Section 508 Acquisition FAQ's Page 2
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 Board’s standards is the shared responsibility of requiring activity officials and contracting officials.
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 Officer’s 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 Agency Section 508 Coordinator List.
C.2. If EIT is acquired through another agency’s 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 GSA’s 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 Board’s standards. They must also provide the source of vendor information regarding section 508 (e.g., the vendor’s 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 agency’s 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 Board’s technical provisions?
No. Section 508 requires the government to purchase EIT that meets the applicable technical provisions of the Access Board’s 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 Board’s 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, below.)
In turn, contractors wishing to do business with the government must provide products and services that meet (either directly or through equivalent facilitation) an agency’s stated requirements, including applicable technical provisions from the Access Board’s standards as identified by the agency. Contractors (including manufacturers and designers) are under no obligation to consider either section 508 or the Access Board’s 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.
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 Board’s 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 Board’s technical provisions and functional performance criteria each time they purchase EIT?
No. Requiring officials need only consider all applicable technical provisions from the Access Board’s 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 agency’s 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 agency’s 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 Board’s 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 agency’s security needs even if the digital phones fully meet the applicable technical provisions of the Access Board’s standards and the analog phones meet only some of the applicable technical provisions.
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 government’s 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 Board’s standards where an offer provides strong technical merit, strong past performance, or a lower price?
The Access Board’s 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 Board’s 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 agency’s 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 Board’s 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 Board’s 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 Board’s 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 Board’s standards for the feature or component providing equivalent facilitation. If none of the offers that meet all applicable provisions of the Access Board’s 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 Board’s 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 Board’s 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 Board’s standards.
E.6. Vendor EIT information on websites
i. Will there be a web site providing information on how manufacturers have addressed the Access Board’s technical provisions?
Yes. The site will consist of information offered by vendors describing how their offerings meet the technical provisions of the Access Board’s 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 BuyAccessible website 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.
F.1. Under what circumstances may an agency conclude that no EIT is available that meets the Access Board’s technical provisions?
An agency may conclude that EIT meeting the applicable technical provisions of the Access Board’s 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 Board’s technical provisions and can be furnished in time to satisfy the agency’s delivery requirements. If products are available that meet some, but not all, applicable provisions, agencies cannot claim a product as a whole is nonavailable just because it does not meet all of the applicable 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 agency’s delivery requirements. Nonavailability determinations must be documented (see sections F.2 and F.3, below).
The concept of nonavailability is recognized in the Access Board’s 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., above).