Enclosure 1

FAC 97-27 Implementation Q&As

GENERAL

Q1. What is electronic and information technology?

A. Per FAR 2.101, electronic and information technology (EIT) has the same meaning as the FAR definition of “information technology”, except EIT 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 EIT includes, but is not limited to, telecommunications products (such as telephones), information kiosks and transaction machines, worldwide websites, multimedia, and office equipment (such as copiers and fax machines).

Q2. Does the definition of EIT include services?

A. Yes. The EIT definition includes everything that is IT, and that means services as well as supplies. An example of services that would meet the EIT definition would be those acquired under the ODIN contract.

Q3. What are the Access Board standards?

A. The Access Board standards can be found at www.access-board.gov/news/508-final.htm. They are technical and functional performance criteria necessary for EIT to comply with section 508 of the Rehabilitation Act of 1973. These standards must be addressed in the initial stages of the requirements definition process. In proposal evaluation, they are treated the same as other technical specification requirements (see Q25).

Q4. How are the Access Board standards presented?

A. The Access Board standards are presented in three sections:

(i) Subpart B describes the required functionality/performance of specific technologies and product categories.

(ii) Subpart C identifies broader functional performance criteria to cover technologies or components for which there is no specific provision in Subpart B (e.g., when the technology or product does not yet exist or was not contemplated by the Access Board standards).

(iii) Subpart D includes requirements for accessible information, documentation, and support for EIT.

Q5. Do all of the Access Board Standards and subparts apply to each procurement of EIT?

A. No. Only the Access Board standards identifiable with a given supply or service apply. These are known as the “applicable” standards.

Q6. How do I determine which standards apply to a procurement?

A. First look to the provisions in Subpart B to determine if there are specific technical provisions for the product category of EIT that is being purchased (e.g., there are separate standards for software and for telecommunication products). Only those standards identified for a particular product category apply. However, note that each standard within a product category must be addressed separately to determine if it should be included in the solicitation requirements. Just because one standard within a product category is not included in the requirements does not mean all other standards within that category automatically qualify for an exception.

Products that meet the specific technical provisions set forth in Subpart B also meet the broader functional performance criteria in Subpart C. However, 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.

Also remember the additional considerations of Subpart D. Subpart D requires that: (a) product support documentation provided to end users shall be made available in alternate formats upon request at no additional charge; (b) end users shall have access to a description of the accessibility and compatibility features of products in alternate formats or methods upon request, also at no additional charge; and (c) support services (e.g., help desk) for products shall accommodate the communication needs of end-users with disabilities.

As an example of a process to determine which standards are “applicable”, a computer and its software programs would be required to meet the provisions in sections 1194.26 (Desktop and Portable Computers) and 1194.21 (Software Applications and Operating Systems) of Subpart B. If these provisions fully addressed the product to be acquired, the agency would also be in compliance with Subpart C. If some or all of the features were not covered by Subpart B, the agency would also have to look to Subpart C. The agency would also need to take into account any appropriate information, documentation, or support requirements in Subpart D.

In all cases, agencies must consider products that provide “equivalent facilitation.”

Q7. What is “equivalent facilitation”?

A. The Access Board’s standards provide that agencies may accept EIT using 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. Rather, 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. Functional outcome – not form – is key to evaluating whether a technology results in “substantially equivalent or greater access.” In effect, meeting the functional performance criteria in Subpart C of the Board’s standards is the test for equivalent facilitation.

For example, an information kiosk which is not accessible to a person who is blind might be made accessible by incorporating a telephone handset connected to a computer that responds to touchtone commands and delivers the same information audibly that is provided on the screen. There is no preference for a product that strictly meets the technical provisions of Subpart B over a product that provides the same or greater accessibility through equivalent facilitation.

Q8. Are there any penalties for not complying with applicable Access Board standards?

A. Yes. Agencies may be sued if their EIT purchases do not comply with applicable Access Board standards unless an exception has been documented.

Q9. Does NASA have to fundamentally alter the nature of a product or its components to comply with the Access Board standards?

A. No. Agency needs should be defined as previously done, and the issue of compliance with Access Board standards is addressed after those needs have been established. However, those needs must be bona fide and not established to circumvent the responsibility to comply with the Access Board standards.

Q10. Who is responsible for determining if an acquisition is for EIT?

A. The requirements office. The center CIO office may be consulted for guidance when it is not clear is a supply or service is EIT. If an acquisition is not for EIT, FAC 97-27 does not apply. In these cases, documentation is normally not required. However, because of the potential for litigation (see Q8), centers should consider the need for some rationale when the characterization of the item as other than EIT is a borderline call.

APPLICABILITY AND EXCEPTIONS

Q11. Must all procurements of EIT comply with the Access Board standards?

A. No. FAC 97-27 specifies several situations in which compliance is not required.

(i) Commercial nonavailability. FAR 39.203(c)(1) indicates that when acquiring commercial items, an agency need only comply with those standards that can be met with supplies or services that are available in the commercial marketplace in time to meet delivery requirements. Agencies need not acquire a noncommercial item in these cases to satisfy the Access Board standards. Commercial nonavailability must be addressed on an individual standard basis, and agencies cannot claim a commercial product as a whole is nonavailable just because it does not meet all the applicable standards. Agencies must include all available standards in the specification unless one of the exceptions in FAR 39.204 applies.

(ii) Exceptions. Beyond nonavailability when acquiring commercial items, FAR 39.204 specifies compliance exceptions for commercial and noncommercial EIT that --

(a) is a micro-purchase prior to 04/01/2005 IAW FAR Subpart 13.2 (39.204(a));

(b) is for a national security system (39.204(b));

(c) is acquired by a contractor incidental to a contract (i.e., for use by its own employees and not for the Government or members of the public) (39.204(c));

(d) is located in spaces frequented only by service personnel for maintenance, repair or occasional monitoring of equipment (39.204(d)); or

(e) would impose an undue burden (39.204(e)).

Q12. Which of these exceptions apply within NASA?

A. All of these exceptions may apply, although the national security system exception is unlikely to occur. For any micropurchases, exceptions at 39.204(a) through (e) will rarely, if ever, be granted. The exceptions at 39.204(a) through (d) will be determined during requirements definition, but the undue burden exception at 39.204(e) and the commercial nonavailability at 39.203(c)(1) can only be determined through market research. No documentation is required for the micropurchase (39.204(a)) and contractor incidental use exceptions (39.204(c)).

Q13. RESERVED

Q14. What does “undue burden” mean?

A. FAR 39.202 defines undue burden as a significant difficulty or expense. For example, a new contract for the maintenance and support of a noncompliant legacy system may be an undue burden if the cost to make the system compliant would be excessive. It is critical to note, however, that FAR 39.204(e)(1)(ii) requires that in determining undue burden, an agency must consider all resources available to the program or component for which the EIT is being acquired. This means that undue burden cannot be established by simply saying that a compliant product “costs too much” or is more expensive than a noncompliant product. Case law has been compiled over the years as to what qualifies as an undue burden. Center legal counsel should be consulted and must concur on any undue burden determination.

Q15. Does NASA have any remaining obligations when it approves an undue burden determination?

A. Yes. The statute requires that the information and data be provided to individuals with disabilities by an alternative means of access. Alternative means of access focuses on the provision of the information and data in an accessible manner -- as opposed to the accessibility of the product itself. For example, if an agency wishes to purchase a computer program that generates maps denoting regional demographics, but determines that it would constitute an undue burden to purchase an accessible version of such a program, the agency would be required to make the information provided by the program available by alternative means to users with disabilities. Alternative means of access for an individual who is blind might mean providing a hard copy description of the information in Braille or providing an assistant to help guide the user through the information. Alternative means may include, but are not limited to: voice, fax, relay service, TTY, qualified sign language interpreters, Internet posting, captioning, text-to-speech synthesis, readers, personal assistants, or audio descriptions.

MARKET RESEARCH AND DOCUMENTATION

Q16. Who is responsible for performing the market research to determine if there are available supplies or services that are compliant with the Access Board’s standards? Who is responsible for providing documentation to support any exception to compliance?

A. For all procurements of EIT, the requirements office is responsible for market research. The requirements office is also responsible for preparing and documenting all determinations of compliance, non-compliance, and partial compliance; commercial nonavailability determinations; and undue burden exceptions. The documentation 1) must state that the purchase is EIT; and 2) whether the intended purchase is 508 compliant; or 3) no 508-compliant item is commercially available. When using the purchase card system, documentation may be entered within the system or within supporting files. Contracting offices should provide appropriate assistance to the requirements office in its market research efforts and preparation of exception documentation.

Q17. How is market research documented?

A. Centers will perform market research as usual. In addition, the requirements office must complete market research documentation on all purchases of EIT, other than micro-purchases made under FAR Subpart 13.2, using the template provided at Enclosure 2 to this PIC. The template specifies the information required to substantiate an undue burden determination as well as a determination that compliant supplies/services are not available in the commercial marketplace in time to meet NASA’s needs.

Q18. Are there any resources available to help the requirements office in its market research?

A. The center CIO office is the point of contact for providing expert guidance on determining the availability of compliant supplies/services. The website at www.section508.gov is also a useful resource.

Q19. Who approves undue burden determinations and commercial nonavailability determinations?

A. The center CIO must approve all undue burden determinations with the concurrence of the center legal office and contracting officer. Centers may establish their own procedures for approving commercial nonavailability determinations.

Q20. Does NASA have to compile data on approved exceptions?

A. Yes. Biennial reporting to the Department of Justice is required. Centers must submit a copy of each approved exception and nonavailability determination, through the center CIO, to the NASA CIO (Code AO) within five working days of the date of approval.

ACQUISITION

Q21. What if market research determines that fully compliant supplies/services are available?

A. Unless an exception applies, the solicitation must include the applicable Access Board standards in the technical requirements and the compliant supply/service must be purchased.

Q22. When acquiring commercial items, what happens when fully compliant products do not exist in the commercial marketplace?

A. There are different situations under this scenario.

(i) In general, if no commercial item is available in the marketplace that meets a given applicable standard in time to satisfy delivery requirements, compliance with that standard is not required and the specification should not include that standard. However, as indicated in Q6, each standard within a product category must be addressed separately, and all available applicable standards must be included in the specification in accordance with the guidance in (ii) below, unless an exception is documented and approved. For those applicable standards that are not available, supporting justification must be included in the market research documentation.

(ii) When some, but not all, applicable standards can be met by available products, there are two situations. Since neither the applicable statute nor the Access Board standards authorize an exception to the Competition in Contracting Act, the FAR Part 6 competition requirements are factors in each of these situations. NASA’s goal is to develop a common set of the maximum number of relevant standards that allows competition among a reasonable number of sources.

(a) If all the available applicable standards can be met by multiple commercial items sufficient to provide adequate competition, the specification should include those standards. Again, for those standards that cannot be met, supporting justification must be included in the market research documentation.

(b) If compliance varies widely in the marketplace (i.e., some products meet some standards and other products meet other standards) to the extent that adequate competition cannot be sustained by including all available standards in the specification, a different approach must be taken. This approach is not a process of merely including in the specification the lowest common denominator of applicable standards. It is a subjective and often difficult assessment for which detailed guidelines or practical experiences do not currently exist. In doing the assessment, centers should consider the relative value of the available standards, the expected users of the delivered supply or service, and the number of available sources that can meet the standards. As an example, a standard that can be provided by only a single source may be a candidate for exclusion from the resulting specification if the standard has little relation or benefit to the expected end use or end user of the supply or service, and its inclusion in the specification will effectively eliminate competition. When an available standard is excluded for this reason, an undue burden determination, citing the rationale for exclusion, must be made and approved in addition to the nonavailability determination for the unavailable standards.

Q23. Is the same process applicable to noncommercial items?

A. Per FAR 39.203((c), the concept of nonavailability applies only to commercial items. However, the question of the effect on competition applies equally to noncommercial items, and a thought process similar to that in Q22 should be used. In these cases, any decision to not include the applicable Access Board standards in a solicitation must be justified under one of the exceptions in FAR 39.204 rather than the commercial nonavailability under 39.203(c).

Q24. Do I need to include anything in the solicitation to evaluate products that provide equivalent facilitation (see Q7)?

A. Solicitations should indicate that products providing 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 might include the following:

To be considered eligible for award, offerors must propose supplies and/or services that meet the applicable Access Board standards identified in this solicitation. Offered supplies or services that provide equivalent facilitation (see 36 CFR 1194.5) will be considered to have fully met the provisions of the Access Board’s standards for the feature or component providing equivalent facilitation. Award will not be made to an offeror meeting all or some of the applicable Access Board standards if award would impose an undue burden upon the agency.

Q25. If an Access Board standard is specified in a solicitation, how are proposals evaluated?

A. Using the market research results, the available applicable Access Board standards are incorporated into the specification or technical requirements statement in the solicitation. As such, the standards are treated like any other specification requirement that offerors must meet to be eligible for award. That is, an offeror must meet the specification requirements or the Government must amend its solicitation to change them. An undue burden determination (or another documented exception to applicability of the standards) may be required if the standards included in the original solicitation are subsequently relaxed by an amendment.

NASA has taken this approach because attempting to deal with compliance during proposal evaluation complicates the process to an often unacceptable degree, particularly when competing offerors propose supplies or services that have different degrees of compliance. In such a situation, the “best value” analysis is problematic in that the undue burden determination required to support selection of a less compliant product is not necessarily related to “best value”. However, in select competitions conducted under FAR Part 15, centers may attempt to assess compliance during source selection, subject to approval by the procurement officer. Code HS should be consulted for advice on how to structure the solicitation.

INDEFINITE-QUANTITY CONTRACTS

Q26. How do the Access Board standards apply to indefinite-quantity contracts?

A. Indefinite-quantity contracts must indicate which supplies or services are compliant with the applicable Access Board standards. However, the responsibility for determining compliance belongs to the requirements office requesting the purchase at the time an order is placed. Any order of a noncompliant supply or service after June 25, 2001 must be supported by one of the exceptions described in Q11 above. The same documentation requirements for non indefinite-quantity contracts apply to individual task and delivery orders. If an order is placed against a NASA indefinite-quantity contract by another agency, that ordering agency is responsible for the compliance determination and approval of any exceptions.

Q27. What if the indefinite-quantity contract was awarded prior to June 25, 2001?

A. The award date of the contract itself is irrelevant. The date of the order governs, and FAC 97-27 applies to any order placed after June 25, 2001, unless one of the exceptions described in Q11 exists.

Q28. What about orders placed against an indefinite-quantity contract awarded by another agency?

A. FAC 97-27 applies to the ordering agency regardless of which agency awarded the contract. This policy applies to orders placed under the sources described in FAR Part 8 (e.g., GSA schedules, UNICOR, or NIB/NISH) or under an interagency agreement (e.g., Economy Act purchases).

Q29. Do I have to do anything to NASA indefinite-quantity contracts awarded before June 25, 2001?

A. FAR 39.203(b)(3) requires that agencies that award indefinite-quantity contracts must indicate which supplies or services are compliant. Accordingly, the cognizant contracting officer must request contractors to provide information on the compliance of the items available for purchase under the contract. The template at enclosure 3 to this PIC may be used to obtain this information.

Q30. Do I have to amend these contracts to incorporate the applicable Access Board standards?

A. The answer to this question must be evaluated on an individual contract basis. Since all orders placed after June 25, 2001 must comply with the standards or an exception documented, there may be circumstances when the contract should be revised to incorporate the applicable standards. This is particularly so if the items on the contract are not compliant, compliant items exist in the commercial marketplace, and the contract has an ordering period that will continue for more than a relatively short period. Judgement is required in these cases, and advice from Code HS should be requested.

Q31. What about indefinite-quantity contracts awarded after June 25, 2001?

A. FAR 30.203(b)(2) states that an exception to compliance with the applicable Access Board standards is not a prerequisite for award of an indefinite-quantity contract. This means that the contract itself may have a mix of compliant and noncompliant supplies and services. As indicted in Q26, the responsibility for determining compliance rests with the requirements office requesting the purchase. However, NASA policy is that indefinite-quantity contracts should not include noncompliant items unless there are no compliant items available or there is an identified continuing need for a noncompliant product (e.g., an item required for the operation or maintenance of a noncompliant legacy system when that system would have to be substantially altered or replaced to be compliant). Any orders for such noncompliant items must be justified and approved under one of the exceptions listed in Q11.

Q32. What about technology refreshment clauses on indefinite-quantity contracts?

A. On indefinite-quantity contracts that include noncompliant items, the technology refreshment clauses must require the contractor to address how it intends to achieve compliance with applicable Access Board standards. The technology refreshment clauses in indefinite-quantity contracts awarded before June 25, 2001 must be revised accordingly if items available on the contract are noncompliant.

Go to Enclosure 2 EIT Market Research Template

Go to Enclosure 3 Request for Information

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