Maryland § 3.5-311 Nonvisual Access Clause: Vendor Website Accessibility Requirements
Maryland’s Nonvisual Access Clause applies directly to vendors selling IT products or services to Maryland state agencies. If your organization bids on Maryland state contracts involving websites, software, or digital services, this statute creates binding accessibility obligations that flow through procurement language into your contract. The clause requires vendors to warrant accessibility conformance and exposes noncompliant vendors to civil penalties, mandatory remediation at vendor expense, and indemnification liability. Enforcement began January 1, 2020 for IT procured by state units.
What Is the Maryland Nonvisual Access Clause?
Maryland State Finance & Procurement § 3.5-311 requires the Secretary of Information Technology to develop a nonvisual access clause for use in all state IT procurements. The clause must be included in invitations for bids, requests for proposals, and procurement contracts for new or upgraded information and communication technology. Implementing regulations appear in COMAR 21.05.08.05 (the mandatory clause language) and COMAR 14.33.02 (the technical accessibility standards).
In practice, the law operates as a vendor warranty mechanism. When you submit a bid or proposal, you warrant that your ICT provides equivalent access for effective use by both visual and nonvisual means, consistent with Section 508 of the federal Rehabilitation Act and Maryland’s own COMAR 14.33.02 standards. The clause creates a compliance timeline: the Secretary of DoIT reviews conformance within 18 months of contract award. If your product fails to meet standards, you have 12 months to remediate at your own expense or face civil penalties.
How to Reduce Maryland Nonvisual Access Clause Exposure
Accessibility.Works helps vendors prepare for Maryland state procurement by conducting pre-bid accessibility audits that identify conformance gaps before you certify compliance. Our senior practitioners test against COMAR 14.33.02 standards and Section 508 requirements using real assistive technologies, not just automated scans.
When deficiencies surface after contract award, we structure remediation plans that address issues within Maryland’s 12-month cure window. Our reports provide evidence trails that demonstrate remediation progress and conformance status. Documentation matters under this law because the state reviews conformance within 18 months and issues written notification of failures.
For vendors with ongoing Maryland state business, we conduct periodic validation to ensure updates and new releases maintain conformance. Demonstrating consistent compliance posture across contracts reduces exposure to escalating penalty tiers and indemnification claims.
Who the Maryland Nonvisual Access Clause Applies To for Websites and Digital Services
The Nonvisual Access Clause applies to vendors bidding on or holding contracts with Maryland Executive Branch agencies and public institutions of higher education for information and communication technology. The scope includes websites, web applications, software, digital documents, kiosks, and IT services procured, used, maintained, or developed by or on behalf of covered state units.
The law does not regulate private-sector websites serving Maryland consumers directly. Exposure arises specifically through the state procurement process. If you bid on a Maryland state IT contract, submit a warranty under the clause, and your product fails to meet accessibility standards, you face enforcement under the procurement mechanism.
Limited exemptions exist. The clause is not required when the essential elements of the technology are inherently visual and nonvisual equivalence cannot be developed, or when modification costs would exceed 15% of the procurement price. Procurement officers must document these exemptions, and they are narrowly applied.
Common Maryland Nonvisual Access Clause Risk Triggers
- Submitting a bid warranty without testing the product against COMAR 14.33.02 and Section 508 standards.
- Failing to remediate identified deficiencies within the 12-month cure period after written notification.
- Providing software updates or new releases that regress accessibility after initial contract conformance.
- Relying on automated scans or overlay widgets instead of manual assistive technology testing.
- Assuming federal Section 508 conformance alone satisfies Maryland's additional state-specific requirements.
Maryland Nonvisual Access Clause Enforcement Reality
Enforcement under § 3.5-311 operates through administrative procurement channels, not civil litigation. The Maryland Department of Information Technology is charged with enforcing the clause for IT procured by state units on or after January 1, 2020, including assessment of civil penalties.
The enforcement process follows a defined timeline. Within 18 months of contract award, DoIT determines whether the procured ICT meets COMAR 14.33.02 standards. If it does not, the state issues written notification. The vendor then has 12 months to modify the technology at its own expense. Failure to remediate within this window triggers potential civil penalties.
Because enforcement flows through procurement rather than private lawsuits, publicly reported cases are rare. This does not mean the risk is low. Contract termination, vendor disqualification from future bids, and indemnification claims against vendors who warranted accessibility can create substantial operational and financial exposure beyond the statutory penalties.
Maryland § 3.5-311 Penalties and Settlement Exposure
The Nonvisual Access Clause establishes explicit civil penalty caps. Vendors who fail to remediate within 12 months of notification may be subject to a fine not exceeding $5,000 for a first offense and not exceeding $10,000 for a subsequent offense. These statutory penalties are modest compared to private accessibility litigation in other states.
However, penalties represent only part of the exposure. The mandatory clause language requires vendors to defend, indemnify, and hold the state harmless from any claims, costs, losses, damages, liability, judgments, and expenses arising from use of ICT that does not meet accessibility standards. This indemnification creates open-ended financial exposure if the state faces disability discrimination claims tied to your product.
The clause also requires vendors to warrant that any accessibility modification costs will not exceed 15% of the product price. This caps the remediation cost you can shift back to the state, effectively requiring vendors to absorb significant remediation expenses.
Technical Benchmarks for Maryland Nonvisual Access Clause Compliance
Maryland’s Nonvisual Access Clause requires conformance with two overlapping technical standards. The clause language explicitly references Section 508 of the federal Rehabilitation Act of 1973 and Maryland’s COMAR 14.33.02 (Information and Communication Technology Nonvisual Access Standards). Both must be satisfied.
COMAR 14.33.02 adopts or paraphrases many Section 508 requirements but includes additional Maryland-specific provisions not found in federal regulations. The regulations cover web-based intranet and internet information, software applications, telecommunications products, video and multimedia products, self-contained closed products like kiosks, and desktop and portable computers.
For web content specifically, alignment with WCAG 2.1 Level AA provides the strongest conformance posture. Maryland’s 2022 regulatory amendments updated COMAR 14.33.02 to reflect current accessibility practice. State agencies increasingly reference WCAG 2.1 AA in their accessibility policy statements. Treating WCAG 2.1 AA as the operational baseline helps vendors satisfy both the technical spirit and practical expectations of Maryland reviewers.
Common Misconceptions About Maryland Nonvisual Access Clause Compliance
Maryland’s COMAR 14.33.02 includes state-specific provisions beyond Section 508. Vendors must test against both standards to ensure full compliance under the Nonvisual Access Clause.
The indemnification clause creates open-ended liability for claims arising from inaccessible products. Statutory penalties are the floor, not the ceiling.
The clause covers IT services provided by or on behalf of state units. Subcontractors and third-party service providers can be pulled into scope through prime contract requirements.
COMAR 14.33.02 requires equivalent nonvisual access, which means compatibility with screen readers, keyboard navigation, and braille output. Automated scans cannot verify this functionality.
What Good Faith Looks Like Under Maryland § 3.5-311
Good faith under the Nonvisual Access Clause means demonstrating genuine effort to achieve and maintain accessibility conformance throughout the contract lifecycle. Testing before bid submission shows you did not warrant compliance blindly. Documented remediation within notification windows shows you take compliance obligations seriously.
Vendors who maintain accessibility testing as part of their development process, respond promptly to state notifications, and provide clear conformance documentation establish a posture that reduces enforcement friction. Procurement officers have discretion in how aggressively they pursue penalties, and demonstrated good faith influences that discretion.
Conversely, ignoring notifications, disputing clear deficiencies, or failing to respond within the 12-month cure period signals bad faith and increases the likelihood of penalty assessment. The law’s structure assumes vendors will remediate when notified. Enforcement escalates when that assumption fails.
What Maryland Agencies Look For in Nonvisual Access Clause Compliance
- Testing documentation showing conformance with COMAR 14.33.02 standards at time of bid submission.
- Evidence of assistive technology testing beyond automated scanning tools.
- Prompt remediation response within notification windows with documented progress updates.
- Accessibility maintenance procedures that prevent regression after initial contract conformance.
- Clear accessibility conformance reports or VPATs that map to both Section 508 and Maryland requirements.
Maryland Nonvisual Access Clause FAQs
No. The clause applies only to IT procured by Maryland state agencies. Private businesses serving Maryland consumers are not directly regulated by this law. However, if you sell IT products or services to Maryland state government, the clause becomes a binding contract term that creates accessibility obligations and liability exposure.
Maryland requires conformance with Section 508 and COMAR 14.33.02. For web content, WCAG 2.1 Level AA provides the strongest operational baseline. Maryland’s 2022 regulatory amendments updated COMAR standards to reflect current practice. State agencies increasingly reference WCAG 2.1 AA in accessibility policy statements.
DoIT issues written notification identifying nonconformance. You then have 12 months to modify the ICT at your own expense to meet standards. If you fail to remediate within that window, you may face civil penalties up to $5,000 for a first offense and $10,000 for subsequent offenses, plus indemnification claims.
A credible VPAT that maps to both Section 508 and COMAR 14.33.02 provides useful documentation. However, Maryland reviewers assess actual product accessibility, not just documentation. VPATs based on actual testing with assistive technologies carry more weight than boilerplate or template-based reports.
No. COMAR 14.33.02 requires equivalent nonvisual access through keyboard controls, synthesized speech, braille, and other methods not requiring sight. Automated tools cannot verify this functionality. Overlays do not address underlying code barriers and have been successfully challenged in accessibility litigation nationally.
The exemption is narrow. It applies only when essential elements of the technology are inherently visual and nonvisual equivalence cannot be developed. Procurement officers must document the exemption. Most websites, software, and digital services do not qualify because accessible alternatives exist.
Maryland’s Nonvisual Access Clause explicitly references Section 508 conformance but also requires compliance with COMAR 14.33.02, which includes additional state-specific provisions. Meeting Section 508 alone does not guarantee Maryland compliance. Vendors should test against both standards.
Test your product against COMAR 14.33.02 and Section 508 standards before submitting your bid. Document conformance using assistive technology testing, not just automated scans. Identify and remediate gaps before warranting accessibility. Maintain testing documentation to demonstrate compliance posture if questions arise during the 18-month review.
Recent Maryland Nonvisual Access Clause Enforcement Examples
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Enforcement data not publicly reported
- Plaintiff / Agency
- Maryland Department of Information Technology
- Defendant
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- Venue & Jurisdiction
- Administrative enforcement via procurement channels
- Allegations
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- Status / Outcome
- The Maryland Nonvisual Access Clause is enforced through administrative procurement mechanisms rather than civil litigation. DoIT does not publish enforcement statistics or case-by-case penalty assessments.
- Remedies / Payment
- Not publicly disclosed
- Why It Matters
- The absence of public enforcement data does not indicate low risk. Contract-level remedies, vendor disqualification, and indemnification claims occur outside public court records.
2018
HB 1088 Enactment
- Plaintiff / Agency
- Maryland General Assembly
- Defendant
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- Venue & Jurisdiction
- Maryland Legislature
- Allegations
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- Status / Outcome
- HB 1088 (2018) strengthened the Nonvisual Access Clause by adding explicit penalty provisions and requiring DoIT to enforce the clause including civil penalties for IT procured on or after January 1, 2020.
- Remedies / Payment
- Established $5,000 first offense / $10,000 subsequent offense penalty structure
- Why It Matters
- The 2018 amendment transformed the Nonvisual Access Clause from a contractual warranty into an enforceable regulatory requirement with statutory penalties.
2022
COMAR 14.33.02 Amendment
- Plaintiff / Agency
- Maryland Department of Information Technology
- Defendant
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- Venue & Jurisdiction
- Maryland regulatory process
- Allegations
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- Status / Outcome
- Effective March 7, 2022, Maryland amended COMAR 14.33.02 regulations governing ICT nonvisual access standards. The amendments updated definitions and technical provisions to reflect current accessibility practice.
- Remedies / Payment
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- Why It Matters
- The 2022 regulatory update signals Maryland's continued investment in maintaining current accessibility standards. Vendors relying on older conformance assessments should revalidate.
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