Frequently Asked Questions
-The following document was taken from the GSA website at:
www.section508.gov.
on 11/29/01. It is presented for your information purposes only
and may not reflect NASA's Section 508 policy.
Acquisition of Electronic and Information Technology
Under Section 508 of the Rehabilitation Act
Questions and Answers
Update: January 2002
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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.
* * *
Print Version
CONTENTS
- Introduction
- Key Terms
- Roles and Responsibilities
- Defining Requirements for EIT
- The Acquisition Process
- Nonavailability
- Exceptions
- 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)
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 agencys procurement
of EIT, as well as to the agencys development, maintenance, or use
of EIT. These Questions and Answers address issues related to an
agencys 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)
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 Boards "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 Boards web site at
http://www.access-board.gov.
The Access Boards 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 Boards 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 Boards standards);
- and include requirements for accessible information,
documentation, and support for EIT (see "Subpart D"
of the Access Boards 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 Boards standards become enforceable on June 21, 2001
(see section H.2.).
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 Boards 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). The FAR rule can be found at
http://www.section508.gov.
A.6. Does section 508, as implemented by the Access Boards
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) and
making nonavailability and exception determinations
(see sections F and G).
Contractors interested in selling EIT to the Federal government are
responsible for designing and manufacturing products which meet the
applicable Access Boards 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).
top
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
Boards 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 agencys 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 Boards 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 Boards
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 agencys 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
Boards standards. If these provisions fully addressed the
agencys 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).
B.3.
"Equivalent facilitation"
i. What is equivalent facilitation?
The Access Boards 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
Boards 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 agencys
obligations under section 508. Award should be made to the source whose
offer is most advantageous to the Government based on the agencys
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 Boards 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 Boards 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
Boards standards would impose an undue burden. (See 36 CFR 1194.4
and section B.6.ii)
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 Boards 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 doesnt 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 Boards technical provisions
(directly or through equivalent facilitation) in time to satisfy
the agencys 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,
for additional discussion.
B.6.
"Undue burden" and "alternative
means of access"
i. What is undue burden?
The Access Boards 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 Boards 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, for additional discussion.
ii.
If an agency determines that the acquisition of EIT that meets the
applicable technical provisions of the Access Boards 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).
C. ROLES AND RESPONSIBILITIES
C.1.
Who within the agency is responsible for ensuring EIT purchases
comply with section 508?
Acquisition
of EIT that meets the applicable technical provisions of the Access
Boards standards is the shared responsibility of requiring
activity officials and contracting officials.
Requiring activity officials (i.e., officials in the program office
or organization that is funding and acquiring the EIT) are responsible
for --
- identifying applicable technical provisions of the Access
Boards standards in their requirements documents (see FAR 11.002
and section B.2.ii);
- conducting market research to identify what products, if any, are
available to meet those provisions or whether an exception applies;
- drafting specifications; and
- documenting nonavailability and undue burden determinations.
It is expected that agencies will designate requiring activity officials
in their organizations to carry out these responsibilities at an
appropriately accountable level.
Contracting officials are expected to pursue effective acquisition
strategies for acquiring EIT.
Thus, successful implementation of section 508 requires the
cooperation and coordination of requirements and contracting officials
within the agency.
Each agency has a Section 508 Coordinator. This person is often
someone in the Chief Information Officers office. He or she can
provide additional information on agency procedures and the steps being
taken within his or her agency to implement section 508. For more
information, see
www.section508.gov/coord.html.
C.2. If EIT is acquired through another agencys contract, which
agency is responsible for section 508 compliance?
The requiring agency (i.e., the agency with the need for EIT) is
responsible for ensuring that the acquisition complies with section 508.
See FAR 39.203(b)(3). This responsibility remains with the requiring
agency irrespective of the vehicle used to complete the transaction --
e.g., the requiring activity has this responsibility when its agency is
acquiring EIT under a multi-agency contract pursuant to the Economy Act
procedures under FAR Subpart 17.5, a government-wide acquisition
contract (a so-called "GWAC"), or GSAs Federal Supply
Schedules.
This notwithstanding, contracting offices that award
indefinite-quantity (IDIQ) contracts (such as those mentioned above)
also have responsibilities. They must inform the requiring and ordering
activities of the requiring agency which supplies and services the
contractors indicate meet (either fully or partially) the applicable
technical provisions of the Access Boards standards. They must
also provide the source of vendor information regarding section 508
(e.g., the vendors or other exact web site location). See FAR
39.203(b)(2) (which imposes this requirement on all contracting offices
that award IDIQ contracts). In addition, if the servicing agency places
the order on the requiring agencys behalf, the servicing agency
needs to take necessary management steps before placing the order to
ensure that the requiring activity (its customer) has appropriately
considered its section 508 obligations with regard to that order.
C.3.
Vendor Responsibilities
i. Does section 508 require contractors to manufacture EIT that meets
the applicable Access Boards technical provisions?
No. Section 508 requires the government to purchase EIT that meets
the applicable technical provisions of the Access Boards
standards, with certain exceptions. By doing so, section 508 provides an
incentive for EIT manufacturers and designers to ensure that their
products are usable by everyone including people with
disabilities.
Agencies are responsible for ensuring that they undertake their
acquisitions for EIT consistent with the requirements of section 508, as
implemented in the Access Boards standards and the FAR -- which
includes identifying applicable section 508 provisions to interested
contractors. Similarly, agencies not contractors are
responsible for making determinations regarding whether any exceptions
apply.
(See section G.6.vi)
In turn, contractors wishing to do business with the government must
provide products and services that meet (either directly or through
equivalent facilitation) an agencys stated requirements, including
applicable technical provisions from the Access Boards standards
as identified by the agency. Contractors (including manufacturers and
designers) are under no obligation to consider either section 508 or the
Access Boards standards if they do not wish to market their
products to the Federal government.
ii. Do vendors have to provide product documentation in alternate
formats?
Yes, if it is a deliverable under a contract. Section 1194.41 of the
Access Board's standards provides that product support documentation
that is provided to end-users must be made available in alternate format
upon request. However, it is the agency's responsibility, not the
vendor's, to comply with this provision. Typically, agencies will
require such documentation from the vendor to be in an alternate format
as part of the deliverables required under the contract. The format of
the documentation requested from the vendor may vary. For example, an
agency may request the documentation in an electronic format that will
allow the agency to reprint information in Braille or alternate formats.
Other agencies may request the information to be provided by the vendor
in Braille, large print, audio cassette or other format as part of the
procurement.
C.4 Are subcontractors subject to Section 508?
Section
508 does not impose requirements on contractors or subcontractors.
Instead, it only imposes requirements on the product specifications
of EIT procured by federal agencies. Prime contractors may enter
into subcontracts in the performance of a Federal contract for EIT,
but the prime remains obligated to deliver what is called for under
the contract (e.g., EIT that meets the Access Board's standards).
C.5.
Enforcement and Reporting
i. Who is responsible for enforcing Section 508? Are there any
reporting requirements?
Individuals with disabilities are responsible for enforcing the
requirements of Section 508. Individuals with disabilities may file a
complaint with an agency or bring a civil action in Federal Court for an
agency's noncompliance with the requirements of section 508. Section
508(f) requires agencies to provide procedures for resolving complaints
by individuals who allege that an agency has failed to comply with the
requirements of section 508 in providing EIT. It states that agencies
are to apply the complaint procedures established to implement section
504 of the Rehabilitation Act to resolve administrative complaints
related to section 508.
Section 508(d)(2) requires the Attorney General to prepare a biennial
report and make recommendations regarding the state of Federal
department and agency compliance with the requirements of section 508.
ii. What was the purpose of the Department of Justice's recent
government wide survey of federal web sites?
Section 508(d)(2) requires the Attorney General to prepare and submit
a report and recommendations to the President and Congress regarding the
state of Federal department and agency compliance with the requirements
of section 508, including any actions regarding individual complaints.
The survey was designed to help the Department of Justice assess agency
compliance. The Department of Justice and other agencies may use the
recommendations and findings in this report to facilitate implementation
of section 508 by the Federal government.
C.6
Use of EIT in Federal Agency Training
i. If a Federal agency conducts training and uses multimedia, such as
videotapes or computer based training, must the materials developed be
accessible under 508?
Yes. Multimedia is considered EIT and, if used by the Federal
government, must be accessible unless an exception applies (see sections
F and G,
below). Section 1194.22 of the Access Board's standards addresses
requirements for web-based intranet and internet information and
applications. Section 1194.24 addresses video and multimedia products.
In addition to the requirements of section 508, agencies also have
obligations to their employees under sections 501 and 504 of the
Rehabilitation Act.
ii. If a Federal agency is distributing a television or multimedia
production or a web-cast presentation, does it have to be open or closed
captioned and audio-described?
Section 1194.24(c) and (d) of the Access Board's standards require
that all training or informational video and multimedia productions
which support the agency's mission and which have audio information or
visual information that is necessary for the comprehension of the
content, be captioned or audio described. Hence, if the production is
multimedia (e.g. image and sound) and is considered "training or
informational," then it must meet the applicable requirements of
1194.24 (c) and (d) of the Access Board's standards. If the production
is web-based, regardless of whether it is multimedia, such as a live
webcast of a speech, then it must also meet the applicable requirements
of 1194.22.
iii. Does the requirement to open or close caption and audio describe
apply to productions that have a limited purpose, scope, and shelf life
or contain quickly "perishable" information?
Section 1194.22 of the Access Board standards applies requirements to
web-based intranet and internet information and applications without
regard to the perishable nature of a production. Similarly, section
1194.24 addresses video and multimedia products without regard to the
shelf life of a production.
iv. Do videotapes of briefings or "raw or stock" film
footage for documentation purposes have to be captioned or audio
described? What if the videotape is later played for an audience? Do
graphs and charts used in the briefing have to be audio described?
Briefings or other recordings made for purposes of documentation are
not considered "training or informational videos." As noted in
the preamble to the Access Board's final rule, section 1194.24 does not
require that a videotape recorded by a field investigator to document a
safety violation be captioned or audio described. However, if such a
videotape were subsequently used as part of a training or informational
presentation, it would have to be captioned and audio described. (See 65
Federal Register 80517, December 21, 2000.) Any graphs or charts that
are not described in the narration of the video would have to be audio
described if the visual information was necessary for the comprehension
of the content.
v. Is the requirement to open or close caption, and to provide audio
description specific to English?
No. The requirement to caption (i.e., to provide access to audio
information for persons with hearing impairments) and provide audio
description applies irrespective of the language. It is recommended that
captioning and audio description be in the same language as the content
of the production. For example, Spanish audio should be captioned in
Spanish. There is no requirement to provide captioning in a language
different from the content of the production (e.g., English audio need
not be in Spanish or vice versa.)
vi.
Must the lyrics in songs embedded in productions be open or closed
captioned?
This answer depends on whether the lyrics are considered content
essential for comprehension. For instance, a production that features a
dialogue between two people while a radio softly plays a song in the
background should have the conversation in the foreground captioned.
However, since the song from the radio is not essential for
comprehension, the captions could simply indicate that music is playing
in the background.
C.7.
"Agency Websites"
i. Must Portable Document Format (PDF) files that are displayed on a
Federal website meet the Access Board's standards?
Yes. Section 1194.22(m) requires the web page containing a PDF file
to include a link to a plug-in that complies with the software
requirements of 1194.21(a) through (l). In addition, section 1194.22(a)
requires provision of a text equivalent for every non-text element.
A PDF file is a file format created using Adobe Acrobat. Many
agencies use PDF files to post documents to their web site because they
create an exact representation of the original document. In order to
view a PDF file, a user must use a browser "plug-in." Thus,
the agency has two options when addressing PDF content and the Access
Board's standards. First, it can ensure that its PDF file is accessible
and include a link to a PDF reader that conforms to the software
requirements of section 1194.21. Alternatively, if such a plug?in is
unavailable, section 1194.22(k) permits the agency to provide a link to
a duplicate file that contains the same information in an accessible
format.
ii. Can a federal agency provide alternate web pages for users with
disabilities to supplement web pages that have innovative features which
are inaccessible to assistive technologies?
While the provisions in 36 CFR 1194.22 allow web authors to be creative
and innovative in the use of new technologies, section 1194.22(k)
requires that a text-only web page be provided only as a method
of last resort for bringing a web site into compliance with the
other requirements in 1194.22. This practice is discouraged because
it leads to problems of multiple document updating and servicing.
(When used, text-only pages must contain equivalent information
and functionality as the primary pages and must be updated whenever
the primary pages change.)
C.8 Are Section 508 access requirements satisfied if the agency provides
such access following a request for it, as opposed to in anticipation
of a request for access?
No. Unless an exception applies, the requirements of section 1194.24
(c) and (d) of the Access Board's standards are to be met at the
time the product is developed or, in the case of a procurement,
when the product is delivered (unless an exception applies). For
example, the production of a training video, which is covered by
the section 508 standards, must include the incorporation of open
or closed captioning and audio description during the development
phase, not after a request is made for it.
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D. DEFINING REQUIREMENTS FOR EIT
D.1. How does section 508 affect the requirements development phase of
an acquisition?
Section 508 requires agencies to take additional considerations into account
when defining their needs for EIT namely the Access Boards
standards. As noted above, section 508 affects what an agency buys,
not generally how the agency buys it.
D.2. Must requiring officials consider all the Access Boards technical
provisions and functional performance criteria each time they purchase
EIT?
No. Requiring officials need only consider all applicable technical
provisions from the Access Boards standards to ensure acquired
products provide comparable access (see section B.2.ii,
above).
D.3. Is an agency prohibited from buying EIT that does not meet all applicable
technical provisions?
No. If an exception applies preventing an agencys acquisition
of EIT that meets all of the applicable technical provisions (e.g.,
no such products are available in the commercial marketplace), the
agency may acquire EIT that meets some of those provisions. Similarly,
if an exception applies to an agencys acquisition of EIT that
meets some of the applicable provisions, the agency may acquire
EIT that does not meet any of those provisions.
D.4.
Is an agency ever required to fundamentally alter
its needs in order to comply with section 508?
No. The Access Boards standards state that an agency is not required
to alter its acquisition requirements in order to comply with section
508 if the alteration would be so fundamental that the agency would
no longer be procuring EIT that met its needs.
For example, if an agency needs to meet certain security needs by acquiring
secure telephone units that are all analog, the agency would not
be required to buy digital phones if such phones failed to meet
the agencys security needs even if the digital phones fully
meet the applicable technical provisions of the Access Boards
standards and the analog phones meet only some of the applicable
technical provisions.
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E. THE ACQUISITION PROCESS
E.1. What steps does the FAR require an agency to take when acquiring EIT?
First, the requirements (program) office must read the Access Board standards,
and determine which technical provisions apply (see section B.2.ii,
above).
Second, the requiring official must perform market research to determine
the availability of products and services that meet the applicable
technical provisions. In determining availability, requiring officials
should consider, among other things, information on vendor web sites
and the governments section 508 web site (www.section508.gov).
Third, the requiring official must identify which technical provisions,
if any, do not apply due to an exception, such as nonavailability
or undue burden. (See sections F and G, below, for further discussion
on nonavailability, undue burden and other exceptions, and associated
contract file documentation requirements.).
Fourth, technical specifications and minimum requirements must be developed
considering the results of market research and agency needs. The
requiring official must submit this information along with the purchase
request, including nonavailability or undue burden documentation
as appropriate, to the contracting officer.
Finally, the contracting officer must draft and issue a solicitation to receive
offers from interested sources or consider placing an order under
a delivery order or task order contract. Proposal evaluation may
yield additional information that could require reconsideration
of the need for an exception (either retracting or invoking an exception,
such as nonavailability).
As noted above, an agency must consider EIT that offers equivalent
facilitation and should state in its solicitation that it will do
so (see section E.4., below)
E.2. Where an agency uses a best value "trade-off" source selection
process, may it trade off applicable technical provisions of the
Access Boards standards where an offer provides strong technical
merit, strong past performance, or a lower price?
The Access Boards technical provisions are mandatory requirements
that must be met (directly or through equivalent facilitation) unless
(a) the product or service (if it is a commercial item) is not available,
(b) an exception applies (such as undue burden), or (c) meeting
the applicable provisions would require the agency to alter its
requirements to the point where the procured EIT would not meet
its needs. For example, if a product is available that meets the
technical provisions of the Access Boards standards, the agency
would not be required to make the purchase if significant difficulty
or expense made the purchase an undue burden for the agency. Note
that undue burden cannot be established simply by demonstrating
that, as between products that could meet the agencys need,
the cost of a product that meets the technical provisions is higher
than that for a product that does not. Instead, an agency must consider
all resources available to its program or component for which the
supply or service is being acquired (see section
G.6.iii, below).
Where no offered products meet all of the technical provisions, the Access
Boards standards require an agency to "procure the product
that best meets the standards" (see 36 CFR 1194.2(b)). This
may be the product that meets the most applicable technical provisions,
but alternatively could be one that meets fewer technical provisions
but which better addresses the accessibility needs of the intended
end users.
Best value trade-offs are still possible (and in fact required) if the
products being compared meet the technical provisions to the same
degree (e.g., the products being compared fully meet applicable
technical provisions; or the products being compared partially meet
the applicable technical provisions to the same extent). For example,
if two of three proposals offer products that fully meet the technical
provisions and the third proposal partially meets them, traditional
trade-offs between the two offers that fully meet the applicable
provisions as to technical merit, price, and past performance are
required. However, absent a determination of undue burden, the agency
could not make trade-offs between the proposals that fully meet
the applicable provisions and those that only partially meet them.
E.3. Does the FAR provide a specific clause for acquisitions of EIT?
There is no FAR clause addressing section 508 at this time. The FAR Council
is carefully considering whether clauses are needed, and welcomes
comments on this issue that would inform a potential rulemaking.
(Send comments to the FAR Secretariat (MVP), 1800 F Street, NW,
Room 4035, Attention Ms. Laurie Duarte, and please cite "Section
508" in the correspondence.)
E.4. What are examples of issues an agency may wish
to consider when drafting a solicitation to acquire EIT?
Among other things, agencies should consider drafting solicitations in
a way that they may accept a product or service that partially meets
the applicable technical provisions if no product is available that
meets all applicable technical provisions. Solicitations should
also indicate that products that provide equivalent facilitation
will be considered along with those that meet the applicable specific
technical provisions (in Subpart B) of the Access Boards standards.
Sample language addressing the evaluation of offers for EIT (that could
appear in section "M" of a solicitation) might include
the following. (NOTE: This is illustrative strawman language that
must be tailored to the specific requirements of an individual procurement.
Like all information in this document, agency personnel must consult
appropriate officials within their agencies for formal advice.)
To be considered eligible for award, offerors must propose goods and/or
services that meet the applicable provisions of the Access Boards
standards as identified by the agency. Alternatively, offerors may
propose goods or services that provide equivalent facilitation.
Such offers will be considered to have met the provisions of the
Access Boards standards for the feature or component providing
equivalent facilitation. If none of the offers that meet all applicable
provisions of the Access Boards standards could be accepted
without imposing an undue burden upon the agency or component, or
if none of the offerors propose goods or services that fully meet
all of the applicable Access Boards provisions, those offerors
whose products or services meet some of the applicable provisions
will be considered eligible for award. Award will not be made to
an offeror meeting all or some of the applicable Access Board provisions
if award would impose an undue burden upon the agency.
E.5. Will agencies have a way of obtaining standardized product testing
results to determine if EIT meets the Access Boards technical
provisions?
Currently, there are no uniform testing processes for section 508. In May 2001,
the agencies with lead responsibilities for the implementation of
section 508 convened an Accessibility Forum to facilitate discussion
among the EIT industry, disability advocacy groups, and assistive
technology vendors on ways to convey the extent to which particular
products (or services) meet the technical provisions of the Access
Boards standards.
E.6.
Vendor EIT information on websites
i. Will there be a web site providing information on how manufacturers
have addressed the Access Boards technical provisions?
Yes. The site will consist of information offered by vendors describing
how their offerings meet the technical provisions of the Access
Boards standards. The section 508 web site will link to a
portal that allows vendors to voluntarily maintain information on
their own sites with links to the section 508 web page. This arrangement
will allow vendors to more easily update their information, given
that how their products and services meet the technical provisions
will likely be improving with each version and product model. Industry
representatives have been working to develop a template so that
vendors may present their information in a structured format if
they choose. At some point, it is possible that manufacturers may
voluntarily label products based on industry developed measures
to enable end users to more easily identify how a product meets
the applicable technical provisions.
Industry representatives are encouraged to visit the section 508 web site,
www.section508.gov,
and follow the instructions regarding participation.
ii. Does the Federal government have a 'logo program' indicating which
products meet 508 standards?
No. The Federal government does not currently have a section 508 logo
(such as the Energy Star) that attaches to a product to indicate
that the product conforms to the section 508 standards.
iii. Are vendors required to post information regarding whether their
products meet the Access Board standards on a web site? Couldn't
this result in a compromise of intellectual property?
Vendors are not required to post information regarding whether or not their
products meet the Access Board's standards on a web site (unless
they choose to respond to a solicitation, or are awarded a contract,
that says otherwise). As a general matter, vendors may disseminate
information addressing whether their products meet the Access Board
standards in any manner and level of detail they choose. Vendors
are encouraged to use the Buy Accessible website on www.section508.gov
to facilitate the market research efforts of the government in identifying
conforming products. However, they are not required to use this
means of providing information to the government. The purpose of
the website is to improve buyer awareness of those EIT offerings
that meet all or some of the Board's standards, not to force the
revelation of particular technical solutions. Generally, information
the government has about a winning offer may be obtained by the
public under the Freedom of Information Act unless the information
falls under the exemption in 5 U.S.C. 552(b)(4) for business "trade
secrets and commercial or financial information obtained from a
person that is privileged or confidential."
iv. Do vendor web sites advertising EIT products or providing information
about EIT products to the federal government have to meet the section
508 standards?
No. Section 508 does not require a vendor's web site to meet the Access
Board's standards. Section 508 applies to Federal departments or
agencies, including the United States Postal Service.
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F. NONAVAILABILITY
F.1. Under what circumstances may an agency conclude that no EIT is available
that meets the Access Boards technical provisions?
An agency may conclude that EIT meeting the applicable technical provisions
of the Access Boards standards is not available (and purchase
EIT that does not meet those provisions) when it cannot find a commercial
item that both meets applicable Access Boards technical provisions
and can be furnished in time to satisfy the agencys 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
provisions. Agency acquisitions must comply with those applicable
technical provisions that can be met with supplies or services that
are available in the commercial marketplace in time to meet the
agencys delivery requirements. Nonavailability determinations
must be documented (see sections F.2 and F.3).
The concept of nonavailability is recognized in the Access Boards
standards (at 36 CFR 1194.2(b)) and the FAR (at 39.203(c)) because
agencies may find that some of their needs cannot be satisfied with
EIT that meets all the applicable technical provisions. However,
as manufacturer offerings of products that meet the applicable technical
provisions increase over time, incidents of nonavailability will
decrease.
F.2. What should be included in a nonavailability determination?
The requiring official must document in writing the nonavailability
and provide a copy of this documentation to the contracting officer
for inclusion in the contract file. FAR 39.203(c)(2) requires that
the documentation must include a description of market research
performed and identification of the applicable technical provisions
that cannot be met with products or services available from the
marketplace. Agency procedures (if any) must be followed.
F.3. Who is the "requiring official" who makes the nonavailability
determination?
The FAR requires that determinations of nonavailability be made by requiring
activity officials (not contracting officials) unless agencies provide
otherwise in their procedures. The requiring official is an official
in the program office or organization that is funding and acquiring
the EIT. The FAR requires that the documentation of nonavailability
be included in the contract file.
F.4 If an agency has appropriately determined and documented that commercial
items are not available that meet applicable technical provisions,
must it also determine that an exception applies?
No. Nonavailability is an independent basis for acquiring EIT that does
not meet the applicable Access Board's technical provisions. See
FAR 39.204(e)(2)(ii). Undue burden documentation would be required
if products meeting all (or some) of the standards are commercially
available but would create an undue burden on the agency to acquire.
(In other words, when a product meeting the standards is commercially
available, it is treated no differently than a non-commercial item
with respect to application of the undue burden justification.)
Agencies should document commercial nonavailability in accordance
with agency procedures to assist in defending the agency's decision
in the event of a complaint. (see section F.2.).
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G. EXCEPTIONS
G.1. Are there any exceptions to the requirement to acquire EIT that
meets the technical provisions of the Access Boards standards?
Yes. Agencies are not required to acquire EIT that meets the technical
provisions of the Access Boards standards if the acquisition:
- is a micro-purchase made prior to January 1, 2003 (FAR 39.204(a));
- is for a national security system (FAR 39.204(b) and 36 CFR 1194.3(a));
- is acquired by a contractor incidental to a contract (FAR 39.204(c) and 36 CFR 1194.3(b));
- is located in spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment (FAR 39.204(d) and 36 CFR 1194.3(f));
- or would impose an undue burden on the agency (FAR 39.204(e) and 36 CFR 1194.2)
In addition, agencies are not required to fundamentally alter their
needs in order to comply with section 508. (See section
D.4, above.)
G.2.
The micro-purchase exception
i. Does the micro-purchase exception cover all purchases under $2,500?
No. The exception is for a one-time purchase that totals $2,500 or less,
made on the open market as opposed to under an existing contract.
A software package that costs $1800 is not a micro-purchase if it
is part of a $3,000 purchase -- or a $3,000,000 purchase. Orders
placed against the Federal Supply Schedule, GWACs, multi-agency
contracts, or IDIQ contracts are not micro-purchases because they
are not made on the open market.
ii. Why is the micro-purchase exception temporary?
The FAR provides an exception for micro-purchases until January 1, 2003.
Many micro-purchases are conducted by program officials (i.e., end
users) with the help of government-wide purchase cards. The temporary
exception reflects the difficulty program officials face in identifying
products that meet the technical provisions of the Access Boards
standards before industrys section 508-related manufacturing
of products becomes commonplace. By the time this exception expires,
many products are expected to meet the Access Boards technical
provisions and may be so labeled by the manufacturer. In the meantime,
contracting officers and purchase card holders are strongly encouraged
to acquire EIT that meets the applicable technical provisions to
the maximum extent practicable.
iii. Are acquisitions conducted with a government-wide commercial purchase
card covered by section 508?
If the card is used to conduct an open-market purchase of $2,500 or
less and the action occurs prior to January 1, 2003, the action
would not be covered by the procurement provisions of section 508.
By contrast, if the action occurs after January 1, 2003, it would
be covered by those provisions. In addition, if the card is used
to pay for an order (in any amount) under an existing indefinite-quantity
contract placed on or after June 25, 2001 (the date the FAR rule
takes effect), the action would be covered by those provisions.
G.3.
The national security exception
i. Is there guidance defining what constitutes a national security
system?
Yes. The FAR defines national security system at FAR 39.002. The term
is also defined in section 5142 of the Clinger-Cohen Act of 1996
(40 U.S.C. 1452). For additional discussion, see the preamble discussion
regarding 36 CFR 1194.3(a) of the Access Boards standards.
ii. Are some types of secure electronic equipment, such as secure telecommunications
devices that are specifically designed to prevent eavesdropping
and other forms electronic attack, subject to section 508 requirements?
For example, some products are certified as "TEMPEST-tested,"
which means that extreme measures have been taken to harden them
against intrusion. Are those products required to conform to the
Access Board standards?
Unless an exception applies, these technologies are considered EIT and
must meet the Access Board standards. If "Tempest-tested"
telecommunications systems are being used in an application covered
by the national security exception, they would not need to meet
Access Board standard 1194.3(a).
G.4.
The "incidental to a contract" exception
i. Do the standards require a contractors workplace to be Section
508 compliant?
No. Unlike some other civil rights laws (such as section 504 of the
Rehabilitation Act), the section 508 responsibilities do not follow
the receipt of Federal funds to contractors, but only apply to the
product and services being procured by Federal agencies. Section
508 applies only to Federal agencies including their EIT
products and services that are deliverables under a contract. Section
508 does not apply to a contractors own internal workplace
EIT.
For example, if a Federal agency enters into a contract to have a web
site developed, the web site is required to meet the applicable
technical provisions of the Access Boards standards because
the web site is the deliverable that is being acquired by the agency
(unless, of course, an exception applies). However, the contractors
office system used to develop the web site does not have to meet
the technical provisions, since its equipment is incidental to the
contract.
ii. Can a purchase qualify for this exception based strictly on the
fact that it is a small add-on purchase to a larger contract?
No. While a purchase may be considered "incidental" in some
situations based on its size, "incidental" in the context
of section 508 means the product is being used in-house by the contractor.
The size of the purchase is irrelevant for purposes of this exception.
G.5.
The "back office" exception
G.5.i. What is the "back office" exception?
The so-called "back office" exception, discussed at section
1194.3 of the Access Board's standards, states that "Products
located in spaces frequented only by service personnel for maintenance,
repair, or occasional monitoring of equipment are not required to
comply with this part."
G.5.ii. How is the "back office" exception applied?
Hardware. Two conditions must be met before an agency uses this exception
when procuring a product. First, the agency must intend to locate
the product in a physical space frequented only by service personnel.
Second, the use of the product by the service personnel must be
for maintenance, repair or occasional monitoring. If both conditions
are met, the product does not have to meet the standards.
Hardware that might meet these dual conditions includes: telephone equipment
placed on racks in a "closet" or small room and network
routers and storage devices or servers located in rooms or areas
frequented only by service personnel for maintenance, repair, or
occasional monitoring of equipment.
Software. Software which is installed or operated on a product which falls
under this exception would be exempt from the standards if the software
application could only be operated from the physical place where
the product is located. This might include specialized diagnostic
software. By contrast, if the software could be operated from a
remote workstation, the software would be subject to the Access
Board's standards irrespective of who is using it since the product
interface is not located in a physical space which meets the criteria
for this exception.
G.6.
The undue burden exception (see also section B.6, above)
i. What is the undue burden exception?
Agencies do not have to acquire EIT that meets the applicable technical provisions
if doing so would impose an undue burden on the agency. Undue burden
is a longstanding concept in disability rights law. In the context
of section 508, it means that an acquisition imposes a significant
difficulty or expense, taking into account all agency resources
available to the program or component for which the EIT is being
procured. 36 CFR 1194.4 and FAR 39.202, 39.204(e)(1). An undue burden
determination must be applied on a case-by-case basis.
If an agency invokes the undue burden exception, it must document in
writing the basis for the decision and provide documentation for
inclusion in the contract file (see sections G.6.iii and iv, below).
In addition, the statute requires the information and data to be
provided to disabled individuals by an alternative means of access
(see section B.6.ii, above). Agencies have additional
responsibilities under sections 501 and 504 of the Rehabilitation
Act.
ii. Why isnt undue burden more completely defined in the regulations?
Undue burden was defined by the Access Board consistent with the terms
"undue burden" and "undue hardship" in the Rehabilitation
Act and the Americans with Disabilities Act. The preamble to the
Boards rule included an extended discussion of the term (see
65 FR 80500, at page 80506, December 21, 2000). Substantial case
law provides further guidance to agencies in the application of
the undue burden exception. The Access Board chose not to disturb
the existing understanding of the term by trying to redefine it.
The FAR rule also follows this approach.
iii.
Can "significant expense" be established
simply by demonstrating that a product that meets the applicable
technical provisions is significantly more expensive than one that
does not?
No. In determining whether acquisition of EIT that meets all or part
of the applicable technical provisions of the Access Boards
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 cannot be established
simply by demonstrating that, as between products that could meet
the agencys need, the price of products that meet the applicable
technical provisions is higher than that of others that do not.
Such an analysis is insufficient since it fails to consider all
resources available to the program or component.
iv. What should be included in the undue burden determination?
The FAR requires the requiring activity official to document in writing
the basis for an undue burden decision and provide a copy to the
contracting officer for inclusion in the contracting file. See FAR
39.204(e)(2)(i). The documentation must clearly explain why meeting
the applicable technical provisions imposes an undue burden.
The law and regulations do not specify the exact content or format of
documentation to support an undue burden determination. Any agency
documentation (and approval) procedures for undue burden must be
followed. Documentation to support an undue burden determination
based on significant expense could describe, among other things:
the applicable technical provisions of the Access Boards standards,
the market research performed to locate commercial items that meet
the applicable technical provisions, the specific provisions that
cannot be met as a result of undue burden, the expected cost of
acquiring EIT that meets the applicable technical provisions along
with an explanation of how costs were estimated, and a description
of all the funds available to the program or component for which
the supply or service is being acquired.
v. Who is the "requiring activity official" who makes the
undue burden determination?
See the response to Question F.3, above.
vi.
May an agency shift the responsibility for making undue burden determinations
to vendors (i.e., by requiring interested sources who offer EIT
that meets the applicable technical provisions to explain why the
purchase of such EIT would not impose an undue burden on the agency)?
No. The responsibility for making an undue burden determination rests
with the agency. Only the agency is in a position to determine the
difficulty or expense acquisition of EIT that meets the applicable
technical provisions would impose on an agency and to know the resources
available to its program or component for which the supply or service
is being acquired.
ii. What are the historical financial threshold and circumstances that
appear to satisfy the courts relative to "undue burden"
justifications by the government?
Undue burden cases are unique and require an examination of resources
on a case-by-case basis. A general discussion on undue burden as
it relates to 508 is offered on http://www.section508.gov/docs/undueburdenarticle.htm.
This article was not written by a Federal employee or on behalf
of the Federal government. The views represented are solely the
views of the author. (The article is reprinted on the site with
permission from the August 2001 issue of Contract Management magazine,
published monthly by the National Contract Management Association
in Vienna, VA.)
G.7.
Legacy Systems
i. Are procurement actions to maintain existing legacy systems (that
do not meet the technical provisions of the Access Boards
standards) exempt from section 508?
Perhaps. The answer will depend on the purpose and nature of the action.
In some cases, an exception, such as undue burden, might apply.
As noted above, however, undue burden determinations must be made
on a case-by-case basis.
For example, if an agency is acquiring "patches" to fix minor
software errors on a system that is not near the end of its life
expectancy and software that meets the applicable technical provisions
of the Access Boards standards would not operate with the
system, the agency might experience a significant difficulty or
expense if it had to prematurely replace its system to accommodate
the new software. Thus, the acquisition might fall within the undue
burden exception. (In fact, if the maintenance is covered under
a contract awarded prior to June 25, 2001, the procurement provisions
of section 508 might not be applicable. See section H.3.)
By contrast, a finding of undue burden may be difficult to justify
if a system is near the end of its life expectancy, the purpose
of so-called "maintenance" is to significantly upgrade
and update the system or its operating software (such as moving
from a very old generation software to a much newer generation software),
and the agency the resources for such an upgrade.
ii. Are there any circumstances under which Federal EIT must be retrofitted
with EIT that meets the access board's standards?
Section 508(a) generally requires that agencies ensure that the EIT they
develop, procure, maintain, or use meets the Access Board's standards.
To the extent agency resources are available, agencies should consider
replacing older, inaccessible EIT with newer more-accessible EIT,
where such EIT is used by federal employees or members of the public
to access data or information. In addition to helping the agency
meet its general obligations under 508(a), such efforts may also
help the agency satisfy its obligations under sections 501 and 504
of the Rehabilitation Act.
iii. If an agency has a system in place for broadcasting streaming video,
is it required to replace it with a system that meets the standards
when the next lifecycle upgrade occurs?
Generally, yes. Multimedia equipment is considered EIT and must meet the Access
Board standards. If the equipment was purchased after June 25, 2001,
and an exception does not apply, the action is subject to the enforcement
provisions of section 508(f).
Multimedia productions, must also meet the applicable Access Board standards
irrespective of the equipment used to develop them, and are subject
to the same enforcement provisions as multimedia equipment.
G.8. Does acquiring maintenance or support services
for an existing system trigger the requirement for the existing
system to meet the Access Boards technical provisions?
New maintenance and support contracts on legacy systems do not require
the previously owned EIT to meet the technical provisions of Subparts
B or C of the Access Boards standards. However, the newly
acquired help desk services, training, and product support documentation
must meet Subpart D of the Access Boards standards.
G.9. Are agency purchases from Javits-Wagner-ODay (JWOD) Act nonprofit
agencies employing people who are blind or severely disabled (NIB/NISH)
or Federal Prison Industries ("FPI," also known as UNICOR)
exempt from section 508?
No. Agency purchases from NIB/NISH and FPI are treated as procurements
and are subject to section 508. For EIT products and services where
NIB/NISH and FPI are mandatory sources, agencies must look to these
sources first for EIT that meets the applicable technical provisions
of the Access Boards standards. EIT that does not meet the
applicable technical provisions may be acquired from these sources
only if an exception applies or if EIT that meets the provisions
is not available from a commercial source (i.e., nonavailability
means EIT is not available from either a mandatory source or the
commercial marketplace).
G.10. Does an agency have any remaining obligations under the Rehabilitation
Act if an exception applies?
Yes. Even if an exception applies, the agency will still have obligations
under sections 501 and 504 of the Rehabilitation Act. These sections
require, among other things, that the agency provide reasonable
accommodation for employees with disabilities and provide program
access to members of the public with disabilities. (If the undue
burden exception applies, an agency is required under section 508
to provide an alternative means of access. See section
B.6.ii)
G.11. Should agencies keep track of exceptions?
Yes. Agencies will need to track documented exceptions to section 508
for future reporting to the Department of Justice. (Agencies should
also keep track of nonavailability determinations. See section
F.2, above.) For this reason, agencies should establish a method
of collecting and reporting that information to the Department of
Justice for their biennial reports. An agencys CIO office
/ Section 508 Coordinator can provide more information on the agency's
processes for reporting and documenting exceptions. See the section
508 web site, www.section508.gov,
to identify individual agency coordinators.
G.12 May an agency exempt an acquisition from the requirements of section
508 if such procurement is undertaken to comply with the Government
Paperwork Elimination Act (GPEA)?
No. Agency efforts undertaken to comply with GPEA are not exempt from
section 508. EIT developed, procured, maintained or used to meet
the objectives of GPEA must also meet the requirements of section
508, i.e., comply with the Access Board's standards where applicable.
GPEA, which was enacted in October 1998, requires agencies generally to provide
for the optional use and acceptance of electronic documents and
signatures and electronic record keeping, when practicable, by October
21, 2003. OMB annually requires agencies to submit plans describing
how they are implementing GPEA; the most recent OMB request was
issued on September 24, 2001. In that request, OMB describes factors
that agencies should consider in their planning, and among those
factors is customer relationship management, including accessibility
standards. OMB guidance on implementing GPEA (Memorandum M-00-10,
April 2000) can be found on the OMB website, www.whitehouse.gov/omb/memoranda/index.html.
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H. APPLICABILITY
H.1. When do the FAR changes requiring acquisition of EIT that meets
the applicable technical provisions of the Access Boards standards
go into effect?
The effective date of the FAR changes for acquiring EIT is June 25,
2001. (Because this is a major rule, the Congressional Review Act
requires a 60-day waiting period from the time the rule is published
in the Federal Register, which was April 25, 2001, to the date the
rule becomes effective.)
H.2.
What is the significance of June 21, 2001?
Beginning June 21, 2001, persons with disabilities may file administrative
complaints or bring civil actions in Federal court against agencies
that fail to comply with the requirements of section 508. This date
was established by operation of the law, which authorizes such actions
6 months after the date the Access Board published its standards
as a final rule (which was on December 21, 2000). As a result, agencies
may wish to consider following the FAR rule prior to its June 25,
2001 effective date.
H.3.
What contract actions must satisfy section 508?
All contracts awarded on or after June 25, 2001. All orders placed
on or after June 25, 2001 under IDIQ contracts irrespective of when
the underlying IDIQ contract was awarded. (Thus, IDIQ contracts
may include items that do not meet the applicable technical provisions
of the Access Boards standards; however, any task or delivery
order issued for those items must meet an applicable exception.)
i. What are examples of actions that, if they occur on or after June
25th, WILL NOT TRIGGER the section 508 procurement obligations?
Delivery of EIT purchased under a contract awarded or order placed
prior to June 25, 2001.
Within-scope modifications for the acquisition of EIT under contracts
awarded before June 25, 2001 (e.g., small increases in the number
of units ordered or changes to the delivery schedule).
Exercise of unilateral options to acquire EIT under contracts awarded
before June 25, 2001.
Determination of funds availability on a multiyear contract awarded
prior to June 25, 2001.
Award of an IDIQ contract, except for requirements that are to be
satisfied by the initial award.
ii. Actions covered. What are examples of actions that WILL TRIGGER
the section 508 procurement obligations if they occur on or after
June 25th?
Acquisition of EIT through a contract amendment that falls outside
the general scope of a contract awarded prior to June 25th. (This
action would constitute a new contract action and would need to
be properly justified.)
Placement of an order for EIT under an IDIQ contract, including
a Federal Supply Schedule contract, a GWAC, or a multi-agency contract.
(See FAR 16.504 and 16.505 addressing the use of indefinite quantity
contracts, except see FAR subpart 8.4 on purchasing from the Federal
Supply Schedules.)
Purchases against blanket purchase agreements (BPAs), whether issued
against a Federal Supply Schedule or outside the Schedules program.
Purchases against basic ordering agreements (BOAs).
H.4. What must an agency do if it has already published a solicitation
for EIT without taking section 508 requirements into account and
the ensuing contract will not be awarded until on or after June
25, 2001?
If a contract is not going to be awarded until on or after June 25,
2001, the contract will be subject to section 508. To the extent
incorporation of the applicable technical provisions of the Access
Boards standards change the agencys requirements, the
contracting officer will need to amend the solicitation. The agency
should also consider whether an exception might apply, such as nonavailability.
H.5. Does Section 508 apply to a Federal agency's existing EIT procured
prior to June 21, 2001?
The Workforce Investment Act of 1998 amended section 508 of the Rehabilitation
Act and directed the Access Board to publish standards for developing,
procuring, maintaining, or using electronic and information technology.
Although the amendments to section 508 were effective on August
7, 1998, there were no standards to measure compliance until the
standards published by the Access Board became effective on February
20, 2001. By statute, the enforcement provisions apply to EIT procured
after June 21, 2001. (For a discussion on how maintaining EIT which
existed prior to June 21, 2001 may be subject to the enforcement
provisions of section 508, see sections G.7, G.8,
and H.3.)
H.6 If an agency began work on EIT prior to June 21, 2001 that will
be developed entirely in-house, but won't be completed until after
June 21, 2001, does this EIT have to meet the 508 requirements?
Yes. The Access Board's standards for EIT became effective February 20,
2001 and apply to EIT that is developed, procured, maintained or
used by the Federal government, whether conducted in house or through
a commercial provider. However, the enforcement provisions, which
became effective on June 21, 2001, apply only to EIT products they
are procured.
H.7. Presentations
i. Does presentation equipment procured have to meet the Access Board
standards?
Yes. Presentation equipment, such as LCD data projectors and laptop computers,
are considered EIT and therefore covered by the Access Board's standards,
unless an exception applies. If the equipment was procured after
June 21, 2001, and an exception does not apply, the action would
be enforceable under Section 508(f). See sections G
and H for more details.
ii. If an instructor uses slides from presentation software, such as
Microsoft PowerPoint or Corel Presentations, which are projected
to a live class, do the Access Board standards apply?
Generally, no. However, if the slides contain embedded multimedia elements,
such as videos, then the Access Board standards apply to this live
presentation. As a reminder, the software used to create and playback
the slideshow must meet the requirements of Section 1194.21, software
applications and operating systems. Similarly, the projection equipment
including the presenter's remote must meet the requirements of Section
1194.25, self contained, closed products.
Regardless of whether the Access Board standards apply, agencies still have
obligations to their employees under Sections 501 and 504 of the
Rehabilitation Act. As an example of reasonable accommodation, an
instructor may have to read the contents of the slides, or audio
describe visual elements of the slides to class members with visual
disabilities.
H.8 Does an agency have an obligation under section 508 to address a
complaint that is about EIT that was procured before June 21, 2001?
No. Section 508 does not provide enforcement provisions for EIT that
was procured before June 21, 2001. However, the agency may still
have an obligation under sections 501 and 504 of the Rehabilitation
Act to accommodate the needs of an individual with a disability.
H.9 Do Federal agency software or web development tools have to meet
the Access Board's standards?
Yes. Software applications, such as web development tools, are considered
EIT and therefore covered by the Access Board's standards, unless
an exception applies.
H.10 Are hand held devices (palm tops, cell phones) covered by section
508?
Yes. This technology is "electronic and information technology"
covered by section 508 and the Access Board's standards. Most hand
held devices currently fall in the category of "self contained
closed products." (See section 1194.25 of the Access Board's
standards). As technology advances, hand held devices may fall into
other categories as well. Agencies are required to procure such
products that meet the section 508 standards, subject to applicable
exceptions such as "fundamental alteration (see section 1194.3(e)),
"commercial availability" (see section 1194.2(b)), and
"undue burden" (section 1194.2(a)).
H.11. Do private sector web sites that provide a subscription service
to Federal agencies need to conform to 508 provisions?
Section 508 of the Rehabilitation Act does not place requirements on vendors.
See section C.3. However, a vendor must design
and manufacture products or services that meet the applicable Access
Board's technical provisions if it wishes to sell those products
or services to the government. Electronic subscription services
are considered to be EIT. Thus, if a Federal agency procures an
electronic subscription service from a vendor, it must procure one
that meets the applicable provisions of the Section 508 standards,
unless an exception, such as nonavailability, applies. (See sections
F and G )
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