President Trump’s declaration of a national emergency to fund the construction of a border wall could open the possibility of circumventing a competitive bidding process to award a multibillion-dollar contract to a favored company, some government contracting experts warned Friday.
The most extreme scenario, contracting experts say, is one in which Trump flexes his presidential powers, channels his background as a real estate mogul, and selects a winner as if hosting “The Apprentice.”
“The president does have the prerogative to circumvent all of the competitive requirements by claiming a national emergency,” said D. Kent Goodger, a retired federal contracting officer. “He can go right to a favored source to build a fence.”
Trump on Friday justified his emergency declaration by broadly characterizing the migrants crossing the southern border as human traffickers and drug smugglers with criminal and gang ties.
“We’re talking about an invasion of our country,” Trump said.
Neither the administration — nor Customs and Border Protection and the U.S. Army Corps of Engineers, both of which oversaw previous contracts related to the border wall — has outlined what type of contracting process it will follow.
The emergency declaration, through which Trump hopes to direct more than $6 billion from military funds to new border barriers, is likely to be widely challenged in court, triggering a protracted legal battle.
Under normal circumstances, the government would seek bids from contractors and select winners based on the best value.
An emergency declaration gives Trump extraordinary flexibility — potentially at a high cost to taxpayers if he bypasses the traditional processes, experts said.
Charles Tiefer, a law professor at the University of Baltimore and an expert in government contracting, said Trump’s background in private construction and real estate may make him impatient with the government contracting process.
“The more he thinks of himself as the master builder and flexes his muscles, the less competition and the less wisdom in the choice of the contractor,” Tiefer said.
“The strong tradition among Democratic and Republican administrations alike is to compete contracts to get the best value. They compete even defense contracts. They don’t say, ‘It’s military, so rush it through the competition,’ ” Tiefer added. “But the emergency declaration has a sense of haste, and haste makes waste in contracting.”
If Trump is willing to take more time, he could open bidding to companies that have already won contracts related to the wall.
These include the firms that successfully competed to build the prototypes of Trump’s wall in San Diego or carry out repair work to existing fencing, experts say.
Six companies were awarded contracts in 2017 to build prototypes of Trump’s wall, the first step in fulfilling the president’s campaign promise of building a “big, beautiful” concrete wall stretching along the 2,000-mile U.S.-Mexico border.
The winning companies range from a small, Hispanic-owned firm in Arizona to a defense manufacturer owned by the state-run Israel Aerospace Industries.
At least four additional companies were awarded contracts to replace existing fencing, build secondary barriers, and add gates, according to Customs and Border Protection.
Trump has since scaled back his vision. In December, he touted “artistically designed steel slats” instead of a solid barrier.
About 700 miles of fencing have already been constructed under previous administrations.
None of the 10 construction companies lauded on Customs and Border Protection’s website for winning border wall-related contracts had been awarded border wall construction contracts under previous administrations.
The six companies creating prototype walls were compensated between $365,000 and $664,000 for their designs, according to a database of federal contractors. Most have been marked for $300 million in potential total value in future wall contracts, according to a Washington Post analysis of data from the Federal Procurement Data System.
It remains unclear whether any of the 10 contractors would receive priority under Trump’s emergency declaration for the next construction phase.
Al Anderson, general manager of KWR Construction, which was chosen to build a wall prototype, said he has received no word from the government on how any future contracting process would play out.
“If this is truly a national emergency, then the Federal Acquisition Regulation has a provision where they can sole source to companies for urgent and compelling reasons,” Anderson said.
David Houseman, president of Houseman & Associates, a consulting firm focused on government acquisitions, said he does not expect the government to completely bypass competitive bidding under an emergency declaration.
The government can tap existing border wall contractors and place additional “task orders” for new wall construction — jobs the contractors would then compete for, Houseman said.
But other experts are skeptical that Trump would follow even that streamlined bidding route. He can simply move forward without any type of competition.
Ultimately, it is up to Trump.
“I don’t see President Trump submitting to congressional oversight about whether the way that is pursued has enough competition,” Tiefer said. “Once he declares a national emergency, he calls the tune about how the wall is built.”