Accessibility law under scrutiny

For the past year, federal agencies have been required to buy only accessible technology, but they have been banned from requiring vendors to "certify" that their products meet accessibility requirements. Now the General Services Administration is considering reversing that ban.

"Some people feel that by using certification, they get some sort of extra promise" that products will meet accessibility requirements, said David Drabkin, GSA's deputy associate administrator for acquisition policy.

Technology vendors strongly oppose the idea, according to Michael Mason, an attorney who specializes in federal contracting law. "Certification brings in elements of fraud" that could carry serious penalties if products are found not to meet accessibility requirements, he said.

Guaranteeing that products will meet accessibility requirements is difficult in the realm of fast-changing technology, where accessibility often depends on how well hardware, software and other products work together, Mason said.

"Accessibility" refers to the ability of technology — typically office equipment, software and Web pages — to be used by people with disabilities such as sight or hearing impairments or mobility or dexterity limitations. Standards that products must meet to be considered accessible are detailed in Section 508, a law that took effect in June 2001.

When the law was written, "We decided to not require certification from companies that [their] products were 508-compliant," Drabkin said. "We were trying to keep the number of certifications that a business would have to provide to an absolute minimum."

But during the past year, Drabkin said he heard reports that a number of agencies attempted to include certification requirements in solicitations and contracts for technology purchases. He said he does not know which agencies did so, but industry sources say the Treasury and Interior departments and the U.S. Postal Service have tried to include certification requirements in contracts.

"Certifications carry all kinds of consequences, from civil to criminal," Drabkin said. GSA wants to learn "whether there is really a need for it, or if it's overkill."

Whether agencies will be allowed to require certification in information technology contracts is likely to be decided by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council.

The councils published a notice in the Federal Register June 27 asking for comments on whether changes are needed to the Federal Acquisition Regulation. The notice points out that the FAR now "does not require vendors to certify" that their products comply with Section 508 and states that under most circumstances, "agencies are not to require such certification."

But Drabkin said that could change if agencies indicate a strong preference for certification requirements during the comment period, which ends Aug. 26.

In addition to comments on certification, the two acquisition councils want comments on whether Section 508 would benefit from the addition of a clause that spells out in more detail the legal obligations — and limits to legal obligations — of vendors that sell government agencies electronic and information technology.

A long and highly technical law, Section 508 has been a challenge for vendors and agency procurement officials.

The problem is that the law is "being interpreted differently by different people depending on particular circumstances," said Larry Allen, executive vice president of the Coalition for Government Procurement.

The law includes detailed technical standards that hardware and software must meet to be considered accessible, but it also permits agencies to buy products that meet accessibility requirements in ways not detailed in the technical standards.

"There are different standards for different technologies and even different standards for the same technologies when they are used in different ways," Allen said.

The variety of circumstances, rules and interpretations is frustrating for many who sell products to federal agencies, he added. But vendors do not agree on the solution.

"Some vendors think there should be a series of relatively hard and fast rules that direct contractors on what their responsibilities are in a clear, concise and reasonably unambiguous way," he said.

But others argue that hard and fast rules do not apply because each situation is different and technology keeps changing, Allen said.

Under Section 508, the legal responsibility for achieving accessibility falls only on federal agencies. They risk lawsuits if they fail to provide accessible technology to workers and accessible Web sites, information kiosks and other technology to the public.

That liability has prompted some agencies to draft contract clauses and certification requirements that industry officials complain are an attempt to shift compliance liability to product vendors.

That raises the prospect of a "proliferation of agency-specific clauses" that would increase confusion over Section 508, the acquisition councils said. A single, catch-all electronic and information technology clause to the FAR might be preferable, the councils said in the notice requesting comments.

Drabkin said it may take "six months or so" to decide whether changes to the FAR are needed.

***

Comfort zone

As the government's procurement umpires prepare to review the rules on buying accessible technology, industry representatives say the need to change the rules appears less urgent than it did last summer. "Companies and agencies are more comfortable than were we were a year ago" dealing with Section 508- related acquisitions, said Ken Salaets, director of government relations for the Information Technology Industry Council.

Last summer, when the accessibility law took effect and agencies could be sued for failing to comply, federal contracting officials responded by inserting an array of clauses into purchase contracts to shift legal liability from agencies to product and service vendors.

But there have been no suits, disputes between agencies and vendors have been quietly resolved, and agencies have grown "considerably calmer and more confident" in dealing with Section 508, Salaets said. Plagued by a plethora of clauses last summer, members of the Information Technology Association of America sought to simplify matters by proposing a single clause to be used by all agencies.

Now, however, ITAA officials are having second thoughts. After a year of experience with Section 508, an association committee plans to "take a fresh look" at the clause question. This time, it may recommend adopting no clause at all, an ITAA official said.

RELAT LINKS

"Davis: Feds shift 508 responsibilities" [FCW.com, March 5, 2002]

"One year and counting" [Federal Computer Week, June 24, 2002]

"A legal tangle" [Federal Computer Week, Nov. 5, 2001]

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