Leaving aside the question of the appropriateness of building a border wall on the Mexican border (“the Wall”), should Congress ultimately allocate funding for the Wall, either all at once or incrementally, and assuming early estimates prove correct, the Wall could become one of the largest public works in American history. It is not surprising, therefore, that the Construction Industry has demonstrated a great interest in the project.
As is well known, one of the centerpieces of President Trump’s campaign for office was his promise to build a wall spanning the entirety of the United States’ southern border with Mexico.1 The nominee also trumpeted (no pun intended) the assertion that, since Mexico would be forced to pay for the wall, it would cost the American public nothing.
Status of Funding for the Wall
Based on the recent passage by Congress of its Omnibus Spending Bill, signed by the President on May 5, 2017, a substantial question remains, however, as to whether and when the wall will ever be built. As was reported by the media:
President Donald Trump on Friday [May 5, 2017] signed the omnibus spending bill to fund the government through Sept. 30, a White House spokeswoman said. The bipartisan, nearly $1.2 trillion measure comes after weeks of negotiations. The deal puts an additional $15 billion toward Trump's planned military buildup and $1.5 billion more for border security. * * *Democrats talked up how the deal lacks funding for a wall on the border with Mexico, and pointed out that it does not include much of the massive cuts to domestic programs that Trump wanted.2
Importantly, the President’s proposed budget asked Congress to pay what he termed a “down payment” on the wall of some $2.5 Billion, and not the entire cost of the Wall.3 Since, in the recent past, virtually all Federal budgets have been approved on the verge of averting Government shutdowns, it appears unlikely that any funding will be allocated to the Wall any time earlier than this September.
President Trump, who called the bipartisan passage of the omnibus spending bill, a "clear win for the American people,"4 has made little mention of the Administration’s failure of obtain any funding of the Wall.
It is well known that virtually all Democratic legislators are against funding the Wall as proposed5. Additionally, polling in April of 2017 revealed that, “[t]he public opposes new spending for the wall, 58 percent to 28 percent. Nearly half say they strongly oppose funding for the project.”6 Less known, but equally important, is that there are, apparently, a substantial number of Republican representatives, both fiscal conservatives, the so-called “Freedom Forum,” as well as a number of GOP members considered “moderate” who also have been vocal opponents of the Wall. This, of course, raises additional questions of whether the President’s Mexican Border Wall will ever be built.
What’s the Wall going to cost?
There has been considerable disagreement regarding what the likely cost of the Wall will be. As has been reported:
[President] Trump estimates that the wall can be built for a figure ranging from $8 billion to $12 billion, and his first budget requests up to $2.6 billion in fiscal 2018 toward planning, designing and building it. Congressional Republicans said they expect it would cost from $12 billion to $15 billion, based on what it cost to build existing border fencing. According to Reuters, an internal Department of Homeland Security report said the wall could cost up to $21.6 billion. Independent estimates have been much higher. A study published in the MIT Technology Review said a 1,000-mile wall would cost from $27 billion to $40 billion. The study estimated $8.7 billion for concrete, $4.6 billion for steel and labor costs at $14 billion to $27 billion. Separately, Bernstein Research calculated $15 billion to $25 billion for labor, land acquisition and construction costs.7
Indeed, as is discussed below, initial estimates from respondents to the Government’s RFPs have ranged as high as $38 Million.8
Progress on Design of the Wall
The Department of Homeland Security [DHS] has already initiated significant steps toward the development of the Wall’s design. On March 17, 2017 DHS issued two RFPs which sought prototypes of the Wall. On its website, the DHS described these RFPs as follows:
CBP [U.S. Customs and Border Protection] issued two RFPs to acquire multiple conceptual wall designs with the intent to construct multiple prototypes. Prototyping is an industry-tested approach to identify the best solution when considering a new product or methodology. Through the construction of prototypes, CBP will partner with industry to identify the best means and methods to construct border wall before making a more substantial investment in construction.
The prototypes will inform future design standard(s) which will likely continue to evolve to meet USBP’s requirements. Any and all prototypes will be designed to deter illegal entry into the United States. Through the prototyping process, CBP may identify new designs or influences for new designs that will expand the current border barrier toolkit that CBP will use to construct a border wall system. The border barrier toolkit is based on USBP’s requirements.9
Notably, within a week, more than 200 companies showed interest in responding to the RFP. While not all appeared either serious or qualified, a great number of inquiries were from significant design-build, transnational concerns.10
In addition, even some important Mexican companies demonstrated interest. The Mexican government, however, noted that there would likely be substantial approbation, if not formal sanctions, against any Mexican companies that actively participated in the procurement process.11
The basic specifications for the border wall, as found in the CBP’s RFPs are described as follows:
[One that] calls for a solid concrete wall, while the other asks for proposals for a see-through structure. Both require the wall to [be] sunk at least six feet into the ground and include 25- and 50-foot automated gates for pedestrians and vehicles. The proposed wall must also be built in a such a way that it would take at least an hour to cut through it with a “sledgehammer, car jack, pick axe, chisel, battery operated impact tools, battery operated cutting tools, Oxy/acetylene torch or other similar hand-held tools.12
Importantly, whatever the design, since the President has promised that the Wall will be “beautiful,” one of the key requirements is that the Wall must be “’aesthetically pleasing” (on the US-facing side).”13
These design proposals have now been made public.14 News articles have provided pictures of a wide variety of designs, fanciful, practical and sometimes in protest.15 They include ones “with solar panels, wire mesh and sloped, slippery surfaces. There are even walls that are no walls at all — statements standing instead as protests of a policy that from the start has drawn a lot of resistance. “16
The media reports that:
[T]he CBP plans to announce the finalists for the contract in June, at which point the companies still in the running would be expected to build a prototype roughly 30 feet long and anywhere from 18 to 30 feet tall. The AP notes the prototypes are expected to cost about $200,000 to $500,000 each; estimates for the cost of the wall covering the 2,000-mile border, however, range up to $38 billion.17
The RFP contemplates a whittling down of potential designers through a phased process to come up with an appropriate design.18 Assuming this process continues, until the designs are determined, there will not be a clear picture of the total costs will be.
The President has predicted that the Wall will be completed by 2022.19 Unless, however, there is a substantial change in the current thinking of Congress. this date appears to be highly optimistic. Moreover, there appears to be little evidence that Mexico can either be persuaded or coerced into paying for a wall that it has vehemently opposed.20
All that prospective contractors can do at this point is watch to see how events evolve—there appears significant uncertainty that this project will go forward in the way, and on the schedule that the President has envisioned. In light of the potential total cost, however, it may be that only a significantly pared down version of the Wall, in the end, will pass muster by the Congress.21 Moreover, other issues respecting the building of the Wall will also have to be addressed, including, environmental concerns,22 eminent domain issues,23 and Buy America matters, among others.24
According to DHS, it is seeking to settle initial contracts for prototypes only, and that there is a limited amount of money being spent toward that end. "The prototypes will advise the design of potential walls that could be considered for actual construction in the future," DHS said. "Any such future construction will require additional contract or task order action, as well as the availability of budget for that construction."25
The question remains as to whether Congress will provide a “budget for that construction.” As noted, the President, during his campaign repeatedly stated that Mexico would pay for the Wall. He repeated that assertion as recently as April 27, 2017, that Mexico would “eventually” pay for the Wall though “[Mexican] President Enrique Pena Nieto has repeated that Mexico will not pay for the wall.” If Congress will not appropriate a “budget for construction,” and Mexico will not pay for it, how can the wall be built?
20. Id., at n. 8. With regard to the possibility of using the forfeited assets of convicted Mexican drug cartel criminals, as has been pointed out, this would prove to be a rather time-consuming process. Moreover, according to one source, “The use of forfeited funds or property for a non-law enforcement entity to use, is unprecedented,”
Recognizing the effectiveness of physical barriers as a means of border control, Congress first mandated the construction of a border fence in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). IIRIRA called for the construction of a 14-mile, triple-layered fence along the boundary between San Diego and Tijuana.
By 2004, only nine miles of fencing were completed. Congress subsequently passed the Secure Fence Act of 2006. That legislation called for double-layered fencing along the border, augmented by manpower and technology, and directed the Secretary of Homeland security to construct “reinforced fencing along not fewer than 700 miles of the southwest border, in locations where fencing is deemed most practical and effective.” http://www.fairus.org/issue/the-current-state-of-the-border-fence
24. “Earlier this month, U.S. Customs and Border Protection announced a bidding contest to start building the wall, which Trump wants to stretch a thousand miles, perhaps up to 30 feet high. Buried in the bid notice is language that permits the purchase of non-American materials for any contract worth more than $10.1 million.