37.23  Service under contract

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 a vehicle).

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.