Federal Highway Administration Repeals Proprietary Products Rule

How ARTBA Helped Make It Happen  

By Dave Bauer

Change is hard.  Change in the federal legislative and regulatory policy arena can be even harder. 

Dave Bauer

But as the famed 20th century American cultural anthropologist Margaret Mead once observed: “Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.”

Such a sentiment rings true as it relates to ARTBA’s volunteer leaders in the wake of a September 26 Federal Highway Administration (FHWA) announcement.  The agency said it was repealing the 1916 procurement rule prohibiting state and local governments from using patented or proprietary products on highway and bridge projects that receive federal funding —unless those products qualified for limited exceptions.

FHWA’s action was a direct response to ARTBA’s March 2018 petition, and it highlights once again a hallmark of the association’s value as a regulatory reform champion.

“Highway administration eliminates a pesky rule for states,” was the headline over a CQ News story, which recognized ARTBA’s lead role in “a concentrated campaign” to repeal the rule.

For those not well versed—which is most—on this archaic rule, it has obstructed state transportation agencies from utilizing patented or proprietary materials, specifications or processes on federal-aid highway projects.  It’s had the practical effect of hindering innovation and development of potentially life-saving technologies for use throughout the nation’s highway and bridge system. 

The repeal gives states the option to use patented and proprietary products on federal-aid projects if they choose to do so.  While the original rule was intended to preserve fair competition, a level playing field must not be confused with celebrating the status quo.  States now have the freedom to use federal funds on the full range of transportation products and solutions that best meet their needs.

A major regulatory achievement like this doesn’t just happen on its own.  For many years and during several editions of ARTBA’s Dr. J. Don Brock TransOvation™ Workshop, ARTBA members continually cited the rule as a barrier to innovation, in part because of inconsistent implementation of the waiver process among the states. 

Extraordinary leadership from ARTBA’s volunteer leaders also played a major role.  Hats off to Kevin Groeneweg (Mobile Barriers, LLC), who relentlessly pursued this reform for many years, and John Hillman (Parsons Corporation), a leading voice among industry innovators. Long-time industry leaders Trinity Highway Products, CRH Americas Materials, 3M and Transpo Industries also supported ARTBA’s legal efforts.

Another hallmark of a successful advocacy organization is the realization that the job is never truly done.

That’s why ARTBA is launching a working group from its eight membership divisions to share information and strategies to integrate proprietary products throughout the states.  We also will continue to spotlight the proprietary products issue as FHWA reexamines the Manual on Uniform Traffic Control Devices (MUTCD) later this year.  As Mead reminds us, it takes that “small group of thoughtful, committee citizens” to bring about real change.