FAR 39.205—Exemptions.
Plain-English Summary
FAR 39.205 explains when an agency may lawfully depart from full compliance with ICT accessibility standards and what must happen when it does. It covers three allowable exemptions: undue burden, fundamental alteration, and nonavailability of conforming commercial products or commercial services. It also requires agencies to provide an alternative means of access for individuals with disabilities when an exemption applies, so accessibility is preserved to the maximum extent possible. In addition, it imposes documentation requirements: the contracting officer must obtain a written determination from the requiring activity and keep it in the contract file. For nonavailability determinations, the documentation must show the market research performed, the requirements that cannot be met, and why the selected ICT best meets the standards consistent with agency needs. Practically, this section is the control point for making sure accessibility exceptions are justified, limited, and traceable in the procurement record.
Key Rules
Undue burden exemption
An agency may limit compliance with ICT accessibility standards when full conformance would impose an undue burden. The agency must consider whether compliance would create significant difficulty or expense in light of the resources available to the specific program or component buying the ICT.
Fundamental alteration exemption
If full conformance would fundamentally alter the nature of the ICT, the agency only has to comply to the extent that conformance does not cause that alteration. The exemption is narrow and focuses on preserving the essential character of the product or service.
Nonavailability in commercial market
When no commercial products or services fully conform to the applicable ICT accessibility standards, the agency must buy the commercial item that best meets the standards while still meeting agency needs. This is not a waiver of accessibility; it is a best-available-marketplace rule.
Alternative access required
Whenever an exemption under undue burden, fundamental alteration, or nonavailability applies, the agency must provide individuals with disabilities access to and use of information and data through an alternative means that meets the identified needs.
Written determination required
The contracting officer must obtain a written determination from the requiring activity explaining the basis for the exemption and must place that documentation in the contract file. The exemption cannot be treated as informal or undocumented.
Specific documentation for undue burden
A determination of undue burden must explain why compliance with the applicable ICT accessibility standards is an undue burden and identify the extent to which compliance would be burdensome.
Specific documentation for fundamental alteration
A fundamental alteration determination must explain how and to what extent compliance with the accessibility standards would change the nature of the ICT itself.
Specific documentation for nonavailability
A nonavailability determination must include market research, a list of unmet requirements, and the rationale for concluding that the chosen ICT best meets the standards in 36 CFR 1194.1 consistent with agency needs.
Responsibilities
Agency
Determine whether one of the three exemptions applies, limit the exemption to the minimum necessary, and provide an alternative means of access for individuals with disabilities when an exemption is used.
Requiring Activity
Prepare the written determination supporting the exemption, including the factual basis and any required details for undue burden, fundamental alteration, or nonavailability.
Contracting Officer
Obtain the written determination as part of the requirements documentation and ensure it is maintained in the contract file before or during award processing as appropriate.
Contracting Officer and Acquisition Team
Use the exemption only when justified, verify that the documentation is complete, and ensure the procurement record supports the decision and any alternative access arrangement.
Agency Program or Component
Provide the resource context needed to assess undue burden, including the resources available to the specific program or component for which the ICT is being procured.
Practical Implications
This section is often the difference between a compliant accessibility exception and an unsupported procurement decision, so the record matters as much as the decision itself.
Contractors should not assume an exemption means accessibility is irrelevant; agencies may still require partial conformance or alternative access solutions.
A common pitfall is using vague statements like "too expensive" or "not available" without the required analysis, market research, and explanation tied to the specific procurement.
For nonavailability, agencies must show they looked at the commercial market and selected the best available option, not simply the easiest or cheapest one.
If an exemption is granted, teams should plan early for alternative means of access so the agency can still meet user needs without delaying implementation.
Official Regulatory Text
(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 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 products and commercial services. Where there are no commercial products and commercial services 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 products and commercial services. A determination of commercial products and commercial services 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.