Hawaii DOT Finds Itself Dealing With Two Major Highway Crises at Once

ARTBA Reports at DOT Meeting

Fri March 18, 2011 - National Edition
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Maximizing efficiency, minimizing cost and preserving safety in the design and construction of transportation improvement projects can be achieved with reforms to several key regulations, the American Road & Transportation Builders Association (ARTBA) March 14 told officials at a U.S. Department of Transportation (U.S. DOT) public meeting. ARTBA was the only construction-related association to testify.

Marc Herbst, executive director of the Long Island Contractors’ Association and vice chair of ARTBA’s Council of State Executives, said the disadvantaged business enterprise program (DBE) regulations often diverge from the transportation construction industry’s customary business practices, thus undermining efforts to provide the most efficient, cost-effective projects for the taxpayers while doing nothing to assist emerging, disadvantaged businesses in the sector. He cited the example of a prime contractor who also is a major materials supplier, which is fairly common since many contractors are vertically integrated.

“Since local ordinances or other environmental regulations often limit the number of plants or quarries in a given region, it may be the case that the prime contractor is one of the few suppliers in a geographic area for those construction materials,” Herbst said. “Normally, a DBE subcontractor would not hesitate to purchase materials from the prime contractor if it made business sense and the price was right. Yet the DBE program, as currently implemented, does not allow the cost of those materials to be counted towards the project’s DBE goal.”

Even if the prime contractor is offering a favorable price and sales terms, Herbst said, there is a strong incentive for the DBE subcontractor to turn away from what may be the most efficient option, which would benefit the project’s owner and the taxpayers, and instead purchase more expensive materials to help meet the DBE project goal. He called on the U.S. DOT to again reconsider its intention not to change this interpretation of the rule.

“We would ask for the department to revisit this issue and make more of an effort to take the industry’s customary business practices and efficiency into account as you implement this aspect of the DBE rule,” Herbst said.

The ARTBA chapter executive also said the unique work of transportation construction industry professionals warranted an exemption from the Federal Motor Carrier Safety Administration “hours of service” rule for commercial vehicle drivers.

“Transportation construction industry drivers are not long-haul operators who consistently spend many consecutive hours on the road in a given day. They are short-haul drivers who typically travel less than 20 miles one way,” Herbst said. “Many of our drivers spend substantial amounts of time off the road during the work day, loading and unloading materials or equipment, which allows for short breaks. Others may be responsible for positioning a piece of mobile equipment at the beginning of the work day, but may not be back behind the wheel until day’s end so that their daily drive time is actually minimal.”

In recent years, Herbst noted, the transportation construction industry and many public-sector transportation agencies have been using accelerated construction techniques more frequently. These efforts require intensive work by the contractor on a bridge or roadway over a short period of time to minimize inconvenience to the public. Because the hours of service rule limits the time drivers can be on duty, the contractor may need to hire additional drivers in these situations, adding to the project’s expense without a requisite increase in safety.

Finally, the association testimony encouraged the greater use of proprietary products in highway construction. Herbst cited the recent report of a task force on accelerating highway project delivery, which included ARTBA, federal and state transportation officials and other industry representatives. The task force noted that patented and proprietary products are often unable to enter the nation’s transportation market because of a specific Federal Highway Administration (FHWA) regulatory provision implemented whose exceptions require voluminous documentation and are often narrowly interpreted.

Herbst said: “The task force recommended that FHWA encourage innovation by better relying on the states to make decisions about the use of proprietary products, rather than putting the burden on the states to prove their need to FHWA. Accordingly, we reiterate ARTBA’s desire for FHWA to revisit these regulations and related guidance materials.”