A 102-year-old federal procurement rule is stifling the use of products by state and local governments that could make U.S. roads safer, and it’s time for it to be repealed, says the American Road & Transportation Builders Association (ARTBA).
To that end, ARTBA filed a petition March 27 with the U.S. Department of Transportation to throw out the procurement rule, which was adopted in 1916 by the U.S. Department of Agriculture. The legal team filing the petition for ARTBA is led by former U.S. Secretary of Transportation James Burnley with Washington, D.C., law firm Venable, LLP.
The rule essentially prohibits the use of patented or proprietary products on state and local highway and bridge projects that receive federal funding, partly because it requires competitive bidding, even if it is the only such product of its kind, according to ARTBA’s petition. The rule only makes exceptions in these limited cases:
- The item is purchased or obtained through competitive bidding with equally suitable unpatented items.
- The contracting agency certifies that the item is essential for synchronization with the existing highway or that no suitable alternative exists.
- Or the item is used for research or for a special type of construction on relatively short sections of road for experimental purposes.
“Since many new technologies – particularly those that mark a significant advance in quality, performance, or durability – incorporate intellectual property,” the petition says, “the Rule inevitably impedes the development and deployment of products from the market that could save lives, minimize congestion, and otherwise improve the quality of our nation’s highways.”
The petition calls on the USDOT to allow procurement similar to those under “general federal competitive bidding rules that allow for single-source procurement under certain conditions – including when the item is available only from a single source.”
It notes that federal agencies such as the Defense Department, Coast Guard and NASA make sole-source purchases.
Along with having become obsolete, the petition says, the rule opposes President Trump’s stated goals of removing burdensome regulations for infrastructure projects.
It includes a quote from Trump from February 24:
“Every regulation should have to pass a simple test: Does it make life better or safer for American workers or consumers? If the answer is no, we will be getting rid of it and getting rid of it quickly.”
The petition says the rule fails that test because “it effectively deters state contracting agencies from acquiring the safest and most advanced products and services, while simultaneously discouraging industry from developing new, innovative products and technologies.”
ARTBA says that if the USDOT accepts the petition, it will formally propose the rule be withdrawn following required public notice and comment. It says its goal is to promote innovation for road safety and traffic improvements.
“This regulation is a relic of antiquated early 20th century thinking,” says ARTBA President Pete Ruane. “It is out of step with the Federal Highway Administration’s support for the development and procurement of the best products on the market. Repealing it would spur the use of new technology and materials that help save lives and upgrade the quality of our highways and bridges.”