Change breeds confusion.

Peter


Accessibility regs leave many in fog
BY William Matthews  <mailto:[log in to unmask]>


05/07/2001

Larry Allen expects a rush of contract signings as federal agencies race
to beat the June 25 deadline set out in the Federal Acquisition
Regulation for complying with Section 508 accessibility requirements.

Mike Mason, however, predicts "significant delays" in contract awards as
agencies are forced to reexamine contract details to ensure that they
meet the new standards.
Both could be right as agencies and companies struggle to understand the
new accessibility rules governing federal purchases of electronic office
equipment - such as computers and photocopiers - and services, such as
Web page development.

Allen, executive director of the Coalition for Government Procurement,
said new rules added to the FAR on April 25 are well-intentioned but
"ambiguous." They attempt to "strike an unenviable balance between
giving too much discretion and too much guidance on what is and what is
not acceptable." Ultimately, the new rules leave too many un-answered
questions, he said.

Mason, a government contract and technology attorney at the law firm
Hogan & Hartson, said that some uncertainty could have been avoided. "A
much cleaner solution" would have been to apply the Section 508
standards to contract solicitations - not contracts themselves - issued
on or after June 25, he said.

The new FAR amendments are intended to tell agency procurement officers
how to apply Section 508 accessibility standards to federal
procurements. But a lack of specifics leaves contractors and procurement
officers groping, Allen said.
For now, that has produced an unusual "degree of cooperation and
conversation between the government and contractors," Allen said. That
is not expected to last, and many questions face resolution through
legal action, Mason said. Individuals may sue agencies for failing to
comply with accessibility standards. The new law is also expected to
generate bid protests from contractors contending that their products or
services better meet 508 requirements than their rivals'.

"What that means in the short term is a bonanza for lawyers," Allen
said.
Mason said a provision in the FAR amendments appears to make it harder
for agencies to fend off some legal challenges.

Section 508 spells out some exceptions agencies can employ to avoid
meeting accessibility standards. For example, if agencies can
demonstrate that meeting the standards would cause an "undue burden,"
the agencies are exempt. However, the FAR requires that exceptions be
determined before contract awards, posing this scenario:
After an agency signs a contract with a company, a second company
challenges the award, contending that its products better meet Section
508 requirements even though they cost more.

Under the FAR, the agency seems to be precluded from rejecting the
second company on the grounds that high cost constitutes an undue burden
because the burden determination would have to have been made before the
contract was awarded. Yet there would have been no reason to make an
undue burden determination before the award.

The FAR amendments do appear to clear up questions about how
accessibility requirements apply to indefinite-delivery,
indefinite-quantity contracts. Although the contracts themselves would
not have to be re-written, goods and services for which delivery orders
and task orders have been signed on June 25 or after would have to meet
Section 508 standards.

Copyright 2001 FCW Government Technology Group



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