Davis: Feds shift 508 responsibilities

Ever since new rules took effect that made federal agencies responsible for buying accessible office technology, procurement officials have devised several ploys to try to shift that responsibility to product vendors, a Virginia congressman charges.

The rules, which took effect eight months ago and are spelled out in Section 508 of the Rehabilitation Act, require federal agencies to ensure that people with disabilities can use the information technology products agencies buy. And the rules make it possible for federal employees and members of the public to sue agencies that fail to comply.

But government contracting officials have been trying to shift liability from the agencies that are buying products to the vendors that sell them, according to Rep. Tom Davis (R-Va.).

Davis said some federal agencies are pressuring vendors to "certify" that their products are "508-compliant." Others insist on "government-unique contract clauses" that vendors must sign, assuring that their products comply with Section 508.

"[A few agencies] have been contemplating requiring contractors to submit to mandatory third-party testing as a condition for bidding on government contracts," Davis said.

"All of the above violate the letter and spirit of the accessibility standards," said Davis, chairman of the House Government Reform Committee's Technology and Procurement Policy Subcommittee. Section 508 makes it clear that federal agencies — not vendors or their products — are responsible for complying with the accessibility standards, he said.

Davis spelled out his complaints in a letter to Stephen Perry, head of the General Services Administration. GSA oversees government procurement practices in general and advises agencies on Section 508.

Davis said GSA has warned agencies that they are not authorized to require that vendors certify or warrant that their products comply with Section 508. He asked Perry to "disseminate guidance reiterating the prohibition" on certifications, warranties and third-party testing.

Davis' concerns mirror those of the Information Technology Association of America, a trade organization that represents technology manufacturers and sellers. Companies in the organization are worried about liability problems they could face if forced to offer warranties and compliance certifications. They also worry about the potential cost and stifling effect of third-party testing, according to Michael Mason, an attorney with the firm Hogan and Hartson LLP and a federal contracting specialist.

If third-party testing is permitted, companies will be pressed to build products designed to pass the test, but not necessarily designed to best provide accessibility, he said.

But agencies aren't alone in trying to turn Section 508 to their advantage, said Doug Wakefield, an accessibility expert for the U.S. Access Board, which developed the standards. Vendors have also tried to use the law as leverage.

For example, vendors protested when the Social Security Administration required a specific type of video card for computers. "People complained that's not a 508 requirement," Wakefield said.

But the video cards worked best with the SSA's assistive technology, and the agency was right — and within its rights — to require them, he said.

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