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Perfect Compliance with Accessibility Provision Not Required

The government was not required to disqualify a quotation based on its exception to a solicitation requirement, according to the Court of Appeals for the Federal Circuit, because the offeror certified it generally complied with the requirement and there was insufficient countervailing evidence of noncompliance. The request for quotations for an automated recruiting system stated that to be eligible, an offeror must "accept [ ] each of the requirements, provisions, terms and conditions, and clauses stated in all sections of this RFQ." On appeal from the Court of Federal Claims' denial of its protest (54 CCF 79,368), the protester argued the awardee should have been disqualified because it did not meet a requirement to comply with Section 508 of the Rehabilitation Act (29 USC 794d), providing for accessibility for disabled individuals. Citing an independent auditor's report, the awardee certified it was "generally compliant," with minor exceptions.

Flexible Statutory Requirement

The Federal Circuit explained the contracting officer was entitled to rely on the certification in determining whether to accept the quotation, so the issue was whether the exception's language constituted "significant countervailing evidence reasonably known to the ... evaluators" that should have created doubt whether the offeror would or could comply with the requirement. Affirming, the Federal Circuit concluded the exception's language did not constitute countervailing evidence. Compliance with Section 508 "is not an all-or-nothing attribute of a product, requiring perfect compliance or disqualification," as evidenced by the flexible nature of the statutory requirement for "comparable" access, and a reasonable reading of the exception's language was that the awardee certified "that whatever 'minor' exceptions it t[ook], it nevertheless consider[ed] its offer to meet the flexible requirements of Section 508." Further, the awardee's statement was not the kind of "significant countervailing evidence" found in other decisions, and the RFQ allowed compliance to be determined during a later transition period. Finally, the identification of the "minor exceptions" occurred through the awardee's voluntary decision to obtain an independent auditor's report, and it was inappropriate to penalize the awardee for its "admirable attempt at greater precision."


Justice Bryson, dissenting, would not have upheld the award. According to the dissent, the regulations implementing Section 508 (36 CFR 1194) prescribe specific design criteria for software and websites, requiring keyboard accessibility, text equivalents for non-text elements, and accessibility of forms. The regulations also provide functional performance criteria. Thus, Section 508 requires specific modes of compliance, but the awardee did not meet them. To remedy the regulatory violation, the dissent would have remanded the case to give the government the opportunity to conduct an analysis under 36 CFR 1194.2, which allows the government to procure a less compliant product if procuring the most compliant product would impose an "undue burden." (Allied Technology Group, Inc. v. U.S., et al., CA-FC, 55 CCF 79,597)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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