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 patented or proprietary item is either:
  • Necessary for synchronization with existing facilities; or
  • A unique product for which there is no equally suitable alternative.
• 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, or
• 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

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.
     • Mr. King Gee's memorandum dated November 30, 2011; Subject: INFORMATION: Guidance on Patented and Proprietary Product Approvals

Guidance

1. FHWA-Approvals of Patented & Proprietary Products
2. General Information
   • FHWA Contract Administration Core Curriculum Manual
   • FHWA Approvals of Patented and Proprietary Products
3. Training
   • FHWA Contract Administration Core Curriculum (Course Description)