On Friday, February 24, 2017, the Department of Homeland Security, Customs and Border Protection published a presolicitation notice announcing its intent to issue a solicitation “for the design and build of several prototype wall structures in the vicinity of the United States border with Mexico.” At least on the government procurement front, this notice marks the most concrete indication of the federal government’s intent to construct a wall along the U.S. border with Mexico.
The notice — issued under Solicitation No. 2017-JC-RT-0001 — indicates that the resultant contracts will be for the design and build of “prototype wall structures,” suggesting that the Government may not yet be asking for the design and build of the wall itself. And while the notice is only one paragraph long, it is noteworthy in several respects.
As an initial matter, the notice sets out a dizzyingly fast timeline for the procurement:
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March 6, 2017: solicitation anticipated to issue
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March 10, 2017: “vendors to submit a concept paper of their prototype(s)”
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March 20, 2017: “evaluation and down select of offerors”
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March 24, 2017: remaining offerors “to submit proposals in response to the full RFP,” including price
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Mid-April 2017: “Multiple awards . . . contemplated”
Even considering the Government’s desire to take rapid action, it is difficult to see how contractors, or government personnel, will be able to comply with these incredibly tight turnarounds or if working at this pace for a project of this magnitude is in the ultimate interest of the country. In addition, no specific funds have yet been appropriated for this project, meaning that it is unclear how the federal government plans to pay for the work that, presumably, it intends to commence shortly after awards in mid-April.
Beyond timing and funding, many other questions remain that will hopefully be answered when the full solicitation is issued, including:
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How prototypes will be evaluated in light of the variety of terrains and concerns at different areas of the border.
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How potential domestic sourcing preferences may be incorporated — if at all — at this stage of the project, as such requirements have the potential to impact costs, supply chain, and design, among other things.
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How pricing will be evaluated at this stage of the process and how costs will be taken into account in the project as a whole, in light of the broad range of estimated costs that have been reported by various sources.
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How the option periods mentioned in the notice will operate — the notice states that “[a]n option for additional miles may be included in each contract award,” although the need for “additional miles” of wall at the conceptual stage of the work is not evident.
Contractors and non-contractors alike will be keeping a close eye on this procurement and marking their calendars for March 6 in the hopes that their many questions will be answered.
© 2017 Covington & Burling LLP
