Department of Interior - Nancy Trent

March 20, 2001

CONSOLIDATED RESPONSE

FROM THE DEPARTMENT OF THE INTERIOR

TO DATA CALL ISSUED BY THE GENERAL SERVICES ADMINISTRATION

REGARDING CHANGES TO THE FEDERAL ACQUISITION REGULATION

EFFECTED BY SECTION 508 OF THE REHABILITATION ACT.

Comment 1: This proposed rule focuses solely on electronic information technology equipment or systems, and fails to address anywhere the corresponding requirements regarding services. The standards do also extend to services, such a help desk services or web page design services, and this needs to be addressed somewhere in the FAR.

Comment 2: 39.X04.(a). We believe the exemption for micro purchases should be made permanent.

We agree that trying to enforce this regulation on micro purchases would pose an unmanageable burden on the Government, but believe this will be no less true after January 1, 2003. While it is reasonable to expect that noncompliant products will be rare, it is unrealistic to assume that it will be impossible to find or purchase an item which is not Section 508 compliant after that date. Since there are no restrictions on purchase of used items, and since manufacture, importation and sale of noncompliant items and services with less than full accessibility, are not and will not be illegal, we cannot support the assumption that the burden of compliance with this regulation for micro purchases will simply evaporate before 2003.

Given that purchase of a noncompliant item would be a violation of law and expose the agency to suit, applying this requirement to micro purchases will require agencies to adopt substantial management controls and safeguards against such violations. Primary controls now used for charge card purchases, such as review of statements and receipts or analysis of account activity would not be sufficient to determine whether purchased items were compliant and would need to be augmented. The cost of more rigorous oversight, such as prior review and approval of specifications for micro purchases, would be overwhelming and undermine the benefits and economies of the charge card program. In the case of items with an acquisition cost below the micro purchase level, it would be far more cost effective to simply replace any noncompliant items, should the issue arise than to try and prevent their purchase in the first place.

As long as this statute permits a complainant to file suit first, without having raised the concern with the agency or sought an administrative remedy, then we cannot leave ourselves to expensive litigation over micro purchase expenditures made by thousands of cardholders who are not trained procurement professionals. Retaining the micro purchase exception in the regulation would encourage a complainant to work through administrative channels to seek correction of any resultant compliance problem. Since the cost to duplicate a micro purchase investment would not be prohibitive, this would be a sounder approach than trying to train thousands of purchase card holders on how to comply with this regulation and establishing safeguards to make sure that they do.

Comment 3: 39X04(e). This coverage needs to designate the authority level for making the undue burden determination. As it now reads, it appears that every requiring official is authorized to make this determination, which may not be a sound approach, considering the legal ramifications.

Comment 4: In the proposed FAR regulations, there are no FAR (part 52) clauses that get incorporated into the Solicitations/RFQs/Awards, etc. Will there be any?

Comment 5: The last sentence is a problem contractually. If we use the wording "...in time to meet the agency delivery requirement," we could end up paying more after an award is made. It would be better if it just said, "...that are available in the commercial marketplace at time of award." The way it's now written, if we make an award for a fixed amount, and the contract contains this language, the vendor could still add a standard and still meet our delivery requirement. If adding the standard involved additional expense, the vendor would be able to pass it on to the Government. That might be a shock to some programs that have tight budgets. It would be better to have the cut-off at the time of award.

Comment 6: The proposed changes appear adequate as written. However, the terms "comparable access" and "undue burden" used throughout the proposed changes appears to be sufficiently subjective and ambiguous to invite difficulty in determining when remedial action is mandated and whether a particular solution meets requirements. Further definition or guidelines regarding these terms would be helpful.

Editorial Comments:

1. A. Background.

a. First paragraph, the use of "information" and "data" may be construed as redundant. If both terms are used or only the word "data," the associated verb needs to be plural (are"not "is").

b. The third paragraph should probably use a colon before the listed instead of the "em" (long dash).

c. Number 2 states:

"Incorporating the EIT Standards in acquisition planning, market research, and when describing agency needs." To make the three components of this statement parallel, it could be reworded as: "Incorporating the EIT Standards in planning the acquisition, researching the market, and describing the agency needs."

2. There are two Supplementary Information paragraphs labeled "B".

Change the second "B. Regulatory Flexibility Act" to "C. Regulatory Flexibility Act, and the "C. Paperwork Reduction Act: to "D. Paperwork Reduction Act."

3. Part 39.X02 Definition. The word "significant" is a good weasel word and allows for a wide range of interpretation.

4. Part 39.X04(2) Undue Burden Documentation. (i.) Needs to begin on a separate line to be formatted the same as (1)(i) and (ii).

Submitted by:

Nancy Trent
DOI Section 508 Coordinator
202-208-6051