INFOTECH AND THE LAW

Determining Section 508 Compliance

Chances are government acquisition personnel will ask you how compliant are your products to Section 508 before placing their next Federal Supply Schedule order or conducting their next procurement competition. It is becoming increasingly clear most federal agency personnel are not well-versed in Section 508 requirements. Your company, nonetheless, must prepare to answer this question.

Despite the fact that Section 508 governs the procurement conduct of agencies and not contractors, acquisition officials often place the burden of determining Section 508 applicability (the agency's job) and obtaining so-called compliance certifications (non-existent under the Section 508 regulations) on contractors.

To keep your federal orders uninterrupted, your company needs a Section 508 response plan. You should consider adopting a two-phase approach to these procurement issues.

Phase 1: Determine if your electronics and information technology products are covered.

Section 508's accessibility rules apply only to covered EIT products. The Access Board regulations limit these to software applications and operating systems; Web-based information and applications; telecommunications equipment; video or multimedia products; self-contained products, such as copiers; and computers.

Using this list and the EIT definitions, you should determine whether each product you sell or plan to sell to the federal government is truly covered by Section 508. For products that do not fit into one of these categories, you can clearly answer that your products are not covered and offer a brief statement substantiating why you believe so.

Where your products fall into the six covered EIT categories, however, you will need to evaluate the degree to which your products meet or exceed the Access Board's accessibility rules.

Phase 2: Evaluate and describe the degree to which your covered EIT products offer comparable access.

Section 508 requires agencies to tell contractors what accessibility features they require. Similarly, it requires agencies to conduct market research to determine if accessible products exist and what degree of accessibility is available for immediate acquisition.

Ideally, an agency should provide you these critical pieces of data before asking how and to what degree your covered EIT products satisfy those needs. If you are fortunate enough to get this information from the agency, evaluating and describing your EIT accessibility will be focused strictly upon those stated needs.

Without specific information about an agency's accessibility needs, you must use the Access Board rules to develop a statement regarding the general accessibility features of your EIT products.

It is important to note there is no certificate of Section 508 compliance available from any agency, including the General Services Administration, that you can obtain for your covered EIT products. Instead, contractors may develop a voluntary report characterizing covered EIT products.

At present, the Information Technology Industry Council is leading the way in providing a voluntary tool contractors can use to offer information regarding accessibility features. Developed with help from the Bush administration, the GSA and the Federal 508 Steering Committee, the Voluntary Product Accessibility Template is available for contractor use. (www.itic.org) It outlines specific Access Board rule features for each EIT-covered product group and provides a space for contractors to identify those features that support the accessibility requirements.

As your products change or as you introduce new products, you should amend your templates accordingly. You may use your completed templates to respond to agency inquiries regarding Section 508 compliance.

Until agencies develop their own methods of verifying Section 508 compliance, the Voluntary Product Accessibility Template is among the best ways of describing compliance to your federal government customers. Check it out.

Sheila Stark is a partner in the government contracts group of Piper Marbury Rudnick & Wolfe LLP in Washington. Her e-mail address is sheila.stark@piperrudnick.com.

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