39.205 Exemptions
Source: FAR 39.205 on acquisition.gov
FAR 39.205 allows agencies to exempt ICT acquisitions from full accessibility compliance under specific conditions, but requires thorough documentation and alternative access for individuals with disabilities.
Overview
FAR 39.205 outlines the specific exemptions agencies may apply when acquiring Information and Communication Technology (ICT) that cannot fully comply with accessibility standards. It details the allowable exemptions—undue burden, fundamental alteration, and nonavailability of conforming commercial products or services—and prescribes the required documentation and alternative access obligations when such exemptions are used. The section ensures agencies balance accessibility requirements with practical limitations, while still providing alternative means of access for individuals with disabilities.
Key Rules
- Allowable Exemptions
- Agencies may exempt ICT acquisitions from full accessibility compliance if it would cause undue burden, fundamentally alter the product/service, or if no fully conforming commercial products/services are available.
- Alternative Means of Access
- When an exemption is granted, agencies must provide alternative access to information and data for individuals with disabilities.
- Documentation Requirements
- Written determinations justifying the exemption must be obtained and maintained in the contract file, detailing the basis for the exemption and, for nonavailability, the market research and rationale.
Responsibilities
- Contracting Officers: Must ensure proper documentation for exemptions is obtained and kept in the contract file.
- Contractors: Should be aware of exemption criteria and be prepared to support agencies in providing alternative access solutions.
- Agencies: Must conduct and document market research, justify exemptions, and ensure alternative access is provided when exemptions are used.
Practical Implications
- This section provides a structured process for agencies to follow when full ICT accessibility compliance is not feasible, ensuring transparency and accountability.
- Contractors should anticipate requests for alternative access solutions and be prepared to assist with documentation or market research.
- Common pitfalls include inadequate documentation or failure to provide alternative access, which can result in compliance issues or challenges during audits.
(a) Allowable exemptions. An agency may grant an exemption for the following:
(1) Undue burden. When an agency determines the acquisition of ICT conforming with all the applicable ICT accessibility standards would impose an undue burden on the agency, compliance with the ICT accessibility standards is only required to the extent that it would not impose an undue burden. In determining whether conformance to one or more ICT accessibility standards would impose an undue burden, an agency shall consider the extent to which conformance would impose significant difficulty or expense considering the agency resources available to the program or component for which the ICT supply or service is being procured.
(2) Fundamental alteration. When an agency determines that acquisition of ICT that conforms with all applicable ICT accessibility standards would result in a fundamental alteration in the nature of the ICT, such acquisition is required to conform only to the extent that conformance will not result in a fundamental alteration in the nature of the ICT.
(3) Nonavailability of conforming commercial products and commercial services. Where there are no commercial products and commercial services that fully conform to the ICT accessibility standards, the agency shall procure the supplies or service available in the commercial marketplace that best meets the ICT accessibility standards consistent with the agency's needs.
(b) Alternative means of access.An agency shall provide individuals with disabilities access to and use of information and data by an alternative means to meet the identified needs when an exemption in paragraphs (a)(1), (2), or (3) of this section applies.
(c) Documentation. When an exemption applies, the contracting officer shall obtain, as part of the requirements documentation, a written determination from the requiring activity explaining the basis for the exemption in paragraphs (a)(1), (2) or (3) of this section. This documentation shall be maintained in the contract file.
(1) Undue burden. A determination of undue burden shall address why and to what extent compliance with applicable ICT accessibility standards constitutes an undue burden.
(2) Fundamental alteration. A determination of fundamental alteration shall address the extent to which compliance with the applicable ICT accessibility standards would result in a fundamental alteration in the nature of the ICT.
(3) Nonavailability of conforming commercial products and commercial services. A determination of commercial products and commercial services nonavailability shall include—
(i)A description of the market research performed;
(ii)A listing of the requirements that cannot be met; and
(iii)The rationale for determining that the ICT to be procured best meets the ICT accessibility standards in https://www.federalregister.gov/select-citation/2021/08/11/36-CFR-1194.1" target="_blank">36 CFR 1194.1, consistent with the agency's needs.