E.2. - Where an agency uses a best value "trade-off" source selection process, may it trade off applicable technical provisions of the Access Board’s standards where an offer provides strong technical merit, strong past performance, or a lower price?
The Access Board’s technical provisions are mandatory requirements that must be met (directly or through equivalent facilitation) unless (a) the product or service (if it is a commercial item) is not available, (b) an exception applies (such as undue burden), or (c) meeting the applicable provisions would require the agency to alter its requirements to the point where the procured EIT would not meet its needs. For example, if a product is available that meets the technical provisions of the Access Board’s standards, the agency would not be required to make the purchase if significant difficulty or expense made the purchase an undue burden for the agency. Note that undue burden cannot be established simply by demonstrating that, as between products that could meet the agency’s need, the cost of a product that meets the technical provisions is higher than that for a product that does not. Instead, an agency must consider all resources available to its program or component for which the supply or service is being acquired (see section G.6.iii below).
Where no offered products meet all of the technical provisions, the Access Board’s standards require an agency to "procure the product that best meets the standards" (see 36 CFR 1194.2(b)). This may be the product that meets the most applicable technical provisions, but alternatively could be one that meets fewer technical provisions but which better addresses the accessibility needs of the intended end users.
Best value trade-offs are still possible (and in fact required) if the products being compared meet the technical provisions to the same degree (e.g., the products being compared fully meet applicable technical provisions; or the products being compared partially meet the applicable technical provisions to the same extent). For example, if two of three proposals offer products that fully meet the technical provisions and the third proposal partially meets them, traditional trade-offs between the two offers that fully meet the applicable provisions as to technical merit, price, and past performance are required. However, absent a determination of undue burden, the agency could not make trade- offs between the proposals that fully meet the applicable provisions and those that only partially meet them.
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