Arcane Rule Stifles Innovation in Roads and Bridges

An arcane piece of federal regulation that’s blocking the use of innovative products essential to improve the safety and quality of roadways and bridges ought to be repealed, says the American Road & Transportation Builders Association.

Procurement Rule at a Glance

  • 102 year old
  • Adopted originally by US Department of Agriculture
  • Prohibits state and local governments from using patented or proprietary products on highway and bridge projects that receive federal funding unless those products qualify for limited exceptions.

This week, the group formally petitioned the US Department of Transportation to repeal the 102-year-old procurement rule called 23 CFR 635.411. This rule prohibits state and local governments from using patented or proprietary products on highway and bridge projects that receive federal funding unless those products qualify for limited exceptions.

“The ARTBA proposal is a step in the right direction. We should open up roads and related infrastructure to the latest technology, at the same time that we strengthen the Buy American provisions in all procurement that receives federal or state funds,” said Jeff Ferry, research director of Coalition for a Prosperous America.


“Much of the world’s best infrastructure technology comes from American companies and that’s where government-supported projects should be spending their funds.”


Adopted in 1916 originally by the US Department of Agriculture, which them managed the nascent federal-aid highway program, the rule has been a bane for the industry. In fact, ATRBA’s predecessor – the American Road Builders Association, had objected even back then.

In its current petition, ARTBA points out that since many new technologies—particularly those marking a significant advance in quality, performance, or durability—incorporate intellectual property, “the rule has inevitably impeded the development and deployment of products from the market that could save lives, minimize congestion or otherwise improve the quality of our nation’s highways.”

It cites examples including the use of composite materials and disc bearings for bridges, moveable traffic barriers, higher visibility signage and breakaway sign posts.

“This regulation is a relic of antiquated early 20th century thinking,” said ARTBA President Pete Ruane.

ARTBA President Pete Ruane

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.”

ARTBA pointed out other federal agencies such as US Department of Defense, the Coast Guard and the National Aeronautics and Space Administration have procurement rules that allow for the appropriate use of sole source contracts for patented or proprietary products.

If the US DOT accepts the petition, the agency would then formally propose to withdraw the rule which would pave the way for public notice and comment.  The goal, ARTBA says, is new federal direction that promotes, rather than stifles, the use of innovative products and techniques in the transportation infrastructure market.

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