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

Note

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From: Jim Tobias
Date: Mon, Jan 08 2007 9:05 AM

Jessica makes a great case for collecting and wiki-fying resources on the 2
legal standards
we have to work with, "readily achievable" for 255 and "undue burden" for
508. If this
subcommittee could provide one best short explanation with links to more
detail, the
generations to come would rise up and call us blessed.

Similarly, putting in place a data collection mechanism for actual
government behaviors
so that we can see how these terms are being used in the real world, would
be essential.


******
Jim Tobias
Inclusive Technologies
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+1 732.441.0831 voice/tty
skype jimtobias
+1 908.907.2387 mobile




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From: Jessica M. Brodey [mailto: = EMAIL ADDRESS REMOVED = ]
Sent: Monday, January 08, 2007 10:43 AM
To: 'TEITAC Subpart A Subcommittee'
Subject: Re: [teitac-subparta] Not downgrading to 'best value'



Karen is correct . . . the legal terms are significant because they carry
very specific meanings, with case law and regulatory decisions behind them.
It seems that many people here keep turning to new words perhaps out of
confusion? Is there a need to break down the various terms and understand
how, legally speaking, these different components work together? We seem to
have a few different communities here, coming at this from different
perspectives. We have the "techies," the attorneys, the purchasers, and the
consumers/advocates. Our biggest problem here seems to be that we are not
quite speaking the same language.



Jessica Brodey




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From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Karen Peltz
Strauss
Sent: Monday, January 08, 2007 8:18 AM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Not downgrading to 'best value'



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 <mailto: = EMAIL ADDRESS REMOVED = > Vanderheiden

To: 'TEITAC Subpart A <mailto: = EMAIL ADDRESS REMOVED = >
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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