Thread Subject: Re: Undue Burden

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From: terry.weaver@gsa.gov
Date: Thu, Nov 16 2006 2:50 PM

Jim Tobias: Thanks for your reply, Terry. I have a few follow-ups.
>>TW reply>> I will give my take on your questions<<TW<<

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
ends<

JT: I don't understand this. Surely an agency is allowed to keep records
regarding its purchases. Or are you saying that agencies would not want
to reveal this information, so they would have to be forced to do so by
law?

>>TW reply>> I wasn't saying that agencies can't keep records - it just is
not required to keep this particular data as a summary count. There are
so many record requirements that most agencies don't quickly add new
requirements. Most agencies that have put an undue burden process in
place have that process under the authority of the requiring official side
- usually the CIO. Data that is collected about actual contracts awarded
come from the procurement side - under the senior procurement executive or
the chief acquisition officer (CAO). Two different organizational
entities with two different functions and record retention practices. It
is a generally accepted principle that you want to keep any decisional
documents used so that it can be referred to in case questions arise
later. (Otherwise known as CYA) We suggest in our training that records
be kept of market research results and of any exception claimed. Some
agencies have strong requirements for this to be documented and retained.
But this is information about an individual procurement action and not
summary data on all procurements for that agency. To get that would
require review of each individual procurement's historical data.

We asked for this information in the 03 survey to prompt agencies to start
collecting it - it remains to be seen if that approach worked.<<TW<<

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<

JT: Wow, so the same agency both oversees implementation and defends
agencies against complaints! I must be naive.... Anyway, let me see if
I've got this right. DoJ must perform the biennial survey by law, and one
question is "how many undue burden claims have you processed", but the
agencies answering the survey are under no obligation to be able to answer
that question. Is that right? I like the "envision[ing] that the
agencies might be better prepared in the future" part. In your opinion,
can TEITAC do anything to make that vision a reality?

>>TW reply>> One thing to remember is that the law did not place oversight
authority with any agency, even DOJ. They are charged with reporting
progress to Congress, not with enforcing compliance within agencies.
However, most agencies want to be able to respond to inquiries such as the
DOJ survey therefore, the DOJ survey questions themselves are structured
to point out what is the preferred behavior. We hope that the next survey
can ask for actual data counts because the suggestion was made in the 03
survey. Regarding your question "can TEITAC do anything" to motivate
agencies to collect his data, I'm not sure what that might be. The only
real motivator would be the next DOJ survey coming out and demanding that
information.

Since DOJ is responsible for representing Federal agencies in any Section
508 lawsuit, they presumably would have data on the number of lawsuits
filed. They would not have any data on the number of administrative
complaints filed with agencies.<<TW<<

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