Opinion 2007-1

This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

PUBLIC CONTRACTS -- Contracts Not Requiring Bidding (paratransit services) -- Policies and Procedures (request for proposals process for paratransit services) -- Professional Services (paratransit services)

GENERAL MUNICIPAL LAW §§103, 104-b: County contracts with private bus companies to provide paratransit services in connection with a program in compliance with the American with Disabilities Act of 1990 fall within the professional services exception to competitive bidding requirements and may be procured through a request for proposals process in accordance with the county’s procurement policies and procedures.

You ask whether the procurement of paratransit services by a county falls within the professional services exception to the competitive bidding requirements of General Municipal Law § 103. You indicate that, in lieu of competitive bidding, the county wishes to utilize a request for proposals (“RFP”) process under its procurement policies and procedures adopted pursuant to General Municipal Law §104-b.

You state that the county contracts with private bus companies to provide paratransit services in connection with a program in compliance with the American with Disabilities Act of 1990 (“ADA”) (42 USCS §12101 et seq.). This program operates seven days per week and is a “demand-responsive, advance reservation, curb to curb service” for eligible customers. The eligible customers do not have the functional capability to ride fixed-route buses due to a disability. The bus companies would provide trained drivers, dispatchers and other personnel, and would be responsible for, among other things, investigating customer complaints and maintaining certain records.

You indicate that, given the special nature of paratransit services, in particular the vulnerability of the disabled passengers that use this service, the county desires a high level of trust and confidence in the bus companies that provide paratransit services. You also indicate that procuring these services through an RFP process would allow the county to evaluate the bus companies “for these attributes and give the appropriate weight to these attributes in the selection process.”

General Municipal Law (“GML”) §103 provides, inter alia, that except as otherwise provided by the State Legislature, all contracts for public work involving an expenditure in excess of $20,000 shall be awarded to the lowest responsible bidder after public advertisement. In addition to the exceptions established by the State Legislature (see, e.g., GML §§103 [3],[4)], 104), there are several well-established common law exceptions to the competitive bidding requirements of GML §103. One such common law exception is for the procurement of professional services. The primary rationale for this exception is that these services are not the type of “work” that may be properly the subject of general competition based solely upon compliance with objective, uniform standards set forth in specifications, with an award to the lowest responsible bidder (see People ex rel. Smith v Flagg, 17 NY 584, 589; 2 Antieau, Municipal Corporation Law, §32.04[1][b]; 1992 Opns St Comp No. 92-33, p 84).

Generally, services held to be within the professional services exception require specialized expertise, technical or special skills or training, the exercise of professional judgment or a high degree of creativity in the performance of the contract (see, e.g., People ex rel. Smith, supra; Zack Associates v Setauket Fire District, 12 AD2d 439, 783 NYS2d 827; Fawcett v City of Buffalo, 275 AD2d 954, 713 NYS2d 610 app den 96 NY2d 701, 722 NYS2d 793; Schulz v Warren County Board of Supervisors, 179 AD2d 118, 581 NYS2d 885; Hurd v Erie County, 34 AD2d 289, 310 NYS 2d 953; Glen L. Spirits v Village of Hempstead Community Development Agency, 12 Misc 3d 1191A, 824 NYS2d 770; Trane v Broome County, 76 AD2d 1015, 429 NYS 2d 487; Matter of Karedes v Colella, 187 Misc 2d 656, 722 NYS2d 714 mod in part and affd in part 292 AD2d 138, 740 NYS2d 526 revd on other grounds 100 NY2d 45, 760 NYS2d 84). In addition, some courts have noted that professional services may involve sensitive and confidential matters (see, e.g., Matter of Karedes, supra; Lynd v Heffernan, 286 App Div 597, 146 NYS2d 113 mot for lv granted 1 NY2d 641, mot to withdraw app granted 1 NY2d 919, 154 NYS2d 976). While an agreement may be hybrid in nature and involve some services that do not constitute professional services, the exception generally will apply if the essential character, or predominant part, of agreement as a whole is for professional services that are “inextricably integrated” with the remaining parts of the agreement ( Guistino v County of Nassau, 306 AD2d 376, 760 NYS2d 862; Burroughs v New York State Higher Education Services Corp, 91 AD2d 1078, 458 NYS2d 702 mot for lv to app den 58 NY2d 609, 462 NYS2d 1025; AEP v Long Island Power Authority, 179 Misc 2d 639, 686 NYS2d 664; Pacificorp v City of New York, 741 F Supp 981; 1988 Opns St Comp No. 88-35, p 65).

GML §119-r authorizes municipal corporations to provide mass transportation services, including by contracting with private entities, but contains no statutory exception to the bidding requirements of GML §103.1 In the absence on any statutory exception, this Office has expressed the opinion that, generally, contracts for transportation services are subject to the competitive bidding requirements of section 103 as contracts for public work (see, e.g., 1998 Opns St Comp No. 98-1, p 1; 33 Opns St Comp, 1977, p 164). Certain types of transportation service, however, may fall within the professional services exception, depending on the particular nature of the services provided.

For example, it has been held that the furnishing of ambulance services require special skill or training and, therefore, falls within the exception (see, e.g., Amherst v Gross, 80 AD2d 719, 437 NYS2d 137; see also 1984 Opns St Comp No. 84-59, p 74; 22 Opns St Comp, 1966, p 228). In addition, a contract for the transportation of disabled pre-school children was held to involve technical service and was not subject to the requirements of the competitive bidding statute ( Value Management Consultants v County of Nassau, Supreme Ct, Nassau County, May 7, 1999, O’Connell, J, affd 274 AD2d 588, 711 NYS2d 497). Similarly, in 1980 Opns St Comp No. 80-466, unreported, this Office indicated that transportation services for physically and mentally disabled individuals to and from certain day treatment programs may fall within the professional services exception. We cited, as among the factors indicative of a professional service, that: drivers and aides were required to interact with, and note changes in the behavior of, the disabled passengers; and drivers and aides were required to assist disabled passengers in attaining certain programmatic goals such as successfully traveling to and from the day treatment program and to prepare reports that become part of formal record of each individual. We believe that the paratransit services at issue in the instant case likewise fall within the professional service exception.

The provision of paratransit services here is governed by the Americans with Disabilities Act (42 USC §12143; Am Jur. 2d, Americans with Disabilities Act: Analysis and Implications, §488). The ADA prohibits discrimination against persons with disabilities in the areas of employment, public services such as transit, public accommodations, private services, and telecommunications (42 USC §12101 et seq.). The ADA requires all public transit operators to provide a special service to eligible disabled and elderly individuals whose disabilities prevent them from using lift-equipped public transit (42 USC §12143). This special service, called “paratransit service,” is a comparable transportation service required by the ADA for individuals with disabilities who are unable to use fixed route transportation systems (49 CFR §37.3). To be deemed comparable to fixed route service, a complimentary paratransit system must meet the regulatory requirements established by the United States Department of Transportation (49 CFR §§37.123-37.133).

The comparable complementary paratransit service requirement (49 CFR §37.121[a]) applies to light and rapid rails systems as well as bus systems, even when bus and rail systems share all or part of the same service area. For this reason, it operates at similar times and in similar areas of existing public fixed route transit non-commute bus and van routes.2

In order to receive service, all paratransit passengers must be ADA certified and qualifying under one or more of the following ADA eligibility criteria:

  1. Any individual with a disability who is unable . . . to board, ride, or disembark from any vehicle on the system which is readily accessible to and usable [by] individuals with disabilities.
  2. Any individual with a disability who needs the assistance of a wheelchair lift or other boarding assistance device.
  3. Any individual with a disability who has a specific impairment-related condition which prevents such individual from traveling to a boarding location or from a disembarking location.3

Requirements for providers of paratransit services are set forth in section 37.173:

Each public or private entity which operates a fixed route or demand responsive system shall ensure that personnel are trained to proficiency, as appropriate, to their duties, so that they operate vehicles and equipment safely and properly assist and treat individuals with disabilities who use the service in a respectful and courteous way, with appropriate attention to the difference among individuals with disabilities.

Appendix D of the regulation4 elaborates on the section 37.173 requirements by providing that:

A well trained workforce is essential in ensuring that the accessibility-related equipment and accommodations required by the ADA result in the delivery of good transportation service to individuals with disabilities. . . Training must be appropriate to the duties of each employee. A paratransit dispatcher probably must know how to use a TDD [telecommunications devices for the deaf] and enough about various disabilities to know what sort of vehicle to dispatch. A bus driver must know how to operate lifts and securement devices properly… One of the most important points in training concerns differences among individuals with disabilities. All individuals with disabilities, of course, are not alike.

The appropriate ways one deals with persons with various kinds of disabilities (e.g., mobility, vision, hearing, or mental impairments) are likely to differ and, while no one expects bus drivers to be trained as disability specialists, recognizing relevant differences and responding to them appropriately is extremely significant. Public entities who (sic) contract with private entities to have service provided - - above all, complimentary paratransit - - are responsible for ensuring that contractor personnel receive the appropriate training (Appendix D to 49 CFR  §37.173).

Based on a review of the regulations and Appendix D, we believe that several of the criteria for a professional service are met here. In particular, we note that the requirements for the paratransit services, as set forth in the regulations and Appendix D, indicate that the training of paratransit personnel, both as to the proper use of equipment and vehicle and as to proper interactions with disabled passengers, is a paramount concern.

Further, Appendix D states that it is “extremely significant” that providers be able to recognize relevant differences among disabled passengers and respond to those differences in an appropriate manner. Thus, a primary focus of the qualifications of service providers is the need for specialized training and the exercise of judgment, discretion and sensitivity, all well-established elements of a professional service. These elements of the paratransit services, in our view, distinguish them from the services of the usual providers of mass transportation services and make them analogous to the services at issue in Value Management, supra and Opn No. 80-466, supra. Therefore, it is our opinion that the contracts are not subject to the competitive bidding requirements of GML §103.

As a professional service, however, the procurement would be subject to the requirements of GML §104-b. Section 104-b requires political subdivisions, including counties, to adopt written internal policies and procedures governing all procurements of goods and services not required by law to be made pursuant to competitive bidding requirements. At a minimum, the policies and procedures adopted pursuant to section 104-b must provide, inter alia, that when competitive bidding is not required by law, alternative proposals or quotations will be secured by requests for proposals, written or verbal quotations, or other methods which further the purposes of section 104-b, except in limited circumstances (see GML § 104-b[2][b],[f]). Further, the policies and procedures must require justification and documentation of any contract awarded to other than the lowest responsible dollar offeror, setting forth the reasons the award furthers the purpose of section 104-b. Here, the letter of inquiry indicates that the county would utilize an RFP process if bidding is not required. Use of a fair and open competitive RFP process should help ensure that the contracts in question are awarded in the best interest of the county.

Accordingly, county contracts with private bus companies to provide paratransit services in connection with a program in compliance with the American with Disabilities Act of 1990 fall within the professional services exception to competitive bidding requirements and may be procured through a request for proposals process in accordance with the county’s procurement policies and procedures.

January 22, 2007

Charlene M. Indelicato, Esq., County Attorney
County of Westchester

1 For purposes of this opinion, we assume that all of the terms and conditions of the proposed contracts are authorized by GML §119-r or other provisions of law, and address only the applicability of the bidding requirements of GML §103.

2 We note that each public entity operating fixed route service is required to develop and submit a plan for paratransit service (49 CFR §37.135). The ADA also requires transit operators to establish specific eligibility criteria for users of paratransit service and requires there be no trip priorities (e.g. medical versus recreation) with regard to ADA paratransit services.

3 Passengers may be considered fully or conditionally eligible under Categories 1, 2, or 3 depending on their disability or the equipment assigned to their route. Conditionally eligible passengers include passengers who are eligible for paratransit only when certain conditions exist (e.g. wet weather, cold temperatures, and darkness), the passengers can use the bus for only a portion of their trip, or they have a temporary disability. Conditionally eligible passengers are required to use fixed route service whenever conditions permit. At some point, consumers capable of using the bus may be found eligible for a paratransit trip to and from a bus transfer point rather than for the entire trip.

4 This appendix explains the Department of Transportation’s construction and interpretation of provisions of 49 CFR Part 37.