Section 508 of the Rehabilitation Act - Frequently Asked Questions

Nonavailability

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 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).