§ 39.204 - Exceptions.

39.204 Exceptions.

Cross Reference

Link to an amendment published at 86 FR 44232, Aug. 11, 2021.

(a) The requirements in 39.203 do not apply to

EIT that (c) Is

acquisitions for -

(

a) Is purchased in accordance with Subpart 13.2 (micro-purchases) prior to April 1, 2005. However, for micro-purchases, contracting officers and other individuals designated in accordance with 1.603-3 are strongly encouraged to comply with the applicable accessibility standards to the maximum extent practicable;

(b) Is for a national security system;

1) National security systems. ICT operated by agencies as part of a national security system, as defined by 40 U.S.C. 11103(a);

(2) Incidental contract items. ICT acquired by a contractor incidental to a contract, i.e., for in-house use by the contractor to perform the contract; or

(

d) Is

3) Maintenance or monitoring spaces. The portions of ICT that are operable parts (i.e., hardware-based user controls for activating, deactivating, or adjusting ICT) or status indicators, and that are located in spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment

; or (e) Would impose an undue burden on the agency

.

(

1) Basis. In determining whether compliance with all or part of the applicable accessibility standards in 36 CFR part 1194 would be an undue burden, an agency must consider -

(i) The difficulty or expense of compliance; and

(ii) Agency resources available to its program or component for which the supply or service is being acquired.

(2) Documentation.

(i) The requiring official must document in writing the basis for an undue burden decision and provide the documentation to the contracting officer for inclusion in the contract file.

(ii) When acquiring commercial items, an undue burden determination is not required to address individual standards that cannot be met with supplies or service available in the commercial marketplace in time to meet the agency delivery requirements (see 39.203(c)(2) regarding documentation of nonavailability).

[66 FR 20897, Apr. 25, 2001, as amended at 67 FR 80322, Dec. 31, 2002; 69 FR 59703, Oct. 5, 2004

b) The contracting officer shall receive, as a part of the requirements documentation, written confirmation from the requiring activity that an exception, in accordance with paragraph (a)(1), (2), or (3) of this section, applies to the ICT supply or service (see 7.105(b)(5)(iv)). This documentation shall be maintained in the contract file.

[86 FR 44232, Aug. 11, 2021]