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Superseded: See the Patented and Proprietary Products Construction Program Guide

Subject: Product Selection Date: November 25, 1987
From: Associate Administrator for Engineering and Program Development Refer To: HHO-32
To: Regional Federal Highway Administrators

Recently we have had discussions with the International Barrier Corporation (IBC) regarding the application of its patented sand-filled steel barrier system to Federal-aid highway projects. At issue is the proper manner in which IBC should compete with other similar barrier products. The FHWA policy relative to equally acceptable products was explained, and IBC was assured that its product would be given equal treatment under this policy. This memorandum is to advise you of these discussions and to assure uniform application of the agency's policy on product selection.

The IBC issue is a continuation of dialogue between the FHWA and IBC which began in 1985. At that time, IBC presented crash test data and information relative to several installations of its product in Canada and Florida. Based on an evaluation of the system's performance, the FHWA in a December 26, 1985, letter to IBC advised that its traffic barrier was acceptable as an operational barrier for Federal-aid highway projects and further that the demonstrated performance characteristics for automobiles and school buses were comparable to the standards (32-inch) concrete safety-shaped barrier. An information copy of this letter (attached for ready reference) was sent to all regional offices.

Basic FHWA policy on product selection is found in 23 CFR 635.411 and its companion directive, FHPM 6-4-1-16, paragraph 8. A review of this policy identifies a process which should be followed by States in product selection when: (1) more than one product is available which may fulfill the project requirements; and (2) Federal-aid participation is desired.

Whenever there are several suitable products available which may fulfill project requirements, a State will undertake an engineering and economic analysis. The analysis should determine whether the products are of satisfactory quality and equally acceptable to meet the given requirements and whether the anticipated costs for the products are approximately the same. The degree of analysis should be commensurate with the value and complexity of the products involved, with cost comparisons based on comparable designs to meet product requirements using the anticipated service life for each product. The findings should be documented in the project file.

When, based on the analysis, more than one product is judged to be acceptable to fulfill project requirements the PS&E for the project will either contain or include by reference specifications for each such product. The policy requires that this process be followed except when the State can document to the satisfaction of the Division Administrator that even though there are other acceptable products the specifying of a particular product is in the public interest. Failure to adhere to this policy may subject the State to loss of Federal-aid participation as discussed further in 23 CFR 635.411(c).

Although not specifically mentioned in the regulation, the previously described process is equally applicable to proprietary products as it is to nonproprietary products. This means, for example, that in the selection of a traffic barrier for a Federal-aid project, an engineering and economic analysis needs to be performed by the State of all available products which may fulfil the project requirements, both proprietary and nonproprietary.

Since the FHWA has determined the IBC proprietary barrier to be acceptable as an operational barrier for Federal-aid projects, this product is to be considered by the State when conducting the analysis of potential barrier designs. The analysis would typically include related aspects of the median design such as drainage and foundation requirements where they may differ. If, based upon the analysis, more than one product (i.e., barrier design) would adequately fulfill project requirements the contract should include these products as alternatives with the lowest bid determining the ultimate choice.

/s/ original signed by
Ronald E. Heinz


Updated: 10/09/2019
Federal Highway Administration | 1200 New Jersey Avenue, SE | Washington, DC 20590 | 202-366-4000