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.

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; and
• The FHWA Division Administrator may approve a single source if it can be found that its utilization is in the public interest.

Authority/Legal Basis

1. Laws
   • Title 23 U.S.C. 112
2. Regulations
   • Title 23 C.F.R. 635.411
   • (Note: this regulation has not been revised since 1976 and does not include the stewardship, oversight, and applicability requirements resulting from the 1991 ISTEA and the 1998 TEA-21. See the discussion in the FHWA Contract Administration Core Curriculum Manual for current FHWA policy.)
3. Orders
   • None
4. Policy
   • The FHWA Contract Administration Core Curriculum Manual
   • Policy Memoranda
     • Mr. Ronald E. Heinz's memorandum dated November 25, 1987; Subject: "Product Selection"
     • Mr. Dwight Horne's memorandum dated January 11, 2006; Subject: "Guidance on Patented and Proprietary Product Approvals"
       • Questions and Answers Regarding Title 23 CFR 635.411.

Guidance

1. General Information
   • FHWA Contract Administration Core Curriculum Manual
2. Training
   • FHWA Contract Administration Core Curriculum (Course Description)