Thread Subject: Subpart A Meeting- Professor Yurkins guest

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From: Deborah Buck
Date: Thu, Jan 18 2007 8:55 AM
Subject: Subpart A Meeting- Professor Yurkins guest

Subpart A Committee Members-

We have just received confirmation that Professor Christopher R. Yukins,
Associate Professor of Government Contracts Law, The George Washington
University Law School will be able to join our call this afternoon to share
his insights. To make the best use of Professor Yukins time, the co-chairs
have put together a list of questions. We've asked Professor Yukins to
discuss these issues because they have emerged from committee discussions as
areas where confusion and different interpretations are driving the process.
We hope that you are able to join us this afternoon.


To set the stage for this, are we starting with premise that
business needs and the ability of the products to meet the business needs
and functions drive the procurement and are not compromised or reduced by
accessibility- accessibility does not trump business needs?

Subpart A§1194.2 Application
1) Best Meets - If the following recommendations were made to
revise current language in Subpart A would it adequately addressed issues
regarding Best Meets requirements and support flexible implementation?
a. Language could be added to that explicitly
limits the application of "best meets" to access considerations - Subpart
A§1194. Application (b) "When procuring a product, each agency shall procure
products which comply with the provisions in this part when such products
are available in the commercial marketplace or when such products are
developed in response to Government solicitation. Agencies cannot claim a
product as a whole is not commercially available because no product in the
marketplace meets all the standards. If products are commercially available
that meet some but not all of the standards, the agency SHALL RATE(or
another term) AS MOST ACCESSIBLE the product that best meets the standards."

b. Should the Best Meets section be preceded by a
clause lifted from the FAR that states that agencies must purchase products
that meet their business needs be reiterated in §1194.2 Application "The
requirements ...of this section only apply when the relevant product's
utility and performance meet the agency's need." Source FAR clause (23.203
2b).

2) Undue Burden
a. Subpart A§1194.4 Definitions - "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." While Undue Burden is
considered as 'significant difficulty or expense" the factors considered to
determine undue burden focus exclusively on cost and financial resources.
For some individuals it appears that there is an assumption that by
inclusion of the term "Undue Burden" it is assumed that cost of the product,
when determining what product to purchase, should be ignored, or not
considered, UNLESS it constitutes an Undue Burden. Others interpret undue
burden to be inclusive of cost considerations in a "best value" analysis.
Is either of these interpretations consistent with your legal understanding
of how Undue Burden is to be applied in relation to §508 and procurements?
b. What recommendations would you make regarding
the reference to "Undue Burden" in the Application section and Definition
section to clarify what it means, when and how it should be considered?
c. Best Value- there are differing interpretations
of whether or not cost can be considered as part of a Best Value review
process and if so, how it that best accomplished.

§1194.3 General Exemptions
1) Fundamental Alternation
a. Would amending language relative to fundamental
alteration clarify the application of the exemption? §1194.3 General
Exemptions (e) "This part shall not be construed to require a fundamental
alteration in the nature of a product, the INTENDED BUSINESS USE OF A
PRODUCT, or its components."
2) Impact of FAR or other agency required procurement practices-
would adding a clarifier help implementing entities understand that there
may be overarching procurement requirements adopted by the feds or their
individual agencies that need to be adhered to and that the 508 procurement
processes should be implemented as a part of this process, but that 508 does
not supersede other existing requirements?
c. Add a clarifier sentence to the end of §11974.2Application (b)
which reads "AGENCIES SHALL APPLY THIS SUBSECTION IN ACCORDANCE WITH THE FAR
OR OTHER OFFICIAL CONTROLLING PROCUREMENT POLICIES."


Deborah V. Buck, Executive Director
Association of Assistive Technology Act Programs (ATAP)
PO Box 32
Delmar, NY 12054
518.439.1263 voice/TTY
518.439.3451 fax
518.441.7204 cell
= EMAIL ADDRESS REMOVED =
http://www.ataporg.org

From: KateLee32@aol.com
Date: Thu, Jan 18 2007 5:15 PM
Subject: Re: Subpart A Meeting- Professor Yurkins guest

I regret that I was unable to attend the call today. Is it possible to get a copy of the transcript?

I would be very interested to read the discussion with Professor Yulkins.

Katie Lee
Hearing Loss Ass'n of America
Sent via BlackBerry from T-Mobile

-----Original Message-----
From: "Deborah Buck" < = EMAIL ADDRESS REMOVED = >
Date: Thu, 18 Jan 2007 10:52:43
To:"Subpart A Workgroup TEITAC" < = EMAIL ADDRESS REMOVED = >
Subject: [teitac-subparta] Subpart A Meeting- Professor Yurkins guest

Subpart A Committee Members-

We have just received confirmation that Professor Christopher R. Yukins,
Associate Professor of Government Contracts Law, The George Washington
University Law School will be able to join our call this afternoon to share
his insights. To make the best use of Professor Yukins time, the co-chairs
have put together a list of questions. We've asked Professor Yukins to
discuss these issues because they have emerged from committee discussions as
areas where confusion and different interpretations are driving the process.
We hope that you are able to join us this afternoon.


To set the stage for this, are we starting with premise that
business needs and the ability of the products to meet the business needs
and functions drive the procurement and are not compromised or reduced by
accessibility- accessibility does not trump business needs?

Subpart A§1194.2 Application
1) Best Meets - If the following recommendations were made to
revise current language in Subpart A would it adequately addressed issues
regarding Best Meets requirements and support flexible implementation?
a. Language could be added to that explicitly
limits the application of "best meets" to access considerations - Subpart
A§1194. Application (b) "When procuring a product, each agency shall procure
products which comply with the provisions in this part when such products
are available in the commercial marketplace or when such products are
developed in response to Government solicitation. Agencies cannot claim a
product as a whole is not commercially available because no product in the
marketplace meets all the standards. If products are commercially available
that meet some but not all of the standards, the agency SHALL RATE(or
another term) AS MOST ACCESSIBLE the product that best meets the standards."

b. Should the Best Meets section be preceded by a
clause lifted from the FAR that states that agencies must purchase products
that meet their business needs be reiterated in §1194.2 Application "The
requirements ...of this section only apply when the relevant product's
utility and performance meet the agency's need." Source FAR clause (23.203
2b).

2) Undue Burden
a. Subpart A§1194.4 Definitions - "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." While Undue Burden is
considered as 'significant difficulty or expense" the factors considered to
determine undue burden focus exclusively on cost and financial resources.
For some individuals it appears that there is an assumption that by
inclusion of the term "Undue Burden" it is assumed that cost of the product,
when determining what product to purchase, should be ignored, or not
considered, UNLESS it constitutes an Undue Burden. Others interpret undue
burden to be inclusive of cost considerations in a "best value" analysis.
Is either of these interpretations consistent with your legal understanding
of how Undue Burden is to be applied in relation to §508 and procurements?
b. What recommendations would you make regarding
the reference to "Undue Burden" in the Application section and Definition
section to clarify what it means, when and how it should be considered?
c. Best Value- there are differing interpretations
of whether or not cost can be considered as part of a Best Value review
process and if so, how it that best accomplished.

§1194.3 General Exemptions
1) Fundamental Alternation
a. Would amending language relative to fundamental
alteration clarify the application of the exemption? §1194.3 General
Exemptions (e) "This part shall not be construed to require a fundamental
alteration in the nature of a product, the INTENDED BUSINESS USE OF A
PRODUCT, or its components."
2) Impact of FAR or other agency required procurement practices-
would adding a clarifier help implementing entities understand that there
may be overarching procurement requirements adopted by the feds or their
individual agencies that need to be adhered to and that the 508 procurement
processes should be implemented as a part of this process, but that 508 does
not supersede other existing requirements?
c. Add a clarifier sentence to the end of §11974.2Application (b)
which reads "AGENCIES SHALL APPLY THIS SUBSECTION IN ACCORDANCE WITH THE FAR
OR OTHER OFFICIAL CONTROLLING PROCUREMENT POLICIES."


Deborah V. Buck, Executive Director
Association of Assistive Technology Act Programs (ATAP)
PO Box 32
Delmar, NY 12054
518.439.1263 voice/TTY
518.439.3451 fax
518.441.7204 cell
= EMAIL ADDRESS REMOVED =
http://www.ataporg.org