Thread Subject: Re: Not downgrading to 'best value'

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From: Karen Peltz Strauss
Date: Mon, Jan 08 2007 6:20 AM

It is understandable that a product would have to meet the basic specs for a governmental purpose under Section 508. This is equivalent to saying that federal employees must meet the essential functions of a job under Section 501. But please let's stay away from creating a new "reasonable cost" standard. The standard is "undue burden" which means that agencies must acquire accessible products unless doing so would impose a significant difficult or expense. This is far stricter than "reasonable cost." Of course, it also makes sense to say that if the only accessible product would fundamentally alter the nature of the purpose for which the agency was acquiring that product, then yes, the government would also be within its rights not to acquire the product.

Karen

----- Original Message -----
From: Gregg Vanderheiden
To: 'TEITAC Subpart A Subcommittee'
Sent: Sunday, January 07, 2007 11:13 PM
Subject: Re: [teitac-subparta] Not downgrading to 'best value'


Hi Diane,



That is in the Undue burden and the Fundamental alteration clauses.



You must buy accessible unless it is an undue burden.

It would be an undue burden for the government to not need something and not buy because there wasn't an accessible product the meet the specs of the need.

Also undue burden if the cost is unreasonable given the resources of the agency.



One could also say that if the only products that meet the standard, can't meet the basic specs for the product sought in the procurement then it would be a fundamental alteration of the specified product function to substitute a product that didn't meet the specs. (to put it mildly) But this is only clear where access defeats the desired function. Otherwise it would be the undue burden clause that would cover this.





Best value brings in a whole host of other factors, most of which all trump access in practice when best value approach is used.



Best value wasn't used in the 508 law. It may be used in practice but we should not speak counter to the law and in that direction.



If our standards are written such that we think we need to go that way to be practical, then we need to look at our standards I believe.





Gregg
-- ------------------------------
Gregg C Vanderheiden Ph.D.






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From: = EMAIL ADDRESS REMOVED = [mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Diane Golden
Sent: Sunday, January 07, 2007 9:34 PM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Not downgrading to 'best value'

Help me understand where in Subpart A it requires products to first "meet the basic specs you need (the product must be able to do its function at a reasonable cost)." I don't see anything in the application section that says all products should first meet functional need and some reasonable cost benchmark before access is applied.

A plain reading of undue burden and the TA support indicates that is solely applied to resources available to deliver access. The three step process you describe begines with a sort of "best value" first review in which you would identify products that meet some baseline business need and "reasonable" cost (resulting in a pool of "good and low" products instead a singular lowest and best product.) Then you would apply access requirements in a best meets reveiw. That may be a viable procurement approach, but I can't find any legal coverage for that approach in the current Subpart A language.



Diane Golden

----- Original Message ----
From: Gregg Vanderheiden < = EMAIL ADDRESS REMOVED = >
To: TEITAC Subpart A Subcommittee < = EMAIL ADDRESS REMOVED = >
Sent: Sunday, January 7, 2007 3:59:16 PM
Subject: [teitac-subparta] Not downgrading to 'best value'

Hmmmmm



This relates to the discussion about changing "best meets" to "blended with other business concerns" or 'best value" as it is also called -- because that is what people are doing anyway.



I have a concern when we talk about weakening 508 to make it easier to implement - or to match what is currently being done.



Currently 598 says

1) meet the basic specs you need (the product must be able to do its function at a reasonable cost) (undue burden clause provides this)

2) be accessible (directly or compatible with AT)

3) consider other factors such as extra features, somewhat lower cost, etc. (other value considerations)



Yes that does mean the #2 accessibility gets in the way of some of #3.



And yes - in current practice accessibility is blended with #3 - even if it shouldn't be.



But if including women's bathrooms in engineering colleges was relegated to "we'll do it if it doesn't impact the number of classrooms and labs we can have" it wouldn't (and shouldn't) fly. In fact, it is put at #1. You can't build the buildings at all unless you don't discriminate by gender.



Now accessibility is more complicated and I don't think we should be making access #1. (though there has been some discussion that SOME features should be elevated to #1 - and the ADAAG is elevated to #1 when it is built into building codes).





There is always a cost for equality. And lowering accessibility to #3 by blending it with other 'value' issues would reduce these costs only by allowing an easier path to avoid the regulations than is already true. And since it is already so easily avoided - this seems unnecessary and dangerous.



Diane accurately points out that it is being abused. But at least there is a lack of comfort in the fact that practice doesn't meet the letter of the regulations (and also not the spirit - which is reflected in the .31 performance criteria). But I don't think we should reduce the goal to match the practice. That is a spiral out the bottom.



Instead we should be looking at how to create guidelines that maintain or improve access as access gets easier with advancing and smarter technologies.



I don't think we should move it from #2 down to #3 by blending it with all other considerations.



I am sensitive to the issues that Diane and Michael raise about the difficulty for the procurement officers. I think we need to find ways to help that. But moving it from #2 to #3 doesn't really help them understand the provisions or technical aspects. It just moves it down to where it is easier to ignore in the mess of other evaluations (many of which are easier to understand and so are considered first).



I don't think moving access from #2 to #3 makes it any easier to understand or implement. Just easier to deal with or justify not following. (e.g. "It was trumped by another business consideration").



I do wish this was easier. We need to think about how to do that. But downgrading it to just another business or value factor to be blended with the rest isn't the answer.



(By the way - the fact that it is at #2 and not #1 shows that it IS already mixed with business factors (basic function and reasonable price). But it is not blended with all levels of business or value issues. The basic ones trump access. Then access trumps the lower level value functions. It has to if we are serious about it.)








Gregg
-- ------------------------------
Gregg C Vanderheiden Ph.D.

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