Federal Register / Vol. 86, No. 152 / Wednesday, August 11, 2021 / Rules and Regulations 44229 

Administration (SBA) final rule 

published at 84 FR 65647, dated 

November 29, 2019. 

Specifically, the final FAR rule at 

FAR 19.705–7 includes examples of a 

good faith effort to comply with the 

subcontracting plan, and examples of a 

failure to make a good faith effort. 

Failure to make a good faith effort to 

comply with the plan may result in 

assessment of liquidated damages. 

Additionally, the final rule amends 

the FAR to require that prime 

contractors with a commercial 

subcontracting plan include indirect 

costs in their subcontracting goals. 

Previously, prime contractors were 

required to include indirect costs in the 

summary subcontract report (SSR) but 

not in their subcontracting goals, which 

led to inconsistencies when comparing 

the SSR to the goals in the commercial 

subcontracting plan. Including indirect 

costs in both the SSR and 

subcontracting goals established in the 

commercial subcontracting plan will 

allow for consistency. 

Item V—Technical Amendments 

Editorial changes are made at FAR 

42.709–1 through 42.709–7, 52.242–3, 

and 52.245–1. 

William F. Clark, 

Director, Office of Government-wide 

Acquisition Policy, Office of Acquisition 

Policy, Office of Government-wide Policy. 

Federal Acquisition Circular (FAC) 

2021–07 is issued under the authority of 

the Secretary of Defense, the 

Administrator of General Services, and 

the Administrator of National 

Aeronautics and Space Administration. 

Unless otherwise specified, all 

Federal Acquisition Regulation (FAR) 

and other directive material contained 

in FAC 2021–07 is effective August 11, 

2021 except for Items I through V, 

which are effective September 10, 2021. 

John M. Tenaglia, 

Principal Director, Defense Pricing and 

Contracting, Department of Defense. 

Jeffrey A. Koses, 

Senior Procurement Executive/Deputy CAO, 

Office of Acquisition Policy, U.S. General 

Services Administration. 

Karla Smith Jackson, 

Assistant Administrator for Procurement, 

National Aeronautics and Space 

Administration. 

[FR Doc. 2021–16362 Filed 8–10–21; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 2, 7, 10, 11, 12 and 39 

[FAC 2021–07; FAR Case 2017–011; Item 

I; Docket No. FAR–2017–0011, Sequence 

No. 1] 

RIN 9000–AN46 

Federal Acquisition Regulation: 

Section 508-Based Standards in 

Information and Communication 

Technology 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: DoD, GSA, and NASA are 

issuing a final rule amending the 

Federal Acquisition Regulation (FAR) to 

incorporate recent revisions and 

updates to accessibility standards issued 

by the U.S. Access Board. 

DATES: Effective September 10, 2021. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Michael O. Jackson, Procurement 

Analyst, at 202–208–4949, or by email 

at michaelo.jackson@gsa.gov for 

clarification of content. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat Division at 202–501–4755 or 

GSARegSec@gsa.gov. Please cite FAC 

2021–07, FAR Case 2017–011. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD, GSA, and NASA published a 

proposed rule at 85 FR 17831 on March 

31, 2020, to implement the U.S. Access 

Board’s revisions by strengthening FAR 

requirements for accessibility to 

electronic and information technology 

(now generally referred to as 

‘‘information and communication 

technology’’ or ‘‘ICT’’) provided by the 

Federal Government. Among other 

things, section 508 of the Rehabilitation 

Act of 1973 mandates that Federal 

agencies ‘‘develop, procure, maintain, or 

use’’ ICT in a manner that ensures that 

Federal employees with disabilities 

have comparable access to, and use of, 

such information and data relative to 

Federal employees who are not 

individuals with disabilities. Section 

508 also requires Federal agencies to 

ensure that members of the public with 

disabilities have comparable access to, 

and use of, information and data relative 

to members of the public who are not 

individuals with disabilities. 

The Access Board, also known as the 

Architectural and Transportation 

Barriers Compliance Board, is tasked 

with issuing accessibility standards for 

ICT covered under section 508, and 

updating these standards periodically to 

reflect technological changes. The 

Federal Acquisition Regulatory Council, 

in turn, is required to revise the FAR to 

incorporate the Access Board’s 

accessibility standards or any 

amendments thereto. 

In December 2000, the Access Board 

published its initial set of accessibility 

standards at 65 FR 80500, (December 21, 

2000). Thereafter, a final FAR rule was 

published incorporating the Access 

Board’s accessibility standards at 66 FR 

20894 (April 25, 2001). 

The Access Board completed a 

multiyear effort to ‘‘refresh’’ its initial, 

existing set of accessibility standards 

under section 508 to address advances 

in ICT, harmonize with accessibility 

standards developed by standards 

organizations worldwide, and ensure 

consistency with the Access Board’s 

regulations that had been promulgated 

since the late 1990s. The revised section 

508 Accessibility Standards support the 

access needs of individuals with 

disabilities, while also considering the 

costs of procuring ICT that complies 

with section 508. 

The Access Board’s final rule was 

published in the Federal Register at 82 

FR 5790 on January 18, 2017. This final 

rule updates the FAR to ensure that the 

updated standards are appropriately 

considered in Federal ICT acquisitions. 

The final rule includes a ‘‘safe harbor’’ 

provision for existing (i.e., legacy) ICT, 

which considers legacy ICT in existence 

on or before January 18, 2018, to be 

compliant if it meets the earlier 

standard issued pursuant to section 508 

of the Rehabilitation Act of 1973 (see 

E202.2 of Revised Standards) and the 

legacy ICT is not altered after January 

18, 2018. In other words, such 

‘‘untouched’’ ICT need not be modified 

or upgraded to conform to the revised 

508 standards as long as it already 

conforms to the original 508 standards. 

However, ICT acquired on or before 

January 18, 2018, will need to be 

upgraded or modified to conform to the 

new standard if such ICT is altered after 

January 18, 2018, or does not comply 

with the original 508 standards. In 

addition, ICT acquired after January 18, 

2018, must be upgraded or modified to 

conform to the new standard. The 

upgrades and modifications would be 

included in requirements documents 

issued by the agency. 


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Two respondents submitted 

comments on the proposed rule. 

II. Discussion and Analysis 

For details on the proposed changes 

to the FAR, see the proposed rule. The 

Councils reviewed the comments 

received in response to the proposed 

rule. Two respondents submitted public 

comments supporting the issuance of 

the rule. No changes were made to the 

final rule as a result of public 

comments. The Councils acknowledge 

support for the rule. However, clarifying 

changes were made to the language at 

section 7.105 to detail information that 

should be included in the acquisition 

plan when an exception or an 

exemption to the standards apply. At 

FAR section 39.204, paragraph (a)(3), 

examples are included of the portions of 

ICT that are ‘‘operable parts’’ by adding 

the text ‘‘i.e., hardware-based user 

controls for activating, deactivating, or 

adjusting ICT’’. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT) and for Commercial 

Items, Including Commercially 

Available Off-the-Shelf (COTS) Items 

This rule does not create new 

solicitation provisions or contract 

clauses or impact any existing 

provisions or clauses. This rule amends 

FAR part 39, Acquisition of Information 

Technology, and other references to 

Government requirements for 

information and communication 

technology. The objective of the rule is 

to update the FAR text to align with the 

accessibility standards revisions made 

by the Access Board at 36 CFR 1194.1. 

The accessibility standards are currently 

applicable to all information and 

communication technology acquisitions. 

As such, determinations and findings 

under 41 U.S.C. 1905 to 1907 regarding 

the applicability of this rule to 

acquisitions at or below the SAT or to 

acquisitions for commercial and COTS 

items are not required. 

Section 508 requirements will 

continue to apply when acquiring ICT 

through contracts at or below the SAT, 

or contracts for the acquisition of 

commercial items, including COTS 

items. 

IV. Expected Impact of the Rule 

This final rule amends the FAR to 

incorporate recent revisions and 

updates to the accessibility standards 

issued by the U.S. Access Board 

pursuant to section 508. These revisions 

and updates provide benefits that would 

accrue to Federal agencies, including 

productivity increases by Federal 

employees and time saved from reduced 

phone calls to Federal agencies. 

Additionally, persons with disabilities 

using public-facing Federal information 

and data (e.g., Federal websites) would 

experience improved access and time 

savings. There are also substantial 

unquantifiable benefits. For example, 

enhanced ICT accessibility for persons 

with disabilities can be expected to 

improve access and use of missioncritical ICT, productivity, ability to 

achieve professional potential, 

independent living, increase civic 

engagement, decrease stigma, promote 

equality, and enhance integration into 

American society. Updating the FAR to 

incorporate the revised 508 accessibility 

standards is also expected to provide 

benefits to ICT firms that are difficult to 

quantify and thus were not monetized. 

For example, harmonization with 

national and international consensus 

standards is likely to assist American 

ICT companies by helping to achieve 

economies of scale created by wider use 

of these technical standards. 

This rule codifies changes made by 

the U.S. Access Board. As such, the 

monetized costs and benefits in the 

Final Regulatory Impact Analysis 

(FRIA), which accompanied the U.S. 

Access Board’s Final ICT Rule, are now 

realized at the Federal contract level. 

The Access Board’s FRIA estimates 

that, under the expected cost scenario, 

incremental compliance costs to Federal 

agencies for procured ICT under the 

revised 508 accessibility standards over 

a 10-year timeframe will be $79.0 

million per year using a 7% discount 

rate, and $82.8 million per year using a 

3% discount rate. These costs will 

largely be incurred from compliance 

with the revised 508 accessibility 

standards for procured ICT products 

and services. 

With respect to monetized benefits 

attributable to procured ICT, the Access 

Board’s FRIA estimates that, under the 

expected scenario, benefits for procured 

ICT (and, hence, this final rule) are 

likely to have an annualized value of 

$33.1 million over a 10-year timeframe 

using a 7% discount rate, and $35.2 

million using a 3% discount rate. 

To access the U.S. Access Board’s 

FRIA, go to the Access Board’s website 

(https://www.access-board.gov/ict/ 

fria.html) or the electronic docket for 

the Access Board’s Final ICT rule at the 

Federal eRulemaking Portal (https://

www.regulations.gov/docket/ATBCB2015-0002). 

V. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is a significant 

regulatory action and, therefore, was 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. 

VI. Congressional Review Act 

As required by the Congressional 

Review Act (5 U.S.C. 801–808) before an 

interim or final rule takes effect, DoD, 

GSA, and NASA will send the rule and 

the ‘‘Submission of Federal Rules Under 

the Congressional Review Act’’ form to 

each House of the Congress and to the 

Comptroller General of the United 

States. A major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. The Office of 

Information and Regulatory Affairs 

(OIRA) in the Office of Management and 

Budget has determined that this is not 

a major rule under 5 U.S.C. 804. 

VII. Regulatory Flexibility Act 

DoD, GSA, and NASA have prepared 

a Final Regulatory Flexibility Analysis 

(FRFA) consistent with the Regulatory 

Flexibility Act, 5 U.S.C. 601–612. The 

FRFA is summarized as follows: 

This final rule amends the FAR to 

incorporate recent revisions and updates to 

the accessibility standards issued by the 

Architectural and Transportation Barriers 

Compliance Board (referred to as the ‘‘U.S. 

Access Board’’) pursuant to section 508 of the 

Rehabilitation Act of 1973 (29 U.S.C. 794d). 

Section 508 generally mandates that Federal 

agencies develop, procure, maintain, and use 

information and communication technology 

(ICT) in a manner that ensures Federal 

employees and members of the public with 

disabilities have access to, and use of, 

information and data that is comparable to 

the access to, and use of, the information and 

data by Federal employees and members of 

the public who are not individuals with 

disabilities. The U.S. Access Board 

periodically reviews and revises these 

accessibility standards to reflect 

technological advances and other changes to 

ICT that occur over the passage of time. 

There were no significant issues raised by 

the public in response to the Initial 

Regulatory Flexibility Analysis. 

The rule applies to all contractors and 

subcontractors, regardless of size. Based on 

fiscal year 2018 data from the Federal 

Procurement Data System (FPDS), it is 

estimated that there are approximately 

22,809 contractors that manufacture, sell, or 

lease ICT supplies or services required to 

comply with section 508 standards. 

Approximately 12,845 of these contractors 


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are small businesses. As a result of 

incorporating the updated accessibility 

standards, the monetized costs and benefits 

in the Final Regulatory Impact Analysis, 

which accompanied the U.S. Access Board’s 

Final ICT Rule, are now realized at the 

Federal contract level for small businesses. 

However, there are unquantifiable impacts at 

the Federal contract level for small 

businesses in the final rule. For instance, 

small businesses will have to analyze 

whether the ICT they or their resellers plan 

to sell to the Federal Government complies 

with the revised 508 accessibility standards. 

Manufacturers may want to redesign their 

supplies and services to make them fully 

compliant, to have a better chance for their 

items to be purchased by the Government. 

The final rule may decrease demand for some 

supplies and services that are not fully 

compliant, potentially leading to decreased 

sales for small entities manufacturing or 

selling those items. Conversely, the final rule 

may increase demand for some supplies and 

services that are fully compliant and meet 

agencies’ business needs, potentially leading 

to increased sales for small businesses 

manufacturing or selling those items. To 

meet the requirements of the law, small 

businesses cannot be exempt from any part 

of the rule. 

This rule does not include any new 

reporting or recordkeeping requirements. 

There is a compliance requirement; entities 

will need to familiarize themselves with the 

differences between the 2000 and 2017 

standards in order to assess the impact on 

procurements and comply with the revised 

functional performance criteria and technical 

accessibility standards beyond those 

currently mandated in FAR subpart 39.2. 

There are no known significant alternatives 

to the rule for effective implementation of 

this statutory requirement. Since the statute 

imposes private enforcement, where 

individuals with disabilities can file civil 

rights lawsuits, the Government has little 

flexibility in promulgating alternatives to the 

Access Board’s standards. The impact of this 

rule may be significant for small entities that 

are not currently in compliance with existing 

standards. 

Interested parties may obtain a copy 

of the FRFA from the Regulatory 

Secretariat Division. The Regulatory 

Secretariat Division has submitted a 

copy of the FRFA to the Chief Counsel 

for Advocacy of the Small Business 

Administration. 

VIII. Paperwork Reduction Act 

The rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

3501–3521). 

List of Subjects in 48 CFR Parts 2, 7, 10, 

11, 12, and 39 

Government procurement. 

William F. Clark, 

Director, Office of Government-wide 

Acquisition Policy, Office of Acquisition 

Policy, Office of Government-wide Policy. 

Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 2, 7, 10, 11, 12, and 

39 as set forth below: 

■ 1. The authority citation for 48 CFR 

parts 2, 7, 10, 11, 12, and 39 continues 

to read as follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 137; and 51 U.S.C. 20113. 

PART 2—DEFINITIONS OF WORDS 

AND TERMS 

■ 2. In section 2.101, amend paragraph 

(b)(2) by— 

■ a. Removing the definition ‘‘Electronic 

and information technology (EIT)’’; and 

■ b. Adding in alphabetical order the 

definition ‘‘Information and 

communication technology (ICT)’’ to 

read as follows: 

2.101 Definitions. 

* * * * * 

(b) * * * 

(2) * * * 

Information and communication 

technology (ICT) 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 of ICT 

include but are not limited to the 

following: Computers and peripheral 

equipment; information kiosks and 

transaction machines; 

telecommunications equipment; 

customer premises equipment; 

multifunction office machines; software; 

applications; websites; videos; and 

electronic documents. 

* * * * * 

PART 7—ACQUISITION PLANNING 

■ 3. Amend section 7.103 by revising 

paragraph (q) to read as follows: 

7.103 Agency-head responsibilities. 

* * * * * 

(q) Ensuring that acquisition planners 

specify needs and develop plans, 

drawings, work statements, 

specifications, or other product or 

service requirements (e.g., help desks, 

call centers, training services, and 

automated self-service technical 

support) descriptions that address 

information and communication 

technology (ICT) accessibility standards 

(see 36 CFR 1194.1) in proposed 

acquisitions and that these standards are 

included in requirements planning (see 

subpart 39.2). 

* * * * * 

■ 4. Amend section 7.105 by 

redesignating paragraph (b)(5)(iv) as 

paragraph (b)(5)(v) and adding a new 

paragraph (b)(5)(iv) to read as follows. 

7.105 Contents of written acquisition 

plans. 

* * * * * 

(b) * * * 

(5) * * * 

(iv) For information technology 

acquisitions, identify the applicable ICT 

accessibility standard(s). When an 

exception or an exemption to the 

standard(s) applies, the plan must list 

the exception and/or exemption, and 

the item(s) to which it applies. For those 

items listing 39.204 or 39.205(a)(1) or 

(2), the corresponding accessibility 

standard does not need to be identified. 

See subpart 39.2 and 36 CFR 1194.1. 

* * * * * 

PART 10—MARKET RESEARCH 

■ 5. Amend section 10.001 by revising 

paragraph (a)(3)(ix) to read as follows: 

10.001 Policy. 

(a) * * * 

(3) * * * 

(ix) Assess the availability of supplies 

or services that meet all or part of the 

applicable information and 

communication technology accessibility 

standards at 36 CFR 1194.1 (see subpart 

39.2). 

* * * * * 

PART 11—DESCRIBING AGENCY 

NEEDS 

■ 6. Amend section 11.002 by revising 

paragraph (f) to read as follows: 

11.002 Policy. 

* * * * * 

(f) In accordance with section 508 of 

the Rehabilitation Act of 1973 (29 U.S.C. 

794d), the contracting officer shall 

obtain from the requiring activity the 

requirement documents, which must 

identify— 

(1) The needs of current and future 

users with disabilities to determine 

how— 

(i) Users with disabilities will perform 

the functions supported by the 

information and communication 

technology (ICT); 

(ii) The ICT will be developed, 

installed, configured and maintained to 

support users with disabilities; 


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(2) The applicable ICT accessibility 

standards (see subpart 39.2); and 

(3) Any ICT accessibility standards 

that cannot be met due to an exception 

or an exemption for any component or 

portion of the product (see 

7.105(b)(5)(iv), 39.204, and 39.205). 

* * * * * 

PART 12—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 7. Amend section 12.202 by revising 

paragraph (d) to read as follows: 

12.202 Market research and description of 

agency need. 

* * * * * 

(d) Requirements documents shall 

identify the applicable information and 

communication technology accessibility 

standards at 36 CFR 1194.1 (see 

11.002(f) and subpart 39.2). 

* * * * * 

PART 39—ACQUISITION OF 

INFORMATION TECHNOLOGY 

■ 8. Amend section 39.000 by revising 

paragraph (b) to read as follows: 

39.000 Scope of part. 

* * * * * 

(b) Information and communication 

technology (see 2.101(b)). 

■ 9. Revise section 39.001 to read as 

follows: 

39.001 Applicability. 

This part applies to the acquisition 

of— 

(a) Information technology by or for 

the use of agencies except for 

acquisitions of information technology 

for national security systems. However, 

acquisitions of information technology 

for national security systems shall be 

conducted in accordance with 40 U.S.C. 

11302 with regard to requirements for 

performance and results-based 

management; the role of the agency 

Chief Information Officer in 

acquisitions; and accountability. These 

requirements are addressed in OMB 

Circular No. A–130; and 

(b) Information and communication 

technology by or for the use of agencies 

or for the use of the public, unless an 

exception (see 39.204) or an exemption 

(see 39.205) applies. See 36 CFR 1194.1. 

39.101 [Amended] 

■ 10. In section 39.101 amend 

paragraph (a)(1)(i) by removing the word 

‘‘accommodations’’ and adding the 

word ‘‘accessibility’’ in its place. 

■ 11. Revise subpart 39.2 heading to 

read as follows: 

Subpart 39.2—Information and 

Communication Technology 

* * * * * 

■ 12. Amend section 39.201 by— 

■ a. Revising paragraph (a); and 

■ b. Removing from paragraph (c) 

introductory text the term ‘‘EIT’’ and 

adding the term ‘‘ICT’’ in its place. 

The revision reads as follows: 

39.201 Scope of subpart. 

(a) This subpart implements section 

508 of the Rehabilitation Act of 1973 (29 

U.S.C. 794d), and the Architectural and 

Transportation Barriers Compliance 

Board’s (U.S. Access Board) information 

and communication technology (ICT) 

accessibility standards at 36 CFR 

1194.1. 

* * * * * 

■ 13. Revise sections 39.203 and 39.204, 

and add section 39.205 to read as 

follows: 

39.203 Applicability. 

(a) General. Unless an exception at 

39.204 or an exemption at 39.205 

applies, acquisitions for ICT supplies 

and services shall meet the applicable 

ICT accessibility standards at 36 CFR 

1194.1. 

(b) Indefinite-quantity contracts. 

Confirmation of an exception or a 

determination of an exemption is not 

required prior to award of an indefinitequantity contract, except for 

requirements that are to be satisfied by 

initial award. The contract must identify 

which supplies and services the 

contractor indicates as compliant and 

show where full details of compliance 

can be found (e.g., vendor’s or other 

exact website location). 

(c) Task order or delivery order. At the 

time of issuance of a task order or 

delivery order under an indefinitequantity contract, the requiring and 

ordering activities shall ensure 

compliance with the ICT accessibility 

standards and document an exception 

or exemption if applicable. Any task 

order or delivery order, or portion 

thereof, issued for a noncompliant ICT 

item shall be supported by the 

appropriate exception or exemption 

documented by the requiring activity. 

(d) Commercial items. When 

acquiring commercial items, an agency 

must comply with those ICT 

accessibility standards that can be met 

with supplies or services that are 

available in the commercial marketplace 

and that best address the agency’s 

needs, but see 39.205(a)(3). 

(e) Legacy ICT. Any component or 

portion of existing ICT (i.e., ICT that was 

procured, maintained, or used on or 

before January 18, 2018) is not required 

to comply with the current ICT 

accessibility standards if it— 

(1) Complies with an earlier standard 

issued pursuant to section 508 of the 

Rehabilitation Act of 1973 (29 U.S.C. 

794d), which is set forth in Appendix D 

to 36 CFR 1194.1); and 

(2) Has not been altered (i.e., a change 

that affects interoperability, the user 

interface, or access to information or 

data) after January 18, 2018. 

(f) Alterations of legacy ICT. When 

altering any component or portion of 

existing ICT, after January 18, 2018, the 

component or portion must be modified 

to conform to the current ICT 

accessibility standards in 36 CFR 

1194.1. 

39.204 Exceptions. 

(a) The requirements in 39.203 do not 

apply to acquisitions for— 

(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 

(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. 

(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. 

39.205 Exemptions. 

(a) Allowable exemptions. An agency 

may grant an exemption for the 

following: 

(1) Undue burden. When an agency 

determines the acquisition of ICT 

conforming with all the applicable ICT 

accessibility standards would impose an 

undue burden on the agency, 

compliance with the ICT accessibility 

standards is only required to the extent 

that it would not impose an undue 

burden. In determining whether 

conformance to one or more ICT 

accessibility standards would impose an 

undue burden, an agency shall consider 

the extent to which conformance would 

impose significant difficulty or expense 

considering the agency resources 


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available to the program or component 

for which the ICT supply or service is 

being procured. 

(2) Fundamental alteration. When an 

agency determines that acquisition of 

ICT that conforms with all applicable 

ICT accessibility standards would result 

in a fundamental alteration in the nature 

of the ICT, such acquisition is required 

to conform only to the extent that 

conformance will not result in a 

fundamental alteration in the nature of 

the ICT. 

(3) Nonavailability of conforming 

commercial items. Where there are no 

commercial items that fully conform to 

the ICT accessibility standards, the 

agency shall procure the supplies or 

service available in the commercial 

marketplace that best meets the ICT 

accessibility standards consistent with 

the agency’s needs. 

(b) Alternative means of access. An 

agency shall provide individuals with 

disabilities access to and use of 

information and data by an alternative 

means to meet the identified needs 

when an exemption in paragraphs (a)(1), 

(2), or (3) of this section applies. 

(c) Documentation. When an 

exemption applies, the contracting 

officer shall obtain, as part of the 

requirements documentation, a written 

determination from the requiring 

activity explaining the basis for the 

exemption in paragraphs (a)(1), (2) or (3) 

of this section. This documentation 

shall be maintained in the contract file. 

(1) Undue burden. A determination of 

undue burden shall address why and to 

what extent compliance with applicable 

ICT accessibility standards constitutes 

an undue burden. 

(2) Fundamental alteration. A 

determination of fundamental alteration 

shall address the extent to which 

compliance with the applicable ICT 

accessibility standards would result in a 

fundamental alteration in the nature of 

the ICT. 

(3) Nonavailability of conforming 

commercial items. A determination of 

commercial items nonavailability shall 

include— 

(i) A description of the market 

research performed; 

(ii) A listing of the requirements that 

cannot be met; and 

(iii) The rationale for determining that 

the ICT to be procured best meets the 

ICT accessibility standards in 36 CFR 

1194.1, consistent with the agency’s 

needs. 

[FR Doc. 2021–16363 Filed 8–10–21; 8:45 am] 

BILLING CODE 6820–14–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 19 and 52 

[FAC 2021–07; FAR Case 2016–011; Item 

II; Docket No. 2016–0011; Sequence No. 1] 

RIN 9000–AN35 

Federal Acquisition Regulation: 

Revision of Limitations on 

Subcontracting 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: DoD, GSA, and NASA are 

issuing a final rule amending the 

Federal Acquisition Regulation (FAR) to 

implement revised and standardized 

limitations on subcontracting, including 

the nonmanufacturer rule, that apply to 

small business concerns. 

DATES: Effective September 10, 2021. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Mahruba Uddowla, Procurement 

Analyst, at 703–605–2868 or by email at 

mahruba.uddowla@gsa.gov, for 

clarification of content. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat Division at 202–501–4755 or 

GSARegSec@gsa.gov. Please cite FAC 

2021–07, FAR Case 2016–011. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD, GSA, and NASA published a 

proposed rule at 83 FR 62540 on 

December 4, 2018, to implement 

regulatory changes made by the Small 

Business Administration (SBA) in its 

final rule published in the Federal 

Register at 81 FR 34243 on May 31, 

2016, which became effective on June 

30, 2016. SBA’s final rule implements 

the statutory requirements of section 

1651 of the National Defense 

Authorization Act (NDAA) for Fiscal 

Year (FY) 2013 (15 U.S.C. 657s). Section 

1651 revised and standardized the 

limitations on subcontracting, including 

the nonmanufacturer rule, that apply to 

small business concerns under FAR part 

19. Twenty-nine respondents submitted 

comments on the proposed rule. 

II. Discussion and Analysis 

The Civilian Agency Acquisition 

Council and the Defense Acquisition 

Regulations Council (the Councils) 

reviewed the public comments in the 

development of the final rule. A 

discussion of the comments and the 

changes made to the rule as a result of 

those comments are provided as 

follows: 

A. Summary of Significant Changes 

This final rule makes the following 

significant changes from the proposed 

rule: 

• The definition of ‘‘similarly situated 

entity’’. The definition of ‘‘similarly 

situated entity’’ is revised at FAR 19.001 

and in FAR clause 52.219–14, 

Limitations on Subcontracting. It now 

provides an example of entities having 

the same small business program status 

and to specify that the entity must be 

small under the size standard associated 

with the North American Industry 

Classification System (NAICS) code the 

prime contractor assigned to the 

subcontract. 

• Applicable dollar threshold. The 

final rule reflects the clarification that 

the nonmanufacturer rule and the 

limitations on subcontracting apply to 

set-asides and sole source awards made 

pursuant to subparts 19.8, 19.13, 19.14, 

and 19.15, as well as awards using the 

HUBZone price evaluation preference 

pursuant to subpart 19.13, regardless of 

dollar value. 

• HUBZone price evaluation 

preference. 

Æ Paragraph (e)(2) is added to FAR 

19.507, Solicitation provisions and 

contract clauses, to clarify that, in 

solicitations and contracts using the 

HUBZone price evaluation preference, 

the contracting officer shall insert the 

clause at FAR 52.219–14, Limitations on 

Subcontracting. Paragraph (h)(1)(ii)(B) is 

added to specify that the contracting 

officer shall insert the clause at FAR 

52.219–33, Nonmanufacturer Rule, in 

solicitations and contracts when the 

HUBZone price evaluation preference is 

used. For the FAR clauses at 52.219–14 

and 52.219–33, the prescription also 

states that the contracting officer shall 

not insert the clause in the resultant 

contract if the prospective contractor 

waived the use of the price evaluation 

preference or is an other than small 

business. 

Æ The clause at FAR 52.219–4, Notice 

of Price Evaluation Preference for 

HUBZone Small Business Concerns, is 

revised to remove the proposed rule 

definition of ‘‘similarly situated entity’’, 

and to delete (instead of revising) the 

new redundant paragraphs (d) and (e), 

which pertained to the limitation on 

subcontracting. 

• Limitations on Subcontracting. FAR 

clause 52.219–14, Limitations on 

Subcontracting, is revised to clarify that 


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