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Publication Number: FHWA-HRT-12-009
Date: December 2011

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FHWA Releases New Guidance on Patented and Proprietary Products

New guidance released by the Federal Highway Administration (FHWA) clarifies existing regulations on the use of patented and proprietary products for Federal-aid highway projects. The regulations are contained in 23 Code of Federal Regulations (CFR) 635.411. The revised guidance ensures that implementation of the regulations does not conflict with FHWA’s goal of promoting innovation in highway projects.

The guidance emphasizes that a State transportation agency may specify proprietary products when the agency certifies that no suitable alternative product exists, such as in the case of an innovative product that offers better performance, or that the product is needed for synchronization with existing highway facilities. The updated guidance encourages State transportation agencies to post their proprietary product certifications on the American Association of State Highway and Transportation Officials’ Product Evaluation List (APEL) Web site (http://apel.transportation.org). The APEL site will be fully functional by January 2012.

Other circumstances under which Federal-aid highway funds may be applied to the cost of a patented or proprietary product on a Federal-aid highway construction project include competitive bidding; for research or experimental purposes; or, if other equally suitable products exist, if FHWA approves a public-interest finding (PIF). The approved PIF will be posted on the FHWA Web site at www.fhwa.dot.gov/construction/contracts/pnpapprovals/index.cfm.

The guidance also clarifies that additional FHWA approvals are not required when proprietary products are being evaluated in an FHWA-sponsored program, such as the Highways for LIFE program, Innovative Bridge Research and Deployment Program, and Innovative Pavement Research and Deployment Program. Once the work of the program is complete, the existing regulations as contained in 23 CFR 635.411 would apply to further use of the proprietary product.

To view FHWA’s updated guidance, visit www.fhwa.dot.gov/programadmin/contracts/011106qa.cfm. For more information on the guidance, contact John Huyer at FHWA, 202-366-1937 (email: john.huyer@dot.gov).

PDF files can be viewed with the Acrobat® Reader®
Updated: 12/23/2011

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