Report | Nov. 12, 2021

Audit of the U.S. Army Corps of Engineers Border Infrastructure Contract (DODIG-2022-034)

Audit

Publicly Released: November 15, 2021

Objective

The objective of this audit was to determine whether the U.S. Army Corps of Engineers (USACE) solicited and awarded contract W912PL-20-C-0004 to design and build border infrastructure in accordance with Federal procurement laws and regulations. The audit included a review of the integrity of the procurement process and of whether there was inappropriate influence associated with contracting decisions.

 

Background

The Chairman of the U.S. House of Representatives Committee on Homeland Security sent a letter to the DoD Office of Inspector General (DoD OIG), seeking a review of the $400 million contract USACE awarded to Fisher Sand and Gravel Company (Fisher Sand and Gravel) to design and build border infrastructure in Yuma County, Arizona. The letter requested a review of the award to ensure that the bid met the solicitation standards and that USACE made the award in accordance with Federal procurement laws and regulations.

U.S. Customs and Border Protection requested USACE’s services to assist with the execution of its border infrastructure program. USACE’s mission is to deliver vital public and military engineering services, partnering in peace and war to strengthen our Nation’s security, energize the economy, and reduce risks from disasters. USACE’s contracting office provides comprehensive contracting and acquisition solutions in times of peace, war, and disaster for USACE and its national and global partners. USACE accepted the request to support the border infrastructure.

USACE established three prequalified sources lists to assist with the execution of U.S. Customs and Border Protection’s border infrastructure program. USACE posted an announcement to create Prequalified Sources List 3 for horizontal construction contracts for southwestern border security and immigration enforcement improvements. USACE determined that five companies, including Fisher Sand and Gravel, met all of the evaluation criteria standards of acceptability based upon the comparison and placed them on Prequalified Sources List 3.

USACE solicited and awarded contract W912PL-20-C-0004 (Yuma 3 Project) using Prequalified Sources List 3. The Yuma 3 Project was for the construction of approximately 31 miles of 30-foot high new primary and secondary bollard walls, including gates, roads, drainage improvements, demolition and disposal, and fiber optic cables near Yuma, Arizona. The solicitation stated that the selection for award was determined using the Lowest Price Technically Acceptable (LPTA) procedures in accordance with the Federal Acquisition Regulation. The companies were required to submit both a non-price element proposal and a price proposal. The non-price element proposal included an executive summary, past performance, a small business participation plan, and commitment letters.

 

Finding

USACE contracting officials properly awarded contract W912PL-20-C-0004 (Yuma 3 Project) to Fisher Sand and Gravel. Specifically, USACE contracting officials solicited and awarded the Yuma 3 Project contract to design and build border infrastructure in accordance with Federal procurement laws and regulations. We reviewed Fisher Sand and Gravel’s proposal, compared it to the solicitation, and agreed with USACE’s assessment that it was the LPTA and was properly awarded the contract.

Additionally, USACE officials testified that there was no undue influence, and none of the information and documents reviewed by the DoD OIG provided evidence that there was undue influence from the White House or Members of Congress that affected the award of the Yuma 3 Project contract to Fisher Sand and Gravel. However, as a condition for us to interview certain USACE employees, the White House Counsel’s Office insisted that DoD Office of General Counsel attorneys attend in order to instruct witnesses on whether to answer our questions. For 6 of the 13 USACE witnesses, the DoD Office of General Counsel attorney instructed them not to answer our specific questions about communications between the White House and senior USACE officials, including not only the substance of the communications but the fact that those communications occurred. Because we were unable to ask followup questions or further explore matters relating to any White House communications, we are unable to substantiate or refute these interviewee assertions. In this report, we recount the interviewees’ assertions that any White House communications did not unduly influence the procurement and the specific questions that they were prohibited from answering. In addition, the USACE employees who solicited and awarded the Yuma 3 Project contract answered all the under oath questions and testified that they were not influenced by the White House, Members of Congress, or senior USACE officials during the solicitation and award of the Yuma 3 Project contract. Although the DoD OGC attorneys, on behalf of the White House Counsel’s Office, would not allow 6 of the key USACE officials to answer our questions about White House communications regarding the contract, we were able to review the e-mails of all 13 key USACE employees. We did not find any evidence in these e-mails of undue influence on the USACE employees that awarded the Yuma 3 Project contract in these key officials’ e-mails.

This report is a result of Project No. D2020-D000AT-0055.000.