FHWA directive opens state DOT doors to proprietary product specification

Sources: American Road and Transportation Builders Association, Washington, D.C.; CP staff

A clarification of procurement guidance issued by the Federal Highway Administration will allow hundreds of products aimed at increasing the safety and durability of the nation’s highways and bridges find their way more quickly into state highway projects. The agency made clear in a November 30 memorandum sent to its division administrators that a federal regulation (23 CFR 635.411) covering the use of proprietary and patented products on federally aided projects does not prohibit state transportation departments from using federal funds to pay for them—even if they are initially more expensive. The product may be used, according to the new guidance, if a state certifies that it is uniquely suitable for particular purposes or projects.

“It is crucial in this austere economic environment that all roadblocks to the use of new technologies be removed,” said Pete Ruane, president and CEO of ARTBA. “FHWA is to be commended for recognizing this reality. All citizens will directly benefit from safer and more durable roads and bridges as a result, and taxpayers will see a greater return on their investment.”

The FHWA action clarifies the efforts that states must make to use a patented or proprietary product whenever there are no equally suitable alternatives. In such cases, the states need only submit a certification to the FHWA in order to take advantage of the potential benefits that could be derived through the use of new technologies that may, necessarily, be more expensive when first introduced to the market. ARTBA, which aggressively promotes innovation in the transportation construction market, had sought clarification from FHWA on the treatment of proprietary and patented products.

Many private sector observers believe the FHWA directive will actually spur more competition in the highway products market, ultimately leading to both increased public benefits and lower prices.