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 is co-chair of the firm’s Government Contracts practice group. Her practice includes a wide range of contracting issues for large and small businesses in both defense and civilian contracting. Her practice involves advising clients on contract proposal, performance, and compliance questions…

Jennifer Plitsch is co-chair of the firm’s Government Contracts practice group. Her practice includes a wide range of contracting issues for large and small businesses in both defense and civilian contracting. Her practice involves advising clients on contract proposal, performance, and compliance questions as well as transactional and legislative issues. Her practice also includes bid protest and contract claims and appeals litigation before GAO, agency boards and the federal courts. Ms. Plitsch has particular expertise in advising clients in the pharmaceutical and biologics industry. She advises a range of pharmaceutical and biologics manufacturers on Federal Supply Schedule contracts, including the complex pricing requirements imposed on products under the Veterans Health Care Act, as well as research and development contracts and grants with various federal agencies. She also has significant experience advising on the requirements of various programs under which vaccine products and biodefense medical countermeasures are procured by the Government.

Photo of Kayleigh Scalzo Kayleigh Scalzo

Kayleigh Scalzo represents government contractors in 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…

Kayleigh Scalzo represents government contractors in 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, Port Authority of New York and New Jersey, federal and state agencies, and state courts. She is also a co-head of the firm’s Claims, Disputes, and Other Litigation Affinity Group within the Government Contracts practice.

Kayleigh has particular experience navigating state and local procurement matters at both ends of the contract lifecycle, including bid protests and termination matters. In recent years, she has advised and represented clients in connection with procurements in Alaska, Arizona, California, the District of Columbia, Illinois, Indiana, Kansas, New Jersey, New York, Pennsylvania, Tennessee, Texas, and Virginia.

Kayleigh is a frequent speaker on bid protest issues, including the unique challenges of protests in state and local jurisdictions.