Step 5: Negotiating Contracts
So the RFP responses came in, you evaluated the proposals, and now you’re ready to make a contract award! What comes next? That’s contract development and negotiation—which offers another opportunity to clearly spell out your accessibility requirements. Below is some model procurement language you can use when developing and negotiating a contract with a vendor. This language mirrors (but is not identical to) the suggested model language for solicitations, and is broken into four sections.
Model Procurement Language
The first section specifies that ICT products or services furnished under the contract must be accessible to and usable by individuals with disabilities, consistent with federal and state laws. It includes a “safe harbor” statement, meaning the contractor will be considered to satisfy the accessibility requirement if it meets the functional performance criteria specified in Web Content Accessibility Guidelines (WCAG) 2.1 Level A and AA Success Criteria (2018). Second, the contractor must maintain and retain full documentation of measures taken to ensure compliance with the accessibility criteria, including tests and simulations conducted. Third, the contractor must agree to remediate (repair or replace) non-compliant products or services. Finally, the term ICT is defined.
Requirements and Standards
Each information and communication technology (hereinafter referred to as “ICT”) product or service furnished under this contract shall be accessible to and usable by individuals with disabilities in accordance with the Americans with Disabilities Act (hereinafter referred to as the “ADA”) and other applicable federal laws, including Section 508 of the Rehabilitation Act, and State laws and implementing regulations. For purposes of this clause, [the contractor] shall be considered in compliance with the ADA and other federal and state laws if it satisfies the requirements (including exceptions) specified in the regulations [36 CFR Part 1194] implementing Section 508 of the Rehabilitation Act, including the Web Content Accessibility Guidelines (WCAG) 2.1 Level A and Level AA Success Criteria and Conformance Requirements (2018), which are incorporated by reference, and the functional performance criteria.
Documentation
[The contractor] shall maintain and retain, subject to review by [the entity procuring the product or service], full documentation of the measures taken to ensure compliance with the applicable requirements and functional performance criteria, including records of any testing or simulations conducted. For each ICT subject to the contract, the documentation shall include a description of conformance with applicable federal and state laws by means of either a Voluntary Product Accessibility Template (VPAT) or other comparable document, upon request.
Remediation
If [the contractor] claims its products or services satisfy the applicable requirement and standards specified in clause (a) and it is later determined by [contracting officer] that any furnished product or service is not in compliance with such requirements and standards, the [contracting officer] will promptly inform [the contractor] in writing of the noncompliance. [The contractor] shall, at no cost to [the entity procuring the product or services] repair or replace the non-compliant products or services within the period specified by [the contracting officer]. If the repair or replacement is not completed within the specified time, [the contracting officer] may cancel the contract, delivery or task order, or purchase or line item without termination liabilities or have any necessary changes made or repairs performed by employees of the entity or by another contractor, and [the contractor] shall reimburse [the entity procuring the product or service] for any expenses incurred thereby.
Definition
Information and communication technology means information technology and other equipment, systems, technologies, or processes, for which the principal function is the creation, manipulation, storage, display, receipt, or transmission of electronic data and information, as well as any associated content. Examples include computers and peripheral equipment; information kiosks and transaction machines; telecommunications equipment; customer premises equipment; multifunction office machines; software; applications; Web sites; videos; and electronic documents.
