B-172945, JAN 28, 1972, 51 COMP GEN 444

B-172945, JAN 28, 1972, 51 COMP GEN 444

VETERANS ADMINISTRATION - CONTRACTS - AMBULANCE SERVICES - AUTHORITY TO CONTRACT EVEN THOUGH A GOVERNMENTAL OR PRIVATE ENTITY FURNISHING AMBULANCE SERVICES IS SUPPORTED IN WHOLE OR IN PART BY STATE OR LOCAL TAXES, THE VETERANS ADMINISTRATION (VA) MAY ENTER INTO A CONTRACT FOR TRANSPORTING VETERANS TO AND FROM A VA FACILITY, PROVIDED THE POLITICAL SUBDIVISION INVOLVED IS NOT REQUIRED TO FURNISH SUCH SERVICE WITHOUT A DIRECT CHARGE, AND THE CONTRACT SHOULD NOT ONLY PROVIDE FOR PAYMENTS NOT TO EXCEED THE FAIR AND REASONABLE VALUE OF THE SERVICES RECEIVED, BUT SHOULD COMPLY WITH FEDERAL PROCUREMENT LAW AND REGULATIONS. UNDER MISSISSIPPI STATUTES LOCAL GOVERNMENTS ARE NOT REQUIRED TO FURNISH AMBULANCE SERVICES AND, THEREFORE, VA MAY ENTER INTO A CONTRACT WITH THE CITY OF BILOXI OR A PRIVATE CONCERN TO FURNISH TRANSPORTATION TO AND FROM THE VA CENTER AT BILOXI, BUT THE CONTRACT MAY NOT PROVIDE FOR A SUBSIDY SINCE 46 COMP. GEN. 616 IS NOT A PRECEDENT FOR AUTHORIZING SUBSIDY PAYMENTS GENERALLY. MODIFIES B-172945, JUNE 22, 1971.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, JANUARY 28, 1972:

YOUR LETTER OF NOVEMBER 2, 1971, ASKS WHETHER IN VIEW OF OUR DECISION TO YOU OF JUNE 22, 1971, B-172945, THE VETERANS ADMINISTRATION (VA) MAY ENTER INTO A CONTRACT WITH EITHER THE CITY OF BILOXI, MISSISSIPPI, OR THE GULF AMBULANCE SERVICE (GULF) IN ORDER TO PROVIDE AMBULANCE TRANSPORTATION FOR VETERANS TO AND FROM THE VA CENTER AT BILOXI.

IN OUR ABOVE-CITED DECISION WE INDICATED THAT SINCE THE LOCAL GOVERNMENT INVOLVED WAS NOT UNDER A MANDATORY DUTY TO FURNISH OR PROVIDE FREE AMBULANCE SERVICE TO ITS RESIDENTS, WE WOULD HAVE NO OBJECTION TO THE VA ENTERING INTO A CONTRACT WITH A VOLUNTEER RESCUE SQUAD FOR ABMULANCE SERVICE, PROVIDED THE "RESCUE SQUAD IN QUESTION IS NOT SUPPORTED IN WHOLE OR IN PART BY STATE OR LOCAL TAXES."

YOU STATE THAT THE QUOTED LANGUAGE CAUSES SOME CONCERN IN CONNECTION WITH A SITUATION WHERE THERE IS NO MANDATORY REQUIREMENT FOR A STATE OR LOCAL GOVERNMENT TO FURNISH OR PROVIDE FREE AMBULANCE SERVICES TO THEIR RESIDENTS, BUT THEY STILL DO SO ON A VOLUNTARY BASIS. SPECIFICALLY YOU HAVE BEEN ASKED WHETHER THE VA MAY ENTER INTO A CONTRACT WITH EITHER BILOXI, OR GULF, TO HELP DEFRAY THE EXPENSES OF KEEPING THE AMBULANCE SERVICES IN OPERATION, IN ORDER THAT IT MAY PROVIDE SERVICES FOR VETERANS BEING TRANSPORTED TO AND FROM THE VA CENTER AT BILOXI. YOU STATE THAT A PORTION OF THESE EXPENSES IS NOW BEING DEFRAYED ON A VOLUNTARY BASIS BY THE CITY OF BILOXI.

YOU STATE THAT SINCE THE CONTRIBUTION BY THE CITY OF BILOXI IS NOT MANDATORY, IT WOULD APPEAR THAT THE FIRST CRITERION SET FORTH IN OUR DECISION OF JUNE 22 HAS BEEN MET, BUT THAT IF THE ABOVE-QUOTED LANGUAGE FROM THAT DECISION IS INTENDED TO APPLY WHERE SUCH CONTRIBUTIONS ARE VOLUNTARY, IT WOULD APPEAR THAT THE VA WOULD BE PRECLUDED FROM ENTERING INTO THE PROPOSED ASSISTANCE CONTRACT.

IN LIGHT OF THE FOREGOING YOU REQUEST A DECISION AS TO WHETHER OUR DECISION OF JUNE 22, 1971, WAS INTENDED TO PRECLUDE YOUR ENTERING INTO A CONTRACT FOR AMBULANCE SERVICE, WHERE FINANCIAL ASSISTANCE IS BEING PROVIDED BY THE LOCAL GOVERNMENT ON A PURELY VOLUNTARY BASIS, AS OPPOSED TO BEING REQUIRED BY APPLICABLE LAW.

WE HAVE CAREFULLY RECONSIDERED THE POSITION TAKEN IN OUR DECISION OF JUNE 22, 1971, AND WE ARE NOW OF THE VIEW THAT THE VA MAY ENTER INTO A CONTRACT WITH A STATE OR LOCAL GOVERNMENT OR PRIVATE ENTITY FOR AMBULANCE SERVICES FOR TRANSPORTING ELIGIBLE VETERANS TO AND FROM A VA FACILITY, EVEN THOUGH THE ENTITY (GOVERNMENTAL OR PRIVATE) FURNISHING THE SERVICE IS SUPPORTED IN WHOLE OR IN PART BY STATE OR LOCAL TAXES, PROVIDED THE POLITICAL SUBDIVISION INVOLVED IS NOT REQUIRED BY LAW TO FURNISH SUCH SERVICE WITHOUT A DIRECT CHARGE. ALSO, THE CONTRACT SHOULD NOT ONLY PROVIDE FOR PAYMENTS NOT TO EXCEED THE FAIR AND REASONABLE VALUE OF THE SERVICES RECEIVED BY THE GOVERNMENT BUT IN ADDITION SHOULD COMPLY WITH FEDERAL PROCUREMENT LAW AND REGULATIONS.

AN EXAMINATION OF THE PERTINENT STATUTES OF THE STATE OF MISSISSIPPI DISCLOSE THAT THE FURNISHING OF AMBULANCE SERVICES BY LOCAL POLITICAL SUBDIVISIONS IS DISCRETIONARY AND THAT LOCAL POLITICAL SUBDIVISIONS MAY, IN THEIR DISCRETION, SUBSIDIZE PRIVATELY RUN AMBULANCE SERVICE. SEE SECTIONS 2997-21 AND 2997-25 OF THE MISSISSIPPI CODE 1942 ANNOTATED (1971 SUPP.). FURTHER, THE COPY OF THE LEASE AND SUBSIDY AGREEMENT BETWEEN BILOXI AND GULF PROVIDES THAT GULF WILL FURNISH THE AMBULANCE SERVICE "AT A REASONABLE COST COMMENSURATE WITH THE NATURE OF THE AMBULANCE SERVICE PROVIDED AND USUAL TO SUCH SERVICE." THUS, IT IS CLEAR THAT UNDER MISSISSIPPI LAW LOCAL GOVERNMENTS ARE NOT UNDER A MANDATORY DUTY TO FURNISH AMBULANCE SERVICE AND THAT UNDER THE AGREEMENT WITH BILOXI, GULF MAY CHARGE FOR SUCH SERVICES.

YOUR LETTER AND THE ATTACHMENTS THEREWITH, HOWEVER, INDICATE THAT THE PROPOSED CONTRACT MAY CONTEMPLATE A SUBSIDY PAYMENT TO BILOXI OR GULF, RATHER THAN A PAYMENT (I.E. A FAIR AND REASONABLE CHARGE) BASED ON THE QUANTUM OF THE SERVICES ACTUALLY FURNISHED THE GOVERNMENT. REPRESENTATIVE OF YOUR AGENCY INFORMALLY ADVISED US THAT OUR DECISION OF JANUARY 19, 1967, 46 COMP. GEN. 616 (1967), IS CONSIDERED AS AUTHORITY FOR THE VA TO MAKE CONTRACTS CALLING FOR SUBSIDY PAYMENTS.

OUR 1967 DECISION WAS BASED ON THE SPECIFIC FACTS AND CIRCUMSTANCES EXISTING IN THAT CASE AND SHOULD NOT BE CONSIDERED AS A PRECEDENT FOR AUTHORIZING SUBSIDY PAYMENTS GENERALLY. IF THE VA INTENDS OR DESIRES TO MAKE SUBSIDY PAYMENTS IN OTHER SITUATIONS, IT IS OUR VIEW THAT IT SHOULD OBTAIN SPECIFIC STATUTORY AUTHORITY TO MAKE SUCH PAYMENTS, ABSENT THE EXISTENCE OF SUCH AUTHORITY. FURTHER, THE 1967 CASE IS DISTINGUISHABLE FROM THE INSTANT CASE IN AT LEAST ONE RESPECT IN THAT - AS WE UNDERSTAND IT - THE PAYMENT IN THE FORMER CASE WAS NOT FOR THE PURPOSE OF ENABLING THE TRANSPORTATION COMPANY INVOLVED TO CONTINUE IN BUSINESS BUT ONLY SO THAT THE CARRIER WOULD PROVIDE TRANSPORTATION SERVICES BETWEEN NEWARK, NEW JERSEY, AND THE VA HOSPITAL IN LYONS, NEW JERSEY. IN THE INSTANT CASE THE APPARENT PURPOSE OF THE PROPOSED SUBSIDY PAYMENT IS TO ENABLE A PRIVATE AMBULANCE SERVICE TO CONTINUE IN OPERATION. HENCE, OUR DECISION OF JANUARY 19, 1967, MAY NOT BE CONSIDERED AS AUTHORIZING A SUBSIDY PAYMENT IN THE INSTANT CASE.

SUBJECT TO WHAT IS SET FORTH ABOVE, WE WOULD HAVE NO OBJECTION TO THE VA CONTRACTING WITH THE CITY OF BILOXI OR GULF FOR AMBULANCE SERVICE TO TRANSPORT ELIGIBLE VETERANS TO AND FROM THE VA CENTER AT BILOXI.