US Dept of the Treasury - Richard Miller

Department of the Treasury Response to FAR Case 1999-607

Proposed Rule on Implementation of Section 508 of the Rehabilitation Act of 1973, as Amended

3/22/2001

General Comments

As a general comment, we are very concerned at the insufficiency of the rule in addressing implementation of the Electronic and Information Technology Accessibility Standards of 36 CFR part 1194. The general impression that this rule conveys is that there was an abdication of guidance responsibility, thereby, leaving federal agencies without guidance as to how to implement.

Furthermore, with the FAR Council being aware of the timing relative to the proposed rule comment period, reformulation, and eventual final rule, it had to be obvious that the enforcement date of June 21, 2001 would arrive before implementation could be properly executed per a final rule. Little or no time will be available to digest and implement the final rule. Therefore, the Treasury Department has had to dedicate substantial time and effort to devise its own plan, education initiative, guidance and tools for Section 508 implementation in order to meet the operational needs of its procurement offices. The Proposed Rule was of little help in doing this, so we were forced to resort to 36 CFR part 1194 itself.

The negative significance of this situation is heightened by two additional factors.

First, we are dealing with a subject of very personal human importance, IT accessibility of individuals with disabilities. Our actions or lack of action will have a direct impact on disadvantaged persons seeking to enter the federal workforce. Second, the failure on the part of federal entities to comply has potentially serious legal civil action consequences against the federal government. The lack of proper and timely guidance greatly exacerbates these risks. As one attorney put it, "Given the Proposed Rule, we'll get our real guidance from developing case law."

Section 508 begs a consistent, facile government-wide implementation solution.

Specific Comments

Long-Term Solution - We propose a long-term implementation solution developed by the FDA, which offers an industry-based solution, relieving industry, and federal procurement requestors and procurement specialists of inappropriate responsibilities to ascertain IT product compliance. The Final Rule should reflect support for this solution, and the GSA should assume point responsibility to implement the solution. The FAR Council should take immediate action to implement this solution given the limited remaining time before Section 508 enforcement. The FDA-recommended solution with minor edits follows:

Section 508 of the Rehabilitation Act Amendments of 1998

Acquisition Overview

Neither Section 508 of the Rehabilitation Act, as amended by the FY 2001 Appropriation Act for Military Construction (Public Law 106-246, July 13, 2000), nor the FAR changes in the proposed final rule published in the Federal Register on January 22, 2001, require vendors to self- certify that their products/services meet the accessibility standards published in the Federal Register on December 21, 2000, by the Architectural and Transportation Barrier Compliance Board.

In October 2000, The General Services Administration contracted with Arthur D. Little to head a pilot program entitled "Accessibility for People with Disabilities through Standards, Interoperability and Testing" (ADIT) to work with the electronic and information technology (EIT) community to develop voluntary testing and standardization of EIT products.

One objective of the ADIT program is to develop and implement voluntary standards for acceptance by an accredited organization such as the American National Standards Institute (ANSI) or the International Organization for Standardization (ISO). In partnership, the GSA and the EIT community would develop consensus standards for EIT products and services based on the U.S. Access Board's technical standards for:

* software applications and operating systems

* web-based information or applications

* telecommunication products

* video and multimedia products

* self contained, closed products (e.g., information kiosks, calculators, and fax machines)

* desktop and portable computers

Also, ADIT would establish a test environment to enable technology vendors to determine whether technology tools meet user needs.

Problems Caused by Not Allowing Self-certification (Section 508 and Proposed FAR Final Rule)

Section 508 and the proposed FAR final rule require federal agencies to purchase only EIT equipment that meets the Access Board's accessibility standards. Since Section 508 and the proposed FAR changes do not require vendors to certify that their EIT products and services meet the accessibility standards, federal agencies must do so. Clearly, government buyers (purchasing agents and contracting officers) do not have the technical expertise to evaluate EIT product compliance with the approximately 8-pages of technical standards developed by the Access Board. Nor do government project officers and end-users of EIT products/services typically have the ability to evaluate these items. Government evaluation of EIT products/services will significantly increase acquisition time. All proposals received in response to government requests for quotations (RFQ) and solicitations will have to be evaluated for compliance with EIT accessibility standards. For example, a qualified government employee will have to evaluate the six quotations received in response to a RFQ soliciting several computers (costing over $2,500) for compliance with the accessibility standards. This process could add days to the acquisition. For larger EIT acquisitions, such as a financial management system, evaluation of proposals for compliance may require a team of government employees and would take several days.

Solution and Proposed Implementation Plan for Acquisitions

Assuming that the ADIT program would successfully establish ANSI or ISO standards for EIT products, federal agencies would purchase only EIT products and services that meet the ANSI or ISO standards. All applicable federal requirements above the micro-purchase threshold would include the ANSI or ISO standard in the purchase description or statement of work. Government buyers could be confident that any products meeting the standard would also conform to the requirements of Section 508.

This approach is consistent with Office of Management and Budget Circular No. A-119: Federal Participation in the Development and Use of Voluntary Consensus Standards in Conformity Assessment Activities. Additionally, the government commonly includes ANSI or ISO standards in requirements for various products and services to comply with federal regulations and for quality assurance.

Short Term Solution - There is need for a comprehensive rewrite of the Proposed FAR Rule that takes into consideration all of the following points:

1. The omission of a FAR 52 clause is a major mistake! One must be offered in the FAR in order to have government-wide consistency, limited confusion, and reduced legal risks and liabilities. As an example, Treasury Office of Procurement has reviewed several Section 508 clauses developed by different federal entities and found all to be inadequate. This typifies the magnitude of the problem.

The Access Board's Section 508 compliance final standards will require redesign of EIT that is provided by an estimated 11,000 contractors. Having inconsistent contract requirements whether in the SOW or in the quality assurance or the inspection end will only cause contractors greater expense and ultimately, the Government. So, standard clause language would expedite a consistent approach throughout the FAR-regulated community in the procurement of EIT. Letting each agency develop its own would only create confusion in the contractor community, delay the effective implementation of Section 508 compliance, and cost the taxpayer litigation costs that would be better spent developing improved accessibility solutions. Even the IAA community requested the FAR Council to develop standardized FAR clauses regarding Section 508 compliance.

2. FAR 39.X04, Exceptions, should clearly state the circumstances regarding contracts awarded prior to June 21, 2001, and give examples of when the exception applies and when it does not. Procurement vehicles to be addressed should include but not be limited to existing contracts, delivery & task orders, change orders, contract modifications, IDIQ contracts, interagency agreements, and simplified acquisitions.

For example: Even if the Access Board's Final Standards for Section 508 compliance are not incorporated into the original contract, it shall be applicable to orders, solicitations/awards, modifications to contracts, etc., by "X" date. Here again, if a FAR standard is not available, various agencies that order from GWACs or schedules will be incorporating widely variable Section 508 measures into the deliverables under one contract.

3. For both FAR 39.X04 (e) (2), Undo Burden Documentation, and FAR 39.X04 (e) (2) (ii) regarding "non-availability" in the commercial marketplace, the rule should clearly state that a Determination & Findings is not required by the Contracting Officer.

Additionally, the applicable section of the Access Board's Final Rule (1194.2 Application, (a) (2) cites that...

"When procuring a product, if an agency determines that compliance with any provision of this part imposes an undue burden, the documentation by the agency supporting the procurement shall explain why, and to what extent, compliance with each such provision creates an undue burden." (emphasis added)

This statement is more demanding on the documentation than the Proposed Rule, which indicates a shortcoming in the rule. The same demanding language should be included in the rule, otherwise, legal risks and liabilities are unnecessarily multiplied.

4. FAR 39.X04 (e) (ii) "When acquiring commercial items," should provide some guidance on what would be acceptable for a "requiring official" to justify when the Section 508 accessibility standards are not yet available in a commercial product. Would a contractor's self-certification be appropriate? Since the ultimate threat of suits against the Government for attorney's fees and damages is the consequence of not achieving Section 508 compliance, some measure of effort should be outlined and considered to have met that "non-availability test."

5. It appears that Section 508 is applicable globally for all federal government acquisition vehicles. If this is the intent, it should be explicitly stated.

6. If the intent is that Section 508 applies to Interagency Agreements under FAR 17.5, it should be explicitly stated.

7. One of the most severe omissions of the Proposed Rule is that it does not at all address the Access Board Final Rule 1194.2 Application, (c), stated below:

"Except as provided by §1194.3(b), this part applies to electronic and information technology developed, procured, maintained, or used by agencies directly or used by a contractor under a contract with an agency which requires the use of such product, or requires the use, to a significant extent, of such product in the performance of a service or the furnishing of a product."

It is extraordinary that this provision was not addressed in the Proposed Rule since it is potentially the most contentious due to the requirement that the government control certain EIT within a contractor's facility, and the fact that there is little definition and no examples offered. Yet, by not addressing it, federal agencies will become targets for serious lawsuits.

8. Finally, the FAR Council needs to ensure that an appropriate final FAR rule is swiftly made available to the federal procurement community.

9. In an effort to provide guidance to its procurement community, the Treasury Office of Procurement developed the Section 508 Statement-of-Work (SOW) component (attached to the emailed electronic submission of comments) for use in applicable SOWs.

Additionally, to dissect the Access Board's Final Rule and the FAR Proposed Rule for their issues and decisions, the Treasury Office of Procurement created a Section 508 decision tree (JPEG and GIF formats, attached to the emailed electronic submission of comments) that offers the process flow for the "requiring official" in complying with Section 508.

These documents are offered as potential tools for revision of the proposed FAR rule. The decision tree graphically portrays the complexity foist upon the procurement customer. Hence, the immediate need for the "long-term solution" offered above.

Rich Miller, Treasury Office of Procurement

-- A Section508 sample SOW was sent along with the comment but is not posted in this document.