KEVIN CRAMER couneres NORTH OaxoTA ARMED SERVICES BANKING, HOUSING, AND URBAN AFFAIRS SumTE 400 ‘THE BUDGET vee tn WMnited States Senate ENVIRONMENT AND PUBLIC WORKS 202-224-2048 VETERANS” AFFAIRS December 6, 2019 ‘The President 1600 Pennsylvania Ave NW Washington, DC, 20500 Dear Mr, President: ‘Thank you for your unwavering commitment to border security. Since entering office, you have taken numerous steps to ensure the American people receive the border wall they were promised. You have kept the fight in the face of unprecedented obstruction by Democrats and implemented necessary measures to ensure the border wall is adequately funded, On August 27, 2019, I had the opportunity to visit our southern border and tour the barrier systems near El Paso, TX. On this trip, Customs and Border Protection (CBP) officers made it very clear your work is making a tremendous difference—both in the funding you have allocated for the border wall and in your work with the Mexican government to ensure they do their part in reducing illegal crossings. Your actions have dramatically reduced drug and human trafficking and decisively supported the brave men and women of CBP who risk their lives to keep our country safe. In March of this year, I came to you with concems that the border wall procurement process, conducted by the U.S. Army Corps of Engineers (USACE), was egregiously slow, rigged (in that it favored the same small group of contractors), and failed to properly steward the taxpayers’ money. Later in June, after further investigation into the contracting process, I spoke with you again to express my frustration with the USACE, In response to my concems you instructed me to “get in the weeds with General Semonite (the Chief of Engineers and Commanding General of the USACE)” to better understand the border wall contracting process and investigate any substantive needs for reform. Per your direction, over the past five months I have spent many hours with officials from the USACE, the Department of Homeland Security (DHS), the Army, and the Senate Armed Services Committee (SASC), discussing the border wall procurement process and reviewing procurement documents. As a result of this investigation, I have compiled the attached findings and recommendations for your review. I appreciate your attention to these issues that threaten the security of our southern border and am happy to provide additional information on these findings to you and your staff. | should note, though there is much that still needs to be reformed, since I began this review I have found many ways in which DHS and the USACE have improved their processes, The USACE is increasingly considering price as a competitive factor when they are reviewing bids and appear to be developing an understanding of the true value of innovation. Additionally,although he is not a permanent appointee, Acting Secretary of Homeland Security Chad Wolf has proven to be actively engaged in border wall construction. Furthermore, your appointment of Jared Kushner to oversee border wall construction from the White House is a positive step in ensuring the project is efficiently managed and moving at the proper pace. ‘Though it is happening slowly, I am pleased to see DHS and the USACE accelerate their rate of construction to meet your goal of 450 miles of border wall by the end of next year. I believe with the following reforms we will be well on our way to not only meet, but exceed, this goal. Thank you for your leadership on this issue. I will to do everything I can to support your work to fulfill your promises to the American people. Sincerely, K€vin Cramer United States SenatorFindings and Recommendation: 1 The USACE's procurement process fails to foster competition, particularly when it comes 10 price and schedule. It is highly concerning the USACE is willing to commit billions of taxpayer dollars with no reference to the price of the product and timeline for completion. The USACE must continue to take steps to ensure price and schedule are competitive factors in their contracting process. In my review, I found that the USACE commonly operates under Federal Acquisition Regulation 36.3, which authorizes them to use a iwo-phase design-build procurement process. In the first round of this process, a small number of contractors (hand-selected by the USACE) are invited to submit design proposals which do not include information on the estimated price of the job or timeline for completion. The USACE is authorized to then allow multiple qualified contractors into the second round of bidding in which price and schedule are considered. However, though they are authorized to do so, in many of the bids I reviewed the USACE typically chose just one contractor. Thus, through limiting the number of contractors who were allowed to bid in round one and only allowing one contractor into the price-sensitive round two, the Corps turned this process into, at best, a competitive process that had no reference to price or schedule, and, at ‘worst, a de-facto sole-source procurement. Their rationale for such a process was also concerning. The USACE argued that any price considerations would have required a land survey, which would have been too onerous for a contractor to conduct during the bid process and, given the expedited manner in which they are attempting to procure the border wall, would have taken too long. However, when asked how they knew they were getting a fair price, the USACE asserted they knew how much border barriers in specific areas typically cost. Asserting a price ean only be determined after a land survey, and yet arguing that one border wall costs is contradictory. More than this, it easily creates cost inflation as the USACE uses past jobs that were noncompetitive on price as their data points to determine a fair price for future projects. Worse yet, this did little to expedite the border wall contracting process as it resulted in long negotiations over price and schedule, completion dates that were multiple years into the future, and bid protests over the pure illogic of their process. With this critical infrastructure project where every dollar translates into a more secure border and the fulfillment of a promise to the American people, we must ensure the taxpayers are receiving the best bang for their buck. To this end, the USACE ought to make all border wall bids competitive based on price and schedule, The USACE set up a procurement process that disfavors new entrants and innovators, The USACE must ensure their process is not rigged (intentionally or unintentionally) to guarantee contracts for prior awardees. In many requests for proposals, the USACE placed a high priority on “recent and relevant experience.” Regrettably, because such experience was so narrowly defined, it prohibitednew entrants into the market from competing for a contract. In scoring one contractor, the USACE noted the bidder’s impressive private sector experience with far more complex projects than what was required at the border. However, the USACE gave this bidder a less than satisfactory mark in the heavily weighted “recent and relevant experience” category, stating, “All examples demonstrate expertise in transportation and bridge related work, with no experience in border wall construetion.” The USACE failing to recognize a bidder’s experience unless it occurred on the border is akin to soliciting bids for a porch remodel and passing over a competitively priced and experienced homebuilder because they lack “porch remodeling experience.” Ultimately, it is not unreasonable for the USACE to value past experience, but limiting such experience to border wall construction passes over highly qualified contractors and creates a revolving door in which the only bidders who receive a contract are those who have been awarded one in the past. More than this, because the USACE is not in the business of procuring innovation, they miss numerous opportunities to save taxpayer money and increase the longevity and utility of the border wall. On numerous scoring sheets, the USACE praised certain bidders for innovative ideas yet ultimately penalized them for these innovations because they represented “risk.” Worse yet, some companies had demonstrated their innovations; however, again because the innovations had not been demonstrated specifically on the border, the USACE considered them unreliable. DHS has abdicated authority for the border wall to the USACE, creating a situation in which those who patrol the wall have little say in its speed and manner of construction. DHS should exercise greater authority over this process or use their own contracting officers to procure the border wall. In speaking with multiple individuals at DHS, including CBP officers in the field, I found that DHS was interested in the possibility of innovation driving a lower cost and higher quality border wall. However, when expressing these same possibilities to the USACE, the reception was agnostic: it did not matter to them if someone could build a border wall quicker, cheaper, and with higher quality materials. The USACE only eared about procuring to DHS" technical specifications. This disconnect between those who patrol the wall and those who are reviewing contractor proposals and industry innovations has resulted in our nation receiving a less than optimal produet at a pace much slower than the current crisis demands. Additionally, the lack of consistent leadership at DHS and mechanisms for oversight have allowed the USACE’s mediocrity to persist, Under the current arrangement, DHS has no authority to correct, reprimand, or remove USACE contracting officers for poor performance, DHS needs real mechanisms for oversight and permanent leadership that is attentive to the issues plaguing border wall construction. Additionally, the White House needs a designated individual to manage the project and ensure that it does not continue to be bogged down in the excessive federal bureaucracy.Given the current crisis, now is the time for efficiency, productivity, and a sense of urgency, not a complex system of coordination between bureaucracies.' The USACE. should either radically improve their performance or step out of the way and let DHS procure the border wall directly. Many bureaucrats at DHS claim it is impossible or nearly illegal for them to procure border wall without the use of the USACE, however DHS js well within their current authority to procure border barriers and technology themselves. Though the USACE may be needed to help acquire land, having DHS handle border wall procurement would give those closest to the crisis greater authority over the procurement and construction process. Additionally, given the amount of wall that still needs to be built there is a long-term benefit in DHS using their own contracting officers to award and manage these projects. 4. The USACE failed to meet the most basic standards of good faith cooperation in my efforts to provide proper congressional oversight. We must continue to work to drain the swamp and ensure our country is not run by unelected bureaucrats who, empowered by the media, obstruct your agenda My first request for information was sent to the USACE on May 6, 2019. Only after six months, multiple meetings with Department of Defense and USACE leadership, and engagement from the Senate Armed Services Committee (SASC) were the requested documents provided. Additionally, during my inquiry into the procurement process, my personal email exchanges and meeting schedules with the USACE and DHS were leaked to CNN and the Washington Post. Taking over half a year to respond to my inquiries was egregious, but leaking a Senator’s emails to the media in retaliation to a genuine request for information exposed the lengths the bureaucracy is willing to go to protect their corrupt processes. * Southwest Border Migration FY2019, U.S. Customs and order Protection, November 14, 2019.