Promoting Innovation
PROPRIETARY PRODUCTS
AASHTO Standing Committee on Highways
October 15, 2011
David Nicol, Director
FHWA Office of Program Administration
PROPRIETARY PRODUCTS
PERCEPTION


FHWA promotes the development of innovative
products, sometimes even providing seed money,
but ….
Once developed, we prohibit the products use on
Federal-aid projects.
AASHTO DOCKET COMMENTS (APRIL 1, 2011)
USDOT DOCKET NO. 2011-0025


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Current Federal laws and regulations: “. . . impose
broad restrictions on the states’ ability to utilize
proprietary methods, materials, and equipment on
federal-aid projects and, as a result, limit the
development of new products and discourage
innovation.”
“The State DOTs’ hands are tied when trying to use
these products because of “low-bid” requirements.”
“Currently, a new proprietary product that is
developed and placed on the market cannot easily be
used in highway construction until a “comparable”
product is produced.”
“The inability of government agencies to specify a
particular product which currently has no “equal”
limits innovation by essentially “lowering the bar” for
all products in order to artificially produce competition
within the market.”
23 CFR 635.411
 Patented




items allowed when:
Bid competitively with equally suitable
unpatented items
State certifies:
Essential for synchronization
No equally suitable alternative exists
Used for research
FHWA makes Public Interest Finding
even though other suitable alternatives
exist
IMPLEMENTATION ISSUES

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Inconsistent interpretation among Divisions
Non-uniform understanding of certification vs.
public interest finding
Non-uniform understanding of FHWA approval
requirements
No central repository of approved proprietary
products
UPDATED GUIDANCE



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Clarifies differences between Certifications and
Public Interest Findings
Clarifies approval authorities for States and
FHWA
Clarifies experimental use when participating in
certain programs
Provides transparency
CERTIFICATIONS VS. PIFS

Certification
No suitable alternative
 Essential for synchronization


Public Interest Finding

Other alternatives exist
APPROVAL REQUIREMENTS

Certifications
Certified by State DOT
 No FHWA approval required
 Approval cannot be delegated to local agencies


Public Interest Findings
FHWA Division Administrator approval required
 May be delegated to State DOT via Stewardship
Agreement
 Cannot be redelegated to local agencies.

CERTIFICATIONS

Certification must include:

Statement by the appropriate State official certifying
that the proprietary product is:
Essential for synchronization, or
 That no equally suitable alternative exists


Certification also should include documentation
supporting the determination.
Unique need being addressed
 Why other products cannot meet the need

PUBLIC INTEREST FINDINGS

Public Interest Finding includes:
Request from State DOT, including supporting
information
 Approval by FHWA, considering:

Evaluation of equally acceptable products
 Benefit to public
 Additional costs, if any
 Duration and extent of approval


Approval may be delegated to State DOT
EXPERIMENTAL USE
Clarifies that products which have been approved
under special funding/evaluation programs do not
need additional certifications or approvals under
23 CFR 635.411 for the use of patented or
proprietary products.
 Examples:

Highways for Life
 Innovative Bridge Research and Deployment
Program
 Innovative Pavement Research and Deployment
Program

TRANSPARENCY
FHWA has posted all “Public Interest Findings”
on its website
 Sortable by:

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State
Basis of approval
Product name
Product type
Extent (project, statewide)
Approval date
Expiration Date
Many of these “Public Interest Findings” could
have/should have been Certifications
FHWA APPROVALS OF PATENTED AND PROPRIETARY
PRODUCTS
HTTP://WWW.FHWA.DOT.GOV/CONSTRUCTION/CONTRACTS/PNPAPPROVALS/INDEX.CFM
FHWA HEADQUARTERS CONTACT: JOHN HUYER, 202-366-1937
TRANSPARENCY

Where will certifications be posted?

FHWA website
Central location
 Requires submittal to FHWA


State DOT websites
No central location
 No submittal to FHWA


AASHTO website (APEL)
Central location
 No submittal to FHWA


Post all, or just “no suitable alternative”?
QUESTIONS
AND
COMMENTS