Construction

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

Laws

• 23 USC 112 Letting of Contracts (2012)

Regulations

• 23 CFR 635.411 Material or product selection (04/01/2013) (Note: this regulation does not include the stewardship, oversight, and applicability requirements resulting from the 1991 ISTEA, the 1998 TEA-21, the 2005, SAFETEA-LU, and the 2012 MAP-21. For more information on current FHWA guidance, see Walter Waidelich's March 28, 2014 Memorandum: Risk Based Stewardship and Oversight

Policy

• FHWA Contract Administration Core Curriculum Manual
• Ultra High Performance Concrete (UHPC) - Availability of Domestic Source of Steel Fiber Reinforcement and Proprietary Product Concerns (02/12/2014) provides guidance concerning the application of material or product selection requirements and Buy America requirements when contracting agencies specify UHPC
• Patented and Proprietary Products: Database of FHWA Approvals (11/14/2012)
• Guidance on Patented and Proprietary Product Approvals (11/30/2011)
• Guidance on Patented and Proprietary Product Approvals (01/11/2006)
  • Questions and Answers Regarding Title 23 CFR 635.411
• FHWA Participation in the Acquisition of AASHTO's Construction Management System and Construction Engineering Equipment (06/12/1996)
• Product Selection (11/25/1987)

Guidance

• Risk Based Stewardship and Oversight (03/28/2014)
• Construction Projects Incorporating Experimental Features (04/07/2011)

General Information

1. Product Databases
   • FHWA
     • FHWA Approvals of Patented & Proprietary Products before November 30, 2011
     • FHWA Approvals of Patented & Proprietary Products from November 30, 2011 to present
   • AASHTO Product Evaluation List (APEL)
     • Certified Products Listing (as of 03/18/2016, AZ, CO, CT, ME, MD, MT, NY, & OH)
   • State DOT
     • Alaska - Public Interest Findings, Approved for Federal Funding
     • Colorado - Findings in the Public Interest
     • Indiana: Highway Design & Technical Support - Programmatic Proprietary Material Approvals
     • Maryland: State of Maryland Patented and Proprietary Products
     • Missouri - Proprietary Item Approvals
     • Montana - Public Interest Findings and Certifications
     • North Carolina - NCDOT Approved Proprietary Products
     • Oregon - Office of Project-Letting Public Interest Findings
     • Tennessee DOT - Proprietary Products
     • Washington State - Current Blanket Proprietary Approvals
     • Wyoming - Proprietary Products
2. Sample approvals for
   1. Certification - Synchronization (23 CFR 635.411(a)(2))
      • Maine DOT - Naztec Traffic Signal Controller Compatible Equipment (.pdf)
   2. Certification - No equally suitable alternative (23 CFR 635.411(a)(2))
      • Colorado DOT - Folded Steel Plate Girder System by CDR Bridge Systems, LLC (.pdf)
   3. Experimental Product (23 CFR 635.411(a)(3))
      • Sample Experimental Work Plan
   4. Public Interest Finding (23 CFR 635.411(c))
      • Sample PIF
3. Subject Matter Experts
   • FHWA Resource Center Technical Service Teams
     • Construction & Project Management TST
     • Geotechnical TST
     • Hydraulics TST
     • Operations TST
     • Pavement & Materials TST
     • Safety & Design TST
     • Structures TST
   • FHWA Bridge, Hydraulics & Geotechnical Engineers (via Office of Bridges and Structures)
     • Bridge Technology (HIBS-1)
       • Structural Engineering Team (HIBS-10)
       • Hydraulics and Geotechnical Engineering Team (HIBS-20)
       • Structures Safety, Preservation, and Management Team (HIBS-30)
     • Division Offices
     • Federal Lands Highway
   • FHWA Construction
   • FHWA Operations
     • Program Directory - FHWA Operations
     • Key Field Directory - Federal-Aid Division Offices
     • Key Field Directory - Federal Lands Highway Division Offices
   • FHWA Pavements
   • Office of Safety (HQ) - Staff and Primary Work Responsibilities
   • FHWA Turner-Fairbank Highway Research Center
     • Office Of Infrastructure R&D
     • Office of Operations R&D
     • Office of Safety R&D
4. General Information
   • FHWA Contract Administration Core Curriculum Manual
   • Patented or Proprietary Products - FHWA Federal-aid Essentials for Local Public Agencies
5. Training
   • FHWA Contract Administration Core Curriculum (Course Description (.pdf))