.05 Nonvisual Access Clause.

A. Except as provided in §B of this regulation, the following clause is a mandatory provision for each invitation for bid under COMAR 21.05.02 or request for proposals under COMAR 21.05.03 for the purchase of new or upgraded information and communication technology:

“The bidder or offeror warrants that the information and communication technology offered under this bid or proposal (1) provides equivalent access for effective use by both visual and nonvisual means consistent with the standards of § 508 of the federal Rehabilitation Act of 1973 and Code of Maryland Regulations 14.33.02; (2) provides an individual with disabilities with nonvisual access in a way that is fully and equally accessible to and independently usable by the individual with disabilities so that the individual is able to acquire the same information, engage in the same interactions, and enjoy the same services as users without disabilities, with substantially equivalent ease of use; (3) will present information, including prompts used for interactive communications, in formats intended for both visual and nonvisual use; (4) if intended for use in a network, can be integrated into networks for obtaining, retrieving, and disseminating information used by individuals who are not blind or visually impaired; and (5) is available, whenever possible, without modification for compatibility with software and hardware for nonvisual access. The bidder or offeror further warrants that the cost, if any, of modifying the information and communication technology for compatibility with software and hardware used for nonvisual access will not increase the cost of the information and communication technology by more than 15 percent.

“Within 18 months after the award of any contract the Secretary of the Department of Information Technology, or the Secretary’s designee, will determine whether the information and communication technology procured under this bid or proposal meets the nonvisual access standards set forth in the Code of Maryland Regulations 14.33.02. If the information and communication technology procured under this solicitation does not meet the nonvisual access standards set forth in the Code of Maryland Regulations 14.33.02, the State will notify the bidder or offeror in writing that the bidder or offeror, at its own expense, has 12 months after the date of the notification to modify the information and communication technology in order to meet the nonvisual access standards. If the bidder or offeror fails to modify the information and communication technology to meet the nonvisual access standards within 12 months after the date of the notification, the bidder or offeror may be subject to a civil penalty of a fine not exceeding $5,000 for a first offense, and a fine not exceeding $10,000 for a subsequent offense.

“The bidder or offeror shall defend, indemnify, and hold the State harmless from any claims, costs, losses, damages, liability, judgments, and expenses resulting from or arising out of the use of information and communication technology that does not meet the applicable nonvisual access standards.

“For purposes of this regulation, the phrase ‘equivalent access’ means the ability to receive, use, and manipulate information and operate controls necessary to access and use information and communication technology by nonvisual means. Examples of equivalent access include keyboard controls used for input and synthesized speech, Braille, or other audible or tactile means used for output.”

B. The nonvisual access clause is not required if the procurement officer makes a determination that:

(1) The information and communication technology is not available with nonvisual access because the essential elements of the information and communication technology are visual and nonvisual equivalence cannot be developed; or

(2) The cost of modifying the information and communication technology for compatibility with software and hardware used for nonvisual access would increase the cost of the procurement by more than 15 percent.

C. The procurement officer may request such documentation as is reasonably necessary to implement this regulation.