The newest procurement game inside the Washington, DC, beltway is trying to guess how Section 508 will affect the federal procurement of electronic and information technology. The game became more serious after June 21, 2001, when the regulations implementing Section 508 became effective.
By way of background, Congress amended the Rehabilitation Act in 1998 to strengthen the provisions pertaining to access to "electronic and information technology" in the federal sector. The goal of Section 508 is both to allow federal employees who are disabled to use "electronic and information technology" in the performance of their jobs as well as to permit citizens with disabilities to access and use information and data provided by an agency to the public at large.
So what is "electronic and information technology?" According to the Federal Acquisition Regulation (FAR) 2.101 covering Section 508, "electronic and information technology" comprises computers and other equipment and systems that are used in the creation, conversion, or duplication of data or information. The term EIT (electronic and information technology) includes, but is not limited to, telecommunication products (such as telephones), information kiosks and transaction machines, Web sites, multimedia, and office equipment (such as copiers and fax machines).
Section 508 applies to all federal agencies when they develop, procure, maintain, or use such technology. Federal agencies are required to ensure that this technology is accessible to employees to the extent it doesn't pose an "undue burden." Section 508 covers all types of electronic and information technology in the federal sector and isn't limited to assistive technologies, such as joysticks or screen readers, used by people with disabilities.
Section 508 directed the Architectural and Transportation Barriers Compliance Board (Access Board) to develop access standards for technology that will become part of the federal procurement regulations. The Access Board regulations cover software applications and operating systems, Web-based information or applications, telecommunications functions, video or multimedia products, and self-contained, closed products such as information kiosks, transaction machines, and computers. Also covered is compatibility with adaptive equipment people with disabilities commonly used for information and communication access.
There are five and one-half exceptions to Section 508 (the one-half exception is my personal take on the law). First, if compliance with Section 508 would cause an "undue burden" on the agency, then the procurement is exempt.
While Section 508 does not define what exactly constitutes an "undue burden," FAR 39.202 Definition, defines an "undue burden" as a "significant difficulty or expense." Only time, and a few Government Accountability Office protest and court decisions, will ultimately define what an "undue burden" means.
The second exception is the procurement by government purchase cards of electronic and information technology under the micro-purchase threshold of $2,500. However the micropurchase exception expired April 1, 2005.
Third are procurements involving nation security systems used in intelligence, cryptology, command and control, or as part of weapons systems. Fourth are products acquired by a contractor incidental to a contract. Fifth are products located in spaces primarily used by maintenance and service personnel.
The half exception is the most important to GSA Schedule contractors marketing commercial items to the government. A contractor selling commercial items to agencies isn't required to specially manufacture commercial products that are compliant with all of the accessibility standards of Section 508. Instead, FAR 39.203 Applicability, in a reflection of commercial reality, only requires that commercial items include those accessibility features that are already available to the public:
When acquiring commercial items, an agency must comply with those accessibility standards that are available in the commercial marketplace in time to meet the agency's delivery requirements.
What this means is that a contractor who makes two model products, one with and the other without an optional accessibility feature, would only be able to offer the model with the optional accessibility feature. The manufacturer would not, however, be required to specially develop or add accessibility features that aren't currently sold to the general public.
Buying commercial items that are not compliant or only partially compliant with Section 508 will still add a paperwork burden to agencies. According to subpart (e)(2)(ii) of FAR 39.X04, Exceptions, an agency buying commercial items that don't meet the accessibility standards of Section 508 under the commercial item exception must still document the non-availability of the accessibility features in the file.
When acquiring commercial items, an undue burden determination isn't required to address standards that are not yet available in the commercial marketplace in time to meet the agency delivery requirements.
The requiring official must document the non-availability, including a description of market research performed and which standards cannot be met, and provide documentation to the contracting officer for inclusion in the contract file.
Section 508 is increasingly reflected in new solicitations and contract modifications. How it will pan out remains to be seen.
The URL for the Access Board's Web site is www.access-board.gov. The Federal Information Technology Accessibility Initiative (FITAI) is an interagency effort, coordinated by GSA, to offer technical assistance and to provide an informal means of cooperation and sharing of information on implementation of Section 508. The URL for the FITAI Web site is www.section508.gov.
