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Section 508 Compliance: Not a Simple YES or NO
By
Steve Charles, Vice President of immixGroup
Section 508 requires federal agencies that "develop, procure, maintain or use" electronic and information technology (EIT) to ensure federal employees and members of the public with disabilities, comparable access to all information and data available to individuals without disabilities. After June 21, 2001 disabled individuals will be able to file suit against the federal government for corrective action if the federal agency's EIT is inaccessible. After June 25, 2001 the government is required to purchase the most accessible EIT available commercially.
The government's requirements officers — not contracting officers — are responsible for making the EIT accessibility judgement call for new procurements. The new Federal Acquisition Regulation states that the requiring official must identify which standards apply to a particular procurement, conduct market surveys and recommend for purchase the most compliant items available. We recommend that you engage the agency in EIT accessibility discussions early in the acquisition planning phase rather than being surprised by a last minute certification requirement during the contracting phase of the procurement.
Government RFQs, RFPs and IFBs ask contractors to certify that all items provided to the government are in compliance with Section 508 of the Rehabilitation Act Amendments of 1998. Because there is no government-wide Section 508 certification clause, each agency is writing its own to shift the compliance burden on to the vendor/contractor. However, for vendors who manufacturer complex technologies, Section 508 compliance is not a simple YES/NO issue.
How will you respond?
Some legal and contracts people that believe NO is the only legally safe answer for complex technologies. But the "No" answer does not address the contracting officer's requirement to purchase accessible EIT. Unless you can convince the agency that no accessible alternative exists commercially or that your technology is equal to or more accessible than your competitors' technology, you won't get the order.
A government sales representative will be sorely tempted to say "YES" knowing any other answer will most likely cause delay in the procurement. But since accessibility compliance of complex technology is not black and white, the probability of protest by a competitor claiming greater accessibility increases significantly.
Because most complex technology products cannot fully address all the standards today, a qualified YES, BUT approach is likely most appropriate. This approach is the most difficult, but it is the only one that forces the requirements office to do its job of defining which compliance standards apply and to what extent. But be careful! Anything you say during the sales cycle about accessibility could be used against you in a bid protest. This is why we recommend that each company develop its own Section 508 disclosure strategy.
GSA's Plan
In an effort to assist the requirement officers and contracting officers in making informed decisions about which items are most compliant, GSA is developing a template for manufacturers. The template will give manufacturers the ability to provide information about how each of their products addresses (or will address) the EIT accessibility standards in a common format. The requirements officers and contracting officers will be instructed to use only the template information to make determinations about which commercially available items are the most compliant. The information will be public data so that each manufacturer has access to his competitor's data. The idea is that as a result of the information being public, competition will occur so that all EIT will become more accessible over time.
In anticipation of GSA's template, we have prepared a compliance matrix similar to what we believe GSA will develop. I've written brief comments for each of the standards to prompt company executives, product managers and sales staff to think about a Section 508 disclosure strategy. It is currently available for download at our web site at http://www.immixgroup.com/reports.html.
Which one is the best Section 508 disclosure approach for your company?
- Tell all. Communicate in great detail how each product, its documentation and end-user support addresses the standards. If you can - 1) prove which standards DO NOT apply to your products and 2) for applicable standards demonstrate how your product complies. If you're clearly compliant you'll want to communicate it to all federal government agencies and your competitors.
- Hold cards close. Only communicate with actual customers who can define requirements and discuss their agency's path to EIT accessibility as it pertains to your technology. This is probably the best approach if your items are complex and interface with other components of a system over which you have no control.
- Engage the agency during the requirements definition and market survey phases of the procurement to make sure they appreciate why you're not making public statements.
- Wait and see. Watch what your competitor does and match product accessibility messages to stay competitive. If your competitor completes the template, chances are you'll also need to in order to be considered.
- The bottom line. For many EIT products and programs, especially complex software, full compliance with all of the accessibility standards is not a simple YES or NO issue. But sometimes anything less than an unqualified "YES" will slow down your sales cycle. I suspect that some federal agencies won't take the risk of anything less than an unambiguous YES.
For complex technology vendors we recommend a proactive stance early in the sales cycle. First clearly understand your federal prospect/customer's Section 508 compliance process and requirements. Then help the federal agency address the Section 508 compliance issue by providing analysis and documentation required to prove one of the following:
- No existing commercial products in this category are accessible.
- The products offered are the most accessible in their product category.
- Providing EIT accessibility would be a significant difficulty or significant expense (undue burden) for the agency.
- The technology is being purchased for a national security system.
Steve Charles is Vice President of immixGroup, a Virginia-based consulting firm that specializes in Government Contracting. More information also is available on the company's web site at www.immixgroup.com.
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