Thread Subject: Re: Best Meets

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From: Diane Golden
Date: Thu, Mar 22 2007 3:25 PM

How does changing the word "procure" to "ensure" create an assumption of business need before/over accessibility? The reference to business need was already there per Robert's language. Those references can be taken back out so the sentences would read --

(b) When procuring a product, each agency shall ensure products comply with the provisions in this part when such products are available in the commercial marketplace.

(c) Agencies cannot claim a product, as a whole is not commercially available because no product in the marketplace meets all the standards. If products are commercially available that meet some but not all of the standards, the agency must ensure that products best comply with the provisions in this part.

This is literally a change of just a few words from existing langauge, specifically eliminating phrases like "shall procure" and using instead "shall ensure". The idea is that "shall ensure" language does not dictate procurement decision making from the 508 side yet doesn't lower the overall threshold of access expected. Using the word "ensure" seems to be a step above the verb "assess" that is used in 48 CRF 10.001 related to using the results of market research to "(vii) Assess the availability of electronic and information technology that meets all or part of the applicable accessibility standards issued by the Architectural and Transportation Barriers Compliance Board at 36 CFR part 1194 (see Subpart 39.2)".

Unfortunately, states are the ones facing the brunt of the litigation on procurement and many states have just "adopted" 508 in total without any regard for how it applies to state procurement law. So for states it is critcally important that the current language in Subpart A either be revised so there is a clear understanding of what is required in procurement decision-making or the language should be revised to allow for some other governing procurement decision-making rules to apply and clarify (at a federal, state or agency level) I was thinking that perhaps eliminating the "shall procure" langauge would be supportive of the latter -- but maybe not.

Diane

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Subject: Re: [teitac-subparta] Best Meets



As I read Diane's suggestion, it seemed to imply that the government first identify products that meet the agency's business need and then select from them the most accessible. That is a step back from the premise we have been operating under - that 508 is an equal business need. It is what we're teaching in our courses and including in our tools (the Buy Accessible Wizard).

Procurement is a complicated process and also a repetitive one. Requirements definition can occur multiple times as the government buyer learns more about the marketplace. I do not see how any of these suggestions improve the current language - IMHO.



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Subject [teitac-subparta] Best Meets







In Robert's last message he asked about re-framing the discussion.
Basically, should the 508 regs be addressing procurement decision-making
logic or not? As I thought about that, I decided to take a shot at revising
the current regs to remove the existing language that already leads one to
believe the regs are dictating procurement decision-making, specifically
statements like "agencies shall procure". In doing so the language might
look like the following --

(b) When procuring a product, each agency shall ensure [procure] products
[,which] comply with the provisions in this part when such products are
available in the commercial marketplace (and the products’ utility and
performance meet the agency’s identified business and technical
requirements.)

(c) Agencies cannot claim a product, as a whole is not commercially
available because no product in the marketplace meets all the standards. If
products are commercially available that meet some but not all of the
standards, the agency must ensure that [procure the] products [that] best
[meets the standards] comply with the provisions in this part (and meet the
agency’s identified business and technical requirements.)

The references to business and technical requirements (in parens) might or
might not be included. Does this come close to provide the same level of
direction (or ambiguity depending on your point of reference) as the current
regs while eliminating the conundrum of 508 regs dictating procurement
decision-making?

Diane

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