While section 508 applies whenever federal executive branch agencies "procure, develop, maintain, or use" electronic and information technology (EIT), its enforcement mechanisms apply only to EIT "procured" on or after August 7, 2000. Procurement likely to become the focus for implementation of section 508 for most agencies.(3) Most agencies are subject to the Federal Acquisition Regulation (FAR). Section 508 requires the FAR Council to revise the FAR to incorporate the Access Board's Section 508 Standards. 29 U.S.C. § 794d(a)(3). Each agency that has procurement regulations, policies, and directives is also required to revise those documents. Id.
With a few exceptions, most agencies are not adequately incorporating disability accessibility issues into their mainstream procurement policies and practices. Agencies will have to significantly change these policies and practices to comply with section 508. This Report includes sample contract language and procurement practices upon which agencies should draw when determining their next steps.
Findings(4)5a. Are your agency's acquisitions subject to the Federal Acquisition Regulation (FAR)?
Question 5a of the Component Questionnaire asked whether agencies are subject to the Federal Acquisition Regulation (FAR) or use it as guidance for developing their procurement policies and procedures. The number of components following the FAR is significant because within 6 months of the Access Board's issuance of Standards for accessible EIT, the Federal Acquisition Regulatory Council (FAR Council) will incorporate these Standards into the FAR. 29 U.S.C. § 794d. Accordingly, new procurements by agencies that are subject to the FAR will automatically be subject to the new 508 Standards under the FAR's own terms. All agencies -- whether or not they are subject to the FAR -- are instructed by statute to "revise the federal procurement policies and directives under the control of the department or agency to incorporate those standards." Id. Agencies which are not subject to the FAR will have more work to do to incorporate the Access Board's Section 508 Standards into their procurement policies and directives.
Throughout the development of the Section 508 Standards, the Access Board has been consulting with the FAR Council to make the incorporation of these Standards into the FAR as smooth as possible.
A sizable majority of agencies in all size categories are subject to the FAR. Accordingly, most agencies will not have to amend their acquisition regulations when the Access Board's Section 508 Standards become final; the FAR Council will revise the FAR. Agencies that are not subject to the FAR include, for example, the U.S. Postal Service and smaller agencies such as the Japan-U.S. Friendship Commission. These agencies, however, should follow the lead of the FAR Council and begin consulting with the Access Board prior to the release of final Standards to implement section 508. The Access Board has expressed its willingness to help agencies not subject to the FAR and such agencies should seek out the Board's assistance at their earliest opportunity.5b. If your agency's acquisitions follow the FAR (formally or informally), has your component established a strategic plan for meeting its electronic and information technology needs -- including, among other things, accommodations for individuals with disabilities -- pursuant to OMB Circular A-130, as required by section 39.101 of the FAR?
Even prior to the 1998 amendments strengthening section 508 of the Rehabilitation Act, FAR regulations required agencies to review the accessibility of information technology products prior to their acquisition. FAR § 39.101 requires agencies to comply with OMB Circular A-130 (revised Feb. 8, 1996), which states in relevant part that agencies shall "[a]cquire information technology in a manner that considers the need for accommodations of accessibility for individuals with disabilities to the extent that needs for such access exist." OMB Circular A-130, sec. 8b(5)(d). Appendix IV of OMB Circular A-130 (Analysis of Key Sections) further explains that "[a]gencies should ensure that acquisitions for new information technology comply with GSA regulations concerning information technology accessibility for individuals with disabilities [41 C.F.R. 201-20.103-7]" (bracketed citation in the original). The cited regulation is a section of the Federal Information Resources Management Regulations (FIRMR), which was repealed in light of the Brooks Act in 1996. See 61 FR 39359 (July 29, 1996), amendment 9 to the FIRMR, (repeal effective August 8, 1996). While the FIRMR provision cited by OMB has been repealed, agencies are still required by the FAR to comply with the general language of OMB Circular A-130. 5 C.F.R. § 1310.5 (listing OMB Circular A-130 as among those that remain in effect).
Despite this history, very few agencies of any size maintain strategic plans that include reviewing the accessibility of EIT products before they are acquired. Some agencies are developing or reviewing plans to integrate EIT accessibility into existing strategic plans, or plan to do so in the near future. Almost half of the agencies, however, continue to address EIT accessibility on an ad hoc basis and have no plans to change this practice.1. Does your component use any disability-related language in contracts for electronic and information technology?
Question 1 asked about the frequency with which agencies incorporate disability-related language into the mainstream procurement contracts for EIT. Few agencies do so on a routine basis. While many agencies indicated that they "always" or "often" use disability-related language, a review of the sample language submitted by the agencies reveals that most of it relates to employment discrimination, non-discrimination on the basis of disability by agency contractors, or preferences for disabled Veterans, rather than EIT accessibility. Another problem appears to be a lack of consistency with which some of the better provisions are employed, even within the agencies that authored them. By far the biggest problem, however, is that most agencies in all size categories never incorporate EIT accessibility clauses into their procurement contracts.
A close examination of the data reveals a few patterns regarding the kind of agencies that use strong language specifically targeting the accessibility of EIT products. Not surprisingly, many of the strongest provisions were drafted by agencies whose responsibilities include advancing the civil rights of persons with disabilities, such as the Architectural and Transportation Barriers Compliance Board (Access Board),(5) the Committee for Purchase from People Who Are Blind or Severely Disabled (Committee for Purchase),(6) and the Federal Communications Commission (using language similar to that used by the Committee for Purchase). Other agencies that showed leadership in this area are those that have fully integrated assistive technology programs into their mainstream procurement and IT infrastructure, such as the Department of Education.(7) Still other agencies with no particular mission-related focus on disability issues, however, such as the Coast Guard, also use strong language.(8)D
Some agencies, especially many smaller agencies, rely on GSA schedules for their procurement. Some of these agencies indicated that they assume that GSA routinely conducts an analysis of relevant criteria, such as the degree to which EIT incorporates accessibility features.2. How does your component ensure that acquisition of electronic and information technologies will be conducted in a manner that assures users with disabilities will have equal access to and use of the same data bases, operating systems, application programs, and telecommunication systems as their nondisabled colleagues?
Question 2 asked components to identify how they ensured that EIT acquisition would provide people with disabilities equal access to and use of the same data bases, operating systems, software applications, and telecommunications systems as their nondisabled colleagues. One way to satisfy this goal is to integrate disability accessibility evaluations into the acquisition processes already established within agencies' existing Information Technology offices (these offices were generally established to satisfy the requirements of the Clinger-Cohen Act of 1996, 40 U.S.C. §§ 1400 et seq.). Question 2 was designed to determine whether agencies had already achieved this kind of integration prior to the full implementation of section 508, and, of those that had not, whether they had any current plans to do so.
Relatively few agencies have already assigned their IT offices to address disability accessibility issues. Indeed, the vast majority of agencies do not have any set method of ensuring that their EIT is accessible; accessibility is addressed on an ad hoc basis, if at all. The ad hoc approach, which may have worked well in the past when technology was not as complicated, is less likely to result in successfully accommodating persons with disabilities as technology grows in sophistication and it becomes more difficult -- indeed, impossible at times -- to retrofit the technology to work with assistive devices used by persons with disabilities, such as screen readers. Section 508 is likely to improve significantly the extent to which agencies integrate accessibility issues into mainstream technology procurement, especially as the section 508 implementing Standards are integrated into the FAR and other acquisition regulations. Also, unlike sections 501 and 504 of the Rehabilitation Act which (with a few exceptions in limited circumstances) generally do not require agencies to provide reasonable accommodations except upon request, section 508 requires an agency to consider accessibility every time it "develops, procures, maintains, or uses" electronic or information technology.(9)3. How does your component identify the requirements of users with disabilities in order to achieve integrated solutions during acquisition planning and procurement?
EIT accessibility issues are often complex, involving an interplay between the use for which an EIT product or system is to be employed and the strengths and weaknesses, abilities and disabilities of its users. Agencies that routinely do a better job of providing accommodations to individuals with disabilities are generally those which involve users with disabilities in the earliest stages of EIT acquisition.
Question 3 was designed to measure the degree to which federal agencies and departments have been involving users with disabilities in the earliest stages of EIT procurement, prior to the full implementation of section 508. The data suggests that relatively few agencies meet this goal. Agencies already integrating persons with disabilities into the procurement process tend to be those which showed high degrees of accessibility on their section 508 self-evaluations as a whole.
Several agencies commented that they did not have employees with disabilities -- nor access to members of the public with disabilities -- to assist them during EIT planning, acquisition, or testing. This lack of employees with disabilities may account for the relatively high percentages of agencies that only consult with users with disabilities regarding EIT accessibility on an ad hoc basis, if at all. On the other hand, some of these agencies indicated in their overall agency evaluations that although they involve employees with disabilities in procurement processes on an ad hoc basis, the involvement is real and meaningful when it does occur. In one case, the Social Security Administration noted that, "[i]n the past, employees with disabilities have had opportunities to define requirements and to be part of technical evaluation teams."
A few components indicated that they are exploring alternative strategies instead of involving users with disabilities in the early stages of procurement. Some of these alternatives include seeking advice from other components within the same agency or other agencies, surveying users of disabilities prior to procurement, and relying on GSA's compliance with Section 508 Standards in its existing contracts.4. Does your component maintain a list of programs that provide training for management, procurement, and technical personnel on how to meet the accessibility needs of end users with disabilities and the many methods available to meet those requirements?
Only a very few components of any size maintain lists of EIT accessibility training resources for management, procurement, and technical personnel on how to meet the accessibility needs of end users with disabilities. Instead, most agencies identify training resources only on an 'as-needed' basis.D
Users with disabilities often fault their agencies for not providing adequate training. Trainers of mainstream EIT rarely understand the accessibility features built into their own products, much less how these products work with assistive technologies. Unless management, procurement, and technical personnel -- and ultimately end-users with disabilities -- are given adequate training, accessibility features will be underutilized. Consequently, users with disabilities will be unable to maximize their job performance and the employing agency will not have use of their full talents.D
Federal agencies should assign a high priority to the development and wide distribution of information regarding the availability of appropriate training resources. Whenever agencies procure training from a vendor or contractor, they should inquire about the trainers' level of expertise in disability accessibility issues. Mechanisms should be set up to facilitate inter-agency information-sharing.
For increased coordination and cooperation to be efficient and effective, the Department recommends the following:
1. The President should issue a Technology Accessibility Coordination Directive to:
a. Revitalize the Interagency Disability Coordinating Council (IDCC), as set forth in 29 U.S.C. § 794c, with the Attorney General as Chair, consistent with Executive Order 12250, 29 U.S.C. § 2000d-1;(10)
b. Direct certain Federal agencies (including the General Services Administration, the Department of Defense, and the Department of Transportation), and invite other agencies (including the Federal Communications Commission and the U.S. Postal Service) to participate as nonstatutory members in the IDCC; and
c. Direct the Office of Personnel Management, in consultation with the Department of Justice, the EEOC, and the Access Board, to issue guidance to agencies clarifying the relationship among sections 501, 504, and 508 of the Rehabilitation Act.
2. The Universal Access Working Group (UAWG).(11) Each cabinet level, large, and mid-sized agency, along with representatives from small and very small agencies, should join the inter-agency UAWG. See General Appendix A (Categories of Agencies). The UAWG has been an instrumental force in advocating for accessible technology throughout the Federal Government and private sector. Its relevance would be increased if its members were designated as their agencies' representatives, rather than participating as individual volunteers, and if more agencies were involved.
3. 508 Coordinators. Each agency should designate Coordinators for purposes of complying with the substantive and reporting requirements of section 508. Agencies should either select multiple Coordinators -- to represent each of the agency's information technology, telecommunications, disability accommodations, and other relevant sectors -- or a single representative to act as an intermediary among these sectors. The Section 508 Coordinators of cabinet level, large, and mid-sized agencies, along with representatives from small and very small agencies, should attend UAWG meetings as representatives of their agencies. See General Appendix A (Categories of Agencies). A list of all Section 508 Coordinators should be developed and distributed among all agencies. The Section 508 Coordinators should meet regularly with agencies' Section 504 Coordinators.
1. The General Services Administration (GSA) and the Access Board, which have statutory authority for providing technical assistance under section 508, should share in the following responsibilities:
a. Information Hotline. An information hotline should be established for federal agencies, persons with disabilities, and the IT industry. The Department of Justice's Americans with Disabilities Act Information Line should serve as a model.
b. Technical Support Center. An interagency technical assistance support center should be established where agencies can receive specific, hands-on assistance tailored to their individual concerns. The Job Accommodation Network of the President's Committee on Employment of Persons with Disabilities at the Department of Labor should serve as a model.
c. Internet Resources. An Internet message board and listserv (an e-mail mailing list for discussion among a group of users) should be maintained where knowledgeable agencies can post solutions to particular problems and where agencies trying to address EIT accessibility issues can post questions. Agencies that have developed evaluation criteria, techniques, and reports of existing EIT products should make these available to other agencies using these Internet resources [recommendation of the Social Security Administration].
2. GSA should do the following:
a. Accessible Products Clearinghouse. GSA should be directed to act as a clearinghouse for information regarding accessible EIT products. Any manufacturer's information regarding accessibility of EIT products should be made available to all federal contract officers and their technical representatives through this Clearinghouse. This program should allow manufacturers to certify that their products meet the 508 standards. The Energy Star and Y2K programs may provide models on which to build.
b. Training Clearinghouse. A clearinghouse for accessible training resources -- and training regarding accessibility -- for management, IT and procurement personnel, and end users with disabilities should be established. Vendor information regarding accessible training opportunities should be made available to all agencies through this Clearinghouse.
3. Mechanism for Reliable Information. The Federal Government, in partnership with the private sector, should explore the best mechanism to provide reliable information (including information regarding the comparative usability of EIT products for people with different types of disabilities) to manufacturers, vendors, and procurement officials.
Other General Implementation Recommendations
1. Alternative Dispute Resolution. Each agency should establish voluntary alternative dispute resolution mechanisms and make them available to members of the public and employees with disabilities as a means to resolve allegations that an agency is violating section 508.
2. Other Government Certification Programs. Government programs which test and certify software for federal use (such as the JFMIP certification of financial management applications) should incorporate section 508's accessibility requirements into their certification processes [recommendation of the Equal Employment Opportunity Commission].
3. Voluntary Advisory Committees of Persons with Disabilities. Each cabinet level, large, and mid-sized agency that has not already done so should form an intra-agency voluntary advisory committee of persons with disabilities. See General Appendix A (Categories of Agencies). Small and very small agencies are encouraged to form joint inter-agency committees. These committees can assist agencies in recognizing accessibility issues, finding cost-effective solutions, and accomplishing testing. Participation by people with disabilities in all such committees should be fully voluntary. The Equal Employment Opportunity Commission and the Office of Personnel Management should collaboratively publish guidance to assist agencies with setting up these committees.
4. Community Partnerships. Each agency is encouraged to form partnerships with disability rights groups. These partnerships can assist agencies with recognizing accessibility issues, finding solutions, and accomplishing testing.
The Department recommends agencies take the following steps to improve their procurement policies and practices:
1. Specific Language for RFPs and Contracts. Each agency should incorporate appropriate procurement language that specifically addresses accessibility for persons with disabilities in all EIT RFP's (requests for proposals) and contracts to be in compliance with the Federal Acquisition Regulation or other applicable federal procurement regulation.
2. Agencies Not Subject to the Federal Acquisition Regulation (FAR). Although most agencies are covered by the FAR, any that is not should consult with the Access Board without delay to ensure that its procurement regulations are appropriately modified to incorporate the Section 508 Standards when they are final.
3. Discontinue Ad Hoc Approach. Each agency that has not already done so should develop systematic ways to ensure that it is procuring accessible EIT products, rather than relying on an ad hoc approach. This method will increase the interoperability of different types of technology and is especially necessary as technology increases in complexity. Each agency should review all of its procurement practices and policies, formal and informal, to determine whether accessibility issues are appropriately addressed.
1. This document is available on the Department of Justice's section 508 Web site (www.usdoj.gov/crt/508). People with disabilities may request copies in Braille, large print, or on computer disk by calling 1-800-514-0301 (voice) or 1-800-514-0383 (TTY).
2. The data underlying the analysis given below appears at Procurement Appendix A. Workforce statistics for weighing the procurement data are set forth in Procurement Appendix B.
3. For the purposes of analyzing the procurement data, the Department has divided agencies into the following categories:
4. Due to the importance of the FAR as a vehicle for compliance with section 508, components' responses to Question 5a will be discussed first.
5. "With the Board's commitment to the accessibility of the built environment and to electronic and information technology, its own office computer system must be accessible to its entire staff. The Board seeks a contractor that shares this philosophy and is experienced with the use of such technology . . . The Management Approach portion of the technical presentation shall present the Offeror's overall methodology for managing the full range [of] services to be provided under the contract. Areas to be addressed include, at a minimum: Overall approach to meeting the information technology accessibility needs of people with disabilities, including the extent to which the Offeror's solution complies with the requirements for accessible technology as set forth under section 508 of the Rehabilitation Act Amendments of 1998; Experience with assistive and adaptive technologies."
6. "The Committee considers universal accessibility to information a priority for all employees, including individuals with disabilities. The Committee has adopted the U.S. Department of Education Requirements for Accessible Software Design to support its obligation under Sections 504 and 508 of the Rehabilitation Act of 1973, as amended, to ensure the accessibility of its programs and activities to individuals with disabilities, specifically its obligation to acquire accessible electronic and information technology. When selecting or accepting computer hardware and software applications, the Committee will evaluate the hardware and software to determine its accessibility by users with disabilities according to the version of the U.S. Department of Education's Requirements for Accessible Software Design that is current at the time of contract award."
7. The Department of Education has developed comprehensive contract language to incorporate its Requirements for Accessible Software Design in EIT contracts for procurement or development of software. Procurement Appendix C.
8. The Coast Guard's contract for standard desktop workstations includes 3 pages on accessibility requirements. The following is a synopsis of these requirements, as described by the Coast Guard:
Contractor shall furnish system enhancements as described below to ensure that accessibility requirements are met. System enhancements for hardware and software shall support minimum capabilities as outlined and shall be fully compatible with proposed desktop workstations and software including GUI, applications, and network software. Functional specifications include many options for keyboard enhancements, alternate input devices, voice input systems, large print output displays, speech output systems, and Braille output systems.
9. Not all responsibilities under sections 501 and 504 of the Rehabilitation Act can be addressed on an ad hoc basis.
10. Revitalization of the IDCC will enable it to function as a central coordination point to eliminate duplication of efforts and/or inconsistencies among agencies and inter-agency groups.
11. The Universal Access Working Group is part of the Federal Information Services Applications Council of the National Science and Technology Council's Committee on Computing, Information, and Communications. It is coordinated through the Center for IT Accommodation in the Office of Governmentwide Policy at the General Services Administration.
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