THE GARDEN LAW FIRM P.C. Your Government counsel.™ A Reference Guide to the Legal Basics for National Park Service Concessioners The Law & Policy and How to Make Use of Them www.gardenlawfirm.com A Reference Guide to the Legal Basics for National Park Service Concessioners is published by The Garden Law Firm P.C. It is not intended to provide legal advice, which may only be given when based on a specific fact situation. Also, the information set out herein may have been updated or revised and no representations are made as to its accuracy. For further information, please contact us at [email protected]. Sign up for updates and alerts about relevant legal decisions and government notices related to NPS concessions at: www.gardenlawfirm.com © The Garden Law Firm P.C. 2019 THE GARDEN LAW FIRM P.C. www.gardenlawfirm.com __________________________________________________________________________ A Reference Guide to the Legal Basics for National Park Service Concessioners The Law & Policy and How to Make Use of Them 1. The concession statute: NPS Concessions Management Improvement Act of 1998 .....1 2. The Visitor Enhancement Improvement Act .................................................................23 3. The concession regulations: 36 CFR Part 51 .................................................................27 4. The concession policies .................................................................................................77 a. Commercial Services Guide (NPS Commercial Services Program) ..........................77 b. NPS Management Policies (2006) ...........................................................................78 c. Director’s Orders .....................................................................................................97 d. Commercial Use Authorization Interim Guidelines ............................................. 111 5. Annual Overall Ratings (AORs) ................................................................................... 117 6. Requests for Rate Increases ....................................................................................... 127 7. Environmental Audits ................................................................................................. 165 8. Obligations to Pay Local Taxes ................................................................................... 213 9. Challenges to NPS Solicitations .................................................................................. 215 NPS Concessioner Legal Reference Guide i THE GARDEN LAW FIRM P.C. www.gardenlawfirm.com __________________________________________________________________________ NPS Concessioner Legal Reference Guide ii THE GARDEN LAW FIRM P.C. www.gardenlawfirm.com __________________________________________________________________________ 1. The concession statute: NPS Concessions Management Improvement Act of 1998 Introduction The statutory authority which specifically controls National Park Service (NPS) concessions is the National Park Service Concessions Management Improvement Act of 1998 which is set out at 54 U.S.C. § 101911 et seq. (the 1998 Act). After Congress enacted the 1998 Act, NPS created regulations to implement the statute, which are set out at 36 C.F.R. Part 51 and discussed in Chapter 2. While both the statute and the regulations are legally binding on NPS, the statute takes precedence to the extent the regulations may conflict with it. Even though NPS concessioners are in fact government contractors, NPS concession contracts are unique and are not governed by most of the typical government contract laws. Instead, they are primarily controlled by the law and regulations referenced above.1 Concession operations themselves are authorized pursuant to Congress’ direction that NPS “promote and regulate the use of the National Park System” and, along with other priorities, provide for the enjoyment of the National Parks. The specific direction from Congress is set out below: The Secretary, acting through the Director of the National Park Service, shall promote and regulate the use of the National Park System by means and measures that conform to the fundamental purpose of the System units, which purpose is to conserve the scenery, natural and historic objects, and wild life in the System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.[2] While NPS authorized concession operations have existed as long as National Parks have existed, the 1998 Act represented a significant change from the past by repealing the prior concession law and enacting a new set of legal requirements and provisions to guide concession operations. The new law changed many aspects of NPS concessions, including a new focus on competition and a switch from what was referred to as “possessory interest” to what is now known as “leasehold surrender interest” as the basic method of protecting a concessioner’s financial interest in the structures which it uses in its operations. 1 YRT Services Corp. v. United States, 28 Fed. Cl. 366, 371 (1993). 2 54 U.S.C. § 100101(a). NPS Concessioner Legal Reference Guide 1 THE GARDEN LAW FIRM P.C. www.gardenlawfirm.com __________________________________________________________________________ The National Park Service Concessions Management Improvement Act of 1998 is set out below. National Park Service Concessions Management Improvement Act of 1998 § 101911 Definitions § 101912 Findings and declaration of policy § 101913 Award of concession contracts § 101914 Term of concession contracts § 101915 Protection of concessioner investment § 101916 Reasonableness of rates and charges § 101917 Franchise fees § 101918 Transfer or conveyance of concession contracts or leasehold surrender interests § 101919 National Park Service Concessions Management Advisory Board § 101920 Contracting for services § 101921 Multiple contracts within a System unit § 101922 Use of nonmonetary consideration in concession contracts § 101923 Recordkeeping requirements § 101924 Promotion of sale of Indian, Alaska Native, Native Samoan and Native Hawaiian handicrafts § 101925 Commercial use authorizations § 101926 Regulations § 101911- Definitions (1) Advisory Board.--The term “Advisory Board” means the National Park Service Concessions Management Advisory Board established under section 101919 of this title. (2) Preferential right of renewal.--The term “preferential right of renewal” means the right of a concessioner, 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 101912 of this title, to match the terms and conditions of any competing proposal that the Secretary determines to be the best proposal for a proposed new concession contract that NPS Concessioner Legal Reference Guide 2 THE GARDEN LAW FIRM P.C. www.gardenlawfirm.com __________________________________________________________________________ authorizes the continuation of the facilities and services provided by the concessioner under its prior contract. § 101912- Findings and declaration of policy (a) Findings.--In furtherance of section 100101(a), Congress finds that the preservation and conservation of System unit resources and values requires that public accommodations, facilities, and services that have to be provided within those System units should be provided only under carefully controlled safeguards against unregulated and indiscriminate use, so that-- (1) visitation will not unduly impair those resources and values; and (2) development of public accommodations, facilities, and services within System units can best be limited to locations that are consistent to the highest practicable degree with the preservation and conservation of the resources and values of the System units. (b) Declaration of policy.--It is the policy of Congress that the development of public accommodations, facilities, and services in System units shall be limited to accommodations, facilities, and services that— (1) are necessary and appropriate for public use and enjoyment of the System unit in which they are located; and (2) are consistent to the highest practicable degree with the preservation and conservation of the resources and values of the System unit. § 101913- Award of concession contracts In furtherance of the findings and policy stated in section 101912 of this title, and except as provided by this subchapter or otherwise authorized by law, the Secretary shall utilize concession contracts to authorize a person, corporation, or other entity to provide accommodations, facilities, and services to visitors to System units. Concession contracts shall be awarded as follows: (1) Competitive selection process.--Except as otherwise provided in this section, all proposed concession 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. The competitive process shall include simplified procedures for small, individually-owned entities seeking award of a concession contract. NPS Concessioner Legal Reference Guide 3 THE GARDEN LAW FIRM P.C. www.gardenlawfirm.com __________________________________________________________________________ (2) Solicitation of proposals.--Except as otherwise provided in this section, prior to awarding a new