Thread Subject: Re: Draft Questions

Note

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From: Barrett, Don
Date: Fri, Dec 29 2006 7:15 PM

The other big problem with 2b is that these exceptions are almost tolerable assuming that proper market research has been done. In other words, the requiring official has looked at all x number of a given type of product, and has chosen the most accessible of the ones which best meet the business case. In that venue, if all of the given products are surveyed and none are accessible and meet the business case, commercial nonavailability for example, can be used with a true sense that all is well, or as well as it can be.

However, and I believe this is one of the biggest weakness of 508, I see little effective market research being done.

What generally happens in many procurements is that the customer led by the requiring official says "This is the product we want. Does it meet the standards?" If yes, they are happy and buy it; if no, they assume commercial nonavailability, and want to buy it anyway.

Bottom Line: I would absolutely love to see a market research requirement built into the rule.

Don


"-----Original Message-----
"From: = EMAIL ADDRESS REMOVED =
"[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of
"Diane Golden
"Sent: Friday, December 29, 2006 6:41 PM
"To: 'TEITAC Subpart A Subcommittee'
"Subject: Re: [teitac-subparta] Draft Questions
"
"The "commercial non-availability" exemption that both Tom and
"Don referenced is what we've been discussing as part of the
""best meets" language of Subpart A 1194.2(b). As far as I
"know this regulatory language not part of the 508 statute.
"(Someone correct me if that is not accurate.) I believe the
"Access Board rules are "birth point" of the "commerical
"non-availability" exception and that language is woven
"together with the "best meets" concept.
"
"In a very simplistic summary, 1194.2(b) adds the "commercial
"non-availability" exception which says agencies should first
"buy products which meet 100% of the applicable access
"standards when such products are commercially available. If
"there are no products commercially available that meet the
"applicable access standards at a 100% level, then the agency
"can buy products which "best meet" the applicable access
"standards. There is no direction on what "best meets" means
"-- the most number of standards met, the greatest degree to
"which individual standards are met, etc. There is also no
"explicit or even implicit acknowledement of any factor other
"than accessibility contributing to the final procurement
"decision. It does not say that 1194.2(b) is applied in
"accordance with or as part of the FAR or other governing
"procurement regulation. Instead, a plain reading of 1194.2(b)
"says that accessibility is the only deciding factor.
"
"I have no idea what the original intent was with the
"commercial non-availability exemption language (was
"accessibility meant to drive the decision making or were other
"factors assumed to be included and just not mentioned?)
"Regardless, it seems clear there is a disconnect between the
"1194.2(b) language and the FAR and other procurement policies.
"
"Diane Golden
"
" -----Original Message-----
"From: = EMAIL ADDRESS REMOVED =
"[mailto: = EMAIL ADDRESS REMOVED = ]On Behalf Of
"Brett, Thomas F
"Sent: Friday, December 29, 2006 4:12 PM
"To: TEITAC Subpart A Subcommittee; TEITAC Subpart A Subcommittee
"Subject: Re: [teitac-subparta] Draft Questions
"
"
"
"
""The notion, expersed in some of the emails, that there have
"to be many accessible versions of a particular type of
"software to make 508 compliance mandatory, or that access
"should be just one of many factors balanced in procurements,
"seems to contradict the plain language of the statute which
"makes exceptions only when "undue burdens" exist"
"
"There is another type of exception that many procurements use
"called the Commercially non-available exception. This is also
"provided for in the statute.
"
"I would think that undue burden would be extremely difficult
"to prove when one procurement is weighed against even a small
"agency's budget. It is my understanding that the only way
"Undue Burden could be used is when there is only 1 product
"that meets the agency's business needs that costs x amount for
"a non 508 compliant version but the compliant version would
"cost a significant amount more. The agency's business needs
"drive the procurement. The accessibility requirements are
"added to the business requirements.
"Tom Brett
"
"
"
"-----Original Message-----
"From: = EMAIL ADDRESS REMOVED = on behalf of
"Lybarger, Barbara (MOD)
"Sent: Fri 12/29/2006 4:54 PM
"To: TEITAC Subpart A Subcommittee
"Subject: Re: [teitac-subparta] Draft Questions
"
"Other relevant sections of the statute exempt national
"security and cases where accessibility would result in an
""undue burdens". The statute says:
"
"
" § 794d. Electronic and information technology
" (a) Requirements for Federal departments and agencies
" (1) Accessibility
" (A) Development, procurement, maintenance, or use of
"electronic and information technology
" When developing, procuring, maintaining, or using
"electronic and information technology, each Federal department
"or agency, including the United States Postal Service, shall
"ensure, unless an undue burden would be imposed on the
"department or agency, that the electronic and information
"technology allows, regardless of the type of medium of the
"technology --
" (i) individuals with disabilities who are Federal
"employees to have access to and use of information and data
"that is comparable to the access to and use of the information
"and data by Federal employees who are not individuals with
"disabilities; and
" (ii) individuals with disabilities who are members of
"the public seeking information or services from a Federal
"department or agency to have access to and use of information
"and data that is comparable to the access to and use of the
"information and data by such members of the public who are not
"individuals with disabilities.
"
"
"This isn't a balancing of multiple factors unrelated to
"accessibility. "Undue burden" is a concept used throughout
"the ADA and the Rehab Act to deal case by case with those
"limited situations where access would be so costly or
"complicated that it doesn't make sense to mandate a particular
"solution. The Access Board's Guide to 508 talks about "undue
"burdens" as follow:
"
"
" Undue burden. Undue burden means significant
"difficulty or expense. In determining whether an action would
"result in an undue burden, an agency shall consider all agency
"resources available to the program or component for which the
"product is being developed, procured, maintained, or used.
"
" The term "undue burden" is based on case law
"interpreting section 504 of the Rehabilitation Act
"(Southeastern Community College v. Davis, 442 U.S. 397
"(1979)), and has been included in agency regulations issued
"under section 504 since the Davis case. See, e.g., 28 CFR
"39.150. The term undue burden is also used in Title III of the
"ADA, 42 U.S.C. 12182 (b)(2)(A)(iii). The legislative history
"of the ADA states that the term undue burden is derived from
"section 504 and the regulations thereunder, and is analogous
"to the term "undue hardship" in Title I of the ADA, which
"Congress defined as "an action requiring significant
"difficulty or expense." 42 U.S.C. 12111(10)(A). See, H. Rept.
"101-485, pt. 2, at 106.
"
" Title I of the ADA lists factors to be considered in
"determining whether a particular action would result in an
"undue hardship. 42 U.S.C.12111(10)(B)(i)-(iv). However, since
"title I of the ADA addresses employment and the individual
"accommodation of employees, not all of the factors are
"directly applicable to section 508 except for the financial
"resources of the covered facility or entity which is necessary
"to a determination of "significant difficulty or expense."
"Unlike title I, section 508 requires that agencies must
"procure accessible electronic and information technology
"regardless of whether they have employees with disabilities.
"Requiring agencies to purchase accessible products at the
"outset eliminates the need for expensive retrofitting of an
"existing product when requested by an employee or member of
"the public as a reasonable accommodation at a later time.
"
" The provision states that "agency resources available
"to a program or component" are to be considered in determining
"whether an action is an undue burden. Because available
"financial resources vary greatly from one agency to another,
"what constitutes an undue burden for a smaller agency may not
"be an undue burden for another, larger agency having more
"resources to commit to a particular procurement. Each
"procurement would necessarily be determined on a case-by-case
"basis. Because a determination of whether an action would
"constitute an undue burden is made on a case-by-case basis, it
"would be inappropriate for the Board to assess a set
"percentage for the increased cost of a product that would be
"considered an undue burden in every case.
"
"
"The notion, expersed in some of the emails, that there have to
"be many accessible versions of a particular type of software
"to make 508 compliance mandatory, or that access should be
"just one of many factors balanced in procurements, seems to
"contradict the plain language of the statute which makes
"exceptions only when "undue burdens" exist. The decision is
"not about insufficient competition or a host of mundane
"economic factors. It's about the fundamental right of people
"with disabilities to communicate with and contribute to the
"functioning of our government.
"
"Barbara E. Lybarger, General Counsel
"Massachusetts Office on Disability
"One Ashburton Place, #1305
"Boston, MA 02108
"[617] 727-7440
"[800] 322-2020
"[617] 727-0965 FAX
"
" _____
"
"From: = EMAIL ADDRESS REMOVED =
"[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of
"Diane Golden
"Sent: Friday, December 22, 2006 1:39 PM
"To: 'TEITAC Subpart A Subcommittee'
"Subject: Re: [teitac-subparta] Draft Questions
"
"
"Which may lead us back to the original questions which were:
"
"1) Can conformance to an individual access standard be judged
"as yes/no OR is the standard one for which conformance will be
"identified along a continuum of 100% conformance to lesser
"levels (85%, 70% . . . )?
"
"2) For a standard with yes/no conformance - are there
"sufficient products on the market so that other factors (cost
"and business need/functional performance) can be used
"secondarily in the process to make the procurement
"competitive? This aligns with your discussion of having
"access to data that says 75% of products the feds purchased
"met X standard so yes there are a lot of them out there and
"perhaps that standard could be mandatory.
"
"Diane Golden
"
" -----Original Message-----
"From: Jim Tobias [mailto: = EMAIL ADDRESS REMOVED = ]
"Sent: Friday, December 22, 2006 12:10 PM
"To: = EMAIL ADDRESS REMOVED = ; 'TEITAC Subpart A Subcommittee'
"Subject: RE: [teitac-subparta] Draft Questions
"
"
"Here again a bit of market wisdom would be useful....
"
"In the FCC's 255 rules, they put forward the concept of "very
"readily achievable". This was to be applied to features that
"were so easy to do that they should be found in every product,
"and that was their intent. (I guess the 508 formulation would
"be "totally due burden".)
"
"I think we could agree to such a list. It might not go very
"deeply into the web/software space, but it could certainly
"cover almost all hardware questions, and most telecom ones.
"Is it worth it? (By the way, the FCC never went ahead and
"identified their list, nor did they, to my knowledge,
"encourage anyone else to do so.)
"
"Secondly, a compendium of recent E&IT purchases, or some other
"way of sharing market information could reveal what is really
"available so widely that no exceptions are necessary. An
"unwieldy version of this would sound like "an accessibility
"feature found on 75% of the federal purchases in this product
"category in the past 12 months is considered mandatory." A
"real implementation nightmare, I know. I'm just being conceptual here.
"
"But the underlying concern I have is trying to create
"reasonably "prioritized" regulations without any good sense of
"current trends in E&IT purchases; similarly, we lack good
"economic tools to define our costs and benefits....
" _____
"
"From: Diane Golden [mailto: = EMAIL ADDRESS REMOVED = ]
"Sent: Friday, December 22, 2006 10:24 AM
"To: 'TEITAC Subpart A Subcommittee'
"Subject: Re: [teitac-subparta] Draft Questions
"
"
"Concern about "blending" (accessibility, business need,
"functional performance, cost and how that was to be done
"consistently) was exactly what started this disscussion
"strand. The idea was to see if it was possible to identify a
"set of mandatory access standards that would be applied in a
""must meet or you don't buy" approach rather than blended in
"with other factors in procurement decision making. At this
"point there doesn't appear to be any consensus on that
"alternative . . . which seems to leave back at square one.
"
"Diane Golden
"
" -----Original Message-----
"From: Gregg Vanderheiden [mailto: = EMAIL ADDRESS REMOVED = ]
"Sent: Thursday, December 21, 2006 6:28 PM
"To: = EMAIL ADDRESS REMOVED = ; 'TEITAC Subpart A Subcommittee'
"Subject: RE: [teitac-subparta] Draft Questions
"
"
"I have a concern that the 'blending' approach is already being
"abused - even when classically not allowed.
"
"Hmmmm.
"
"
"Gregg
" -- ------------------------------
"Gregg C Vanderheiden Ph.D.
"
"
" _____
"
"From: = EMAIL ADDRESS REMOVED =
"[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of
"Diane Golden
"Sent: Thursday, December 14, 2006 10:04 PM
"To: 'TEITAC Subpart A Subcommittee'
"Subject: Re: [teitac-subparta] Draft Questions "I agree that
"Subpart A should maintain the flexibility to allow each
"agency's business experts to determine the product that best
"meets the criteria they are evaluating, including Section 508."
"
"Herein lies the problem, Subpart A as currently written is not
"flexible and does not include consideration of other issues
"outside of accessibility. It says "each agency shall procure
"products which comply with the provisions in this part when
"such products are available in the commercial market place" or
"when no product on the marketplace meets all of the standards
""the agency must procure the product that best meets the
"standards." Taken at face value, Subpart A says agencies must
"buy products which conform 100% or buy the product that best
"meets the standards if products at the 100% conformance level
"are not available. Subpart A does not currently provide
"flexibility to consider other issues such as business need,
"cost, etc. While that is what is happening in real life -- it
"is not consistent with a plain reading of Subpart A.
"
"If the consensus is to continue the current "blending" of
"considerations related to accessibility, business need, cost,
"etc., then Subpart A should be revised to accurately reflect
"that practice rather than describe an application that is not
"occurring. And of course it would be most helpful if the
""blending" of considerations was a transparent and well
"described process so folks external to the procurement process
"could have some understanding of how those different factors
"are considered and weighed in the final decision.
"
"Diane
" -----Original Message-----
"From: = EMAIL ADDRESS REMOVED =
"[mailto: = EMAIL ADDRESS REMOVED = ]On Behalf Of
"Hoffman, Allen
"Sent: Thursday, December 14, 2006 2:33 PM
"To: TEITAC Subpart A Subcommittee
"Subject: Re: [teitac-subparta] Draft Questions Aubrey Woolley wrote:
"
" " The reference to other federal government procurement
"requirements such as Buy America Act (BAA), Trade Agreements
"Act (TAA), and green purchasing requirements (i.e.Energy Star,
"FEMP* Standby Power, and RCRA*) is much appreciated. Security
"is another critical issue for many agencies.
"
"It is important to keep sight of the context in which
"compliance with Section 508 takes place during the procurement
"process. For this reason, I agree that Subpart A should
"maintain the flexibility to allow each agency's business
"experts to determine the product that best meets the criteria
"they are evaluating, including Section 508. "
"
"I agree, and what I'd like to determine is how acquisitions
"balance all these competing laws as a rule, and then apply
"that standard balancing procedure to 508 and see how it works.
"
"I think there will never be a perfect formula for "be smart",
"and this is where the whole "sufficient techniques" component
"would help if we get input from Federal acquisitions folks. A
"question I have is, would Federal acquisitions folks actually
"read such a sufficient techniques document when considering
"Section 508 "balancing", as their bible is the Federal
"Acquisition Regulations, (FAR), and their local "AR"s.
"
"Allen hoffman
"Department of Homeland Security Office on Accessible Systems &
"Technology
"
"
"
"
"
"
"
"

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