FAR 39.204—Exceptions.
Plain-English Summary
FAR 39.204 identifies the limited exceptions to the ICT accessibility requirements in FAR 39.203 and explains when those requirements do not apply. It covers three exception categories: ICT used as part of a national security system, ICT acquired by a contractor only for its own in-house use to perform a contract (incidental contract items), and certain operable parts or status indicators located in maintenance, repair, or occasional monitoring spaces used only by service personnel. The section also requires the contracting officer to obtain written confirmation from the requiring activity that one of these exceptions applies, and to keep that documentation in the contract file. In practice, this means agencies cannot simply assume an ICT acquisition is exempt; the exception must be identified, justified, and documented before award or inclusion in the file. The rule helps preserve the accessibility policy in FAR 39.203 while allowing narrow carve-outs where the policy is not intended to apply.
Key Rules
National security system exception
The accessibility requirements in FAR 39.203 do not apply to ICT acquired for national security systems, as defined by 40 U.S.C. 11103(a). This exception is limited to ICT operated by agencies as part of such systems.
Incidental contractor use exception
ICT acquired by a contractor solely for its own in-house use to perform the contract is excepted. The item must be incidental to the contract, not a deliverable or ICT intended for government use.
Maintenance-space exception
The exception also covers operable parts and status indicators located in spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment. The location and limited access are key to the exception.
Written confirmation required
The contracting officer must receive written confirmation from the requiring activity that one of the listed exceptions applies. This confirmation is part of the requirements documentation and is not optional.
Contract file documentation
The written confirmation must be maintained in the contract file. This creates an audit trail showing why the accessibility requirements in FAR 39.203 were not applied.
Responsibilities
Requiring Activity
Determine whether the ICT supply or service falls within one of the exceptions in FAR 39.204(a) and provide written confirmation supporting that determination as part of the requirements documentation.
Contracting Officer
Obtain the written confirmation from the requiring activity, verify that the claimed exception corresponds to one of the three permitted categories, and ensure the documentation is placed in the contract file.
Contractor
If the contractor is acquiring ICT for its own in-house use to perform the contract, ensure the acquisition truly is incidental to contract performance and not a government-facing deliverable or broader ICT procurement.
Agency
Apply the accessibility policy consistently, use exceptions only when they fit the regulatory categories, and maintain adequate records to support the procurement decision.
Practical Implications
This section is a narrow carve-out, not a general waiver, so teams should not treat any inconvenient ICT acquisition as exempt from FAR 39.203.
The biggest pitfall is failing to document the exception; without written confirmation in the file, the procurement record is incomplete and the exception is vulnerable to challenge.
For contractor-purchased ICT, the key question is whether the item is truly for in-house use to perform the contract; if it is part of the deliverable or intended for government use, the exception likely does not apply.
For maintenance-space equipment, the physical location and who uses the space matter; if non-service personnel regularly access the area, the exception may not fit.
Contracting officers should confirm the exception early in acquisition planning so accessibility requirements are addressed correctly in the solicitation, evaluation, and file documentation.
Official Regulatory Text
(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) I ncidental 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.