Most often the focus of accessibility training is design and development techniques for creating accessible web sites and applications. That’s almost too late, though, isn’t it? Today we’ll look at the procurement piece of the puzzle. We talk with Ron Lucey about how the state of Texas uses procurement policies, contract language and remedies to help deliver on the promise of making the web accessible to everyone.

Most often the focus of accessibility training is design and development techniques for creating accessible web sites and applications. That’s almost too late, though, isn’t it? Today we’ll look at the procurement piece of the puzzle. We talk with Ron Lucey about how the state of Texas uses procurement policies, contract language and remedies to help deliver on the promise of making the web accessible to everyone.

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Ron Lucey interview transcript

This is the transcript of an interview recorded on April 23, 2014 between Derek Featherstone, and Ron Lucey, Manager, Policy Technical Assistance Unit and Accessibility Team,
Texas Department of Assistive and Rehabilitative Services (DARS). It was recorded over Skype and posted as part of John Slatin AccessU 2014 podcast series.

Interview summary

Derek: Most often the focus of accessibility training is design and development techniques for creating accessible web sites and applications. That’s almost too late, though, isn’t it? Today we’ll look at the procurement piece of the puzzle. We talk with Ron Lucey about how the state of Texas uses procurement policies, contract language and remedies to help deliver on the promise of making the web accessible to everyone.

Ron will be speaking at the upcoming John Slatin AccessU, May 12th to 14th, 2014 in Austin, Texas, presented by Knowbility, this is THE conference to go to for in-depth, hands-on, minds-on accessibility training. Check it all out at Knowbility.org


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Derek: Hey everybody. This is Derek Featherstone from Simply Accessible and we are here today to talk to you about contracting and procurement as it relates to accessibility. We are talking with Ron Lucey today, who is going to be one of the instructors at the John Slatin AccessU held by Knowbility in Austin, Texas, May 12th through 14th, 2014. Ron is going to give us a quick overview of who he is and we’re going to talk to him about his topic at AccessU, which is Contracting and Procurement for Enterprising Government.

Ron, how are you?

Ron: I’m doing great. Thanks. A little background on me… I have the honor of managing the DARS Accessibility Team, a team five accessibility specialists and many of them are veterans of being instructors at AccessU over the past several years. I also manage a team of web developers here at DARS that maintain our agency’s internet and intranet websites.

I’ve been attending AccessU going back to 2005. I’m also a person with a disability; I have a vision impairment, I’m considered legally blind and I use a large collection of assistive technology.

Regarding the topic I’ll be presenting on, my interest in accessibility and procurement goes back many years. I was the first Accessibility Coordinator at the five Health and Human Services Agencies. When the Texas version of Section 508 passed back in 2005, I was responsible for helping to develop our accessibility policies here at the five HHS agencies. Once we got a policy in place the next step was to start building out the info structure of accessibility in our state agencies. One of the first pieces we tackled was developing contract language for all of our procurements of electronic and information resources, and also developing training on procurement and contracting for accessibility.

I worked back in 2008 with our lead counsel for HHSC (Health and Human Services Commission), one of the veteran members of our enterprise contracting and procurement department at HHSC, and also our Office of Civil Rights, and we put together what I thought was a pretty good model contract clause for accessibility, which really replaced one of the earlier state contract clauses that really didn’t say anything. It didn’t really hold vendors to accountability, so we replaced that with something that came with a lot more accountability and also included remedies that state agencies could employ when they purchased software or services, web services or electronic and information resources, they actually had remedies to go back and try to get a vendor to fix what was not accessible without essentially cancelling the entire contract.

Derek: It sounds like you’ve been doing this for quite awhile and it sounds like you’ve got quite a detailed program and plan there. I’m really interested, because the State of Texas is always kind of held up, I think, as a model for procurement. We often talk with people about different pieces that you need to have and create an accessibility program at an enterprise level. One of the critical pieces is procurement, so I think that’s why it’s really important.

We often talk about development techniques and design techniques, and the very practical hands-on pieces that are well known practices for designers and developers, but there is something bigger that we have to speak to because in so many cases. I know I’ve seen this and I’m sure this is part of what created the impetus for type of contracting and procurement – we’ve found before that quite often we are limited in what we can do from a design and development perspective because of some decision that somebody else has made. Quite often that decision is all about procurement, either it’s a product that has been purchased or it’s the services of a third party that maybe isn’t even aware of accessibility requirements and things like that.

Procurement is always an integral piece of assuring that we have accessibility at the highest levels. Without giving away too much of your talk, I’m kind of interested in knowing a little bit more about this. You mentioned that there’s specific language that is in your contracts. Is that something that you’re able to share, is that public? What kind of language have you built in there, in terms of requirements for accessibility? Feel free to not give me all the details, but certainly just a little taste of it.

Ron: First of all, I’d also like to mention my copilot for the presentation, I’m going to be presenting with Crystal Baker. Miss Baker is the Accessibility Coordinator for the Health and Human Services Commission.

Derek: Oh, excellent.

Ron: When I talk about what I have done, all of what has been accomplished at the five HHS agencies has been a huge team effort with lots of dedicated accessibility subject matter experts. It started out with just one accessibility coordinator and now we have five, one for each of the five agencies.

One of the things that make it so successful at the HHS enterprise is that we work collaboratively as a team. The five accessibility coordinators and their alternates get together each month in a work group and we develop the info structure of accessibility, whether it be the model contract language or the contracting and procurement training to make sure that all the purchasers at our agency are trained to understand accessibility and accessibility specifications.

We will be sharing our model best practices with the people that attend the training. They’ll walk away with a copy of the training that they can modify at their own organization. What we’ve done is we’ve tried to Texify it, we’ve tried to not just make it so specific to the five HHS agencies but tried to develop the training in a way that it could be applied to any institution of higher education, state agency, or enterprise organization.

We’re also going to be providing other procurement tools to help a purchaser or contract manager evaluate different examples of electronic and information resources, or information communication technology, whatever 508 or Texas term you want to use. That will be using the VPAT (Voluntary Product Accessibility Template) and we’ll have different examples of products and filled out VPATs from national vendors that people attending the training can look at and compare Product A with competing Product B, and go through and understand how those design standards that you talk about turn into specifications and how they line up against the 508 standards that we have to follow.

Derek: It sounds like there is a real practical component in terms of what people will actually be doing in the class, but also in terms of what they’ll take away. That sounds to me like it’s one of the best pieces of any training is that it has some immediate value for the people that are there.

Tell me a little bit more, I’m really interested in this. Part of it is we come up with policies and legislation that all work really well or look really good on paper. I’m interested to see how your model contract language works. We know that the real world of accessibility gets kind of messy and things like that. Partly because even though you may sign on with a vendor for providing you with some kind of piece of software or even accessibility services, or web design or development services, quite often we see that contracts or engagements are large enough that they actually end up not being just that person or that organization that does work, but that sometimes it’s outsourced to other teams that come in. So there’s not just a third party involved, but maybe multiple third parties.

Is that something that has been an issue that you’ve had to deal with before?

Ron: Absolutely.

Derek: Has your contract language changed to incorporate some of those types of situations?

Ron: Our language addresses subcontractors and also subcomponents of web portals and technology, so that a vendor or provider can’t outsource their accessibility responsibilities and offload it. The accountability goes all the way down the line.

We do talk about where the accessibility laws and policies apply and where they don’t. There are certain things where in a contract the deliverables need to be accessible, but the technology that the vendor is using doesn’t have to be accessible. I’ll give you an example.

If we hire a company to build a human resources portal so that our employees can track their time and leave, and use that portal for screening and hiring applicants, we want the deliverable (the web portal) to be accessible, but we don’t care if the company that’s building that for us if the technology that they use is necessarily accessible. What payroll software they use to pay their developers or what accounting software they use doesn’t matter. Even the development tools that they use, as long as the output or the deliverable is accessible that’s what we care about.

We talk about indirect and direct examples of EIR, we talk about where the policies are applicable and where they aren’t. We also talk about real life examples. One example I like to use is if a state agency goes out to purchase wellness services for their employees. A lot of times when you think of wellness services you’re thinking about counseling on smoking cessation or weight loss. A wellness program could include somebody coming in and talking to employees, but more often than not it’s going to use some sort of technology solution like online chat or telephone counseling.

In the contract, even though we’re setting up the purchased wellness services, the indirect use of electronic and information resources kicks in our accessibility clause. If there is going to be a website with online chat, that needs to be accessible so that our employees who use a screen reader or use assistive technology can participate in that wellness program. If we have employees who are deaf or hard of hearing and our contract for wellness services includes video or multimedia content, that needs to be captioned. If there is also telephone counseling available for that wellness program, that needs to work with video relay or with TTY.

We go into a lot of examples and scenarios in the training where most of the mistakes we see are made in large organizations where somebody sets out to purchase something and they don’t think they’re purchasing technology, they don’t think they’re purchasing software, or purchasing electronic and information resources, because they’re purchasing something as innocuous as substance abuse counseling, but because the solution and the way that service is delivered it involves the use of electronic and information resources. Therefore, the contract clause that we use at HHSC has to kick in.

Derek: That makes really good sense. I love that idea. It seems like it’s an innocuous purchase, but really, and I think probably for most solutions to almost any problem today, technology is involved. So I think it’s probably a safe bet that even if it doesn’t seem like it does include a technology, it probably does in some way, shape, or form. That’s interesting.

The other thing that you mentioned that made my ears perk up a little is the idea of specific remedies. What kind of remedies are in place? That sounds almost a little bit scary, but what types of remedies are we talking about?

Ron: Back in the old days when the contracts were not written very well to include specific remedies, a lot of people perceived that the only option was the death penalty. If we hired a contractor and they built something and it wasn’t accessible, what do we do? At that point we’re so heavily invested in what we have, to just get rid of the contractor and the deliverable didn’t seem like something that anybody wanted to do, so we were essentially stuck with it.

With good contract management and a contract clause that spells out in advance what the remedies or the range of remedies can be, it can be anything from withholding payments to requiring that the contractor repair the broken part of accessibility in the interface to asking them to replace any inaccessible electronic and information resources with a different product.

Sometimes we might be talking about hardware. If we purchase a piece of office equipment, like a copy machine that has scanning, faxing, copying, and printing functions, and one aspect of that multifunction machine is inaccessible to employees who have a vision impairment, one of the remedies could be if they’re not able to create an accessible interface through a mobile device or a piece of add-on technology that they might have to provide a separate product, like a cheap $79 desktop scanner or some other product that can meet the functions that are not accessible.

Often what we find is it’s very rare when we go out to purchase technology that 100% of that technology is going to be accessible. Any time we go out and we negotiate, first what we do is we want to make sure we conduct good market research to find the best accessible product that meets our business needs. After we’ve done that, we’ll do an assessment to see what’s accessible and what’s not. It may start with a paper assessment of looking at the VPAT, but ultimately when it comes down to the very large procurements we’ll get actual models of the products or software that we’re going to be purchasing and we’ll test it.

The software testing we use all the traditional software testing tools, the RASR plugins and assistive technology. Some of the hardware things, like the copy machine that I’m talking about, I like that type of accessibility testing because we actually pull out measuring tape and we’ll measure against the standards for vertical height and the horizontal plane and where the paper drawers are and everything. We’ll find out and write a report about what is accessible.

Before each party goes in to sign a contract, if they know in advance that something is not accessible and both parties agree to it, there should be a business process within that agency or organization to say, “All right, we need an exception to our own policy, because we know that we’re purchasing something that is not fully accessible and both the contractor and we have agreed to that.” The contractor may not be held responsible for providing that alternate means of access, it may the responsibility of the employee or the agency.

Earlier I mentioned if our employees who are blind can’t scan documents on the office copy machine and we provide a desktop scanner for them, it might be our responsibility to pay for that out of our own budget for employees that need that accommodation, but we do that knowing in advance what we’re getting into. All of this should be done up front with full knowledge and not be done after the fact.

What excites me about the procurement part of accessibility is if you measure the amount of money that a state government spends on electronic and information resources it’s over $3 billion per biennium. In some ways that’s a lot of money, in some ways it’s not, but it’s certainly enough to start transforming the marketplace. If all of the state agencies in Texas and all of the institutions of higher education hang together, if we all stick together on this and we start holding vendors accountable, the free market really will reward those vendors that make more accessible products. And they should be rewarded.

If a company builds a better copy machine, or builds a better human resources portal, or a better software that is accessible, state governments should reward them with contracts. Over time the other companies that don’t get those contracts because of accessibility should be getting the message.

Derek: It sounds like everything is quite well planned out. You’re hitting all the points that I think most people would kind of wonder about, “What’s the plan for this in advance? We know we’re going to potentially run into these problems, so what is the plan to deal with that when it happens. What are the alternatives that are available to us? Do we need exceptions? Whose responsibility is it to provide the alternative, is the state agency, is it the contractor, is it the supplier?”

It sounds like it’s quite well thought out. I have a couple of questions about that for you and I don’t want to take up too much more of your time.

One is it sounds like a great system, it sounds like it’s working reasonably well. I guess I’m curious to know what your assessment is of it. Is it working? Are there still gaps that you’re seeing that you need to identify and keep working on?

The second question is we’re talking about Texas right now, have you seen other states or other jurisdictions worldwide, have they gotten in touch with you and said, “Hey, we want to bring this same model into our state,” or country? Have you had any interest from other people from outside of Texas about how you’ve built this program?

Ron: First of all, when I talk about progress I tend to take a long view of progress. I don’t want to say that progress is glacial or geological in its speed, but when I look back on what we’ve accomplished, we’ve accomplished a tremendous amount when it comes to accessibility implementation. When I look ahead and see what still needs to be done, I’m still challenged and sometimes frustrated about how much work still has to be done.

HHS, the five agencies – DARS, DADS, DFPS, DSHS, HHSC – we’re just a fraction of state government. There are other shining examples in the State of Texas of other state agencies that are doing a really good job with accessibility implementation. These are agencies where you wouldn’t expect that this would be one of their primary things, like the Texas Commission on Environmental Quality, their natural constituency is not Texans with disabilities, it’s clean air and clean water, but they have a really great model program for accessibility implementation.

What I like to recommend to other agencies, including our own, is you cannot apply the same level of due diligence to all of your purchases, you just don’t have enough testing resources and enough time to test everything and as thorough of a market research job on every purchase, and you shouldn’t do the same level.

If you’re going out and you’re doing a $5 million office copy machine contract that is going to be in place for four years, that should require a lot of due diligence. But if you’re purchasing some software for your rabies lab to test for rabies for outbreaks and you’re only going to purchase two or three copies of some very specialized software that is just going to be used by a couple of lab technicians, you probably aren’t going to apply the same level of due diligence to testing that software and doing the market research on it.

I like to take a cue from Walmart, they’re not all things to all people, they’re the most important things to the most people. That’s their profit model. We can’t be all things to all people when it comes to accessibility in our own organization because we just don’t have the bandwidth. But if we know there is a contract out there that is going to be a multimillion dollar contract that is going to be purchasing new desktop computers or new portal software for contracting and procurement or human resources, that’s something that we need to get deeply involved in because that’s something that is going to touch the greatest number of employees or something that is going to involve our members of the public accessing services.

That would be the guidance I would give a lot of students attending the class at AccessU is in addition to coming up with a good accessibility implementation plan for procurement in your own organization, make sure that the plan is scaled to the level of risk and to the level of importance of what you’re trying to do.

We do get a lot of inspiration outside of Texas and a lot of interest. I think the State of California has done a really good job. In California State University, for example, they really had a lot of early progress on accessibility and procurement and we learned from them when we got started. We’ve had contacts from around the country, people asking what Texas is doing. The State of Minnesota has contacted us and other states around the country.

We all learn from each other, that’s what I like about the accessibility community. There’s no patent on a good idea, everybody borrows each other’s good ideas.

I always tell my colleagues in state government that the taxpayers shouldn’t have to pay for the same good idea more than once. If there’s already a good model out there that the taxpayers have paid for, then we should share it with other agencies and organizations and learn from each other.

Derek: That makes great sense. It sounds like it’s a really pragmatic and sensible approach to not only accessibility, but also to just business in general. That really sounds like a great approach. That’s great.

You said you’ve been going to AccessU since 2005. That was my first AccessU, as well. We have a lot of people that come into AccessU that are from out of state or out of country, some people even come in from half way across the world because they know that this particular conference, this AccessU, is probably some of the most practical and pragmatic training on accessibility that they can get that touches all the different aspects of accessibility.

We get people coming in from everywhere that don’t know Austin, so I’d like to ask you, as somebody that has been going to AccessU for quite some time and presenting for quite some time, what is the one thing that people who don’t know anything about Austin should try to take in while they’re in Austin? What’s your must-see thing for them?

Ron: That’s a tough one, because I’m a stodgy old dad who has three young children who doesn’t get out a lot. I certainly enjoy the social gatherings of AccessU, going to the bar to get a pint with everybody on Tuesday night. Austin is just a great town, the downtown area, the Warehouse District and 6th Street, that’s a lot of fun. We’ve got great food and great live music.

I have to say, it depends on what interests you. For me, I’m an outdoor guy. When I have free time, I’m enjoying canoeing on Lady Bird Lake with my kids. You can rent a canoe down there at Zilker Park. This weekend I’m going to be going to Fredericksburg with my sons who are in Boy Scouts and they’re going to be learning about aviation and going up for flights in private planes.

I’d say enjoy all of the Hill Country, if you can come and make a week of it, go out and try some of the wineries that we have in the Hill Country and enjoy all that Austin has to offer. The live music scene is great, the food is great, and it just depends on where you’re at in your life and what you enjoy. For me, it’s enjoying nature and outdoors and the hike and bike trails that we have around Austin.

Derek: That’s excellent. There is definitely something for everyone in Austin. I think that’s a great way to wrap this up. I really look forward to connecting with you in person at AccessU. Thank you so much for taking the time today.

This has been really quite enlightening and I think you’ve given a wonderful overview of what kind of content people should expect in your session. Thanks again, so much. We’ll see you in Austin.

Ron: You’re welcome. I’ll see you in a couple of weeks.

Derek: Awesome. Thanks.

Ron: Bye.


Derek: Ron’s session is sure to be a hit. Make sure you get there to see all the details of how they manage contracts, deal with procurement, and hold their vendors accountable for accessibility. Register now for AccessU or find out more about all of Knowbility’s great programs at knowbility.org – that’s k n o w b i l i t y dot org.

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