U.S. Department of Transportation
Federal Highway Administration
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Washington, DC 20590

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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



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
Updated: 08/21/2018
Federal Highway Administration | 1200 New Jersey Avenue, SE | Washington, DC 20590 | 202-366-4000