The U.S. government procurement system should strive to maintain optimal results for the government and federal contractors, but not at the expense of humanity. Recent incidents where facility employees at multiple private immigration detention facilities across the country have committed labor rights and human rights abuses against non-citizens highlight the growing problem of a lack of accountability and transparency between immigration enforcement agencies and private companies. The non-citizens were able to file lawsuits in federal courts against the facilities, but much more needs to be done to address the issues before they arise, not after the abuses occurred. This Note will argue that the U.S. Code should be amended so that agencies involved in immigration detention shift away from entering into Intergovernmental Service Agreements with local and state governments for private detention facility contracts and instead engage in standard FAR Part 15 negotiated procurements. Once the shift has taken place, the agencies should ensure that they gather sufficient information on a company’s past performance or personnel management so that they can be confident that they are contracting with companies who value non-citizens’ rights. Together, these steps will significantly contribute to the ongoing fight in ending labor rights and human rights violations in the government procurement arena, keeping in mind that what is ultimately at stake is ensuring that non-citizens are treated how they should be: as humans.
On September 12, 2022, multiple individuals detained at both the Mesa Verde Detention Facility and Golden State Annex in California filed a complaint with the U.S. Department of Homeland Security’s (DHS) Office for Civil Rights and Civil Liberties regarding the facilities’ retaliation against the individuals for engaging in collective action. In their complaint, the individuals alleged that the detention facilities “plac[ed them] in solitary confinement, attempt[ed] to transfer them to out-of-state facilities, and issu[ed] write-ups to punish those individuals with loss of commissary” for engaging in actions such as labor strikes and filing formal complaints against facilities. The individuals engaged in these actions with the hope of improving their working conditions and their wages under the facilities’ voluntary work programs. Specifically, the complaint asked the facilities to raise the labor wages in the voluntary work programs to $15 dollars an hour to match California’s minimum wage. The individuals also asked the Office for Civil Rights and Civil Liberties to take corrective action against these facilities through thorough investigation of the facilities’ practices. The facilities are owned and operated by The GEO Group, a private prison company that contracts with Immigration and Customs Enforcement (ICE) regularly for immigration detention purposes.
While the results of the complaint, represented by the American Civil Liberties Union (ACLU), are still pending as of writing this Note, its filing comes off the back of two civil actions filed in federal courts centered around similar issues regarding wages and retaliation against non-citizens in detention facilities. In Nwauzor v. Geo Group, Inc., the plaintiffs, as part of a class action, sued The GEO Group, alleging that it “failed to comply with the State of Washington’s Minimum Wage Act (‘MWA’) regarding work performed by civil detainees at the Northwest Detention Center.” The jury in Nwauzor awarded the 10,000 plaintiffs $17.3 million dollars in damages for being “compelled to work for less than minimum wage.” Following the outcome in Nwauzor, non-citizens detained at the Stewart Detention Center in Lumpkin, Georgia, filed a claim in the Middle District of Georgia alleging that the facility violated the Trafficking Victims Protection Act (TVPA). The complaint alleged that “CoreCivic [(the contractor)] coerce[d] . . . detainees to perform labor at Stewart by, inter alia, the use or threatened use of serious harm, criminal prosecution, solitary confinement, and the withholding of basic necessities.” On appeal, the Eleventh Circuit held that the TVPA does apply to contractors, and plaintiffs are able to allege that CoreCivic violated labor laws through its retaliatory actions against the non-citizens at the Stewart facility.
These cases represent wins for non-citizens who suffer from mistreatment at the hands of private immigration detention facilities. These issues have even reached national importance, with multiple members of Congress proposing legislation in the House of Representatives that would allow non-citizens to file claims for wage violations committed by the facilities. However, judicially administered solutions to these problems seem unlikely to be a panacea in the long run because relying on the judiciary to mitigate issues surrounding reprisal against non-citizens may be practically unrealistic, as an increase in litigation could upset the overall judicial economy. Moreover, and perhaps most importantly, individuals who face severe mistreatment at the hands of these facilities may lack the resources necessary to file labor law and civil rights claims against the facilities.
The important questions that must be asked and answered, then, are two-fold. First, why are these particularly egregious labor and human rights abuses happening? Are they a bug or a feature of the U.S. government procurement system? Second, how can the arena of government procurement be modified so as to ensure that taxpayer dollars are not contributing to particularly egregious human and civil rights violations? The full answer to the first question is likely to be complicated and is ultimately outside the scope of this Note. However, this Note proposes that the answer to the second question is an amendment to the U.S. Code that shifts agencies’ procurement practices for detention facilities away from non-competitive agreements with state and local actors to Federal Acquisition Regulation (FAR) Part 15 negotiated procurements. Once that shift does occur, it is then up to ICE and DHS to ensure that they receive ample information from the contractors so as to not contract to the companies who commit the abuses seen in Mesa Verde and Golden State Annex.
This Note explores how reform to the government procurement process in the United States would mitigate issues regarding reprisal against non-citizens for their collective actions such as labor strikes, wage negotiations, and collective bargaining. Part II of this Note begins with a brief history of private immigration detention in the United States, followed by an exploration of how the solicitation process within the government procurement apparatus in the United States works. It concludes its background with a description of Intergovernmental Service Agreements (IGSA) and how ICE procures most of its detention contracts through IGSAs. Accordingly, Part III of this Note argues that to solve the issue of mistreatment of non-citizens in private detention facilities, the U.S. Code should be amended so that agencies shift their overall procurement practices for private immigration detention facilities away from IGSAs to FAR Part 15 negotiated procurements to encourage more administrative transparency and contractor accountability. After the agencies have shifted their procurement strategies, the agencies should include requirements in their solicitations that companies submit detailed past performance information about labor protocols as well as detailed plans that highlight how detention facility employees will refrain from retaliating against non-citizens for engaging in collective bargaining. These requirements will provide incentives to companies like The GEO Group and CoreCivic to ensure that they meet these heightened standards, so they retain their business with the U.S. government in the long run.
The following section will discuss how the government enters into contracts with private companies to meet its immigration policy needs. This section will also discuss the role IGSAs play in immigration detention and various issues that arise through the government’s use of IGSAs as a contracting vehicle.
Since the early 2000s, DHS and ICE’s demands for privately operated detention facility contracts have grown dramatically due to their emphasis on civil detention as a critical aspect of immigration policy. Non-citizens are detained in these facilities for a multitude of reasons that are not criminal, despite the detention resembling prison detention. For example, a non-citizen may be temporarily detained either before the formal removal proceedings begin or after an immigration judge orders them removed from the United States. In determining whether an individual should be detained or released, ICE “exercises its discretion in making custody determinations . . . primarily considering [a non-citizen’s] risk of flight, national security threat and risk to public safety.”
It should be noted that federal immigration policy changes from presidential administration to presidential administration. However, regardless of varying immigration policies between U.S. presidencies, and pursuant to statutory authority, agencies like DHS and ICE have spent millions of dollars placing the responsibility for non-citizen detention on private actors. The private immigration facility apparatus is now so large and so prevalent that, in 2019 alone, ICE oversaw 185 contracts for the development of detention facilities. Given how many private facilities exist in the United States, one can easily imagine the inhumane circumstances, like those described in the ACLU complaint regarding the Mesa Verde facility, happening all over the country. It is likely very difficult for ICE to maintain a fully clear picture of what occurs within these facilities given the sheer amount that exist and the number of personnel within them. For example, in 2016, the U.S. Government Accountability Office (GAO) released a report regarding medical care in private immigration detention facilities and concluded that, while ICE does engage in oversight activities generally, “their analyses do not cover all facilities [across the country].” The report also notes that “ICE has not fully assessed the results of [the] oversight mechanisms” that it uses, indicating clear evidence that it is unable to perform full and complete oversight on its own.
And while the 2016 GAO report covers medical conditions within the detention centers, there exist clear examples of ICE’s inability to execute full oversight over facilities that precipitate working condition and wage payment abuses against the non-citizens that they house. One such example occurred in 2015, where detainees at ICE’s privately owned facility in Aurora, Colorado sued The GEO Group for allegedly forcing them to clean their living quarters under the threat of solitary confinement if they did not comply. This case is another clear example of a challenge to ICE’s ability to fully supervise the operations of one of its private facilities. As will be explained, these challenges may only increase in frequency when the structure for procurement transparency and overall oversight is weak at its foundation.
The federal government very frequently seeks goods or services from private sources. When the federal government plans to purchase goods or services from private companies, it may issue a request for proposals (RFP) on a government-sponsored website, highlighting to those companies that it is looking to do business by entering into a contract with them. In that RFP, the government agency will explicitly lay out for the private company the specific requirements for completion of that contract. As part of its review of whether the companies’ proposals meet the RFP’s requirements, the government agency may rely on evaluation “factors” that help it rank and place value on any given proposal. This form of procurement is called “negotiated procurement” and is regulated by Part 15 of the FAR. In a negotiated procurement, the government agency can evaluate proposals that it receives from contractors on a “best-value continuum.”
This process means that for the procurement of private immigration detention facilities, ICE can assign weight to certain evaluation factors—such as past performance of the contractor or price of the proposal—and comparatively rank the contractors’ proposals accordingly. In other words, the agency can dictate which evaluation factors it believes are most important in deciding to whom to award a government contract. The agency then chooses the proposal that it believes would represent the best value to the government for the goods or services to be procured.
Specific to ICE’s use of private immigration detention facilities, the solicitation for the additional Port Isabel Detention facility management services in Los Fresnos, Texas, explains in an evaluation questionnaire that “Past Performance” is “an extremely important part of the evaluation criteria for this acquisition.” This questionnaire asks the recipient—a member of the federal government who has worked with the contractor before—questions about the contractor’s past successes and failures. The questionnaire also asks the recipient to rate the contractor’s management of “Key Personnel.” ICE would have used the answers to these questions in its evaluation of whether the contractor met its evaluation criteria and awarded the contract to the private company that, in part, met its selection criteria for successful past performance. Agencies can use these evaluation techniques to approximate with moderate certainty how well the contractor will be able to meet the government’s needs.
However, the majority of ICE’s contracts for private detention facilities come through IGSAs, not FAR Part 15 negotiated procurements. IGSAs are agreements between certain federal agencies—such as ICE and the Army, Navy, and Department of Defense (DoD)—whereby the federal agencies enter into agreements (or contracts) with the state or local governments for the procurement of services or goods. The federal agencies begin this process by working with the state or local officials to create the agreements. Once the agreements are finalized and approved, the state or local officials can then begin the subcontract procurement process. Under one of these agreements or contracts, the state or local government is responsible for securing its own subcontract with a private company that then works to meet the federal agency’s procurement needs through that subcontract.
In the context of immigration detention, ICE will determine that it needs facility space based on its non-citizen detention policy goals, coordinate with state or local officials about those goals, and then let those state or local officials carry the burden of contracting with a private detention facility. ICE has little to do by way of reviewing the contractor’s ability to perform the contracts successfully in these agreements, especially if the state or local officials have already contracted with the private company on previous occasions. This demonstrates that the procurement of IGSAs differs greatly from the procurement of negotiated procurement contracts. As will be discussed, IGSAs produce shortcuts for agencies when awarding contracts for private detention facilities. As discussed in the following section, these shortcuts necessarily cause several issues related to the performance of these contracts, and negatively impact the human beings who are involuntarily housed in these facilities.
ICE’s authority to enter into these agreements generally stems from the U.S. Code. These agreements offer ICE the cost benefits that they would otherwise face if they sought private contracts out themselves through ordinary procurement practices. This is partly because ICE does not have to spend money engaging in market or acquisition planning to create the solicitation. In periods where immigration rates are particularly high, ICE can rely on the legwork of the contracting states to perform the full procurement process on their own for the securing of these facilities. This outsourcing of the procurement process may allow them to funnel their monetary resources into achieving actual enforcement on the ground rather than spending money on awarding new contracts. Also, because state officials typically spend significantly fewer resources on immigration enforcement overall, this relationship is particularly beneficial to federal agencies such as ICE because the contracting for immigration enforcement becomes a state-held responsibility and not a federal one.
ICE is also not required to engage in the statutorily required competition process for these contracts, cutting down on the administrative burdens that it may normally face if it fully competes the detention facility contracts. The Competition in Contracting Act (CICA) requires federal agencies to “obtain full and open competition” when choosing which contracts to award to private companies. This requirement means that when an agency decides it wants to enter into a contract for a good or service, it is statutorily required to ensure that all businesses that are capable of meeting the agency’s needs can place their proposals with the agency for potential award. This process requires ample time—time that ICE may believe it does not have in order to properly meet its detention goals. However, ICE cannot simply choose a contractor for award without very narrow circumstances. To award to a single source, ICE would have to meet one of CICA’s exceptions to the “full and open” competition requirement. Despite the existence of these exceptions, CICA’s statutory preference is for agencies like ICE to engage in full and open competition. However, IGSAs afford the federal government a way around this CICA’s competition requirement and the exceptions to the requirement: ICE is not required to compete a detention facility contract as “full and open” before it enters into an IGSA because states are the government entities that perform the competition for the benefit of the federal government.
A common example of ICE circumventing CICA’s competition requirements happens when ICE enters into an IGSA with a state or county whereby ICE pays the state or county a certain amount of money to then pay a private contractor to maintain a privately owned detention facility throughout the contract’s lifecycle. In this case, ICE benefits from fewer administrative burdens—higher facility oversight and management—in place of a simple per-diem rate for the relevant state or county to manage the facility while still achieving its immigration detention policy goals. While fewer administrative burdens are a clear benefit to the U.S. government, this Note will explain that the lack of administrative oversight means IGSAs frequently create information and oversight issues.
This section will explain that while the federal government may prefer IGSAs for cost-saving reasons, IGSAs result in a lack of government accountability and information. As described, agencies such as ICE prefer entering into IGSAs over entering into private contracts because they offer the agencies fewer expenses and administrative burdens to deal with both throughout the solicitation process and throughout the lifecycle of the contract. This is particularly true during the solicitation process because, according to GAO, there is no statutory or regulatory requirement for ICE to fully compete their IGSA contracts. It naturally follows that, without these “full and open” competition requirements, ICE may not have to expend nearly as many monetary or personnel resources as it might have to in normal negotiated procurements, especially because the costs of the procurement would fall onto state and local administrators. In fact, as a 2021 GAO report noted, ICE officials believe that IGSAs offer the agency more benefits than private contracting because the agency is able to enter into IGSAs more quickly and with “less documentation.”
Serious issues arise, however, because of these agencies’ ability to circumvent ordinary procurement procedures. The 2021 GAO report pointed out that ICE’s Office of Acquisition Management routinely “perform[s] internet searches of [private] facilities to see if any alarming incidents have happened in the past” within those facilities. The report implies that internet searches of the relevant facilities may be the only method for ICE to gather information. In contrast, during a normal solicitation under a negotiated procurement, ICE is regulatorily required to review a facility’s entire past performance information. The report does mention that ICE’s acquisition officials tend to rely on its Enforcement and Removal Operations agents (EROs) to determine which additional requirements in the agreements are necessary based on local needs. However, this simply implies that ICE’s central acquisition officials do not perform significant research of their own accord.
In fact, the Center for American Progress (CAP), a public policy organization focused on improving American society through research and advocacy, has highlighted multiple examples of IGSA contracts for immigration detention facilities that are causing concern among the local citizens in towns where the facilities are located. A CAP article highlighted that certain localities, including in Adelanto, California, and Williamson County, Texas, are rescinding their previously held IGSAs with ICE because of local pressure from immigrant advocacy groups revealing the lack of accountability and transparency during the IGSA contracting process. The article even alludes to the notion that the push away from IGSAs in these towns is to ensure that ICE is contracting with facilities through normal procurement procedures as a stop-gap solution to accountability and transparency issues. This adds support to this Note’s argument that negotiated procurement might be a better approach to immigration enforcement overall because it might allow more opportunity for community oversight during the procurement process.
Insufficient information about a private detention facility’s management of its inmates is not only relevant when ICE is hoping to enter into an IGSA. IGSAs create situations where ICE officials lack sufficient supervision to ensure that human rights abuses do not occur. For example, the previously mentioned 2021 GAO report notes with concern that, due to shifting management structures and an emphasis on EROs managing facility contracts because they are local, “Field Office Directors may exclude [Contracting Officer representative(s)] from key conversations with facility operators.” In their work in the Harvard Civil Rights-Civil Liberties Review, Jennifer Chacón echoes GAO’s concerns and utilizes their research on immigration detention facilities to note that “privatization negatively affects accountability.” They explicitly note that research shows that “ICE lacks information about what is happening in private facilities because they do not have adequate monitoring systems for detainees within them.”
As additional evidence of this claim, a DHS Office of Inspector General (OIG) 2018 report revealed evidence that the OIG encountered one IGSA Contracting Officer in their investigation of IGSAs who did not maintain any documentation at all— because ICE does not have standard procedures for document organization—to support an awarded IGSA. That same 2018 OIG report highlights a troubling instance where ICE’s actions led to procurement improprieties with respect to one of its detention facilities. The report suggested that ICE engaged in improper behavior while operating under an IGSA in Eloy, Texas, by improperly modifying the agreement to include a facility over 900 miles away from Eloy for which it had little, if any, oversight. The IGSA system seems to allow this problem in many instances, as few, if any, mechanisms exist by which ICE can be held accountable for their improper behavior. Chacón argues that this lack of accountability and oversight are a feature of the system, not a bug, positing that ICE “has actually helped to create . . . non-transparent detention operations . . . .” Their argument certainly seems plausible when considering the evidence of contract mismanagement.
Therefore, this sheer lack of information required in IGSAs versus private contracting leaves open the possibility that ICE could choose facilities to work with who have committed egregious labor and human rights abuses such as those seen in Mesa Verde. An acquisition official’s “internet search” about prior incidents may not reveal any potential abuses and transgressions that do not make the news or are not part of a pending legal action. Migrants by the dozens could face reprisal for collective bargaining, and ICE’s contracting official could still reward the private company with a contract without fully understanding the gravity of their decision. It is difficult to ascertain whether ICE’s lack of information gathering is simply negligent, or due to ICE’s intentional indifference to the atrocities occurring. However, what is important is that effective solutions are implemented to ensure that human beings are not treated as though they are property that can be locked into solitary confinement with no recourse.
It is first important to acknowledge that the labor and human rights abuses that occurred at facilities such as Mesa Verde were the product of employee actions within a private detention center contracted through normal procurement practices, not through an IGSA. However, and as explained later in this Note, reform to the way that ICE procures its detention facilities contracts more generally would likely provide much needed preventative measures against future egregious abuses like those at the Mesa Verde and Golden State Annex Detention Centers. Given the lack of transparency and accountability in contracting for IGSA facilities that was just described, one can certainly imagine that the issues raised herein are happening with an equal or even greater frequency in IGSA facilities. Therefore, a reform to facility contracting overall would act as an across-the-board preventative measure. This reform should first take the shape of shifting procurement preferences away from IGSAs so that agencies like ICE cannot overcome procedural procurement requirements designed to promote accountability. Once the shift does happen, agencies such as ICE should largely expand the scope of past performance information that it requests from private companies competing for the relevant detention facility contract. Additionally, agencies like ICE should include a requirement in their solicitation that forces companies to submit detailed compliance plans meant to prevent worker retaliation against detainees.
This Note will address each piece of the solution in turn, while keeping in mind that these solutions are particularly meaningful because they are aimed at addressing these atrocities at their core. While similarly placed legal literature compellingly focuses on how to hold ICE or a private contractor accountable post-contract award, the solution in this Note focuses on addressing those abuses before they can even viably happen. Additionally, these solutions are meant to prevent the atrocities through feasible, reasonable means that would not result in an entire overhaul of the procurement system in the United States.
It ultimately is not enough to provide these human beings remedies only after they have been harmed. They should not have to suffer from the punishment of solitary confinement for exercising their collective bargaining rights due to procurement technicalities. The point is not only to ensure that the government procurement process is protecting both the integrity of its own system but also those who are involuntarily detained against their will. If left to its own devices, this system that is funded by the American taxpayer would continue to produce these atrocities to the point that they are no longer anomalies.
To begin addressing these issues, Congress should amend section 1103(a)(11)(A) of Chapter 8 of the U.S. Code, the statute that generally authorizes ICE to enter into IGSAs, to create a statutory preference for FAR Part 15 negotiated procurements in place of entering into IGSAs. This amendment need not strictly require agencies such as ICE to shift all detention facility procurements away from IGSAs. However, the language within section 1103(a)(11)(A) should contain a condition where ICE would look to utilizing negotiated procurements to the maximum extent practicable and only enter into IGSAs if it can thoroughly justify its reasoning to both the public and any reviewing court. This statutory scheme would mimic already existent portions of the FAR for other procurements and, thus, would likely not be very difficult to recreate in the newly incorporated provision.
Specifically, the current language in section 1103(a)(11)(A) states that “[t]he Attorney General, in support of persons in administrative detention in non-Federal [private] institutions, is authorized to make payments” regarding detention in the furtherance of agreements with state or local authorities. This language should first be changed to reflect the preference for negotiated procurements by requiring that “[t]he Attorney General, in support of persons in administrative detention in non-Federal institutions, is required to secure these institutions through negotiated procurement to the maximum extent practicable.” Following this provision, section 1103(a)(11)(A) should state that the “Attorney General [and the Secretary of Homeland Security] . . . are authorized to make payments [to state and local authorities] only . . . when thoroughly justified.” This updated language would effectively push agencies to engage in FAR-regulated contracting that requires full and open competition without precluding the slight possibility that ICE may have some reason to procure a detention facility through an IGSA with a state or locality.
This Note also does not call for an end to IGSAs on a broader level. The suggested solution recognizes that IGSAs may, in extreme cases, play a crucial role in immigration policy while also not radically creating an upheaval in the immigration procurement world by ridding the federal government of a tool it uses to achieve its policy. The 2018 OIG report mentioned earlier even called on ICE to formalize its IGSA contracting process to address information gap issues. ICE responded to the report by noting that it had created a more centralized documentation system for IGSA contracting (though, as seen in the 2021 GAO report, this proved to be inaccurate). While a change to the IGSA system may fix a portion of the issues faced by non-citizens, engaging in standard FAR-regulated contracting with private companies could actually force agencies like ICE to scrutinize these companies more closely before entering into contracts with them.
As mentioned, in FAR Part 15 negotiated procurements, ICE must thoroughly evaluate companies’ past performance information before selecting the appropriate company. This process would not only create more transparency for ICE in its solicitation processes, but it would also allow for accountability from the public as well. Information about solicitation decisions and solicitations themselves become public upon award. The public could then view who ICE is contracting with, leaving ICE susceptible to public opinion if ICE decides to contract for facilities that have already been exposed for non-citizen mistreatment. Ultimately, this would likely lead to fewer opportunities for ICE to contract with “bad-apple” companies that engage in reprisal against non-citizens for engaging in collective bargaining.
Proponents of IGSA contracts may argue that these contracts are useful because they allow the federal government to save the most money while the government enforces its immigration policy. However, this argument misses the mark. Evidence suggests that, even in negotiated procurements done under full and open competition, contractors lower their prices to make their bids more appealing to the federal government. This naturally saves the agency money in contract pricing that it may otherwise spend on administrative resources to conduct the FAR Part 15 procurements, potentially resulting in no actual added cost. Additionally, under CICA’s exception to full and open competition, agencies may limit the sources that they seek proposals from for a contract when the “agency’s need for the property or services is of such an unusual and compelling urgency that the Government would be seriously injured . . . .” Thus, if ICE believed that private immigration detention was of such critical importance to its policy goals that it would need to limit competition quickly, it certainly could still cut down on administrative burdens without relying on IGSAs.
The FAR also requires that agencies invoking this exception to “request offers from as many potential sources as is practicable under the circumstances.” Thus, not only would ICE be able to cut down on administrative and personnel costs (admittedly not as much as they could with IGSAs), but ICE would also have the ability to gather ample information, through market research, about the contractor(s) that it would otherwise not gather if it were to enter into an IGSA.
An example of this argument playing out comes in the form of one of ICE’s recent procurements for transportation services. In its justification for using procurement methods other than full and open competition, ICE indicated that it needed to award contracts to “unarmed custody/escort services for migrants” at Guantanamo Bay on a sole source basis. ICE utilized CICA’s “only one responsible source” exception as its justifying reason, explaining that running a standard competition would seriously frustrate its policy goals. The justification also explicitly notes that it conducted market research to gather information before it came to the decision of awarding to the contractor on a sole-source basis. Not only did ICE drastically cut down on the time it may have needed had it procured the contract under the competitive process, it did so while still retrieving sufficient information to make an award to its preferred contractor. This example offers clear evidence for this Note’s argument that, if ICE needs to procure immigrant detention and transportation contracts without expending significant resources, it can rely on standard procurement practices to do so, thereby decreasing the import of IGSAs and justifying a change in the IGSA-authorizing statute to reflect this decrease. Accordingly, after this change happens, this Note will argue that it is up to ICE to ensure that it is conducting a thorough review of the contractor’s history and proposed compliance with the law before it mistakenly awards a contract to a company that demonstrates little-to-no value for non-citizens’ humanity.
i. Past Performance Information Submitted by Contractors Should Be More Detailed to Incorporate Any Relevant Information Regarding Potential Labor and Human Rights Abuses.
Shifting ICE’s government procurement priorities from IGSAs to FAR Part 15 negotiated procurement procedures only represents one piece of a two-step solution to the issues presented in this Note. To help ensure that ICE avoids contracting with private contractors who have a history of committing labor and human rights abuses against detained migrants, it is imperative for ICE to tailor their RFPs to require contractors to submit ample past performance information and adequate responses to the government’s quality-control plan requirements before it makes decisions on those proposals. This solution would both allow ICE to make the most informed decision for its contract award while also incentivizing contractors to adhere to the higher-standard risk management so that such contractors can win awards from ICE in the future.
In the solicitation previously mentioned in this Note, ICE ranked past performance high on its list of important evaluation factors for choosing a contractor for its requested detention facility in Los Fresnos, Texas. This method would imply that unsatisfactory past performance by a contractor would likely prevent a contractor from receiving the award. Where ICE seeks past performance information about personnel issues within the facility itself—say, to evaluate whether officers unnecessarily placed migrants in solitary confinement for collective bargaining—the agency should provide highly detailed, pointedly specific performance questions in questionnaires to contractors. An analysis of multiple solicitations demonstrates that ICE may use the same past performance questionnaire for its detention facility procurements, with these questionnaires simply asking a contractor’s professional reference within the federal government to “[r]ate the contractor’s management of Key Personnel.” The questionnaires also concisely asked the official if the contractor had ever failed to provide the services requested.
While these questions are important for gathering knowledge on the successes and failures of contractors, ICE should more narrowly tailor its questions to specifically ask about successful regulation compliance or whether the contractor has faced lawsuits from non-citizens in the past. In doing so, the questionnaires would become more robust with a higher number of questions, offering ICE much more information about companies that may not be able to comply with the law. For example, in a solicitation issued by the DoD’s Defense Logistics Agency, its past performance questionnaire asks questions such as: “Is the contractor in compliance with all regulations and codes regarding financial, environmental, labor, and safety[?]” Questions as specific as these illustrate that past performance questionnaires are not singular in form and can be adapted to capture the relevant information the agency is looking for.
For the purposes of addressing labor and human rights violations, ICE could build on the DoD’s approach by asking the contractors very specific questions about past labor and human rights abuses, if applicable. For example, ICE could ask contractors’ references if they have any information on “whether the contractor committed any labor or human-rights abuses, such as reprisal against collective bargaining through solitary confinement, that would demonstrate the contractor’s blatant disregard for following national and local labor laws.” ICE could also require contractors’ references to provide the agency with any and all information regarding any lawsuits filed against the contractor regarding violations of labor laws during the time that the contractor worked for the reference. These types of inquiries would both explicitly address the issues found in Mesa Verde and Golden State Annex head-on as well as maintain the standard structure of past-performance questionnaires that ICE typically uses, resulting in a change that would not be overly administratively burdensome for the agency. As this Note argues, a change even as small as this would go a long way to preventing abuses against non-citizens in private detention facilities.
ii. Contractors Could Also Submit Detailed Quality Assurance Surveillance Plans That Thoroughly Explain Their Strategies for Ensuring That Labor and Human Rights Abuses Do Not Occur in Their Facilities.
Achieving contractor accountability at the solicitation phase does not have to rely on past performance questionnaires alone. The FAR explicitly allows the government to create what is known as a Quality Assurance Surveillance Plan (QASP), a plan that the agency requires the contractor to follow as part of performance of the contract. The FAR also allows the government to mandate that potential contractors submit their own QASP for the government to evaluate when it is choosing which contractor to award the contract to. In a solicitation for a new detention facility, ICE should first create a robust QASP requirement that specifically addresses preventing human rights abuses committed by facility staff. As part of the evaluation process for companies that take labor rights seriously, ICE should require contractors to submit their own detailed plans with specifications on how exactly they will ensure that these abuses, like solitary confinement for collective bargaining, do not happen.
In at least one non-citizen detention facility contract, ICE required that contractors submit a Quality Control Plan (QCP)—analogous to a QASP—that “illustrates the methods [the contractor] will use to review its [own] performance to ensure it conforms to the [government’s] performance requirements.” These performance requirements promulgated by the government were designed to ensure that the contractor awarded with the detention facility contract maintained clear guidelines that the contractor could not violate when overseeing the detention facility. A contractor’s compliance with these requirements in their QCP informed which contractor’s plan was most responsive to ICE’s solicitation. In the aforementioned contract, ICE reviewed each contractor’s QCP for its ability to address issues such as “safety,” “security,” “caretaking,” “order,” and most importantly, “justice” concerns. The “justice,” “activities,” and “order” categories most directly address the issues that occurred at the Mesa Verde and Golden State Annex facilities. A contractor’s QCP was rated on its ability to achieve “justice” if it “addresse[d] contractor responsibilities to treat detainees fairly and respect their legal rights . . . .” Additionally, a contractor’s ability to achieve a successful “activities” evaluation was predicated on the contractor’s ability to “reduce the negative effects of confinement . . . ” Finally, a contractor’s ability to maintain “order” in the detention facility was important. To achieve order, the contractor’s QCP required the contractor to “maintain an orderly environment with clear expectations of behavior and systems of accountability[.]”
The requirement for a QCP itself also allowed ICE to reserve the right to conduct routine inspections of the contracted facility as desired. ICE also required that the contractor maintain a detailed documentation system to keep record of any disciplinary actions that the facility took against employees who violated the provisions of the QCP. Finally, as a form of notice to the contractors, the QCP requirements explain that, if ICE learns of a violation of ICE’s specified performance requirements, ICE retains the right to deduct money from the contractor’s monthly invoices until the contractor ameliorates the relevant issues.
All these requirements touch upon the notion that ICE perhaps may already (at least somewhat) have a system in place to address labor and human rights abuses in private immigration detention facilities at the early stages of procurement. However, while these requirements are detailed and provide significant levels of oversight, ICE should expand the “justice,” “activities,” and “order” sections of the performance requirements to include explicit references to contractor punishments if employees engage in abuses. For example, ICE could expand the “justice” category’s description from only enumerating “legal rights” to specific rights that include “freedom from wage theft” or “freedom from reprisal for collective bargaining.” If this shift occurs, contractors would more explicitly be clued into their requirements to prevent these violations from occurring. Literature suggests that mandating QASPs in detention contracts would likely not ameliorate issues caused by detention facility employees because ICE does not regularly punish contractors for violating QASPs. This is certainly an issue; however, a more detailed QASP requirement would allow ICE to contract with a private company that it more accurately believes would not commit abuses in the first place.
Naturally, this would require ICE to place more resources into drafting these performance requirements. However, expending slightly more resources is a small price to pay for ensuring that non-citizens’ labor and human rights are adequately safeguarded. It is important to remember that this solution addresses atrocities committed against human beings. Preserving humanity commands that procurement procedures do everything that they can to ensure that human beings are treated with dignity, even if that means slightly increased administrative burdens for the U.S. government.
Moreover, a more pointed procurement process like that just described may not even drastically decrease efficiency across the board in government procurement. Opponents of a statutory amendment may attempt to argue that an amendment could result in a shift of the government’s procurement approach from a performance-based acquisition to a design-based acquisition. Namely, if the government required contractors to meet a high standard of employee accountability to achieve successful performance, contractors might posit that those requirements are overly restrictive and decrease contractor autonomy, thus decreasing a contractor’s ability to perform the work effectively. It might be that these advocates against a statutory amendment believe that judicial solutions are more efficient for the government procurement industry, as lawsuits, such as those mentioned in this Note, are carefully tailored to a specific defective contractor, not the industry as a whole. However, that is exactly the point. The solution proposed in this Note is aimed at reforming the entire government procurement apparatus, while keeping both the judiciary and the individual non-citizen’s resources in mind. It is also about proactively preventing the atrocities from continuously occurring, not providing a remedy once they have already occurred. It does little good to “wait and see” if non-citizens are treated inhumanely and then hold the contractor or ICE accountable if the solutions discussed can simply make clear that the government is taking in the consideration to hold contractors accountable from the beginning of the procurement process onward seriously.
While it is clear that individuals within detention facilities can file lawsuits in federal courts that seek remedies to their injuries, it is unclear whether forums such as GAO would even begin to address these issues in the way or frequency necessary. As an initial matter, the GAO’s jurisdiction as a quasi-judicial body resides partly in reviewing bid protests. Under a bid protest, a contractor can challenge the award of a government contract to another contractor that it believes was improperly awarded. In 2017, GAO held that it maintains jurisdiction to review protests regarding IGSAs for “installation support services” pursuant to the statutory authority contained in section 2679 of Chapter 10 of the U.S. Code. However, it also held that it would not exercise its authority over whether the federal government’s contract with a state or local government must be awarded through competitive procedures. Thus, any protests that might try to address ICE’s lack of information gathering because of IGSAs would be moot, making bid protests yet another avenue where there are few, if any, solutions to the Mesa Verde and Golden State Annex problems.
It is also important to note that a statutory shift such as the one described could potentially increase required by the FAR by allowing companies who are more eager to follow ICE’s requirements to compete for detention contracts. As it stands, the private immigration detention facility market contains big players that maintain heavy influence on whom ICE contracts with. Companies such as Corrections Corporation of America (CCA) and The GEO Group (involved in the Mesa Verde lawsuit) corner the private detention facility market, especially with respect to immigration enforcement. It appears as though there is little space for smaller-sized security and facility companies to take on ICE’s contracts. It is hard to say if they will be able to compete in an equal playing field with CCA or The GEO Group in the short term. However, smaller companies could market themselves to ICE as being both more able to fully oversee their employees and more able to devote time on developing robust consequences should their employees engage in human rights abuses. If that is the case, it follows that the competition for a detention facility contract would likely increase, achieving one of the central goals of the procurement system—competition—while also protecting the lives of human beings.
Labor and human rights abuses deserve immediate attention and effective and actionable solutions. Amending the U.S. Code to include a new part or subpart that explicitly tells agencies such as ICE that they should move away from IGSAs in favor of standard negotiated procurements, all while requiring significantly more detailed information from contractors in their solicitations, would meet those criteria. In a world that is more definitive, there might be calls for broader-sweeping changes that prohibit a policy of contracting with private detention facilities to begin with. However, it is unlikely that human rights groups could achieve those changes any time soon. Accordingly, these important issues and arguments are outside the scope of this Note. The solutions proposed in this Note would remain within the bounds of what can feasibly achieved by the federal government, especially given the little momentum for action at the federal level. Amending the current system at its source to achieve equitable outcomes, rather than after they have already occurred, would put the U.S. government on the path to eradicating labor and human rights abuses against non-citizens within private immigration detention facilities.
