Section 508 Acquisition FAQ's Page 4

H. APPLICABILITY

H.1. When do the FAR changes requiring acquisition of EIT that meets the applicable technical provisions of the Access Board’s 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 Board’s 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 Board’s standards change the agency’s 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, below. 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.