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MEMORANDUM
Subject: Guidance on Patented and Proprietary Product Approvals Date: January 11, 2006
From: /s/ Original signed by:
Dwight Horne
Director, Office of Program Administration
Refer To: HIPA-30
To: Directors of Field Services
Resource Center Managers
Division Administrators

The FHWA regulation in 23 CFR 635.411, "Material or product selection," prohibits the expenditure of Federal-aid funds on a Federal-aid highway project "for any premium or royalty on any patented or proprietary material, specification, or process" (referred to hereafter as "proprietary product"), unless specific conditions are met. This regulation is intended to ensure competition in the selection of materials, products, and processes while also allowing the opportunity for innovation where there is a reasonable potential for improved performance.

These requirements are not intended to limit the development of new materials, equipment or methods or to discourage ingenious utilization of them. New materials, equipment or methods that show sufficient promise may be approved for inclusion and evaluated as appropriate pursuant to 23 CFR 635.411. Also, in accordance with 23 CFR 635.411, State DOTs may specify a higher standard of performance (i.e., above what would normally be set) on certain construction projects even though it would result in a single product being available. Specific guidance on these circumstances is addressed in the following paragraph.

This office has recently become aware of several instances where there may have been some inconsistency in the interpretation of FHWA policies regarding proprietary products. To address this issue, we have posted a list of questions and answers on the FHWA web site to:

  • Provide additional guidance regarding the use of patented and proprietary products on Federal-aid projects under 23 CFR 635.411, and
  • Clarify the applicability of 23 CFR 635.411 to both National Highway System (NHS) projects and non-NHS projects.

If you have any questions about this policy or desire further information, please contact one of the following: