Construction Program Guide

Patented and Proprietary Products

FHWA policy prohibits contracting agencies from requiring the use of a patented or proprietary material, specification, or process, unless:

• The item is purchased or obtained through competitive bidding with equally suitable unpatented items, or
• The contracting agency certifies either that the proprietary or patented item is essential for synchronization with the existing highway facilities or that no equally suitable alternative exists, or
• The item is used for research or for a special type of construction on relatively short sections of road for experimental purposes. In such cases, the contracting agency should follow FHWA's Construction Projects Incorporating Experimental Features
• If there are other equally acceptable materials or products available, the contracting agency may require a specific material or product when the Division Administrator approves of its use as being in the public interest.

In addition:

• Materials and products that are determined to be equal may be bid under generic specifications. If only patented or proprietary products are acceptable, they should be bid as alternatives with all, or at least a reasonable number of, acceptable materials or products listed;

Authority/Legal Basis

1. Laws
   • Title 23 U.S.C. 112
2. Regulations
   • Title 23 C.F.R. 635.411
   • (Note: this regulation does not include the stewardship, oversight, and applicability requirements resulting from the 1991 ISTEA and the 1998 TEA-21. See the discussion in the FHWA Contract Administration Core Curriculum Manual for current FHWA policy.)
3. Orders
   • None
4. Policy
   • The FHWA Contract Administration Core Curriculum Manual
   • Policy Memoranda
     • Mr. Ronald E. Heinz's November 25, 1987 Memorandum; Subject: "Product Selection"
     • Mr. Dwight Horne's January 11, 2006 Memorandum; Subject: "Guidance on Patented and Proprietary Product Approvals"
       • Questions and Answers Regarding Title 23 CFR 635.411.
     • Mr. King Gee's November 30, 2011 Memorandum; Subject Guidance on Patented and Proprietary Product Approvals
     • Mr. David Nicol's November 14, 2012 Memorandum: ACTION: Patented and Proprietary Products: Database of FHWA Approvals

Guidance

1. Product Databases
   • FHWA
     • FHWA Approvals of Patented & Proprietary Products before November 30, 2011
     • FHWA Approvals of Patented & Proprietary Products from November 30, 2011 to present
   • AASHTO Product Evaluation List (APEL)
     • Certified Products
   • State DOT
     • Colorado - Findings in the Public Interest
     • Indiana: Highway Design & Technical Support
     • Oregon - Office of Project-Letting Public Interest Findings
     • Tennessee - Proprietary Product Certifications
     • Washington State - Current Blanket Proprietary Approvals
     • Wyoming - Proprietary Products
2. Sample approvals for
   1. Certification - Synchronization (23 CFR 635.411(a)(2))
      • Maine DOT – Parking access control software by Amano McGann
   2. Certification - No equally suitable alternative (23 CFR 635.411(a)(2))
      • Maine DOT - Carbon Fiber Composite Cable by Cable Technologies, Inc.
   3. Experimental Product (23 CFR 635.411(a)(3))
      • Sample Experimental Work Plan
   4. Public Interest Finding (23 CFR 635.411(c))
      • Sample PIF
3. Subject Matter Experts
   • FHWA Resource Center Technical Service Teams
     • Construction & Project Management TST
     • Geotechnical TST
     • Hydraulics TST
     • Operations TST
     • Pavement & Materials TST
     • Safety & Design TST
     • Structures TST
   • FHWA Bridge, Hydraulics & Geotechnical Engineers (via Office of Bridge Technology 09/26/2012)
     • Bridge Technology (HIBT-1)
       • Bridge & Tunnel Team (HIBT-10)
       • Hydraulics & Geotechnical Team (HIBT-20)
       • Bridge Programs Team (HIBT-30)
     • Division Offices
     • Federal Lands Highway
   • FHWA Construction & Project Management
   • FHWA Design
   • FHWA Operations
     • Program Directory - FHWA Operations HQ (08/31/2012)
     • Key Field Directory - Federal-Aid Division Offices (10/02/2012)
     • Key Field Directory - Federal Lands Highway Division Offices (08/14/2012)
   • FHWA Safety
   • FHWA Turner-Fairbank Highway Research Center
     • Office Of Infrastructure R&D
     • Office of Operations R&D
     • Office of Safety R&D
4. General Information
   • FHWA Contract Administration Core Curriculum Manual
   • Patented or Proprietary Products - FHWA Federal-aid Essentials for Local Public Agencies
5. Training
   • FHWA Contract Administration Core Curriculum (Course Description)