Construction companies worried about a backlash for working on President Donald Trump’s proposed border wall are pushing for federal protections, including stopping cities and states from penalizing them, as a new battle erupts over his crackdown on illegal immigration.
The Associated General Contractors of America wants Attorney General Jeff Sessions to sue to prevent states and localities from denying contracts or divesting from companies that participate in wall construction. The group also wants assurances that local authorities will provide reasonable protection for workers and equipment on job sites, as well as contractor reimbursement for security costs or damage from vandalism.
Companies are struggling with whether to participate in the wall, even before Congress decides whether to satisfy Trump’s demands to allocate funding. Trade groups representing both construction and engineering firms said some companies declined to bid on the eight wall prototype sections completed in San Diego last month because they feared the political backlash or their preferred subcontractors wouldn’t work on the project.
“This is not an attractive business decision, considering a lot of the opposition and the little support you’re getting from the federal government,” Jordan Howard, director of the Federal and Heavy Construction Division for the Associated General Contractors of America, said in a telephone interview.
Berkeley, Oakland and Richmond in California and Tucson, Arizona, have already passed resolutions to stop doing business with firms involved in building the wall or to divest from them and the Oakland City Council is holding its initial vote Nov. 7 on whether to place the restriction into city law. Similar measures also have been proposed in eight states and 10 other municipalities including New York City, according to an association tally. It’s creating a clash between communities that see the wall as antithetical to their values and companies trying to do legitimate business.
“Companies have a choice: help build the wall, a monument to racism and bigotry, or do business in New York City,” said Public Advocate Letitia James in March. She has announced plans to have the city’s Employee Retirement System study divesting from wall contractors and to introduce legislation preventing them from obtaining city contracts if there is wall funding. “We won’t allow you to do both,” said James, who is the second-highest ranking elected official in the city.
The idea that qualified companies would take themselves out of the running for projects for fear of a backlash shortchanges the firms and the government, said Dave Raymond, president and chief executive of the American Council of Engineering Companies.
“We believe that our members should be able to participate in lawful federal contracting efforts without fear of reprisals,” Raymond said by phone.
Raymond said his organization, which has more than 5,000 members, is focused on persuading officials from states and localities not to take action against wall contractors, while the contractors’ group is pushing the federal government to do more.
The Associated General Contractors of America, which represents more than 26,000 firms, sent a letter to Sessions in August saying it was “imperative” that the Justice Department sue to prevent states and localities from acting against wall contractors.
“Failure by the government to take action against such measures will embolden states and municipalities to discriminate against private companies that perform all sorts of controversial work for government, not just border-wall work,” Michael Kennedy, the group’s general counsel, wrote to Sessions in the letter, which was provided by the association.
The Justice Department declined to comment.
The association argues that actions to penalize companies are unconstitutional. It says the law prohibits a state or municipality from discriminating against the federal government or those with whom it deals. The federal government also has broad authority to protect the borders that states and municipalities can’t undermine, Kennedy said in his letter.
Charles Tiefer, a professor specializing in government contracting at the University of Baltimore School of Law, said the federal government typically can’t take action without Congress or federal agencies first enacting legislation or contract provisions that prevent states and cities from moving against companies.
Contractors don’t need federal intervention to protect their business interests, but that doesn’t mean the Justice Department won’t get involved, said Steven Schooner, a professor of government procurement law at George Washington University.
“It’s impossible to predict what AG Sessions’ Justice Department might or might not be willing to do, at the request of President Trump, to protect - or for that matter, raise the profile of - one of the president’s favorite initiatives,” Schooner said by email.
The Justice Department has taken action already supporting Trump’s priorities. In March, the attorney general announced a crackdown on so-called sanctuary cities, threatening to pull Justice Department grants to local governments if they didn’t share the immigration status of people held by police with federal authorities.
While Congress debates funding for wall construction, U.S. Customs and Border Protection solicited bids to build eight wall prototypes and awarded contacts to six private companies for mock-ups in San Diego that are each 30 feet long and up to 30-feet high.
Caddell Construction Co. of Montgomery, Alabama; W.G. Yates & Sons Construction Co. of Philadelphia, Mississippi; Fisher Sand & Gravel Co. of Tempe, Arizona; and Texas Sterling Construction Co. of Houston won contracts to build prototypes made of concrete, the agency has said. Caddell, W.G. Yates, and KWR Construction Inc. of Sierra Vista, Arizona, and ELTA North America Inc. of Annapolis Junction, Maryland, won bids for four mock-ups made from materials other than concrete.
The agency hasn’t released all the names of the companies that bid on the prototypes, just the winners. The firms that won didn’t respond to messages or declined to comment, citing a confidentiality clause in their contracts.
But KWR said in September after winning its contract that it’s a minority-owned company with many workers having long-standing relations or roots in Mexico -- and that “all of us respect our Mexican neighbors.”
“If this fence is inevitable, it might as well be built well, and by us,” the company said in its release. “It should provide jobs to our workers who actually belong to these same border communities and care about the communities and the quality of construction here.”
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