Skip to main content

WORKability 2: chapter 9

  • Back to contents
  • WORKability 2: SOLUTIONS
    Final report of the National Inquiry into Employment and Disability

    9. International approaches to government accessible procurement policies

    9 International approaches to government accessible procurement policies.

    9.1 Introduction

    9.2 What is the procurement policy in the United States?

    9.2.1 Mandatory procurement: section 508 of the Rehabilitation Act (US)

    9.2.2 Technology covered by section 508

    9.2.3 Compatibility with assistive devices.

    9.2.4 Functional performance criteria

    9.2.5 Equivalent facilitation

    9.2.6 Undue burden

    9.2.7 US industry response to mandatory procurement

    9.3 What is the procurement policy in Canada?

    9.3.1 Procurement legislation in Canada.

    9.3.2 The Accessible Procurement Toolkit

    9.3.3 Task Force on Accessibility

    9.4 What is the procurement policy in Europe?.

    9.5 Comments in the Second Round Submissions to the Inquiry.

    9.6 Issues to consider in developing a procurement policy for Australia

    9.7 Recommendation regarding a procurement policy in Australia.

    9.1 Introduction

    WORKability I: Barriers noted that it can be more difficult, and involve delay and expense, to make retrospective adjustments to work premises, facilities and equipment when an existing employee acquires a disability, or when a jobseeker presents a request for an adjustment. [1] It is preferable if, as far as possible, premises, equipment and facilities are designed to meet 'universal design' principles, to accommodate the widest possible range of human capacities and requirements. [2]

    The First Round Submissions called for adoption of accessible procurement requirements in government purchasing policies. The idea behind such a policy is to both improve the accessibility of government facilities and provide leadership to the private sector.

    The submissions focussed on procurement of information and communications technology, but noted that this is not the only area where an accessible procurement policy might have benefits.

    The submissions also suggested further exploration of the procurement policies used in the United States, Canada and Europe.

    As a result, WORKability I: Barriers made the following recommendation:

    Interim Recommendation 24: Government procurement policy

    The Inquiry recommends further exploration into the feasibility and impact of mandatory accessible procurement policies for government agencies. To this end the Inquiry recommends research into international procurement policies and practices.

    WORKability I: Barriers also noted that the Inquiry would conduct some preliminary research on overseas procurement models. This chapter sets out the results of that preliminary research.

    9.2 What is the procurement policy in the United States?

    9.2.1 Mandatory procurement: section 508 of the Rehabilitation Act (US)

    In 1998, the United States Congress passed legislation that imposes mandatory accessible procurement requirements on Federal government agencies regarding information and communications technology. The provisions are contained in section 508 of the Rehabilitation Act 1973 (US). [3]

    The procurement obligations apply when Federal departments and agencies are 'developing, procuring, maintaining, or using electronic and information technology.'

    The law requires the government agency to ensure that electronic and information technology allows Federal employees with disability to have access to, and use of, information and data in way that is comparable to Federal employees who do not have disabilities.

    The Federal agency must also ensure that members of the public with disability have access to, and use of, information and data in a manner comparable to that enjoyed by individuals who do not have disabilities.

    There is a qualification to the procurement requirement where 'an undue burden would be imposed on the department or agency'. If an agency believes that compliance imposes an undue burden, it must document its reasons and explain to what extent compliance will cause that undue burden.

    However, even when the agency is excused from compliance due to an undue burden, it must provide people with disability with information and data 'by an alternative means of access that allows the individual to use the information and data.'

    Section 508 also provides for the creation of standards to guide the application of the general accessibility requirement. The standards have been developed by the US Access Board (Architectural and Transportation Barriers Compliance Board) after extensive consultation. [4] They entered into force in 2001.

    The standards set out technical and functional performance criteria which are necessary for accessibility. Subject to the undue burden defence, they must be complied with by all Federal agencies others than those involved in national security.

    9.2.2 Technology covered by section 508

    As noted above, section 508 applies to the development, procurement, maintenance and use of electronic and information technology only.

    Electronic and information technology includes products that store, process, transmit, convert, duplicate, or receive electronic information, such as copiers, computers, fax machines, information kiosks, software, operating systems, websites and telecommunications products.

    The standards provide technical criteria for various technologies, including:

    • controls, keyboards, and keypads
    • software applications and operating systems (non-embedded)
    • web-based information or applications
    • telecommunications functions
    • video or multi-media products
    • information kiosks and transaction machines.

    'Controls' include on/off switches, buttons, dials and knobs, mice, keypads and other input devices, copier paper trays (both for inserting paper to be copied and retrieving finished copies), coin and card slots, card readers, and similar components.

    Some information features of workplaces, such as public address systems, alarm systems, and two-way communications systems, were left outside the scope of these standards as they were thought to be covered by existing accessibility requirements for buildings.

    The US Access Board outlines the detailed technical specifications in the section 508 standards. [5]

    9.2.3 Compatibility with assistive devices

    The US legislation recognises that it is not always cost effective, and might not even be technically feasible in some circumstances, for one standard piece of equipment to cater directly to the full range of user requirements. Thus, the section 508 standards cover issues of compatibility with adaptive equipment that is commonly used by people with disability.

    The Access Board explains further, as follows:

    [The relevant paragraph] clarifies that, except as required to comply with these standards, this part does not require the installation of specific accessibility-related software or the attachment of an assistive technology device at a workstation of a Federal employee who is not an individual with a disability. Specific accessibility related software means software which has the sole function of increasing accessibility for persons with disabilities to other software programs (eg, screen magnification software). The purpose of section 508 and these standards is to build as much accessibility as is reasonably possible into general products developed, procured, maintained, or used by agencies. It is not expected that every computer will be equipped with a refreshable Braille display, or that every software program will have a built-in screen reader. [6]

    The Access Board notes, however, that specific assistive technology may be required as part of making reasonable adjustments for an employee with disability. Assistive technology may also be necessary to provide access to programs or services for a member of the public who has a disability.

    The preamble to the standards note that assistive technology may include:

    • screen readers which allow persons who cannot see a visual display to either hear screen content or read the content in Braille
    • specialized one-handed keyboards which allow an individual to operate a computer with only one hand
    • specialized audio amplifiers that allow persons with limited hearing to receive an enhanced audio signal. [7]

    Compatibility with assistive devices may raise software issues or hardware issues (such as whether equipment provides a port of one of the commonly used types to which adaptive equipment can be attached if necessary). In this respect, it is relevant to note evidence given by IBM (on behalf of the Information Technology Industry Council) to the US Senate Foreign Relations Committee, on United States-European cooperation on standards for accessible procurement:

    We believe that making technology accessible to all is a need that is best met by technologies and solutions that are committed to interoperability based on open standards, and have been developed via collaborative processes. [8]

    9.2.4 Functional performance criteria

    In addition to specific technical criteria for the relevant technology, the standards provide 'functional performance criteria' for information and communications technology.

    The US Access Board describes these 'functional criteria' as follows:

    These criteria are designed to ensure that the individual accessible components work together to create an accessible product. They cover operation, including input and control functions, operation of mechanical mechanisms, and access to visual and audible information. These provisions are structured to allow people with sensory or physical disabilities to locate, identify, and operate input, control and mechanical functions and to access the information provided, including text, static or dynamic images, icons, labels, sounds or incidental operating cues. For example, one provision requires that at least one mode allow operation by people with low vision (visual acuity between 20/70 and 20/200) without relying on audio input since many people with low vision may also have a hearing loss. [9]

    Product information must also be available in alternate formats usable by individuals with various disabilities.

    9.2.5 Equivalent facilitation

    During consultations on the draft standards, the Information Technology Association of America expressed concern about the specificity of the design specifications. It was their preference to leave industry free to use its own design to meet the required functional performance. [10]

    The US Access Board noted that as a matter of government policy, performance standards are generally to be preferred to engineering or design standards because performance standards provide the regulated parties the flexibility to achieve the regulatory objective in a more cost-effective way. However, the Board also thought that the standards needed to be sufficiently descriptive to determine when compliance with section 508 has been achieved. [11]

    It appears that the result of this balancing exercise was to include an 'equivalent provision' clause which states that:

    Nothing in this part is intended to prevent the use of designs or technologies as alternatives to those prescribed in this part provided they result in substantially equivalent or greater access to and use of a product for people with disabilities. [12]

    9.2.6 Undue burden

    As already noted, compliance with the standards is not required where this would impose an undue burden on the Federal department or agency. 'Undue burden' is defined in the standards as follows:

    Undue burden means significant difficulty or expense. In determining whether an action would result in an undue burden, an agency shall consider all agency resources available to the program or component for which the product is being developed, procured, maintained, or used. [13]

    In discussing the interpretation of 'undue burden', the preamble to the standards notes an important difference between the purpose of the American with Disabilities Act (ADA) - which has an 'undue hardship' exception - and the purpose of the Rehabilitation Act:

    . since title I of the ADA addresses employment and the individual accommodation of employees, not all of the factors are directly applicable to section 508 [of the Rehabilitation Act] except for the financial resources of the covered facility or entity which is necessary to a determination of 'significant difficulty or expense.' Unlike title I [of the ADA], section 508 requires that agencies must procure accessible electronic and information technology regardless of whether they have employees with disabilities. Requiring agencies to purchase accessible products at the outset eliminates the need for expensive retrofitting of an existing product when requested by an employee or member of the public as a reasonable accommodation at a later time. [14]

    On this basis, the interpretation of 'undue burden' under section 508 would be stricter than 'undue hardship' under the American with Disabilities Act.

    If the reason for an 'undue burden' is that there is no available product that meets all the standards in relation to a particular requirement, an agency must procure the product that best meets the standards. [15]

    However, compliance does not require a fundamental alteration in the nature of a product or service or its components. The preamble document comments that 'fundamental alteration' means:

    .a change in the fundamental characteristic or purpose of the product or service, not merely a cosmetic or aesthetic change. For example, an agency intends to procure pocket-sized pagers for field agents for a law enforcement agency. Adding a large display to a small pager may fundamentally alter the device by significantly changing its size to such an extent that it no longer meets the purpose for which it was intended, that is to provide a communication device which fits in a shirt or jacket pocket. For some of these agents, portability of electronic equipment is a paramount concern. [16]

    9.2.7 US industry response to mandatory procurement

    Relevant industry sectors in the United States do not appear to be opposed to the mandatory accessible procurement policy. For example, the US Telecommunications Industry and Association and the Electronic Industries Foundation have advised that:

    • accessible design can be implemented with only minor changes to a design or manufacturing process
    • improving accessibility does not necessarily increase development time and cost
    • the cost of accessible design is minor compared to the benefits gained. [17]

    Further, the IBM / Information Technology Industry Council evidence to the US Senate Foreign Relations Committee regarding the European adoption of section 508 states:

    We believe that Section 508 is a comprehensive and meaningful framework to support the industry's work in this area. We . and our industry colleagues . applaud the U.S. Government's foresight in this issue. [18]

    9.3 What is the procurement policy in Canada?

    9.3.1 Procurement legislation in Canada

    Canada does not have specific federal legislation requiring accessible procurement, although discrimination on grounds of disability is prohibited both by the Canadian Charter of Rights and Freedoms [19] and by the Human Rights Act 1985. [20]

    However, one Province, Ontario, has legislated more specifically on accessible procurement. Article 5 of the Ontarians with Disabilities Act 2001 states:

    In deciding to purchase goods or services through the procurement process for the use of itself, its employees or the public, the Government of Ontario shall have regard to the accessibility for persons with disabilities to the goods or services. [21]

    The requirement to 'have regard to' accessibility is significantly weaker than the United States requirement for accessible procurement.

    9.3.2 The Accessible Procurement Toolkit

    In 2000, the Assistive Devices Industry Office, within Industry Canada, launched an 'Accessible Procurement Toolkit'. The Toolkit was intended to assist in achieving accessible procurement, in particular by Canadian Government agencies. [22]

    The Toolkit covers:

    • documentation, instructions and technical support
    • hardware
    • media and content
    • office furniture
    • software
    • telecommunication products
    • training
    • web sites / web applications.

    This Canadian Toolkit uses the United States standards under section 508 of the Rehabilitation Act 1973 (US) and section 255 of the Telecommunications Act (US) as its reference points for accessibility of information and communications technologies.

    Industry Canada explains why it uses US standards, amongst others, in its Accessible Procurement Toolkit:

    In this toolkit, a variety of standards, policies and best practices are referenced. The primary reason for the existence of this toolkit is to provide purchasing officers with those standards, policies or best practices that are in the public domain: to ensure the acquisition of the most accessible goods or services possible. This is why the US Section 508 standards and other best practices have been included. In the absence of national Canadian standards for accessibility related to many types of products, the only alternative might be to use the US Section 508 standards. [23]

    The approach of adopting United States standards rather than developing distinctive national standards may present an interesting precedent to consider in developing an Australian government policy on accessible procurement.

    9.3.3 Task Force on Accessibility

    In 1998, the Canadian Treasury Board Secretariat asked the National Research Council to lead an Interdepartmental Task Force on the Integration of Persons with Disabilities through Information and Communications Technologies ('the Task Force'). The Task Force was asked to consider:

    • how information and communications technologies could be made more accessible for people with disabilities in the federal workplace and
    • how such technologies might be better used to accommodate employees with disabilities. [24]

    In its 2002 final report - Access for All Through Technology: Toward an Accessible and Inclusive Information Technology Environment - the Task Force noted the need for legal accountability for accessible procurement practices:

    Although various laws and guidelines exist to address these barriers and numerous excellent programs are taking place across the federal public service, problems persist because of inadequate information sharing and inadequate accountability mechanisms. Making workplace technology accessible to persons with disabilities is sometimes perceived as a human resources function and sometimes as a technical support function. As a result, it tends to fall through the cracks. [25]

    The Task Force went on to state its view that '[s]uch an approach must be sanctioned from the top':

    The Government of Canada would have to adopt a policy that all existing and prospective federal government information management systems, all database and Web content, and all information technology (hardware and software) will be accessible to all employees with disabilities. All existing and prospective information management systems and information technologies used by the federal government would have to conform to explicit accessibility criteria, such as performance criteria or specific technical requirements as appropriate. [26]

    Clearly, the Task Force did not regard the Accessible Procurement Toolkit to be sufficient, in the absence of a clear policy direction on implementation:

    Applying approved criteria to existing technology environments will identify many barriers. Once identified, these barriers can be removed over time. In some cases, problems may be fixed with simple changes to work practices or organization. In other cases, entire systems may need to be replaced, but the costs of such retrofits are likely to be recouped over time, since they will greatly reduce the need to accommodate employees at their individual workstations. [27]

    The Task Force made three recommendations for the future of Canada's accessibility policy.

    First, it recommended that all Government of Canada employers (Treasury Board, agencies, Crown corporations etc) adopt a policy to apply an 'access and inclusion lens' to the design, retrofit and procurement of all information management and information technology infrastructure, including, but not limited to, information networks, websites, hardware and software.

    Second, the Task Force recommended that the Government of Canada develop government-wide standards for accessible information management systems and information technologies, and that federal institutions be required to meet these standards when they develop, procure or retrofit such systems. It noted that:

    Industry Canada's Accessible Procurement Toolkit could form the basis of a uniform federal government policy on the procurement of accessible technologies.

    Having a government-wide procurement toolkit will accomplish several goals. Procurement officers and managers will have one source to find required terms and conditions. Time and effort will be saved in achieving an accessible workplace. Costs of accommodation will be reduced because manufacturers will have a common set of requirements to meet and will have to do fewer one-off deliveries. [28]

    Third, the Task Force recommended that the Government of Canada adopt a policy of accessible procurement and implement it by formally adopting and adequately resourcing Industry Canada's Accessible Procurement Toolkit as the Government's official procurement tool.

    As at November 2005, it appears that these recommendations still await implementation.

    9.4 What is the procurement policy in Europe?

    European standards on accessible procurement are not yet in place. However, considerable work is now occurring in Europe in this area. This may lead to the adoption of standards and certification procedures with which suppliers, including Australian industry, would need to comply in order to sell to European governments. The European Standards Organisation (analogous to Standards Australia) promotes general equal employment opportunity measures and voluntary development of technical standards.

    The European Commission adopted a Communication on E-Accessibility on 13 September 2005, which noted that:

    European policies and legislation have recognised employment and occupation as key elements in guaranteeing equal opportunities for all, contributing strongly to the full participation of citizens in economic, cultural and social life and to realising their potential. The potential impact on this from a wider availability of quality accessible ICT products and services is clear. It will foster greater employability, better social inclusion and give people the ability to live independently for longer. [29]

    The Communication refers to a range of current challenges requiring cooperative action:

    • lack of harmonised solutions, eg lack of access to the emergency number from text phones in many Member States
    • lack of interoperable solutions for accessible ICT [Information and Communication Technology]
    • software not compatible with assistive devices, screen readers for blind users are often impossible to use after releases of new operating systems
    • interference between mainstream products and assistive devices, eg GSM telephones and hearing aids
    • lack of European-wide standards, eg the seven different, incompatible text phone systems for deaf and hard-of-hearing persons
    • lack of adequate services, eg many websites too complicated for cognitively impaired or inexperienced users or impossible to read and navigate through for visually impaired persons
    • lack of products and services for certain groups, eg telephone communication for sign language users
    • physical design difficult to use, eg keypads and displays on many devices
    • lack of accessible content
    • restricted choice of electronic communication services, quality and price. [30]

    The European Commission has also indicated that it intends to pursue accessibility requirements in public procurement. It is also considering accessibility certification. For example, current European Public Procurement Directives mention the 'possibility' of including accessibility requirements in specifications for tenders. The Commission noted that some European States already had accessibility requirements and argued that there was a need for consistency to avoid market fragmentation and to foster interoperability. [31]

    It is expected that by the end of 2005 there will be a mandate to the European standardisation organisations to develop common public procurement accessibility requirements.

    The European Commission also announced that, commencing in the last quarter of 2005, it would study possibilities for the development, introduction and implementation of certification schemes for accessible products and services, including whether certification should be by self-declaration or third-party certification. [32]

    9.5 Comments in the Second Round Submissions to the Inquiry

    The Second Round Submissions provided varying views on the best way to proceed on procurement policies.

    Blind Citizens Australia supported the Inquiry's interim recommendation:

    BCA supports this recommendation and emphasises the importance of this issue given the number of blind people who are denied jobs or whose jobs are put in jeopardy by the use of inaccessible technologies. [33]

    Australians for Disability and Diversity Employment also supported the introduction of procurement policies and suggested that:

    Suppliers of services such as Disability Agencies should have conditions on their funding that they adopt pro-active employment policies and practices for PWD. [34]

    However the Australian Industry Group raised the following concerns:

    Ai Group does not support the adoption of a mandatory procurement policy for government agencies. Particular consideration should be given to the costs involved, and the potential adverse impact on Australian businesses should this measure to be adopted. Before considering a mandatory procurement policy, non-mandatory approaches that enable the Government to show leadership in this area should be considered. [35]

    9.6 Issues to consider in developing a procurement policy for Australia

    Discussion about government procurement policies appears to be far more advanced in the United States , Canada and Europe than it is in Australia . The United States has a highly developed mandatory government procurement policy and it seems Canada and Europe are heading in the same direction. The development of these international models provides a strong point of departure for a similar dialogue in Australia. In particular, the model in the
    United States provides a high bar from which to start the conversation.

    In the Inquiry's view a useful way to start this discussion is to commence a Regulation Impact Statement (RIS) process which examines the option of the Commonwealth adopting a procurement policy similar to section 508 of the United States Rehabilitation Act 1973.

    In investigating this option, it will be important to consider how best to achieve the objective of ensuring accessible facilities as a means to removing unnecessary barriers to participation and contribution by Australians with disability.

    However, other issues to consider through this process include the costs, impacts on business, and alternatives to mandatory approaches. More specifically, issues which may be appropriate to consider in this process include:

    • to what extent, and in what instances, accessible procurement may involve additional up front costs (as compared to procurement without regard to accessibility requirements)
    • to what extent up front costs of accessible procurement may be greater than the costs of retrofitting in the event of a specific need, taking into account:
      • indirect costs in modifying or replacing inaccessible facilities after the event (including lost productivity while awaiting modifications)
      • possible financial and other costs of discrimination through failure to provide an accessible workplace
    • whether particular types of accessible equipment, or features of equipment, should only be mandated in the event of individual reasonable adjustment (due to high cost and/or low incidence of need)
    • whether compatibility of systems and equipment with assistive devices for people with disability may assist in achieving interoperability of various systems and equipment from different suppliers or time periods (with consequent gains in productivity and/or reductions in costs)
    • whether non-mandatory approaches are as effective as mandatory approaches in ensuring accessible procurement by government agencies
    • if non-mandatory approaches are thought to be as effective as mandatory approaches, whether there is any reason to expect the costs and business impacts of a non-mandatory approach to be lower
    • if non-mandatory approaches are thought to be less effective, whether such an approach is acceptable in light of:
      • the government's commitment to increasing employment of people with disability
      • the government's obligations, as an employer, to avoid unlawful discrimination under the Disability Discrimination Act 1992 (Cth)
    • whether the potential business impact of an Australian supplier's inability to satisfy government accessibility requirements should be approached any differently to an inability to satisfy other government procurement requirements (for example, goods satisfying occupational health and safety requirements)
    • various approaches to the design of accessible procurement requirements which could be adopted to minimise adverse cost and business impacts, including:
    • performance based versus prescriptive approaches
    • access to appropriate supporting information for suppliers and officers responsible for procurement decisions
    • lignment of requirements by Australian government with requirements and practice in other countries (rather than development of new and distinct requirements)
    • whether a certification procedure might accompany a procurement policy.

    9.7 Recommendation regarding a procurement policy in Australia

    The research conducted by the Inquiry suggests that it is now appropriate to examine the viability of a mandatory government procurement policy similar to that used in the United States. The Inquiry has amended its Interim Recommendation 24 to reflect that research.

    The Inquiry recommends that the Commonwealth government commence a Regulation Impact Statement process which examines the option of adopting a government accessible procurement policy similar to section 508 of the Rehabilitation Act 1973 in the United States.

    Next chapter




    Chapter 9: Endnotes

    [1] See WORKability I: Barriers, Chapter 7, section 7.6.2.

    [2] See WORKability I: Barriers, Chapter 7, section 7.6.2.

    [3] Rehabilitation Act 1973 (US), 29 USC 794d. For a copy of the legislation, standards and commentary see: http://www.section508.gov/

    [4] The standards are available at multiple locations including: www.access-board.gov/sec508/standards.htm and www.section508.gov/

    [5] US Access Board, Electronic and Information Technology Standards: An Overview. Available at http://www.access-board.gov/sec508/summary.htm

    [16] US Access Board, Preamble to the Electronic and Information Technology Accessibility Standards (Section 508), Section 1194.3 (e). Available at: http://www.access-board.gov/sec508/preamble.htm

    [17] Telecommunications Industry Association and the Electronic Industries Foundation, Resource Guide for Accessible Design of Consumer Electronics, 1996. Available at: http://www.tiaonline.org/access/guide.html#part1

    [18] Testimony of Frances W West, Worldwide Director Of Accessibility Center, IBM Corporation, before the U.S. Senate Committee on Foreign Relations, European Affairs Subcommittee, on U.S. - E.U. Regulatory Cooperation on Emerging Technologies. 11 May 2005. Available at: http://72.14.203.104/search?q=cache:JJUqjMuAbfoJ:foreign.senate.gov/testimony/2005/WestTestimony050511.pdf

    [25] Public Service Human Resource Management Agency, Access for All Through Technology: Toward an Accessible and Inclusive Information Technology Environment, Canada 2002, Executive summary. Available at: http://www.hrma-agrh.gc.ca/ee/pmp/promo/access3_e.asp

    [26] Access for All Through Technology, A new approach to accessibility. Available at: http://www.hrma-agrh.gc.ca/ee/pmp/promo/access12_e.asp

    [27] Access for All Through Technology, A new approach to accessibility. Available at: http://www.hrma-agrh.gc.ca/ee/pmp/promo/access12_e.asp

    [28] Access for All Through Technology, A new approach to accessibility. Available at: http://www.hrma-agrh.gc.ca/ee/pmp/promo/access12_e.asp

    [33] Submission 141, Blind Citizens Australia.

    [34] Submission 144, Australians for Disability and Diversity Employment.

    [35] Submission 143, Australian Industry Group.