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Section 508 Alliance Newsletter

Welcome to the first edition of the Section 508 Alliance Newsletter. The newsletter is designed to give readers an update on the latest developments in the application and enforcement Section 508. If you do not want to be included on this list, simply reply to this email with the word UNSUBSCRIBE in the subject heading. Thanks and we hope you enjoy the reading.

Legal Notes Column

Proceed Cautiously in Asence of Section 508 Clause

The absence of a uniform contract clause regarding Section 508 is proving to be one of the thorny challenges facing those trying to satisfy their obligations under Section 508. In the vacuum, government agencies, prime contractors, subcontractors, and suppliers have developed an array of conflicting provisions to protect their respective interests. On the one hand, a number of government agencies have developed clauses that seek to shift the Section 508 compliance burden to the contractors. Prime contractors, in turn, are passing these obligations, along with a host of indemnification and related clauses, on to their various subcontractors and suppliers. For the unwary, the failure to note and to respond appropriately to such clauses, can have serious consequences, particularly during this period when technology is unable to meet a number of the requirements established by the Section 508 standards. We understand that at least one unfortunate contractor signed up to a government contract that mandated Section 508 compliant products only to discover that such products do not currently exist.

Little immediate relief is likely. When the Federal Acquisition Regulation (FAR) Council issued the FAR regulations implementing Section 508, it declined to issue a Section 508 clause, noted its intention to examine whether an FAR clause should be developed, and invited comments. Early on, the Information Technology Association of America developed a proposed clause that sought to address some of the challenges posed by Section 508. Thus far, little progress has been made toward adoption of a uniform clause or clauses. The General Services Administration recently convened a new committee to assess whether such a clause is needed. GSA advises that a decision will be made in the next few months whether to formally seek public comment about the wording of such a clause.

In the meantime, contractors, subcontractors, and suppliers at all levels need to be observant about the pitfalls that may arise from the array of provisions they may be requested to agree to. They also need to be proactive in developing their responses to the array of clauses in order to protect their interests. Thus far, implementation of Section 508 has been characterized by the resolution of this sort of challenge through good faith discussions. Whether that will continue after companies incur liabilities is an open question. In addressing such issues, although contractors may be hesitant to challenge the agency's Section 508 clauses when threatened with the loss of their government client, contractors should remember that there is no statutory or regulatory basis for draconian Section 508 contract clauses. They are negotiable. Similarly, there is considerable room for negotiation between prime contractors and their subcontractors and suppliers regarding the sharing of risks associated with Section 508. The approach that one takes in bargaining over these clauses should be developed in concert with a good understanding of one's business situation and goals.

Bracewell & Patterson has advised a number of companies in developing strategies to reduce their business risks and position themselves to preserve or increase their federal electronic and information technology market share.

Anthony H. AnikeeffBracewell and Patterson
Partner, Bracewell & Patterson
[email protected]
Tel: (202) 828-5800
www.bracepatt.com

Windows XP Features Not Handled by Assistive Technology

Surprise, Surprise... there are some Windows XP features that conflict with assistive technologies, or are not available through assistive technology. The verdict is still out whether or not certain features in Windows XP, Microsoft's latest operating system, are not Section 508 Compliant. Microsoft is aware of this and has actually posted the items on their site.

See http://msdn.microsoft.com/library/default.asp?url=/library/en-us/dnacc/html/ATG_AdoptWinXP.asp?frame=true for more details.

Marketing Column

What next?

So, you have studied the Section 508 regulations and have attended a seminar or two on the topic. Now what?

There are a number of strategies you can employ to use Section 508 to your competitive advantage.

The first activity is to determine how large or small of a problem you might have. This is called an assessment. You must first identify and scope the problem. Trying to "throw" solutions at a problem without knowing its full scope and consequences is a common mistake that can easily be avoided.

Identify an organization (like Buan Consulting) that has specialized experience in the field and not a general purpose integrator that read a book and now claims to be an "expert." Also, look for organizations that employ persons with disabilities. The quality of your assessment will be better and more defensible if challenged by a competitor.

Lastly, consider assessing your competition's Section 508 compliance. Sometimes it is as easy as running a search on their web site for "section 508 OR accessibility." Other times it may be necessary to assess their product for compliance in order to verify compliance claims and/or identify compliance weaknesses. Remember the assessment is not only for becoming 508 compliant, but also for formulating a 508 strategy when going to market.

The next important step that one must take action on is to submit a Voluntary Product Accessibility Template (VPAT) to the ITIC web site (http://www.itic.org/). This is fast becoming THE place to find compliant products. Visit the site and fill in the form and submit. If you have questions or are unsure on some of the line items, you may want to have your assessment contractor assist with the process. This activity is important during the acquisition planning phase (FAR section 10.001 (a)(3)(vii): "(to) assess the availability of electronic and information technology the meets all or part of the applicable accessibility standards issued by the Architectural and Transportation Barriers Compliance Board at 36 CFR part 1194 (see subpart 39.X)). The government uses this site to determine what products are available and are accessible. If your product is not listed here, it may not be considered in the procurement.

Once you have submitted your VPAT and have a better understanding of your compliance situation, it is time to implement a strategy. There are a number of strategies that your organization can implement. Your particular situation will dictate which strategy to pursue. Some manufacturers take a wait-and-see-strategy and follow their competitor's actions. Others implement a tell-all strategy. Compaq Corporation has taken this approach (see: http://www.compaq.com/accessibility/). Your strategy will vary according to the assessment results and your company's style.

Finally, you should be working closely with your contracting officer or COTR. The burden actually lies with the government to define their accessibility requirements. Early engagement with the government only helps closely define these requirements and determines which features need to be accessible. In this way, your company's sales will more easily pass through procurement.

In the next newsletter we discuss justification for assessments. One method is to accelerate conversion through specialized and creative software coding. Each month the conversion process is accelerated is potentially tens of thousands of dollars of revenue gained per month.

Dan BuanBuan Consulting
President, Buan Consulting, Inc.
[email protected]
410-263-2707
www.buanconsulting.com

About the Alliance: The Section 508 Alliance is a small group of specialized companies that together provide one-stop shopping for all Section 508 compliance requirements. Additional information can be found at http://www.section508alliance.com/.

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