WAIVERS FROM ITD ACCESSIBILITY REQUIREMENTS FOR INFORMATION TECHNOLOGY SOLUTIONS PROCURRED UNDER ITS33 OR VIA A REQUEST FOR RESPONSE
I. WAIVER REQUIREMENT
ITD's mandatory accessibility language for ITS33 and other IT systems acquisition contracts entered by agencies under Requests for Responses for which they have obtained permission from OSD, includes the following provision regarding the granting of a waiver to vendors from compliance with the language:
[Vendor] shall not deliver COTS or ASP software under this Agreement that fails to meet such standards unless it has documented (1) that it has performed due diligence in seeking accessible alternative COTS or ASP Software, offering equivalent features and functionality to the inaccessible COTS or ASP Software, for which [Vendor] is or can readily become a licensed distributor; and (2) the cost of developing substitute accessible software under this Agreement. (Such documentation need not include reference to any specific competing COTS or ASP Software and its level of accessibility). COTS or ASP Software delivered under this Agreement or under another contract with a state agency in connection with a system delivered under this Agreement that does not meet the ITD Standards shall be acceptable if either (1) the software vendor provides a roadmap for meeting such standards and interoperating with such AT or (2) the agency seeks and obtains a waiver from ITD that it would be an undue hardship on the agency to eschew use of such COTS or ASP Software.
II. EXEMPTIONS FROM WAIVER REQUIREMENT
The following IT systems acquisitions by Executive Department Agencies do not require a waiver:
- Acquisitions that that were solicited via an RFQ or RFR posted prior to December 1, 2006.
- Acquisitions involving electronic and information technology operated by agencies, the function, operation, or use of which involves intelligence activities, cryptologic activities related to the Commonwealth's security, command and control of military forces, equipment that is an integral part of a weapon or weapons system, or systems which are critical to the direct fulfillment of military or intelligence missions. Systems which are critical to the direct fulfillment of military or intelligence missions do not include a system that is to be used for routine administrative and business applications (including payroll, finance, logistics, and personnel management applications).
- Acquisitions of electronic and information technology by a contractor incidental to a contract.
- Acquisitions of products located in spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment are not required to comply with this part.
III. STANDARDS FOR GRANTING A WAIVER
In determining whether it will grant a waiver from the requirements of its mandatory accessibility language information technology solutions, ITD will review documentation showing:
- That the Vendor has performed due diligence in seeking accessible alternative COTS or ASP Software, offering equivalent features and functionality to the inaccessible COTS or ASP Software referenced in Vendor's bid, for which [Vendor] is or can readily become a licensed distributor.
- The cost of developing substitute accessible software. (Such documentation need not include reference to any specific competing COTS or ASP Software and its level of accessibility).
- The software vendor's roadmap for meeting the ITD Standards and making the vendor's software interoperable with the assistive technology listed on the Assistive Technology/IT Environment List included by the procuring agency in its RFQ.
- An explanation of why it would be an undue hardship on the agency to eschew use of such COTS or ASP Software. For purposes of this document, the term "undue hardship" shall mean, among other things, the imposition of financial and administrative hardship upon the agency and a fundamental alternation of the purpose or functionality of the technology.
- The reasonable accommodations that the agency will provide to its employees and, where applicable, the public, during the period in which inaccessible COTS or ASP software is used by the agency.
IV. AGENCY APPLICATION FOR WAIVER; FORM OF WAIVER
The procuring agency shall file an electronic waiver with ITD by forwarding it to the Director of ITD's Accessibility Laboratory, Sarah Bourne, at Sarah.Bourne@state.ma.us. The waiver shall be sent from the agency's chief information officer (CIO) and signed by the agency's head.
- If ITD takes no action on an agency's waiver request within ten (10) business days of receipt of the waiver application, the waiver shall be presumed to have been granted.
- If ITD refuses to grant the waiver, it shall specify the reasons for the refusal in writing.
- ITD may condition the waiver and may limit its duration.
- Where, after review of a waiver request ITD is inclined to grant the request, ITD will advice MOD General Counsel in writing of its intent to do so, and its reasons for the proposed granting of the waiver.
- Where communications with employees or the public will be affected, ITD will also advise MOD what remediation plan it intends to impose to ensure that the requesting entity's communications with persons with disabilities will be equally as effective as those with people who are not disabled.
- MOD shall have 3 business days to voice any concerns it may have with the proposed waiver. If MOD does not respond within this specified time, it will be presumed that MOD has no concerns with the waiver.
Written waivers from ITD shall be based on technical recommendations from the manager of the ITD Assistive Technology Group, and signed by ITD's CIO. Copies of the final waiver document must be sent to ITD's General Counsel, and the Director and General Counsel of the Massachusetts Office on Disability.