DOT Ends Century-Old Restriction On Highway Construction

A rule adopted in 1916 that discourages U.S. state contractors from deploying innovative products and services in road design and repair has been updated to give states more choices for federally funded highway projects.

The revised regulation, announced by the U.S. Department of Transportation's Federal Highway Administration (FHWA) on September 26 and which takes effect on October 28, will lead to safer roads and reduce the probability of congestion-causing accidents, according to the agency and proponents of the new law.

Prior to this change, federal regulations prohibited state contracting agencies from using federal funds to buy "patented or proprietary materials, products or services," except in limited circumstances, the agency stated.

Under the revision, federal funds will no longer be restricted when state departments of transportation (DOTs) specify a trade name for approval in highway contracts eligible for such funding. In addition, federal funding will no longer be restricted when a state DOT specifies patented or proprietary materials when putting out bid requests.

"This final rule promotes innovation by empowering states to choose which state-of-the-art materials, tools and products best meet their needs for the construction and upkeep of America's transportation infrastructure," commented FHWA Administrator Nicole Nason.

The American Road & Transportation Builders Association (ARTBA) petitioned the FHWA in March 2018 to make the change.

"This archaic regulation was a roadblock to innovation," commented ARTBA President & CEO Dave Bauer on the government's announcement. "The status quo is the only thing that should be off the table as we seek to deliver and fund transportation solutions."

The association, which found that 38 percent of U.S. bridges need to be repaired or replaced, noted in its petition that examples of innovative products that were either deployed late or not used at all in highway projects because of patent restrictions included resilient bridge components, breakaway road signs and moveable barriers used during road construction.

The American Trucking Associations (ATA) weighed in on ARTBA's petition earlier this year, pointing out that innovative products can help reduce deaths and injuries. "Trucking companies also value improved efficiencies in the highway system that reduce the expensive burden imposed by congestion," ATA stated. "Regulations that prevent the utilization of the most innovative and effective products to improve the safety and efficiency of highways must be revised."

In the case of patented designs used for moveable construction barriers, "if an accident occurs in a work zone that does not have the protection of one of these five-foot high stainless steel walls and someone is injured or killed, that ties up the road for hours, sometimes a day or two, while the cleanup and investigation is done," thereby adding to delivery times, Jim Burnley, a partner in the law firm Venable, which represented ARTBA, told FreightWaves.

Burnley, who was Secretary of the U.S. Department of Transportation under Ronald Reagan, said that road surfaces that incorporate innovative materials can last longer, which means the roads are closed less frequently for maintenance or replacement. "Anything that adds to the safety and efficiency of the roads – it could even be a computer program for traffic management – all of those things are highly relevant to trucking company operations," he said.

A portion of the 100-plus comments received by FHWA were either opposed to changing the regulation or supported a less aggressive option, arguing that the rule change would lead to inconsistent pricing for materials, or that suppliers of patented products would be able to control prices and thus potentially making projects more expensive.

The FHWA called such concerns "speculative," pointing to other comments suggesting that the agency "first remove the existing regulation and then monitor whether any problem arises that should be addressed."

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