The U.S. Department of Homeland Security will publish in tomorrow’s Federal Register a notice that certain laws, regulations, and other legal requirements will be waived with respect to the construction of barriers and roads along the southern border with Mexico. The Acting Secretary is suspending a host of procurement laws under the authority of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended. The waivers only apply to specific work in specific areas and appear to have no end date. However, news coverage regarding the specific laws being suspended has so far been scant.
According to the pre-publication notice, the laws in question deal with procurement requirements, such as competitive bid processes, bond requirements, and small business opportunities. The Federal Acquisition Regulation requirements regarding labor laws for federal contractors, specifically the obligation to ensure nondiscrimination (the EO Clauses), are not suspended.
The notice specifies 11 authorities that will be suspended (citations as they appear in the draft notice):
- 10 U.S.C. 2304 and 10 U.S.C. § 2304c having to do with competition requirements;
- 10 U.S.C. 2306a prohibiting “cost-plus-a-percentage” contracts;
- 10 U.S.C. 2305(a)-(c) and (e)-(f) regarding planning, solicitation, evaluation, and award procedures;
- Section 813 of Public Law 114-328 (the Defense Authorization Act) regarding the use of lowest price technically acceptable source selection;
- 15 U.S.C. 657q regarding small business opportunity;
- 48 C.F.R. § 17.205 regarding documentation of special contracting methods;
- 48 C.F.R. 17.207 regarding the exercise of contract options;
- 10 U.S. C. 2305a(b)-(e) regarding two-phase selection procedures for design-build projects;
- 48 C.F.R. 22.404-5 prohibiting contract awards after the expiration of wage determinations; and
- 48 CFR 28.102-1(c) regarding bond requirements.
So, while the Acting Secretary’s actions will likely decrease transparency and make it easier for certain contractors to win bids, those contractors will be subject to the OFCCP’s regulations just like every other federal contracting organization.