Clarifying the Concrete Pipe Industry’s Views on “Open Competition” Legislation

by Jeffrey A. Hite

Concrete Products’ November editorial concerning the Federal Highway Administration’s withdrawal of the patented and proprietary products rule may have unintentionally conflated the concrete pipe industry’s position on the repeal of that rule and the ever-present threat to our industry from so-called “open competition” legislation. For the sake of clarity, this letter elaborates on the position of the American Concrete Pipe Association (ACPA) on “open competition” legislation.

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Houston-based Jeffrey Hite is American Concrete Pipe Association Chairman of the Board and Rinker Materials Director of Technical Promotions.

In our view, the true aim of the “open competition” bills are to force state and local governments to consider using plastic pipe in the construction of taxpayer-funded infrastructure projects, even in locations where engineers have determined that it isn’t suitable for certain applications due to local conditions. The concrete pipe industry strongly believes that technical decisions concerning material selection for taxpayer-funded infrastructure projects should be left to engineers, without interference from a political body.

Responding to this legislative threat to the concrete pipe industry is an on-going effort. The first “open competition” bill was introduced in the U.S. Congress eight years ago; the most recent version (H.R. 4687) was introduced just two months ago. Additionally, we’ve seen similar, state-level versions appear in more than a dozen state legislatures. Each and every one of these measures has been defeated, but only after our industry has mobilized to educate lawmakers about the procurement process and the role of engineers in selecting eligible materials.

The primary argument of proponents of the legislation is that many local governments have closed the bidding process to “alternate” products that will purportedly save money. This is false. The purpose of a technical specification in pipe material selection is to protect the safety and well-being of the public. The process of developing specifications is—and should remain—a scientific process, not a political one. “Open competition” legislation would end this practice, undermine the role of engineers, and force project sponsors to consider pipe material that engineers have determined are not suitable for use in a specific project.

Proponents of “open competition” legislation are pressing their arguments at a time when the U.S. Congress and individual state legislatures are struggling to solve the problem of aging and deteriorating infrastructure. Mandating the consideration of materials will not solve the Nation’s problem with aging infrastructure. Instead, this legislation will expose Professional Engineers, the States, and local governments to lawsuits if they determine a particular type of pipe material is unsuitable for a project. Litigation is not productive; it will only further strain the operating budgets of government agencies and delay project completion.

“Open competition” is not sound public policy and it would not improve our Nation’s infrastructure; it should be rejected by lawmakers at the federal and state levels. Until the plastic pipe industry and their allies in the chemical industry cease their efforts to legislate greater market share, the ACPA will continue to view “open competition” legislation as the leading legislative threat to our industry and to actively press our counterarguments with legislators.