Proprietary Products - AASHTO
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Transcript Proprietary Products - AASHTO
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
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
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.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