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Federal Highway Administration
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Washington, DC 20590
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Construction

 

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

Laws
Regulations
  • 23 CFR 635.411 Material or product selection (04/01/2013) (Note: this regulation does not include the stewardship, oversight, and applicability requirements resulting from the 1991 ISTEA, the 1998 TEA-21, the 2005, SAFETEA-LU, and the 2012 MAP-21. For more information on current FHWA guidance, see Walter Waidelich's March 28, 2014 Memorandum: Risk Based Stewardship and Oversight
Policy

Guidance

General Information
  1. Product Databases
  2. Sample approvals for
    1. Certification - Synchronization (23 CFR 635.411(a)(2))
    2. Certification - No equally suitable alternative (23 CFR 635.411(a)(2))
    3. Experimental Product (23 CFR 635.411(a)(3))
    4. Public Interest Finding (23 CFR 635.411(c))
  3. Subject Matter Experts
  4. General Information
  5. Training
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Updated: 08/22/2016
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