Patented and Proprietary Products Waiver Impact on ITS Procurements

In 2019, the Federal Highway Administration (FHWA) issued the Final Rule on Construction and Maintenance-Promoting Innovation in Use of Patented and Proprietary Products to encourage innovation in the development of highway transportation technology and methods. Per this rule, state departments of transportation (DOTs) are no longer 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 project provides an overview of the rulemaking and documents through selected case studies describing how the change is being implemented by state DOTs. The case studies revealed that internal DOT processes for use of patented or proprietary products remained largely unchanged following the FHWA rule change, as DOTs continue to require approvals or documentation even though FHWA approval is no longer required. Most participating DOTs agreed that processes have been somewhat streamlined; however, the overall reduction in regulatory burden has been minimal because internal justifications, approvals, or documentation are still required. Most agencies noted that the rule change does have the potential to encourage innovation because it allows increased flexibility for the DOT to approve innovations internally.