Regulatory Streamlining
ARTBA supports efforts to reduce regulatory delay in the surface transportation project review and approval process. ARTBA has championed measures aimed at streamlining the process that maintain existing environmental protections in multiple surface transportation reauthorization bills. While these efforts have contributed to positive changes in the process, such as time limits on specific regulatory decisions and deadlines for filling lawsuits opposing projects, there is still much work to be done. Specific examples where further progress can be made include:
- Continuing to strengthen the United States Department of Transportation’s role as “lead agency” on transportation projects;
- Further reducing the amount of time required for environmental impact statements required for large-scale, multi-year projects; and
- Protecting needed transportation improvement projects from frivolous lawsuits.
ARTBA also opposes increased regulatory burdens in other areas which could hinder the progress made in reducing delay in the transportation review and approval process.
Performance Management
The Federal Highway Administration’s (FHWA) performance management process should limit its focus to an outcomes-based approach focused on physical condition and system performance of highways and bridges. Indirect factors and subjective measurements should be avoided.
Appropriate system performance measurements should include: the causes and costs of traffic congestion; data-driven metrics; the impact on roadway safety; and the integration with national freight policy.
Pavement condition standards should balance both pavement smoothness and structural condition. Consideration should be given to the wide range of geologic and climate conditions across the nation.
Safety related measures should include the maintenance of shoulders and right of way, pavement markings, guardrails, signage and other elements affecting safe travel.
Dispute Resolution Boards
States use dispute resolution boards (DRBs) as part of their contract administration strategies, in order to promote timely decision-making and claims resolution. While procedures vary state to state, generally DRBs include expert members recommended by the project owner and contractor, who meet regularly throughout a project to resolve issues as needed. ARTBA encourages federal support of state DRB programs as an option for efficient administration of federal-aid highway construction contracts.
Quality Construction
Quality construction is essential to the success and credibility of the U.S. highway program. ARTBA also believes that the nation’s highway and bridge network stands as a testament to the high quality of the industry’s craftsmanship relative to the level of public investment in the program. The federal-aid highway system is owned and operated by public agencies on behalf of the taxpayer, and final payment to a contractor for work conducted is not made until the public owner agency has inspected and certified that the project has been built to set specifications. Highway contractors do not have control over the myriad elements that affect the durability of a highway project such as level of public investment, routine maintenance, specification of design and materials, traffic volume and allowable weights.
Taken together, ARTBA believes:
- It is unreasonable for the government to require a contractor to warrant or guarantee a highway project and ARTBA will oppose such initiatives.
- ARTBA opposes the use of the latent defect clause, which holds contractors responsible or financially liable for subsequent problems or latent defects that could be caused by reasons beyond their control.
- The use of “pay-for-performance” contracts would inject subjective judgments into the open competitive bidding process and cause contractors serious financial problems by tying payment for work already performed to specification to, among other things, the durability over time of highway pavements-something contractors have little control over. Exceptions include certain public-private partnerships, when contractual language details performance measures for the developer or concessionaire.
Require Owner Agencies to Pay Damages for Delays
Currently, owner agencies are permitted to charge contractors for engineering costs associated with federal-aid surface transportation project delays caused by the contractor. Federal law should require owner agencies to compensate contractors for costs associated with project delays caused by owner decisions or inaction. These costs include those associated with idle labor and equipment, as well as design changes.
Utility Relocation
Safe relocation of utilities on transportation construction projects is literally a matter of life or death. They are also a common reason for project delays, in part because contractors do not have contractual relationships with utility companies. To alleviate these concerns, utilities should provide transportation agencies and contractors with accurate as-built information and commit to a relocation schedule related to the project, all of which the contractor can rely on in formulating a bid. Moreover, if the utility deviates from these standards, then the company should pay appropriate damages to make the contractor whole.
Hours of Service
The federal hours of service rule primarily addresses fatigue and safety risks related to long-haul motor carrier operators. In contrast, transportation construction industry drivers generally travel shorter distances and often wait in queues or carry out non-driving duties during the work day. Given this distinction, ARTBA believes industry drivers should be exempt from hours of service limitations.
U.S. DOT Training Requirements
The availability of a ready workforce is one of the biggest long-term challenges to the transportation construction industry. ARTBA supports workforce development efforts, however, U.S. DOT-mandated training requirements create an undue hardship on the construction industry and should be repealed or avoided.
Buy America
ARTBA supports a commonsense interpretation of the Buy America rule so that the burden of compliance on transportation construction contractors does not lead to the likelihood of project cost increases and delays. Therefore, ARTBA supports efforts by FHWA, the Federal Transit Administration (FTA) and other federal transportation agencies to develop nationwide waivers that would exempt commercially available off-the-shelf products due to the burden of traceability of component materials in these products and their de minimis financial impact to total project value.
At the same time, ARTBA supports Buy America protection for a core list of iron and steel components that are permanently incorporated into projects and which have been regularly enumerated by FHWA. ARTBA continues to strongly support the statutory exemption of cement and cementitious materials; aggregates such as stone, sand, or gravel; and aggregate binding agents or additives from the categories of construction materials now covered by Buy America. Moreover, the law does not and should not apply to tools, equipment, supplies, consumables and temporary components or structures used or installed at a construction site and removed before or are incidental at the completion of a project.
Ideally, compliance with Buy America begins with a design that has effectively vetted the specified materials to confirm that the iron and steel materials and manufactured products are produced and available in the United States. ARTBA supports FHWA and FTA policy modifications that would require designers and specifiers of transportation projects to assess the availability of materials to be incorporated into the project and make all reasonable efforts to use available Buy America qualified materials as the basis of design. Finally, all parties to projects should approach Buy America compliance in a collaborative manner. Disproportionately burdening the contractor with this responsibility will likely result in unneeded project cost increases and delays.