131.2 Proprietary Items and Public Interest Findings

131.2 Proprietary Items

A proprietary item is considered any patented material, specification, or process that can only be obtained from one manufacturer. These items are generally identified by the use of a trade name. In the interest of promoting competition and allowing for the development of new products, neither FHWA nor MoDOT will participate in payment for any proprietary item, except in the following cases:

1. The district can demonstrate that only proprietary items are acceptable and the contract documents identify at least three proprietary items as alternatives and allow an approved equal. In this instance, no additional approval is necessary.

2. The district can demonstrate that the patented or proprietary item is required for research or for a distinctive type of construction on relatively short sections of road for experimental purposes. Appropriate consultation of applicable division staff and subsequent documentation in the project file shall occur for each project. A copy of the documentation detailing the research and relatively short section of roadway should accompany the PS&E submittal.

3. MoDOT and/or FHWA approve a request for use of a proprietary item. A copy of the proprietary item request approval should accompany the PS&E submittal.

131.2.1 Proprietary Items Requiring No Approval

• When it has been demonstrated that only proprietary items are acceptable and three or more items are identified, the specific characteristics of the proprietary items that are mentioned should be included in the project documents. Construction personnel can use this information to determine if the substitute item is indeed “equal” to the specifically identified items. Examples of specific characteristics are the reflective properties of pavement marking tape, width and length of crashworthy end treatments, signal controller units that are compatible with existing units in the field or other applications in which the district core team can specifically name item characteristics. When requested by a contractor to approve the use of a substitute item based upon the “or approved equal” provisions contained in the project documents, construction field personnel will coordinate their response to this request with the district project manager. Approval by the Central Office Construction and Materials must be obtained prior to use of the engineer approved equivalent item.

• When the proprietary item is proposed for research purposes or on relatively short section for experimental purposes, the contract documents should identify the specific item and clearly indicate that no alternative will be accepted for the purposes of the project. Division staff familiar with the research or experimental practice should be contacted if the contractor has difficulty obtaining the required item.

131.2.2 Proprietary Items Requiring Approval

Unless a minimum of three proprietary items or an approved equal is specified in the contract, proprietary items must be approved prior to use.

Approval of a request for use of a proprietary item can only occur in the following instances:

• MoDOT certifies the proprietary item is essential for synchronization with existing highway facilities.
• MoDOT certifies that no suitable alternative exists.
• MoDOT and/or FHWA find that it is in the public’s interest to utilize the proprietary item in lieu of other acceptable or available items.

131.2.2.1 Requests for use of a Proprietary Item

Requests for use of a proprietary item generally fall into one of two categories: a Proprietary Item Certification (PIC) or a Public Interest Finding (PIF).

A PIC is used if an item is essential for synchronization or if the contracting agency specifies a unique item for which no equally suitable alternative exists.

A PIF is used if a contracting agency elects to require a specific item when other acceptable items are available or in instances where the item is to be used for research or for special construction.

In order to demonstrate to FHWA and Central Office Design that the utilization of a proprietary item is in the public interest or that a PIC is appropriate, the district must submit a letter of request for use of a proprietary item to Central Office Design for their consideration. A signed copy of the request letter should be emailed to codeproprietary@modot.mo.gov and copied to the appropriate Design Liaison Engineer. For LPA projects, the request should be forwarded through the applicable district’s LPA staff.

131.2.2.2 Information Required for Approval Requests

Requests for approval of proprietary items must include the following applicable information:

• The name, title and affiliation of the entity requesting the material certification.
• The name, manufacturer and a description of the item(s).
• The project number, location and letting date anticipated.
• An estimate of any additional costs which will be incurred as a result of the proprietary item requirement.
• The duration and extent of the requested approval.
• If synchronization is the basis for use:

• An explanation of the issues associated with the specific item(s) relating to synchronization.

• If there are no other suitable items:

• The unique need being addressed which results in no other equally suitable alternative.

131.2.3 Proprietary Item Approval

Consideration of approval for PICs on all projects and PIFs on exempt projects, including LPA projects, will be conducted by Central Office Design.

PIFs on full oversight projects (as defined in EPG 123 Federal-Aid Highway Program) will also require FHWA approval. In these instances, Central Office Design will review the request and upon concurrence, will submit the finding to FHWA for their consideration.

Design will notify the district of the decision that is made concerning the request for use of a proprietary item.