November 25, 2002

AGAR ADVISORY

UNITED STATES DEPARTMENT OF AGRICULTURE

OFFICE OF PROCUREMENT AND PROPERTY MANAGEMENT AGAR ADVISORY NO. 49

Implementation of Section 508 of the Rehabilitation Act of 1973, as amended

INTRODUCTION: This Agriculture Acquisition Regulation (AGAR) Advisory provides information regarding implementation of Section 508 of the Rehabilitation Act of 1973, as amended (the Act).

SUMMARY: AGAR Advisories 34, 34a, and 34b, now expired, were issued to provide consistent guidance for USDA in the acquisition of electronic information technology (EIT). This Advisory revives those working tools and assembles them into a single directive.

SPECIFIC ISSUES:

The Federal Acquisition Regulation (FAR) provides the regulatory instructions necessary to implement Section 508 in solicitations, contracts, and the supporting acquisition files. The FAR focuses attention on the necessity of trained requirements personnel to prepare statements of work that express the procurement requirement including the need for 508 compliant Electronic and Information Technology (EIT). The requirements personnel are responsible for the market research during which the agency determines both whether commercial EIT will be available in time to meet our need and whether providing conforming EIT would be an undue burden. The market survey results are conveyed with and in the statement of work.

To provide consistent guidance for USDA, this Advisory contains, as attachments, working tools to be provided to the requirements officials. The working tools are not considered codified materials. These are guidance documents designed to ease the management of EIT acquisitions.

Attachment One is a sample format for use in making an undue burden determination. Attachment Two is a sample format for use in making an unavailability determination.

Attachment Three is a sample format for use in making a determination that the requirements in Federal Acquisition Regulation (FAR) 39.203 do not apply.

Attachment Four is a format for use when attachments one to three are not needed.

Attachment Five is a sample format for use in making a determination that the requirement is for parts for which no standard exists. Section 508 of the Rehabilitation Act of 1973, as amended applies to all EIT, whether acquired as parts or as a system. However, some parts do not impact information input or output, and therefore not of concern in relation to the Act and its implementing regulation. Application software is an example of a system part that does impact information input or output. A replacement hard drive is an example of EIT that does not impact information input or output in the manner that is addressed in Section 508.

Attachment Six is a list of Internet sites which may be accessed as needed to assist in acquisition planning and procurement.

Attachment Seven is a sample checklist of the standards found in 36 CFR Part 1194, the accessibility standards. This checklist is dated “Version 05/16/2001.” It should not be used when more current versions are made available. If a more current version is available, please forward it to the contact person below.

If you have questions regarding this advisory, please contact Todd Repass, Chief, PPD via email at Todd.Repass@da.usda.gov or by phone at (202) 690-1060; or send an email to procurement.policy@da.usda.gov.

EXPIRATION DATE: In effect until cancelled. [END]

ATTACHMENT ONE TO AGAR ADVISORY NO. 49

UNDUE BURDEN DETERMINATION

The requiring official must provide a written determination to the contracting officer for inclusion in the file. When acquiring commercial items, an undue burden determination is not required to address individual standards that cannot be met with supplies or services available in the commercial marketplace in time to meet the agency delivery requirements.

The determination should describe-‑

(1) The commercial items, products or services required to meet the agency's needs.

(2) The dollar value of the acquisition, including any options.

(3) The applicable Section 508 standards (see 36 CFR part 1194).

(4) The market research performed to locate commercial items that meet the applicable standards.

(5) Which standards can be met and which cannot.

(6) The undue burden (i.e., the significant difficulty or expense the Government would incur in order to comply with a particular standard). If the monetary expense is deemed prohibitive, explain the costs and how they were estimated. In determining whether compliance with all or part of the applicable accessibility standards in 36 CFR Part 1194 would be an undue burden, an agency must consider—

(1) The difficulty or expense of compliance; and

(2) Agency resources available to its program or component for which the supply or service is being acquired.

(7) The steps the agency is taking to reduce use of the undue burden exception in future procurements.

(8) The alternative means of access that will be provided that will allow the individuals with disabilities to use the information or data. (29 U.S.C. 794d(a)(1)(B)).

Approval of the determination.

The determination must be approved in writing prior to award of the task or delivery order, purchase order or contract. The approving official is the requiring official.

ATTACHMENT TWO TO AGAR ADVISORY NO. 49

UNAVAILABILITY DETERMINATION

The requiring official must provide a written determination to the contracting officer for inclusion in the file.

The determination should describe-‑

(1) The products or services required to meet the agency's needs.

(2) The dollar value of the acquisition, including any options.

(3) The applicable Section 508 standards (see 36 CFR part 1194).

(4) The market research performed to locate commercial items that meet the applicable standards.

(5) Which standards can be met and which cannot.

(6) Which EIT that is not available in the marketplace in compliant form and in time to meet the needs of the agency.

(7) The steps the agency is taking to avoid the use of the non-compliant EIT, if practicable.

(8) The alternative means of access that will be provided that will allow the individuals with disabilities to use the information or data. (29 U.S.C. 794d(a)(1)(B)).

Approval of the determination.

The determination must be approved in writing prior to award of the task or delivery order, purchase order or contract. The approving official is the requiring official.

ATTACHMENT THREE TO AGAR ADVISORY NO. 49

DETERMINATION THAT FAR 39.203 DOES NOT APPLY TO THIS REQUIREMENT

The requiring official must provide a written determination to the contracting officer for inclusion in the file in order to document that the agency requirements for EIT need not meet the applicable accessibility standards at 36 CFR Part 1194 when:

(a) it is purchased in accordance with subpart 13.2 (micro-purchases of $2,500 or less) prior to January 1, 2003. However, contracting officers and other individuals designated in accordance with 1.603-3 are encouraged to comply with the applicable accessibility standards to the maximum extent practicable;

(b) it is for a national security system;

(c) it is acquired by a contractor incidental to a contract, or is neither used not accessed by Federal employees or members of the public;

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

(e) it would impose an undue burden on the agency. In determining whether compliance with all or part of the applicable accessibility standards in 36 CFR part 1194 would be an undue burden, an agency must consider —

(1) The difficulty or expense of compliance; and

(2) Agency resources available to its program or component for which the supply or service is being acquired.

Approval of the determination.

The determination must be approved in writing prior to award of the task or delivery order, purchase order or contract. The approving official is the requiring official.

ATTACHMENT FOUR TO AGAR ADVISORY NO. 49

DETERMINATION THAT THE REQUIREMENTS ARE 508
COMPLIANT

The requiring official should provide written advice to the contracting officer for inclusion in the file that the requirements are compliant and that the determinations in Attachments One to Three are not required for this acquisition. The determining official is the requiring official.

ATTACHMENT FIVE TO AGAR ADVISORY NO. 49

DETERMINATION THAT NO STANDARD IS AVAILABLE

When requiring parts as commercial items and no standard exists, the requiring official must provide a written determination to the contracting officer for inclusion in the file.

The determination should describe-‑

(1) The commercial items or products required to meet the agency's needs.

(2) The dollar value of the acquisition, including any options.

(3) That there is(are) no applicable Section 508 standard(s) (see 36 CFR Part 1194). Approval of the determination.

The determination must be approved in writing prior to award of the task or delivery order, purchase order or contract. The approving official is the requiring official.

ATTACHMENT SIX TO AGAR ADVISORY NO. 49

WORKING TOOLS FOUND ON THE INTERNET

Numerous Section 508 resources are now available on the Internet. The sites identified below may be accessed as needed to assist in acquisition planning and procurement.

A variety of procurement working tools established by the Procurement Policy Division are offered at http://www.usda.gov/procurement/policy/advisories.html.

The USDA Office of the Chief Information Officer offers similar links to Section 508 information from http://www.ocio.usda.gov/irm/508/sec508.html. Items currently there of special value are specific information on agency contact points within USDA and links to the Department of Justice and Department of Education sites.

The General Services Administration maintains the “Buy Accessible” site at www.Section508.gov. You are able to search the site by specific product or service and see the products of all vendors who have voluntarily provided links. You can then use the links to reach the product or service descriptions necessary to complete your market research. This database at http://www.section508.gov/index.cfm?FuseAction=Content&ID=99.