Accessibility regs leave many in fog

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.