INCREMENTALISM: ERODING THE IMPEDIMENTS TO A GLOBAL PUBLIC PROCUREMENT MARKET

Georgetown Journal of International Law, Spring 2007 by Yukins, Christopher R, Schooner, Steven L

One intriguing example in this sphere is the collateral (or "secondary") procurement policy of requiring that government agencies generally purchase only information technology that is accessible to persons with disabilities. This requirement, now enshrined in U.S. federal procurement rules,45 proves particularly relevant because the European Union is considering a similar accessibility requirement for procurements in its member states.46

As in the United States, the goal of the European effort is to leverage government procurement to increase accessibility across the information technology marketplace, both inside and outside government.47 The European "eAccessibility" initiative, like the accessibility initiative in the U.S. procurement system, is thus a typical "collateral" policy imported into the procurement system: a social goal carried out through the procurement process, but not direcdy related to the procurement system's core mission. Although the European initiative is several years behind the United States' effort, there is every indication that the European Union will follow much the same path, and promulgate technical standards for accessibility that European agencies will have to follow in purchasing information technology and communications equipment. The U.S. experience is therefore important in predicting the trade impact that a matching regime might have in Europe.

In principle, the U.S. accessibility requirements could have proven terribly discriminatory against foreign suppliers. Unlike the European initiative, which seeks to build on harmonized international accessibility standards,48 the U.S. accessibility standards-writers did not simply rely on industry standards, but in many instances crafted their own specific standards under Section 508 of the Rehabilitation Act.49 Foreign vendors thus faced a real risk that their electronics and information technology products, not developed in accordance with the unique U.S. standards under Section 508, would be excluded from the U.S. procurement market.

In practice, however, the U.S. accessibility standards proved less restrictive than expected for both domestic and foreign vendors. The U.S. accessibility standards were overtaken by changes in technology and hampered by their incompatibility with emerging international standards.50 The accessibility standards left numerous loopholes for agencies and vendors,51 and in implementing the standards in procurement, agencies have not been aggressive in forcing accessibility.52 Vendors, for their part, have proven reluctant to challenge agencies or competitors on accessibility through bid protests or otherwise.

The agencies' slow implementation of accessibility requirements may be due to the sheer complexity of the standards, but is also likely due, in part, to agencies' resistance to "collateral" policies that distract from the agencies' core missions.53 For many of the same reasons that agencies resist traditional domestic preferences such as the Berry Amendment's specialty metals ban-agencies' reluctance to incur additional costs, suffer delay, or lose focus in procuring best value-agencies are likely to resist collateral (or "secondary") policies in procurement. This is not, of course, to argue that collateral policies are not important in procurement, or to suggest that they will not work, in practice, to discriminate against foreign suppliers, which are generally less familiar with how those policies are implemented in procurement systems. The point instead is that the protectionist impact of these discriminatory collateral policies-and the impulse to accommodate them in the first place-will likely be muted by agencies' stubborn reluctance to implement preferences and policies that are not, at bottom, the agencies' own.