Steptoe & Johnson for Oracle - Aaron Altschuler

Before the

Department of Defense, General Services Administration

and National Aeronautics and Space Administration

In the Matter of )

)

Proposed Rule: ) FAR Case 1999-607

Federal Acquisition Regulation; )

Electronic and Information )

Technology Accessibility )

COMMENTS ON BEHALF OF ORACLE CORPORATION

These comments are submitted on behalf of Oracle Corporation in response to the proposed rule published on January 22, 2001 by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the "Councils").1 This proposed rule would revise the Federal Acquisition Regulation ("FAR") to implement the electronic and information technology ("EIT") accessibility standards published by the Architectural and Transportation Barriers Compliance Board ("Access Board" or "Board") on December 21, 2000, pursuant to Section 508 of the Rehabilitation Act. Oracle welcomes this opportunity to work with the Councils to develop a rule that will incorporate the accessibility standards into the procurement process in a way that best meets the needs of users as well as the contracting agency.

Oracle is the world's leading supplier of software for information management and the world's second largest independent software company. The 23-year old company offers its database, tools and application products along with related consulting, education and support services in 145 countries. Oracle software runs on PCs, workstations, minicomputers, main frames, and massively parallel computers, as well as on personal digital assistants and set-top devices. Oracle technology provides an internet-enabled platform for building and deploying Web-based applications.

I. Overview

Oracle supports the overall approach taken by the Councils in implementing the Section 508 accessibility standards in the FAR. We believe that the proposed rule effectively incorporates the standards into the procurement process, thereby furthering the goal of Section 508 to increase access to EIT for individuals with disabilities. At the same time, the proposed rule apparently allows agencies to retain the flexibility necessary to procure the product that best meets the needs of a particular acquisition. While Oracle generally favors the approach of the proposed rule, there are several important issues that warrant comment and clarification.

II. The Final FAR Rule Should Clarify That The Standards Apply Only To New Solicitations That Occur After the Standards' Enforcement Date (June 21, 2001).

The proposed FAR rule does not explicitly address whether the Section 508 accessibility standards apply to products procured through modifications to contracts executed before the enforcement date of the standards. Based on the language and intent of Section 508, as well as distinctions currently in the FAR between new solicitations and modifications to existing contracts, Oracle believes that the final FAR rule should clarify that the standards apply only to new solicitations that occur after the standards' enforcement date (June 21, 2001) and not to modifications to contracts executed before this date.

The enforcement provision of Section 508, which allows individuals to file complaints alleging a federal agency's noncompliance with the standards, originally applied "only to electronic and information technology [EIT] that is procured by a Federal department or agency not less than 2 years after August 7, 1998."2 In other words, the statute allowed complaints to be filed with respect to products procured after August 7, 2000. However, as the original enforcement deadline approached and the Access Board had not yet published its final standards, it became clear that industry would have little or no time to bring its products into compliance with the standards by the enforcement date. To provide industry with a transition period in which to comply with the standards, Congress amended Section 508 to state that the enforcement provisions "shall only apply to [EIT] that is procured by a Federal department or agency not less than 6 months after the date of publication by the Access Board of final standards...."3 This amendment reflects an appropriate recognition by Congress that it would be unfair and unworkable, for agencies and industry alike, to allow for enforcement of the standards without first giving industry the time needed to achieve compliance.4

A FAR rule which required compliance in the case of modifications to contracts executed before the amended enforcement date (June 21, 2001) would irreconcilably conflict with this Congressional intent. Under such a scenario, a government contractor would already have delivered a product to the procuring agency pursuant to a contract executed sometime prior to June 21, 2001. The agency could then require a 508-compliant upgrade to this product in a modification to this contract. However, by delaying enforcement of the standards until six months after publication of the final standards, Section 508 places a proper emphasis on the most current releases of IT products. Incorporating the 508 standards into current and new releases is consistent with IT industry practice and is much more efficient and cost-effective than retrofitting older releases. Accordingly, Oracle believes that the final FAR rule should apply only to contracts awarded after June 21, 2001, and to modifications to such contracts.

This position is also consistent with distinctions elsewhere in the FAR between new solicitations and modifications to existing contracts. Most notably, the FAR conventions, which provide guidance for interpreting the FAR, state that "[u]nless otherwise specified ... FAR changes apply to solicitations issued on or after the effective date of the change...."5 Like Section 508, this general rule of interpretation requires only that new rules apply prospectively to new solicitations; it does not contemplate retroactive application of FAR changes. Incorporating the Section 508 standards into a modification to a contract executed before the standards' enforcement date would be inconsistent with this rule of interpretation.

In addition, Part 6 of the FAR, which contains requirements for full and open competition in the acquisition process, specifically excludes certain types of acquisitions, including contract modifications that are within the scope and under the terms of an existing contract.6 Thus, excluding modifications to existing contracts in the final FAR rule is the approach most consistent with the current FAR framework, which highlights the distinction between new solicitations and contract modifications.

It is worth noting, also, that application of the final FAR rule to contract modifications would likely add at least two significant complexities to the procurement process. First, if an agency attempted to require a 508-compliant product in a modification, the contractor could persuasively argue that the procuring agency is required to provide an equitable adjustment to pay for any necessary changes to that product. Indeed, the FAR specifically contemplates that if a contracting agency includes FAR changes in an existing contract, it must provide "appropriate consideration" to the contractor.7

Second, an agency might require in a contract modification that an older version of a product comply with the standards. While it is likely that more current releases of this same product would have since been designed to incorporate the standards, it is possible that an accessible older version would not be commercially available, in which case the older version would not be required to comply with the standards. The commercial availability exception might also apply with respect to certain new solicitations; however, it is likely to apply more frequently in the case of contract modifications, because older versions of products were likely designed and released prior to publication of the final standards. In order to avoid these added complexities, the final FAR rule should clarify that the standards do not apply to modifications to contracts executed before the June 21, 2001 enforcement date.

III. The Final FAR Rule Should Explicitly Permit A Contracting Agency To Take Account Of A Particular Acquisition's Needs As Part Of Its Undue Burden Determination.

An agency is not required to procure EIT products that comply with the applicable accessibility standards if doing so would constitute an undue burden.8 Consistent with the standards, the proposed FAR rule defines undue burden as "a significant difficulty or expense."9 By allowing agencies to consider the difficulty of procuring a compliant product, Oracle believes that this definition appropriately gives agencies discretion to balance the important interests in procuring accessible EIT against the agency's interest in procuring a product that best meets its needs. However, to clarify further this definition, Oracle recommends that the proposed rule be revised as follows:

"In determining whether compliance with all or part of the applicable accessibility standards in 36 CFR part 1194 would be an undue burden, an agency must consider -

(i) The difficulty or expense of compliance; and

(ii) Agency resources available to its program or component for which the supply or service is being acquired; and

(iii) The extent to which compliance would require the acquisition of a product that does not best meet the agency's needs.10

An agency should be able in most cases to procure a product that is accessible and also fully satisfies its needs. Indeed, accessibility solutions for the disabled community often become mainstream productivity enhancements that benefit everyone. However, circumstances could arise under which one product might be slightly more accessible than another but would not be nearly as responsive to the agency's needs on which a particular acquisition is based.

For instance, consider a scenario in which an agency must choose between one product that meets six out of eight applicable standards and a second product that meets five out of eight applicable standards. The final accessibility standards state that in such a situation, "the agency must procure the product that best meets the standards,"11 which could lead to an argument that the agency would be required to procure the first product in the above example. Setting aside the fact that the Access Board inappropriately entered the realm of procurement policy in adopting this provision, it is simply not sensible to impose an inflexible rule on agencies under which they must always procure the product that meets more of the standards.12 Oracle believes that it is important to reduce the potential rigidity of this Access Board provision and to ensure that agencies have the flexibility to procure EIT that best suit their needs. Accordingly, the Councils should clarify that, in making an undue burden determination, agencies should take into account the extent to which compliance would require the acquisition of a product that does not meet the agency's overall technological objectives.

IV. The Final FAR Rule Should Incorporate The Section 508 Administrative Remedy Procedures Once They Have Been Determined.

Disabled individuals may file complaints alleging that an agency did not comply with the requirements of Section 508 with respect to EIT that is procured on or after June 21, 2001.13 Section 508 requires that such complaints be filed with the agency that is alleged to be in non-compliance and makes available certain remedies, procedures and rights to individuals who file such complaints.14 Oracle believes that implicit in this framework is the notion that an individual must exhaust his administrative remedies before he can bring an action against an agency in the courts. The administrative remedy would most appropriately be either with the contracting agency or, in the alternative, could be consolidated at the General Services Administration and the Department of Defense, so that the arbiter of a complaint understands the policies and goals of Section 508, as well as the needs of the contracting agency.

We understand that there are ongoing proceedings to determine the precise nature of the Section 508 administrative remedies. Oracle believes that the results of these proceedings should be consistent with the views expressed above and encourages the Councils to incorporate the administrative remedy provisions, once they have been determined, into the final FAR rule.

V. The Final FAR Rule Should Incorporate The "Fundamental Alteration" Exception Contained In The Accessibility Standards.

Section 39.x04 of the proposed rule lists various exceptions to the applicability of the accessibility standards but does not include the "fundamental alteration" exception contained in the standards. This exception states: "[The standards] shall not be construed to require a fundamental alteration in the nature of a product or its components."15 Surely, the situation of a fundamental alteration could be encompassed in the definition of "undue burden." Nevertheless, Oracle recommends that the Councils revise the proposed rule to specify this well-founded exception. Such a clarification would further consistency with the terminology in the accessibility standards and would also focus attention on a well-established exception for imposing accessibility standards.

VI. The Proposed Amendment To The FAR Market Research Provision (§ 12.202(c)) Which Makes A Specific Reference To The Accessibility Standards Should Be Deleted.

As currently written, FAR § 12.202(c) ("Market research and description of agency need") instructs agencies to "[f]ollow the procedures in subpart 11.2 regarding the identification and availability of specifications, standards and commercial item descriptions." By referencing subpart 11.2, this section requires contracting agencies to adhere to the procedures set forth in that subpart regarding solicitations that cite to requirements documents listed in the General Services Administration (GSA) Index of Federal Specifications, Standards and Commercial Item Descriptions or the DoD Index of Specifications and Standards (DoDISS).16

The proposed rule would add the following language (revised language underlined):

"Follow the procedures in subpart 11.2 regarding the identification and availability of specifications, standards and commercial item descriptions. This includes requirements documents for electronic and information technology that comply with the applicable accessibility standards issued by the Architectural and Transportation Barriers Compliance Board at 36 CFR part 1194 (see subpart 39.x)." 66 Fed. Reg. at 7167.

Oracle believes that the proposed amendment to this section is unnecessary and should therefore be excluded from the final FAR rule. This section is a general provision which applies equally to all requirements documents listed in these indexes; consistent with this approach, it does not specifically refer to any other specifications, standards or commercial item descriptions that are meant to be included in this requirement. In light of the broad nature of this provision, and the lack of references to other standards, a specific reference to the Section 508 accessibility standards is inappropriate and should be deleted.

VII. Conclusion

Oracle wants to express our sincere appreciation for the attention the Councils have accorded us. Again, we support the general approach of the proposed rule and believe that the recommendations noted in these comments would help to clarify the rule consistent with this approach. Oracle respectfully requests that the Councils consider our requested clarifications, which we believe will support the development of a final FAR rule that promotes Section 508's goal of accessibility in government procurements and implements the accessibility standards in an effective and orderly manner. We look forward to further discussions and communications with the Councils.

Respectfully submitted,

__________________________

Stewart A. Baker

Martin D. Schneiderman

Aaron M. Altschuler

Steptoe & Johnson LLP

1330 Connecticut Avenue, N.W.

Washington, D.C. 20036

Counsel for Oracle Corporation

March 23, 2001

1 66 Fed. Reg. 7166.

2 29 U.S.C. § 794d(f)(2).

3 29 U.S.C. § 794d(f)(2) (as amended by the Military Construction Appropriations Act for Fiscal Year 2000, Pub. L. No. 106-246).

4 In fact, this proposed rule itself reflects an understanding of the need for a transition period within which to achieve compliance. Section 39.x03 states: "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." 66 Fed. Reg. at 7168 (emphasis added). This focus on compliance at the time of delivery rather than the time of contract award is consistent with Congress's intent to provide industry with a reasonable amount of time in which to incorporate the recently released accessibility standards into its product cycles.

5 FAR § 1.108(d)(1).

6 FAR § 6.001. This section also excludes orders placed under requirements contracts or definite-quantity contracts; orders placed under indefinite-quantity contracts (subject to certain competition requirements); and orders placed against task order and delivery order contracts entered into pursuant to subpart 16.5. Like contract modifications, these types of contracts generally allow for future deliveries of a product by the contractor under the initial contract and without a new solicitation.

7 FAR § 1.108(d)(3).

8 29 U.S.C. § 794d(a)(1)(A); 36 CFR § 1194.2(a).

9 FAR § 39.x02, 66 Fed. Reg. at 7168.

10 FAR § 39.x04(e)(1)(suggested revisions underlined), 66 Fed. Reg. at 7168.

11 36 CFR § 1194.2(b).

12 Consideration of the agency's acquisition needs is not the only reason that this type of inflexible rule should be avoided. In addition, requiring an agency to procure the product that meets more of the standards would not always result in the acquisition of the more accessible product. Depending upon the circumstances, Product A might meet more of the standards than Product B but still lack the core functionality that makes Product B the more accessible product.

13 29 U.S.C. § 794d(f)(1).

14 29 U.S.C. § 794d(f)(2)-(3).

15 36 CFR § 1194.3(e).

16 FAR §§ 11.201-204.