IT Accessibility under §508: Legal Issues & Procurement

1. IT Accessibility under §508:Legal Issues & Procurement John Cornell GSA Office of General Counsel

2. Disclaimer • The law is the law. • The regulations are the regulations.

3. Disclaimer • The law is the law. • The regulations are the regulations. • Any opinions regarding the law or the regulations are my own, and do not reflect the official position of GSA, the Office of General Counsel, or my mother.

4. Interlocking Parts: • To understand §508, you need to start with others laws: • Americans with Disabilities Act • § 504 of the Rehabilitation Act

5. Interlocking Parts: • Americans with Disabilities Act • Discrimination on the basis of disability; • Regarding - goods, services, facilities, privileges, advantages or accommodations; • By someone who - owns, lease or operates; • A place of public accommodation. • § 504 of the Rehabilitation Act • Exclusion (because of disability) • from program or activity • receiving federal funding

6. The double focus of § 508: • Employees • Members of the public

7. The Rules: • The Statute: 29 USC § 794(d)

8. The Rules: • The Statute: 29 USC § 794(d) • It applies when an agency an agency DEVELOPS, PROCURES, MAINTAINS or USES electronic and information technology.

9. The Rules: • The Technical Standard: 36 CFR § 1194 • Four Subparts • A (purpose, definitions) • B (technical standards) • C (functional performance criteria) • D (information, documentation, support)

10. The Rules: • The FAR Implementation: • 2.202 Definition of EIT • 7.103 Acquisition Planning • 10.001 Market Research • 11.002 Agency Needs • 12.202 Commercial Item • 39.2 Acquisition of IT

11. The FAR implementation • 39.2 Acquisition of IT • Cornell’s paraphrase: Buy Accessible – unless • Not available 39.203(c)(1) and (2) or; • FAR Exceptions apply 39.204 • Micro-purchase (expired) • National Security • Acquired by contractor incidental to contract • “Back office” • Undue Burden

12. Traps for the unwary: • § 508 applies to documentation as well as the products or services provided.

13. Traps for the unwary: • Legacy Systems & Spare Parts - • Usually an issue of requirement & commercial non-availability

14. Traps for the unwary: • Just because it’s on a GSA schedule doesn’t mean that you can buy it! • Task Orders placed against Schedules and GWACs must procure accessible EIT unless an exception applies (commercial non-availability, national defense, back office, undue burden)

15. Traps for the unwary: • National Defense ≠ Law Enforcement

16. Traps for the unwary: • Best Value • Not allowed to trade off accessibility with price. • Between equally accessible solutions, trade off is required. • Price can amount to Undue Burden

17. What is Best Value? • A radical alternative to “technically acceptable, low price.”

18. “Mr. Shepherd – what were you thinking when you were sitting on top of the Redstone missile?” Picture of Alan Shepherd awaiting launch.

19. “What was I thinking? That every part of this ship was built by the low bidder.” Picture of Alan Shepherd awaiting launch

20. Best Value & Accessibility • “Best value” is a method of acquisition that performs a trade-off between technical merit and price. • With “best value” an agency can choose a more expensive product or service if it can justify the price premium.

21. Best Value exercises: • Common assumptions: • 100 is IGE for cost; • technical merit and past performance combined is more important than price, but as merit becomes closer, price becomes more important; • Past performance is rated adequate (just barely), meets standard, or exceeds standard; • For purposes of this evaluation, there is no known disability among the agency’s employees or members of the public that need special consideration.

22. Scenario 1 • Vendor Past Performance Price TechnicalScore 508 • A Meets 100 100 Full • B Meets 80 110 Partial 3/5 • C Meets 110 115 Partial 4/5 • D Meets 118 110 Full

23. Scenario 2 • Vendor Past Performance Price Technical Score 508 • E Meets 80 100 Not • F Meets 250 100 Full • G Meets 110 105 4/5 • H Meets 119 95 4/5 • I Meets 105 105 3/5 • J Meets 111 101 3/5 • K Meets 95 100 2/5

24. Scenario 3 • Vendor Past Performance Price Technical Score 508 • L Meets 80 95 Not • M Meets 90 100 Partial 3/5 • N Meets 100 100 Partial 3/5 • O Meets 110 90 Partial 2/5 • P Meets 120 120 Partial 2/5 • Q Meets 110 105 Partial 3/5 • R Meets 220 120 Partial 4/5 • S Exceeds 115 120 Partial 3/5

25. Practice Points • RFP should identify which section(s) of the technical standards apply to the acquisition: • Subpart B - technical standards • Subpart C - functional performance criteria • Pricing of documentation should be addressed (Subpart D)

26. Real live cases concerning IT accessibility: • ADA & § 504: • Access Now v Southwest Airlines • Martin v MARTA • NFB v Target (note: heavy reliance on state law) • § 508: • NFB v SBA (administrative complaint) • NFB v SSA (administrative complaint) • NFB v DofEd (administrative complaint)

27. Bid Protests at GAO • Dell Marketing LP, B-400784, January 27, 2009. • CourtSmart Digital Systems, Inc., B-292995.2, February 13, 2004.

28. Questions? • Email: john.cornell@gsa.gov • Phone: 202-501-1598