Section 508 Acquisition FAQ's

NEW Note to Readers

This document is a consolidation of acquisition-related questions that have been posed by agencies, contractors, and members of the disability community regarding section 508 of the Rehabilitation Act. The responses to these questions are intended to promote a better understanding of the requirements of section 508 and its implementing regulations, including the collaboration that is anticipated within agencies in the acquisition of EIT.

The document is purely informational. It neither creates new policies nor changes existing policies. Agency personnel must consult appropriate officials within their agencies for formal advice.

This web document, which is being hosted by the General Services Administration, was developed after review by an inter-agency steering committee comprised of agencies with lead responsibilities for the implementation of section 508. The steering committee was established to further facilitate the effective implementation of section 508.

This "living" document may be further updated as necessary to address additional questions and further promote a common and effective understanding of section 508 requirements. Accordingly, you are encouraged to monitor the section 508 web site, www.section508.gov. Comments are welcome and may be sent to section.508@gsa.gov.

CONTENTS
1. Introduction
2. Key Terms
3. Roles and Responsibilities
4. Defining Requirements for EIT
5. The Acquisition Process
6. Nonavailability
7. Exceptions
8. Applicability

A. INTRODUCTION A.1. What is section 508?

Section 508 refers to a statutory section in the Rehabilitation Act of 1973 (found at 29 U.S.C. 794d). Congress significantly strengthened section 508 in the Workforce Investment Act of 1998. Its primary purpose is to provide access to and use of Federal executive agencies’ electronic and information technology (EIT) by individuals with disabilities. The statutory language of section 508 can be found at www.section508.gov.

Section 508 requirements are separate from, but complementary to, requirements in sections 501 and 504 of the Rehabilitation Act that require, among other things, that agencies provide reasonable accommodations for employees with disabilities, provide program access to members of the public with disabilities, and take other actions necessary to prevent discrimination on the basis of disability in their programs.

A.2.i. What does section 508 require?

Section 508 generally requires Federal agencies to ensure that their procurement of EIT takes into account the needs of all end users – including people with disabilities. Doing so enhances the ability of Federal employees with disabilities to have access to and use of information and data that is comparable to that provided to others. Similarly, agency procurement of accessible EIT enhances the ability of members of the public with disabilities who are seeking information or services from a Federal agency to have access to and use of information and data that is comparable to that provided to others. Comparable access is not required if it would impose an "undue burden" on the agency. If an agency invokes the undue burden exception, the statute requires the information and data to be provided to individuals with disabilities by an alternative means of access. (See section B.6.ii, below.)

A.2.ii. Should EIT be compatible with assistive technology?

Yes, as a general matter. The goal of section 508 is that EIT be compatible with assistive technology. In some cases, the standards require that the acquired EIT be readily usable without the need for assistive devices. For example, products covered by section 1194.25, Self Contained, Closed Products, must have the access features built into the product. These products, such as information kiosks, copiers, or other similar products that do not permit a user to install or connect assistive technology, must be designed so that an end user can operate the product, without having to modify it. Also, multimedia presentations that require captioning and descriptive video, must have these features built into the product, as it is impractical to expect end users to add on their own captions or descriptions. However, for most products -- such as software, web pages, and computers -- achieving compatibility with assistive technology is the goal of the standards.

A.3.I. Covered actions

The requirements of section 508 apply to an agency’s procurement of EIT, as well as to the agency’s development, maintenance, or use of EIT. These Questions and Answers address issues related to an agency’s procurement of EIT. (Individuals with disabilities may only enforce section 508 with respect to procurements. However, they may also enforce rights under sections 501 and 504 of the Rehabilitation Act, which impose related obligations on agencies.)

A.3.ii. If an agency uses in-house staff to develop products (e.g., training films, videotapes, websites, software applications, etc.) are these products required to meet the section 508 standards even though a procurement action was not involved?

Yes. The requirements of section 508 apply to an agency's procurement of EIT, as well as to the agency's development, maintenance, or use of EIT irrespective of the origin of the EIT (in-house development or commercially acquired). See A.3 with respect to type of work section 508 covers.

A.3.iii. If an EIT item is maintained or developed by both contractor and government employees, is it covered by the section 508 standards?

Yes. Unless an exception applies, if the product is a deliverable under a contract it must conform to the applicable standards regardless of the mix of labor used to produce it.

A.4. Do the requirements of section 508 apply to acquisitions other than those for EIT?

No. (See also section B.1.ii, below.)

A.5. Are there regulations implementing section 508?

Yes, there are two regulations addressing the requirements of section 508.

i. Access Board Standards. The first regulation implementing section 508 was issued by the Architectural and Transportation Barriers Compliance Board (the "Access Board"), an independent Federal agency, whose primary mission is to promote accessibility for individuals with disabilities. This regulation is referred to as the Access Board’s "standards."

The standards, along with an explanatory preamble, were published in the Federal Register, as a final rule, on December 21, 2000 (65 Fed. Reg. 80499). The standards are codified at 36 CFR Part 1194 and may be accessed through the Access Board’s web site at http://www.access-board.gov.

The Access Board’s standards consist of several subparts which, among other things:

• define EIT (see 36 CFR 1194.4);
• set forth "technical provisions" that:
• address the required functionality / performance of specific technologies and product categories (see "Subpart B" of the Access Board’s standards);
• identify broader functional performance criteria to cover technologies or components for which there is no specific provision in Subpart B -- e.g., because the technology or product does not yet exist or was not contemplated by the Access Board during the promulgation of the standards (see "Subpart C" of the Access Board’s standards); and
• include requirements for accessible information, documentation, and support for EIT (see "Subpart D" of the Access Board’s standards);
• define agencies’ authority to consider EIT that does not meet the applicable technical provisions in Subpart B, but provides equivalent facilitation that meets the functional performance criteria of Subpart C (see 36 CFR 1194.5); and
• set forth some of the exceptions to the requirement to buy EIT that meets the applicable technical provisions (see 36 CFR 1194.3).

The Access Board’s standards become enforceable on June 21, 2001 (see section H.2., below).

ii. FAR Rule. The second rule issued to implement section 508 amends the Federal Acquisition Regulation (FAR) to ensure that agency acquisitions of EIT comply with the Access Board’s standards. The entire FAR is found at 48 CFR Chapter 1, located at http://www.arnet.gov/far/. The FAR change implementing section 508 was published along with an explanatory preamble in the Federal Register on April 25, 2001 (66 Fed. Reg. 20894) and is effective as of June 25, 2001 (see section H, below). The FAR rule can be found at http://www.section508.gov.

A.6. Does section 508, as implemented by the Access Board’s standards and the FAR, impose the same obligations on agencies and contractors?

No. Although the FAR uses the term "compliance" with respect to both agencies and contractors, the nature of their respective responsibilities differs.

Agencies are responsible for complying with section 508 as a whole, including identification of applicable Access Board technical provisions (see sections C and D, below) and making nonavailability and exception determinations (see sections F and G, below).

Contractors interested in selling EIT to the Federal government are responsible for designing and manufacturing products which meet the applicable Access Board’s technical provisions.

A.7. What aspects of the acquisition process are affected by section 508 and its implementing regulations?

Section 508 affects what agencies acquire (i.e., the requirements development process), generally not how they acquire it (i.e., source selection). See FAR 7.103(o) (addressing acquisition planning), FAR 10.001(a)(3)(vii) (addressing market research), FAR 11.002(f) (addressing needs descriptions), FAR 12.202(d) (addressing requirements documents for commercial item acquisitions), and FAR Subpart 39.2 (addressing the acquisition of EIT).

B. KEY TERMS

B.1. "Electronic and Information Technology" (EIT)

i. What is EIT?

EIT is information technology (IT), as defined at FAR 2.101, and any equipment or interconnected system or subsystem of equipment, that is used in the creation, conversion, or duplication of data or information. In addition to IT, EIT includes:

• telecommunication products, such as telephones;
• information kiosks;
• transaction machines;
• World Wide Web sites;
• multimedia (including videotapes); and
• office equipment, such as copiers and fax machines.

EIT is defined by the Access Board at 36 CFR 1194.4 and in the FAR at 2.101.

ii. Is EIT limited to products?

No. EIT, like IT, also includes services. For example, some agencies seek to satisfy their desktop computing needs through so-called "seat management" service contracts. Under a seat management arrangement, the contractor provides the software, hardware, and technical support services necessary to support full service desktop computing resources to the agency for a given period of time. Although the agency does not acquire title to the hardware and software, the agency would still need to comply with section 508 in acquiring desktop computing resources.

As another example, agencies acquiring help desks must ensure that providers are capable of accommodating the communications needs of persons with disabilities, consistent with Subpart D of the Access Board’s standards. An agency help desk may need to communicate through a teletypewriter (TTY) – i.e., equipment that transmits coded signals across a telephone network. The help desk provider must also be familiar with such features as keyboard access and other options important to people with disabilities.

B.2. "Comparable access"

i. What must an agency do to ensure its acquisitions of EIT provide "comparable access"?

Unless an exception applies, an agency’s obligation to provide comparable access under section 508 is satisfied by acquiring EIT that meets the applicable technical provisions in Subparts B, C, and D of the Access Board’s standards, either directly or through equivalent facilitation (see section B.3, below). Comparable access is not required if it would impose an undue burden on the agency. (See sections B.6 and G.6, below.)

ii. How should an agency proceed in identifying "applicable" technical provisions in Subparts B, C, and D of the Access Board’s standards to ensure acquired products provide comparable access?

Agencies should first look to the provisions in Subpart B to determine if there are specific technical provisions that apply to the EIT need they are seeking to satisfy.

If there are applicable provisions in Subpart B that fully address the product or service being procured, then the agency need not look to Subpart C. Acquired products that meet the specific technical provisions set forth in Subpart B will also meet the broader functional performance criteria in Subpart C.

If an agency’s procurement needs are not fully addressed by Subpart B, then the agency must look to Subpart C for applicable functional performance requirements.

Agencies must also remember the additional considerations of Subpart D. Subpart D requires that: (a) product support documentation provided to end users shall be made available in alternate formats upon request at no additional charge; (b) end users shall have access to a description of the accessibility and compatibility features of products in alternate formats or methods upon request, also at no additional charge; and (c) support services (e.g., help desk) for products shall accommodate the communication needs of end users with disabilities.

For example, if an agency were to enter into a seat management contract for desktop computing resources, the hardware and software to be provided by the contractor would be required to meet the provisions in section 1194.26 (Desktop and Portable Computers), and 1194.21 (Software Applications and Operating Systems) of Subpart B of the Access Board’s standards. If these provisions fully addressed the agency’s procurement software and hardware needs, the agency would also be in compliance with Subpart C. If some or all of the features were not covered by Subpart B, the agency would also have to look to Subpart C. With respect to the support services provided under the seat management contract, the agency would also need to take into account any appropriate information, documentation, or support requirements in Subpart D.

In all cases, agencies, when evaluating offers, must consider products that provide equivalent facilitation (see section B.3, below).

B.3. "Equivalent facilitation"

i. What is equivalent facilitation?

The Access Board’s standards provide that agencies may accept EIT offered by vendors which uses designs or technologies that do not meet the applicable technical provisions in Subpart B but provide substantially equivalent or greater access to and use of a product for people with disabilities. (See 36 CFR 1194.5.) This is referred to as "equivalent facilitation."

Equivalent facilitation is not an exception or variance from the requirement to provide comparable access. Rather, it is a recognition that technologies may be either developed or used in ways not envisioned by the technical provisions in Subpart B but still result in the same or better functional access as would be provided by strictly meeting the provisions in Subpart B. Functional outcome – not form – is the key to evaluating whether a technology results in "substantially equivalent or greater access." In effect, meeting the functional performance criteria in Subpart C of the Board’s standards is the test for equivalent facilitation.

For example, an information kiosk which is not accessible to a person who is blind might be made accessible by incorporating a telephone handset connected to a computer that responds to touchtone commands and delivers the same information audibly that is provided on the screen.

In short, the concept of equivalent facilitation is designed to allow the marketplace to offer innovative solutions. For this reason, agencies must draft their solicitations for EIT so that products offering equivalent facilitation are considered along with those that strictly meet the technical provisions of Subpart B of the standards.

ii. Is there a preference for a product that strictly meets the technical provisions of Subpart B over a product that provides the same or greater accessibility through equivalent facilitation?

No. Purchase of either EIT product would satisfy an agency’s obligations under section 508. Award should be made to the source whose offer is most advantageous to the Government based on the agency’s source selection criteria (which would include cost or price and may include quality).

Note: Offered products and services may provide greater access than required by the Access Board’s standards. An agency may, but is not required, to give additional evaluation credit for such greater access.

iii. What is the difference between "equivalent facilitation" and "alternative means of access"?

Equivalent facilitation focuses on whether an EIT product provides access that is equal to or greater than that required in the technical provisions in Subpart B of the Access Board’s standards. By contrast, an alternative means of access focuses on the accessibility of the information and data, rather than the technology. Under section 508, agencies have a statutory obligation to make information and data available by an "alternative means of access" when acquiring EIT that meets the applicable technical provisions of the Access Board’s standards would impose an undue burden. (See 36 CFR 1194.4 and section B.6.ii, below.)

Agencies have additional obligations under sections 501 and 504 of the Rehabilitation Act, including the obligation to provide employees with disabilities "reasonable accommodations." "Reasonable accommodation" focuses on the needs of a particular individual with a disability. "Equivalent facilitation," instead, focuses on whether the technology itself is designed to afford a specific degree of accessibility – e.g., that which would have been provided if the product or service strictly adhered to the specific technical provisions of Subpart B.

B.3.iv Who makes the determination that a product meets equivalent facilitation?

The vendor may assert that its product meets or exceeds the level of accessibility required by a particular standard through equivalent facilitation. The agency must determine whether a standard is met through equivalent facilitation in accordance with agency guidance and in consultation with, if necessary, the agency 508 coordinator and/or other agencies with technical expertise in accessible EIT, such as the Access Board. If an agency violates section 508 because the product did not, in fact, meet a standard through equivalent facilitation, the agency may still be liable.

B.4. "Assistive technology"

What is assistive technology?

Assistive technology is adaptive equipment that people with disabilities commonly use for information and communication access. See 36 CFR 1194.4. In many cases, the Access Board’s technical provisions require compatibility with assistive technology devices. For example, if an agency is acquiring telecommunications products, the standards require that the EIT either contain a TTY or be compatible with TTYs. If the product doesn’t provide TTY functionality, it must provide a standard non-acoustic connection point for TTYs. See 36 CFR Part 1194.23.

In some cases, the standards require that the acquired EIT be readily usable without the need for assistive devices. This is the case, for example, for self-contained, closed products such as information kiosks. See 36 CFR Part 1194.25.

B.5. "Nonavailability"

What is nonavailability?

Nonavailability refers to circumstances where no commercial items are available that meet the applicable Access Board’s technical provisions (directly or through equivalent facilitation) in time to satisfy the agency’s delivery requirements. If products are available that meet some, but not all, applicable provisions, agencies cannot claim a product as a whole is nonavailable just because it does not meet all of the applicable technical provisions. The requiring official must document nonavailability in writing. See FAR 39.203(c) and 36 CFR 1194.2(b). See section F, below, for additional discussion.

B.6. "Undue burden" and "alternative means of access"

i. What is undue burden?

The Access Board’s standards and the FAR define an undue burden as a significant difficulty or expense. See 36 CFR 1194.4 and FAR 39.202. In determining whether acquiring EIT that meets all or part of the applicable technical provisions of the Access Board’s standards would impose an undue burden, an agency must consider all resources available to its program or component for which the supply or service is being acquired. Undue burden determinations must be documented. See section G.6, below, for additional discussion.

ii. If an agency determines that the acquisition of EIT that meets the applicable technical provisions of the Access Board’s standards would impose an undue burden, does it have any remaining obligations under section 508?

Yes. The statute requires that the information and data be provided to individuals with disabilities by an alternative means of access. For example, if an agency wishes to purchase a computer program that generates maps denoting regional demographics, but determines that it would constitute an undue burden to purchase an accessible version of such a program, the agency would be required to make the information provided by the program available by alternative means to users with disabilities. Alternative means of access focuses on the provision of the information and data in an accessible manner -- as opposed to the accessibility of the product itself. Thus, in the example provided above, alternative means of access for an individual who is blind might mean providing a hard copy description of the information in Braille or providing an assistant to help guide the user through the information. Alternative means may include, but are not limited to: voice, fax, relay service, TTY, qualified sign language interpreters, Internet posting, captioning, text-to-speech synthesis, readers, personal assistants, or audio descriptions.

iii. Is undue burden the only grounds for acquiring EIT that does not meet the applicable technical provisions?

No. There are several exceptions to the requirements of section 508 (see section G, below).