Thread Subject: Re: Undue Burden
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Date: Thu, Nov 16 2006 12:45 PM
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Jim Tobias wrote
I think we might all agree that any guidance materials on the concept of
"undue burden" should include examples of claims that were accepted,
etc. This would provide the best possible guidance to those seeking to
understand what their responsibilities are. I asked at the last
face-to-face meeting about the public record of claims, contentions, and
resolutions regarding "undue burden", but didn't hear an answer beyond "we
don't have as much as you think we might, or should". So I have the
1. Is there a compendium anywhere of any number of cases in which undue
burden was claimed, and what the resolution was?
>Terry Weaver comment starts>: Since Section 508 was not assigned to
anyone Federal agency to supervise its implementation throughout the
Federal sector, there aren't any centralized records. Additionally,
claims for undue burden must be decided at the agency level because it is
a decision of an agency that trades off the difficulty/complexity/expense
of following Section 508 provisions versus the resources that the agency
component has available to it.< TW comment ends<
2. If there is no such compendium, do we want to recommend that one be
created, to help manage implementation?
>Terry Weaver comment starts> In my opinion, that is outside of this
committee's scope since it would fundamentally change the law.<TW comment
3. Are individual agencies reserving the right to define how the concept
applies to them?
>Terry Weaver comment starts> Federal agencies are following the law in
making undue burden decisions themselves. Ultimately, the agency is the
entity at risk in a law suit. <TW comment ends<
4. What is the role of the Dept. of Justice in coordinating a common,
enforceable set of practices for this concept in the context of 508?
>Terry Weaver comment starts> The law provided two roles for DOJ (other
than complying with Section 508 itself) - first, it is to report to
Congress on the progress Federal agencies are making in the implementation
of Section 508. DOJ surveys Federal agencies to collect the data it needs
to make the report. The DOJ survey asks questions regarding the frequency
of undue burden claims (among other things)but since agencies are not
required to track them, very little data is available although it is
envisioned that agencies might be better prepared in the future to answer
such questions as were included in the last DOJ survey. Oh, and DOJ's
second role is to defend Federal agencies in court against such
lawsuits.<TW comment ends<
5. Is there any overarching program for indexing federal purchases that
could fit into? That is, is there a program that keeps track of
the feds buy, for some general purpose like cost containment, or a
purpose, like energy efficiency?
>Terry Weaver comment starts> The Federal Procurement Data System - Next
Generation (https://www.fpds.gov/)is the central repository for
procurement data. It captures contract data but not (I believe) pre-award
documents. Requirements determination, agency approvals, etc... would not
be a part of the contract file data which FPDS-NG tracks.<TW comment ends<