project management community may 13, 2009 section 508 of the rehabilitation act of 1973

Project Management Community

May 13, 2009

Section 508 of the Section 508 of the Rehabilitation Act of 1973Rehabilitation Act of 1973

The Moral Test of a Government

It was once said that the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life – the sick, the needy and the handicapped. Hubert Humphrey, in a speech at the dedication of the Hubert Humphrey building, Nov. 1, 1977.

Section 508 Accessibility Goals

To support the employment and advancement of people with disabilities.

To support the access to information generated or made available by the National Institutes of Health (NIH), particularly that for members of the public.

To fully integrate 508 requirements into the development life-cycle and NIH's E&IT procurement and review processes

To provide needed services, testing solutions and innovative strategies in implementing Section 508

To increase awareness of accessibility issues and programs to internal and external NIH stakeholders by providing outreach services.

SECTION 508

IT'S THE LAW

THE LAWThe Rehabilitation Act 1973, Section 508

Amendment (1998)

Requires that any electronic and information technology (EIT) procured, developed, used or maintained by Federal agencies must be accessible to employees and members of the public with disabilities, unless an undue burden would be imposed on the agency.

Section 508 was enacted to:

eliminate barriers in information technology

make available new opportunities for people with disabilities

encourage development of technologies that will help achieve these goals.

Definition of E&IT

Electronic and information technology: Includes information technology and any equipment or interconnected system or subsystem of equipment, which is used in the creation, conversion, or duplication of data or information.

The term electronic and information technology includes, but is not limited to, telecommunications products (such as telephones), information kiosks and transaction machines, World Wide Web sites, multimedia, and office equipment such as copiers and fax machines.

http://www.access-board.gov/sec508/guide/act.htm

http://www.washington.edu/accessit/articles?105

Definition of E&IT Continued

The term does not include any equipment that contains embedded information technology that is used as an integral part of the product, but the principal function of which is not the acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information.

For example, HVAC (heating, ventilation, and air conditioning) equipment such as thermostats or temperature control devices, and medical equipment where information technology is integral to its operation, are not information technology.

Section 508 Standards

1194.21 Software Applications and Operating Systems

1194.22 Web-Based Intranet and Internet Information and Applications

1194.23 Telecommunications Products (If it is a Voice Over Internet Protocol (VOIP) or software then it may also include 1194.21 and/or 1194.22) (telecomm solution for deaf & visually impaired)

1194.24 Video and Multimedia Products (If implemented on the web will also require 1194.22)

Section 508 Standards

1194.25 Self Contained and Closed Products (Ex: Copiers, Fax and Kiosks)

1194.26 Desktop and Portable Computers

1194.31 Functional Performance Criteria (Must be accessible with assistive technology)

1194.41 Information, Documentation and Support (Must also be accessible)

In this presentation you'll learn how section 508 impacts the procurement of goods and services. Upon completion of the presentation, you'll be able to:

Describe the responsibilities of the Project Officer or Requiring Official.

List contract actions that will trigger 508, and those that won't.

Explain the implications for failure to comply with 508.

Determine if a buy is E & IT.

Determine whether an exception applies to a buy.

Review Access Board standards and determine which apply to a purchase.

Identify resources for conducting market research, and describe the extent to which market research should be conducted.

Define undue burden, commercial non-availability, and equivalent facilitation.

List what should be contained in technical specifications.

Anita Rest, a government architect, meets Vicki Newman, a new employee in her department.

Anita: Hello! You must be Vicki. I'm Anita. How's your first day going so far?

Vicki: It's going well, thanks, although I think it may take me a while to learn all the responsibilities of a Requiring Official.

Anita: I'm a Requiring Official. I can help you out if you like.

Vicki: Oh, could you? That would be great.

Anita: Tell you what, let's grab some coffee and I'll explain the responsibilities of the Requiring Official as well as the Contracting Officer, since you'll be working closely with that individual.

Do you know the responsibilities of Requiring Officials or Project Officers, as well as the Contracting Officers?

Anyone and everyone is or can be a Requiring Official.

As soon as you decide you want to procure something, regardless of your grade level or position description, you become the "Requiring Official." For example, a secretary ordering a fax machine or a statistician ordering software is a Requiring Official. As long as you are in the process of buying something or considering a purchase, you are a Requiring Official.

In this context, we’ll be using Project Officer as synonymous with Requiring Official.

Project Officers are Responsible for:

Identifying which of the Access Board's accessibility standards apply to the specific acquisition.

Conducting market research to determine the availability of compliant products and services.

Drafting specifications and minimum requirements to be submitted with the purchase request.

Documenting non-availability and undue burden determinations, if necessary.

The Contracting Officer's responsibilities include:

Awarding the contract or order after complying with procurement statutes and regulations (generally summarized and discussed in the Federal Acquisition Regulation), and any additional agency regulations and order.

Planning the acquisition along with the rest of the acquisition team, including the user (the Requiring Official).

Assisting the Requiring Official in performing market research for accessible E & IT.

Assisting the Requiring Official in drafting specifications and minimum requirements/agency needs, when these are needed for procurement.

Ensuring there is competition and that the contracting file shows what happened, as the FAR directs.

The Project Officer's responsibilities include:

Planning the acquisition along with the rest of the acquisition team, including the user (the Requiring Official).

Performing market research for accessible E & IT.

Drafting specifications and minimum requirements/agency needs, when these are needed for procurement.

The Steps:

1. Determine whether the buy falls under E & IT.

2. Determine whether an exception (other than undue burden) applies.

3. Review Access Board standards and determine which apply to the purchase.

4. Perform market research to determine what items are available in the marketplace.

5. Document non-availability and undue burden determination.

6. Draft technical specifications and/or minimum requirements.

Justin Case, a Contracting Officer, enters the coffee shop.

Justin: No fat decaf cappuccino, please.

Anita: Hi, Justin! Come and meet Vicki, a new employee in our department.

Justin: Nice to meet you, Vicki.

Anita: Justin, I'm glad I bumped into you.

Justin: Oh, why's that?

Anita: My department wishes to exercise options to acquire E & IT under a contract awarded prior to June 25th, 2001, which is the effective date of the FAR changes for acquiring E & IT. Does the E & IT have to comply with section 508 procurement obligations?

Justin: If it's an IDIQ it does, but otherwise no, it doesn't. This is one of a few actions that do not trigger section 508.

Anita: Thanks. See you later, Justin!Do you know which contract actions will trigger section 508, and which will not?

The following contract actions will trigger section 508: Acquisition of E & IT through a contract amendment that falls outside the

general scope of a contract awarded prior to June 25th, 2001. (This action would constitute a new contract action and would need to be properly justified by the contracting officer under FAR Part 6.)

Placement of an order for E & IT under an indefinite quantity (IDIQ) contract, including a Federal Supply Schedule contract, a government-wide acquisition contract (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).

The following contract actions will not trigger section 508:

Delivery of E & IT purchased under a contract awarded or order placed prior to June 25th, 2001.

Within-scope modifications for the acquisition of E & IT under contracts awarded before June 25th, 2001 (e.g., small increases in the number of units ordered or changes to the delivery schedule).

Exercise of unilateral options to acquire E & IT under contracts awarded before June 25th, 2001.

Determination of funds availability on a multiyear contract awarded prior to June 25th, 2001.

Award of an indefinite quantity (IDIQ) contract, except for requirements that are to be satisfied by the initial award.

Which of the following contract actions will trigger section 508?

Purchases against basic ordering agreements (BOAs).

Determination of funds availability on a multiyear contract awarded prior to June 25th, 2001.

Award of an IDIQ contract, except for requirements that are to be satisfied by the initial award.

Purchases against blanket purchase agreements (BPAs), whether issued against a Federal Supply Schedule or outside the Schedules program.

A and D

All of the Above

None of the Above

Anita and Vicki head back to the office.

Vicki: Justin seems nice.Anita: Oh, he's great. He's really helped me to understand how section 508 impacts procurement.Vicki: I was going to ask you about that. What happens if E & IT doesn't comply with 508? Anita: Well, if the non-compliant E & IT was procured by a Federal agency on or after June 21, 2001, persons with disabilities can file administrative complaints or bring civil actions in Federal court against the agency.Vicki: Sounds serious. What's the process for handling the complaint?Anita: The process follows already established procedures that exist under section 504 of the Rehabilitation Act.

Contact your section 508 Coordinator for agency guidance/policy currently in effect.

Justin calls Anita with some questions about her Purchase Requisition.

Justin: Anita, how are things going with Vicki?

Anita: Great. She's a fast learner, which is good, because I'm going on vacation next month! I'm thinking about taking a long, relaxing cruise.

Justin: Sounds like just what you need. Anyway, I'm calling about your last Purchase Requisition. Can you move the delivery date back two months? I've found a compliant product that will be available by then.

Anita: Sure, that's not a problem. Bye.

Acquisition of E & IT that meets the applicable technical provisions of the Access Board's standards is the shared responsibility of Project Officers/Requiring Officials and Contracting Officers. It's important that both parties demonstrate cooperation and teamwork.

Vicki stops by Anita's office.

Vicki: Anita, I'm sorry to bother you, but I'm having trouble with the steps in the procurement process. Do I perform market research before or after determining whether an exception applies?

Anita: You perform the market research after determining if an exception applies, unless the exception is undue burden, in which case it's performed before? I tell you what. Why don't I take you through the steps in the process, one by one?

Vicki: Now that would be a big help!

The steps in the process for procurement of E & IT are:

Determine whether the buy falls under E & IT.

Determine whether an exception (other than undue burden) applies.

Review Access Board standards and determine which apply to the purchase.

Perform market research to determine what items are available in the marketplace.

Document non-availability and undue burden determination.

Draft technical specifications and/or minimum requirements.

Anita explains to Vicki how to determine whether the buy falls under E & IT.

Anita: I'm getting ready to send a purchase request to Justin for a SuperToaster.

Vicki: The one that toasts bread, scans paper, prints, and faxes?

Anita: That's the one! If only I could multitask like that! Now, our first step is to determine if it's E & IT.

Vicki: How do we do that?

Anita: By looking at the definition of E & IT and seeing if it applies. Why don't you do that, and let me know what you find out?

Vicki: I sure will!

Do you know what's included in E & IT?

Electronic and information technology (E & IT) has the same meaning…

…as information technology, except E & IT also includes any equipment or interconnected system or subsystem of equipment that is used in the creation, conversion, or duplication of data or information.

The term E & IT includes, but is not limited to:

Telecommunications products (such as telephones)

Information kiosks and transaction machines

World Wide Web sites

Multimedia (including videotapes)

Office equipment (such as copiers and fax machines)

E & IT is defined by the Access Board at 36 CFR 1194.4 and in the FAR at 2.101.

The steps in the process for procurement of E & IT are:

Anita stops by Vicki's office.

Anita: So Vicki, did you find out if the SuperToaster is E & IT?

Vicki: I did, and it certainly is! So what's next?

You've completed Step 1: Determine whether the buy falls under E & IT. Review this step or choose another.







Anita and Vicki determine whether an exception applies.

Anita: So now we know the SuperToaster is E & IT, we have to determine if any exceptions – other than undue burden – apply.

Vicki: What sorts of things are considered exceptions?

Anita: I have a list somewhere around here. Give me a minute and I'll find it.

Can you list the exceptions to the requirement to acquire E & IT that meets the technical provisions of the Access Board's standards?

Exceptions Agencies are not required to acquire E & IT that meets the technical provisions of

the Access Board's standards if the acquisition:

Is a micro-purchase made prior to January 1, 2003 (FAR 39.404(a)).

Is for a national security system (FAR 39.204(b) and 36 CFR 1194.3(a)).

Is acquired by a contractor incidental to a contract (FAR 39.204(c) and 36 CFR 1194.3(b)).

Is located in spaces frequented by service personnel for maintenance, repair, or occasional monitoring of equipment (FAR 39.204(d) and 36 CFR 1194.3(f)).

Would impose an undue burden on the agency (FAR 39.204(e) and 36 CFR 1194.2).

In addition, compliance with section 508 does not require a fundamental alteration in the nature of a product or service or its components.(36 CFR 1194.3(e)).

Exceptions for Section 508

Penny Wise is making a purchase for a national security system. Must the purchase meet the technical provisions of the Access Board's standards?

Yes.

No.

No, but only until January 1, 2003.

Yes, unless it poses an undue burden.

Exceptions

Having reviewed the exceptions, Anita and Vicki discuss whether an exception applies to the SuperToaster.

Vicki: Well, I don't think any of these exceptions apply.

Anita: Wait a minute! What about micro-purchase? The SuperToaster is a desktop machine, so it could be considered "micro." It's not all that big.

Vicki: I hadn't thought of that.

Anita: I'll call Justin to make sure.

Exceptions – Micro-purchases Anita calls Justin regarding the SuperToaster.

Anita: Justin, I think that his may be a micro-purchase; aren’t those exempt from Section 508.

Justin: Anita, you’re right – this is a micro-purchase . It's a one-time purchase that costs less than $2500 and is acquired commercially via the open market, not through an existing contract.

Anita: Great!

Justin: Not so fast! That exception was sunsetted in 2006. if a deliverable meets the definition of EIT, no matter how small the product or the cost, Section 508 requirements apply.

Anita: Oh, so I still have to follow the process on this one, huh?

Justin: That’s right. Let me know if you need any more help.

Anita: I sure will. Thanks. Bye.

Anita tells Vicki about her conversation with Justin

Vicki: So the SuperToaster isn't a micro-purchase?

Anita: Well, it is. It’s just that this exceptions no longer exists.

Vicki: So what's next?

You've completed Step 2: Determine whether an exception applies. Review this step or choose another.








Anita shows Vicki how to review the Access Board standards

to determine which apply to the SuperToaster.

Anita: Vicki, I'm so delighted to finally have someone to share the workload with me.

Vicki: Glad to be of assistance! So, I just need to read through these Access Board requirements and determine which technical provisions apply to the SuperToaster?

Anita: That's it! Then, I'll add those requirements to the statement of work.

Access Board requirements Vicki: Anita, I've read through all the Access Board requirements, and determined

which apply to the SuperToaster. What's next?

You've completed Step 3: Review Access Board standards and determine which apply to the purchase. Review this step or choose another.







Conducting Market Research Anita sees Vicki in the hallway.

Anita: Now that we've determined which Access Board standards apply to the SuperToaster, we need to conduct market research. Can you help me with that?

Vicki: Sure, but I'm not all that comfortable with randomly stopping people to ask them about products they use.

Anita: Don't worry, it's not that type of market research . . . You see, agencies are required to conduct market research to determine if commercial items or non-developmental items are available to meet the Government's needs or could be modified to meet the Government's needs. (FAR 10.002) Market research will also aid you in developing your requirements documents because it enables you to identify those terms and conditions that are appropriate for acquisition and consistent with customary commercial practices.

Vicki: In that case, where should I begin?

Anita: You can start by taking a look at vendor websites and the section 508 website for product information.

Conducting Market Research Vicki sends an email to Anita about GSA's "Buy Accessible" site.

To: Anita Rest

From: Vicki Newman

Subject: "Buy Accessible" site: http://www.buyaccessible.gov/

Have you taken a look at GSA's “Buy Accessible" site? It's an excellent resource for completing market research. You can search for a specific product or service type and obtain a list of links to vendors that provide products or services that address section 508 standards. The links then take you to a voluntary product accessibility template that describes how the product addresses the relevant sections of the accessibility standards. Check it out when you get a chance. It will make your market research a lot easier!

By the way, to what extent should I be conducting this market research?

Conducting Market Research Anita sends Vicki an email with some market research tips.

To: Vicki NewmanFrom: Anita RestSubject: Market Research Tips

Vicki,

Thanks for the e-mail. That "Buy Accessible" site certainly is useful. Just a word of caution. I worked on another product procurement recently where only one vendor had information on Buy Accessible, so I had to go elsewhere for more information.

The extent to which you should conduct your market research will vary depending on such factors as urgency, estimated dollar value, complexity, and past experience. Part 10 of the FAR provides a detailed description of information to obtain on products and techniques for doing so.

I'm going to give Justin a call and get his advice. I'll let you know what he says.

Conducting Market Research Anita calls Justin with a question regarding market research.

Anita: Hi Justin, it's Anita.

Justin: What can I do for you?

Anita: Vicki just raised an important question regarding market research. How do you know when you've done enough?

Justin: Well, you want to look for enough information to show that you're serious about getting competition as well as meeting 508 requirements. There's no minimum or maximum number of vendors to check out. Ideally, you want to find three fully compliant items ? meaning that by the time of the delivery date, the item fully conforms to all the Access Board standards. At that point, you can stop looking.

Anita: What if we find only one or two fully compliant items?

Justin: That may be enough, but you should discuss it with me. If you can't find any fully compliant products, we'll need to do a commercial non-availability documentation, and we should pay special attention to particular standards needed by people with disabilities who we know are going to be using this item. But you don't have to worry about that now.

Anita: Thanks, Justin. That's a big help.

Conducting Market Research Anita: Vicki, I just received a call from Justin. He's impressed with the thorough

job you did on the market research for the SuperToaster. Vicki: Thanks, Anita. I had a great teacher!

You've completed Step 4: Perform market research to determine what items are available in the marketplace. Review this step or choose another.







Undue Burden Anita calls Justin with a question about undue burden.

Anita: Hi, Justin. After performing extensive research, Vicki and I believe that the SuperToaster may fall under the undue burden exception, but we're not sure. The definition in the FAR and the Access Board regulations doesn't go into much detail.

Justin: Ah, well that's because undue burden was defined by the Access Board in a manner consistent with the terms "undue burden" and "undue hardship" in the Rehabilitation Act and the Americans with Disabilities Act. The Access Board chose not to disturb the existing understanding of the term by trying to redefine it. The FAR rule also follows this approach.

Anita: So, what would I have to do to prove undue burden?

Justin: Document in writing the basis for the undue burden decision and give me a copy for inclusion in the contract file. Your E & IT must, however, provide comparable access.

Do you know what is meant by undue burden? If so, you can skip the definition.

Undue Burden

Agencies do not have to acquire E & IT that meets the applicable technical provisions if doing so would impose an undue burden on the agency. In the context of section 508, undue burden means that an acquisition imposes a significant difficulty or expense, taking into account all agency resources available to the program or component for which the E & IT is being procured (36 CFR 1194.4 and FAR 39.202, 39.204(e)). An undue burden determination must be applied on a case-by-case basis.

If an agency invokes the undue burden exception, it must document in writing the basis for the decision and provide documentation for inclusion in the contract file.

Equivalent Facilitation Justin sends Anita an e-mail about equivalent facilitation.

To: Anita Rest From: Justin Case Subject: Equivalent Facilitation

You may be interested in equivalent facilitation. Here's what I know:

The Access Board's standards provide that agencies may accept E & IT offered by vendors that uses designs or technologies that do not meet the applicable technical provisions in Subpart B but provide substantially equivalent or greater access to and use of a product for people with disabilities. This is referred to as "equivalent facilitation."

Equivalent facilitation is not an exception or variance from the requirement to provide comparable access. It is a recognition that technologies may be either developed or used in ways not envisioned by the technical provisions in Subpart B but still result in the same or better functional access as would be provided by strictly meeting the provisions in Subpart B.

http://www.access-board.gov/sec508/standards.htm#Subpart_c

You can find out more in 36 CFR 1194.5.

Equivalent Facilitation Anita responds to Justin's e-mail.

To: Justin Case

From: Anita Rest

Re: Equivalent Facilitation

Thanks for the info. You know, I think I have an example of equivalent facilitation!

I'm looking at buying an information kiosk. One kiosk is fully compliant with the standards. The other isn't compliant for blind users, but incorporates a telephone handset connected to a computer that responds to touchtone commands, and delivers audibly the information that appears on the screen.

What do you think? Anita

Equivalent Facilitation

Is Anita's example equivalent facilitation? ("One kiosk is fully compliant with the standards. The other isn't compliant for blind users, but incorporates a telephone handset connected to a computer that responds to touchtone commands, and delivers audibly the information that appears on the screen.")

Yes

No

Is It An Undue Burden If None Exist?

Vicki calls Anita with a question.

Vicki: Anita, I have this other requisition that's a commercial item, but I couldn't locate any vendors that have a fully compliant product. Can I claim undue burden?

Anita: No, that would be classified as commercial non-availability. When acquiring commercial items, an undue burden determination is not required to address individual standards that can't be met with products available in the commercial marketplace in time to meet the agency delivery requirements. 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" (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.

Commercially Non-Available

Vicki: So, how do I document the commercial non-availability of a product?

Anita: You must describe the market research performed and what standards were not met. Don't forget to provide a copy of this documentation to Justin for inclusion in the contract file.

Vicki: Sounds easy enough. Anything else?

Anita: I suggest you contact our agency 508 Coordinator to find out our agency's documentation requirements. I checked our FAR supplementary regulations, but there may be an agency order I don't know about.

Vicki: Great advice. Thanks!

Documentation of undue burden and non-availability determination

Vicki: I've completed all the paperwork for my undue burden and non-availability determinations undue burden and non-availability determinations. What's next?

You've completed Step 5: Document non-availability and undue burden determination. Review this step or choose another.







Technical Specifications

Vicki sends Anita an email about technical specifications.

To: Anita RestFrom: Vicki NewmanSubject: Technical Specifications

Hi Anita,

I'm developing the technical specifications and minimum requirements for the requisition of that SuperToaster.

Could you tell me how I go about incorporating the 508 requirements into these specifications? Thanks so much!

Vicki

Technical Specifications Anita responds to Vicki's e-mail.

To: Vicki NewmanFrom: Anita Rest Subject: Re: Technical Specifications

Vicki,

As with any procurement, you need to state your needs, such as how many pages a month you'll be printing (both minimum and maximum estimates).

You also need to indicate which Access Board standards you think apply to this purchase, so be sure to include the correct 36 CFR 1194 section numbers. Once you've developed your technical specifications, send them to Justin, along with the purchase request and any non-availability or undue burden documentation that's appropriate.

Summary of Steps Anita: Do you have any other questions?

Vicki: None at the moment. I'll go ahead and draft the technical specifications for the SuperToaster, then bring them by for your review.

You've completed Step 6: Draft technical specifications and/or minimum requirements. Review this step or choose another.







Benefits & Integration of Section 508

Anita, Vicki, and Justin try out the new SuperToaster.

Justin: Wow! This SuperToaster is amazing! It has voice recognition capability so I don't have to worry about what all these different buttons do.

Vicki: I guess these new 508 standards benefit everyone!

Anita: Yes, they do. I was surprised. The procurement process really doesn't change that much for E & IT products.

Justin: That's what I've been saying all along. Section 508 should not be separated out from the process, but rather become a normal part of the procurement process.

508 and the Procurement Process

Describe the responsibilities of the Requiring Official.

Describe the responsibilities of the Contracting Officer.

List contract actions that will trigger 508, and those that won't.

Explain the implications for failure to comply with 508.

Determine if a buy is E & IT.

Determine whether an exception applies to a buy.

Review Access Board standards and determine which apply to a purchase.

Identify resources for conducting market research, and describe the extent to which market research should be conducted.

Define undue burden, commercial non-availability, and equivalent facilitation.

List what should be contained in technical specifications.

Your NIH Contact

NIH Office of the Chief Information Officer

Gary M. Morin, Trainer ([email protected])

Fernwood 3G-17 (301) 402-3924 Voice, 451-9326 TTY/NTS (301) 402-4464 Fax NIH Section 508 Questions: [email protected]

project management community may 13, 2009 section 508 of the rehabilitation act of 1973

Documents

information technology

internet information

information kiosks

medical equipment

office equipment

subsystem of equipment

air conditioning equipment

multimedia products