FHWA Repeals Proprietary Products Rule

As you are not doubt aware, on Sept. 26 FHWA announced the rescinding of its long-standing rule that prohibited state and local governments from specifying the use of patented or proprietary products on highway and bridge projects that receive federal funding. (The Link below goes to the FHWA notice). AGC’s comments on the rule opposed the change raising concerns that it would allow suppliers of patented products to determine the costs that state DOTs pay for products rather than the open, competitive bid system. AGC pointed out that this could occur because suppliers of proprietary products can be selective in which companies they will supply the products and at what cost. AGC also noted that such a change could give an advantage to product suppliers with the most aggressive sales force or political influence without necessarily having the best product. Our comments also said existing procedures allow approval of proprietary products and this process has worked successfully.

The repeal effort was initiated by ARTBA which formally petitioned the U.S. DOT in March 2018 seeking this action. ARTBA was motived in this effort by its manufacturer’s division which has many member companies that produce a variety of proprietary products. The Trump Administration viewed this as a regulatory relief effort and decided to adopt the change. AASHTO’s membership was closely divided on whether to support the repeal. Many DOTs individually submitted comments both in support and in opposition.


The FHWA rule change allows states to use proprietary products if they so desire but some states have their own prohibition against the use of proprietary products and this would not be impacted by the FHWA rule change. There may be an effort by suppliers in your state to change your state law or regulations if they prohibit proprietary products.   


We are interested in following the implementation of this rule change and what impact it may have on our members. I encourage you to have discussions with your DOT about the change and letting AGC know the outcome of the discussions. Also if any of your members report difficulty in getting quotes from suppliers of proprietary products we would like to know that as well.


Any information you can provide would be appreciated.