Last week, we reported that the Department of Homeland Security, Customs and Border Protection (CBP) had 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.”  On Friday, March 3, CBP amended that notice “to provide additional information to interested bidders” and address “a revision in strategy.”  The revised solicitation includes several significant changes that will be of interest to contractors and other observers.    

To begin, the amended notice provides more information about the actual requirements that CBP anticipates including in the solicitation.  According to the notice, CBP expects to request a design for a concrete structure, approximately thirty feet in height, which “will meet requirements for aesthetics, anti-climbing, and resistance to tampering or damage.”

The amended notice now explicitly invokes the “Two Phase Design Build Procedures” under FAR 36.3.  It also provides a revised timeline for the procurement allowing more time, for proposal preparation and evaluation:

  • On or about March 8, 2017: solicitation anticipated to issue
  • March 20, 2017: “vendors to submit a concept paper of their prototype which will result in the evaluation and down select of offerors”
  • On or about May 3, 2017: “down select of phase 1 offerors to submit proposals in response to the full RFP, including pricing”

Consistent with the original notice, the amendment states that CBP will likely issue multiple award Indefinite Delivery Indefinite Quantity contracts and provide options for additional miles of wall.

Indeed, the notice now explains that, although the procurement will “provide some initial construction of some wall segments,” it “is not intended as the vehicle for the procurement of the total wall solution for the border with Mexico,” perhaps in part because funding for the entire project has not yet been appropriated.  This statement signals that another solicitation will likely follow the one announced last week.

A number of questions raised in our previous post remain, and will hopefully be answered in the next few days in the full solicitation.  Observers also should keep watch for a subsequent solicitation at some point in the future that will address the completion of the border wall.

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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.

Andrew Guy

Andrew Guy is an associate in the firm’s Washington, DC office. He is a member of the Government Contracts practice group.