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Federal Acquisition Regulations - Page 2

D. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR parts 2, 7, 10, 11, 12, and 39:
Government procurement.
Dated:

AL MATERA,
Director,
Acquisition Policy Division.

Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 7, 10, 11, 12, and 39 as set forth below:
1. The authority citation for 48 CFR parts 2, 7, 10, 11, 12, and 39 continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
PART 2—DEFINITIONS OF WORDS AND TERMS
2. In section 2.101, add in alphabetical order, the definition "Electronic and information technology (EIT)" to read as follows:

2.101Definitions.
*****
Electronic and information technology (EIT) has the same meaning as "information technology" except EIT also includes any equipment or interconnected system or subsystem of equipment that is used in the creation, conversion, or duplication of data or information. The term EIT, includes, but is not limited to, telecommunication products (such as telephones), information kiosks and transaction machines, worldwide websites, multimedia, and office equipment (such as copiers and fax machines).
*****
PART 7—ACQUISITION PLANNING
3. In section 7.103, redesignate paragraphs (o) through (r) as (p) through (s), respectively; and add a new paragraph (o) to read as follows:
7.103 Agency-head responsibilities.
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(o) Ensuring that acquisition planners specify needs and develop plans, drawings, work statements, specifications, or other product descriptions that address Electronic and Information Technology Accessibility Standards (see 36 CFR part 1194) in proposed acquisitions (see 11.002(e)) and that these standards are included in requirements planning, as appropriate (see Subpart 39.2).
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PART 10—MARKET RESEARCH
4. In section 10.001, add paragraph (a)(3)(vii) to read as follows:
10.001 Policy.
(a) * * *
(3) * * *
(vii) Assess the availability of electronic and information technology that meets all or part of the applicable accessibility standards issued by the Architectural and Transportation Barriers Compliance Board at 36 CFR part 1194 (see Subpart 39.2).
*****
PART 11—DESCRIBING AGENCY NEEDS
5. In section 11.002, add paragraph (f) to read as follows:
11.002 Policy.
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(f) In accordance with Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d), requiring activities must prepare requirements documents for electronic and information technology that comply with the applicable accessibility standards issued by the Architectural and Transportation Barriers Compliance Board at 36 CFR part 1194 (see Subpart 39.2).
PART 12—ACQUISITION OF COMMERCIAL ITEMS
6. Amend section 12.202 by adding a new paragraph (d) to read as follows:
12.202 Market research and description of agency need.
*****
(d) Requirements documents for electronic and information technology must comply with the applicable accessibility standards issued by the Architectural and Transportation Barriers Compliance Board at 36 CFR part 1194 (see Subpart 39.2).
PART 39—ACQUISITION OF INFORMATION TECHNOLOGY
7. Revise section 39.000 to read as follows:
39.000 Scope of part.
This part prescribes acquisition policies and procedures for use in acquiring—
(a) Information technology, including financial management systems, consistent with other parts of this regulation, OMB Circular No. A-127, Financial Management Systems, and OMB Circular No. A-130, Management of Federal Information Resources; and
(b) Electronic and information technology.
8. Add Subpart 39.2, consisting of sections 39.201 through 39.204, to read as follows:
Subpart 39.2—Electronic and Information Technology

Sec.
39.201 Scope of subpart.
39.202 Definition.
39.203 Applicability.
39.204 Exceptions.

Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
39.201 Scope of subpart.

(a) This subpart implements Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d), and the Architectural and Transportation Barriers Compliance Board Electronic and Information Technology (EIT) Accessibility Standards (36 CFR part 1194).
(b) Further information on Section 508 is available via the Internet at http://www.section508.gov.
(c) When acquiring EIT, agencies must ensure that—
(1) Federal employees with disabilities have access to and use of information and data that is comparable to the access and use by Federal employees who are not individuals with disabilities; and
(2) Members of the public with disabilities seeking information or services from an agency have access to and use of information and data that is comparable to the access to and use of information and data by members of the public who are not individuals with disabilities.
39.202 Definition.
Undue burden, as used in this subpart, means a significant difficulty or expense.
39.203 Applicability.
(a) Unless an exception at 39.204 applies, acquisitions of EIT supplies and services must meet the applicable accessibility standards at 36 CFR part 1194.
(b)(1) Exception determinations are required prior to contract award, except for indefinite-quantity contracts (see (b)(2)).
(2) Exception determinations are not required prior to award of indefinite-quantity contracts, except for requirements that are to be satisfied by initial award. Contracting offices that award indefinite-quantity contracts must indicate to requiring and ordering activities which supplies and services the contractor indicates as compliant, and show where full details of compliance can be found (e.g., vendor’s or other exact website location).
(3) Requiring and ordering activities must ensure supplies or services meet the applicable accessibility standards at 36 CFR part 1194, unless an exception applies, at the time of issuance of task or delivery orders. Accordingly, indefinite-quantity contracts may include noncompliant items; however, any task or delivery order issued for noncompliant items must meet an applicable exception.
(c)(1) When acquiring commercial items, an agency must comply with those accessibility standards that can be met with supplies or services that are available in the commercial marketplace in time to meet the agency's delivery requirements.
(2) The requiring official must document in writing the nonavailability, including a description of market research performed and which standards cannot be met, and provide documentation to the contracting officer for inclusion in the contract file.
39.204 Exceptions.
The requirements in 39.203 do not apply to EIT that—
(a) Is purchased in accordance with Subpart 13.2 (micro-purchases) prior to January 1, 2003. However, for micro-purchases, contracting officers and other individuals designated in accordance with 1.603-3 are strongly encouraged to comply with the applicable accessibility standards to the maximum extent practicable;
(b) Is for a national security system;
(c) Is acquired by a contractor incidental to a contract;
(d) Is located in spaces frequented only by service personnel for maintenance, repair or occasional monitoring of equipment; or
(e) Would impose an undue burden on the agency.
(1) Basis. In determining whether compliance with all or part of the applicable accessibility standards in 36 CFR part 1194 would be an undue burden, an agency must consider—
(i) The difficulty or expense of compliance; and
(ii) Agency resources available to its program or component for which the supply or service is being acquired.
(2) Documentation. (i) The requiring official must document in writing the basis for an undue burden decision and provide the documentation to the contracting officer for inclusion in the contract file.
(ii) When acquiring commercial items, an undue burden determination is not required to address individual standards that cannot be met with supplies or service available in the commercial marketplace in time to meet the agency delivery requirements (see 39.203(c)(2) regarding documentation of nonavailability).

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