Public procurement as a means to achieving social gains – progress and challenges in European legislation and standards for accessible information and communication technology

Abstract

This article explores the European Commission goal of improving the quality and level of accessibility in mainstream information and communication technology (ICT) goods and services available in Member States through the use of public procurement legislation and performance standards. Over the past two decades, the Commission has encouraged Member States to adopt common requirements for accessibility and to strengthen efforts to use these requirements in public procurement. In the absence of significant improvements in the level of accessibility over this time, the Commission has more recently committed to bringing forward legislative proposals to harmonize the accessibility requirements used by Member States. A new procurement directive package contains stronger obligations on public bodies to include accessibility as mandatory requirements in Technical Specifications. In parallel to this, a standardization mandate by the Commission to the European Standards Organizations (ESOs) concluded in March 2014 with the publication of the first European standard on ICT accessibility. In light of these developments, this article analyses the trajectory of European policy in the field of accessibility over the last two decades, and the interplay between European public procurement, standardization and law. It examines how far these developments have succeeded in bringing into being a public procurement eco-system that will nudge the market in Europe to producing affordable and accessible ICT products and services for persons with disabilities.

Keywords:

• accessibility
• public procurement
• ICT
• standards

Conflict of interest disclosure

No potential conflict of interest was reported by the author.

Funding

This work was funded by the PRTLI Cycle 4 – the Programme for Research in Third Level Institutions – awarded to NUI Galway.

Notes

1. Two Directives from this period, on the applications of open network provision (ONP) to voice telephony, included measures to ensure equal access to and affordability of fixed public telephone services, including directory services. A third Directive on radio and telecommunications terminal equipment contained the possibility for the Commission to decide that certain types of terminal equipment shall support accessibility features. See Directive 95/62/EC of the European Parliament and of the Council of 13 December 1995 on the application of open network provision (ONP) to voice telephony, OJ 1995 L 321/6. See also: Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment, OJ 1998 L 101/24: Directive 99/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity, OJ 1999 L1/10. From 2000 onwards, the requirements of persons with disabilities in telecommunications regulation was increasingly considered under the umbrella of the Universal Service Obligation (USO) whereby all users regardless of geographic location were entitled to a telephone service at reasonable cost. See Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, OJ 2002 L 108/51.

2. The accessibility requirements for telecommunication equipment and services recommended by one Cost 291 thematic paper on Universal Services issues included: induction coupling on all telephones, amplification on pay telephones, national text telephones relay service and design features such as notched cards for all payphones and raised (tactile) central indicators on keypads.

3. For more on the TIDE programme see http://cordis.europa.eu/programme/rcn/337_en.html (last accessed 15 April 2015).

4. Communication from the Commission ‘Towards a Barrier Free Europe for People with Disabilities’, of 12 May 2000, COM(2000)284 final.

5. Communication from the Commission ‘eEurope 2002 – An Information Society For All – Draft Action Plan prepared by the European Commission for the European Council in Feira 19–20 June 2000’, of 24 May 2000, COM(2000) 330 final.

6. Communication from the Commission. ‘eEurope An Information Society For All Progress report for the Special European Council on Employment, Economic reforms and social cohesion towards a Europe based on innovation and knowledge Lisbon, 23 and 24 March 2000’ COM (2000) 130 Final.

7. See ex pluribus: Communication from the Commission ‘Communication on eAccessibility’ COM (2005) 425 final. See also Communication from the Commission ‘Towards an accessible information society’ COM(2008) 804 final.

8. Communication from the Commission ‘Towards a Barrier Free Europe for People with Disabilities’. COM(2000)284 final; Communication from the Commission ‘Europe 2020 – Flagship Initiative Innovation Union’, of 6 October 2010, COM(2010) 546 final.

9. Rehabilitation Act 1973 42 USCA § 4151 et seq.

10. Rehabilitation Act, s 508 (29 USC 794d), as amended by the Workforce Investment Act of 1998 (PL 105–220), 7 August 1998. United States Access Board (1999).

11. United States Access Board s508. Available at http://www.access-board.gov/508.htm (last accessed 9 September 2014).

12. Communication from the Commission ‘i2010 – A European Information Society for growth and employment’, of 1 June 2005, COM (2005) 229 final; Communication from the Commission ‘Communication on eAccessibility’ of 13 September 2005, COM (2005) 425 final.

13. Commission Staff Working Paper ‘Delivering eAccessibility – Improving disabled people's access to the Knowledge Based Society’ of 3 October 2002 SEC(2002) 1039.

14. More formally, ISO defines certification as the ‘the provision by an independent body of written assurance (a certificate) that the product, service or system in question meets specific requirements http://www.iso.org/iso/home/standards/certification.htm (last accessed 15 April 2015).

15. Council Resolution on 6 February 2003, ‘eAccessibility’ – improving the access of people with disabilities to the knowledge based society’ (2003/C 39/03).

16. The Web Accessibility Benchmarking (WAB) Cluster of projects was a series of three projects funded under the FP6 action line of eInclusion. Available at http://www.wabcluster.org (last accessed 15 April 2015).

17. EN ISO/IEC 17000 defines a third-party conformity assessment as one ‘performed by a person or body that is independent of the person or organization that provides the object and of user interests in that object’. It is typically carried out by an entity that is certified to carry out such audits by an independent body. In contrast, a first party attestation, also known as a Self Declaration of Conformity’ (SDoC), as described in EN ISO/IEC 17050, is supplied by the supplier and may or may not be based on independent auditing.

18. For more on the use of web accessibility certification see Giannoumis’ (forthcoming) article ‘Auditing Web accessibility: the role of interest organizations in promoting compliance through certification’.

19. Communication No. 1/2010, Views adopted on 16 April 2013, Committee on the Rights of Persons with Disabilities. Views adopted by the Committee at its ninth session (15–19 April 2013). Available at: www.ohchr.org/Documents/HRBodies/…/CRPD-C-9-D-1-2010_en.doc (last accessed 15 April 2015).

20. Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical regulations and standards’ OJ 1983 L 109/1. This ‘Information directive’ was replaced by the consolidated version of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations OJ 1998 L204/37. See also Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on European standardization’ OJ 2012 L 316/12. See also Communication of the Commission ‘A strategic vision for European Standards’ COM(2011)311 Final.

21. For a listing of harmonized standards published in the OJEU see http://ec.europa.eu/enterprise/policies/european-standards/harmonised-standards/#h2-1 (last accessed 15 April 2015).

22. Mandate 273 to the European Standards Bodies for Standardization in the field of information and communications technologies (ICT) for disabled and elderly people, M/273 – EN, Brussels 29 September 1998. Mandate 283 to the European Standards Bodies for a guidance document in the field of safety and usability of products by people with special needs (e.g. elderly and disabled), M 283 – EN, Brussels 24 June 1999.

23. Mandate 376 to CEN, CENELEC and ETSI, in support of European Accessibility Requirements for Public Procurement of Products and Services in the ICT Domain, M 376 – EN, Brussels 7 December 2005.

24. Clause 1 of EN 301 549 states that the test descriptions and evaluation methodologies of the standard are elaborated to a level of detail compliant with ISO/IEC 17007:2009 ‘Conformity assessment – Guidance for drafting normative documents suitable for use for conformity assessment', ‘so that conformance testing can give conclusive results’.

25. Taken together; the Functional Performance Statement, the related detailed accessibility requirements and their related tests the standard provides a level of detail that is complaint with the relevant ISO standards for conformity assessment.

26. The WAI guidelines are contained in Annex A of the EN as an ‘electronic attachment’.

Dialogues between the European Commission, the US Access Board and the ETSI Task Force took place throughout the development of the EN, but more broadly were occurring as part of the EU–US dialogues on economic cooperation and standards development.

27. See http://mandate376.standards.eu (last accessed 15 April 2015).

28. The Toolkit provides templates covering five types of evidence as defined in ISO/IEC 17000:2004: first-party declaration, supplier's declaration of conformity, second party attestation, third-party conformity assessment, and an accredited third-party certification. Article 42 of the current Directive requires that the procuring authority must accept other appropriate means of proof from the supplier (such as a Technical Dossier) where the supplier has no access to test reports, certificates or declaration of conformity.

29. In comparison, in terms of legal enforcement, the Section 508 guidelines are a mandatory set of requirements in the public procurement of ICTs under the 1998 Rehabilitation Act.

30. Directive 2004/17/EC of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, OJ 2004 L134/1. Directive 2004/18/EC of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, OJ 2004 L134/114.

31. It compared the extent to which Member States had transposed the accessibility requirements contained in the 2004 procurement Directives through examining the ‘strength of language’ used in legislation. Other indicators looked at the degree to which Member states were required, in the text of national legalisation, to include accessibility as a criterion in the procurement process.

32. Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC OJ 2014 L 94/243; Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts Text with EEA relevance OJ 2014 L 94/1.

33. The Commission's FAQs webpage on concessions describe them as ‘partnerships between the public sector and mostly private companies, where the latter exclusively operate, maintain and carry out the development of infrastructure (ports, water distribution, parking garages, toll roads) or provide services of general economic interest (energy, water and waste disposal for example). Concessions are the most common form of Public Private Partnership (PPP).’ Available at http://europa.eu/rapid/press-release_MEMO-11-932_en.htm?locale=en (last accessed 15 April 2015).

34. This does not allow for non-cost criteria alone to govern the award decision. Recital (92) of the Public Procurement Directive states that ‘Qualitative criteria should therefore be accompanied by a cost criterion’.

35. Case C-368/10 Commission v Netherlands [2012] ECR 284.

36. In subsequent clarifications to queries from potential applicants, the procuring authority confirmed that equivalents to the specified labels were acceptable.

37. Standardization Mandate 473 to CEN, CENELEC and ETSI to include the ‘Design for all’ approach in several standardization initiatives, M/473 – EN, Brussels 1 September 2010.

38. Directive 2004/27/EC amending Directive 2000/83/EC on the Community code relating to medicinal products for human use, OJ 2004 L136/35. Directive 2001/85/EC of the European Parliament and of the Council of 20 November 2001 Relating to Special Provisions for Vehicles Used for the Carriage of Passengers Comprising More than Eight Seats in Addition to the Driver's Seat, and Amending Directives 70/156/EEC and 97/27/EC OJ 1997 L 42.

39. A series of Commission benchmarking studies from 2006 to 2012 provided data on the levels of ICT accessibility as well as information about the strength and breadth of related policies and laws within Member States. These benchmarking reports also produced some evidence to suggest that the adoption of different national standards and guidelines by Member States was resulting in market fragmentation. The ICT industry was being required to develop different products for different countries and as a result was passing on an increase in the cost of production to the buyer. This evidence helped validate the Commission's assertions in its Communications that the lack of harmonized standards was impacting on the smooth functioning of the Internal Market.

40. Commission from the Commission ‘European Disability Strategy 2010–2020’, of 15 November 2010, COM (2010) 636 final.

41. Proposal for a Directive of the European Parliament and of the Council on the accessibility of public sector bodies’ websites, COM(2012) 0721 final.