Immigration Detention: Actions Needed to Improve Planning, Documentation, and Oversight of Detention Facility Contracts
Fast Facts
Immigration and Customs Enforcement contracts and agreements have increasingly guaranteed minimum payments to detention facility contractors—paying for beds regardless of use. ICE spent $20.5 million in May 2020 for over 12,000 unused beds a day, on average.
In most recent contracts, ICE has not documented its need for new space or followed other portions of its own process for obtaining it.
The ICE officers who oversee contracts in 8 of 12 field offices where we conducted interviews said office management hindered their ability to independently and effectively oversee detention contracts.
We recommended oversight revisions and more.
ICE Detention Facility in Louisiana
Highlights
What GAO Found
In fiscal year 2019, U.S. Immigration and Customs Enforcement (ICE) had detention contracts or agreements with 233 facilities, 185 of which it used to hold detainees, as shown below.
U.S. Immigration and Customs Enforcement (ICE) Detention Space Acquisition Methods, Fiscal Year 2019
|
Acquisition method |
Total facilities |
Facilities that held detainees |
Percentage of average daily population held in facility |
|
Intergovernmental service agreement |
133 |
108 |
59 |
|
U.S. Marshals Service rider |
85 |
62 |
17 |
|
Federal Acquisition Regulation-based contract |
15 |
15 |
24 |
|
Total |
233 |
185 |
100 |
Source: GAO analysis of ICE data. | GAO-21-149
ICE primarily uses intergovernmental service agreements (IGSA) to acquire detention space. Officials said IGSAs offer several benefits over contracts, including fewer requirements for documentation or competition.
ICE has a process for obtaining new detention space, but it did not follow this process for most of its recent acquisitions and does not have a strategic approach to using guaranteed minimum payments in its detention contracts and agreements. From fiscal year 2017 through May 11, 2020, ICE entered into 40 contracts and agreements for new detention space. GAO's review of ICE's documentation found that 28 of 40 of these contracts and agreements did not have documentation from ICE field offices showing a need for the space, outreach to local officials, or the basis for ICE's decisions to enter into them, as required by ICE's process. Until ICE consistently uses its process, it will not have reasonable assurance that it is making cost-effective decisions that best meet its operational needs. ICE has increasingly incorporated guaranteed minimum payments into its contracts and agreements, whereby ICE agrees to pay detention facility operators for a fixed number of detention beds regardless of whether it uses them. However, ICE has not taken a strategic approach to these decisions and has spent millions of dollars a month on unused detention space. Planning for detention space needs can be challenging, according to ICE officials, because the agency must respond to factors that are dynamic and difficult to predict. A strategic approach to using guaranteed minimums could help position ICE to balance these factors and make more effective use of federal funds.
ICE relies on Contracting Officer's Representatives (COR) to oversee detention contracts and agreements, but the COR's supervisory structure—where field office management, rather than headquarters, oversee COR work and assess COR performance—does not provide sufficient independence for effective oversight. CORs in eight of 12 field offices identified concerns including lacking resources or support, as well as supervisors limiting their ability to use contract enforcement tools and bypassing CORs' oversight responsibilities in contracting matters. Revising its supervisory structure could help ICE ensure that detention contract and agreement terms are enforced.
Why GAO Did This Study
The Department of Homeland Security's ICE detained approximately 48,500 foreign nationals a day, on average, for 72 hours or more in fiscal year 2019. ICE was appropriated about $3.14 billion in fiscal year 2020 to operate the immigration detention system. ICE has three ways of acquiring detention space—IGSAs with state or local government entities; agreements with Department of Justice U.S. Marshals Service to join an existing contract or agreement (known as a “rider”); or contracts.
This report examines (1) what data show about the characteristics of contracts and agreements; (2) the extent to which ICE developed and implemented processes and a strategic approach to acquire space; and (3) the extent to which ICE has overseen and enforced contracts and agreements. GAO reviewed documentation of acquisition and oversight efforts at facilities used to hold detainees for 72 hours or more; analyzed ICE data for the last 3 fiscal years—2017 through 2019; conducted site visits to new and long-standing detention facilities; and interviewed ICE officials.
Recommendations
GAO is making five recommendations, including that ICE include stakeholder input and document decision-making for new detention space acquisitions; implement a strategic approach to using guaranteed minimums; and revise its supervisory structure for contract oversight. DHS concurred with four recommendations and disagreed with revising its supervisory structure. GAO believes the recommendation remains valid, as discussed in the report.
Recommendations for Executive Action
| Agency Affected | Recommendation | Status |
|---|---|---|
| United States Immigration and Customs Enforcement | The Director of ICE should ensure that ERO consistently uses a process that includes input from relevant stakeholders and documentation of the basis for decisions made before entering into contracts or agreements for new or expanded detention space. (Recommendation 1) |
ICE reported in August 2021 that it had established a new process for approving detention procurement actions. In April 2022, ICE provided guidance for the new process, which requires ERO field offices to submit documentation justifying and requesting additional detention space to the ICE Office of Immigration Program Evaluation, Detention Planning and Acquisition Unit, and Assistant Director for Custody Management for review and approval. If the request is approved, the field office then submits the request and other procurement documentation to the Office of Acquisition Management for implementation. ICE reported that it has sent broadcast emails about the new process and trained field office personnel on using it. These are positive steps that should help ensure that ICE obtains input from relevant stakeholders and documents the basis of decisions before entering into contracts or agreements for new or expanded detention space. To fully address this recommendation, ICE needs to provide documentation demonstrating that it is using the new process in practice. As of August 2024, we are working with ICE to update the status of this recommendation.
|
| United States Immigration and Customs Enforcement | The Director of ICE should document and implement a strategic approach for using guaranteed minimums in detention contracts and agreements that supports ICE's strategic plans, goals, and priorities. (Recommendation 2) |
In August 2021, ICE reported reviewing 52 detention facility contracts and agreements with guaranteed minimums. In May 2024, ICE reported that the agency had decided to phase out the use of guaranteed minimums. Instead, in an effort to reduce and optimize detention costs, ICE plans to utilize a monthly facility operating charge payment structure in new detention facility contracts and agreements. Under this payment structure, ICE reimburses the vendor for the fixed cost of operating a facility at ICE's anticipated usage level. According to ICE officials, when using the facility operating charge approach, ICE plans to include language that allows it to reduce or renegotiate the value of the contract or agreement if ICE uses less detention space at the facility than anticipated. ICE reported that it is reviewing all new contracts and agreements to determine whether the facility operating charge structure is appropriate. In general, the structure is appropriate for facilities with which ICE has a contract or with which it has an agreement for ICE to use the entire facility, according to ICE officials. These steps help position ICE to take a strategic approach to using fixed costs in detention facility contracts and agreements. To fully address this recommendation, ICE needs to provide examples of contracts or agreements in which it has used the facility operating charge approach, including provisions that allow ICE to reduce or renegotiate costs if it uses less detention space than anticipated.
|
| United States Immigration and Customs Enforcement | The Director of ICE should revise its supervisory structure so that the CORs' oversight functions are independent of field office management. (Recommendation 3) |
ICE did not concur with this recommendation and noted in August 2021 that its Office of Acquisition Management and Office of the Principal Legal Advisor created a supervisor training that includes topics of fiscal law and procurement as well as Contracting Officer and Contracting Officer Representative (COR) roles and responsibilities. ICE noted this training was provided during a 2020 annual conference. We acknowledged in our 2021 report that ICE provided a slide-deck presentation to field office management via broadcast message. We further reported that we found this presentation insufficient for addressing the issues we identified. For example, this document did not address CORs' and some ICE headquarters officials' concerns that a COR's ability to independently and effectively carry out their oversight functions was dependent on relationships between the COR and the field office managers. Further, this document did not address the concerns we identified with CORs having sufficient support and resources to conduct their oversight functions. Last, it did not provide CORs with a safeguard for instances where they believed they should push back on ERO field office management in order to uphold the terms and conditions of a particular contract. As of August 2024, we continue to believe that a revised supervisory structure could help ensure CORs have sufficient independence to carry out their oversight duties.
|
| United States Immigration and Customs Enforcement | The Director of ICE should ensure that the agency has complete and reliable information on discrepancy reports and their resolution. (Recommendation 4) |
ICE reported in August 2021 that its Office of Acquisition Management developed guidance on processing and tracking discrepancy reports associated with detention and related service contracts. The guidance is intended to help Office of Acquisition Management staff ensure discrepancy reports and any associated actions (e.g., monetary withholdings, deductions) are resolved and properly tracked. In conjunction with the guidance, Office of Acquisition Management also established a mailbox for Contracting Officers to submit completed discrepancy reports for tracking. Office of Acquisition Management's Quality Assurance Division was tasked with recording pertinent data elements for all submitted reports and ensuring the data are up to date. ICE reported that Office of Acquisition Management will also work with ERO to ensure Contracting Officer Representatives comply with the requirement to submit all discrepancy reports to the Contracting Officers for tracking. In July 2022, ICE provided an updated copy of its discrepancy report tracker along with evidence showing that its discrepancy report mailbox had received over 25 reports for tracking and analysis. ICE also took actions to ensure staff are aware of the requirement to submit reports to the tracking mailbox, such as posting related guidance on a central webpage. These actions should help ensure ICE has complete and reliable information on discrepancy reports and their resolution. As such, we consider this recommendation implemented.
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| United States Immigration and Customs Enforcement | Once ICE has complete and reliable discrepancy report information, the Director of ICE should regularly analyze the information in a manner that enables trends in facility operator and agreement-holder deficiencies to be identified and addressed. (Recommendation 5) |
ICE reported in August 2021 that Office of Acquisition Management, ERO Custody Management, and Field Operations met to review Office of Acquisition Management's new discrepancy report tracking mechanism. ICE said that the officials at this meeting, which was held in July 2021, focused on analyzing discrepancy report trends, identifying root causes and corrective action best practices, and monitoring requirements for facilities with a history of discrepancy reports, among other topics. ICE stated that ERO and Office of Acquisition Management will continue working together to establish a mechanism that will allow ICE to analyze discrepancy report information to identify trends and best practices in correction actions. As of July 2022, ICE reported that it had received over 25 discrepancy reports. Analyzing these reports, officials reported identifying a trend related to staffing levels. ICE's actions to ensure it has complete information on discrepancy reports and the analyses conducted so far should better position ICE to identify and address trends in contract and agreement deficiencies, and thereby hold facility operators accountable to required levels of service. As such, we consider this recommendation implemented.
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