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March 20, 2015

Mandatory Contract Language for Executive Department Solicitations related to the Acquisition of Information Technology Systems [1].

Overview

The Commonwealth is legally obligated under multiple federal laws, its own Constitution, state statute and Governor-issued Executive Orders to ensure non-discrimination and equal access to state services on the part of persons with a disability and reasonable accommodations to state employees with a disability. To effectively meet its responsibilities, the Commonwealth must achieve accessibility in the acquisition, deployment and utilization of information technology. The Commonwealth defines accessibility to include compliance with its Enterprise Accessibility Standards and Web Accessibility Standards. These standards encompass the principles of Section 508 of the Federal Rehabilitation Act, the World Wide Web Consortium’s Web Content Authoring Guidelines, version 2, level AA (WCAG2 Standards), and the concept of usability for individuals with disabilities

Bidders should thoroughly review the detailed accessibility obligations below. As a brief summary, Bidders and the Vendor must:

Prior to contract execution

  • Provide a VPAT or accessibility testing results for any pre-existing software, including Third Party Software, that Vendor is delivering to the Commonwealth
  • If Vendor is delivering a SaaS offering, provide access to the offering for accessibility testing
  • Cooperate with the Commonwealth on addressing accessibility issues and entering into a mitigation letter if necessary

After contract execution

  • Build accessibility into every phase of the project
  • Collaborate with the Commonwealth and the AAC on accessibility issues
  • Test for accessibility before delivery and include testing results with all deliveries
  • Cooperate with the Commonwealth’s accessibility testing after delivery
  • Work to resolve any issues identified in testing and in the mitigation letter

Definitions

  • Accessibility Audit Testing” is accessibility testing conducted on the Commonwealth’s behalf by a third party testing vendor engaged and paid for by the Commonwealth (an “Accessibility Testing Vendor”), as opposed to accessibility testing conducted by Vendor.
  • The “AT/IT List” is the Assistive Technology (“AT”)/Information Technology (“IT”) Environment List, which may be attached to the Solicitation or available at www.mass.gov/accessibility.
  • End User Deliverables” are any software, documentation, and other interfaces or materials, and any configuration, implementation, or customization thereof, used by end users (which may include internal end users, such as Commonwealth employees and contractors, and external end users, such as Commonwealth residents) and delivered by Vendor under the Solicitation. End User Deliverables include, without limitation: any configuration, implementation, or customization of Third Party Software or vendor software; and any updates, new releases, versions, upgrades, improvements, bug fixes, patches or other modifications to software.
  • Enterprise Accessibility Standards” are the Enterprise Information Technology Accessibility Standards and the MassIT Web Accessibility Standards Version 2, available at www.mass.gov/accessibility.
  • Solicitation” refers to a Request for Response (RFR), Request for Quotes (RFQ), or other request for services to which these terms apply.
  • The term “software,” as used in these accessibility requirements, includes without limitation commercial off-the-shelf software (“COTS”) and software as a service or other cloud-based software (“SaaS”).
  • Third Party Software” is software not published by Vendor.
  • A “VPAT” is a Voluntary Product Accessibility Template based on the standardized form developed by the Information Technology Industry Council. A VPAT shows how a software product meets key regulations of Section 508 of the Rehabilitation Act, which requires all agencies and departments of the U.S. federal government to make electronic information and technology accessible to federal employees and members of the public with disabilities.

Accessibility Obligations

1. Compliance with Commonwealth Standards

Vendor is responsible for addressing accessibility problems in any implementation, configuration, or documentation delivered or performed by Vendor, and in any software published by Vendor and delivered under this Solicitation.

Vendor shall ensure that all End User Deliverables adhere to the current version (as of the date of this Solicitation) of the Enterprise Accessibility Standards and interoperate with the environments listed on the AT/IT List. Vendor is encouraged to measure accessibility compliance using the World Wide Web Consortium's Web Content Authoring Guidelines, version 2, level AA (the WCAG2 Standards), as defined at http://www.w3.org/WAI/intro/wcag.php, in place of (1) Section 2, Technical Standards – Applications of the Enterprise Information Technology Accessibility Standards, and (2) Sections 1 through 5 and Section 8 of the MassIT Web Accessibility Standards.

Vendor must ensure that accessibility and usability are addressed at every stage of the project. At the commencement of any project under this Solicitation, prior to beginning any significant design or implementation work, Vendor’s project manager shall meet with the Commonwealth’s project manager and appropriate resources to review the Enterprise Accessibility Standards, the AT/IT List, and any accessibility guidance provided by software vendors, in order to discuss their impact on the project. On an ongoing basis, Vendor must incorporate accessibility testing into all test plans, and include users of assistive technology in end user testing.

II Training

[Vendor] shall coordinate with [Agency] in the identification of all prospective attendees at [Vendor] training who require accommodation, and shall cooperate with [Agency] in its provision of such accommodation.

All technical and user documentation and any additional training material delivered by [Vendor] under this Agreement that specify mouse commands shall also include alternative keyboard commands wherever a mouse command is specified. Any documentation delivered under this Agreement and wholly owned by the [Agency] shall be in an agreed-upon editable format.

2. Accessibility Testing Vendors

The Commonwealth shall hire a third party Accessibility Testing Vendor to conduct Accessibility Audit Testing for this project. The Accessibility Testing Vendor will test each End User Deliverable against the Enterprise Accessibility Standards, and for interoperability with the AT and the IT environment described in the AT/IT List. Vendor shall cooperate with the Accessibility Testing Vendor.

The Accessibility Testing Vendor’s testing will be in addition to Vendor’s own accessibility testing. Vendor may either use its internal resources or may hire its own third party accessibility testing vendor to conduct testing.

3. Accessibility Advisory Committee (AAC)

The Commonwealth and Vendor will collaborate and communicate throughout the process of creating the End User Deliverables with any vendors of Third Party Software, and with the Accessibility Advisory Committee. The AAC shall be comprised of at least one representative from each Vendor and the Commonwealth, and representatives of certain agencies designated by the Commonwealth such as the Massachusetts Office on Disability, Executive Department disability coordinators, Massachusetts Rehabilitation Commission, Massachusetts Commission for the Blind and Massachusetts Commission on the Deaf and Hard of Hearing.

The AAC shall convene its first meeting no later than ten (10) calendar days after the Effective Date of any Contract entered under this Solicitation. Following this initial meeting, the AAC shall meet as mutually agreed to by the Commonwealth and Vendor in consultation with the AAC, but at a minimum, once a quarter. The purpose of these meetings shall be to prioritize the list of accessibility defects identified by the Vendor and/or the Commonwealth (through its Accessibility Testing Vendor), discuss any questions relating to accessibility testing and accessibility requirements, and to ensure that any concerns raised by a member of the AAC or a third party regarding accessibility of the Services are discussed, identified and addressed.

4. Training and Documentation

Vendor shall coordinate with the Commonwealth and the AAC in the identification of all prospective attendees at Vendor training who require accommodation, and shall cooperate with the Commonwealth in its provision of such accommodation.

All administrator and end user documentation and any training materials delivered by Vendor under this Solicitation (whether in a classroom or online) must be accessible to users with disabilities, and must include alternative keyboard commands wherever a mouse command is specified. All such materials delivered under this Solicitation and wholly owned by the Commonwealth shall be in an agreed-upon editable format.

5. Testing

Accessibility testing must be incorporated as part of Vendor’s overall quality assurance process. Vendor shall test end user software for accessibility during any or all of unit testing, integration testing, final acceptance testing and system testing.

6. Testing of End User Deliverables

Vendor shall test every End User Deliverable against the Enterprise Accessibility Standards, and for interoperability with the AT and IT environments listed in the AT/IT List. Vendor shall resolve any problems identified in such testing prior to delivering the End User Deliverable to the Commonwealth. Vendor shall deliver to the Commonwealth the results of the final testing, with all accessibility problems resolved, at the same time it delivers the End User Deliverable.  The Commonwealth will conduct its own Accessibility Audit Testing of the End User Deliverables following delivery by Vendor.

7. Testing of Third Party Software

While Vendor is obligated to test any configuration, customization, or other modification it makes to Third Party Software, Vendor is not responsible for testing out-of-the-box, non-configured third party software for which accessibility testing has already been conducted and test results have already been provided to the Commonwealth in the form of a satisfactory VPAT provided in response to this Solicitation.

If Vendor is recommending or providing Third Party Software in response to this Solicitation, Vendor is responsible for working with the Commonwealth and the publisher of such Third Party Software to identify and resolve accessibility issues. However, if Vendor is configuring, installing, or otherwise working with Third Party Software that the Vendor did not recommend or provide to the Commonwealth, Vendor is not responsible for accessibility issues for such Third Party Software that are not related to Vendor’s configuration, customization, or other modification of such Third Party Software.

8. Failure to Comply; Repeat Testing

Following Vendor’s testing described above, the Commonwealth will conduct Accessibility Audit Testing on the End User Deliverables to determine compliance with the Enterprise Accessibility Standards and interoperability with the environments listed on the AT/IT List. If any End User Deliverables fail the Commonwealth’s initial post-delivery Accessibility Audit Testing, Vendor shall provide a credit to the Commonwealth for any repeat Commonwealth Accessibility Audit Testing that is needed. Such credits shall not exceed 5% of either (1) the total fixed price due Vendor under the initial contract resulting from this Solicitation, or (2) the total not-to-exceed amount of the initial contract resulting from this Solicitation if entered under a time and materials basis.

9. VPAT and Mitigation Letters

Prior to Contract execution, Vendor must provide VPATs for any existing Vendor and third-party software with which end users will interact. With respect to software for which Vendor cannot provide satisfactorily detailed VPATs, Vendor shall provide any alternative accessibility testing information or test results to which it has access.

If the Commonwealth determines that accessibility issues exist but can be resolved or mitigated after Contract execution, the Commonwealth may at its discretion file a request for a mitigation letter with MassIT’s Director of Assistive Technology. A mitigation letter is not a waiver of accessibility obligations, but rather a roadmap that contains a list of accessibility issues and the vendor’s commitment to cooperate with the Commonwealth in resolving or mitigating the issues within a reasonable time following contract execution. Any mitigation letter shall become part of the Contract resulting from this Solicitation.

10. Additional Terms for SaaS Vendors

  1. For SaaS offerings, the Commonwealth reserves the right to test for accessibility or to engage a third party Accessibility Testing Vendor to conduct Accessibility Audit Testing at the Commonwealth’s expense prior to scoring and selecting a vendor. Bidders must cooperate with the Commonwealth and the Accessibility Testing Vendor, including providing appropriate access to the applicable cloud products for such testing. The results of any such accessibility testing, the VPAT or other accessibility documentation provided by the Vendor, and the cooperation of the Bidder, will be taken into account in scoring and selecting a Vendor.
  2. Upon request, Vendor must provide the Commonwealth with accessibility-related content in the technical reference manual or program documentation for the applicable cloud product.
  3. In connection with its accessibility testing as permitted above, the Commonwealth shall have the right to configure the applicable cloud product in accordance with the technical reference manual or program documentation for the Commonwealth’s accessibility needs.
  4. If Vendor is a SaaS provider with over 500,000 users for the SaaS offering bid in response to this Solicitation, the Commonwealth will negotiate with Vendor a commercially reasonable time for compliance with the Enterprise Accessibility Standards and interoperability with the environments on the AT/IT List.

11. Prioritizing and Remediating Accessibility Issues

Vendor shall collaborate with the Commonwealth, the AAC and the Accessibility Testing Vendor to prioritize accessibility defects based on severity.

Vendor shall be responsible for curing each instance identified by the Commonwealth or by its own accessibility testing in which the End User Deliverables fail to comply with the Enterprise Accessibility Standards or interoperate with the environments specified on the AT/IT List.   Accessibility issues which pose a very minor inconvenience to disabled users but do not prevent them from using the software may not need to be remediated. Correction of accessibility issues may require, among other things, writing new core code, shutting off inaccessible features, providing users with third party software in addition to their assistive technology, or providing disabled users with an alternative pathway to the inaccessible feature or the business process that it automates.

12. Ongoing Maintenance

If the Vendor has agreed to perform maintenance for the Commonwealth, Vendor’s obligations above apply to its performance of maintenance. During the maintenance period, unless otherwise agreed in writing by Vendor and the Commonwealth, Vendor must ensure that the system continues to interoperate with the environments specified on the AT/IT List, including any changes to the AT/IT List that occur during the maintenance period, and must collaborate with the Commonwealth and any pertinent Third Party Software vendor and Accessibility Testing Vendor to correct any problems identified regarding interoperability.

 


[1]The language set forth in this document is mandatory for all information technology solutions for new systems or major upgrades to systems that are procured by Executive Departments on or after February 17, 2009 under (1) Requests for Quotes issued by Executive Department agencies under statewide contract IT53 for the services of Technical Specialists or Solution Providers, and (2) Requests for Responses issued by Executive Department agencies that have received permission from the Operational Services Division to do so.