Davis: Feds pin 508 rules on vendors

Since June, the law has required that federal agencies buy office technology usable by people with disabilities. But instead of complying with the law, agency procurement officials have devised a number of ploys to shift that responsibility to product vendors, a Virginia congressman charges.

Rep. Tom Davis (R-Va.) complained in a letter to the General Services Administration that some federal agencies are pressuring vendors to "certify" their products' compliance with Section 508. Others insist on "government-unique contract clauses" that vendors must sign to assure federal agencies that their products comply with Section 508, Davis wrote.

And 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.

Davis spelled out his complaints in a Feb. 20 letter to Stephen Perry, GSA administrator. At press time, Perry had not responded to the complaint, Davis' staff said. GSA oversees many government procurement practices and Section 508 training.

Davis said GSA had warned agencies in the past that they were not authorized to require that vendors certify or warrant that their products comply with Section 508. He asked Perry to "publish and 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 worry about liability problems they could face if forced to offer warranties and Section 508 compliance certifications, said Michael Mason, an attorney with Washington, D.C.-based Hogan and Hartson LLP and a federal contracting specialist. They also worry about the potential cost and damaging effect of third-party testing.

If required, third-party testing could stifle an innovative provision of Section 508 that permits "equivalent facilitation." Under the provision, products can be found to support Section 508 if they make technology accessible — even if they do so without specifically meeting Section 508 standards.

Agency efforts to transfer Section 508 responsibility to vendors "are a very big deal," Mason said.

Failure to comply with Section 508 is potentially a big deal for agencies as well. The law permits federal employees and members of the public to sue agencies that fail to comply with it.

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, a federal agency that developed the standards. Vendors also have 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 it was buying. "People complained that's not a 508 requirement," Wakefield said.

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

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