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Difference between revisions of "131.2 Proprietary Items and Public Interest Findings"

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m (Re-numbered article from EPG 131.5 to 131.2. 4/14/10, Policy on single-source items edited for compliance with the Code of Federal Regulations. 2431 hits.)
 
 
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==131.2 Proprietary Items==
  
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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, MoDOT will not participate in payment for any proprietary item, except in the following cases:
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|[[Media:131.5_Public_Interest_Finding_Letter.doc|Public Interest Finding Letter]]
 
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==131.5.1  Proprietary Items==
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: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.
  
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Any patented material, specification, or process that can only be obtained from one manufacturer is known as a proprietary item.  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:
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:2. MoDOT approved the patented or proprietary item 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 experimental product work plan detailing the research and relatively short section of roadway should accompany the PS&E submittal.
  
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* MoDOT certifies the proprietary item is essential for synchronization with existing highway facilities and that no equally suitable alternative exists (requires a letter of public interest finding from the district office to the Central Office).
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:3. MoDOT approves a request for use of a proprietary item. A copy of the proprietary item request approval should accompany the PS&E submittal.
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* The proprietary item is used for research or for a special type of construction on relatively short sections of road (requires a letter of public interest finding from the district office to the Central Office).
 
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* Only proprietary items are acceptable, and at least three proprietary items are offered as alternatives (does not require a letter of public interest finding).
 
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* FHWA finds the utilization of the proprietary item is in the public interest.
 
  
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Use of the term “or equal” following the name of a proprietary item does not supersede the need to obtain a public interest finding. The public interest finding requirement is only waived when at least three proprietary product names are listed in the proposal as possible alternatives for a specific item. When this is the case, the FHWA still recommends adding the term "or equal" in order to promote maximum competition. 
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===131.2.1 Proprietary Items Requiring No Approval===
  
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Additionally, the specific characteristics of the proprietary product that is mentioned should be included in the job special provision. Construction personnel can use this information to determine if the substitute product is indeed “or equal”. 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 product characteristics. When requested by a contractor to approve the use of a substitute product based upon the “or equal” provisions contained in the JSP, construction field personnel will coordinate their response to this request with the district project manager. Approval by the Construction and Materials Division must be obtained prior to use of the substitute product.
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:* 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 [https://modotgov.sharepoint.com/sites/cm Central Office Construction and Materials] must be obtained prior to use of the engineer approved equivalent item.  
  
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[http://www.modot.mo.gov/business/standards_and_specs/Sec0106.pdf Section 106.14] of the standard specifications outlines a procedure to follow in the event a proprietary item included in a project becomes unavailable during construction.  The resident engineer will share the contractor’s request to use an alternative product with the district project manager (information is also to be shared with the originating work unit who requested the proprietary item be used) and by working together determine if it is acceptable. The contract unit price for this replacement item will need to be negotiated between MoDOT and the contractor.  This unit price will be based upon market conditions.  Cost for this item on previous MoDOT projects can be helpful in arriving at an appropriate “negotiated” unit price.  In most cases the use of a nonproprietary item as a substitute for a proprietary item will result in a lower unit cost.  However, in a few instances this might not be the case.  If the cost of a substitute for a proprietary item is higher than the unit bid price for the proprietary item the additional cost of the item is not eligible for federal participation (23 CFR 635.411).  Therefore, this higher cost will be the responsibility of the local (city, county, developer, etc.) entity, which requested the item be included in the project or MoDOT itself.  If additional state funds are required to pay for the substitute item, an adjustment to future funding allocations to the district will be necessary.
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:* 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.
  
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==131.5.2 Public Interest Findings==
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===131.2.2 Proprietary Items Requiring Approval===
  
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In order to demonstrate to FHWA and [http://wwwi/design/default.htm Design] that the utilization of a proprietary item is in the public interest, the district must submit a letter of public interest finding to Design.
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Unless a minimum of three proprietary items or an approved equal is specified in the contract, proprietary items shall be approved prior to use.
  
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Any use of a proprietary item in a full oversight project as defined in the [[:Category:123 Federal-Aid Highway Program|Federal-Aid Highway Program]] article will require FHWA approval of the Public Interest Finding. Design will submit the finding to FHWA.  Use of a proprietary item on any other project will only require approval from Design.
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Approval of a request for use of a proprietary item can only occur in the following instances:
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:* MoDOT certifies the proprietary item is essential for synchronization with existing highway facilities.
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:* MoDOT certifies that no suitable alternative exists.
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:* MoDOT finds that it is in the public’s interest to utilize the proprietary item in lieu of other acceptable or available items.
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:* MoDOT finds that the proprietary item is acceptably proposed for research purposes or on relatively short section for experimental purposes. In this instance, 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.
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====131.2.2.1 Requests for use of a Proprietary Item====
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Requests for use of a proprietary item generally fall into one of three categories: a Proprietary Item Certification (PIC), a Public Interest Finding (PIF) or an Experimental Product Work Plan (EPWP).
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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.
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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.
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An EPWP request is used for a proprietary item for research purposes or on relatively short section for experimental purposes. Approval of the work plan should occur prior to submittal of the project PS&E. A copy of the approved work plan should accompany the PS&E submittal.
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In order to demonstrate to Central Office Design the product as identified above is appropriate, the district must submit a letter of request (in PDF format) for use of a proprietary item to Central Office Design through the '''[https://modotgov.sharepoint.com/sites/DE/proprietary_item_approvals/Forms/ByDistrict.aspx/ Proprietary Item Approval Library]'''.  When submitting, the appropriate data associated with the request should be entered into the submittal form. For LPA projects, the request should be forwarded through the applicable district’s LPA staff.
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====131.2.2.2 Information Required for Approval Requests====
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Requests for approval of proprietary items must include the following applicable information:
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:* A signed letter on agency letterhead should include: the name, title and affiliation of the entity requesting the material certification.
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:* The name, manufacturer and a description of the item(s).
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:* The project number, location and letting date anticipated.
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:* An estimate of any additional costs which will be incurred as a result of the proprietary item requirement.
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:* The duration and extent of the requested approval.
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:* If synchronization is the basis for use:
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:: - An explanation of the issues associated with the specific item(s) relating to synchronization.
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:* If there are no other suitable items:
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:: - The unique need being addressed which results in no other equally suitable alternative.
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:* If a PIF:
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:: - A detailed explanation of why the product is required.
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:* If an experimental product:
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:: - The experimental product work plan. The work plan should provide for the evaluation of the proprietary product, and where appropriate, a comparison with current technology.
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===131.2.3 Proprietary Item Approval===
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Consideration of approval for all projects, including LPA projects, will be conducted by Central Office Design.
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Design will notify the district of the decision that is made concerning the request for use of a proprietary item.
  
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To gain approval, the letter must include the brand name and manufacturer of the item in question as well as a detailed discussion of the factors that necessitate the item's use (synchronization with existing facilities, no equally suitable alternative is available, substantial cost savings, benefit/cost analysis when more than one proprietary item is available, etc.).  This information must be supported by relevant figures and documentation, and will be as complete and detailed as possible.  In order to expedite the processing of the request, the bid opening date must be included.  A [[Media:131.5_Public_Interest_Finding_Letter.doc|sample letter]] for submittal to the Design Division is available.
 
  
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Design will notify the district of the decision that is made concerning the public interest finding.
 
 
[[category:131 Other General Procedures|131.02]]
 
[[category:131 Other General Procedures|131.02]]

Latest revision as of 08:16, 5 April 2023

131.5.jpg

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, MoDOT will not 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. MoDOT approved the patented or proprietary item 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 experimental product work plan detailing the research and relatively short section of roadway should accompany the PS&E submittal.
3. MoDOT approves 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 shall 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 finds that it is in the public’s interest to utilize the proprietary item in lieu of other acceptable or available items.
  • MoDOT finds that the proprietary item is acceptably proposed for research purposes or on relatively short section for experimental purposes. In this instance, 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.

131.2.2.1 Requests for use of a Proprietary Item

Requests for use of a proprietary item generally fall into one of three categories: a Proprietary Item Certification (PIC), a Public Interest Finding (PIF) or an Experimental Product Work Plan (EPWP).

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.

An EPWP request is used for a proprietary item for research purposes or on relatively short section for experimental purposes. Approval of the work plan should occur prior to submittal of the project PS&E. A copy of the approved work plan should accompany the PS&E submittal.

In order to demonstrate to Central Office Design the product as identified above is appropriate, the district must submit a letter of request (in PDF format) for use of a proprietary item to Central Office Design through the Proprietary Item Approval Library. When submitting, the appropriate data associated with the request should be entered into the submittal form. 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:

  • A signed letter on agency letterhead should include: 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.
  • If a PIF:
- A detailed explanation of why the product is required.
  • If an experimental product:
- The experimental product work plan. The work plan should provide for the evaluation of the proprietary product, and where appropriate, a comparison with current technology.

131.2.3 Proprietary Item Approval

Consideration of approval for all projects, including LPA projects, will be conducted by Central Office Design.

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

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