37.23 Service under contract
(a) When a public entity enters into a contractual or other arrangement
or relationship with a private entity to operate fixed route or demand responsive
service, the public entity shall ensure that the private entity meets the
requirements of this Part that would apply to the public entity if the public
entity itself provided the service.
(b) A private entity which purchases or leases new, used, or remanufactured
vehicles, or remanufactures vehicles, for use, or in contemplation of use,
in fixed route or demand responsive service under contract or other arrangement
or relationship with a public entity, shall acquire accessible vehicles in
all situations in which the public entity itself would be required to do so
by this Part.
(c) A public entity which enters into a contractual or other arrangement
or relationship with a private entity to provide fixed route service shall
ensure that the percentage of accessible vehicles operated by the public entity
in its overall fixed route or demand responsive fleet is not diminished as
(d) A private entity that provides fixed route or demand responsive transportation
service under contract or other arrangement with another private entity shall
be governed, for purposes of the transportation service involved, by the provisions
of this Part applicable to the other entity.
This section requires private entities to "stand in the shoes"
of public entities with whom they contract to provide transportation services.
It ensures that, while a public entity may contract out its service, it may
not contract away its ADA responsibilities. The requirement applies
primarily to vehicle acquisition requirements and to service provision requirements.
If a public entity wishes to acquire vehicles for use on a commuter route,
for example, it must acquire accessible vehicles. It may acquire accessible
over-the-road buses, it may acquire accessible full-size transit buses, it
may acquire accessible smaller buses, or it may acquire accessible vans.
It does not matter what kind of vehicles it acquires, so long as they are
accessible. On the other hand, if the public entity wants to use inaccessible
buses in its existing fleet for the commuter service, it may do so.
All replacement vehicles acquired in the future must, of course, be accessible.
Under this provision, a private entity which contracts to provide this commuter
service stands in the shoes of the public entity and is subject to precisely
the same requirements (it is not required to do more than the public entity).
If the private entity acquires vehicles used to provide the service, the vehicles
must be accessible. If it cannot, or chooses not to, acquire an accessible
vehicle of one type, it can acquire an accessible vehicle of another type.
Like the public entity, it can provide the service with inaccessible vehicles
in its existing fleet.
The import of the provision is that it requires a private entity contracting
to provide transportation service to a public entity to follow the rules applicable
to the public entity. For the time being, a private entity operating
in its own right can purchase a new over-the-road bus inaccessible to individuals
who use wheelchairs. When that private entity operates service under
contract to the public entity, however, it is just as obligated as the public
entity itself to purchase an accessible bus for use in that service, whether
or not it is an over-the-road bus.
The "stand in the shoes" requirement applies not only to vehicles acquired
by private entities explicitly under terms of an executed contract to provide
service to a public entity, but also to vehicles acquired "in contemplation
of use" for service under such a contract. This language is included
to ensure good faith compliance with accessibility requirements for vehicles
acquired before the execution of a contract. Whether a particular acquisition
is in contemplation of use on a contract will be determined on a case-by-case
basis. However, acquiring a vehicle a short time before a contract is
executed and then using it for the contracted service is a indication that
the vehicle was acquired in contemplation of use on the contract, as is acquiring
a vehicle obstensibly for other service provided by the entity and then regularly
rotating it into service under the contract.
The "stand in the shoes" requirement is applicable only to the vehicles
and service (public entity service requirements, like §37.163, apply
to a private entity in these situations) provided under contract to a public
entity. Public entity requirements clearly do not apply to all phases
of a private entity's operations, just because it has a contract with a public
entity. For example, a private bus company, if purchasing buses for
service under contract to a public entity, must purchase accessible buses.
The same company, to the extent permitted by the private entity provisions
of this Part, may purchase inaccessible vehicles for its tour bus operations.
The Department also notes that the "stands in the shoes" requirement may
differ depending on the kind of service involved. The public entity's
"shoes" are shaped differently, for example, depending on whether the public
entity is providing fixed route or demand responsive service to the general
public. In the case of demand responsive service, a public entity is
not required to buy an accessible vehicle if its demand responsive system,
when viewed in its entirety, provides service to individuals with disabilities
equivalent to its service to other persons. A private contractor providing
a portion of this paratransit service would not necessarily have to acquire
an accessible vehicle if this equivalency test is being met by the system
as a whole.
Similarly, a public entity can, after going through a "good faith efforts"
search, acquire inaccessible buses. A private entity under contract
to the public can do the same. "Stand in the shoes" may also mean that,
under some circumstances, a private contractor need not acquire accessible
vehicles. If a private company contracts with a public school district
to provide school bus service, it is covered, for that purpose, by the exemption
for public school transportation.
In addition, the requirement that a private entity play by the rules applicable
to a public entity can apply in situations involving an "arrangement or other
relationship" with a public entity other than the traditional contract for
service. For example, a private utility company that operates what is,
in essense, a regular fixed route public transportation system for a city,
and which receives section 3 or 9 funds from UMTA via an agreement with a
state or local government agency, would fall under the provisions of this
section. The provider would have to comply with the vehicle acquisition,
paratransit, and service requirements that would apply to the public entity
through which it receives the UMTA funds, if that public entity operated
the system itself. The Department would not, however, construe this
section to apply to situations in which the degree of UMTA funding and state
and local agency involvement is considerably less, or in which the system
of transportation involved is not a de facto surrogate for a traditional public
entity fixed route transit system serving a city (e.g., a private non-profit
social service agency which receives UMTA section 16(b)(2) funds to purchase
This section also requires that a public entity not diminish the percentage
of accessible vehicles in its fleet through contracting.For example, suppose
a public entity has 100 buses in its fleet, of which 20 are accessible, meaning
that 20 percent of its fleet is accessible. The entity decides to add
a fixed route, for which a contractor is engaged. The contractor is
supplying ten of its existing inaccessible buses for the fixed route.
To maintain the 20 percent accessibility ratio, there would have to be 22
accessible buses out of the 110 buses now in operation in carrying out the
public entity's service. The public entity could maintain its 20 percent
level of accessibility through any one or more of a number of means, such
as having the contractor to provide two accessible buses, retrofitting two
of its own existing buses, or accelerating replacement of two of its own inaccessible
buses with accessible buses.
This rule applies the "stand in the shoes" principle to transactions wholly
among private entities as well. For example, suppose a taxi company
(a private entity primarily engaged in the business of transporting people)
contracts with a hotel to provide airport shuttle van service. With
respect to that service, the taxi company would be subject to the requirements
for private entities not primarily in the business of transporting people,
since it would be "standing in the shoes" of the hotel for that purpose.