Government contracting laws exist for a reason — and generally speaking, that reason is not to cut corners. But the Trump administration is pulling out all the stops to come through on one of his biggest campaign promises, i.e. building the border wall. Trump has already torn up environmental laws and destroyed sacred Native American property in order to do it, so why not contract law?
The real question is, can the administration get away with waiving these laws? Is there precedent for doing so?
According to the Department of Homeland Security, the waived laws will allow the administration to build approximately 177 miles of wall through Arizona, California, New Mexico, and Texas. Ten laws are being set aside, in total. One of those waived laws nixes a competition clause. Another removes the opportunity for losing bidders to protest who the contract actually goes to.
While there is not broad precedent for the waiving of such laws, it is technically legal. A 2005 law allows Homeland to bypass certain laws, but only in situations requiring increased border security — such as, say, an emergency border wall. Looks like Trump’s executive order came in handy for a reason different than advertised!
This is the first time that laws have been waived in relation to federal procurement regulation. Historically, they have only been used when removing the requirement for an environmental impact review (which, as we know, is something else that Trump likes to do).
Homeland Security Secretary Chad Wolf said, “We hope that will accelerate some of the construction that’s going along the southwest border.”
Homeland spokespeople said, “Under the president’s leadership, we are building more wall, faster than ever before.”
Professor Charles Tiefer at the University of Baltimore School of Law said that this is a path that allows government officials to “just pick the contractor [they] want and [they] just ram it through … The sky’s the limit on what they bill.”
And indeed, that’s the question now. The waived laws allow the Trump administration to push the construction faster, but it will almost certainly cost more. General Counselor Scott Amey at the Project on Government Oversight said that the waiving is “equivalent to buying a car without seeing a sticker price. This could be a recipe for shoddy work and paying a much higher price than they should.”
For a president who has been all about relaxing regulations, this probably won’t come as much of a surprise. Trump is great for business — but only some businesses see those benefits, and taxpayers certainly don’t see any at all.