GOVERNMENT CONTRACTS GROUP ENEWS – JULY 8, 2004
In a previous E-Alert dated June 22, 2001, we analyzed the issues and problems surrounding the
(then) recently implemented requirement that all electronic and information technology (EIT) products and services purchased for use by the Federal Government conform to the compliance standards for
Section 508 of the Rehabilitation Act of 1973 (Section 508). Section 508 continues to create challenges for government agencies and contractors alike, as illustrated by a recent bid protest involving Section
508, the first of its kind. This E-Alert summarizes the decision and, in light of the success achieved by the protester, reviews the Section 508 standards and provides suggestions to contractors for managing and reducing exposure under Section 508.
THE COURTSMART DECISION
The General Accounting Office ("GAO") recently issued the first bid protest decision involving successful allegations that a contract award was flawed due to the winning bidder's non-compliance with Section 508. In CourtSmart Digital Systems, Inc., GAO found that award of a Federal Supply
Schedule (FSS) order was improper where the winning bidder failed to propose a product that complied with the Section 508 standards. The agency's RFQ emphasized its requirement for Section 508 compliance by providing that "meeting the Section 508 criteria" was necessary to establish technical acceptability. In sustaining the protest, GAO held that "[t]he terms of the RFQ plainly do not permit the agency to ignore the section 508 evaluation criterion in determining whether a proposal was technically acceptable, as it did here."
REVIEW OF THE SECTION 508 RULES AND REQUIREMENTS
Section 508 mandates that EIT products and services developed, procured, maintained or used by the
Federal Government must be accessible to people with disabilities. The Section 508 standards set forth separate compliance requirements for the following categories of EIT items:
1.
software applications and operating systems;
2.
web-based intranet and internet information and applications;
3.
telecommunications products;
4.
video and multimedia products; and
5.
self-contained closed products and desktop portable computers.
6.
Although there are exceptions to meeting Section 508 requirements, these are limited.
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PROVIDING SECTION 508 INFORMATION TO CUSTOMERS
While Section 508 imposes upon Federal agencies the burden of procuring Section 508-compliant EIT items, there has been some attempt to transfer this burden to the agencies' suppliers. Initially, some agencies requested contractors to certify that their products were Section 508 compliant. Not surprisingly, this was met with strong resistance by contractors.
Now, most agencies and contractors rely upon "Voluntary Product Accessibility Templates," or VPATs, jointly developed by the government and industry. The VPATs list a variety of technical criteria based on the Access Board standards, and permit suppliers to identify and explain how they meet the criteria rather than making a "blanket" or "Yes/No" certification of compliance. The result is a more balanced approach which permits suppliers to provide a detailed, item-specific description of product accessibility.
While VPATs serve as a workable tool, contractors still must be cautious. Overly broad or inaccurate descriptions of product compliance contained in a Section 508 VPAT could subject the contractor to bid protests by competing contractors, and could also expose the contractor to statutory penalties, most notably the civil False Claims Act. In addition, customers could assert that contractor statements in a
VPAT constitute product warranties. Contractors can reduce potential problems and exposure by following a few simple guidelines:
1.
Make sure the information provided in a specific VPAT response clearly indicates that it applies only to a specific criterion;
2.
Limit the information provided in a VPAT to the specific procurement for which it is being provided and a specific time period;
3.
Define terms used in your VPAT response if those definitions will help clarify responses;
4.
Avoid suggesting that the VPAT provides any product warranties; and
5.
Use disclaimers where appropriate.
Now that there has been a successful Section 508 bid protest, disappointed bidders may be more inclined to challenge contract awards on this basis. Companies should review their current product and service item lists and confirm that all EIT items supplied to the Federal government meet the relevant
Section 508 standards. In addition, when submitting a VPAT, these companies should carefully craft the information provided to avoid creating additional unintended obligations or liabilities.
If you have any questions, please contact any attorney in the Preston Gates government contracts group at www.prestongates.com.
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