Thread Subject: Draft Questions

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From: Diane Golden
Date: Wed, Dec 13 2006 12:00 PM
Subject: Draft Questions

Here's my stab at the questions that would/could be asked to try to
determine if a set of "mandatory" access standards could be identified (in
other words ones which must be met by a product before it could be purchased
rather than all being part of a "best meets" review process that includes
other factors such as cost and business need.)

1) Can conformance to the 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% . . . )?

An example a yes/no standard would be -- automatic reset of volume to
default after every use if telecommunications product allows the user to
adjust the receive volume. A product will likely have an automatic reset
and meet this standards 100% or have no such reset and not meet it at all.

An example of a standard that results in a continuum of conformance rating
would be -- interference to hearing aids shall be reduced to the lowest
possible level. A product may deliver a wide range of degrees of
interference that would need to be judged on a continuum with the lowest
level ranked highest.

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 in a competitive procurement (e.g. there are a
sufficient number of products that meet the access standard so that there
would still be a competitive procurement.)

It would seem that for a standard to be mandatory, the conformance would
need to be able to be judged yes/no (meets or does not meet) and there would
need to be sufficient products on the market so that the procurement would
still be competitive when only considering products that meet the mandatory
standard(s).

Food for thought,
Diane

Diane Cordry Golden, Ph.D., Director
Missouri Assistive Technology
816/350-5280 (direct voice)
= EMAIL ADDRESS REMOVED =
www.at.mo.gov

From: Gregg Vanderheiden
Date: Wed, Dec 13 2006 4:10 PM
Subject: Re: Draft Questions

HI

Two quick comments
1) auto-reset is immensely annoying if you are hard of hearing. It
was created originally to ONLY apply if the volume was set very high. Would
suggest that auto-reset only apply if the volume exceeds some level. It
would then reset down to something under that level somewhere but not
necessarily all the way to 'normal' or 'zero'.

2) I don't think you can come up with any "absolute" list that is
meaniningful. The gov buys many many types of products- and 'undue burden'
always applies. Sometimes you just can't meet even a reasonable set of
guidelines for some special device or situation. If undue burden doesn't
allow you to meet all - then you still want the product to meet as many as
possible (and we are back to best meets). Often that would allow many
people with disabilities to use the product just fine.


Just for your consideration and contemplation.


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



> -----Original Message-----
> From: = EMAIL ADDRESS REMOVED =
> [mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of
> Diane Golden
> Sent: Wednesday, December 13, 2006 1:03 PM
> To: TEITAC SubPart A listserv (E-mail)
> Subject: [teitac-subparta] Draft Questions
>
> Here's my stab at the questions that would/could be asked to
> try to determine if a set of "mandatory" access standards
> could be identified (in other words ones which must be met by
> a product before it could be purchased rather than all being
> part of a "best meets" review process that includes other
> factors such as cost and business need.)
>
> 1) Can conformance to the 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% . . . )?
>
> An example a yes/no standard would be -- automatic reset of
> volume to default after every use if telecommunications
> product allows the user to adjust the receive volume. A
> product will likely have an automatic reset and meet this
> standards 100% or have no such reset and not meet it at all.
>
> An example of a standard that results in a continuum of
> conformance rating would be -- interference to hearing aids
> shall be reduced to the lowest possible level. A product may
> deliver a wide range of degrees of interference that would
> need to be judged on a continuum with the lowest level ranked highest.
>
> 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 in a competitive procurement (e.g.
> there are a sufficient number of products that meet the
> access standard so that there would still be a competitive
> procurement.)
>
> It would seem that for a standard to be mandatory, the
> conformance would need to be able to be judged yes/no (meets
> or does not meet) and there would need to be sufficient
> products on the market so that the procurement would still be
> competitive when only considering products that meet the
> mandatory standard(s).
>
> Food for thought,
> Diane
>
> Diane Cordry Golden, Ph.D., Director
> Missouri Assistive Technology
> 816/350-5280 (direct voice)
> = EMAIL ADDRESS REMOVED =
> www.at.mo.gov
>
>

From: Diane Golden
Date: Wed, Dec 13 2006 5:15 PM
Subject: Re: Draft Questions

Without the context of the discussion on the call - this probably needed
some background explanation. I was not at all implying that the auto reset
was appropriate or not (and in fact it does only apply when the 20 dB gain
standard is met and the telecom group had discussed extensively the need for
an override of the reset for HH folks.) I was only using these as examples
of the difference between standards that can be judged as met/not met versus
those for which the conformance can only be judged in degrees which plays
into the application conundrum we've identified in Subpart A.

Your statement about wanting the fed govt to buy the product that meets as
many access standards as possible goes to the heart of the problem with
Subpart A Application section. While that is what one would think is
happening given the language of Subpart A -- in fact we have learned that is
NOT what is happening with federal procurements. After FAR interpretation
regarding application and individual agency application procedures are put
in place -- the decision regarding what to buy or not buy is not based on
which products "best meets" the access standards either in the number of
standards the product conforms to or the degree of conformance to individual
standards. Instead the purchasing decision is based on a complicated
mixture of considerations of cost, business need or functional performance,
and conformance to access standards. In addition, some of the access
standards may be pulled out of the requirements based on market research if
they create limited competition. So the "best meets" application language
of Subpart A does not accurately describe how the standards are actually
being applied and thus leads to false expectations about what will and will
not be purchased.

As I said on the call, I'm not sure what chance there would be of
identifying a set of true mandatory standards, but if such a set could be
identified that would allow for revision of the application section to
require purchase of product that meet these standards. Thus the email with
draft questions that might be used to determine if standards could be
mandatory. Absent that option, another approach would be to revise Subpart
A to accurately reflect an application of the standards that "will be, can
be or is" happening rather than reflecting an application that is not
happening.

As discussed on the call, this decision would seem to be holistically
critical as it will impact the "level of the bar" that can be set by all the
other technical and function standards. In general, the more flexible the
application requirements, the higher the level of access can be included in
technical and functional standards. The more stringent the application
requirements, especially if a set of mandatory standards were identified for
which conformance was compulsory absent standard excpetions (undue burden,
national security, fundamental alteration, etc.) the lower the standards
would likely be.

Diane

-----Original Message-----
From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ]On Behalf Of Gregg
Vanderheiden
Sent: Wednesday, December 13, 2006 5:07 PM
To: 'TEITAC Subpart A Subcommittee'
Subject: Re: [teitac-subparta] Draft Questions


HI

Two quick comments
1) auto-reset is immensely annoying if you are hard of hearing. It
was created originally to ONLY apply if the volume was set very high. Would
suggest that auto-reset only apply if the volume exceeds some level. It
would then reset down to something under that level somewhere but not
necessarily all the way to 'normal' or 'zero'.

2) I don't think you can come up with any "absolute" list that is
meaniningful. The gov buys many many types of products- and 'undue burden'
always applies. Sometimes you just can't meet even a reasonable set of
guidelines for some special device or situation. If undue burden doesn't
allow you to meet all - then you still want the product to meet as many as
possible (and we are back to best meets). Often that would allow many
people with disabilities to use the product just fine.


Just for your consideration and contemplation.


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



> -----Original Message-----
> From: = EMAIL ADDRESS REMOVED =
> [mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of
> Diane Golden
> Sent: Wednesday, December 13, 2006 1:03 PM
> To: TEITAC SubPart A listserv (E-mail)
> Subject: [teitac-subparta] Draft Questions
>
> Here's my stab at the questions that would/could be asked to
> try to determine if a set of "mandatory" access standards
> could be identified (in other words ones which must be met by
> a product before it could be purchased rather than all being
> part of a "best meets" review process that includes other
> factors such as cost and business need.)
>
> 1) Can conformance to the 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% . . . )?
>
> An example a yes/no standard would be -- automatic reset of
> volume to default after every use if telecommunications
> product allows the user to adjust the receive volume. A
> product will likely have an automatic reset and meet this
> standards 100% or have no such reset and not meet it at all.
>
> An example of a standard that results in a continuum of
> conformance rating would be -- interference to hearing aids
> shall be reduced to the lowest possible level. A product may
> deliver a wide range of degrees of interference that would
> need to be judged on a continuum with the lowest level ranked highest.
>
> 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 in a competitive procurement (e.g.
> there are a sufficient number of products that meet the
> access standard so that there would still be a competitive
> procurement.)
>
> It would seem that for a standard to be mandatory, the
> conformance would need to be able to be judged yes/no (meets
> or does not meet) and there would need to be sufficient
> products on the market so that the procurement would still be
> competitive when only considering products that meet the
> mandatory standard(s).
>
> Food for thought,
> Diane
>
> Diane Cordry Golden, Ph.D., Director
> Missouri Assistive Technology
> 816/350-5280 (direct voice)
> = EMAIL ADDRESS REMOVED =
> www.at.mo.gov
>
>

From: Gregg Vanderheiden
Date: Wed, Dec 13 2006 5:30 PM
Subject: Re: Draft Questions

Yes
This is where I think the 'success-criteria'/'sufficient-techniques'
approach can help.

Sorry I can't be on all the calls. This sounds like a great discussion.
Please excuse if my 'over the fence' comments sometimes miss the mark. I
try to keep them short and interesting/useful.


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



> -----Original Message-----
> From: = EMAIL ADDRESS REMOVED =
> [mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of
> Diane Golden
> Sent: Wednesday, December 13, 2006 6:19 PM
> To: 'TEITAC Subpart A Subcommittee'
> Subject: Re: [teitac-subparta] Draft Questions
>
> Without the context of the discussion on the call - this
> probably needed some background explanation. I was not at
> all implying that the auto reset was appropriate or not (and
> in fact it does only apply when the 20 dB gain standard is
> met and the telecom group had discussed extensively the need for
> an override of the reset for HH folks.) I was only using
> these as examples
> of the difference between standards that can be judged as
> met/not met versus those for which the conformance can only
> be judged in degrees which plays into the application
> conundrum we've identified in Subpart A.
>
> Your statement about wanting the fed govt to buy the product
> that meets as many access standards as possible goes to the
> heart of the problem with Subpart A Application section.
> While that is what one would think is happening given the
> language of Subpart A -- in fact we have learned that is NOT
> what is happening with federal procurements. After FAR
> interpretation regarding application and individual agency
> application procedures are put in place -- the decision
> regarding what to buy or not buy is not based on which
> products "best meets" the access standards either in the
> number of standards the product conforms to or the degree of
> conformance to individual standards. Instead the purchasing
> decision is based on a complicated mixture of considerations
> of cost, business need or functional performance, and
> conformance to access standards. In addition, some of the
> access standards may be pulled out of the requirements based
> on market research if they create limited competition. So
> the "best meets" application language of Subpart A does not
> accurately describe how the standards are actually being
> applied and thus leads to false expectations about what will
> and will not be purchased.
>
> As I said on the call, I'm not sure what chance there would
> be of identifying a set of true mandatory standards, but if
> such a set could be identified that would allow for revision
> of the application section to require purchase of product
> that meet these standards. Thus the email with draft
> questions that might be used to determine if standards could
> be mandatory. Absent that option, another approach would be
> to revise Subpart A to accurately reflect an application of
> the standards that "will be, can be or is" happening rather
> than reflecting an application that is not happening.
>
> As discussed on the call, this decision would seem to be
> holistically critical as it will impact the "level of the
> bar" that can be set by all the other technical and function
> standards. In general, the more flexible the application
> requirements, the higher the level of access can be included
> in technical and functional standards. The more stringent
> the application requirements, especially if a set of
> mandatory standards were identified for which conformance was
> compulsory absent standard excpetions (undue burden,
> national security, fundamental alteration, etc.) the lower
> the standards would likely be.
>
> Diane
>
> -----Original Message-----
> From: = EMAIL ADDRESS REMOVED =
> [mailto: = EMAIL ADDRESS REMOVED = ]On Behalf Of
> Gregg Vanderheiden
> Sent: Wednesday, December 13, 2006 5:07 PM
> To: 'TEITAC Subpart A Subcommittee'
> Subject: Re: [teitac-subparta] Draft Questions
>
>
> HI
>
> Two quick comments
> 1) auto-reset is immensely annoying if you are hard of
> hearing. It was created originally to ONLY apply if the
> volume was set very high. Would suggest that auto-reset only
> apply if the volume exceeds some level. It would then reset
> down to something under that level somewhere but not
> necessarily all the way to 'normal' or 'zero'.
>
> 2) I don't think you can come up with any "absolute"
> list that is meaniningful. The gov buys many many types of
> products- and 'undue burden'
> always applies. Sometimes you just can't meet even a
> reasonable set of
> guidelines for some special device or situation. If undue
> burden doesn't allow you to meet all - then you still want
> the product to meet as many as possible (and we are back to
> best meets). Often that would allow many people with
> disabilities to use the product just fine.
>
>
> Just for your consideration and contemplation.
>
>
> Gregg
> -- ------------------------------
> Gregg C Vanderheiden Ph.D.
>
>
>
> > -----Original Message-----
> > From: = EMAIL ADDRESS REMOVED =
> > [mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Diane
> > Golden
> > Sent: Wednesday, December 13, 2006 1:03 PM
> > To: TEITAC SubPart A listserv (E-mail)
> > Subject: [teitac-subparta] Draft Questions
> >
> > Here's my stab at the questions that would/could be asked to try to
> > determine if a set of "mandatory" access standards could be
> identified
> > (in other words ones which must be met by a product before
> it could be
> > purchased rather than all being part of a "best meets"
> review process
> > that includes other factors such as cost and business need.)
> >
> > 1) Can conformance to the 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% . . . )?
> >
> > An example a yes/no standard would be -- automatic reset of
> volume to
> > default after every use if telecommunications product
> allows the user
> > to adjust the receive volume. A product will likely have
> an automatic
> > reset and meet this standards 100% or have no such reset
> and not meet
> > it at all.
> >
> > An example of a standard that results in a continuum of conformance
> > rating would be -- interference to hearing aids shall be
> reduced to
> > the lowest possible level. A product may deliver a wide range of
> > degrees of interference that would need to be judged on a continuum
> > with the lowest level ranked highest.
> >
> > 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 in a competitive procurement (e.g.
> > there are a sufficient number of products that meet the access
> > standard so that there would still be a competitive
> > procurement.)
> >
> > It would seem that for a standard to be mandatory, the conformance
> > would need to be able to be judged yes/no (meets or does
> not meet) and
> > there would need to be sufficient products on the market so
> that the
> > procurement would still be competitive when only
> considering products
> > that meet the mandatory standard(s).
> >
> > Food for thought,
> > Diane
> >
> > Diane Cordry Golden, Ph.D., Director
> > Missouri Assistive Technology
> > 816/350-5280 (direct voice)
> > = EMAIL ADDRESS REMOVED =
> > www.at.mo.gov
> >
> >

From: terry.weaver@gsa.gov
Date: Thu, Dec 14 2006 12:10 PM
Subject: Re: Draft Questions

Diane Golden said
>Quote> "Here's my stab at the questions that would/could be asked to try
to
determine if a set of "mandatory" access standards could be identified (in
other words ones which must be met by a product before it could be
purchased
rather than all being part of a "best meets" review process that includes
other factors such as cost and business need.)"<end quote<

>>TW>> Business need is the justification agencies have to make any
purchase - if we can't connect an acquisition to a bona fide business
requirement, we have no business purchasing anything. Federal procurement
requirements contain many "over-arching" requirements - Energy Star, Buy
Green, Buy American, etc... The challenge facing acquisition officials is
how to blend all of these "must do's" with business need.

Here is an example from a call I received early on; a Federal agency with
millions of lines of a proprietary assembly language code running on a
large complex of mainframe computers and storage devices needed to acquire
job control and scheduling software. The estimated cost of the contract
was several hundreds of thousands of dollars.

If the agency had to acquire the most accessible software job control and
scheduling software, it would require that they re-engineer the assembly
language code - costing in the hundreds of millions dollars and having a
huge schedule impact. Because they had a business need for software that
was compatible with their installed legacy system as well as a business
need for providing accessibility (i.e. Section 508), the solution was to
include 508 requirements that their market research showed was available
for their proprietary code and to ensure that there was a reasonable
accommodation ready for those 508 provisions that weren't met. If the
software the agency wanted to purchase had to meet a set of mandatory
access standards, the ultimate solution for them would have most likely to
have gotten themselves completely exempted from any 508 compliance by
rightfully calling the requirement an undue burden.<<end quote<<


>DG>"1) Can conformance to the 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% . . . )?",end quote<

>>TW>> But, if the scale is at the provision level, it still requires a
sophisticated buyer to interpret and apply to a given acquisition. Are
the conformance levels self-asserted? If not, are we creating a new, huge
enterprise for testing and labelling? >>end quote>>

>DG>"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 in a competitive procurement (e.g. there are a
sufficient number of products that meet the access standard so that there
would still be a competitive procurement.)"

>>TW>> Who would be doing this kind of advanced market research? It
would require a substantial team of knowledgeable IT/AT/508 experts to
research and possibly test the spectrum of EIT products that 508
covers.<<TW<<

"It would seem that for a standard to be mandatory, the conformance would
need to be able to be judged yes/no (meets or does not meet) and there
would
need to be sufficient products on the market so that the procurement would
still be competitive when only considering products that meet the
mandatory
standard(s)."
>End quote>

>>TW>> I think we are on unstable ground in an effort that appears to be
an attempt to guide procurement officials in purchase decisions
arbitrarily by removing their discretion to establish the agency's total
business need. To add another level of complexity - what if the most
accessible product (or the one that meets the Standard for the most
mandatory provisions) does not meet Energy Star or one of the other must
do's? These are decisions best left to the agencies' own business
experts. My two cents <<end quote<<

From: awoolley@cusa.canon.com
Date: Thu, Dec 14 2006 1:30 PM
Subject: Re: Draft Questions

Terry,

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.

FEMP: Federal Energy Management Program
RCRA: Resource Conservation Recovery Act

Aubrey

Aubrey Woolley
Government Policy and Compliance Analyst
Government Marketing Division
Canon USA, Inc.
TEL: (703) 807-3158
= EMAIL ADDRESS REMOVED =




= EMAIL ADDRESS REMOVED =
Sent by: = EMAIL ADDRESS REMOVED =
12/14/2006 02:06 PM
Please respond to
TEITAC Subpart A Subcommittee < = EMAIL ADDRESS REMOVED = >


To
= EMAIL ADDRESS REMOVED = , "TEITAC Subpart A Subcommittee"
< = EMAIL ADDRESS REMOVED = >
cc
= EMAIL ADDRESS REMOVED = , "TEITAC SubPart A listserv
(E-mail)" < = EMAIL ADDRESS REMOVED = >
Subject
Re: [teitac-subparta] Draft Questions







Diane Golden said
>Quote> "Here's my stab at the questions that would/could be asked to try
to
determine if a set of "mandatory" access standards could be identified (in
other words ones which must be met by a product before it could be
purchased
rather than all being part of a "best meets" review process that includes
other factors such as cost and business need.)"<end quote<

>>TW>> Business need is the justification agencies have to make any
purchase - if we can't connect an acquisition to a bona fide business
requirement, we have no business purchasing anything. Federal procurement
requirements contain many "over-arching" requirements - Energy Star, Buy
Green, Buy American, etc... The challenge facing acquisition officials is
how to blend all of these "must do's" with business need.

Here is an example from a call I received early on; a Federal agency with
millions of lines of a proprietary assembly language code running on a
large complex of mainframe computers and storage devices needed to acquire
job control and scheduling software. The estimated cost of the contract
was several hundreds of thousands of dollars.

If the agency had to acquire the most accessible software job control and
scheduling software, it would require that they re-engineer the assembly
language code - costing in the hundreds of millions dollars and having a
huge schedule impact. Because they had a business need for software that
was compatible with their installed legacy system as well as a business
need for providing accessibility (i.e. Section 508), the solution was to
include 508 requirements that their market research showed was available
for their proprietary code and to ensure that there was a reasonable
accommodation ready for those 508 provisions that weren't met. If the
software the agency wanted to purchase had to meet a set of mandatory
access standards, the ultimate solution for them would have most likely to
have gotten themselves completely exempted from any 508 compliance by
rightfully calling the requirement an undue burden.<<end quote<<


>DG>"1) Can conformance to the 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% . . . )?",end quote<

>>TW>> But, if the scale is at the provision level, it still requires a
sophisticated buyer to interpret and apply to a given acquisition. Are
the conformance levels self-asserted? If not, are we creating a new, huge
enterprise for testing and labelling? >>end quote>>

>DG>"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 in a competitive procurement (e.g. there are a
sufficient number of products that meet the access standard so that there
would still be a competitive procurement.)"

>>TW>> Who would be doing this kind of advanced market research? It
would require a substantial team of knowledgeable IT/AT/508 experts to
research and possibly test the spectrum of EIT products that 508
covers.<<TW<<

"It would seem that for a standard to be mandatory, the conformance would
need to be able to be judged yes/no (meets or does not meet) and there
would
need to be sufficient products on the market so that the procurement would
still be competitive when only considering products that meet the
mandatory
standard(s)."
>End quote>

>>TW>> I think we are on unstable ground in an effort that appears to be
an attempt to guide procurement officials in purchase decisions
arbitrarily by removing their discretion to establish the agency's total
business need. To add another level of complexity - what if the most
accessible product (or the one that meets the Standard for the most
mandatory provisions) does not meet Energy Star or one of the other must
do's? These are decisions best left to the agencies' own business
experts. My two cents <<end quote<<

From: Hoffman, Allen
Date: Thu, Dec 14 2006 1:35 PM
Subject: Re: 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

From: Diane Golden
Date: Thu, Dec 14 2006 2:00 PM
Subject: Re: 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

From: Gregg Vanderheiden
Date: Thu, Dec 21 2006 6:05 PM
Subject: Re: 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

From: Diane Golden
Date: Fri, Dec 22 2006 8:20 AM
Subject: Re: 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

From: Jim Tobias
Date: Fri, Dec 22 2006 11:15 AM
Subject: Re: 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

From: Diane Golden
Date: Fri, Dec 22 2006 11:35 AM
Subject: Re: 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

From: Cannady TJ
Date: Fri, Dec 22 2006 11:40 AM
Subject: Re: Draft Questions

Hope this doesn't go out twice, but I inadvertently sent it out this
morning from my alias account.

Sorry for chiming in very late. There may be several reasons why
consensus cannot be reached. First, it is possible this discussion
really more the realm of the FAR rather the domain of the Access Board.
In terms of business needs, it is probably implied that government
should not be expending federal dollars on products or services that do
not meet its business needs. In terms of cost, "undue burden" provides
an avenue rich in case law that accounts for cost as a factor, but it
has never been too restrictive or prescriptive. The biggest roadblock
may be that the universe of procurement actions runs the gamut of
requirements in terms of scope, complexity, cost, etc. I cannot see a
practical way of marrying them and then quantifying these factors in a
way that could be reasonably implemented given this diversity. Aubrey
correctly points out a few areas of conflict in addition to other
competing interests such as security. In fact, 508 has now become one
of those new "hot button" requirements such as security and buying green
that have to be weighed on a case-by-case basis. These overarching
requirements are a moving target and government needs the flexibility to
weigh these factors in context with the specifics of the procurement.

TJ Cannady

From: Jessica M. Brodey
Date: Tue, Dec 26 2006 10:15 AM
Subject: Re: Draft Questions

<Diane said:>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. <endquote>



I apologize for chiming in a bit late on this thread . . . but it seems some
of the issue is that we have some decisionmaking and prioritization
happening that is not articulated or guided in any way by statute or
procedures - it is quite haphazard, and as a result, we have quite arbitrary
enforcement of 508. We either need to take the approach that 508 must be
strictly construed and enforced, OR we need to recognize that there are
business factors and other factors in procurement that make that reality
impossible, and take action to provide guidance and articulate the "right"
or recommended path for best meeting the underlying goals of 508 while
addressing the business factors. The problem is that we have no
transparency or consistency in the process, and each entity is making it up
as they go along with little guidance. Gregg is correct that this type of
blending has led to abuse. If blending is a reality, then we need to figure
out how to recognize and acknowledge blending, and remove the abuse.
Perhaps guidance is the right way to do that.



Jessica





-----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

From: terry.weaver@gsa.gov
Date: Tue, Dec 26 2006 3:00 PM
Subject: Re: Draft Questions

We need to remember that the TEITAC has a very specific function -
providing recommendations for updates to the accessibility standards
issued under Sections 508 and 255. We do not have control of the FAR or
how agencies implement the FAR.

Acquisition regulations (such as the FAR) are responsible for ensuring
that the government meets its need for as balanced by a myriad of
regulations. Trying to trump that by creating an inflexible requirement
(i.e. buy this product that meets a core set of requirements or buy
nothing) misses the point that agencies are required by law to fulfill the
mission for which they were created. They need products, they need
standards and they need to be able to easily buy products that meet
standards. If we can remove the need for agency buyers to become Section
508 experts to deduce what "best meets" means, we will go a long way to
creating an environment where agencies don't have to trade off provisions
against business needs.






"Cannady TJ" < = EMAIL ADDRESS REMOVED = >
Sent by: = EMAIL ADDRESS REMOVED =
12/22/2006 01:36 PM
Please respond to
"TEITAC Subpart A Subcommittee" < = EMAIL ADDRESS REMOVED = >


To
= EMAIL ADDRESS REMOVED =
cc

Subject
Re: [teitac-subparta] Draft Questions






Hope this doesn't go out twice, but I inadvertently sent it out this
morning from my alias account.

Sorry for chiming in very late. There may be several reasons why
consensus cannot be reached. First, it is possible this discussion really
more the realm of the FAR rather the domain of the Access Board. In terms
of business needs, it is probably implied that government should not be
expending federal dollars on products or services that do not meet its
business needs. In terms of cost, �undue burden� provides an avenue rich
in case law that accounts for cost as a factor, but it has never been too
restrictive or prescriptive. The biggest roadblock may be that the
universe of procurement actions runs the gamut of requirements in terms of
scope, complexity, cost, etc. I cannot see a practical way of marrying
them and then quantifying these factors in a way that could be reasonably
implemented given this diversity. Aubrey correctly points out a few areas
of conflict in addition to other competing interests such as security. In
fact, 508 has now become one of those new �hot button� requirements such
as security and buying green that have to be weighed on a case-by-case
basis. These overarching requirements are a moving target and government
needs the flexibility to weigh these factors in context with the specifics
of the procurement.

TJ Cannady
From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Diane Golden
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

From: Diane Golden
Date: Tue, Dec 26 2006 5:35 PM
Subject: Re: Draft Questions

Terry: So are you suggesting 1194.2(b), the "best meets" language of Subpart A, be eliminated?

Diane Golden

-----Original Message-----
From: = EMAIL ADDRESS REMOVED = [mailto: = EMAIL ADDRESS REMOVED = ]On Behalf Of = EMAIL ADDRESS REMOVED =
Sent: Tuesday, December 26, 2006 3:55 PM
To: TEITAC Subpart A Subcommittee
Cc: = EMAIL ADDRESS REMOVED = ; = EMAIL ADDRESS REMOVED =
Subject: Re: [teitac-subparta] Draft Questions



We need to remember that the TEITAC has a very specific function - providing recommendations for updates to the accessibility standards issued under Sections 508 and 255. We do not have control of the FAR or how agencies implement the FAR.

Acquisition regulations (such as the FAR) are responsible for ensuring that the government meets its need for as balanced by a myriad of regulations. Trying to trump that by creating an inflexible requirement (i.e. buy this product that meets a core set of requirements or buy nothing) misses the point that agencies are required by law to fulfill the mission for which they were created. They need products, they need standards and they need to be able to easily buy products that meet standards. If we can remove the need for agency buyers to become Section 508 experts to deduce what "best meets" means, we will go a long way to creating an environment where agencies don't have to trade off provisions against business needs.





"Cannady TJ" < = EMAIL ADDRESS REMOVED = >
Sent by: = EMAIL ADDRESS REMOVED =
12/22/2006 01:36 PM Please respond to
"TEITAC Subpart A Subcommittee" < = EMAIL ADDRESS REMOVED = >


To = EMAIL ADDRESS REMOVED =
cc
Subject Re: [teitac-subparta] Draft Questions







Hope this doesn't go out twice, but I inadvertently sent it out this morning from my alias account.

Sorry for chiming in very late. There may be several reasons why consensus cannot be reached. First, it is possible this discussion really more the realm of the FAR rather the domain of the Access Board. In terms of business needs, it is probably implied that government should not be expending federal dollars on products or services that do not meet its business needs. In terms of cost, �undue burden� provides an avenue rich in case law that accounts for cost as a factor, but it has never been too restrictive or prescriptive. The biggest roadblock may be that the universe of procurement actions runs the gamut of requirements in terms of scope, complexity, cost, etc. I cannot see a practical way of marrying them and then quantifying these factors in a way that could be reasonably implemented given this diversity. Aubrey correctly points out a few areas of conflict in addition to other competing interests such as security. In fact, 508 has now become one of those new �hot button� requirements such as security and buying green that have to be weighed on a case-by-case basis. These overarching requirements are a moving target and government needs the flexibility to weigh these factors in context with the specifics of the procurement.

TJ Cannady

--------------------------------------------------------------------------------
From: = EMAIL ADDRESS REMOVED = [mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Diane Golden
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

From: Laura Ruby
Date: Tue, Dec 26 2006 5:50 PM
Subject: Re: Draft Questions

Eliminating "best meets" could create an all or nothing situation which
forces products to meet every standard in a minimum set of standards
which are focused on today's technology capabilities. This would not
allow for the standards to be future oriented which is what drives the
market forward, creates competition and pushes innovation.

Laura Ruby
Director of Global Policy and Standards
Microsoft Accessible Technology Group
425-705-7098
= EMAIL ADDRESS REMOVED = <mailto: = EMAIL ADDRESS REMOVED = >

From: Jim Tobias
Date: Tue, Dec 26 2006 6:45 PM
Subject: Re: Draft Questions

As much as I agree that this is an important issue and has been the subject
of abuse and inconsistency, I'm afraid it's in the category of "not in our
scope". Specifically, all policies and procedures about how to implement
508 is going to be refreshed -- or not -- by the FAR Council. This is why
not having them at our table, or at least in some formal liaison, is so
frustrating to me.

If anyone has a suggestion as to how to alleviate this problem, or a nice,
strong argument for why such implementation policies are within our purview,
I'd much appreciate it.


_____

From: Jessica M. Brodey [mailto: = EMAIL ADDRESS REMOVED = ]
Sent: Tuesday, December 26, 2006 12:11 PM
To: = EMAIL ADDRESS REMOVED = ; 'TEITAC Subpart A Subcommittee'
Subject: Re: [teitac-subparta] Draft Questions



<Diane said:>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. <endquote>



I apologize for chiming in a bit late on this thread . . . but it seems some
of the issue is that we have some decisionmaking and prioritization
happening that is not articulated or guided in any way by statute or
procedures - it is quite haphazard, and as a result, we have quite arbitrary
enforcement of 508. We either need to take the approach that 508 must be
strictly construed and enforced, OR we need to recognize that there are
business factors and other factors in procurement that make that reality
impossible, and take action to provide guidance and articulate the "right"
or recommended path for best meeting the underlying goals of 508 while
addressing the business factors. The problem is that we have no
transparency or consistency in the process, and each entity is making it up
as they go along with little guidance. Gregg is correct that this type of
blending has led to abuse. If blending is a reality, then we need to figure
out how to recognize and acknowledge blending, and remove the abuse.
Perhaps guidance is the right way to do that.



Jessica





-----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

From: terry.weaver@gsa.gov
Date: Tue, Dec 26 2006 9:50 PM
Subject: Re: Draft Questions

No, I am not suggesting that. We need the best meets option as long as there are detailed technical standards with multiple provisions. It is the only way we have now to select products when none are fully conformant. And eliminating it won't remove the discretion contracting officers have in making awards - the agency still needs to fill its business needs. Making accessibility/508 a business need is an accomplishment of the Statute - it wasn't always so.



----- Original Message -----
From: "Diane Golden" [ = EMAIL ADDRESS REMOVED = ]
Sent: 12/26/2006 07:37 PM
To: "'TEITAC Subpart A Subcommittee'" < = EMAIL ADDRESS REMOVED = >
Subject: Re: [teitac-subparta] Draft Questions

Terry: So are you suggesting 1194.2(b), the "best meets" language of Subpart A, be eliminated?

Diane Golden

-----Original Message-----
From: = EMAIL ADDRESS REMOVED = [mailto: = EMAIL ADDRESS REMOVED = ]On Behalf Of = EMAIL ADDRESS REMOVED =
Sent: Tuesday, December 26, 2006 3:55 PM
To: TEITAC Subpart A Subcommittee
Cc: = EMAIL ADDRESS REMOVED = ; = EMAIL ADDRESS REMOVED =
Subject: Re: [teitac-subparta] Draft Questions



We need to remember that the TEITAC has a very specific function - providing recommendations for updates to the accessibility standards issued under Sections 508 and 255. We do not have control of the FAR or how agencies implement the FAR.

Acquisition regulations (such as the FAR) are responsible for ensuring that the government meets its need for as balanced by a myriad of regulations. Trying to trump that by creating an inflexible requirement (i.e. buy this product that meets a core set of requirements or buy nothing) misses the point that agencies are required by law to fulfill the mission for which they were created. They need products, they need standards and they need to be able to easily buy products that meet standards. If we can remove the need for agency buyers to become Section 508 experts to deduce what "best meets" means, we will go a long way to creating an environment where agencies don't have to trade off provisions against business needs.





"Cannady TJ" < = EMAIL ADDRESS REMOVED = >
Sent by: = EMAIL ADDRESS REMOVED =
12/22/2006 01:36 PM Please respond to
"TEITAC Subpart A Subcommittee" < = EMAIL ADDRESS REMOVED = >


To = EMAIL ADDRESS REMOVED =
cc
Subject Re: [teitac-subparta] Draft Questions







Hope this doesn't go out twice, but I inadvertently sent it out this morning from my alias account.

Sorry for chiming in very late. There may be several reasons why consensus cannot be reached. First, it is possible this discussion really more the realm of the FAR rather the domain of the Access Board. In terms of business needs, it is probably implied that government should not be expending federal dollars on products or services that do not meet its business needs. In terms of cost, �undue burden� provides an avenue rich in case law that accounts for cost as a factor, but it has never been too restrictive or prescriptive. The biggest roadblock may be that the universe of procurement actions runs the gamut of requirements in terms of scope, complexity, cost, etc. I cannot see a practical way of marrying them and then quantifying these factors in a way that could be reasonably implemented given this diversity. Aubrey correctly points out a few areas of conflict in addition to other competing interests such as security. In fact, 508 has now become one of those new �hot button� requirements such as security and buying green that have to be weighed on a case-by-case basis. These overarching requirements are a moving target and government needs the flexibility to weigh these factors in context with the specifics of the procurement.

TJ Cannady

--------------------------------------------------------------------------------
From: = EMAIL ADDRESS REMOVED = [mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Diane Golden
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

From: David Poehlman
Date: Wed, Dec 27 2006 5:00 AM
Subject: Re: Draft Questions

how does one go about crreating and act of congress?

On Dec 26, 2006, at 8:41 PM, Jim Tobias wrote:

As much as I agree that this is an important issue and has been the
subject
of abuse and inconsistency, I'm afraid it's in the category of "not
in our
scope". Specifically, all policies and procedures about how to
implement
508 is going to be refreshed -- or not -- by the FAR Council. This
is why
not having them at our table, or at least in some formal liaison, is so
frustrating to me.

If anyone has a suggestion as to how to alleviate this problem, or a
nice,
strong argument for why such implementation policies are within our
purview,
I'd much appreciate it.


_____

From: Jessica M. Brodey [mailto: = EMAIL ADDRESS REMOVED = ]
Sent: Tuesday, December 26, 2006 12:11 PM
To: = EMAIL ADDRESS REMOVED = ; 'TEITAC Subpart A Subcommittee'
Subject: Re: [teitac-subparta] Draft Questions



<Diane said:>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. <endquote>



I apologize for chiming in a bit late on this thread . . . but it
seems some
of the issue is that we have some decisionmaking and prioritization
happening that is not articulated or guided in any way by statute or
procedures - it is quite haphazard, and as a result, we have quite
arbitrary
enforcement of 508. We either need to take the approach that 508
must be
strictly construed and enforced, OR we need to recognize that there are
business factors and other factors in procurement that make that reality
impossible, and take action to provide guidance and articulate the
"right"
or recommended path for best meeting the underlying goals of 508 while
addressing the business factors. The problem is that we have no
transparency or consistency in the process, and each entity is making
it up
as they go along with little guidance. Gregg is correct that this
type of
blending has led to abuse. If blending is a reality, then we need to
figure
out how to recognize and acknowledge blending, and remove the abuse.
Perhaps guidance is the right way to do that.



Jessica





-----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









<winmail.dat>

From: David Poehlman
Date: Wed, Dec 27 2006 5:05 AM
Subject: Re: Draft Questions

I like taking ambiguity out of the standards, but the standards must
be developped along functional lines in order for innovation to
continue to drive accessibility. I'm not certain that this can be
achieved.

From: Jagbell
Date: Wed, Dec 27 2006 6:50 AM
Subject: Re: Draft Questions

Yes, but how do we eliminate the abuse. The way it currently stands,
accessibility appears to be one of many features rather than a
driving hurdle.


On Dec 27, 2006, at 7:02 AM, David Poehlman wrote:

> I like taking ambiguity out of the standards, but the standards must
> be developped along functional lines in order for innovation to
> continue to drive accessibility. I'm not certain that this can be
> achieved.
>
>

From: Weinstein, Michael
Date: Wed, Dec 27 2006 8:10 AM
Subject: Re: Draft Questions

Terry,

That is an excellent point. However, the standards already crossed that
path by including the "best meets" language in the regulations. If this
language has created issues for agencies it may be prudent to revisit
it.

I am not implying that accessibility is not of critical importance, I am
merely suggesting that the implementation of the standards would be
better left to the FAR Council, which possesses the procurement
experties necessary to accomplish the task.



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: Wed, Dec 27 2006 8:30 AM
Subject: Re: Draft Questions

Michael

That is exactly my point - the TEITAC is not charged with rewriting the FAR. That task will be assigned to a committee that will be formed at the direction of the FAR Council when the Access Board has the update ready. The people who will draft the FAR changes for the FAR Council have not yet been named since nothing has been given to the Council yet to form a case.



----- Original Message -----
From: "Weinstein, Michael" [ = EMAIL ADDRESS REMOVED = ]
Sent: 12/27/2006 10:05 AM
To: "TEITAC Subpart A Subcommittee" < = EMAIL ADDRESS REMOVED = >
Subject: Re: [teitac-subparta] Draft Questions

Terry,

That is an excellent point. However, the standards already crossed that
path by including the "best meets" language in the regulations. If this
language has created issues for agencies it may be prudent to revisit
it.

I am not implying that accessibility is not of critical importance, I am
merely suggesting that the implementation of the standards would be
better left to the FAR Council, which possesses the procurement
experties necessary to accomplish the task.



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: Diane Golden
Date: Wed, Dec 27 2006 9:05 AM
Subject: Re: Draft Questions

So if the "best meets" language of 1194.2(b) is left in -- should it be
revised to be consistent with actual implementation? Since agencies are not
buying the product that "best meets" the access standards (as one would
assume from the plain language of 1194.2(b), but are instead buying based on
consideration of a number of factors (accessibility, cost, business need,
etc.) -- would it be possible to add language to 1194.2(b) so that it
accurately reflects how the FAR is directing implementation?

Diane Golden
-----Original Message-----
From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ]On Behalf Of
= EMAIL ADDRESS REMOVED =
Sent: Wednesday, December 27, 2006 9:25 AM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Draft Questions



Michael

That is exactly my point - the TEITAC is not charged with rewriting the FAR.
That task will be assigned to a committee that will be formed at the
direction of the FAR Council when the Access Board has the update ready. The
people who will draft the FAR changes for the FAR Council have not yet been
named since nothing has been given to the Council yet to form a case.



----------------------------------------------------------------------------
----

----- Original Message -----
From: "Weinstein, Michael" [ = EMAIL ADDRESS REMOVED = ]
Sent: 12/27/2006 10:05 AM
To: TEITAC Subpart A Subcommittee" < = EMAIL ADDRESS REMOVED = >
Subject: Re: [teitac-subparta] Draft Questions




Terry,

That is an excellent point. However, the standards already crossed that
path by including the "best meets" language in the regulations. If this
language has created issues for agencies it may be prudent to revisit it.

I am not implying that accessibility is not of critical importance, I am
merely suggesting that the implementation of the standards would be better
left to the FAR Council, which possesses the procurement experties necessary
to accomplish the task.


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: awoolley@cusa.canon.com
Date: Wed, Dec 27 2006 9:15 AM
Subject: Re: Draft Questions

In pondering this question, we need to remember the importance of "best
meets" as the driver of increasingly accessible technology. Since 2001,
many E&IT products have become increasingly accessible as competition has
driven manufacturers to add more features that provide access for people
with disabilities. "Best meets" has been the catalyst for this
innovation- I assume we all have an interest in maintaining this progress
in the future.

Aubrey

Aubrey Woolley
Government Policy and Compliance Analyst
Government Marketing Division
Canon USA, Inc.
TEL: (703) 807-3158
= EMAIL ADDRESS REMOVED =




"Diane Golden" < = EMAIL ADDRESS REMOVED = >
Sent by: = EMAIL ADDRESS REMOVED =
12/27/2006 11:06 AM
Please respond to
= EMAIL ADDRESS REMOVED = ; Please respond to
TEITAC Subpart A Subcommittee < = EMAIL ADDRESS REMOVED = >


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

Subject
Re: [teitac-subparta] Draft Questions






So if the "best meets" language of 1194.2(b) is left in -- should it be
revised to be consistent with actual implementation? Since agencies are
not buying the product that "best meets" the access standards (as one
would assume from the plain language of 1194.2(b), but are instead buying
based on consideration of a number of factors (accessibility, cost,
business need, etc.) -- would it be possible to add language to 1194.2(b)
so that it accurately reflects how the FAR is directing implementation?

Diane Golden
-----Original Message-----
From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ]On Behalf Of
= EMAIL ADDRESS REMOVED =
Sent: Wednesday, December 27, 2006 9:25 AM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Draft Questions

Michael

That is exactly my point - the TEITAC is not charged with rewriting the
FAR. That task will be assigned to a committee that will be formed at the
direction of the FAR Council when the Access Board has the update ready.
The people who will draft the FAR changes for the FAR Council have not yet
been named since nothing has been given to the Council yet to form a case.


----- Original Message -----
From: "Weinstein, Michael" [ = EMAIL ADDRESS REMOVED = ]
Sent: 12/27/2006 10:05 AM
To: TEITAC Subpart A Subcommittee" < = EMAIL ADDRESS REMOVED = >
Subject: Re: [teitac-subparta] Draft Questions

Terry,

That is an excellent point. However, the standards already crossed that
path by including the "best meets" language in the regulations. If this
language has created issues for agencies it may be prudent to revisit it.

I am not implying that accessibility is not of critical importance, I am
merely suggesting that the implementation of the standards would be better
left to the FAR Council, which possesses the procurement experties
necessary to accomplish the task.


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: Diane Golden
Date: Wed, Dec 27 2006 9:20 AM
Subject: Re: Draft Questions

I'd like to emphasize the point below that Michael makes. The 508 rules DO
direct procurement policies and procedures via the language of 1194.2 on
application (that is not left completely to the FAR). Obviously the FAR
provides further direction for procurement policies and procedures.
Currently the two are inconsistent in that the 508 rules do not acknowledge
the influence of factors other than accessibility on procurement
decision-making -- while the FAR uses what has been described as a blended
approach to decision-making. So while the TEITAC cannot address the FAR, it
certainly can address the content of 1194.2 as that is one part of the
inconsistency.

Diane Golden


-----Original Message-----
From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ]On Behalf Of Weinstein,
Michael
Sent: Wednesday, December 27, 2006 9:05 AM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Draft Questions



Terry,

That is an excellent point. However, the standards already crossed that
path by including the "best meets" language in the regulations. If this
language has created issues for agencies it may be prudent to revisit it.

I am not implying that accessibility is not of critical importance, I am
merely suggesting that the implementation of the standards would be better
left to the FAR Council, which possesses the procurement experties necessary
to accomplish the task.



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: KateLee32@aol.com
Date: Wed, Dec 27 2006 11:50 AM
Subject: Re: Draft Questions

In a message dated 12/27/2006 11:01:45 AM Eastern Standard Time,
= EMAIL ADDRESS REMOVED = writes:

So if the "best meets" language of 1194.2(b) is left in -- should it be
revised to be consistent with actual implementation? Since agencies are not
buying the product that "best meets" the access standards (as one would assume
from the plain language of 1194.2(b), but are instead buying based on
consideration of a number of factors (accessibility, cost, business need, etc.) --
would it be possible to add language to 1194.2(b) so that it accurately
reflects how the FAR is directing implementation?



Are you saying that we should revise 1194.2(b) to reflect what is actually
being implemented? Or are you saying that 1194.2(b) should be revised to be
more consistent with FAR language?

I am wary about structuring legislative standards around implementation
practices because it seems like a 'backwards' approach. That because people are
not doing what the law says, we should write the law to reflect what is being
done.

That's how I'm viewing things when I read 'consistent with actual
implementation.' If I'm misunderstanding, I would appreciate clarification on the point.

Thank you,

Katie Lee
Hearing Loss Ass'n of America

From: Diane Golden
Date: Wed, Dec 27 2006 12:15 PM
Subject: Re: Draft Questions

I'm asking if 1194.2 should be revised to be consistent with or acknowledge
the FAR and the "blended" approach it sanctions.

Diane Golden

-----Original Message-----
From: = EMAIL ADDRESS REMOVED = [mailto: = EMAIL ADDRESS REMOVED = ]
Sent: Wednesday, December 27, 2006 12:45 PM
To: = EMAIL ADDRESS REMOVED = ; = EMAIL ADDRESS REMOVED =
Subject: Re: [teitac-subparta] Draft Questions



In a message dated 12/27/2006 11:01:45 AM Eastern Standard Time,
= EMAIL ADDRESS REMOVED = writes:
So if the "best meets" language of 1194.2(b) is left in -- should it be
revised to be consistent with actual implementation? Since agencies are not
buying the product that "best meets" the access standards (as one would
assume from the plain language of 1194.2(b), but are instead buying based on
consideration of a number of factors (accessibility, cost, business need,
etc.) -- would it be possible to add language to 1194.2(b) so that it
accurately reflects how the FAR is directing implementation?
Are you saying that we should revise 1194.2(b) to reflect what is actually
being implemented? Or are you saying that 1194.2(b) should be revised to be
more consistent with FAR language?

I am wary about structuring legislative standards around implementation
practices because it seems like a 'backwards' approach. That because people
are not doing what the law says, we should write the law to reflect what is
being done.

That's how I'm viewing things when I read 'consistent with actual
implementation.' If I'm misunderstanding, I would appreciate clarification
on the point.

Thank you,

Katie Lee
Hearing Loss Ass'n of America

From: Robinson, Norman B - Washington, DC
Date: Wed, Dec 27 2006 12:25 PM
Subject: Re: Draft Questions

Michael,

Don't forget some of us don't have to follow the FAR but still
implement Section 508. Just something to consider.

For my two cents, at issue is fundamental alteration (1194.3(e)) or
commercial non-availability (1194.2(b)) are being used as a general
exception to E&IT or requirements are constructed such that products are
not meeting a critical business requirement. Many times a business
requirement includes technical specifics (e.g., must function in a
specific operating system version) that can be written to a specific
vendor implementation or product line, at odds with accessibility and
the spirit of Section 508. Programs then "comply with Section 508" by
documenting a general exception for fundamental alteration or document
the commercial non-availability. I am suggesting that when we consider
how things fail, the worse case would be someone intent on developing
business requirements to preclude any other products, which doesn't help
us select the most accessible product. Note there are some logic traps
in my statements, but it should be enough for the reader to consider the
problems.

The Section 508 preamble discusses fundamental alteration and a
recommendation from AFB was to provide explanation in an undue burden
response. It isn't a undue burden to say you have business requirements
that no commercially available product currently meets the accessibility
standards.

The example of fundamental alternation is too simple. Hardware
pagers and using pocket size as a business requirement is a clear
example. It doesn't explain if software configuration, operating system
compatibility, and a host of related issues are appropriate. I don't
expect a procurement officer to know any of the technical issues clearly
enough to determine if Section 508 compliance is met. If the procuring
official has technical requirements as part of business requirements I
expect they would use them to state commercial non-availability. Who
gets to judge the quality and approach to developing requirements? When
you think of this issue, consider word processors. Tell me that if a
version of OpenOffice was more accessible than Microsoft Word your
agency would select it for use. There are other issues besides technical
issues at work when considering a business solution. I think it is an
actual undue burden for individual agencies to have to develop entire
cost models to support technology changes (e.g., migration costs,
training costs, vendor licensing costs, support costs) in the context of
Section 508. This is clearly something beyond what can be addressed by
Section 508.

My suggestion to changes to Section A would be that the preamble
discussion to paragraph (e) stating examples of serious design and costs
ramifications should be removed. Switches, servers, "back office"
equipment can all be made accessible and Section 508 compliant
procurements should encourage industry to develop accessible solutions.
If they don't build it, it is commercial non-availability! There should
be no encouragement or reason not to allow the marketplace to compete on
accessibility.

Finally, there is no way to measure accessibility compliance (i.e.,
weighting of the standards) in responses to procurement actions such as
a Statement of Work (SOW). If you begin to develop your own
measurements, you will inevitably begin to start seeing technical
compliance in one section for one product and opposites in other
products. How does one make a judgment call as to what is "more
accessible"? Is it simply a count of total number of technical standards
a product meets? I would suggest that it is too complex and burdensome
of an approach (I've tried it). What might work better for all of us if
we only ask for functional performance criteria as a primary evaluation
factor.

It is no secret I've been advocating a reorganization of the
standards to make functional performance criteria (1194.31) the top of
the model for accessibility. I do think that this approach helps make
things more consistent for _procurement officers_ that are the primary
target of this information. They must have a workable system that helps
us meet accessibility through Section 508 compliance. When you get
solicitation responses, vendors can better respond to functional
requirements (e.g., "One more of operation that doesn't require user
vision") than to specific technical responses (e.g., "text equivalents
for all widgets in an application with 10K screens) and you still are
able to leverage their contractual commitments to fixing accessibility
issues or taking legal action. Also, I've found that industry/vendors
can easily understand and respond to the functional requirements without
understanding Section 508 at all. It is our agencies job to understand
Section 508 - not the vendors. They should only be concerned with making
software as accessible as possible using industry standards, not trying
to understand the legal and technical issues of Section 508. By that I
mean Section 508 should be generic enough to move us forward, not so
specific it will be burdensome and left behind as technology changes.

Regards,

Norman B. Robinson
Section 508 Coordinator
IT Governance, US Postal Service
phone: 202.268.8246

-----Original Message-----
From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Weinstein,
Michael
Sent: Wednesday, December 27, 2006 10:05 AM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Draft Questions


Terry,

That is an excellent point. However, the standards already
crossed that path by including the "best meets" language in the
regulations. If this language has created issues for agencies it may be
prudent to revisit it.

I am not implying that accessibility is not of critical
importance, I am merely suggesting that the implementation of the
standards would be better left to the FAR Council, which possesses the
procurement experties necessary to accomplish the task.



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: Weinstein, Michael
Date: Wed, Dec 27 2006 1:45 PM
Subject: Re: Draft Questions

Norman,

Thanks for the input. I believe Section 508 can reach its full
potential if effectively implemented consistent with established
procurement procedures. The IT market is fiercely competitive and a
procurement system that encourages vendors to develop innovative
accessibility solutions for their products would go a long way to
achieving the objectives of Section 508.

If accessibility is a factor in a "best value" determination vendors
would be encouraged to develop innovative accessibility solutions since
this can prove advantageous in the competition. Additionally, agencies
can weigh accessibility with the other factors to determine the best
product to meet its needs.

The problem with the "Best Meets" language is that it contradicts with
established procurement procedures by stating in effect that
accessibility trumps all other factors.

I am not a technical person but merely a procurement lawyer who strives
for consistency. It may be helpful to include language clarifying that
the relevant regulation is not intended to alter established procurement
procedures or something to that effect.








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: Diane Golden
Date: Wed, Dec 27 2006 4:30 PM
Subject: Re: Draft Questions

Again I'm going to emphasize something Michael said --

"The problem with the "Best Meets" language is that it contradicts with
established procurement procedures by stating in effect that accessibility
trumps all other factors."

That in a nutshell is the issue with the current language of 1194.2(b). The
question seems to be does the TEITAC make any recommendations regarding this
language? If so, what should be recommended? Would adding wording like
"applied in accordance with the FAR or other adopted agency procurement
policies" or some similar type of reference into 1194.2 be a starting point?


Diane Golden

-----Original Message-----
From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ]On Behalf Of Weinstein,
Michael
Sent: Wednesday, December 27, 2006 2:41 PM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Draft Questions



Norman,

Thanks for the input. I believe Section 508 can reach its full potential if
effectively implemented consistent with established procurement procedures.
The IT market is fiercely competitive and a procurement system that
encourages vendors to develop innovative accessibility solutions for their
products would go a long way to achieving the objectives of Section 508.

If accessibility is a factor in a "best value" determination vendors would
be encouraged to develop innovative accessibility solutions since this can
prove advantageous in the competition. Additionally, agencies can weigh
accessibility with the other factors to determine the best product to meet
its needs.

The problem with the "Best Meets" language is that it contradicts with
established procurement procedures by stating in effect that accessibility
trumps all other factors.

I am not a technical person but merely a procurement lawyer who strives for
consistency. It may be helpful to include language clarifying that the
relevant regulation is not intended to alter established procurement
procedures or something to that effect.








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: Hoffman, Allen
Date: Thu, Dec 28 2006 9:20 AM
Subject: Re: Draft Questions

Jim:

I think if we do a good job clarifying what we intend in the current
sections 1194.1-5, the FAR council when convened will be more effective
in integrating our changes into existing FAR. Access to some
acquisitions minded people in the subpart-a committee would be helpful
to hear how 508 is considered in the whole perspective of requirements,
and how it can be made more clear.




Allen hoffman -- 202-447-0303

From: Gregg Vanderheiden
Date: Thu, Dec 28 2006 5:00 PM
Subject: Re: Draft Questions

This is a major decision if TEITAC is going to make recommendations as to
how the FAR should implement 508. If this is what the subgroup is
recommending then that should be on the agenda for the next TEITAC meeting.





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






_____


From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Hoffman, Allen
Sent: Thursday, December 28, 2006 10:15 AM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Draft Questions

Jim:



I think if we do a good job clarifying what we intend in the current
sections 1194.1-5, the FAR council when convened will be more effective in
integrating our changes into existing FAR. Access to some acquisitions
minded people in the subpart-a committee would be helpful to hear how 508 is
considered in the whole perspective of requirements, and how it can be made
more clear.







Allen hoffman -- 202-447-0303






_____


From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Jim Tobias
Sent: Tuesday, December 26, 2006 8:41 PM
To: 'TEITAC Subpart A Subcommittee'
Cc: 'Baquis David '; 'Creagan Tim'; 'Bailey Bruce'; 'Capozzi David'
Subject: Re: [teitac-subparta] Draft Questions

As much as I agree that this is an important issue and has been the subject
of abuse and inconsistency, I'm afraid it's in the category of "not in our
scope". Specifically, all policies and procedures about how to implement
508 is going to be refreshed -- or not -- by the FAR Council. This is why
not having them at our table, or at least in some formal liaison, is so
frustrating to me.



If anyone has a suggestion as to how to alleviate this problem, or a nice,
strong argument for why such implementation policies are within our purview,
I'd much appreciate it.




_____


From: Jessica M. Brodey [mailto: = EMAIL ADDRESS REMOVED = ]
Sent: Tuesday, December 26, 2006 12:11 PM
To: = EMAIL ADDRESS REMOVED = ; 'TEITAC Subpart A Subcommittee'
Subject: Re: [teitac-subparta] Draft Questions

<Diane said:>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. <endquote>



I apologize for chiming in a bit late on this thread . . . but it seems some
of the issue is that we have some decisionmaking and prioritization
happening that is not articulated or guided in any way by statute or
procedures - it is quite haphazard, and as a result, we have quite arbitrary
enforcement of 508. We either need to take the approach that 508 must be
strictly construed and enforced, OR we need to recognize that there are
business factors and other factors in procurement that make that reality
impossible, and take action to provide guidance and articulate the "right"
or recommended path for best meeting the underlying goals of 508 while
addressing the business factors. The problem is that we have no
transparency or consistency in the process, and each entity is making it up
as they go along with little guidance. Gregg is correct that this type of
blending has led to abuse. If blending is a reality, then we need to figure
out how to recognize and acknowledge blending, and remove the abuse.
Perhaps guidance is the right way to do that.



Jessica





-----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

From: mike paciello
Date: Thu, Dec 28 2006 5:05 PM
Subject: Re: Draft Questions

Thanks Gregg. We'll be sending out an updated outline of topics tomorrow. We
can add this to the list.

- Mike

_____

From: Gregg Vanderheiden [mailto: = EMAIL ADDRESS REMOVED = ]
Sent: Thursday, December 28, 2006 6:56 PM
To: 'TEITAC Subpart A Subcommittee'
Cc: 'Jim Tobais'; = EMAIL ADDRESS REMOVED = ; 'Creagan Tim'
Subject: RE: [teitac-subparta] Draft Questions



This is a major decision if TEITAC is going to make recommendations as to
how the FAR should implement 508. If this is what the subgroup is
recommending then that should be on the agenda for the next TEITAC meeting.





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






_____


From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Hoffman, Allen
Sent: Thursday, December 28, 2006 10:15 AM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Draft Questions

Jim:



I think if we do a good job clarifying what we intend in the current
sections 1194.1-5, the FAR council when convened will be more effective in
integrating our changes into existing FAR. Access to some acquisitions
minded people in the subpart-a committee would be helpful to hear how 508 is
considered in the whole perspective of requirements, and how it can be made
more clear.







Allen hoffman -- 202-447-0303






_____


From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Jim Tobias
Sent: Tuesday, December 26, 2006 8:41 PM
To: 'TEITAC Subpart A Subcommittee'
Cc: 'Baquis David '; 'Creagan Tim'; 'Bailey Bruce'; 'Capozzi David'
Subject: Re: [teitac-subparta] Draft Questions

As much as I agree that this is an important issue and has been the subject
of abuse and inconsistency, I'm afraid it's in the category of "not in our
scope". Specifically, all policies and procedures about how to implement
508 is going to be refreshed -- or not -- by the FAR Council. This is why
not having them at our table, or at least in some formal liaison, is so
frustrating to me.



If anyone has a suggestion as to how to alleviate this problem, or a nice,
strong argument for why such implementation policies are within our purview,
I'd much appreciate it.




_____


From: Jessica M. Brodey [mailto: = EMAIL ADDRESS REMOVED = ]
Sent: Tuesday, December 26, 2006 12:11 PM
To: = EMAIL ADDRESS REMOVED = ; 'TEITAC Subpart A Subcommittee'
Subject: Re: [teitac-subparta] Draft Questions

<Diane said:>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. <endquote>



I apologize for chiming in a bit late on this thread . . . but it seems some
of the issue is that we have some decisionmaking and prioritization
happening that is not articulated or guided in any way by statute or
procedures - it is quite haphazard, and as a result, we have quite arbitrary
enforcement of 508. We either need to take the approach that 508 must be
strictly construed and enforced, OR we need to recognize that there are
business factors and other factors in procurement that make that reality
impossible, and take action to provide guidance and articulate the "right"
or recommended path for best meeting the underlying goals of 508 while
addressing the business factors. The problem is that we have no
transparency or consistency in the process, and each entity is making it up
as they go along with little guidance. Gregg is correct that this type of
blending has led to abuse. If blending is a reality, then we need to figure
out how to recognize and acknowledge blending, and remove the abuse.
Perhaps guidance is the right way to do that.



Jessica





-----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

From: McCarthy, Jim
Date: Fri, Dec 29 2006 7:35 AM
Subject: Re: Draft Questions

Don Barrett states, "I also think the Board needs to comment on the
politics of sponsoring a Committee which provides input to the FAR
Council which has not yet been requested." Reading this, I wondered
what sprung forth a statement of this sort.. Tony also may track along
the same lines stating in relevant part, "It is my understanding that
both OFPP and FAR Council are outside of the scope of TEITAC.
If my understanding is incorrect please correct me regarding the scope
of TEITAC?"



These are discussions toward a work product. All of us can and should
make our views known at this state of the process. If some see a lack
of uniformity of application as hindering the success of 508 in
providing greater access to disabled workers and members of the public,
that view should be advanced. Others have a different view point which
they also should put forth. I for one have benefited from the dialogue
largely originated by Dianne with much good said by others regarding how
"best meets is actually used and what it means in the FAR context.



I cannot completely tell from where Don and Tony's comments spring. I
feel like I may have missed some of the correspondence on the issue. If
that is not in fact the case, the only thing I see that could give rise
to these strong responses is Jessica Brody's statement that there is a
haphazard application of 508 among the several agencies that apply it,
and that guidance from this committee could be an appropriate response.

To me, there should be nothing threatening about that statement. We are
not writing the standards or guidelines, but instead are aiding the
board in its revision of the guidelines. Therefore, it seems to me that
we could recommend almost anything on this issue. If our
recommendations are beyond the scope of our work, the board would be
right to disregard them. I would finally agree with Gregg that
considering whether or not to make such recommendations ought to occur
through a public deliberation of the committee and not by back and forth
emails or comments to some web space somewhere. I am not suggesting
that the process has been done wrong so far. As I said above, I have
benefited from the email discussion and realize that it is the way we
can develop these issues. The discussion should occur as part of the
February meeting or if it cannot, as soon thereafter as possible. Our
resolution on this point should be a part of a full committee meeting
where the issues around this are thoroughly discussed.

Jim McCarthy

National Federation of the Blind

From: Lybarger, Barbara (MOD)
Date: Fri, Dec 29 2006 3:00 PM
Subject: Re: 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

From: Brett, Thomas F
Date: Fri, Dec 29 2006 3:20 PM
Subject: Re: 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

From: Barrett, Don
Date: Fri, Dec 29 2006 3:25 PM
Subject: Re: Draft Questions

Excellent summation Barbara of undue burden. However, keep in mind that
508 is complicated by the other exceptions of fundamental alteration and
commercial nonavailability which are actually more commonly used than
undue burden, since the test for undue burden can be very high.

Don

From: McCarthy, Jim
Date: Fri, Dec 29 2006 4:20 PM
Subject: Re: Draft Questions

Government procurement is a new animal for me so pardon the ignorance. Nevertheless, I certainly want to understand.

Don and Tom have both responded to Barbara's undue burden discussion. In my view, they both imply that undue burden is really a small part of a federal agency's procurement consideration. This is so, I take it, because of the "commercial unavailability, and fundamental alteration exceptions, which are used much more often to justify procurements that may not strictly meet access requirements but would fail to rise to the undue burden level. I know that commercial unavailability is statutory , and I think that fundamental alteration was added by the Access-Board itself.

Government employees who are members of TEITAC or involved in this subcommittee have educated many of us regarding the numerous procurement requirements. These include "buy American," green requirements, disability access and several others. The best I can figure is that a procurement specialist does the best she can to meet these requirements, and when that cannot be done, she reconciles the conflicts the best she can. I guess this could mean making the best justification for a desired outcome. There has also been discussion of the agency's business case for the purchase. My question is how are these things actually prioritized? Is business case the top priority? If buy America can not be done while providing a widget that "best meets" the 508 standards, how would that sort of conflict be resolved? Maybe that is a question that would need court intervention, but I am not sure.

I am struggling I think with what several are on this list. In many instances, the plain language of the standards is "shall". On the other hand, their application appears to be more in the realm of "should." The more like shall is the application, the more accessible will be the E&IT of federal government agencies, which is what I certainly want. However, I can imagine that many of the procurement laws read like this one with Congress punting the thorny question of "how do we resolve all these seemingly disparate requirements with as little conflict as possible?" I would guess that agencies inevitably resolve this based on the strongest interests as regulatory matters are generally resolved, so long as the result does not violate the law. Assuming that to be true, people with disabilities are not in a very strong position given the low rate of our employment in the federal government, a rate that is decreasing rather than increasing. Happy New Year to all!
Jim McCarthy

From: Diane Golden
Date: Fri, Dec 29 2006 4:40 PM
Subject: Re: 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 =
<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 = <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 = <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 =
<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 =
<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 =
<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

From: Barrett, Don
Date: Fri, Dec 29 2006 7:15 PM
Subject: Re: Draft Questions

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
"
"
"
"
"
"
"
"

From: Brett, Thomas F
Date: Sat, Dec 30 2006 5:15 AM
Subject: Re: Draft Questions

I am also of the opinion that Market research is not being done effectively. When an agency determines the need for the purchase of EIT they are supposed to document the business requirements, identify the applicable Section 508 standards that apply to that product, perform market research and select the product that meets all of the business requirements AND best meets the Standards identified. Most of these purchases fall under $2500 and can be made via a government issued credit card. The holder of the credit card is generally not the one who has identified the need for the EIT. The credit card holder may be a secretary or administrative assistant that does purchases as an additional duty. The boss says to buy this and the credit card holder says "Yes, ma'am". It is extremely unlikely that the cc holder will say to the boss...you have not done market research and considered the Section 508 Standards...

In the FAR that covers Section 508 the Requiring Official is responsible for completing the Market Research. However, I have not been able to find a definition of Requiring Official other than in the area for Section 508. Making the Credit Card holder (procurement official) responsible for the Market Research would be a conflict of interest since as the procurement official they are supposed to be insuring the purchase meets all applicable laws.

I would like to see strengthening of the provisions that require the documented identification of the business requirements and Section 508 Standards that apply to that purchase. It is extremely easy to claim Commercial Non-Availability when only 1 vendor is considered and you do not have the purchase documented.


Tom Brett



-----Original Message-----
From: = EMAIL ADDRESS REMOVED = on behalf of Barrett, Don
Sent: Fri 12/29/2006 9:13 PM
To: = EMAIL ADDRESS REMOVED = ; TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Draft Questions

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
"
"
"
"
"
"
"
"

From: Lybarger, Barbara (MOD)
Date: Mon, Jan 01 2007 9:10 AM
Subject: Re: Draft Questions

It would seem that the problem is not the standard, but the enforcement mechanism. In other words, the current "honor" system doesn't work because people aren't doing the needed market research and the overssight of the process is virtually nonexistant.

Does the responsibility for sign off need to go higher in the agencies? Should it be independent? Should it stay internal but require external ratification by an external reviewing entity for purchases over $X?

Massachusetts has just begun using an independent "waiver" process for some of our externally developed software and customized applications. It doesn't set a dollar threshhold but these tend to be expensive procurements. If the is of interest, I can provide more detail.

Barbara Lybarger

-----Original Message-----
From: = EMAIL ADDRESS REMOVED = on behalf of Brett, Thomas F
Sent: Sat 12/30/2006 7:09 AM
To: TEITAC Subpart A Subcommittee; = EMAIL ADDRESS REMOVED = ; TEITAC Subpart A Subcommittee
Cc:
Subject: Re: [teitac-subparta] Draft Questions




I am also of the opinion that Market research is not being done effectively. When an agency determines the need for the purchase of EIT they are supposed to document the business requirements, identify the applicable Section 508 standards that apply to that product, perform market research and select the product that meets all of the business requirements AND best meets the Standards identified. Most of these purchases fall under $2500 and can be made via a government issued credit card. The holder of the credit card is generally not the one who has identified the need for the EIT. The credit card holder may be a secretary or administrative assistant that does purchases as an additional duty. The boss says to buy this and the credit card holder says "Yes, ma'am". It is extremely unlikely that the cc holder will say to the boss...you have not done market research and considered the Section 508 Standards...

In the FAR that covers Section 508 the Requiring Official is responsible for completing the Market Research. However, I have not been able to find a definition of Requiring Official other than in the area for Section 508. Making the Credit Card holder (procurement official) responsible for the Market Research would be a conflict of interest since as the procurement official they are supposed to be insuring the purchase meets all applicable laws.

I would like to see strengthening of the provisions that require the documented identification of the business requirements and Section 508 Standards that apply to that purchase. It is extremely easy to claim Commercial Non-Availability when only 1 vendor is considered and you do not have the purchase documented.


Tom Brett



-----Original Message-----
From: = EMAIL ADDRESS REMOVED = on behalf of Barrett, Don
Sent: Fri 12/29/2006 9:13 PM
To: = EMAIL ADDRESS REMOVED = ; TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Draft Questions

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
"
"
"
"
"
"
"
"

From: Salaets, Ken
Date: Mon, Jan 01 2007 10:40 AM
Subject: Re: Draft Questions

To continue Tom Brett and Don Barrett's string about market research and documentation of business decisions, I believe that both are already procurement requirements, governed by relevant sections of the Federal Acquisition Regulation. Accordingly, they fall outside of the Access Board's legislative jurisdiction. Any recommendations that we may contemplate regarding these requirements should probably be addressed to the FAR council and agencies that have developed supplemental requirements, such as the Department of Defense.

As has been discussed by this and other subcommittees, Terry Weaver and GSA have developed the "Buy Accessible Wizard," a tool which facilitates and enhances both Section 508-related market research and documentation. Use of this tool continues to grow both inside and outside of the Federal government. Even so, absent a "triggering event," such as new legislation or an administrative or legal challenge of an agency's compliance with Section 508, it is unlikely that we will see an appreciable change in emphasis on market research or documentation, at least in the near term.

Meanwhile, a happy New Year to all.

Ken Salaets
I T I

From: Lybarger, Barbara (MOD)
Date: Tue, Jan 02 2007 7:00 AM
Subject: Re: Draft Questions

The statutory language is pretty clear that 508 is meant to trump other
factors, except where an exemption applies. It would seem that the
regulatory language should go in a direction that makes it clear to FAR
that, as the Congress intended, enforce 508 does trumps a variety of
other factors.

Barbara Lybarger

_____

From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Diane
Golden
Sent: Wednesday, December 27, 2006 6:30 PM
To: 'TEITAC Subpart A Subcommittee'
Subject: Re: [teitac-subparta] Draft Questions


Again I'm going to emphasize something Michael said --

"The problem with the "Best Meets" language is that it contradicts with
established procurement procedures by stating in effect that
accessibility trumps all other factors."

That in a nutshell is the issue with the current language of 1194.2(b).
The question seems to be does the TEITAC make any recommendations
regarding this language? If so, what should be recommended? Would
adding wording like "applied in accordance with the FAR or other adopted
agency procurement policies" or some similar type of reference into
1194.2 be a starting point?

Diane Golden

-----Original Message-----
From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ]On Behalf Of Weinstein,
Michael
Sent: Wednesday, December 27, 2006 2:41 PM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Draft Questions



Norman,

Thanks for the input. I believe Section 508 can reach its full
potential if effectively implemented consistent with established
procurement procedures. The IT market is fiercely competitive and a
procurement system that encourages vendors to develop innovative
accessibility solutions for their products would go a long way to
achieving the objectives of Section 508.

If accessibility is a factor in a "best value" determination vendors
would be encouraged to develop innovative accessibility solutions since
this can prove advantageous in the competition. Additionally, agencies
can weigh accessibility with the other factors to determine the best
product to meet its needs.

The problem with the "Best Meets" language is that it contradicts with
established procurement procedures by stating in effect that
accessibility trumps all other factors.

I am not a technical person but merely a procurement lawyer who strives
for consistency. It may be helpful to include language clarifying that
the relevant regulation is not intended to alter established procurement
procedures or something to that effect.








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: Hoffman, Allen
Date: Wed, Jan 03 2007 6:30 AM
Subject: Re: Draft Questions

I believe I agree with Karen, and if we can recommend clarifying
language in this regard we will be doing an enormous service to
improving "access" to information and data for people with disabilities.
If we can clarify the pecking order to some extent as is possible, it
will be up to the FAR council to adopt that clarified language into the
far appropriately as they see fit. If we provide more fundational
language for the FAR council to work with, the work will be easier for
them down the road.



Allen Hoffman
DHS Office on Accessible Systems & technology

From: Gregg Vanderheiden
Date: Wed, Jan 03 2007 2:20 PM
Subject: Re: Draft Questions

Hmmmm

I believe that accessibility is in fact a civil rights issue. So it would
trump other factors - up to the undue burden line.



However, it is not always possible, so it is not absolute. The government
will need to buy things that are not accessible if accessible versions do
not exist or are not up to the task at all. And even our guidelines do not
make things accessible to all.



But accessibility is not just another factor in the purchasing process. As
far as I understand, it was / is a fundamental decision that the congress
made that the federal electronic workplace be accessible to people with
disabilities when it is not an undue burden.


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






_____


From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Hoffman, Allen
Sent: Wednesday, January 03, 2007 7:26 AM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Draft Questions

I believe I agree with Karen, and if we can recommend clarifying language in
this regard we will be doing an enormous service to improving "access" to
information and data for people with disabilities. If we can clarify the
pecking order to some extent as is possible, it will be up to the FAR
council to adopt that clarified language into the far appropriately as they
see fit. If we provide more fundational language for the FAR council to
work with, the work will be easier for them down the road.







Allen Hoffman

DHS Office on Accessible Systems & technology






_____


From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Lybarger,
Barbara (MOD)
Sent: Tuesday, January 02, 2007 8:57 AM
To: = EMAIL ADDRESS REMOVED = ; TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Draft Questions

The statutory language is pretty clear that 508 is meant to trump other
factors, except where an exemption applies. It would seem that the
regulatory language should go in a direction that makes it clear to FAR
that, as the Congress intended, enforce 508 does trumps a variety of other
factors.



Barbara Lybarger




_____


From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Diane Golden
Sent: Wednesday, December 27, 2006 6:30 PM
To: 'TEITAC Subpart A Subcommittee'
Subject: Re: [teitac-subparta] Draft Questions

Again I'm going to emphasize something Michael said --



"The problem with the "Best Meets" language is that it contradicts with
established procurement procedures by stating in effect that accessibility
trumps all other factors."



That in a nutshell is the issue with the current language of 1194.2(b). The
question seems to be does the TEITAC make any recommendations regarding this
language? If so, what should be recommended? Would adding wording like
"applied in accordance with the FAR or other adopted agency procurement
policies" or some similar type of reference into 1194.2 be a starting point?


Diane Golden

-----Original Message-----
From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ]On Behalf Of Weinstein,
Michael
Sent: Wednesday, December 27, 2006 2:41 PM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Draft Questions

Norman,



Thanks for the input. I believe Section 508 can reach its full potential if
effectively implemented consistent with established procurement procedures.
The IT market is fiercely competitive and a procurement system that
encourages vendors to develop innovative accessibility solutions for their
products would go a long way to achieving the objectives of Section 508.



If accessibility is a factor in a "best value" determination vendors would
be encouraged to develop innovative accessibility solutions since this can
prove advantageous in the competition. Additionally, agencies can weigh
accessibility with the other factors to determine the best product to meet
its needs.



The problem with the "Best Meets" language is that it contradicts with
established procurement procedures by stating in effect that accessibility
trumps all other factors.



I am not a technical person but merely a procurement lawyer who strives for
consistency. It may be helpful to include language clarifying that the
relevant regulation is not intended to alter established procurement
procedures or something to that effect.















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: Karen Peltz Strauss
Date: Wed, Jan 03 2007 3:35 PM
Subject: Re: Draft Questions

MessageI wholeheartedly agree with Gregg's analysis of how the accessibility obligations of Section 508 are to be implemented.

Karen
----- Original Message -----
From: Gregg Vanderheiden
To: 'TEITAC Subpart A Subcommittee'
Sent: Wednesday, January 03, 2007 4:19 PM
Subject: Re: [teitac-subparta] Draft Questions


Hmmmm

I believe that accessibility is in fact a civil rights issue. So it would trump other factors - up to the undue burden line.



However, it is not always possible, so it is not absolute. The government will need to buy things that are not accessible if accessible versions do not exist or are not up to the task at all. And even our guidelines do not make things accessible to all.



But accessibility is not just another factor in the purchasing process. As far as I understand, it was / is a fundamental decision that the congress made that the federal electronic workplace be accessible to people with disabilities when it is not an undue burden.


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






----------------------------------------------------------------------------

From: = EMAIL ADDRESS REMOVED = [mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Hoffman, Allen
Sent: Wednesday, January 03, 2007 7:26 AM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Draft Questions

I believe I agree with Karen, and if we can recommend clarifying language in this regard we will be doing an enormous service to improving "access" to information and data for people with disabilities. If we can clarify the pecking order to some extent as is possible, it will be up to the FAR council to adopt that clarified language into the far appropriately as they see fit. If we provide more fundational language for the FAR council to work with, the work will be easier for them down the road.







Allen Hoffman

DHS Office on Accessible Systems & technology






----------------------------------------------------------------------------

From: = EMAIL ADDRESS REMOVED = [mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Lybarger, Barbara (MOD)
Sent: Tuesday, January 02, 2007 8:57 AM
To: = EMAIL ADDRESS REMOVED = ; TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Draft Questions

The statutory language is pretty clear that 508 is meant to trump other factors, except where an exemption applies. It would seem that the regulatory language should go in a direction that makes it clear to FAR that, as the Congress intended, enforce 508 does trumps a variety of other factors.



Barbara Lybarger




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From: = EMAIL ADDRESS REMOVED = [mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Diane Golden
Sent: Wednesday, December 27, 2006 6:30 PM
To: 'TEITAC Subpart A Subcommittee'
Subject: Re: [teitac-subparta] Draft Questions

Again I'm going to emphasize something Michael said --



"The problem with the "Best Meets" language is that it contradicts with established procurement procedures by stating in effect that accessibility trumps all other factors."



That in a nutshell is the issue with the current language of 1194.2(b). The question seems to be does the TEITAC make any recommendations regarding this language? If so, what should be recommended? Would adding wording like "applied in accordance with the FAR or other adopted agency procurement policies" or some similar type of reference into 1194.2 be a starting point?

Diane Golden

-----Original Message-----
From: = EMAIL ADDRESS REMOVED = [mailto: = EMAIL ADDRESS REMOVED = ]On Behalf Of Weinstein, Michael
Sent: Wednesday, December 27, 2006 2:41 PM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Draft Questions

Norman,



Thanks for the input. I believe Section 508 can reach its full potential if effectively implemented consistent with established procurement procedures. The IT market is fiercely competitive and a procurement system that encourages vendors to develop innovative accessibility solutions for their products would go a long way to achieving the objectives of Section 508.



If accessibility is a factor in a "best value" determination vendors would be encouraged to develop innovative accessibility solutions since this can prove advantageous in the competition. Additionally, agencies can weigh accessibility with the other factors to determine the best product to meet its needs.



The problem with the "Best Meets" language is that it contradicts with established procurement procedures by stating in effect that accessibility trumps all other factors.



I am not a technical person but merely a procurement lawyer who strives for consistency. It may be helpful to include language clarifying that the relevant regulation is not intended to alter established procurement procedures or something to that effect.















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: KateLee32@aol.com
Date: Wed, Jan 03 2007 4:05 PM
Subject: Re: Draft Questions

In a message dated 1/3/2007 5:26:14 PM Eastern Standard Time,
= EMAIL ADDRESS REMOVED = writes:

Hmmmm
I believe that accessibility is in fact a civil rights issue. So it would
trump other factors � up to the undue burden line.
However, it is not always possible, so it is not absolute. The government
will need to buy things that are not accessible if accessible versions do not
exist or are not up to the task at all. And even our guidelines do not make
things accessible to all.
But accessibility is not just another factor in the purchasing process. As
far as I understand, it was / is a fundamental decision that the congress
made that the federal electronic workplace be accessible to people with
disabilities when it is not an undue burden.


That is how I understand it as well.