FHWA_Patented_and_Proprietary_Products_RFI.pdf

Request for Information (RFI) No. DTFH6116RI00018

Title: Patented and Proprietary Products

Section 1: Submittal Information

Issue Date: March 14, 2016

Questions Due Date: April 4, 2016, at 1:00 PM Eastern Time

Response Due Date: April 29, 2016, at 1:00 PM Eastern Time

Submit Questions Electronically to: Tabitha Lorthridge@dot.gov

Submit Responses Electronically to: Tabitha.Lorthridge@dot.gov

E-mail Subject Line for Responses and Questions Must Include: “FHWA Patented and Proprietary

Products RFI

See the below Section 5 entitled “Information Requested” for a detailed description of the 2 areas in which the Federal Highway Administration (FHWA) is interested in obtaining input.

See below Section 6 entitled “Instructions for Submission” for submittal content instructions. One (1) electronic copy should be submitted.

Section 2: Introduction

This is a request for information (RFI) only, and is NOT a solicitation for proposals, proposal abstracts, or quotations. This RFI notice is for information purposes only and does not obligate the government in any way. The Government will not reimburse the respondents for any costs associated with the information submitted in response to this request. The Government will treat each submission as confidential when requested by the submitter.

Information gathered through public comment will help inform the FHWA on the need for further policy or regulatory revisions to the existing regulation (23 CFR 635.411) governing the incorporation of patented and proprietary products in federally funded transportation projects. Respondents are invited to comment on any or all of the items described in Section 5 entitled “Information Requested.”

Section 3: Background

Under 23 USC 112(a), "In all cases where the construction is to be performed by the State transportation department or under its supervision, a request for submission of bids shall be made by advertisement unless some other method is approved by the Secretary. The Secretary shall require such plans and specifications and such methods of bidding as shall be effective in securing competition.” The FHWA has interpreted this clause to require competition not only for the award of the contract, but also for the various materials and processes involved in the work. 23 CFR 635.411 provides FHWA the regulatory authority to allow federal funds to participate in the cost of patented and/or proprietary products. However to promote competition, the FHWA regulation prohibits State DOTs from requiring the use of patented/proprietary products unless:

• The item is purchased or obtained through competitive bidding with equally suitable unpatented items, or;

• The State DOT certifies either that the proprietary or patented item is essential for synchronization with the existing highway facilities or that no equally suitable alternative exists, or;

• The item is used for research or for a special type of construction on relatively short sections of road for experimental purposes.

In addition in instances where there are other equally acceptable materials or products available, the regulation allows the State DOT to require a specific material or product when the Division Administrator approves of its use as being in the public interest.

Section 4: Description

The purpose of this RFI is to inform the FHWA on surface transportation industry perspectives on how the regulation (23 CFR 635.411) may affect product/process innovation and competition. FHWA wants to better understand the surface transportation industry’s (State DOT, and industry) perception of

FHWA’s requirements on the use of patented and proprietary products incorporated in federally funded transportation projects.

FHWA is providing all industry stakeholders an opportunity to comment and respond to respond to this

RFI.

Section 5: Information Requested

This RFI is not to be construed as a commitment on the part of the Government to award a contract, cooperative agreement, or grant nor does the Government intend to directly pay for any information or responses submitted as the result of this notice. Stakeholders are invited to submit a response which discusses the following enumerated points:

• Surface transportation industry perspectives on the effects the regulation for patented and proprietary products (23 CFR 635.411) has on the use of innovative materials or processes on federally funded transportation projects, and

• Surface transportation industry perspectives on the effects the regulation for patented and proprietary products (23 CFR 635.411) has on competition on federally funded transportation projects.

Section 6: Instructions for Submissions

In addition to providing the information to respond to the above, interested firms shall also clearly identify:

a. Organization name and address, and contact information (email and telephone number, of a designated point of contact).

b. A brief description of type of business or organization.

E-mail attachments shall be submitted in Microsoft Word or searchable Adobe PDF and shall not exceed five (5) pages in length. Please do not submit marketing materials, or business proprietary information.

Section 7: Notes

This is a Request for Information. This is neither a request for proposals nor an announcement of a forthcoming solicitation.

After reviewing the responses, the FHWA may contact organizations individually to ask for clarifications; however, the FHWA is not obligated to contact or hold meetings with any or all respondents.

The FHWA will not reimburse costs associated with responding to this request and does not intend to pay for the information received.

Questions are requested by April 4, 2016, at 1:00 PM Eastern Time

Responses are requested by April 29, 2016, at 1:00 PM Eastern Time