State Perspectives on Subpart A
Follows is a summary of issues with Subpart A language related to state implementation of IT access laws or policies.
Thought this would be helpful to add to the list of issues you all are identifying on behalf of the Access Board and GSA. Diane Cordry Golden, Ph.D., Director Missouri Assistive Technology 816/350-5280 (direct voice) dcgolden@swbell.net http://www.at.mo.gov
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§1194.2 (b), Application
Per state reports, the most troublesome issue with Subpart A is the implementation of the concept of “commercial availability” and “best meets the standards” in the procurement process. The specific issues are as follows:
“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...”
This wording seems to require that if there is a commercially available product that fully meets the access standards (or is somehow judged to be 100% conformant) that product shall be procured regardless of cost or the degree to which the product meets other functional requirements of the bid. The regulatory language does not acknowledge any role for cost and functional performance in the procurement process. If indeed these are factors (in addition to accessibility), this language should be revised to clarify the role of each factors.
“When procuring a product, each agency shall procure products which comply with the provisions in this part ... when such products are developed in response to a government solicitation.”
This wording seems to require that custom developed products/applications must comply with the access standards without regard to commercial availability or best meets criteria. If this is the intent the two concepts should be separated to eliminate confusion. If it is not the intent, the wording should be clarified to identify how “best meets” and “commercial availability” do apply to product development.
“If products are commercially available that meet some but not all of the standards, the agency must procure the product that best meets the standards.”
This wording seems to require that the product that “best meets” the access standards must be procured regardless of cost or the degree to which the product meets other functional requirements of the bid. As noted previously, if this is not the case and cost and functional performance are factors in the procurement, the language should also be revised to clarify the role of those other factors.
This wording also seems to imply that meeting individual standards is an all or nothing determination and that “best meets” is a judgment about which standards are met versus those that are not as applicable to the product. However, in many cases an individual standard can be partially met. Depending on intent, the wording should be clarified to accurately represent the application of a “best meets” benchmark to judgment of conformance to the access standards.
Discussion
Procurements are typically are based on a “lowest and best” mandate. The cost or “lowest” part of the procurement review is usually done through an objective rating with the lowest bid assigned the maximum points available for cost and some sort of prorating system is used to assign points to the other bids based on price. The “best” part of the review is a subjective rating of the degree to which the product meets the functional performance needs of the agency. This review usually results in a subjective rating done by agency staff who have expertise in the area with an extensive narrative justification for the rating based on specific review criteria. These individuals must be able to defend their rating in a bid protest and must have the credibility to substantiate their rating. In the end, the objective cost points and subjective functional performance points are combined to identify the “lowest and best” bid.
So where does the IT access review/rating fit? Even if the IT access subjective rating is given an equal number of points to cost and functional performance, it very likely you will NOT purchase the product that “best meets” the IT access standards (as is required by the plain language of the regulation). You may in fact buy the product that least meets the IT access standards if it happens to be the lowest and best otherwise. Unless the regulations somehow address this, the “best meets” IT access language will continue to be an inaccurate reflection of the end purchasing decision.
In addition, determination of “best meets” is a major challenge given the Subpart B and C standards. Is the expectation for the standards to be met or not met? Or is the expectation that conformance to a standard could be in degrees e.g. complete/substantive conformance, adequate conformance, or limited/no conformance? Are all of the standards of equal importance and thus would be weighed equally after rated individually or are some standards more fundamentally important than others and should influence the overall rating more? Are there any standards that should require 100 % conformance, where anything less than that is not acceptable? Without clarification on these issues the review/rating and application of the access standards will continue to be extremely inconsistent at best.
§1194.3, General Exceptions
The two most common areas under §1194.3 that generate questions on the part of state staff are (e) the fundamental alteration exception and (f) the back office exception.
States procure and develop a wide range of products many of which have extremely “niche” purposes. For example, audio mixing software or video editing software used in a production studio, on-board mapping software used by highway patrol officers, etc. While the wording of exception (e) is probably adequate, extended examples, discussion and technical assistance materials could assist in making application more consistent.
The wording of the back office exception, with the emphasis on the location of the product, has not been helpful in discriminating between products that should be covered and those that should be exempted. While the exception concept is good, the wording has proven extremely problematic to interpret in a consistent way.
§1194.4, Definitions
The definition of TTY is unclear at to whether or not that term includes voice carry over products and/or hearing carry over products.
“Machinery or equipment that employs interactive text based communications ... TTY’s may include for example devices known as TDDs or computers with special modems.”
The requirement for “text-based communications” could be interpreted to mean both directions of the communication must be text or it could be interpreted to mean only one side of the communication is text-based. The language should be clarified, but must be done in conjunction with the Subpart B standards as use of the term TTY in some standards may actually mean just two way text communication products.
