Compliance Conundrum

Zip Brown, vice president of the eGovernment Solutions Group at American Management Systems Inc. in Fairfax, Va., used to say that several of her company's products were compliant with Section 508, a new federal regulation that goes into effect June 25. The regulation requires federal agencies to buy electronic and information technology products that are accessible to federal workers with disabilities and citizens with disabilities who use government Web sites. A company lawyer, however, put a stop to Brown's claims of compliance."Most corporate counsels will tell you not to say you're compliant. They want you to say you meet or exceed the requirements [for accessibility]," Brown said.The hesitation of government vendors to certify or assert their compliance with Section 508 is well-founded, according to some IT industry consultants and attorneys. "[Section 508] is prone to differing interpretations," said Michael Mason, an attorney with Hogan & Hartson LLP in Washington. "The interpretation of the standards, as well as the determination of which standards apply, may reasonably vary among agencies and vendors. What may satisfy the requirements for one agency could perhaps not satisfy the requirements for another agency. That subjectivity has everyone wary of making blanket assertions that their products are compliant."Federal agencies must comply with Section 508 by purchasing products that meet the standards set forth by the U.S. Access Board, an independent government agency. If a vendor asserts that its product is compliant, and it is later determined that the product is not accessible to people with disabilities, the vendor could be legally liable, industry officials said. To reduce this risk of liability, they say vendors should detail how their products are designed to meet the accessibility standards, but avoid certifying that their products are compliant with Section 508.The standards apply to software and operating systems, Web-based applications and information, telecommunications products, video and multimedia products, desktop and portable computers and self-contained products, such as information kiosks. According to the Federal Acquisition Regulation, contracting officers must determine which standards apply to the products they want to buy, and they must conduct market research to determine what, if any, accessible products are commercially available. Agencies are exempt from Section 508 if the products will be used for national security purposes, or if buying accessible products will be an undue burden. Generally, an undue burden constitutes significant difficulty or expense.Under Section 508, federal workers with disabilities who use government electronic and information technology or citizens with disabilities who use a government Web site can file an administrative complaint and ultimately sue in federal court if they think the agency did not buy an accessible product. While it is uncertain how much legal activity Section 508 will inspire, disability groups and IT industry sources said they will closely follow its implementation."I don't think we are expecting very many complaints. Industry has been working very hard to design products that satisfy the standards," Mason said.Paul Schroeder, vice president of governmental relations for the American Foundation for the Blind in Washington, said he hopes there won't be many lawsuits or complaints filed right away."While I believe that legal rights require legal enforcement to make them real, I am much more interested in counseling those who will listen to work with their agencies and to work with industry to find solutions," he said. "Those kind of discussions are generally more productive, especially when both parties know that there's always the possibility of some teeth being resorted to."The regulation is so new that it will take time for people with disabilities to look for and demand equal access to information technology provided by the federal government, said Curt Decker, executive director of the National Association for Protection and Advocacy Systems in Washington. The group provides legal services to people with disabilities."Using the [Americans with Disabilities Act] as an analogy, it has taken us 10 years to get some cases up to the Supreme Court. It will take a couple of years to have people realize they have rights [under Section 508]," he said.While the burden of compliance is on federal agencies ? and not on the vendors providing the technology ? some attorneys and consultants said contractors could face several problems if a judge finds that a product in question is not accessible."There is a litany of potential liabilities that will depend upon the facts and circumstances that led to the noncompliance," said Dave Johnson, an attorney with Vinson & Elkins LLP in Washington.The government could require the vendor to fix the noncompliant product or pay for a fix. Either remedy could cost millions, Johnson said. In addition, negative performance assessments from the agency could curtail the contractor's ability to win future government business. The vendor also could face suspension or debarment from the government market if the government determines the vendor misrepresented the capabilities of a product, Johnson said.Negative publicity also could be damaging, Mason said. "If there is a complaint, and it is successful in establishing that the vendor's product failed to satisfy the applicable accessibility requirements, then at the very least, the vendor may be faced with bad publicity that could impact future sales," he said.Elizabeth Lyle, a public policy consultant who advises technology companies on accessibility issues, said she doesn't think vendors are liable under Section 508, however. Federal agencies are required to purchase accessible technology, she said. They must identify what standards apply to the procurement and perform market research to find products that are accessible. Lyle, a former attorney at the Federal Communications Commission, started the disability access and technology practice in March at Wallman Strategic Consulting LLC in Washington."The agency is responsible," she said. "[Vendors] are not incurring any legal liability."Johnson disagreed. "Government procurement officials are not going to analyze a software and make a judgment that it is compliant. They are going to tell the vendor what the requirements are," he said. "They will make a contract award because the contractor has represented that the product is compliant. At the end of the day, they are relying on the contractor." Contractors must be particularly vigilant if they are working with other vendors, Johnson said. Prime contractors must be sure their subcontractors' products meet the standards, and they must make sure the total solution will be accessible when the products are integrated.Otherwise, he said, "you may have a lot of finger pointing as to what led to the noncompliance." Although the federal acquisition regulation does not allow agencies to ask for certification of compliance ? essentially a yes or no answer ? some agencies are asking for certification in vendor responses to solicitations, Mason said.Answering yes or no shifts responsibility for compliance to the vendor, a situation that should be avoided, said accessibility consultant Rex Lint. "The potential penalties for answering that question wrong are enormous," he said.Many vendors are taking steps to protect themselves from legal liability by outlining the accessibility features of their products, rather than making blanket assertions of compliance, Mason said."You'll see vendors presenting their accessibility features and saying 'Government, based on your needs and responsibilities, you decide whether you can accept my product,' " he said.The General Services Administration and industry groups are developing a template vendors can use to detail the accessibility features of their products. The form will allow procurement officials to compare products, said Lint, chairman of the Section 508 committee of the Information Technology Association of America, an industry trade group in Arlington, Va. However, the template isn't going to be available soon enough for a measured response from industry before the June 25 deadline, he said."When I was the Y2K program manager for Digital Equipment, we had a similar way of indicating the readiness of our [10,000] products, and it was a nightmare," he said. "This project of accessibility is probably 50 times more complicated than the assessment for Y2K."