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Proprietary Products

Proprietary Products. AASHTO Standing Committee on Highways October 15, 2011. Promoting Innovation. David Nicol, Director FHWA Office of Program Administration. Proprietary Products Perception.

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Proprietary Products

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  1. Proprietary Products AASHTO Standing Committee on Highways October 15, 2011 Promoting Innovation David Nicol, Director FHWA Office of Program Administration

  2. 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.

  3. 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.”

  4. 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

  5. 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

  6. 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

  7. Certifications vs. PIFs • Certification • No suitable alternative • Essential for synchronization • Public Interest Finding • Other alternatives exist

  8. 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.

  9. 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

  10. 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

  11. 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

  12. 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

  13. FHWA Approvals of Patented and Proprietary Productshttp://www.fhwa.dot.gov/construction/contracts/pnpapprovals/index.cfmFHWA Headquarters Contact: John Huyer, 202-366-1937

  14. 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”?

  15. QuestionsandComments

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