October 11, 1984

Mr. Ronald K. Roehr 
Grant County State's Attorney 
210 East Fifth Avenue 
Milbank, South Dakota 57252

Official Opinion No. 84-42

Ambulance service

Dear Mr. Roehr:

You have requested an official opinion from this office based upon the following factual situation:

FACTS: 

Pursuant to the provisions of SDCL 34-11-1, Grant County has for the past several years contracted with a private ambulance company for ambulance service.  Under the contract, Grant County pays an annual subsidy to the ambulance company, which is required to provide ambulance service to the residents of Grant County.  The ambulance company is an independent contractor, charges Grant County residents a fee for its services, and contracts with other governmental entities to provide similar service to its residents. The operation of the ambulance company, including equipment, personnel and management, is left to the discretion of the ambulance company, with the following exceptions:  (1) the county requires that two ambulances be used and that applicable statutes and regulations be complied with, (2) the county must consent to rate increases, and (3) periodically, the county requires an itemized statement of the ambulance company's gross receipts and calls made.

Based upon the above facts, you have asked the following question:

QUESTION: 

Must the county establish bid specifications and contract with the low  bidder under the provisions of SDCL Chapter 5-18, or may it negotiate a contract with the ambulance company of its choice, must the same as it would for the services of an architect, engineer or attorney?

The South Dakota Supreme Court has repeatedly held that the requirement of competitive bidding is a public benefit which 'ought not to be frittered away by exceptions.'  Northern Hills Sanitation v. Board of Com'rs, 272 N.W.2d 835, 837 (S.D. 1978); Rapid City Area Sch. Dist. v. Black Hills, 303 N.W.2d 811, 813 (S.D. 1981).  However, the Court has also concluded that the competitive bidding requirements are not applicable to contracts for personal services.  Foss v. Spitznagel, 97 N.W.2d 856 (S.D. 1959).   See also 15 ALR3d 733.

While the question of whether ambulance service is a personal service exempt from the competitive bidding laws has not been definitively answered in the case law, the New York Court, in Amherst Columbia Ambulance, etc. v. Gross, 437 NYS2d 137, 138 (1981), held that 'the furnishing of ambulance services is one requiring special skill or training excepting it from the general competitive bidding requirement[s].'

I agree.  Therefore, it is my opinion that competitive bidding is not required for county ambulance service contracts in South Dakota.

Respectfully submitted,

Mark V. Meierhenry
Attorney General