1. AASHTO 2016 NTPEP Annual Meeting May 9, 2016
FHWA Policy Basics: Patented & Proprietary Products under 23 CFR
John Huyer, P.E.
Contract Administration Group
Office of Program Administration
FHWA Office of Infrastructure

2. Patented & Proprietary Products - References
Construction Program Guide Web Page – Patented & Proprietary Products:
Revised Q&A – 23 CFR :
FHWA 11/30/2011 Memorandum: Information: Guidance on Patented and Proprietary Product Approvals
FHWA 11/14/2012 Memorandum: ACTION: Patented & Proprietary Products: Database of FHWA Approvals
Database - FHWA Approvals of Patented & Proprietary Products:
AASHTO APEL State Certified Products:

3. Competitive Bidding
23 U.S.C. 112 – “…construction … shall be performed by contract awarded by competitive bidding”
Extends to the individual bid items in a contract.
Sec Letting of contracts
(a) In all cases where the construction is to be performed by the State transportation department or under its supervision, a request for submission of bids shall be made by advertisement unless some other method is approved by the Secretary. The Secretary shall require such plans and specifications and such methods of bidding as shall be effective in securing competition.
(b) Bidding Requirements.—
(1) In general.--Subject to paragraphs (2) and (3), construction of each project, subject to the provisions of subsection (a) of this section, shall be performed by contract awarded by competitive bidding, unless the State transportation department demonstrates, to the satisfaction of the Secretary, that some other method is more cost effective or that an emergency exists. Contracts for the construction of each project shall be awarded only on the basis of the lowest responsive bid submitted by a bidder meeting established criteria of responsibility. No requirement or obligation shall be imposed as a condition precedent to the award of a contract to such bidder for a project, or to the Secretary's concurrence in the award of a contract to such bidder, unless such requirement or obligation is otherwise lawful and is specifically set forth in the advertised specifications.

4. Competitive Bidding
FHWA requires a justification to deviate from competitive bidding principles

5. Competitive Bidding
Allowable deviations from competitive bidding principles include
Other Methods (with FHWA approval)
Special Experimental Project No. 14
Emergencies
23 CFR

6. 23 CFR
Allows Federal Participation for Proprietary products when:
Bid competitively with equally suitable non-proprietary products, or
State certifies:
Essential for synchronization, or
No equally suitable alternative exists, or
Experimental Use, or
FHWA makes Public Interest Finding even though other suitable alternatives exist

7. Construction
Proprietary Products issues can come up during construction!!
If a Contract Change Order specifies a proprietary product, it must meet criteria in 23 CFR for Federal participation.
If criteria not met, funding for product must come from non-Federal sources (State DOT, Local Agency, etc.)
Sec Letting of contracts
(a) In all cases where the construction is to be performed by the State transportation department or under its supervision, a request for submission of bids shall be made by advertisement unless some other method is approved by the Secretary. The Secretary shall require such plans and specifications and such methods of bidding as shall be effective in securing competition.
(b) Bidding Requirements.—
(1) In general.--Subject to paragraphs (2) and (3), construction of each project, subject to the provisions of subsection (a) of this section, shall be performed by contract awarded by competitive bidding, unless the State transportation department demonstrates, to the satisfaction of the Secretary, that some other method is more cost effective or that an emergency exists. Contracts for the construction of each project shall be awarded only on the basis of the lowest responsive bid submitted by a bidder meeting established criteria of responsibility. No requirement or obligation shall be imposed as a condition precedent to the award of a contract to such bidder for a project, or to the Secretary's concurrence in the award of a contract to such bidder, unless such requirement or obligation is otherwise lawful and is specifically set forth in the advertised specifications.

8. Requirements Certifications Public Interest Findings
Certified by State DOT
No FHWA approval required
FHWA can contest the certification
State DOT option to accept Local Public Agency (LPA) certification
Public Interest Findings
FHWA Division Administrator approval required
In some States, delegated to State DOT via Stewardship Agreement
Can be redelegated to LPAs.

9. Certifications Must include: Should include supporting documentation.
Statement by the appropriate State official certifying that the proprietary product is:
Essential for synchronization, or
That no equally suitable alternative exists
Should include supporting documentation.
Unique need being addressed
Why other products cannot meet the need

10. Public Interest Finding
Includes:
Request from State DOT, including supporting information
Approval by FHWA, which considers:
Evaluation of equally acceptable products
Benefit to public
Additional costs, if any
Duration and extent of approval
Approval may be delegated to State DOT

11. November 30, 2011 Guidance
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

12. Certifications vs. PIFs (Old process)
Certification = Public Interest Finding
No difference in process
de facto process – Everything treated as a PIF
State DOTs had to request FHWA approval to use proprietary products, even with certifications
Problem – Process did not conform to language of regulation.

13. Certifications vs. PIFs (Old process)
Industry Complaint: – Process too Restrictive
Asserted that regulation kept innovative products from use
Attempted legislative remedies that would have prevented FHWA from contesting certifications

14. Certifications vs. PIFs
(New process)
Certification ≠ PIF

15. Certifications vs. PIFs
(New process)
Guidance = regulation language
Certification
Essential for synchronization
No suitable alternative
Public Interest Finding
Other alternatives exist

16. Experimental Use
Proprietary products approved under special funding/evaluation programs do not require additional certifications or approvals under 23 CFR
Examples:
Highways for Life ( )
Every Day Counts ( )
Section 1304 of MAP-21 ( )
12. Do the requirements of 23 CFR apply to products or processes that FHWA is promoting through special funding/evaluation programs (e.g. Highways for Life, Innovative Bridge Research and Deployment Program, Innovative Pavement Research and Deployment Program. etc)?
No. Products which have been approved under special funding/evaluation programs do not need additional certifications or approvals under 23 CFR for the use of patented or proprietary products. The FHWA's approval of funding for these evaluation projects is essentially a finding that it is in the public interest to proceed with the evaluation of these unique products. However, additional use of these products on other Title 23-funded projects that are not funded under these special funding/evaluation programs must comply with 23 CFR

17. Experimental Use
However, additional use of these products on other Title 23-funded projects not funded under these special funding/evaluation programs must comply with 23 CFR
12. Do the requirements of 23 CFR apply to products or processes that FHWA is promoting through special funding/evaluation programs (e.g. Highways for Life, Innovative Bridge Research and Deployment Program, Innovative Pavement Research and Deployment Program. etc)?
No. Products which have been approved under special funding/evaluation programs do not need additional certifications or approvals under 23 CFR for the use of patented or proprietary products. The FHWA's approval of funding for these evaluation projects is essentially a finding that it is in the public interest to proceed with the evaluation of these unique products. However, additional use of these products on other Title 23-funded projects that are not funded under these special funding/evaluation programs must comply with 23 CFR

18. Transparency
FHWA posts only FHWA-approved “Public Interest Findings” and Experimental Products on its website
Sortable by:
State
Basis of approval
Product name
Product type
Extent (project, statewide, region/district, etc.)
Approval date
Expiration Date

19. FHWA Approvals of Patented and Proprietary Products http://www. fhwa
FHWA Approvals of Patented and Proprietary Products FHWA Headquarters Contact: John Huyer,

20. Transparency (as of 10/13/2015)
FHWA posts ONLY FHWA approvals of Proprietary Products on FHWA website
Total = 566
Experimental products = 34
Public Interest Findings = 532

21. Transparency (as of 10/13/2015)
Other Lists of Specified Proprietary Products:
APEL Certified Product Listing website
Certifications, Experimental Products, & PIFs = 43 (AZ, CO, CT, ME, MD, MT, NY, OH)
State DOT websites
Certifications, Experimental Products, & PIFs = 370 (AK, CO, IN, MD, MO, MT, NC, OR, TN, WA, WI, WY)
Not on any website
Certifications, Experimental Products, & PIFs = 480
Total Products not listed on FHWA web site = 893
Total Products from all sources = 1459

22. Transparency
FHWA recommends that State DOTs post their Proprietary Products to either:
APEL Certified Product Listing website
( ); or
A publicly accessible website
(State DOT website)

23. Transparency
FHWA cannot require that State DOTs post their Proprietary Product information to either:
The APEL State Certified Products website at
; or to
A publicly accessible website (State DOT website)
Unless FHWA successfully changes the regulation at 23 CFR through the rule making process.

24. Transparency AASHTO APEL Site – State Certified Products
8 State DOTs (AZ, CO, CT, ME, MD, MT, NY, OH)

25. Transparency State DOT Web Sites (12)
AK, CO, IN, MD, MO, MT, NC, OR, TN, WA, WI, WY
Alaska - Public Interest Findings, Approved for Federal Funding
Colorado - Findings in the Public Interest
Indiana: 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
Wisconsin – Approved Statewide Proprietary Products
Wisconsin – Log Sheet of Patented or Proprietary Products
Wyoming - Proprietary Products

26. Patented & Proprietary Products 23 CFR 635.407 vs 23 CFR 635.411
23 CFR (d) Use of materials made available by a public agency
Manufactured Material
Material acquired on a competitive basis
Commodity Contract
Requires use of State DOT-provided Material
State DOT Develops Public Interest Finding, FHWA Division Concurs
Federal eligible cost ≤ cost to State DOT (include this in contract)
May place State DOT in competition with the private sector
23 CFR Material or Product Selection
Material acquired as a part of a highway construction contract under 23 USC 112 and 23 CFR 635 Subpart D
Unit price includes cost to construct
Federal Participation for Patented or Proprietary Products
Competitive Bidding
Certification
Experimental Use
Public Interest Finding

27. Questions and Comments

28. For further information please contact:
John Huyer, P.E.
FHWA
Contract Administration Group (HIPA-30)
(651)
The FHWA Division Office in your state