Special Features

ADAAG: AIA Calls for Clear Rules

The AIA is urging the U.S. Department of Justice to ensure that the newly proposed Americans with Disabilities Act Accessibility Guidelines (ADAAG) are adopted and enforced in a way that is “consistent, clear, and certain.”

The comments come in response to the department’s Advance Notice of Proposed Rulemaking for the new ADAAG, which were published by the U.S. Access Board in July 2004. This represents the first major revision to the ADAAG since they were implemented following the 1990 enactment of the landmark Americans with Disabilities Act.

In September 2004, the Justice Department asked the public to comment on a range of issues related to the implementation and enforcement of the new ADAAG based upon the Access Board’s July adoption. The AIA will soon submit its comments to the Department of Justice. The DOJ has not issued a specific timeline for formal adoption and enforcement of the new ADAAG.

Call for Clarity
Noting the difficulties that architects and others face when rules and standards for accessibility are not clearly delineated, the AIA’s comments state that “the approach taken by the Department of Justice to the development of [the ADAAG] is critical to the effective application of fair and equitable access to the built environment.”

Returning to the themes of providing clarity, consistency, and certainty in the ADAAG, the AIA’s comments address a number of key issues that the department raised in its Advance Notice, including:

• Effective Date of the Revised Standards. The Department of Justice invited the public to comment on whether the new ADAAG should come into effect 6, 12, or 18 months after the Final Rule is published by DOJ. In its response, the AIA recommends a 12-month time frame. “There are many new criteria in the proposed ADAAG that will require changes to programs, tools, and procedures, including informing and educating clients, manufacturers, and builders on the impact the changes will have,” the AIA said in its comments. “Therefore, we feel that six months is inadequate to incorporate these changes.”
  
  
• Safe Harbor for Existing Facilities. In its Advance Notice, the Justice Department offered three options for addressing existing facilities that are in compliance with the current ADAAG but may not comply with the new ADAAG. The AIA has recommended that the department provide a “safe harbor” for those elements that are in compliance with the ADAAG in effect at the time of construction. The AIA also opposes proposals to allow for limited exemptions from the new ADAAG for specific requirements or elements as they will confuse the issue of compliance and detract from the clarity, consistency, and certainty that the AIA wants the department to ensure.
  
  According to the AIA’s comments, “It is important to consider the relative value of enforcing the new guidelines on existing facilities that have achieved compliance with the current guidelines. Are we being environmentally and fiscally responsible if we remove fixtures and devices that are now in compliance but become out of compliance because of the ‘incremental’ changes in the guidelines? There is a traditional concept that has been applied to life safety issues that are changed incrementally in the building codes, which allows buildings which undergo no other changes to remain unchanged until other triggering events occur to require compliance.”
  
  
• Certification of State Laws and Local Building Codes. The Justice Department has asked for comments about its current certification process, whereby states and localities can ask the federal government to certify that their accessibility requirements meet or exceed the ADAAG. Noting that “certification as it is currently formulated does not achieve its stated purpose because the use and application of the guidelines by the state or local agencies does not produce any benefit,” the AIA recommends that a state certification process should include an explicit transfer of authority to that state for enforcement, interpretation, and certification of compliance.

An Open, Transparent Process
The AIA’s comments to the Justice Department’s Advance Notice of Proposed Rulemaking are the product of an extensive process of consultation with AIA members and committees.

“As soon as the Justice Department issued its advance notice in September, we set out to create a process that allowed for maximum input from every AIA member,” said AIA Manager of Federal Regulatory Activities Andrew Goldberg, Assoc. AIA. “These steps included publicizing the Advance Notice in The Angle, AIArchitect, and the AIA’s online federal regulatory monitor page; and inviting the AIA Knowledge Communities to provide expert input on the new ADAAG and its adoption process.”

The AIA then convened a task force comprising of members of the AIA Codes and Standards Committee and representatives from participating knowledge communities, which met in Dallas in January 2005 to review comments from AIA members and draft the AIA’s comments. The task force, led by Codes and Standards Committee Chair Holly Gerberding, AIA, prepared a draft for further consideration by the AIA. The draft comments were circulated at the State Government Network meeting during the Grassroots conference in Washington in February.

The Advocacy Committee of the Board of Directors will consider the draft comments at its meeting March 8 for additional input prior to the Board’s review. Following that review, the AIA’s comments will be submitted to the Justice Department.

“These comments reflect the experience and the expertise of the AIA membership,” said AIA codes consultant David Collins, FAIA, who led the drafting process. “Because they have been working hands-on with the ADAAG for the past decade, architects have a great deal to contribute to the content and process of adopting the new and improved guidelines. We want to ensure that the Justice Department had the benefit of their input.”

The Next Steps
The Justice Department is accepting comments from the public on its Advance Notice until May 31, 2005. After that, it will develop a Notice of Proposed Rulemaking, in which it will propose how the new ADAAG will be implemented and enforced. There will be another comment period following that notice. After that period closes, the Justice Department will issue its Final Rule and the timetable for its enforcement.

“Although it is not clear when the Final Rule will be issued, most observers believe it will not take place until 2006,” said AIA Vice President, Advocacy Committee Chair, and Accessibility Task Force Member RK Stewart, FAIA “the AIA is committed to participating in the process for as long as it takes. We will not only keep AIA members informed of developments in this implementation process, but we will continue to actively seek their input to inform AIA’s comments. These issues are far too important to the society we serve for architects to sit on the sidelines and not contribute our expertise.”

To read the AIA’s comments, click here. For more information, please contact Andrew Goldberg, Assoc. AIA, manager of federal regulatory activities, at agoldberg@aia.org or 202-626-7438.

Capitol Hill Watch

AIA Study Amendment in Transportation Bill

U.S. Rep. James Oberstar (D-MN)

The U.S. House Transportation and Infrastructure Committee has approved a $284 billion authorization bill for highway, public transportation, and road safety projects that funds these projects through 2009. The bill includes the AIA-sponsored amendment that calls upon Congress to initiate a national study of the impact of federal transportation spending on community design, health, and safety.

“This development represents substantial progress for the AIA federal issues agenda,” said Vice President of AIA Government Advocacy Ron Faucheux. “Initiating this national study speaks to our values in terms of using transportation spending to improve the livability of communities across our nation. We want to express our deepest thanks to the Transportation and Infrastructure Committee, its leadership, its members, and its staff for their inclusion of this important initiative.”

Photo courtesy of Punchstock Photography

Faucheux expressed “great appreciation on behalf of the AIA membership to U.S. Rep. James Oberstar (D-MN), a major proponent of the amendment and supporter of using federal transportation spending to enhance local communities.” Cong. Oberstar is the ranking member of the Transportation and Infrastructure Committee.

For a full text of the Community Enhancement Amendment, click here.

The AIA community enhancement amendment was one of the three targeted initiatives that were brought to Capitol Hill last month during the Grassroots Leadership Conference in Washington, D.C. The proposal was first advanced by the AIA in 2004 during the prior session of Congress, sponsored by U.S. Rep. Tim Johnson (R-IL).

There are still major issues that House and Senate leaders have yet to resolve on the bill. The legislation does not address the formula for distributing highway funds to what is called “donor” and “donee” states. Donor states send more gasoline tax money to the Highway Trust Fund than they get back in transportation projects.

There is also a dispute as to the overall funding level. The current $284 billion is lower than many members of Congress favor, so many of those issues will have to be settled in the Senate or in conference committee later in the year.

Government Agency Report

Protecting QBS: Top Priority

The AIA has written to the General Services Administration (GSA) to express its opposition to a proposal that could undermine the key Federal law that ensures government facilities are designed and built using qualifications-based selection (QBS).

Under the 1972 Brooks Architect/Engineer Act, known as the Brooks Act, the Federal government must award A/E contracts using QBS. However, in recent years, an increasing number of agencies have attempted to get around the law by various means. One such example is a contractor in the Washington, D.C., area that has been placed on the FSS Furnishing Schedule. Because the contractor also offers design services on its schedule, a Federal agency could contract with it to redesign an office using a low-bid process.

Last year, the Federal Supply Service (FSS), the GSA division that provides goods and services to Federal agencies, produced a draft white paper that proposes a new architectural and engineering multiple-award schedule that would award contracts based on qualifications, not price. The white paper was a response to concerns raised by the AIA and others about agencies that violate the Brooks Act.

In a letter to GSA Administrator Stephen Perry, AIA Executive Vice President/CEO Norman L. Koonce, FAIA, said the AIA is “deeply concerned that the solution proposed in the FSS White Paper will not address the underlying problem: Federal agencies seeking to bypass qualifications based selection when contracting for A/E services.”

The letter points out that the white paper lacks any enforcement procedure to ensure that agencies do not award contracts based upon cost. “In fact,” Koonce wrote, “the AIA believes that an A/E schedule may exacerbate the situation if such a schedule became a vehicle by which agencies could ascertain prices that contractors offer for various services.”

Koonce added that the AIA believes that the best way to ensure compliance with the Brooks Act is for the FSS “to step up its enforcement efforts to ensure that existing multiple award schedules are not exploited by agencies to bypass QBS procedures.” In addition, the letter calls on the White House Office of Federal Procurement Policy to increase its oversight of the Brooks Act.

“The AIA is a long-time champion of the Brooks Act, and helped to get it passed in the 1970s,” said AIA Senior Director of Federal Affairs Tom Wolfe. “We will continue to fight to ensure that all Federal agencies follow the law, and will work with our partners in the engineering profession to stop any effort to undermine it.”

To read the AIA’s letter, click here. For more information, contact the AIA Government Advocacy Team at govaffs@aia.org or 202-626-7507.

State and Local Spotlight

Class Action Reform: Roche v. Lincoln Property Co.

The issue of diversity jurisdiction, a hot topic in the class action reform debate, is now on its way to the Supreme Court in the 4th U.S. Circuit Court of Appeals case Roche v. Lincoln Property Co. The Court will consider the case on Friday, March 4, 2005.

In Roche, plaintiffs Christophe and Juanita Roche originally filed suit in Virginia State Court, claiming personal injury and property damage from "toxic levels of mold" in their apartment, which was owned by the defendants. Lincoln Property Company, a Texas-based corporation, asked that the case be moved to federal court.

After the federal court ruled in favor of Lincoln Property Company, the Roches appealed to the 4th Circuit, arguing that the case should be in state court because the diversity requirement for federal court was lacking. In other words, they claimed both parties were citizens of the same state—Virginia. A unanimous three-judge 4th Circuit panel agreed in its June 30 decision and sent the case back to Virginia state court.

Lincoln Property Company appealed the 4th Circuit Court of Appeals ruling, arguing that the ruling would unfairly expose the company to litigation in state courts.

Earlier this month, President Bush signed legislation, Public Law 109-2, which transfers most large, multi-state class action suits into federal court.

Contact

We welcome and appreciate all comments and questions regarding The Angle. Please contact Meredith Braden at angle@aia.org.

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