The Open and Fair Competition Act for Water and Wastewater Projects


This Act ensures that all proven and acceptable piping materials are included in all bids for water and wastewater projects. All pipe materials should be qualified and selected based on sound engineering principles. The language in the Act continues to allow autonomy for design engineers, but simply requires the decisions to be governed by established technical standards. By allowing contractors to bid on alternate pipe materials that meet technical performance criteria, the state will instill accountability in the procurement process, which will reduce costs, improve quality and foster innovation in the form of new products and services, spurring economic growth.

Model Policy

{Title, Enacting clause, etc.}

Be it enacted by the legislature of the state of [insert state].

Section 1. {Legislative Findings}

(A) According to the Environmental Protection Agency (EPA), underground piping represents 60 percent of the total spending for water and wastewater infrastructure. Updating procurement policies for water and sewer piping could help [insert state] and its political subdivisions realize significant costs savings and ensure that state funding for underground infrastructure is more cost-effective.

Section 2. {Definitions}

(A) “Governmental Agency” refers to any state agency, state district, county government, municipality, and including a school district, public district, county board of education, joint powers authority, water or sewer district, special district, or any other public or municipal corporation.

(B) “Acceptable Piping Material” refers to piping material that meets current and recognized standards as issued by the American Society for Testing and Materials (ASTM) and the American Water Works Association (AWWA)..

(C) “Project” refers to any water or wastewater utility service improvement project funded through loans or grants provided by Clean Water State Revolving Funds (CWSRF) or Drinking Water State Revolving Funds (DWSRF).

Section 3. {Procurement Procedures for Water and Wastewater Piping}

(A) Government agencies shall engage in open competitive bidding to study, plan, design, construct, develop, finance, maintain, rebuild, improve, repair, or operate water and wastewater utilities; and

(B) All procurement transactions for piping material shall be conducted in a manner that provides for maximum open and free competition.

(C) Unlawful restrictions on competition include, but are not limited to specifying only a brand name product or particular type of material instead of either allowing an equal product to be offered, or describing the performance of the relevant requirements of the procurement.

(D) The specifications for a public works project must provide that all acceptable piping materials may be acquired for and used in the project.

(E) The Governmental Agency and design engineers shall have the autonomy to set technical material performance criteria based on specific project conditions.

(F) This Act specifically prohibits government agency employees from participating in the selection process when those employees have a relationship with private entities seeking a contract under this Act or as proscribed by existing state or local contracting law.

(G) All procurement transactions, regardless of whether by sealed bids or by negotiation and without regard to dollar value, shall be conducted in a manner that provides maximum open and free competition. Procurement procedures shall not restrict or eliminate competition.

(H) In addition, the Governmental Agency shall consider acceptable piping material to be suitable for the project only if the use of that material is commensurate with sound engineering practices and project requirements.

(I) The use of any particular pipe material shall not be mandated, nor shall the ability of project engineers to use any piping material that meets specifications be restricted.

Section 4. {Severability clause}

Section 5. {Repealer clause}

Section 6. {Effective date}

Approved by ALEC Board of Directors on October 18, 2012.

Approved by the ALEC Board of Directors June 29, 2015

Keyword Tags: 2015 STFS, Commerce Insurance and Economic Development Task Force, EPA, Pipeline, Transportation, Water