[Code of Federal Regulations]
[Title 23, Volume 1]
[Revised as of April 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 23CFR635.411]

[Page 192]
 
                           TITLE 23--HIGHWAYS
 
 CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
 
PART 635--CONSTRUCTION AND MAINTENANCE--Table of Contents
 
                Subpart D--General Material Requirements
 
Sec. 635.411  Material or product selection.

    (a) Federal funds shall not participate, directly or indirectly, in 
payment for any premium or royalty on any patented or proprietary 
material, specification, or process specifically set forth in the plans 
and specifications for a project, unless:
    (1) Such patented or proprietary item is purchased or obtained 
through competitive bidding with equally suitable unpatented items; or
    (2) The State transportation department certifies either that such 
patented or proprietary item is essential for synchronization with 
existing highway facilities, or that no equally suitable alternate 
exists; or
    (3) Such patented or proprietary item is used for research or for a 
distinctive type of construction on relatively short sections of road 
for experimental purposes.
    (b) When there is available for purchase more than one nonpatented, 
nonproprietary material, semifinished or finished article or product 
that will fulfill the requirements for an item of work of a project and 
these available materials or products are judged to be of satisfactory 
quality and equally acceptable on the basis of engineering analysis and 
the anticipated prices for the related item(s) of work are estimated to 
be approximately the same, the PS&E for the project shall either contain 
or include by reference the specifications for each such material or 
product that is considered acceptable for incorporation in the work. If 
the State transportation department wishes to substitute some other 
acceptable material or product for the material or product designated by 
the successful bidder or bid as the lowest alternate, and such 
substitution results in an increase in costs, there will not be Federal-
aid participation in any increase in costs.
    (c) A State transportation department may require a specific 
material or product when there are other acceptable materials and 
products, when such specific choice is approved by the Division 
Administrator as being in the public interest. When the Division 
Administrator's approval is not obtained, the item will be 
nonparticipating unless bidding procedures are used that establish the 
unit price of each acceptable alternative. In this case Federal-aid 
participation will be based on the lowest price so established.
    (d) Appendix A sets forth the FHWA requirements regarding (1) the 
specification of alternative types of culvert pipes, and (2) the number 
and types of such alternatives which must be set forth in the 
specifications for various types of drainage installations.
    (e) Reference in specifications and on plans to single trade name 
materials will not be approved on Federal-aid contracts.
    (f) In the case of a design-build project, the following 
requirements apply: Federal funds shall not participate, directly or 
indirectly, in payment for any premium or royalty on any patented or 
proprietary material, specification, or process specifically set forth 
in the Request for Proposals document unless the conditions of paragraph 
(a) of this section are applicable.

[41 FR 36204, Aug. 27, 1976, as amended at 67 FR 75926, Dec. 10, 2002]