SECTION 213.38. Procurements

(a) The department, in establishing commodity procurement contracts, for which the solicitation is issued on or after April 18, 2020, shall obtain and make available to institutions of higher education accessibility information for products or services, where applicable, through one of the following methods:

(1) inclusion of or URLs to manufacturer pages of completed VPATs or ACRs for applicable Commercial Off the Shelf products / or services submitted in vendor solicitation responses;

(2) other documents / forms requested by the department in commodity procurement solicitations that provide credible evidence of the vendor's capability or ability to produce accessible EIR products and services. Such evidence may include, but is not limited to, a vendor's internal accessibility policy documents, contractual warranties for accessibility, accessibility testing documents, and examples of prior work results;

(3) the URL to a web page which explains how to request completed ACRs or VPATs for any products under contract;

(b) For the procurement of EIR made directly by an institution of higher education or through the department's commodity procurement contracts for which the solicitation is issued on or after April 18, 2020, the institution shall require a vendor to provide accessibility information for the purchased products or services, where applicable, through one of the following methods:

(1) inclusion of or URLs to manufacturer pages of completed VPATs or accessibility conformance reports for applicable Commercial Off the Shelf products / or services;

(2) other documents / forms requested by the institution that provide credible evidence of the vendor's capability or ability to produce accessible EIR products and services. Such evidence may include, but is not limited to, a vendor's internal accessibility policy documents, contractual warranties for accessibility, accessibility testing documents, and examples of prior work results;

(3) The URL to a web page which explains how to request completed ACRs or VPATs for any product under contract; or

(4) If credible accessibility documentation cannot be provided, then EIR shall be considered noncompliant.

(c) An institution of higher education shall implement a procurement accessibility policy, and supporting business processes and contract terms, for making procurement decisions. The institution of higher education shall monitor the procurement processes and contracts for accessibility compliance.

(d) This subchapter applies to EIR developed, procured, or materially changed by an institution of higher education, or developed, procured, or materially changed by a contractor under a contract with an institution of higher education which requires the use of such product, or requires the use, to a significant extent, of such product in the performance of a service or the furnishing of a product.

(e) Unless an exception is approved by the president or chancellor of an institution of higher education pursuant to Texas Government Code §2054.460 and 1 Texas Administrative Code §213.37 or unless an exemption is approved by the department, pursuant to Texas Government Code §2054.460 and 1 Texas Administrative Code §213.37, all EIR products developed, procured or materially changed through a procured services contract, and all electronic and information resource services provided through hosted or managed services contracts, shall comply with the provisions of Chapter 206 and Chapter 213 of this title, as applicable.

(f) Nothing in this subchapter is intended to prevent the use of designs or technologies as alternatives to those prescribed in this subchapter provided they result in substantially equivalent or greater access to and use of a product for people with disabilities.

(g) Accessibility testing, planning, and execution criteria shall be documented for the project and accessibility testing shall be performed by a third-party testing resource or knowledgeable institution of higher education staff member to validate compliance with 1 Texas Administrative Code §206.70 and this chapter for any EIR project whose developments costs exceed $500,000 and that:

(1) requires one year or longer to reach operations status;

(2) involves more than one institution of higher education or state agency; or

(3) substantially alters work methods of institution of higher education or agency personnel or the delivery of services to clients.

Source Note: The provisions of this §213.38 adopted to be effective September 16, 2008, 33 TexReg 7744; amended to be effective November 17, 2009, 34 TexReg 8027; amended to be effective September 18, 2014, 39 TexReg 7565; amended to be effective December 12, 2019, 44 TexReg 7679