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:

  • March 6, 2017: solicitation anticipated to issue
  • March 10, 2017: “vendors to submit a concept paper of their prototype(s)”
  • March 20, 2017: “evaluation and down select of offerors”
  • March 24, 2017: remaining offerors “to submit proposals in response to the full RFP,” including price
  • 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:

  • How prototypes will be evaluated in light of the variety of terrains and concerns at different areas of the border.
  • 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.
  • 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.
  • 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.

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Photo of Jennifer Plitsch Jennifer Plitsch

Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.

She…

Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.

She has particular expertise in advising clients on intellectual property and data rights issues under the Federal Acquisition Regulations (FAR) and obligations imposed by the Bayh-Dole Act, including march-in and substantial domestic manufacturing. Jen also has significant experience in negotiation and compliance under non-traditional government agreements including Other Transaction Authority agreements (OTAs), Cooperative Research and Development Agreements (CRADAs), Cooperative Agreements, Grants, and Small Business Innovation Research agreements.

For over 20 years, Jen’s practice has focused on advising clients in the pharmaceutical, biologics and medical device industry on all aspects of both commercial and non-commercial agreements with various government agencies including:

  • the Department of Veterans Affairs (VA);
  • the Department of Health and Human Services (HHS), including the Biomedical Advanced Research and Development Authority (BARDA), the National Institutes of Health (NIH), and the Centers for Disease Control (CDC);
  • the Department of Defense (DoD), including the Defense Threat Reduction Agency (DTRA), the Defense Advanced Research Projects Agency (DARPA), and the Joint Program Executive Office for Chemical Biological Defense (JPEO-CBRN); and
  • the U.S. Agency for International Development (USAID).

She regularly advises on the development, production, and supply to the government of vaccines and other medical countermeasures addressing threats such as COVID-19, Ebola, Zika, MERS-CoV, Smallpox, seasonal and pandemic influenza, tropical diseases, botulinum toxin, nerve agents, and radiation events. In addition, for commercial drugs, biologics, and medical devices, Jen advises on Federal Supply Schedule contracts, including the complex pricing requirements imposed on products under the Veterans Health Care Act, as well as on the obligations imposed by participation in the 340B Drug Pricing program.

Jen also has significant experience in domestic sourcing compliance under the Buy American Act (BAA) and the Trade Agreements Act (TAA), including regulatory analysis and comments, certifications, investigations, and disclosures (including under the Acetris decision and Biden Administration Executive Orders). She also advises on prevailing wage requirements, including those imposed through the Davis-Bacon Act and the Service Contract Labor Standards.

Photo of Kayleigh Scalzo Kayleigh Scalzo

Ranked by Chambers USA among government contracts practitioners, Kayleigh Scalzo represents government contractors in bid protests and other high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability…

Ranked by Chambers USA among government contracts practitioners, Kayleigh Scalzo represents government contractors in bid protests and other high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability Office, U.S. Court of Federal Claims, U.S. Court of Appeals for the Federal Circuit, FAA Office of Dispute Resolution for Acquisition, federal and state agencies, and state courts.

Kayleigh a co-chair of the American Bar Association Public Contract Law Section’s Bid Protest Committee. She is also a frequent speaker on bid protest issues.

Kayleigh maintains an active pro bono practice focused on immigration issues and gender rights.