Section 508 of the Rehabilitation Act - Frequently Asked Questions

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 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 straw man 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.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.

E.6.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.

E.6.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."

E.6.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.