A legal tangle

The threat that federal agencies could be sued put the teeth into Section 508; now agencies are responding with their own contract clauses.

Since June, the Section 508 law has required federal agencies to buy electronic office equipment that is accessible to people with disabilities and to make sure their Web sites are also accessible.

That means office computers, copiers, printers and Web sites must be usable by people with disabilities, such as visual impairments, hearing difficulties or dexterity problems.

So far, no lawsuits have been filed, but technology vendors say the threat of litigation has prompted many government procurement officials to mount pre-emptive legal defenses.

Employing a bewildering barrage of contract clauses, agency procurement officials are attempting to shift legal liability off their agencies and onto the companies that produce and sell technology goods and services, vendors complain.

"We knew this would happen. As soon as federal agencies can get sued, they're using contract clauses to cover themselves," said Larry Allen, executive director of the Coalition for Government Procurement, a trade organization that monitors government procurement policies.

"Contractors are being asked by procurement shops to take the heat off the government by signing up for a whole list of compliance requirements so that government agencies can be held harmless and shift blame back on the contractors," Allen said. "This is completely counter to all discussions of 508 compliance, which placed the onus for compliance on government agencies."

Seeking Guarantees

According to agency procurement officials, the contract clauses are not an attempt to shift liability, but rather an effort to ensure that the products the government buys perform as the vendors have promised.

"The government cannot immediately ascertain the level of compliance with Section 508" for many of the computers, software programs and other electronic and information technology it buys, said a procurement official at the Treasury Department.

Thus, his agency includes a clause in IT contracts that requires vendors to ensure that the products they are selling "are the most compliant products and services available to satisfy this solicitation's requirements."

Should the agency later discover otherwise, "the government shall have the right to have any necessary changes made or repairs performed by itself or by another firm and the contractor shall reimburse the government for any expenses incurred thereby," according to the Treasury clause.

Said Allen: "If I were a company selling to the Treasury, I'd think long and hard about signing up to this clause. It creates substantial liability, places a risk that properly belongs on the customer on the contractor and opens the contractor up to increased costs."

The clauses may sound tough, but they are unlikely to relieve agencies of their own legal liability under Section 508, said John Cornell, a senior assistant general counsel at the General Services Administration.

If an agency is sued over lack of accessibility, it would almost certainly be "statutorily irrelevant" whether the vendor supplied equipment that failed to comply with Section 508, he said. The law in Section 508 addresses the responsibilities of agencies, not of vendors, he said.

"I'm sure they're worried about lawsuits," he said of federal procurement officers. "Their attorneys have told them to be."

In addition to legal liability, vendors worry that agency insistence on contract clauses will disrupt the pace of information technology procurement already weakened by the slowing economy.

In some instances, it has already happened.

The Social Security Administration requires vendors to explain in some detail how the products they are selling meet applicable accessibility standards spelled out in Section 508.

"We have actually had a few instances where vendors refused to tell us how their products meet the standards, and we have bought other products," said Clare Bellus, Section 508 coordinator for SSA.

More often, however, Bellus and others from SSA will meet with vendors to try to resolve their complaints. "We've helped a lot of vendors understand 508 and what it means," she said. "And after meeting with us and finding out why it is important, many do not see it as that big of an issue."

Companies wanting to sell IT equipment and services this past summer to SSA discovered another unexpected clause in the agency's contracts: pages of technical standards covering details ranging from screen flicker frequencies to bitmap use.

"They basically cut and pasted all of the Section 508 standards into their contract without telling you which standards apply" to the particular product or service being sought, said an attorney hired to intervene on behalf of an agitated vendor.

"We don't use clauses. We were told not to," Bellus said. However, SSA procurement officials have been inserting sections of the 508 standards into purchase contracts, she conceded. "We've worked with the requiring officials to help them select applicable standards," she said. "They have made a conscious effort to apply only relevant standards. I don't understand why the vendors feel we are putting the burden on them."

To vendors, SSA's practice of cutting and pasting indicates that procurement officials lack specific understanding of how Section 508 applies to the products they are buying, the attorney said. Vendors fear that "six months from now, the agency is going to say, 'How come it doesn't perform this function?' " and the vendor will be required to upgrade or replace the product. For Hiawatha Island Software Co. Inc., agency anxiety over Section 508 led to demands for a guarantee that the company's software would make government Web pages 508-compliant.

"We can't do that," said company spokeswoman Dana Simberkoff. HiSoftware produces software that automatically scans Web sites for elements that do not meet Section 508 standards. But when problems are found, the software cannot automatically fix them. A page designer must make corrections. The company cannot guarantee that an agency Web designer or an outside contractor will make the corrections properly, she said.

Vendors say such clauses have popped up in contracts proposed by the Internal Revenue Service, the U.S. Patent and Trademark Office and the Defense Department. "They're across the board. Everybody has seen them," said Rex Lint, a 508 specialist for the Information Technology Association of America.

Legal Vagaries

It isn't that companies are unwilling to stand behind their products. But many of the demands for guarantees have been both sweeping and vague. "The Federal Acquisition Regulation requires that the agencies provide a lot more specificity," said Monica Dussman, Section 508 coordinator at systems integrator Science Applications International Corp.

For the most part, "procurement officers are not Section 508 experts," conceded Ken Nakata, a Section 508 expert and lawyer at the Justice Department. If agencies are ever sued over Section 508 violations, Nakata is one of the government lawyers expected to defend them.

"It's easy to think that fixing this problem is a no-brainer, but if you dig into it a little bit, you find it's really a difficult problem to solve," Nakata said.

For example, he said, Justice lawyers are pondering what liability an agency risks if it buys a product that complies with Section 508 at the time of purchase, but modifies the product so that it can perform an additional function and the modifications make the it noncompliant. Tentatively, Justice lawyers have concluded that the agency may be vulnerable to a lawsuit. It isn't just government procurement officials who are befuddled by Section 508, Nakata contended. "A lot of manufacturers are sitting around scratching their heads trying to figure out what 508 is all about."

True enough, said Michael Takemura, a Section 508 expert for Compaq Computer Corp. "We're looking for clarification on things such as best value," he said. Typically, agencies are instructed to weigh cost and performance and buy those products that offer the best value, not simply the lowest price or the best performance.

But Section 508 does not tell procurement officials how to determine best value for accessible products, Takemura said. It is left to procurement officials to determine the proper balance between price and accessibility. "If a product costs $1,000 and meets 90 percent of accessibility requirements and another product costs $950 but only meets 75 percent of the requirements, which wins out?" he asked. "It's not clear."

One dilemma for government contracting officers is that relatively few products fully satisfy the requirements of Section 508, Lint said. That means agencies must decide which products best satisfy the requirements.

But agencies are hedging their choices. For example, in addition to requiring the vendor to repair, replace or pay for repairs to any equipment found not to be Section 508-compliant, the Treasury Department clause permits "cancellation of the contract, delivery or task order, purchase or line item without termination liabilities."

"By saying yes to that, a company is going out on a limb," Lint said.

As early as June, ITAA officials complained in a letter to the Federal Acquisition Regulation Council about "the wide range of Section 508 clauses" that agencies were adding to solicitations and contracts. The clauses were "often markedly different from agency to agency," the letter said, and many of them failed to account for "the significant complexities involved in incorporating the Section 508 standards into electronic and information technology products." ITAA, which represents hundreds of companies, asked the FAR Council, which oversees federal procurement regulations, to adopt a "standard clause" that would hold vendors responsible for their products' accessibility only at "the time of delivery" and only when the products are used as the vendor intended.

Not all vendors were happy with ITAA's proposal, however. Software manufacturers wanted a different clause, and manufacturers of "closed systems" — in which internal computers do not connect to outside systems — wanted yet another clause.

The outcry over clauses grew loud enough by late summer to prompt GSA's Acquisition Policy Division to announce in September that it will consider amending the Federal Acquisition Regulation by adding a standard Section 508 clause. "We're working on a whole library of clauses," said Terry Weaver, director of GSA's Center for IT Accommodation.

But developing clauses that will satisfy both agencies and industries is likely to take "a good long time," said Cornell, the GSA lawyer. "Don't expect it to whiz through in three months."

Section 508 at a glance

* Designed to eliminate barriers in information technology, this 1998 law requires federal agencies to buy electronic and information technology that is accessible to people with disabilities such as vision, hearing and mobility impairments.

* The law sets minimum accessibility standards for computers and software, government Web sites, phone systems, fax machines, copiers, printers and similar office equipment.

* Individuals may sue agencies that fail to comply.

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