Thread Subject: Undue Burden

Return to this mailing list's archives

From: Jim Tobias
Date: Thu, Nov 16 2006 12:15 PM
Subject: Undue Burden

I think we might all agree that any guidance materials on the concept of
"undue burden" should include examples of claims that were accepted, denied,
etc. This would provide the best possible guidance to those seeking to
understand what their responsibilities are. I asked at the last
face-to-face meeting about the public record of claims, contentions, and
resolutions regarding "undue burden", but didn't hear an answer beyond "we
don't have as much as you think we might, or should". So I have the
following questions:

1. Is there a compendium anywhere of any number of cases in which undue
burden was claimed, and what the resolution was?

2. If there is no such compendium, do we want to recommend that one be
created, to help manage implementation?

3. Are individual agencies reserving the right to define how the concept
applies to them?

4. What is the role of the Dept. of Justice in coordinating a common,
enforceable set of practices for this concept in the context of 508?

5. Is there any overarching program for indexing federal purchases that 508
could fit into? That is, is there a program that keeps track of everything
the feds buy, for some general purpose like cost containment, or a specific
purpose, like energy efficiency?

Thanks for any information you can provide.


***********
Jim Tobias
Inclusive Technologies
= EMAIL ADDRESS REMOVED =
+1.732.441.0831 v/tty
skype jimtobias
www.inclusive.com

From: terry.weaver@gsa.gov
Date: Thu, Nov 16 2006 12:45 PM
Subject: Re: Undue Burden

Jim Tobias wrote
I think we might all agree that any guidance materials on the concept of
"undue burden" should include examples of claims that were accepted,
denied,
etc. This would provide the best possible guidance to those seeking to
understand what their responsibilities are. I asked at the last
face-to-face meeting about the public record of claims, contentions, and
resolutions regarding "undue burden", but didn't hear an answer beyond "we
don't have as much as you think we might, or should". So I have the
following questions:

1. Is there a compendium anywhere of any number of cases in which undue
burden was claimed, and what the resolution was?

>Terry Weaver comment starts>: Since Section 508 was not assigned to
anyone Federal agency to supervise its implementation throughout the
Federal sector, there aren't any centralized records. Additionally,
claims for undue burden must be decided at the agency level because it is
a decision of an agency that trades off the difficulty/complexity/expense
of following Section 508 provisions versus the resources that the agency
component has available to it.< TW comment ends<

2. If there is no such compendium, do we want to recommend that one be
created, to help manage implementation?

>Terry Weaver comment starts> In my opinion, that is outside of this
committee's scope since it would fundamentally change the law.<TW comment
ends<

3. Are individual agencies reserving the right to define how the concept
applies to them?

>Terry Weaver comment starts> Federal agencies are following the law in
making undue burden decisions themselves. Ultimately, the agency is the
entity at risk in a law suit. <TW comment ends<

4. What is the role of the Dept. of Justice in coordinating a common,
enforceable set of practices for this concept in the context of 508?

>Terry Weaver comment starts> The law provided two roles for DOJ (other
than complying with Section 508 itself) - first, it is to report to
Congress on the progress Federal agencies are making in the implementation
of Section 508. DOJ surveys Federal agencies to collect the data it needs
to make the report. The DOJ survey asks questions regarding the frequency
of undue burden claims (among other things)but since agencies are not
required to track them, very little data is available although it is
envisioned that agencies might be better prepared in the future to answer
such questions as were included in the last DOJ survey. Oh, and DOJ's
second role is to defend Federal agencies in court against such
lawsuits.<TW comment ends<

5. Is there any overarching program for indexing federal purchases that
508
could fit into? That is, is there a program that keeps track of
everything
the feds buy, for some general purpose like cost containment, or a
specific
purpose, like energy efficiency?

>Terry Weaver comment starts> The Federal Procurement Data System - Next
Generation (https://www.fpds.gov/)is the central repository for
procurement data. It captures contract data but not (I believe) pre-award
documents. Requirements determination, agency approvals, etc... would not
be a part of the contract file data which FPDS-NG tracks.<TW comment ends<

From: Jim Tobias
Date: Thu, Nov 16 2006 2:05 PM
Subject: Re: Undue Burden

Jim Tobias: Thanks for your reply, Terry. I have a few follow-ups.

2. If there is no such compendium, do we want to recommend that one be
created, to help manage implementation?

>Terry Weaver comment starts> In my opinion, that is outside of this
committee's scope since it would fundamentally change the law.<TW comment
ends<

JT: I don't understand this. Surely an agency is allowed to keep records
regarding its purchases. Or are you saying that agencies would not want to
reveal this information, so they would have to be forced to do so by law?

4. What is the role of the Dept. of Justice in coordinating a common,
enforceable set of practices for this concept in the context of 508?

>Terry Weaver comment starts> The law provided two roles for DOJ (other
than complying with Section 508 itself) - first, it is to report to Congress
on the progress Federal agencies are making in the implementation of Section
508. DOJ surveys Federal agencies to collect the data it needs to make the
report. The DOJ survey asks questions regarding the frequency of undue
burden claims (among other things)but since agencies are not required to
track them, very little data is available although it is envisioned that
agencies might be better prepared in the future to answer such questions as
were included in the last DOJ survey. Oh, and DOJ's second role is to
defend Federal agencies in court against such lawsuits.<TW comment ends<

JT: Wow, so the same agency both oversees implementation and defends
agencies against complaints! I must be naive.... Anyway, let me see if
I've got this right. DoJ must perform the biennial survey by law, and one
question is "how many undue burden claims have you processed", but the
agencies answering the survey are under no obligation to be able to answer
that question. Is that right? I like the "envision[ing] that the agencies
might be better prepared in the future" part. In your opinion, can TEITAC
do anything to make that vision a reality?

Thanks.

From: Jagbell
Date: Thu, Nov 16 2006 2:10 PM
Subject: Re: Undue Burden

Terry-

I would like to know where the cite for this is? From a commons
sense point, this does not make sense.

Janice Schacter, ESQ


On Nov 16, 2006, at 4:03 PM, Jim Tobias wrote:

> Jim Tobias: Thanks for your reply, Terry. I have a few follow-ups.
>
> 2. If there is no such compendium, do we want to recommend that one be
> created, to help manage implementation?
>
> >Terry Weaver comment starts> In my opinion, that is outside of
> this committee's scope since it would fundamentally change the
> law.<TW comment ends<
>
> JT: I don't understand this. Surely an agency is allowed to keep
> records regarding its purchases. Or are you saying that agencies
> would not want to reveal this information, so they would have to be
> forced to do so by law?
>
> 4. What is the role of the Dept. of Justice in coordinating a common,
> enforceable set of practices for this concept in the context of 508?
>
> >Terry Weaver comment starts> The law provided two roles for DOJ
> (other than complying with Section 508 itself) - first, it is to
> report to Congress on the progress Federal agencies are making in
> the implementation of Section 508. DOJ surveys Federal agencies to
> collect the data it needs to make the report. The DOJ survey asks
> questions regarding the frequency of undue burden claims (among
> other things)but since agencies are not required to track them,
> very little data is available although it is envisioned that
> agencies might be better prepared in the future to answer such
> questions as were included in the last DOJ survey. Oh, and DOJ's
> second role is to defend Federal agencies in court against such
> lawsuits.<TW comment ends<
>
> JT: Wow, so the same agency both oversees implementation and
> defends agencies against complaints! I must be naive.... Anyway,
> let me see if I've got this right. DoJ must perform the biennial
> survey by law, and one question is "how many undue burden claims
> have you processed", but the agencies answering the survey are
> under no obligation to be able to answer that question. Is that
> right? I like the "envision[ing] that the agencies might be better
> prepared in the future" part. In your opinion, can TEITAC do
> anything to make that vision a reality?
>
> Thanks.
>
>
>
>
>

From: terry.weaver@gsa.gov
Date: Thu, Nov 16 2006 2:50 PM
Subject: Re: Undue Burden

Jim Tobias: Thanks for your reply, Terry. I have a few follow-ups.
>>TW reply>> I will give my take on your questions<<TW<<

2. If there is no such compendium, do we want to recommend that one be
created, to help manage implementation?

>Terry Weaver comment starts> In my opinion, that is outside of this
committee's scope since it would fundamentally change the law.<TW comment
ends<

JT: I don't understand this. Surely an agency is allowed to keep records
regarding its purchases. Or are you saying that agencies would not want
to reveal this information, so they would have to be forced to do so by
law?

>>TW reply>> I wasn't saying that agencies can't keep records - it just is
not required to keep this particular data as a summary count. There are
so many record requirements that most agencies don't quickly add new
requirements. Most agencies that have put an undue burden process in
place have that process under the authority of the requiring official side
- usually the CIO. Data that is collected about actual contracts awarded
come from the procurement side - under the senior procurement executive or
the chief acquisition officer (CAO). Two different organizational
entities with two different functions and record retention practices. It
is a generally accepted principle that you want to keep any decisional
documents used so that it can be referred to in case questions arise
later. (Otherwise known as CYA) We suggest in our training that records
be kept of market research results and of any exception claimed. Some
agencies have strong requirements for this to be documented and retained.
But this is information about an individual procurement action and not
summary data on all procurements for that agency. To get that would
require review of each individual procurement's historical data.

We asked for this information in the 03 survey to prompt agencies to start
collecting it - it remains to be seen if that approach worked.<<TW<<

4. What is the role of the Dept. of Justice in coordinating a common,
enforceable set of practices for this concept in the context of 508?

>Terry Weaver comment starts> The law provided two roles for DOJ (other
than complying with Section 508 itself) - first, it is to report to
Congress on the progress Federal agencies are making in the implementation
of Section 508. DOJ surveys Federal agencies to collect the data it needs
to make the report. The DOJ survey asks questions regarding the frequency
of undue burden claims (among other things)but since agencies are not
required to track them, very little data is available although it is
envisioned that agencies might be better prepared in the future to answer
such questions as were included in the last DOJ survey. Oh, and DOJ's
second role is to defend Federal agencies in court against such
lawsuits.<TW comment ends<

JT: Wow, so the same agency both oversees implementation and defends
agencies against complaints! I must be naive.... Anyway, let me see if
I've got this right. DoJ must perform the biennial survey by law, and one
question is "how many undue burden claims have you processed", but the
agencies answering the survey are under no obligation to be able to answer
that question. Is that right? I like the "envision[ing] that the
agencies might be better prepared in the future" part. In your opinion,
can TEITAC do anything to make that vision a reality?

>>TW reply>> One thing to remember is that the law did not place oversight
authority with any agency, even DOJ. They are charged with reporting
progress to Congress, not with enforcing compliance within agencies.
However, most agencies want to be able to respond to inquiries such as the
DOJ survey therefore, the DOJ survey questions themselves are structured
to point out what is the preferred behavior. We hope that the next survey
can ask for actual data counts because the suggestion was made in the 03
survey. Regarding your question "can TEITAC do anything" to motivate
agencies to collect his data, I'm not sure what that might be. The only
real motivator would be the next DOJ survey coming out and demanding that
information.

Since DOJ is responsible for representing Federal agencies in any Section
508 lawsuit, they presumably would have data on the number of lawsuits
filed. They would not have any data on the number of administrative
complaints filed with agencies.<<TW<<

From: Brett, Thomas F
Date: Thu, Nov 16 2006 3:20 PM
Subject: Re: Undue Burden

As I mentioned during the telecon Undue Burden is part law and part policy. Agency policy would probably prohibit, or at least frown upon, the release of such data as the number of Undue Burden claims and the reason why.

If this information were released it would open up a can of worm for that agency...you could start questioning the rationale for the assertion of the Undue Burden.


Tom Brett

From: terry.weaver@gsa.gov
Date: Thu, Nov 16 2006 4:00 PM
Subject: Re: Undue Burden

Janice Schacter wrote:
I would like to know where the cite for this is? From a commons sense
point, this does not make sense.

Janice Schacter, ESQ


On Nov 16, 2006, at 4:03 PM, Jim Tobias wrote:

Jim Tobias: Thanks for your reply, Terry. I have a few follow-ups.

>>Terry Weaver - I truncated the copy of Jim Tobias's follow-up questions
to me regarding my earlier email.

The only cite I have is the law itself:
>>Section 508 of the Rehabilitation Act (29 U.S.C. 794d), as amended by
the Workforce Investment Act of 1998 (P.L. 105-220), August 7, 1998
assigns roles and responsibilities to various Federal agencies:
(a) (2) (A) charges the Access Board with developing and issuing
accessibility standards after consulting with a host of stakeholders;
(a) (3) requires the FAR Council to incorporate the Standards
(a) (4) gives agencies the responsibility of determining undue burden
(b) tasks the Access Board and GSA with providing technical assistance
(c) requires agency heads to assess how well their E&IT complies & give
that information to the Attorney General
(d) charges the Attorney General with submitting an (1) interim report to
the President and (2) biennial reports to the President and Congress
(f) addresses enforcement and (1) (A) defines who has standing and what
courses of action are available to them (2) administrative complaints or
(3) civil actions

No provision is made for any one agency to hold another accountable for
its decisions - enforcement is clearly left in the acquisition arena and
only by those people who are personally disadvantaged by the actions (or
inactions) of a Federal agency in implementing Section 508.<<TW<<







"Jagbell" < = EMAIL ADDRESS REMOVED = >
Sent by: = EMAIL ADDRESS REMOVED =
11/16/2006 04:09 PM
Please respond to
"TEITAC Subpart A Subcommittee" < = EMAIL ADDRESS REMOVED = >


To
"TEITAC Subpart A Subcommittee" < = EMAIL ADDRESS REMOVED = >
cc

Subject
Re: [teitac-subparta] Undue Burden






Terry-

I would like to know where the cite for this is? From a commons sense
point, this does not make sense.

Janice Schacter, ESQ


On Nov 16, 2006, at 4:03 PM, Jim Tobias wrote:

Jim Tobias: Thanks for your reply, Terry. I have a few follow-ups.

2. If there is no such compendium, do we want to recommend that one be
created, to help manage implementation?

>Terry Weaver comment starts> In my opinion, that is outside of this
committee's scope since it would fundamentally change the law.<TW comment
ends<

JT: I don't understand this. Surely an agency is allowed to keep records
regarding its purchases. Or are you saying that agencies would not want
to reveal this information, so they would have to be forced to do so by
law?

4. What is the role of the Dept. of Justice in coordinating a common,
enforceable set of practices for this concept in the context of 508?

>Terry Weaver comment starts> The law provided two roles for DOJ (other
than complying with Section 508 itself) - first, it is to report to
Congress on the progress Federal agencies are making in the implementation
of Section 508. DOJ surveys Federal agencies to collect the data it needs
to make the report. The DOJ survey asks questions regarding the frequency
of undue burden claims (among other things)but since agencies are not
required to track them, very little data is available although it is
envisioned that agencies might be better prepared in the future to answer
such questions as were included in the last DOJ survey. Oh, and DOJ's
second role is to defend Federal agencies in court against such
lawsuits.<TW comment ends<

JT: Wow, so the same agency both oversees implementation and defends
agencies against complaints! I must be naive.... Anyway, let me see if
I've got this right. DoJ must perform the biennial survey by law, and one
question is "how many undue burden claims have you processed", but the
agencies answering the survey are under no obligation to be able to answer
that question. Is that right? I like the "envision[ing] that the
agencies might be better prepared in the future" part. In your opinion,
can TEITAC do anything to make that vision a reality?

Thanks.

From: Jim Tobias
Date: Fri, Nov 17 2006 6:25 AM
Subject: Re: Undue Burden

Thanks again, Terry. Regarding your last statements:

TW: Since DOJ is responsible for representing Federal agencies in any
Section 508 lawsuit, they presumably would have data on the number of
lawsuits filed. They would not have any data on the number of
administrative complaints filed with agencies.<<TW

1. Do you know who in DoJ should be contacted about lawsuits?

2. If DoJ doesn't know the stats on administrative complaints, who does? Is
this maintained internally by the agencies?


***********
Jim Tobias
Inclusive Technologies
= EMAIL ADDRESS REMOVED =
+1.732.441.0831 v/tty
skype jimtobias
www.inclusive.com

From: Weinstein, Michael
Date: Fri, Nov 17 2006 7:55 AM
Subject: Re: Undue Burden

Jim,

The person at DOJ to contact regarding Section 508 lawsuits is Jonathan
Hahm. His email is = EMAIL ADDRESS REMOVED = .

I am unaware of any lawsuits on Section 508 but Jonathan would be the
person to represent the government in those instances.



Michael Weinstein, Esq.
Contract Administrator
Systems Research and Applications Corporation, a wholly owned subsidiary
of SRA International, Inc.
3434 North Washington Boulevard
Arlington, VA 22201
(P) 703-284-6165
(F) 703-284-1370
Email: = EMAIL ADDRESS REMOVED =

From: Jim Tobias
Date: Fri, Nov 17 2006 8:05 AM
Subject: Re: Undue Burden

thanks; I've dropped him a note.


***********
Jim Tobias
Inclusive Technologies
= EMAIL ADDRESS REMOVED =
+1.732.441.0831 v/tty
skype jimtobias
www.inclusive.com





_____

From: Weinstein, Michael [mailto: = EMAIL ADDRESS REMOVED = ]
Sent: Friday, November 17, 2006 9:51 AM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Undue Burden


Jim,

The person at DOJ to contact regarding Section 508 lawsuits is Jonathan
Hahm. His email is = EMAIL ADDRESS REMOVED = .

I am unaware of any lawsuits on Section 508 but Jonathan would be the person
to represent the government in those instances.



Michael Weinstein, Esq.
Contract Administrator
Systems Research and Applications Corporation, a wholly owned subsidiary of
SRA International, Inc.
3434 North Washington Boulevard
Arlington, VA 22201
(P) 703-284-6165
(F) 703-284-1370
Email: = EMAIL ADDRESS REMOVED =

From: terry.weaver@gsa.gov
Date: Fri, Nov 17 2006 8:20 AM
Subject: Re: Undue Burden

Jim Tobias asks
1. Do you know who in DoJ should be contacted about lawsuits?
>TW response> Jonathan Hahm is the DOJ point of contact for Section 508
complaints.
2. If DoJ doesn't know the stats on administrative complaints, who does?
Is this maintained internally by the agencies?
>TW response>Individual agencies would be responsible for any tracking of
Section 508 administrative complaints, if the agency has established such
a process to track.