FAR amendments irk industry

Two government acquisition councils have agreed on amendments that will incorporate new accessibility standards into the Federal Acquisition Regulation. But the amendments fall short of pleasing the information technology industry.

The amendments are intended to tell federal agency procurement officers how to apply Section 508 accessibility standards to federal procurements. Section 508 requires federal agencies to buy electronic and information technology that can accommodate people with a wide range of disabilities.

In a key decision upsetting to industry officials, the amendments require agencies to apply 508 standards to contracts awarded on after June 25. Industry representatives had hoped the amendments would apply only to solicitations issued on or after June 25.

The difference means that even if contracts are solicited and negotiated before the standards take effect, they will have to comply if they are signed after the effective date.

The Information Technology Association of America expressed dismay at the prospect. "We had strongly recommended that the rule apply to solicitations [not contracts] issued on or after the effective date. We believe that Congress' intent was to give the government and private sector six full months to comply with 508. This action may require solicitations already issued to be modified if the award date is after June 25," the association said in a statement.

Another kink in the amendments requires that exceptions to Section 508 be determined prior to contract awards. That provision might make it harder for agencies to fend off challenges to contract awards, Michael Mason, a government contract and technology attorney at the Washington, D.C., office of Hogan & Hartson.

Agencies can apply a number of exceptions to Section 508's call to buy accessible technology. One is that the purchase would cause "an undue burden" for the agency.

However, the requirement for prior determination could lead to a scenario like this:

After an agency signs a contract with a company to buy technology goods or services, a second company challenges the award, contending that its products or services better meet Section 508 accessibility requirements even though they cost more.

Under the FAR amendments, the agency seems to be precluded from rejecting the second company on the grounds that high cost constitutes an undue burden, because the undue burden determination would be made before the contract was awarded. Yet there would have been no reason to make an undue burden determination before the award.

The FAR amendments do, however, appear to clear up questions about how accessibility requirements apply to indefinite-delivery, indefinite-quantity contracts.

IDIQs are open-ended contracts that permit agencies to make periodic purchases of goods and services. While the contracts themselves would not have to be rewritten to meet the new requirements, goods and services for which delivery orders and task orders have been signed on or after June 25 would have to meet Section 508 standards, the FAR amendments say.

The ITAA, which represents more than 500 technology companies, applauded at least a part of the FAR amendments: "We are pleased that the micro-purchase exemption was retained," the association said.

That exception enables agencies to avoid complying with Section 508 when they make one-time purchases of $2,500 or less using agency purchase cards. However, the FAR amendments remind that, "Regardless of purchase price, there is still an agency requirement to give reasonable accommodation for the disabled under Section 504 of the Rehabilitation Act of 1973."

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