PERSPECTIVES

Clarifying Section 508 could ease impact on procurement

Christopher J. Dorobek

Few people disagree with the goals of Section 508, the new rules requiring agencies to buy technology that can be used by the disabled.

Nor is there much doubt that the rules, part of the Rehabilitation Act Amendments of 1998, will have significant ramifications on the way agencies buy information technology. But as with other such changes, the exact nature of those ramifications is still unclear. Even the most noble legislation can have unforeseen consequences.

Rock and rule

The draft of Section 508 rules published by the Access Board earlier this year is important, but many vendors are just as concerned about the effects those rules could have on the Federal Acquisition Regulation.

'The Access Board standards are less important'or less directly relevant'than what happens with the FAR,' said Jonathan S. Aronie, an attorney with the Washington law firm of Fried, Frank, Harris, Shriver & Jacobson.

The FAR changes will dictate how the Access Board rules are carried out.

A likely result will be more protests of bids and contract awards. It is not hard to imagine a vendor protesting an award by arguing that the winner did not adequately meet the Section 508 requirements. You also can expect to see pre-award protests about whether an agency's contract should fall under the Section 508 rules at all.

The FAR Council should act preemptively to make the rules more clear. For example, the Section 508 rules say the agencies must make IT accessible where practicable. But how will practicable be defined?

The FAR changes also will address how the Section 508 rules will be enforced, something that should be clear up front.

There is a broader concern as well about the impact Section 508 could have on procurement reform.

The general push has been to have the government mirror the commercial market and move away from government-only requirements.

Some procurement experts have said the Section 508 requirements, which establish government standards not seen in the commercial world, would constitute a step backward if the requirements are overly onerous.

But advocates for the disabled argue that the Section 508 rules would set an example. The size of the government market, they say, will make IT vendors design products that consider disabled users, and the products, rather than existing in a government-only software market, will find their way into the general marketplace.

Something for all

The advocates point to such technical innovations as closed captioning, which started as a government requirement and is now a standard feature in television sets. They note that the relatively inexpensive add-on is widely used in bars and gyms.

The big concern is the great unknown. The rules are fraught with potential trouble spots and, while the potential benefit is real, both agencies and vendors worry about a briar patch of protests, user lawsuits and contract changes.

Anything the FAR Council can do now to help clarify the rules will defuse at least some of those potential problems.

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