[Federal Register Volume 60, Number 35 (Wednesday, February 22, 1995)]
[Notices]
[Pages 9855-9857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3676]



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DEPARTMENT OF THE INTERIOR
National Park Service


Notice of Publication of Final Sample Prospectus and Related 
Guidelines

AGENCY: National Park Service, Interior.

SUMMARY: The National Park Service published notice to rescind Chapter 
6, 7, 8 and 11 of NPS-48 (``The Concessions Guidelines'') Thursday, 
March 17, 1994 requesting comments at that time on the replacement 
document ``Sample Prospectus and Related Guidelines.'' The document 
includes among other matters, a sample prospectus for solicitation of 
offers for National Park Service concessions contracts and permits, 
related evaluation guidelines and application information and criteria.
    As an internal staff manual, notice of the Sample Prospectus and 
Related Guidelines is not required to be published in the Federal 
Register nor was public comment required yet to assure that the view of 
all interested parties were considered, the National Park Service 
sought public comment on its Sample Prospectus and Related Guidelines 
document and considered all comments received and amend the document if 
it is so warranted. The 60-day comment period has expired, and the 
public interest would not be served in further delay of the effective 
date of this document.

General Comments

    Only two entities responded to the publication of the notice with 
comments.
    One commenter suggested that we withdraw this proposal until the 
Senate and House Finalize new legislation on Concession Management in 
the Parks. The public would not be served to consider this alternative 
as there exists a large backlog of NPS concession contract renewals 
which are necessary to complete to allow the commencement of major 
renovation and construction programs in areas of the nation park 
system, including improvements necessary to protect the health and 
safety of park visitors and NPS and concessioner employees. In 
addition, many concessioners are now operating under the terms of 
expired contracts and are accordingly, in need of contract renewal 
actions as soon as possible to permit business planning, actions and 
investments which require the existence of a new contract for 
implementation. It is also noted that the Sample Prospectus and Related 
Guidelines document is intended to provide guidance to NPS personnel 
concerning possible means to implement new policies and procedures 
adopted in the new NPS concession contracting regulations and new 
standard language concession contract, both of which were adopted after 
extensive public comment periods and consideration by NPS of all 
comments received.
    This commenter discussed some issues that relate to NPS concession 
contracting regulations which were amended by NPS in furtherance of the 
objective of the Secretary's concession reform initiative. These 
issues, Possessory Interest, Compensation, Government Improvement and 
Capital Improvement accounts * * *are not further discussed here as 
they were the subject of extensive public comment in the adoption of 
the amended regulations and standard contract language. The amended 
regulations were published in final in the Federal Register on 
September 3, 1992 (57 FR 40496) and the Final revision of the Standard 
Contract Language was published in the Federal Register on January 7, 
1993 (58 FR 43140).
    This commenter cautioned that in the preparation of the Prospectus 
there are two items listed for the Appendix which related to existing 
possessory interest and suggest that care be taken to be sure that the 
incumbent be aware of the value established by the present law. They 
propose that values supplied by [[Page 9856]] the incumbent 
concessioner would reflect a more accurate assessment of the 
compensation required, rather than the use of an outside consultant or 
NPS estimate of this value. NPS acknowledges that the incumbent is 
entitled to compensation as outlined in a previous contract but that 
the terms of that contract allow for negotiation between parties, and 
should they be unable to reach a compromise, an arbitration process for 
the final determination of that compensable value as purchased by a new 
offeror.
    The commenter expresses concern on the arbitration process utilized 
to resolve these disputes and states that an incumbent concessioner 
should not be expected to relinquish his or her rights to legal 
adjudication of the issue through the courts should it become 
necessary. NPS does not recognize this as a valid issue in this process 
as the procedure to settle these issues will not vary from established 
practice with the enforcement of the final regulations or standard 
contract language utilized herein.
    The commenter acknowledged that the Concessions Management section 
of the prospectus had some excellent statements but that the 
``partnership'' between NPS and the concessioner needs to be 
emphasized. They later note that this is emphasized in the contract 
language. NPS in designing the package took careful steps to avoid 
repetition in placing information in the prospectus and the contract as 
they are part of a complete presentation. The proposed contract is 
included in the package to illustrate the importance of all contract 
requirements.
    Recent changes in the Utilities program as it relates to capital 
investments were commended.
    Concern was expressed regarding the requirement that all 
concessioners comply with federal, state and local laws. NPS has made 
this a requirement of all contracts since the labor legislation was 
enacted. They described the problems recently encountered with the 
Department of Labor in a case in Nevada involving operations that fall 
under the Fair Labor Standards Act and the Contract Wage and Hours 
Standards Act. The Department of Labor has been asked to address this 
problem but as of yet, they have not issued a decision. This is a non-
issue as it relates to this process.
    Financial programs and practices were discussed as they relate to 
the law governing the concessions management program. They state that 
the NPS statement regarding Fair Return for the Operator appears 
misunderstood and misapplied. On Page 13 of the prospectus, it states 
that ``it is the responsibility of the offeror to assure itself that 
the terms of its offer provide it a reasonable opportunity for 
profit''. The commenter states that while they understand that the 
concessioner ultimately determines by his business practices whether he 
will realize a profit, the whole intent of the statement in the law is 
that NPS should realize that its policies could prevent that profit 
from being realized if they were onerous and confiscatory. NPS makes 
this statement in the Prospectus to caution the offeror that the terms 
of an offer being presented must be realistic and achievable allowing a 
reasonable opportunity for profit. Other devises in the contract such 
as amendments, franchise fee reviews and arbitrations allow for 
adjustments necessitated through economic changes, policy review and 
revision.
    A comment was made on the section entitled ``The Park Area and Its 
Mission'' regarding the planning documents and maintenance and 
operating plans for the park that are applicable. They note that plans 
are only as good as the commitment of those involved to carry out its 
terms and that no plans can be successful relating to the concession 
and operations and visitor services unless they involve the 
concessioner for meaningful input at the time of formulation. It is the 
standard practice of NPS to involve consultants versed in the type of 
operation proposed during the planning process. As the practice of 
awarding the contract for the operation of these facilities is a 
competitive process, completed at a future date, the actual 
concessioner cannot be involved in this pre-planning as the contract 
has not been executed. It is important that the planning, maintenance 
and operation documents be included in the prospectus so that an 
offeror can make an informed offer, taking the long and short term 
requirements into consideration.
    The commenter discussed the need for flexibility in the term of the 
contract; Government Improvement and Capital Improvement accounts; 
Compensation and Possessory interest. These were issues for comment 
during the review of the Standard Contract Language and Final Rule for 
Concession Operations. These comments do not apply to this process.
    The proposed application was questioned as it related to the 
alternatives presented for concessioner entitlement to present contract 
language on the Preference of renewal. NPS included the alternatives as 
a guide for future use of this sample. The issue of contract language 
change was addressed during the review period of that subject and does 
not apply to this process.
    The commenter states that the proposed Application seems 
inconsistent with the statement that the financial contributions are 
secondary selection factors, when in fact, additional weight in the 
scoring process is clearly outlined here for more generous 
contributions to both the Government and Capital Improvement Accounts 
and the amount paid in Franchise Fees. They question that if the 
factors are secondary, why should they be given additional weight? NPS 
in considering an offer, requires that all the primary factors are met 
before the secondary factors are considered. In this way, should all 
offerors satisfy the requirements of the primary factors, there can be 
a means of determining a better offer by utilizing the secondary 
factors.
    A second commenter expressed concern in regards to removing the 
possibility of incorporating a numerically-weighted system into the 
proposed evaluation process. NPS feels that a numerically-weighted 
system would not allow the flexibility required to deal with the 
diverse operations it manages. Due to the diversity of the operations, 
specifically stated criteria are designed for each application that 
address the unique needs of the park and visitor. A numerically-
weighted system must be standardized to be effective, and the diversity 
of the operations for which concessioners are solicited could not be 
handled in this manner. The narrative system presents in clear and 
concise language the exact reasons that the panel would choose one 
offeror over another. There is no guarantee with a numerically-weighted 
system to insure that the offer being presented is the best overall 
offer. Should there become a need to present the reasons for selection 
at a later time, the justification for a decision based on a 
numerically-weighted system is not easily presented.
    The Sample Prospectus and Related Guidelines document is intended 
to be only a sample document. It is not meant to be a document which 
must be used as written in every instance. It is to be modified as 
appropriate to fit the needs of individual situations. Further, this 
document is expected to be modified and refined over time as experience 
indicates that changes are needed and to meet the changing needs of the 
concession contracting program.

EFFECTIVE DATE: February 22, 1995.

FOR FURTHER INFORMATION CONTACT: Robert Yearout, Chief, Concessions 
Division, National Park Service, [[Page 9857]] Washington, D.C. 20013-
7127. Telephone: (202) 343-3784.

    Dated: February 3, 1995.
Maureen Finnerty,
Associate Director, Operations.
[FR Doc. 95-3676 Filed 2-21-95; 8:45 am]
BILLING CODE 4310-70-M