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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: April 25, 2001

SUBJECT: Federal Acquisition Circular (FAC) 97-27, Electronic and Information Technology Accessibility

SOURCE: Federal Register, April 25, 2001, Vol. 66, No. 80, page 20893

AGENCIES: Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA)

ACTION: Final Rule

SYNOPSIS: FAC 97-27 is being issued to amend the Federal Acquisition Regulation (FAR) to implement the requirements of Section 508 of the Rehabilitation Act of 1973, which requires that the FAR be revised to incorporate the electronic and information technology (EIT) accessibility standards developed by the Architectural and Transportation Barriers Compliance Board.

EDITOR'S NOTE: FACs 97-25 and 97-26 have been assigned to other FAR changes, but those FACs have not been finalized. Since the accessibility standards go into effect June 21, 2001, it is imperative that FAC 97-27 not be delayed.

For more on the Compliance Board's EIT accessibility standards, see the December 21, 2000, FEDERAL CONTRACTS DISPATCH "Architectural and Transportation Barriers Compliance Board; Electronic and Information Technology Accessibility Standards."

For more on the proposed rule, see the January 22, 2001, FEDERAL CONTRACTS DISPATCH "Federal Acquisition Regulation (FAR); Electronic and Information Technology Accessibility."

DATES: The effective date for FAC 97-27 is June 25, 2001, and it applies to all contracts awarded on or after that date except for indefinite-quantity contracts. FAC 97-27 applies to delivery orders or task orders issued under indefinite-quantity contracts on or after the effective date. (EDITOR'S NOTE: The introduction to FAC 97-27 states, "Indefinite-quantity contracts may include Federal Supply Schedule contracts, governmentwide acquisition contracts (GWACs), multi-agency contracts (MACs), and other interagency acquisitions.")

FOR FURTHER INFORMATION CONTACT: Linda Nelson, Procurement Analyst, 202-501-1900. Cite FAC 97-27, FAR case 1999-607, when referring to this final rule.

For general information, contact the FAR Secretariat, Room 4035, GS Building, Washington, DC 20405, 202-501-4755.

SUPPLEMENTAL INFORMATION: On August 7, 1998, President Clinton signed the Workforce Investment Act of 1998 (Public Law 105-220), which included the Rehabilitation Act Amendments of 1998. Subsection 408(b) of the Rehabilitation Act Amendments amended Section 508 of the Rehabilitation Act of 1973 to require that when federal agencies develop, procure, maintain, or use EIT, that they make sure that the EIT allows federal employees with disabilities to have comparable access to and use of information as other federal employees. Section 508 also requires that individuals with disabilities who are members of the public seeking information or services from a federal agency have comparable access to and use of information and data as those without disabilities. However, comparable access is not required if it would impose an undue burden.

On December 21, 2000, the Compliance Board published the final EIT accessibility standards and the technical and functional performance criteria necessary for accessibility for such technology (Title 36 of the Code of Federal Regulations (CFR), Part 1194, Electronic and Information Technology Accessibility Standards). The amended Section 508 requires that the FAR implement the standards within six months of their publication -- that is, June 21, 2001. Therefore, the FAR Council published a proposed rule on January 22, 2001, to add FAR Subpart 39.X, Electronic and Information Technology, to implement the Compliance Board's rule. Based on comments, the final rule is largely as proposed except that the discussion of the applicability of the rule has been expanded (FAR 39.203, Applicability).

The following are the key provisions of FAC 97-27 (differences between the proposed and final rules are in brackets ("[ ]"):

• FAR 2.101, Definitions, contains the same definition of "electronic and information technology" that is in the Rehabilitation Act Amendments: "'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)."
  
  
• The EIT accessibility standards in 36 CFR Part 1194 must now be considered in acquisition planning (FAR 7.103, Agency-Head Responsibilities, is modified to reflect this requirement), market research (FAR 10.001, Policy, and FAR 12.202, Market Research and Description of Agency Need), and when describing agency needs (FAR 11.001, Policy, and FAR 12.202).
  
  
• FAR Subpart 39.2, Acquisition of Information Technology, is added. It includes the following sections:
  
  
  • FAR 39.201, Scope of Subpart, references Section 508 of the Rehabilitation Act and 36 CFR Part 1194, and briefly explains their requirements. [It states that further information on Section 508 is available at http://www.section508.gov.]
    
    
  • FAR 39.202, Definition, defines "undue burden" as "a significant difficulty or expense."
    
    
  • FAR 39.203, Applicability, requires all acquisitions of EIT to meet the applicable accessibility standards in 36 CFR Part 1194. [If an exception exists, an exception determination must be made prior to contract award, except for indefinite-delivery contracts. "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)...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."]
    
    [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...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."]
    
    EDITOR'S NOTE: The introduction to FAC 97-27 states that the EIT standards do not apply to "taking delivery for items ordered prior to the effective date of this rule; within-scope modifications of contracts awarded before the effective date of this rule; exercising unilateral options for contracts awarded before the effective date of this rule; or multiyear contracts awarded before the effective date of this rule."
    
    Also, the FAC 97-27 introduction states, "initially there will be many (commercial) products that do not meet all the Access Board's technical standards. Agencies may need to acquire these products. When acquiring commercial items, an agency must comply with those accessibility standards that can be met with supplies and services available in the commercial marketplace in time to meet the agency's delivery requirements. Individual standards that cannot be met [must] be documented by the requiring official, with a copy to the contract file. If products are available that meet some, but not all applicable standards, agencies cannot claim a product as a whole is nonavailable just because it does not meet all of the standards."
    
    
  • FAR 39.204, Exceptions, exempts EIT acquisitions that are:
    
    
    • Micro-purchases ($2,500 or less) prior to January 1, 2003, but "contracting officers and other individuals designated in accordance with [FAR] 1.603-3 [Appointment] are [strongly] encouraged to comply with the applicable accessibility standards to the maximum extent practicable."
      
      EDITOR'S NOTE: The introduction to FAC 97-27 states that the micro-purchase exception "was made in recognition of the fact that almost all micro-purchases are made using the governmentwide commercial purchase card. Government personnel, who are not warranted contracting officers, use the purchase card to purchase commercial-off-the-shelf items. Use of the purchase card makes it generally impractical to comply with the EIT accessibility standards unless commercial-off-the-shelf products are labeled for standards compliance. Manufacturers are continuing to develop products that comply with the EIT accessibility standards. It is expected that almost all products will comply with the standards within the next two years, and be labeled by the manufacturer accordingly. Therefore, [the FAR Council has] established a sunset date of January 1, 2003, for the micro-purchase exemption. Prior to that date, the government will revisit the state of technology and the pace at which manufacturers have conformed to the required standards."
      
      Also, the FAC 97-27 introduction explains that "the micro-purchase exception does not exempt all products that cost under $2,500. Some commentors were confused about this. The exception is for a one-time purchase that totals $2,500 or less, made on the open market rather than under an existing contract. A software package that costs $1,800 is not a micro-purchase if it is part of a $3,000 purchase, or part of a $3,000,000 purchase. Regardless of purchase price, there still is an agency requirement to give reasonable accommodation for the disabled under Section 504 of the Rehabilitation Act of 1973. The current micro-purchase limit is $2,500, set by statute. If the threshold is increased by a statutory change, the FAR Council will consider keeping the FAR Subpart 39.2 limit at $2,500."
      
      
    • For a national security system.
      
      
    • Acquired by a contractor incidental to a contract.
      
      
    • Is located in spaces frequented only by service personnel for maintenance, repair or occasional monitoring of equipment.
      
      
    • Would impose an undue burden on the agency. When determining whether compliance would be an undue burden, an agency must consider the difficulty or expense of compliance, and agency resources available to its program or component for which the supply or service is being acquired. 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" [proposed language would have exempted "standards that are not yet available in the commercial marketplace in time to meet the agency delivery requirements"].

EDITOR'S NOTE: There are several other comments in the FAC 97-27 introduction that bear quoting:

• "Some commentors asked for a clause, pointing out that unless the FAR prescribes a clause, agencies may produce different clauses, resulting in inconsistent coverage across the government. Some procurement offices want a clause to help address their lack of experience with the Access Board standards. No clauses were in the January proposed rule. The FAR Council is carefully considering whether clauses are needed and welcomes comments on this issue that would inform a potential rulemaking."
  
  
• "Commentors asked whether the Committee for Purchase from People Who Are Blind or Severely Disabled, and Federal Prison Industries (UNICOR) were covered. These are required sources for certain items. Agencies must consider noncompliant EIT items from these sources the same way that they would consider items from commercial sources, i.e., whether purchasing the item would come under an exception. As a matter of policy, purchases from the Committee for Purchase from People Who Are Blind or Severely Disabled and Federal Prison Industries are to be treated as procurements."
  
  
• "The current status of compliance testing also was discussed in comments. Currently there is no uniform testing. However, there is an industry-led, government-sponsored, program in the works, Accessibility for People with Disabilities through Standards Interoperability and Testing (ADIT). See the Section 508 website for information."
  
  
• "According to the Federal Procurement Data System in fiscal year 2000, we [the FAR Council] estimate that there are approximately 17,550 contractors to which the rule will apply. Approximately, 58%, or 10,150, of these contractors are small businesses."

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

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