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