Commercial nonavailability. [FAR 39.203(c)(1)] indicates that when acquiring commercial items, an agency need only comply with those standards that can be met with supplies or services that are available in the commercial marketplace in time to meet delivery requirements. Agencies need not acquire a noncommercial item in these cases to satisfy the Access Board standards. Commercial nonavailability must be addressed on an individual standard basis, and agencies cannot claim a commercial product as a whole is nonavailable just because it does not meet all the applicable standards. Agencies must include all available standards in the specification unless one of the exceptions in FAR 39.204 applies.

The exceptions in 39.204 include:

Micro-purchases, prior to January 1, 2003. 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;

Electronic and Information Technology (EIT) for a national security system;

EIT acquired by a contractor incidental to a contract;

EIT located in spaces frequented only by service personnel for maintenance, repair or occasional monitoring of equipment; and

EIT that would impose an undue burden on the agency.

FAR 39.202 defines undue burden as a significant difficulty or expense. For example, a new contract for the maintenance and support of a noncompliant legacy system may present an undue burden if the cost to make the system compliant would be excessive. It is critical to note, however, that FAR 39.204(e)(1)(ii) requires that in determining undue burden, an agency must consider all resources available to the program or component for which the EIT is being acquired. This means that undue burden cannot be established by simply saying that a compliant product "costs too much" or is more expensive than a noncompliant product. Case law has been compiled over the years as to what qualifies as an undue burden. Center legal counsel should be consulted and must concur on any undue burden determination.