Thread Subject: Re: Draft Questions

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From: McCarthy, Jim
Date: Fri, Dec 29 2006 4:20 PM

Government procurement is a new animal for me so pardon the ignorance. Nevertheless, I certainly want to understand.

Don and Tom have both responded to Barbara's undue burden discussion. In my view, they both imply that undue burden is really a small part of a federal agency's procurement consideration. This is so, I take it, because of the "commercial unavailability, and fundamental alteration exceptions, which are used much more often to justify procurements that may not strictly meet access requirements but would fail to rise to the undue burden level. I know that commercial unavailability is statutory , and I think that fundamental alteration was added by the Access-Board itself.

Government employees who are members of TEITAC or involved in this subcommittee have educated many of us regarding the numerous procurement requirements. These include "buy American," green requirements, disability access and several others. The best I can figure is that a procurement specialist does the best she can to meet these requirements, and when that cannot be done, she reconciles the conflicts the best she can. I guess this could mean making the best justification for a desired outcome. There has also been discussion of the agency's business case for the purchase. My question is how are these things actually prioritized? Is business case the top priority? If buy America can not be done while providing a widget that "best meets" the 508 standards, how would that sort of conflict be resolved? Maybe that is a question that would need court intervention, but I am not sure.

I am struggling I think with what several are on this list. In many instances, the plain language of the standards is "shall". On the other hand, their application appears to be more in the realm of "should." The more like shall is the application, the more accessible will be the E&IT of federal government agencies, which is what I certainly want. However, I can imagine that many of the procurement laws read like this one with Congress punting the thorny question of "how do we resolve all these seemingly disparate requirements with as little conflict as possible?" I would guess that agencies inevitably resolve this based on the strongest interests as regulatory matters are generally resolved, so long as the result does not violate the law. Assuming that to be true, people with disabilities are not in a very strong position given the low rate of our employment in the federal government, a rate that is decreasing rather than increasing. Happy New Year to all!
Jim McCarthy

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