Introduction

Pushing Public Sector Accessibility from the Bottom Up – Part 2

Pushing Public Sector Accessibility from the Bottom Up – Part 2

This is part two in our three-part series about pushing accessibility in state and local governments. In last week’s post, I described why we took on this crazy project and some of the unusual tools to discover new opportunities. Think of it as an introduction. This week, I’ll talk about different strategies, the pros and cons of each one, and which ones seems to work the best. For my fellow consultants, this should be the most interesting post because it’s the one that can lead to business. Next week, I’ll talk about this from a local government perspective. As I used to work in government and helped transition the Federal government’s information technology systems to be accessible, I think my perspective is useful but incomplete—promoting accessibility as a Department of Justice attorney is very different from trying to promote it as a local ADA Coordinator. So, I’ll also try to provide some approaches (and resources) that may be helpful.

When I was a Justice Department attorney, people in government tended to listen to what I had to say. Local ADA Coordinators (or other local government employees trying to promote accessibility) tend to carry a bit less weight. Now that I am a consultant, I can pretty confidently say that I have absolutely no weight. Even on a good day, I’m seen as irrelevant. So how can I possibly push accessibility? Well, several ways, actually….

Description of the Scenario

Once we have found a resource that gives us a steady stream of local government information technology Requests for Proposals (RFPs) as I described in last week's post, we focused on RFPs from agencies that were redesigning their websites.

In each of these RFPs, an agency had a website based on a content management system (CMS), such as WordPress, Drupal, or CivicPlus. But they didn’t like their website. Maybe it didn’t have enough features. Maybe they didn’t like its design. Or maybe it didn’t keep up with the times. If the RFP mentioned accessibility, it was only at a very abstract level, such as requiring the design to “meet ADA requirements” or “conform with WCAG.” But the main focus of the RFP is always placed elsewhere—and so design firms usually only pay lip service to accessibility.

Strategy 1: Buddy Up with the Local ADA Coordinator

The first approach I tried was notifying the local ADA Coordinator that the RFP needed greater attention to accessibility (and that we could help). Most state and local governments have an ADA Coordinator. This is because Title II of the ADA requires that all state and local government entities with 50 or more employees designate an employee who will be responsible for coordinating implementation of Title II’s requirements. 28 C.F.R. § 35.107.

Pros

Developing a connection with a local ADA Coordinator is a great idea. In most cases, ADA Coordinators are really good with built environment accessibility and not so good with digital accessibility. Being on the local ADA Coordinator’s short list of consultants to call when they have a web or digital accessibility challenge can be a real win-win for both of you.

Cons

The problem with this approach is that it’s highly unlikely that you’re going to win any work on this project. If the ADA Coordinator starts making a stink about an IT project that has already received funding and started down the procurement process, the business owners of that project (and the procurement officer) will hate you.

Recommendations

Sure, it’s a good idea to become friends with the local ADA Coordinator—just don’t do it in a way that gums up a current project until you’ve tried a different approach. But if you’ve already tried a different approach and they’ve reacted negatively (and so you’ve already burned your bridges) then go for it! Just don’t do this if you live in the town running the RFP if you ever want to get the snow plowed in front of your house.

Strategy 2: Go Around the RFP

Because your time isn’t free, adding accessibility tasks to the RFP is going to cost money. But it usually won’t cost a ton of money. After all, someone else is doing the development work-- your job is just to test it for accessibility and tell the developers where it needs to be improved.

Fortunately, most local governments have micro-purchase exemptions. These go by various names, such as “micropurchase,” “small purchase,” “sub-threshold purchases,” etc., but the idea is the same—if an agency is only occasionally buying something that is relatively low-cost from a vendor, it shouldn’t have to go through the lengthy process and paperwork of a formal competition for the purchase. And some of these thresholds are quite generous. For instance, Washington State has a $40,000 threshold and the City of Seattle has a $50,000 threshold!

So under this approach, a consultant contacts the procurement officer directly and says something like,

Our company, XYZ Consulting, specializes in making digital and web technologies accessible. We noticed that your agency recently issued the above-referenced RFP but did not include clear requirements for accessibility. We believe that we can perform the following tasks to ensure that accessibility requirements are met. Furthermore, we believe that we can easily accomplish this work for less than the small purchase threshold of $50,000 and outside of the RFP’s procurement vehicle. This would give your agency the ability to fully meet its accessibility requirements without disturbing the process or funding for the existing RFP.

Pros

I’ve got to admit—this is the approach I originally gravitated to the most. The advantage is that it doesn’t embarrass the procurement officer or agency that wrote the RFP because it’s not on the public record. And, if the agency had all the funds in the world, this is a great approach that I’m sure they would use a lot.

Cons

The problem, of course, is that funds are never unlimited. It’s highly unlikely that they will magically come up with the extra money for your accessibility services. And, because you approached the agency privately, they can pretty much ignore you without any consequence.

Recommendation

While I like this approach, I don’t think it works to start ere. Instead, use strategy as an alternative approach when you try the next strategy.

Strategy 3: Insert Yourself Into the Procurement Process

As a digital and web accessibility consultant, you probably don’t have the design expertise that the agency wants. After all, they want a site that draws users in and that’s friendly and usable. Even if they know that they need to include accessibility requirements in the RFP, it’s probably only a small line item in a flood of other requirements.

Every large RFP lets vendors ask questions and their answers become part of the public record for the procurement. As RFP's typically follow a well-defined schedule, it's important to get these questions in before the deadline for questions. So, if you found the RFP before the question period ended, you can leverage the question process to insert yourself into the RFP.

How? Simple. You just have to remind them about their accessibility requirements and suggest that they accept your proposal. For instance, you can try to insert yourself into the procurement process by asking questions like,

“Title II of the ADA requires that agencies like yours ensure that its website is accessible to your City’s citizens with disabilities. Most web design firms have little to no experience with the difficult requirements for web accessibility and thus create inaccessible websites. Our company focuses on digital and web accessibility. Can we submit a proposal that responds only to those elements of the RFP that impact accessibility?”

I know that procurement officers and the project owners hate questions like this. As I mentioned, the procurement process requires that they answer it—and their answers are public record. So, if someone ever sued them over an inaccessible site that they created based on this RFP, this question—and their response to it—would have to be turned over in discovery.

In my experience, I’ve gotten one of three different responses to this approach.

  • First, agencies may try to claim that they understand accessibility (e.g. “the website to be refreshed is developed by ABC vendor, which assured us that it fully conforms to WCAG 2.0 level A”). In that case, I’d recommend either walking away or falling back to Strategy One and contact the ADA Coordinator. You could also remind the ADA Coordinator that basic color contrast doesn’t come in until WCAG level AA and so the agency could potentially leave every color blind person in the city out in the cold.
  • Second, agencies can say that their main focus is on something else (e.g. usability) but they will welcome your proposal. In that case, make sure to really focus your proposal on the risk of an inaccessible site (see Writing the Proposal section, below).
  • The third (and most annoying) approach is for agencies to say that they would welcome a proposal where the accessibility consultant partners with another vendor to provide a complete solution. Fortunately, most web-based procurement portals provide a listing of every other firm that has downloaded the RFP. In that case, your job is to simply reach out to every one of the other vendors, explain how critical accessibility is, and hope that one of them will be willing to partner with you. If no one contacts you, then you can either walk away or fall back to good ole Strategy One and contact the ADA Coordinator.

Pros

The biggest reason for using this approach is that it opens the door for you and gets you a seat in the procurement process. Sure, the agency and the procurement officer may hate you, but (based on our discussion above) the process didn’t really leave you a choice.

Cons

The biggest reason to not use this approach is that it does irritate procurement officers. Also, sponsoring agencies never like to be reminded of a legal obligation that they never fully considered. But the business world is a rough game so I’m sure they’re used to it.

Recommendations

As you can tell, this is my preferred approach. It’s the only one that forces agencies to consider accessibility as part of the project that they are currently undertaking and that doesn’t require them to go search out other funds. You won’t win a lot of friends doing this, however.

Writing the Proposal

Now that you've wiggled your way into the procurement process, you've still got to win the deal! Writing a proposal is never fun and usually requires a ton of menial paperwork. But you can't win a deal without a bit of work, right?

Remind Them Why Accessibility Matters

Somewhere in your proposal, you need to remind the reader about why accessibility matters. And here, I think it’s more important to play up the legal risks over the practical effects of inclusion. Yes, millions of people in the world are disabled, but that likely doesn’t affect this procurement officer or this agency. By contrast, a lawsuit or legal complaint can turn their safe jobs into a world of hurt. For instance, I added the following section called “Why Accessibility Matters” in a recent proposal to a Washington city,

Accessibility for persons with disabilities is critical both for CITY and its citizens. As a public entity, CITY must also comply with Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131. Recently, ADA web accessibility has been one of the fastest growing areas of litigation. In 2020, there were 3,503 Federal lawsuits filed nationwide against organizations for their inaccessible websites—and this number is predicted to reach almost 4,200 cases for 2021. [cite to Jason Taylor’s article at https://blog.usablenet.com/midyear-report-app-and-web-accessibility-lawsuits-on-track-for-record] Since 2015, numerous settlement agreements by the U.S. Department of Justice have required state and local government websites—including the City of Yakima to comply with the W3C’s Web Content Accessibility Guidelines (WCAG) 2.1 A/AA.[cite to DOJ’s Project Civic Access at https://www.ada.gov/civicac.htm] More locally, in Washington State, OCIO Policy 188 requires Washington state agencies to meet WCAG 2.1 A/AA. While failing to meet WCAG in websites affiliated with state and local governments raises an organization’s overall risk level, it also undermines its ability to serve the needs of its consumers with disabilities. Simply put, CITY risks excluding its citizens with disabilities if its website does not conform with WCAG A/AA.

Add Hints for Alternate Funding Streams

Your proposal can also hint at other government programs that can benefit from making the project—and its ultimate website—accessible. For instance, in that same proposal, I also suggested that making the City’s website accessible could help with the City’s broader DEIA initiatives. I included the following text,

Movements like Black Lives Matter and #MeToo have led organizations around the world to focus more heavily on Diversity, Equity, Inclusion, and Accessibility (“DEIA”) initiatives, but all too often accessibility is left behind in these efforts. While WCAG can be confusing, making CITY’S website accessible is still the easiest and impactful way of promoting DEIA to its citizens with disabilities. Also, because WCAG addresses language support for assistive technology, making CITY’S website accessible can also help address issues of intersectionality because it helps non-English speaking members of CITY’S community with disabilities. This is a vital time in our society’s development to focus on accessibility. Addressing accessibility is always easier in the design and development than trying to retrofit for accessibility later. This makes it essential for CITY to focus hard on accessibility during this RFP.

And Don't Forget About Micro-Purchases

And remember what I said about how micro-purchases can be made outside of the normal RFP process? There isn’t any reason to not remind them about that option at some point in your proposal. Assuming your services really are below the threshold, you can include a paragraph like the following in your proposal,

As you can see from our pricing above, we anticipate that the total price of our services is $XX,XXX. This amount is below the micro-purchase threshold for CITY and we would be happy to entertain a contract outside of this RFP that enables CITY to simultaneously meet its needs under this RFP and its legal obligations for its citizens with disabilities.

That way, if the agency gets scared about their risk profile, they can always slip in some emergency funding to hire you that way.

Next Time

So that, in a very tiny nutshell, is my experience and recommendations for promoting accessibility as a vendor in a state or local government IT project.

In my next installment in this series, I’ll talk about promoting accessibility from within a state or local government agency. But, here’s a hint to the solution: the core problem for most agencies isn’t an unwillingness to embrace accessibility. Instead, the real source of the problem is a lack of easy access to web accessibility expertise.

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