Vendor Digital Accessibility Contract Language

Required Digital Accessibility Contract Language for digital products and services delivered by a third-party.

Overview

Where a third-party is contracted to deliver digital products or services to an executive department office or agency of the Commonwealth, the following contract language must be included in the Agreement in text, by link, or by addendum.

This contract language applies to any Digital Asset procured to conduct business on behalf of the executive department of the Commonwealth, or used in the delivery of executive department programs, services, or activities. It also applies to other Commonwealth entities that voluntarily use or participate in services provided by the Executive Office of Technology Services and Security (EOTSS).  

Definitions  

1. “Accessibility Conformance Report (ACR)” is a document that details how well a product or service meets an established accessibility standards such as the Web Content Accessibility Guidelines (WCAG). A completed Voluntary Product Accessibility Template or VPAT is often called an Accessibility Conformance Report.
2. “Accessibility Violation” is a failure to meet an established accessibility standard, such as the Web Content Accessibility Guidelines (WCAG), or an instance of incompatibility with assistive technology.
3. "Automated Accessibility Testing" refers to accessibility testing using a scanning tool that examines code and flags violations of WCAG success criteria. Automated testing is limited in its ability to identify Accessibility Violations.
4. “Deliverable” refers to the digital products and/or services including but not limited to the end user and admin interfaces and any digital output it generates delivered by the vendor to the Commonwealth in connection with the solicitation.
5. “Digital Accessibility Roadmap” is a structured remediation plan that outlines how the vendor will improve the accessibility of its products, services, or digital content. For each Accessibility Violation, the roadmap includes the Web Content Accessibility Guidelines (WCAG) success criterion, component, location, violation description, severity level, status, target date for remediation, date remediated, and the technique used to remediate each violation.
6. “Digital Asset” refers to any item of value that exists in a digital format.
7. “Manual Accessibility Testing” refers to testing performed by a human tester using manual methods including the use of assistive technology.
8. “Vendor Digital Accessibility Questionnaire” refers to a series of written questions that are designed to assess a vendor’s capabilities at designing, developing, and delivering accessible digital products.
9. “VPAT” refers to the Voluntary Product Accessibility Template developed by the Information Technology Industry Council (ITI) in collaboration with the U.S. General Services Administration (GSA) to help assess the accessibility of products.
10. “WCAG” refers to the Web Content Accessibility Guidelines published by the World Wide Web Consortium (W3C).
11. “Written Validation” refers to the documented confirmation that an Accessibility Violation has been successfully remediated. This validation is based on testing against criteria such as the Web Content Accessibility Guidelines (WCAG) and includes the technique implemented to remediate the violation and the testing method used to validate conformance. 

Digital Accessibility Standards

1. Deliverables must conform to the Digital Accessibility Standards as defined in the Enterprise Digital Accessibility Policy as it may be amended from time to time.

Accessibility Conformance Report

1. Upon request by the Commonwealth, the vendor shall provide a current Accessibility Conformance Report (ACR), based on the latest version of the Voluntary Product Accessibility Template (VPAT®) that evaluates conformance with WCAG 2.1 or WCAG 2.2 level A and AA success criteria. The Accessibility Conformance Report (ACR) must meet the following requirements:
   1. Be no more than 12 months old at the time of submission.
   2. Accurately reflect the product’s current state of accessibility.
   3. Be specific to the product or version proposed for use.
   4. Be completed by qualified personnel knowledgeable in digital accessibility and the digital product.
2. Failure to provide a current Accessibility Conformance Report (ACR) that meets these requirements may result in disqualification of the vendor’s proposal, delay in contract execution, or cancellation of the contract.

Vendor Digital Accessibility Questionnaire

1. The vendor shall provide written responses to the Vendor Digital Accessibility Questionnaire upon request by the Commonwealth.

Digital Accessibility Roadmap

1. Upon request by the Commonwealth, for any known Accessibility Violation including those indicated on the ACR where a success criterion is “not met” or “partially met”, the vendor shall provide a Digital Accessibility Roadmap (the “Roadmap”). For each Accessibility Violation, the Roadmap must include the following items:
   1. WCAG success criterion.
   2. Location of each Accessibility Violation (e.g., page name and position on the page).
   3. Component involved.
   4. Violation description.
   5. Severity level (e.g. critical, serious, medium, minor).
   6. Status of remediation.
   7. Target date for remediation.
   8. Remediation date.
   9. Technique implemented to remediate the Accessibility Violation.
2. The Roadmap and any successor Roadmaps created based on new findings, if applicable, will become part of the Agreement. 

Vendor Remediation Responsibilities 

1. If any Accessibility Violation is known or becomes known to the vendor during the term of the Agreement, whether by notice from the Commonwealth or through vendor’s own testing, vendor shall promptly remediate the violation at no additional cost to the Commonwealth.
   1. Where any other provision of this Agreement limits fixes of defects to a warranty period, this provision controls.
   2. Where any other provision of this Agreement requires that vendor only perform “reasonable efforts” to correct defects, this provision controls.
2. The vendor is responsible for addressing Accessibility Violations in any implementation, configuration, or documentation delivered or performed by the vendor.
3. Upon request by the Commonwealth, the vendor shall provide updates on remediation progress for any Accessibility Violation.
4. When an Accessibility Violation has been resolved, the vendor shall provide Written Validation of successful remediation.

Digital Accessibility Testing and Validation

1. During the bidding process and thereafter upon request, vendor shall cooperate and provide the Commonwealth, or any third-party digital accessibility service provider procured by the Commonwealth, access to test its digital products for accessibility at no additional cost to the Commonwealth.
2. The vendor shall perform accessibility testing as part of its development and quality assurance processes, including Automated Accessibility Testing and Manual Accessibility Testing as defined in the Commonwealth’s Vendor Digital Accessibility Testing Obligations. Vendor shall perform such testing at no additional cost to the Commonwealth.
3. The vendor shall perform accessibility testing on Deliverables in their final configured or customized state, remediate any Accessibility Violations identified during such testing prior to delivery, and provide Written Validation of compliance with Digital Accessibility Standards upon delivery at no additional cost to the Commonwealth. 

Consequences for Non-Compliance

In addition to any other rights and remedies in the Agreement, the Commonwealth may exercise the following remedies:

1. If the vendor fails to perform its accessibility obligations, including but not limited to timely remediation of Accessibility Violations or performance of their accessibility testing obligations, the Commonwealth may
   1. terminate the contract without penalty;
   2. perform necessary testing and/or remediate and deduct the actual cost from any outstanding payments to the vendor or seek reimbursement; or
   3. elect not to renew the contract upon expiration. 

Maintenance

1. For any new release or upgrade, vendor shall maintain the accessibility of Deliverables including interoperability with the environments specified in the vendor Accessibility Testing Matrix.
2. For any major release, the vendor shall provide an updated Accessibility Conformance Report (ACR). 

Trainings, Demonstrations, and Documentation

1. The vendor shall coordinate with the Commonwealth in the identification of all prospective attendees at vendor trainings who require accommodations and shall cooperate with the Commonwealth in its provision of such accommodations.
2. All administrator and end user documentation and any training materials delivered by the vendor must be in compliance with the Digital Accessibility Standards.

Indemnification

1. The vendor shall indemnify and hold the Commonwealth harmless from any and all claims, damages, costs, and expenses arising from or relating to any failure of the Deliverables to meet the accessibility requirements outlined in this Agreement.
2. Pursuant to Section 13 of the Commonwealth Terms and Conditions for Information Technology Contracts, “The vendor’s liability for any other claim shall not exceed the greater of: (i) $100,000; or (ii) two times the total value of the Contract (or in the case of subscription-based Contracts, two times the total value of the Contract during the committed subscription term).”