Section 508 Compliance Supplementary Language

[Guardian]

Our agency recently awarded a brand name contract for web-based software.  Our solicitation included a provision for Information and Communication Technology Accessibility that required the following:

The Section 508 accessibility standards applicable to this solicitation are identified in the Statement of Work/Performance Work Statement. In order to facilitate the Government’s evaluation to determine whether ICT products and services proposed meet applicable Section 508 accessibility standards, offerors must prepare an Accessibility Conformance Report (ACR), using the latest version of the Voluntary Product Assessment Template (VPAT), in accordance with its completion instructions and Section 508 requirements, found at https://www.itic.org/policy/accessibility/vpat.

Following its evaluation, the agency applied the "Best Meets Exception" to the brand name item selected for award.  The contractor has since requested the Government modify the contract (post-award) to include the following language:

The [Redacted] Accessibility Standard [the foregoing is specified as the software publisher’s company standard] governs the conformance of [Redacted] products, documentation, training, and support materials consistent with level AA of the Web Content Accessibility Guidelines version 2.1 (WCAG 2.1) as defined by the World Wide Web Consortium, and as included by reference in the Revised Section 508 Information and Communication Technology Standards. The extent to which [Redacted] proposed solution conforms with WCAG 2.1 AA varies by product. Accessibility conformance reports for [Redacted] products are available on the [Redacted] Disability Support Center at [Redacted]. Those conformance reports use the Voluntary Product Accessibility Template® (VPAT) as developed by the Information Technology Industry Council. Executive Information Systems' and its subcontractor, [Redacted], sole responsibility with respect to Section 508 accessibility standards under the contract, is to ensure the resulting products furnished by [Redacted] meets accessibility conformance per the reports for [Redacted] products. The Section 508 accessibility requirements apply to the extent indicated via the products’ VPATs as applicable to the contract.

My question is as follows:

If the contract already includes ICT Accessibility requirements, which align with Section 508 as a federal law, then why should the Government agree to incorporatre supplementary language provided by the contractor?  The language requested for incorporation by the contractor could run afoul of the specific language in the federal law.  Their language includes a link to their company standard for accessibility, which is subject to change at any time unilaterally without the Government's input or approval.  Even if the Government agreed to include this supplmentary language concerning accessibility, if it contravenes the requirments set forth by a federal statute intended to assist disabled people, then what force and effect would it have?

[Don Mansfield]

37 minutes ago, Guardian said:

If the contract already includes ICT Accessibility requirements, which align with Section 508 as a federal law, then why should the Government agree to incorporatre supplementary language provided by the contractor?

Seems like a good question for the contractor.

38 minutes ago, Guardian said:

Even if the Government agreed to include this supplmentary language concerning accessibility, if it contravenes the requirments set forth by a federal statute intended to assist disabled people, then what force and effect would it have?

Maybe none. It could also be a deviation from the FAR. I would get a legal opinion.

It would be interesting to see what the contractor would say if you proposed adding something like: "Nothing in this supplementary language shall be read to excuse the contractor's obligations stated elsewhere in this contract. In the case of a conflict between this language and any other term of this contract, the other term shall take precedence." You'd probably find out what they are trying to protect themself against.

[C Culham]

5 hours ago, Guardian said:

Our agency recently awarded a brand name contract for web-based software.

I would suggest that you seek agency guidance from your 508 gurus (including legal counsel).  I think there is some homework to do and as you do it I think the following will come into play.

508 is a law and WCAG are guidelines.  However as I understand 508 incorporated the industry standard of WCAG in a 2018 refresh.   In question might be the language they suggest but in the end it would appear that both 508 and WCAG go hand in glove to meet contractor compliance.    Here is a website for you to use in your further research.

https://www.section508.gov/blog/accessibility-news-the-section-508-Update/ 

 

[Neil Roberts]

On 10/8/2024 at 8:34 AM, Guardian said:

If the contract already includes ICT Accessibility requirements, which align with Section 508 as a federal law, then why should the Government agree to incorporate supplementary language provided by the contractor?

My take is the Government shouldn't. They are trying to get the government to agree with how they comply with the law and the requirements of the contract.

Edited October 9, 2024 by Neil Roberts
fast finger

[formerfed]

Ask the company what other agencies bought their software.  Check with them too.

[C Culham]

Guardian has kind of disappeared.  I continue to follow the comments and these thoughts occurred to me.   

The 508 compliance requirements are stated in the SOW/PWS not in contract clauses, at least by my read.   So, if you will, the agency invented the wording in the contract and that wording has not been provided in this thread.  Only the contractors proposed wording has been provided.  Additionally as I previously provided WCAG has been woven in to the 508 statute by my read (see my previous post).   Ergo it could be that an experienced contractor that has been following WCAG, and dare I say 508 as well, is an expert,, maybe even more of an expert than the agency that developed the wording.   Afterall is that not in part why the government contracts with entities, for their expertise?

All said I am not as quick as some to suggest that the contractor is trying to put something over on the government and in the end in may be more of word game so that the agency acknowledges WCAG is, as I noted before, hand and glove with 508.  I would agree doing post contract award is problemmatic as I would have hoped that the contractor, if a negotiated contract, would have brought the issue up pre-award.  But then again I am very familiar with the fact that in some cases the government takes the position that nothing is negotiable by word in the solicitation or by action during negotiations.

Maybe Guardian will weigh in at some point here, or in the "What Happened" topic area with regard to the outcome.

[Guardian]

On 10/10/2024 at 9:52 AM, C Culham said:

So, if you will, the agency invented the wording in the contract and that wording has not been provided in this thread.

The more I investigate this, the more I realize that one of the larger points of contention seems to be that the agency clause we insert every time, states that "[t]he Section 508 accessibility standards applicable to this solicitation are identified in the Statement of Work/Performance Work Statement." Recently, the agency provided us boilerplate language for our SOWs/PWSs that includes the 508 requirements in their totality as if everything was applicable.  There is a simplified tool in the following link (Accessibility Requirements Tool (ART) (section508.gov), which will generate the solicitation text for use based on whether we select one of two or both options, ICT products and ICT services.  I spoke to our business unit this morning and they indicated that our policy office would like to include in our requirements statements every available functionality listed in the ART and let the offeror decide what is applicable.  The main issue I have with this approach is that our agency's clause plainly states that the Government will identify the applicable standards in the SOW/PWS.  Moreover, doesn't the law require the vendor to meet accessiblity standards if their product is a certain kind of item, barring documented exemptions?

I got to thinking, if we have a results based requirements statement, i.e., get us to this exact outcome, then wouldn't it be appropriate for the offeror to tell us what ICT might best help us reach that end, for instances, a web-based portal, cloud-based solution, certain hardware installed on-prem, specific support?  Obviously, the law was revised in 2018 to align with the WCAG because the former was not so clear.  I used to work with Robert Baker, but he is retired from Government and with his departure we lost a consummate 508 expert.  It's been my experience that even when you seek assistance from fundamental agencies such as GSA, it's difficult to find a good resource who can guide you through the process and exhibits a real understanding for the law's many complexities (and ambiguities).

I agree with Carl that for a large software developer with many Government contracts and a devoted 508 accessibility office, they well could understand more about it than the agency.  I think it's safe to say that they would understand more about it technically.  Unfortunately, my agency has no 508 compliance expert.  I drew attention to it because we were merely going through the motions.  Before, they had thrown it on the desks of our records management office who were not requesting VPATs or doing any testing.  All the 508 forms were coming over the same, which was, stating that the solution was expected to fully conform.  I asked an old colleague if his agency still had a knowledgeable 508 person as they did when I worked there.  He questioned why I even care about this in the first place.  I think I care so much because it is a law and I have always been an advocate for the disabled community.  One of the reasons it has taken me a few days to follow up with a response is because I have been travelling between states taking care of disabled parents and in-laws.

[Neil Roberts]

On 10/8/2024 at 8:34 AM, Guardian said:

Our agency recently awarded a brand name contract for web-based software

Is there an enforceable contract or not? Does this Government contract award require written acceptance by the Seller or its commencement of performance in order for it to be an enforccable contract? If the contract is already effective, there does not seem to be any consideration to change it. Furthermore, something like what the contractor is requesting, seems to me that it should have been presented if at all, in its response to the solicitation, and should have been insisted upon by the contractor as a term and condition. That may have been a deal breaker had they done so, and therefore didn't? Looking at it in its most favorable light to a contractor, the contractor may be attempting to say that the price of the contract was based on its now proposed language, and any insistence down the line by the Government of contractor non-compliance with 508 might be met with contractor asserting a claim for equitable adjustment.

Edited October 11, 2024 by Neil Roberts
sp "attempting", added "to a contractor"

[Guardian]

On 10/11/2024 at 6:27 PM, Neil Roberts said:

Is there an enforceable contract or not? 

Yes, our agency has an enforceable contract.

 

On 10/11/2024 at 6:27 PM, Neil Roberts said:

Does this Government contract award require written acceptance by the Seller or its commencement of performance in order for it to be an enforceable contract?

In the case of this acquisition, either would have sufficed.  We have the latter, which is to say that the Government sent the software publisher's reseller (on GSA FSS) the task order, i.e., the Government's offer, and the schedule contract holder began performance on 10/01, thereby constituting its acceptance of the terms stated within its GSA contract and the specific order.  Our legal consideration was the Government's promise to pay.

 

On 10/11/2024 at 6:27 PM, Neil Roberts said:

If the contract is already effective, there does not seem to be any consideration to change it. 

It is a contract for the acquisition of commercial items.  It may be changed by the mutual assent of the parties.  The primary consideration in this case seems to be that this was awarded as a sole source bridge contract.  The Government is buying itself time in hopes of awarding a longer term contract following the bridge.  One concern the Government may have is that it seeks to resolve the 508 compliance issue before we enter into a longer contract with the software publisher's authorized reseller.  This might be seen as a show of good will on the part of the Government, seeking to resolve a contentious matter here and now rather than later.

 

On 10/11/2024 at 6:27 PM, Neil Roberts said:

Furthermore, something like what the contractor is requesting, seems to me that it should have been presented if at all, in its response to the solicitation, and should have been insisted upon by the contractor as a term and condition. That may have been a deal breaker had they done so, and therefore didn't? Looking at it in its most favorable light to a contractor, the contractor may be attempting to say that the price of the contract was based on its now proposed language, and any insistence down the line by the Government of contractor non-compliance with 508 might be met with contractor asserting a claim for equitable adjustment.

I reviewed the quote submitted and there is no mention of the software publisher's 508 compliance standards.  It seems that their proposed language is more so concerned with representing the methodololgy they use to measure compliance with the federal accessibility standards,  Moreover, I have reviewed the contractor's GSA FSS contract for 508 language and found the following:

If applicable, indicate that Section 508 compliance information is available on Electronic and Information Technology (EIT) supplies and services and show where full details can be found (e.g. contractor’s website or other location.) The EIT standards can be found at: www.Section508.gov/.

This GSA contract language seems to revert to the larger section 508 compliance standards.

I understand the concern about a possible future claim for an equitable adjustment.  I am not sure the weighted risk is of any substantiality considering that the Government sent the contractor an order with 508 compliance requirements therein stated and the contractor accepted the order via its start of performance on the first day of the period of performance.  Perhaps @Neil Roberts could provide some precendent that would be helpful in this area.  From years of reading, I don't see the CFC finding that the parties had somehow agreed to the incorporation and governance of these corporate 508 standards within the four corners of this task order, particularly when the standards were neither submitted with the quote, nor included in the reseller's GSA contract.  It is possible that I am missing something.