FHWA Repeals Proprietary Products Rule, Paving the Way for Innovation

by Bryan Gee, P.E., on October 11, 2019

Increased construction costs and lack of funding have contributed to the poor condition of our nation’s roads. Using smart technologies that extend the life of our roads at lower costs could help states solve this problem, but until now, this required Departments of Transportation to navigate a long and uncertain process. States have not been allowed to use patented or proprietary products or technologies in Federally funded projects since 1916, unless they received a rarely-granted “Public Interest Finding” or classified the project as experimental. With up to 90 percent of state highway project funding coming from Washington, specifying new technologies was a risky prospect for the states.

InDOT Project Good news arrived on September 23rd when the Federal Highway Administration repealed 23 CFR 635.411(a)-(e). As a result, State DOTs will no longer be required to provide certifications, make public interest findings, or develop research or experimental work plans to use patented or proprietary products in Federal-aid projects. This change is intended to foster innovative approaches to solve our country’s infrastructure problems. Now states will have greater latitude to use proprietary products that will save money, increase efficiency, or improve safety.

“This much-needed update of a century-old, obsolete rule will benefit state transportation infrastructure projects and save millions of taxpayer dollars,” said U.S. Transportation Secretary Elaine L. Chao.

According to Federal Highway Administrator Nicole R. Nason, “This final rule promotes innovation by empowering states to choose which state-of-the-art materials, tools, and products best meet their needs for the construction and upkeep of America’s transportation infrastructure.” Tensar recently met with representatives from Rhode Island and Massachusetts DOTs who echoed this statement and looked forward to implementing more cost-effective construction options.

Tensar, along with Geosynthetic Materials Association, American Road and Transportation Builders Association and our other industry partners applaud this move by the FHWA. “We are very pleased with the change in rules from the FHWA,” said Mike Lawrence, CEO of Tensar. “This will lead directly to better, more cost-effective, safer, and longer-lasting roads in the U.S. It will also allow trusted, innovative, U.S.-manufactured products and services to be adopted quickly, leading to much faster improvements in our nation’s roads and infrastructure.”