border. The Department of Homeland Security completed about 649 miles of fencing through 2011.
Back then, the process of awarding contracts and constructing fences was slower and clearer.
“I think this is substantially different than the Secure Fence Act contract,” said Laura Peterson, an investigator with Project on Government Oversight, who was on the staff of the Senate Homeland Security and Governmental Affairs Committee from 2013-15. “It’s on a much more compressed timeline, but yet does not have as many technical specifications included in the contracts as previous iterations of the wall and it’s happening under a lot of political controversy and scrutiny.”
Secure Fence Act construction was overseen with the help of the Army Corps of Engineers, a federal agency founded in 1802 with a long history of leading infrastructure projects. But this time, CBP is the only agency running Trump’s borderwall project, and bidders have questioned why that is.
“This is not a normal piece of construction. This is epic — this is the biggest piece of construction on the planet,” said Michael Evangelista-Ysasaga, CEO of the Penna Group, which submitted two border-wall proposals. “The Corps is filled top to bottom with engineers. They’ve done projects really close to this in magnitude and scope ... I know Army Corps of Engineers would’ve never made the same mistakes or succumbed to political pressure.”
The Penna Group filed a protest with the U.S. Government Accountability Office arguing they were eliminated on an unfair technicality. Instead of signing all seven amendments when submitting its bid, Evangelista-Ysasaga said, the company only signed the seventh amendment, which was supposed to incorporate the others.
The GAO dismissed that protest, but Evangelista-Ysasaga says his company is going to sue the federal government for the money he thinks it would have received if it were awarded the contract — a total of $60 million.
The Penna Group invested thousands of dollars in their proposals. The company built a small sample wall — a meshed fencing design with a seal of the U.S. at the top — and had an expert welder test its durability. The government asked for wall prototypes to withstand an hour of pressure from cutting tools. It took two hours and four minutes for the expert to cut a square 12 inches wide.
Evangelista-Ysasaga is confident his company would have been awarded a contract, but CBP officials told him they never looked at his proposals.
“The bid process was so rushed, so many people were turning in bids that they had to find a way to eliminate people, and unfortunately we got caught in the trap,” EvangelistaYsasaga said. “For us, it’s really disappointing that the Border Patrol used this mechanism to eliminate contractors and quite frankly they were wrong.”
In San Diego, Border Patrol Agent Theron Francisco watched last week as crews continued their work on the prototypes.
“It’d be a great tool to have,” he said of the wall designs. But he wasn’t focused on who might be building them, just that they get built.
A few yards from the construction site, Vietnam War-era landing mats currently mark the border, stretching as far as the eye can see.
“They can jump over the wall pretty quickly, and climb right over it,” he said of the rusted landing-mat fence. “The addition of these new prototypes would greatly deter that. It wouldn’t be as easy to jump up a 30-foot wall.”