PROPRIETARY PRODUCTS
Promoting Innovation
David Nicol, Director FHWA Office of Program Administration
AASHTO Standing Committee on HighwaysOctober 15, 2011
PROPRIETARY PRODUCTSPERCEPTION
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
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 itemsState certifies:
Essential for synchronizationNo equally suitable alternative exists
Used for researchFHWA makes Public Interest Finding
even though other suitable alternatives exist
IMPLEMENTATION ISSUES
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
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:
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.CFMFHWA 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