§ 5952. — Award of concessions contracts.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC5952]
TITLE 16--CONSERVATION
CHAPTER 79--NATIONAL PARK SERVICE MANAGEMENT
SUBCHAPTER III--NATIONAL PARK SERVICE CONCESSIONS MANAGEMENT
Sec. 5952. Award of concessions contracts
In furtherance of the findings and policy stated in section 5951 of
this title, and except as provided by this subchapter or otherwise
authorized by law, the Secretary shall utilize concessions contracts to
authorize a person, corporation, or other entity to provide
accommodations, facilities, and services to visitors to units of the
National Park System. Such concessions contracts shall be awarded as
follows:
(1) Competitive selection process
Except as otherwise provided in this section, all proposed
concessions contracts shall be awarded by the Secretary to the
person, corporation, or other entity submitting the best proposal,
as determined by the Secretary through a competitive selection
process. Such competitive process shall include simplified
procedures for small, individually-owned, concessions contracts.
(2) Solicitation of proposals
Except as otherwise provided in this section, prior to awarding
a new concessions contract (including renewals or extensions of
existing concessions contracts) the Secretary shall publicly solicit
proposals for the concessions contract and, in connection with such
solicitation, the Secretary shall prepare a prospectus and shall
publish notice of its availability at least once in local or
national newspapers or trade publications, and/or the Commerce
Business Daily, as appropriate, and shall make the prospectus
available upon request to all interested parties.
(3) Prospectus
The prospectus shall include the following information:
(A) The minimum requirements for such contract as set forth
in paragraph (4).
(B) The terms and conditions of any existing concessions
contract relating to the services and facilities to be provided,
including all fees and other forms of compensation provided to
the United States by the concessioner.
(C) Other authorized facilities or services which may be
provided in a proposal.
(D) Facilities and services to be provided by the Secretary
to the concessioner, if any, including public access, utilities,
and buildings.
(E) An estimate of the amount of compensation, if any, due
an existing concessioner from a new concessioner under the terms
of a prior concessions contract.
(F) A statement as to the weight to be given to each
selection factor identified in the prospectus and the relative
importance of such factors in the selection process.
(G) Such other information related to the proposed
concessions operation as is provided to the Secretary pursuant
to a concessions contract or is otherwise available to the
Secretary, as the Secretary determines is necessary to allow for
the submission of competitive proposals.
(H) Where applicable, a description of a preferential right
to the renewal of the proposed concessions contract held by an
existing concessioner as set forth in paragraph (7).
(4) Minimum requirements
(A) No proposal shall be considered which fails to meet the
minimum requirements as determined by the Secretary. Such minimum
requirements shall include the following:
(i) The minimum acceptable franchise fee or other forms of
consideration to the Government.
(ii) Any facilities, services, or capital investment
required to be provided by the concessioner.
(iii) Measures necessary to ensure the protection,
conservation, and preservation of resources of the unit of the
National Park System.
(B) The Secretary shall reject any proposal, regardless of the
franchise fee offered, if the Secretary determines that the person,
corporation, or entity is not qualified, is not likely to provide
satisfactory service, or that the proposal is not responsive to the
objectives of protecting and preserving resources of the unit of the
National Park System and of providing necessary and appropriate
facilities and services to the public at reasonable rates.
(C) If all proposals submitted to the Secretary either fail to
meet the minimum requirements or are rejected by the Secretary, the
Secretary shall establish new minimum contract requirements and re-
initiate the competitive selection process pursuant to this section.
(D) The Secretary may not execute a concessions contract which
materially amends or does not incorporate the proposed terms and
conditions of the concessions contract as set forth in the
applicable prospectus. If proposed material amendments or changes
are considered appropriate by the Secretary, the Secretary shall
resolicit offers for the concessions contract incorporating such
material amendments or changes.
(5) Selection of the best proposal
(A) In selecting the best proposal, the Secretary shall consider
the following principal factors:
(i) The responsiveness of the proposal to the objectives of
protecting, conserving, and preserving resources of the unit of
the National Park System and of providing necessary and
appropriate facilities and services to the public at reasonable
rates.
(ii) The experience and related background of the person,
corporation, or entity submitting the proposal, including the
past performance and expertise of such person, corporation or
entity in providing the same or similar facilities or services.
(iii) The financial capability of the person, corporation,
or entity submitting the proposal.
(iv) The proposed franchise fee, except that consideration
of revenue to the United States shall be subordinate to the
objectives of protecting, conserving, and preserving resources
of the unit of the National Park System and of providing
necessary and appropriate facilities to the public at reasonable
rates.
(B) The Secretary may also consider such secondary factors as
the Secretary deems appropriate.
(C) In developing regulations to implement this subchapter, the
Secretary shall consider the extent to which plans for employment of
Indians (including Native Alaskans) and involvement of businesses
owned by Indians, Indian tribes, or Native Alaskans in the operation
of a concession, contracts should be identified as a factor in the
selection of a best proposal under this section.
(6) Congressional notification
The Secretary shall submit any proposed concessions contract
with anticipated annual gross receipts in excess of $5,000,000 or a
duration of more than 10 years to the Committee on Resources of the
House of Representatives and the Committee on Energy and Natural
Resources of the Senate. The Secretary shall not award any such
proposed contract until at least 60 days subsequent to the
notification of both committees.
(7) Preferential right of renewal
(A) Except as provided in subparagraph (B), the Secretary shall
not grant a concessioner a preferential right to renew a concessions
contract, or any other form of preference to a concessions contract.
(B) The Secretary shall grant a preferential right of renewal to
an existing concessioner with respect to proposed renewals of the
categories of concessions contracts described by paragraph (8),
subject to the requirements of that paragraph.
(C) As used in this subchapter, the term ``preferential right of
renewal'' means that the Secretary, subject to a determination by
the Secretary that the facilities or services authorized by a prior
contract continue to be necessary and appropriate within the meaning
of section 5951 of this title, shall allow a concessioner qualifying
for a preferential right of renewal the opportunity to match the
terms and conditions of any competing proposal which the Secretary
determines to be the best proposal for a proposed new concessions
contract which authorizes the continuation of the facilities and
services provided by the concessioner under its prior contract.
(D) A concessioner which successfully exercises a preferential
right of renewal in accordance with the requirements of this
subchapter shall be entitled to award of the proposed new
concessions contract to which such preference applies.
(8) Outfitter and guide services and small contracts
(A) The provisions of paragraph (7) shall apply only to the
following:
(i) Subject to subparagraph (B), outfitting and guide
concessions contracts.
(ii) Subject to subparagraph (C), concessions contracts with
anticipated annual gross receipts under $500,000.
(B) For the purposes of this subchapter, an ``outfitting and
guide concessions contract'' means a concessions contract which
solely authorizes the provision of specialized backcountry outdoor
recreation guide services which require the employment of specially
trained and experienced guides to accompany park visitors in the
backcountry so as to provide a safe and enjoyable experience for
visitors who otherwise may not have the skills and equipment to
engage in such activity. Outfitting and guide concessioners, where
otherwise qualified, include concessioners which provide guided
river running, hunting, fishing, horseback, camping, and
mountaineering experiences. An outfitting and guide concessioner is
entitled to a preferential right of renewal under this subchapter
only if--
(i) the contract with the outfitting and guide concessioner
does not grant the concessioner any interest, including any
leasehold surrender interest or possessory interest, in capital
improvements on lands owned by the United States within a unit
of the National Park System, other than a capital improvement
constructed by a concessioner pursuant to the terms of a
concessions contract prior to November 13, 1998, or constructed
or owned by a concessioner or his or her predecessor before the
subject land was incorporated into the National Park System;
(ii) the Secretary determines that the concessioner has
operated satisfactorily during the term of the contract
(including any extension thereof); and
(iii) the concessioner has submitted a responsive proposal
for a proposed new contract which satisfies the minimum
requirements established by the Secretary pursuant to paragraph
(4).
(C) A concessioner that holds a concessions contract that the
Secretary estimates will result in gross annual receipts of less
than $500,000 if renewed shall be entitled to a preferential right
of renewal under this subchapter if--
(i) the Secretary has determined that the concessioner has
operated satisfactorily during the term of the contract
(including any extension thereof); and
(ii) the concessioner has submitted a responsive proposal
for a proposed new concessions contract which satisfies the
minimum requirements established by the Secretary pursuant to
paragraph (4).
(9) New or additional services
The Secretary shall not grant a preferential right to a
concessioner to provide new or additional services in a unit of the
National Park System.
(10) Secretarial authority
Nothing in this subchapter shall be construed as limiting the
authority of the Secretary to determine whether to issue a
concessions contract or to establish its terms and conditions in
furtherance of the policies expressed in this subchapter.
(11) Exceptions
Notwithstanding the provisions of this section, the Secretary
may award, without public solicitation, the following:
(A) A temporary concessions contract or an extension of an
existing concessions contract for a term not to exceed 3 years
in order to avoid interruption of services to the public at a
unit of the National Park System, except that prior to making
such an award, the Secretary shall take all reasonable and
appropriate steps to consider alternatives to avoid such
interruption.
(B) A concessions contract in extraordinary circumstances
where compelling and equitable considerations require the award
of a concessions contract to a particular party in the public
interest. Such award of a concessions contract shall not be made
by the Secretary until at least 30 days after publication in the
Federal Register of notice of the Secretary's intention to do so
and the reasons for such action, and submission of notice to the
Committee on Energy and Natural Resources of the Senate and the
Committee on Resources of the House of Representatives.
(Pub. L. 105-391, title IV, Sec. 403, Nov. 13, 1998, 112 Stat. 3504.)
References in Text
This subchapter, referred to in text, was in the original ``this
title'', meaning title IV of Pub. L. 105-391, Nov. 13, 1998, 112 Stat.
3503, which is classified principally to this subchapter. For complete
classification of title IV to the Code, see Short Title note set out
under section 5901 of this title and Tables.
