FHWA sunsets bureaucratic barriers to innovation in federal aid contracts

Transportation construction entrepreneurs can pursue research, testing and demonstrations with more confidence that viable new materials, products, methods or other intellectual property will garner a second look during future road or bridge contract lettings.

The Federal Highway Administration is rescinding a rule limiting state contracting agencies from using federal dollars to acquire patented or proprietary materials and products. A statute vanishing this month dates to an era when reusable cement sack collection difficulties spawned the Portland Cement Association. Successor project procurement guidelines recognize how present budget and management constraints leave state departments of transportation less time for bureaucratic exercises.

FHWA formalized a plan late last month in “Construction and Maintenance—Promoting Innovation In Use of Patented and Proprietary Products.” A Federal Register notice affirmed, “Federal funds participation will no longer be restricted when state DOTs specify a trade name for approval in federal-aid contracts [or] patented or proprietary materials in design-build Request-for-Proposal documents.”

The plan is based on the second of two options for which FHWA solicited comments in November 2018. Option 1 proposed removal of requirements that state DOTs “provide certifications, make public interest findings, or experimental work plans to use patented or proprietary product in federal-aid projects”; and, a new certification requirement ensuring competition in material and product selection.

Option 2 proposed discontinuing requirements for patented and proprietary materials or products; renaming the statute governing certain federal aid road and bridge procurement “Culvert and Storm Sewer Materials Types”; and, maintaining language ensuring state autonomy for storm sewer specifications. The latter heeds a mandate the American Concrete Pipe Association helped secure in the Moving Ahead for Progress in the 21st Century (MAP-21) Act, funding 2012-2015 federal highway programs, and sustain in the Fixing America’s Surface Transportation Act of 2015, funding road and bridge work through September 2020.

Concrete pipe interests were keen on clarifying “Culvert and Storm Sewer” language. Prior to MAP-21, proponents of concrete drainage structure alternatives had sowed confusion among state DOT staff regarding rigid product specification. Onerous regulatory burdens applicable to patented or proprietary products in federal-aid road and bridge contracts were being mimicked to subvert engineers’ judgment for routine drainage structure or system design.

“This much-needed update of a century-old, obsolete rule will benefit state transportation infrastructure projects and save millions of taxpayer dollars,” Transportation Secretary Elaine Chao observed in a statement timed with the FHWA Federal Register notice.

The new 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,” added FHWA Administrator Nicole Nason.

Their observations mirror sentiments expressed in comments supporting Option 2, deemed better suited to the goals of the initial notice since it did not impose a new certification requirement. The American Association of State Transportation and Highway Officials noted that about half of its state DOT members view legacy paperwork requirements as “difficult and lengthy.” State agencies pondering patented or proprietary products also find it difficult to prove to FHWA Division offices the dearth of competitive solutions or perform reasonable cost analyses supporting their specs.

Those tired of the public construction commodity factor should welcome “Promoting Innovation In Use of Patented and Proprietary Products” and its promise of reducing paperwork and redundancy in agency acceptance or approval phases. The FHWA measure times well with parallel developments among ready mixed concrete producers (P2P or Prescriptive to Performance initiative) and their peers in precast (branded, licensed drainage and short-span bridge structures; highway pavement panels; and, value-added coatings, surface treatments, and integral admixtures).