What Federal Funding is Available for Positive Protection?

NHPP, STBGP, and HSIP

The Infrastructure Investment and Jobs Act of 2021 (IIJA) amends the Highway Safety Improvement Program (HSIP) to increase funding & protection for "Vulnerable Road Users", which includes "highway workers on foot".

FHWA recently clarified that States can now use federal funds to acquire Mobile Barriers MBT-1 and other construction and safety equipment. States can use NHPP, STBGP or HSIP funds (e.g. leftover or otherwise available funds from most projects). States may find it advantageous to first transfer funds from NHPP or STBGP to HSIP under 23 U.S.C. 126, and then purchase barriers under the HSIP program. Barriers purchased under the HSIP program can be used for maintenance & construction on federal & state roads. The State share under HSIP is 10% (federal funds can be used for 90% of the purchase). The FHWA also clarified that States can directly purchase barriers (i.e. they do not have to purchase them through separate projects).

Federal funds can be used for up to 100% of the purchase when projects use "innovative project delivery" methods to improve work zone safety. IIJA amended the definition of "innovative project delivery" to include "provisions that provide safety contingency funds to incorporate safety enhancements to work zones prior to or during roadway construction activities". LHSFNA writes, "Safety Contingency Funding can address this issue by providing additional dollars for a range of interventions, including: Traffic control items such as mobile barriers...To make use of these safety contingency funds, state DOTs and contractors need to add a 'safety allowance' line item in their bid specifications."

How Can Contractors Obtain & Use Positive Protection?

Contractors have options on how to pay for and use positive protection. Options vary for different products. As one example, Mobile Barriers MBT-1 are available to buy, lease or rent.

Federal law and the national standards identify types of projects that need positive protection. For such projects, a “separate pay item” for positive protection is required under federal law and regulations. ^{1, 11} Contractors can urge States to include positive protection in their plans. States can have a reimbursement mechanism for improving safety (i.e. by spec or change order). States can also purchase Positive Protection for their employees and contractors to use.

State personnel may not be aware of the recent changes in federal policy and may not realize they can directly purchase the barriers or that they can take the barriers back at the end of the contract for future use. Traditionally, that has not typically been allowed.

Under the new FHWA policy, states can directly purchase or spec-in and reclaim Mobile Barriers MBT-1 and other safety and construction equipment for use by their crews and contractors.

• States can buy positive protection barriers directly, then allow their crews and/or winning contractors use them (i.e. buy and provide). Direct purchases are specifically allowed under the new FHWA policy.
• States can spec in barriers, allow winning contractors to use them, and then the States can take ownership and possession at the end of the term. This allows all bidders to include them and later transfers the barriers back to the state for its own use and/or for use on the next contract.
• States can spec in barriers, then allow winning contractors to rent or buy them at the end of the term.