Office of the Procurement Executive

Section 508 Questions and Answers

(Revised June 25, 2002)

INTRODUCTION: This Question and Answer document has been developed by the Treasury Office of Procurement as internal guidance in response to questions and issues of Treasury Department employees, most of whom are using Treasury Section 508 guidance and tools. This is a living document that will be updated as necessary as issues arise. Informal edits, comments and review of this document were provided by knowledgeable personnel of other agencies.

These Questions and Answers often reference the Treasury guidance and tools available at www.treas.gov/offices/management/dcfo/procurement/508/. Although Treasury shares its guidance with external entities, its guidance is not a government-wide authority. Refer to the Section 508 web site, www.section508.gov, for a general set of informal questions and answers that have been reviewed by an inter-agency steering committee comprised of agencies with lead responsibilities for the implementation of Section 508. In addition, as appropriate, you should consult with your General Counsel for specific advice and to ensure consistency with government-wide guidance.

REVISIONS: As appropriate, new Q&A are added occasionally. The most recent will be at the end in order to maintain consistent numbering. A date in parentheses after a question indicates the date that the Q&A was initially issued as guidance.

1. Do I ever have to do an "undue burden" justification if I am seeking to acquire a commercial item? (7/25/01)

   Yes, there is no distinction between commercial items and non-commercial items relative to the application of "undue burden" justification needs under Section 508.

2. Under what circumstances must I do an "undue burden" justification in the typical commercial item acquisition process? (7/25/01)

   The requiring official must prepare an undue burden determination if he determines that commercial EIT is available that meets both applicable Access Board’s technical provisions and the agency's minimum needs, but that acquisition of this EIT would impose a significant difficulty or expense on the program or component for which the EIT is being acquired.

3. When do I have to do an "undue burden" justification? (7/25/01)

   1. At the pre-purchase request point, an undue burden justification is necessary to be completed in each instance that the requiring official determines that:
      1. he intends to forego acquisition of the product or service that best meets the applicable Access Board’s technical provisions due to significant difficulty or expense; and,
      2. the product or service otherwise meets the minimum agency needs.
   2. At the source selection point, if an undue burden justification was not previously done, an undue burden justification is necessary to be completed in each instance that the requiring official determines that:
      1. he intends to forego acquisition of an offered product or service that best meets the applicable Access Board’s technical provisions due to significant difficulty or expense, regardless of whether market research revealed its availability at the pre-purchase point; and,
      2. the product or service otherwise meets the minimum agency needs.

   If an undue burden justification was previously done, the requiring official must reassess that it is still sufficient in addressing any unsatisfied Access Board’s technical provisions; otherwise, it should be amended.

4. I have a Lease to Ownership Plan (LTOP) for photocopiers that is five years in duration that was awarded before 6/25/01, is not an IDIQ contract, is funded year-to-year, and procurement activity under it is within scope. During the term, consistent with the terms and conditions, I will buy out some of the equipment, terminate others, and substitute new equipment. Does Section 508 cover the LTOP? (7/25/01)

   No, since it was awarded before the Section 508 6/25/01 procurement effective date and all ensuing activity would be within scope, it would not be covered.

5. I understand that subcontracts are not subject to Section 508. If I have a prime contract that is subject to Section 508, but the supplies that I acquire are provided to me directly by the prime's subcontractors, are these products then subject to Section 508? (7/25/01)

   Yes. The assumption that subcontracts are not subject to Section 508 is mistaken. Even products from subcontractors may be subject to Section 508. The prime contractor is responsible for ensuring that all products delivered to the government conform to the provisions of the contract, regardless of who actually makes or delivers them.

6. Does the contracting officer have the responsibility of determining the adequacy of the "undue burden" documentation submitted by the requiring official? (7/25/01)

   The contracting officer must perform a "common sense" review of the documentation before placing it into the procurement action file in order to ensure that it does not include anything that is unreasonable or internally inconsistent. While the contracting officer need not ascertain the reliability, validity, accuracy or completeness of the undue burden documentation, achieving Section 508 compliance must be a team effort among requiring officials, contracting officers, CIO office IT experts, and others.

7. The Section 508 Access Board Final Rule provides six standards under which are 74 technical elements, six Functional Performance Criteria, and three provisions on Information, Documentation and Support. Does a product or service need to meet only the six standards in subpart B of the Access Board’s Final Rule since only "standards" are addressed in the FAR inclusions for Section 508? (7/25/01)

   No, the Access Board Final Rule intends that agencies take all of these elements (also referred to as technical provisions, technical requirements, or technical elements) be taken into consideration in developing their requirements for EIT. Similarly, FAR references to "standards" are intended to include the various subparts of the Access Board’s rule (which includes the concept of equivalent facilitation).

   In determining applicable technical provisions of the Access Board's standards, 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 agency's procurement needs are not fully addressed by Subpart B, then the agency must look to Subpart C for applicable functional performance requirements. You must also remember the additional considerations of Subpart D, "Information, Documentation and Support." In all cases, when evaluating offers, you must consider products that provide equivalent facilitation.

8. I have an information technology consulting and data warehouse management services contract providing thousands of labor hours and only one deliverable in the form of quarterly reports and a final report. Is this contract subject to Section 508? If so, how would I proceed to process it? (7/25/01)

   Yes, it is subject to Section 508. Services are included in the definition of "electronic and information technology" (EIT). The report is a contract deliverable and electronic product produced by software and transmitted to the federal government for use by at least one federal employee: it fits the definition of EIT. The pure consulting labor hours and data warehouse management hours would not typically be EIT.

   Before sending the purchase request to procurement, the requiring official identifies which Access Board’s technical provisions apply (most likely through one or more of the software standard’s technical provisions). He then performs specific market research to ensure that his anticipated report from the future contractor can meet the Access Board’s technical provisions. (It would most likely be so available.) He next completes the "Section 508 Determination and Findings for Purchase Requests" up to where he affirmatively answers that he can obtain a compliant product/service from the commercial marketplace. He attaches his market research to the D&F, attaches both to his Purchase Request, and submits it to procurement.

9. I have an IBM equipment and software annual service contract with a non-IBM firm whose function is to maintain the operational status of the products already installed. During the year, this may involve provision of standard upgrades and additional features as IBM produces such for these products. The equipment and software are proprietary products of IBM. The maintenance contractor is only performing standard IBM-supported maintenance. Is this contract covered by Section 508? If so, how would I proceed to process it? (7/25/01)

   Yes. Services to maintain software, including proprietary software, would be considered EIT. If the IBM maintenance deliverables do not meet the Access Board’s technical provisions, and only IBM-proprietary maintenance is available, the product would be considered to be non-available.

   The requiring official would complete the Section 508 Determination and Findings for Purchase Requests. He would also complete the Commercial Non-Availability Certification at the time of the purchase request, unless he receives written notification from the contractor of guaranteed satisfaction of the applicable Access Board technical provisions by IBM-proprietary maintenance. If he receives no such written notification, his market research would include documentation that only IBM-proprietary maintenance is legally permitted on the products, and IBM will not be providing maintenance that fully (or even partially) meets the applicable Access Board technical provisions. Hence, this being documented in the Commercial Non-Availability Certification would result in the supporting procurement office proceeding with its usual procurement process for this requirement.

10. I have a need to acquire a multi-million dollar automated printing press for production of United States currency that includes its own embedded data management capabilities using sensors, microchips, extensive cabling, video cameras, multiple monitors, etc., linked to a central processing unit. Is it covered by Section 508? (7/25/01)

    Most likely not. See the Access Board’s definition of EIT at subpart 1194.4, Definitions. Typically, this requirement would be considered equipment that uses embedded information technology (IT) that does not manage data or information as its principal function. The purpose of all the IT is simply to comprehensively manage the printing press.

11. I have numerous photocopiers from a variety of manufacturers under several annual service agreements that I need to re-award effective 10/01/01. Some are open market awards and some are Federal Supply Schedule delivery order awards. Are these covered by Section 508? (7/25/01)

    Yes. The service agreements are considered support service for electronic equipment (EIT). Note that while the Access Board’s technical provisions cover new maintenance and support contracts (including task and delivery orders), the currently owned legacy equipment acquired prior to June 25, 2001, is not covered.

    Also, during the coming maintenance year, their maintenance could include upgrades and new features that could be subject to software, hardware and perhaps even telecommunication standard technical provisions of Section 508. Suppose, as would probably occur, the manufacturers cannot forecast exactly what upgrades or new features would be added, nor whether they will satisfy Section 508.

    You must assume less than full satisfaction of Section 508 technical provisions. The requiring official would complete the several Commercial Non-Availability Certifications for inclusion with his purchase requests for the delivery orders, unless he receives written notifications from the manufacturers of guaranteed Section 508 compliance. If he receives no such written notification, his market research would include documentation that only manufacturer-proprietary maintenance is legally permitted on the products, and the manufacturers will not be providing maintenance that fully (or even partially) meets the applicable Access Board technical provisions. Hence, this being documented in the several Commercial Non-Availability Certifications would result in the supporting procurement office proceeding with its usual procurement processes for these requirements.

12. My procurement office has a limited scope IDIQ contract for mobile pagers, some of which are Section 508 compliant, and many repeat orders are expected against this contract over its five-year term. What is the proper manner for managing the prospective orders? (7/25/01)

    Any order issued for pagers through IDIQ contracts, including those awarded before June 25, 2001, must meet the Access Board’s technical provisions unless an exception applies. FAR 39.203(a)(3) allows for IDIQ contracts to include items that do not meet the Access Board’s technical provisions in recognition of the fact that there may be circumstances under which an agency’s minimum needs cannot be met with commercial products that conform to the Access Board’s technical provisions (i.e., commercial nonavailability) or that an exception applies (e.g., undue burden). If, for example, a requiring office needs technical features that are not offered in any commercially available pager (including the open marketplace) that meets the Access Board’s technical provisions, they may purchase a pager that does not meet the technical provisions – such as by placing an order for the pager that best meets the applicable Access Board’s technical provisions from an existing IDIQ contract.

    Each order against the contract will need to have its own "Section 508 Determination and Findings for Purchase Requests." You must complete a Commercial Non-Availability Certification. If this is a frequently recurring need, you still need to conduct market research to determine if commercial availability has changed. If it has not, the first such certification may be able to serve as a template for the new certification, which must be based on new market research. The template should never be used mindlessly without updating it.

13. I have a sole source, indefinite delivery indefinite quantity (IDIQ) commercial item contract for a highly sophisticated weapon identification system. The purpose of the system is to match weapon cartridge casings and projectiles and to specific weapons. The system uses sophisticated hardware and software to accomplish this. Is this covered by Section 508? (7/25/01)

    Most likely not. See the Access Board’s definition of EIT at subpart 1194.4, Definitions. Typically, this requirement would be considered equipment that uses embedded information technology (IT) that does not manage data or information as its principal function. The purpose of all the IT is simply to comprehensively manage the ballistics, matching and identification processes of the total system.

14. I have an architectural and engineer contract the deliverables of which are construction specifications, drawings and blueprints in electronic form. Is this covered by Section 508? (7/25/01)

    Yes, the named deliverables are covered. The "Section 508 Determination and Findings for Purchase Requests" would be completed up to the point necessary, which would probably include the Commercial Non-Availability Certification. It is likely that the drawings and blueprints will not be able for some time to be made accessible in a comparable fashion for an individual who is blind, for example, due to the graphical and visual elements involved.

15. I have a requirement for land mobile radios for multiple law enforcement agencies for an extensive range of communications situations, some of which must be extremely secure and others that need no security. Some of their use may involve intelligence operations. Is this covered by Section 508? (7/25/01)

    Depending on the detailed definition of the requirement, it is possible that the requirement could be excepted under the national security exception contained in the Access Board's exceptions and the FAR. The exception covers "any electronic and information technology operated by agencies, the function, operation, or use of which involves intelligence activities, cryptologic activities related to national security…or systems which are critical to the direct fulfillment of military or intelligence missions." If the land mobile radio is subject to Section 508, is a commercial item, but no company’s radio is available that meets the applicable technical provisions of the Access Board, then the EIT Commercial Non-Availability Certification process should be followed.

16. Within my federal law enforcement agency, is the EIT to be procured, which will only be used by agents whose employment is based on having no disabilities, subject to Section 508? (2/02)

    Yes, unless one of the exceptions apply, the EIT is subject to Section 508 regardless of the incidence of persons with disabilities in the prospective user population.

17. If we are procuring EIT under a GSA contract, costing $2,500
    or less, using the purchase card, are we required to complete a D&F since
    the micro-purchase exception does not apply? If so, what do we do with the
    completed D&F since there will be no contract prepared? (3/1/02)

    If you are using the purchase card under the conditions stated (the GSA contract is an IDIQ not itself subject to Section 508 but orders against it are), the D&F would have to be completed. Retention location of the D&F is a local bureau matter, however, it needs to be appropriate for audit and review purposes. One practical place for it would be with the monthly purchase card order log, which would have the receipt and summary information about the specific purchase.

18. Customs purchases software, regardless of the cost, using a purchase requisition. When purchasing software on the open market using a purchase requisition and that software costs less than $2,500, does the micro-purchase exception apply? Guidance on this exception implies that the distinction as to whether it applies or not is based on whether the contract is on the open market as opposed to under an existing contract, not on whether a purchase card is used versus another procurement vehicle. (3/1/02)

    Yes, the micropurchase exception would still apply as long as the exception conditions exist. Use of the Purchase Card is NOT one of the inherent micropurchase exception conditions.

19. Are the following products EIT and, therefore, subject to Section 508 requirements:

    • Typewriter (if yes, what is the applicable standard -- "desktop and portable computers"; "self-contained, closed products")?
    • Digital Recorder (if yes, is the applicable standard "self-contained, closed products")? (3/1/02)

    Neither product is inherently subject to Sec. 508. It is feasible to have both products specified in such a way that they would be subject, but the reverse is also true, depending on the refinement of the requirements. There are numerous examples of both products on the commercial market that would be classified as NOT subject to Sec. 508 because they simply make use of "embedded information technology" like medical equipment, thermostats, and temperature control devices do, which are not subject to Sec. 508.

20. Is the procurement of assistive technology (e.g., JAWS, TTYs) subject to Section 508. In other words, are we required to complete a D&F, and if so, do we complete a commercial non-availability certification? (6/19/02)

    Although there was not the intent to have assistive technology subject to Sec. 508, the regulations were written in such a manner that it is subject. Therefore, assistive technology is not exempt from Sec. 508, and, the requiring official applies the D&F process to it like any other EIT. However, the requiring official will normally find full conformance of the assistive technology product with the applicable Sec. 508 provisions. In such cases, no documentation is necessary to be completed by the requiring official except for his/her own file in whatever form he/she decides. Where the requiring official does not find full conformance, he/she will need to proceed with completion of the D&F and the Commercial Non-Availability Certification, as appropriate.