A Change in the Procurement Landscape for Federal and State Entities Covered under Section 508
This article reprinted, with updates and modifications, from the June 2016 issue of Mealey’s™ Litigation Report: Cyber Tech & E-Commerce. Mealey’s is a subscription-based information provider and a division of LexisNexis. Copyright ©2016 by Hiram Kuykendall. Responses welcome.
On May 9, 2016, the Department of Justice (DOJ) issued a 122-question Supplemental Advance Notice of Proposed Rulemaking (SANPRM (PDF)). In summary:
The Department of Justice (Department) is considering revising the regulation implementing title II of the Americans with Disabilities Act (ADA or Act) in order to establish specific technical requirements to make accessible the services, programs, or activities State and local governments offer to the public via the Web.
This unexpected move is widely seen by the industry as the DOJ’s attempt to build a comprehensive position on Title II, which applies to state and local governments. This position will then be used as the framework for Title III, which affects public accommodations, and is slated for a 2018 release.
But government websites aren’t the only electronic public-sector products required to be accessible to people with disabilities. Section 508 of the Rehabilitation Act, while providing standards for federal government websites, also requires federal agencies to make their electronic and information technology (EIT) accessible to people with disabilities, simultaneously impacting the processes involved when they develop, procure, maintain, or use such technology. Other non-federal government entities also base their standards on the federal law.
[UPDATE: In January 2017, the U.S. Access Board updated accessibility requirements for those covered by Section 508, aligning website requirements to the internationally recognized WCAG 2.0 standards.]
Government Procurement Requirements and the Need to Improve VPAT Effectiveness
Shortcomings in Section 508 Accessibility Reporting
As scrutiny increases at both the state and federal level, there has been more discussion by public-sector procurement groups on the accessibility evaluation process. One area that receives frequent mention is the varying degree of accuracy regarding a product’s accessibility as attested to in a Voluntary Product Accessibility Template (VPAT). It is a common joke within the accessibility field that a VPAT is filled out by the sales and marketing group rather than by qualified accessibility specialists. While there have been few notable legal actions based solely on an inaccurate VPAT, many of these documents are provided as part of an official procurement contract and represent the company’s official claim to government as to the accessibility of their products. As government procurement departments become increasingly concerned and proficient in interpreting a VPAT, vendors are going to have to address the need to accurately assess and document a product’s accessibility capabilities.
What is a Voluntary Product Accessibility Template?
A VPAT is a document used by federal and state governments to gauge hardware, software, or online products and services conformance to Section 508 accessibility requirements during a procurement process. A VPAT reflects the accessibility features of the entire product and breaks down into the following areas:
- Section 1194.21 Software Applications and Operating Systems
- Section 1194.22 Web-based Internet Information and Applications
- Section 1194.23 Telecommunications Products
- Section 1194.24 Video and Multi-media Products
- Section 1194.25 Self-Contained, Closed Products
- Section 1194.26 Desktop and Portable Computers
- Section 1194.31 Functional Performance Criteria
- Section 1194.41 Information, Documentation and Support
Alternatives to the Traditional VPAT Approach
Historically, vendors of computer products were not adept at filling out a VPAT and the procurement office was not adept at interpreting the vendor’s response. For example, a VPAT may claim partial compliance or have vague response language. As such, procurement departments have had a difficult time using the document to gauge a product’s Section 508 accessibility compliance.
There have been some notable improvements such as the Government Product/Service Accessibility Template (GPAT) used by the General Service Administration (GSA) BuyAccessible program. The goal of the GPAT is to facilitate agencies’ needs for procuring accessible electronic and information technology by asking specific questions regarding a product or service. The key difference between a VPAT and GPAT is that the GPAT asks specific questions on the accessibility of desired features while the VPAT assesses the accessibility of all features regardless of need and scope. The result is hopefully a more informed procurement process and richer vendor responses.
Another notable change to the landscape centers around discussions of having knowledgeable accessibility specialists validate a VPAT through testing. The addition of product testing during the procurement phase obviously has cost and time implications, but increasingly procurement departments are looking to make better informed decisions, especially on highly visible public-facing products. By investing in testing, the procurement department can have an accessibility conversation during the procurement process rather than having a contract compliance conversation after the contract award.
Risks of Inaccurate VPAT Reporting
First, almost all vendors who have sold to the public sector have provided an official VPAT as part of the procurement process. In short, they already have a contractual risk if the VPAT was not completed correctly.
Next, vendors who are not proactively evaluating Section 508 accessibility compliance of their computer-based products and services may incur a market risk. As was witnessed during Y2K (when programmers were in high demand to address errors with technology products’ transition from a two-digit to four-digit year), market prices for specialists increase dramatically as demand increases. Already the rate for qualified accessibility specialists has risen dramatically over the last three years and is anticipated to increase. As testament to this, many of the questions asked in the SANPRM seek to understand the degree to which consultants are in use and the implications to government agencies.
And finally, for large products, the effort to bring a product into compliance may take years. Remember, accessibility is about making a product perceivable and usable by people with vision, hearing, mobility, and cognitive challenges. To bring a product into compliance with an accessibility standard such as WCAG 2.0 AA can be a significant investment.
Determining VPAT Accessibility Reporting Risk
An attorney wanting to quickly gauge the accessibility risk of a client who sells to the public may find that discovery process challenging. The following questions can provide some insight into the current state of an organization’s Section 508 accessibility compliance efforts—and potential risk.
- Has your company represented a product’s accessibility by providing a VPAT or GPAT as part of a procurement process?
- What department in the company filled the VPAT out?
- Does that department have the expertise to test for accessibility against either the existing Section 508 or WCAG 2.0 AA standard?
- If yes, how do you know the department has that expertise?
- How confident are you that your VPAT was completed correctly?
What Government Vendors Can Do Now
In summary, the VPAT process has not been the most effective tool for government to use to gauge the accessibility of a product. Public-sector procurement offices have lacked the expertise to understand and evaluate a vendor’s response and the vendor’s degree of accuracy varies greatly. However, the VPAT is part of an official government procurement process with all the seriousness of any official document provided. While we may still be two or more years away from having a solid accessibility benchmark, companies that delay developing a plan to address a product’s deficiencies may encounter inevitable market forces that will make remediation costlier and compliance more difficult.
For VPAT Assistance
The challenge of procuring technology that works for people who have vision, hearing, mobility, or cognitive challenges can seem a daunting task for both the public-sector organizations receiving goods and services and the private-sector businesses that provide them, particularly for those without accessibility experts on staff. Microassist has been a government-contracted vendor for more than 20 years providing accessible IT services, including elearning development, website development, and application development. This experience can ensure that your organization is gauging accessibility compliance accurately, no matter which side of the VPAT you’re on. Learn more about Microassist accessibility services for Government Agencies and Vendors or contact us directly to discuss your situation.