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Intelligent transportation systems are supposed to eliminate this, but road departments can't fully utilize the most important key to the solution: the real-time data.

To get around the threat of competitive procurement, the company worked on a novel legislative maneuver. Although the program has virtually nothing to do with defense, the FY2002 defense appropriations bill included language that authorized the DOT to extend the program contract to “the same competitively selected consortium leader” selected for the earlier pilot contract for Philadelphia and Pittsburgh.

Transportation Secretary Norman Mineta then exercised his authority to expand the program to 25 more cities on a sole-source basis. Soon afterward, the FHWA formally signed the task order enabling Traffic.com to be the sole-source provider for services under the program's umbrella.

From 2002 to 2004, state and local agencies representing 14 cities — including Boston, Chicago, and Washington, D.C. — signed up for the program. Traffic.com tapped into its existing data sources and installed its pole-mounted radar traffic sensors to create its “Digital Traffic Pulse sensor network.”

As discussions about the reauthorization of the transportation bill were heating up in early 2005, several of the company's competitors complained to their elected representatives. Wavetronix of Lindon, Utah, was one of the most outspoken. It markets the “SmartSensor” line of digital wave radar traffic sensors, which compete with Traffic.com's pole-mounted traffic sensors. Wavetronix sought the assistance of its state's senior senator, Republican Orrin Hatch.

Through the spring and summer of 2005, Hatch, joined by several House members led by New York Democrat Anthony Weiner, worked to add language to SAFETEA-LU that would open up the program to competition. In the end, he used the conference process to add the language, which said in part that for the program's new Part II, “the Secretary shall award, on a competitive basis, contracts for the deployment of intelligent transportation infrastructure systems that have been accepted by the Secretary in congested areas.”

On the same day that Hatch and Weiner were celebrating their legislative triumph, Young inserted a statement in the Congressional Record that intended to starve funding for the Part II phase. The statement said it was “the conferees' intent that all of the existing $54 million that has been provided for the current contracting team would be used to carry out the existing contract to deploy the current highway congestion information system under Part I.”

In other words, the DOT should continue the program under the no-compete terms and ignore the Part II provisions unless new funds were forthcoming.

Young got his way. All 11 agreements signed by state and local governments — including the cities of Atlanta, Las Vegas, San Jose, Calif., and Baltimore — under SAFETEA-LU have been under Part I provisions of the law. In January 2007, Hatch wrote Transportation Secretary Mary Peters, Mineta's successor, asking why none of the agreements utilized Part II. Her response contained a list that confirmed his assertion that the DOT was managing the program to maintain Traffic.com's involvement, but she avoided an explanation as to why.

Hatch wrote Peters again, complaining that her response “does not address my central concern: why the monopoly for Traffic.com has largely continued since the passage of language in SAFETEA-LU specifically was designed to eliminate that monopoly.” Peters delegated the response to the department's acting general counsel, who claimed the statute “expressly requires the Department to complete the original contract, [so] the majority of the funding that has been provided is committed to Part I.”

Neither Hatch nor Weiner was satisfied with that answer.