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