HHS EIR Accessibility Policy, Chapter 10: Procurement and Contracts for Electronic and Information Resources

10.1 Overview

1 TAC §213.18(a)—The department, in establishing commodity procurement contracts for which the solicitation is issued on or after January 1, 2015, shall obtain and make available to state agencies all that apply:

(1) accessibility information for products or services, where applicable, through one of the following methods:

(A) the URL to a completed Voluntary Product Accessibility Templates (VPATs) or equivalent reporting templates;

(B) accessible electronic documents that address the same accessibility criteria in substantively the same format as VPATs or equivalent reporting template; or

(C) The URL to a Web page which explains how to request completed VPATs, or equivalent reporting templates, for any products under contract;

(2) credible evidence of the vendor's capability or ability to produce accessible EIR products and services. Such evidence may include, but is not limited to, a vendor's internal accessibility policy documents, contractual warranties for accessibility, accessibility testing documents, and examples of prior work results.

1 TAC §213.18(b))—For the procurement of EIR made directly by an agency or through the department's commodity procurement contracts for which the solicitation is issued on or after January 1, 2015, the agency shall require a vendor to provide all that apply:

(1) accessibility information for products or services, where applicable, through one of the following methods:

(A) the URL to a completed Voluntary Product Accessibility Templates (VPATs) or equivalent reporting templates;

(B) accessible electronic documents that address the same accessibility criteria in substantively the same format as VPATs or equivalent reporting template; or

(C) The URL to a Web page which explains how to request completed VPATs, or equivalent reporting templates, for any products under contract;

(2) credible evidence of the vendor's capability or ability to produce accessible EIR products and services. Such evidence may include, but is not limited to, a vendor's internal accessibility policy documents, contractual warranties for accessibility, accessibility testing documents, and examples of prior work results.

1 TAC §213.18(c)—An agency shall implement a procurement accessibility policy, and supporting business processes and contract terms, for making procurement decisions. An agency shall monitor the procurement processes and contracts for accessibility compliance.

Each state agency shall include in its accessibility policy standards and processes for making agency procurement decisions pursuant to §2054.453, Texas Government Code.

All HHS system and agency procurement of electronic and information resources (EIR) must comply with accessibility requirements in this policy manual in addition to federal standards as defined in Section 508 of the Rehabilitation Act. This chapter provides guidance for purchasing and developing EIR for use by both state employees and the public. The public includes consumers and clients.

Note: Accessibility requirements apply to the procurement regardless of the disability of those served or the dollar amount of the procurement.

10.2 Purchasing Electronic and Information Resources

1 TAC §213.18(d)-This subchapter applies to EIR developed, procured, or materially changed by an agency, or developed, procured, or materially changed by a contractor under a contract with an agency which requires the use of such product, or requires the use, to a significant extent, of such product in the performance of a service or the furnishing of a product.

10.2.1 Examples of Applicable Electronic and Information Resources

The following are examples of electronic and information resources:

For a definition of EIR, see Chapter 1: Overview, 1.1.4 Electronic and Information Resources.

10.2.2 Embedded Technology

If the primary purpose of the embedded technology is for the functioning of equipment or software and is not primarily for informational purposes, the technology is not considered an electronic and information resource.

Examples of embedded technology that are not primarily used for informational purposes are:

10.2.3 Determining the Need

The determination of whether there is a need to contract is made through a systematic approach to gathering information about the nature and incidence of need, which includes

The team selected to determine the need to contract should include:

10.3 Planning and Developing the Purchase

Texas Health and Human Services (HHS) agencies procure products that comply with the provisions in Title 1, Texas Administrative Code, Chapter 206, State Web Sites, Subchapter B, State Agency Web Sites, and Chapter 213, Electronic and Information Resources, Subchapter B, Accessibility Standards for State Agencies, when these products are available in the commercial marketplace or when they are developed in response to a procurement solicitation.

All HHS system procurement for electronic and information resources must comply with these policies.

10.3.1 Developing the Solicitation

The accessibility standards in other chapters of this policy manual must be used to develop solicitation specifications and statements of work. When planning an EIR purchase, agencies must

For assistance identifying and understanding accessibility standards in this policy manual that apply to EIR purchases, contact your HHS agency's EIR accessibility coordinator.

For assistance with purchase policies and processes and the development of specifications and statements of work, contact

10.3.2 The Solicitation Document

In the solicitation document, you must

Note: Website redesigns must consider the interaction of authoring tools, server platforms, user agents, and testing environments. The W3C Web Accessibility Initiative has published guidelines and techniques for these activities at http://www.w3.org/WAI/guid-tech.html. For further instruction son soliciting services for a redesign, see the Guide to Procuring a Web Page Redesign.

The applicable requirements must be listed in the specifications and considered when developing, procuring, maintaining, or using electronic and information technology. Language to address the accessibility requirements can be incorporated with the solicitation as follows:

"The Vendor represents and warrants that the technology provided to the HHS agency is in compliance with the State of Texas accessibility requirements for electronic and information resources as specified in 1 Texas Administrative Code Chapter 213 when such products are available in the commercial marketplace or when such products are developed in response to a procurement solicitation. The Vendor shall provide HHSC with the URL to its Voluntary Product Accessibility Template (VPAT) for reviewing compliance with the State of Texas accessibility requirements (based on the federal standards established under Section 508 of the Rehabilitation Act), or indicate that the product or service accessibility information is available from the General Services Administration 'Buy Accessible Wizard. Vendors not listed with the 'Buy Accessible Wizard' or supplying a URL to their VPAT must provide HHSC a report that addresses the same accessibility criteria in substantively the same format. Additional information regarding the 'Buy Accessible Wizard' or VPAT is located at http://www.section508.gov."

When end-user documentation is a deliverable, determine how the documentation will be provided in alternative formats. Refer to the EIR accessibility checklists, found on the HHS Accessibility Center website, to verify that all applicable standards are met. Testing and validation for EIR accessibility compliance must be completed by agencies as described in Chapter 6: Testing and Validation.

10.3.3 Approval and Initiation of Solicitation

Before the solicitation can be finalized, you must submit it for internal agency review, comments, and approval. Refer to your individual agency requirements relating to this process. Once you have received approval from within your agency, you may submit the purchase request and initiate solicitation.

10.3.4 Evaluation of Solicitation Responses

Before an offer is accepted, an accessibility subject matter expert (SME) must review and approve a contractor's intended methods of meeting relevant accessibility standards.

If a significant difficulty or expense exception arises because of necessary accessibility modifications identified during the solicitation evaluation, see HHS EIR Accessibility Procedures, Chapter 10: Procurement and Contracts for Electronic and Information Resources, 10.3.2 Significant Difficulty or Expense Exceptions.

10.3.5 Compliance That Imposes Significant Difficulty or Expense

1 TAC §213.18(e)—Unless an exception is approved by the executive director of the state agency pursuant to §2054.460, Texas Government Code, and §213.17 of this chapter, or unless an exemption is approved by the department, pursuant to §2054.460, Texas Government Code, and §213.17 of this chapter, all EIR products developed, procured or materially changed through a procured services contract, and all electronic and information resource services provided through hosted or managed services contracts, shall comply with the provisions of Chapter 206 and Chapter 213 of this title, as applicable.

Project managers should draft project solicitations that do not preclude accessible project proposals. If it is determined that including certain accessibility standards in a solicitation will impose a significant difficulty or expense upon an agency, an exception may be requested. Significant difficulty or expense must be identified by the project manager during the planning and development phase. If it is not, the solicitation will likely have to be canceled and work begun on a new solicitation.

Note: The exception for significant difficulty or expense is not an exception to overall compliance, but an exception to the standard form of compliance.

For more information, see Chapter 1: Overview, 1.3 Compliance.

Examples of significant difficulty or expense may include the following:

Requesting an Exception

When procuring a product, if you determine that compliance with the accessibility requirements imposes a significant difficulty or expense, the documentation that supports the procurement must explain why, and to what extent, compliance with each provision would impose a significant difficulty or expense. See Chapter 1: Overview, 1.3.1 Exception for Significant Difficulty or Expense.

If an exception to the accessibility standards is granted, the purchasing agency must find ways to mitigate significant difficulty or expense by providing people who have disabilities a reasonable alternative means of access to information, services, and data.

The following example demonstrates how an agency may mitigate accessibility costs:

An agency is purchasing photocopy machines. Machines that meet accessibility standards are significantly more expensive than machines that do not meet accessibility standards. An agency may decide to reduce costs by buying a larger number of the lower-cost machines and purchasing a smaller number of the higher-cost accessible machines based on anticipated need. The higher-cost machines may be positioned in offices to be readily accessed by people with disabilities. In offices where an accessible copy machine is not readily available for staff members with disabilities, other staff members may provide copying assistance.

10.3.6 General Exemptions and Exceptions

Occasionally, general exemptions apply to the identified EIR need. The EIR product is exempt if

For more information on general exemptions and exceptions, see Chapter 1: Overview, 1.3 Compliance and 1.4 Lack of Commercial Availability.

10.3.7 Access by Alternative Means

1 TAC §213.18(f)—Nothing in this subchapter is intended to prevent the use of designs or technologies as alternatives to those prescribed in this subchapter provided they result in substantially equivalent or greater access to and use of a product for people with disabilities.

An alternative means of access to relevant information and data must be provided to the public and the agency’s employees with disabilities when compliance with EIR standards imposes an undue burden. Examples of methods by which equivalent access might be provided include

Agencies may develop or procure technologies that do not strictly follow the accessibility standards described in this policy manual but still result in an outcome of equivalent or better access to the same information for people with disabilities. An example may include the development or procurement of a multimedia Flash training program that is navigable through the use of the keyboard and screen reader, but fails to provide access to the training's textual content. However, this Flash presentation is self-voicing, with audio content that mirrors the training's text presentation. A text transcript of the entire training is provided for deafblind users. Therefore, the outcome for the end user with a disability results in substantially equivalent access to the electronic information.

In such instances, an informed decision must be made to determine what constitutes equivalent or better access. The responsibility for making this decision rests with the area requesting the purchase. The area may obtain technical support from the agency's EIR accessibility coordinator.

10.4 Conducting the Purchase

1 TAC §213.18(c)—An agency shall implement a procurement accessibility policy, and supporting business processes and contract terms, for making procurement decisions. An agency shall monitor the procurement processes and contracts for accessibility compliance.

The purchasing entity must research the market to determine the availability of accessible goods and services. To identify potential contract bidders or offerors, purchasing entities may use the following tools:

Note: Inclusion on the DIR list does not indicate a product’s compliance with state accessibility standards.

10.5 Documenting the Purchase Process

The purchaser must document in the procurement file the steps taken to comply with the requirements in the following sections of this chapter:

10.6 State Contractors

10.6.1 Applying Accessibility Standards

1 TAC §213.18(d)— This subchapter applies to EIR developed, procured, or materially changed by an agency, or developed, procured, or materially changed by a contractor under a contract with an agency which requires the use of such product, or requires the use, to a significant extent, of such product in the performance of a service or the furnishing of a product.

A contract may directly or indirectly require the contractor to use EIR to a significant extent in performing a service or furnishing a product. Whether EIR is directly or indirectly required, the contractor must comply with accessibility standards described in this policy manual. However, incidental uses of EIR in the performance of a contract do not fall under this policy.

Note: Any EIR used by the contractor in the performance of the contract or the delivery of goods or services that will be retained by the agency at the end of the contract must be accessible.

The following are examples of contracted EIR covered by this policy:

10.6.2 Incidental Uses of EIR

EIR is considered incidental for purposes of a contract when the EIR

10.6.3 Required Terms and Conditions

In addition to terms and conditions that may be required by other statutory, regulatory, and purchase requirements, a contract that directly or indirectly requires the purchase of EIR must contain sufficient language to hold the contractor accountable for fulfilling applicable accessibility requirements.

The HHS Uniform EIR Accessibility Clause contains sufficient language to hold the contractor accountable for fulfilling applicable accessibility requirements. For assistance in ensuring that contract terms and conditions properly address accessibility requirements, employees should contact the HHS agency’s EIR accessibility coordinator and legal counsel.

10.7 Contract Management and Monitoring

Agencies must ensure that EIR goods (products) and services are provided by all parties to the contract according to contract terms and conditions.

When making purchases that directly or indirectly require EIR, HHS agencies must ensure that accessibility requirements are met by the contractor and maintained throughout the life of the contracts.

Depending on a contract's complexity, the contract management function may be carried out as a formal or informal part of a specific employee's job. In complex contracts, others may be assigned to assist the contract manager. Agency accessibility specialists or other subject matter experts may be assigned to assist in contract management to determine the level and adequacy of compliance. Employees should consider developing a process for compliance testing with an accessibility expert who can be consulted throughout the life of the contract.

Accessibility management and monitoring ensure that

10.8 Risk Assessment

The level of accessibility management and monitoring must be consistent with the following contract aspects: