54 U.S.C. § 101913 — Award of concession contracts

Page 48 TITLE 54—NATIONAL PARK SERVICE AND RELATED PROGRAMS § 101912 (Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3138.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 101911(1) ..... no source. 101911(2) ..... 16 U.S.C. 5952(7)(C). Pub. L. 105–391, title IV, § 403(7)(C), Nov. 13, 1998, 112 Stat. 3506. Statutory Notes and Related Subsidiaries SAVINGS PROVISION Pub. L. 105–391, title IV, § 419, Nov. 13, 1998, 112 Stat. 3517, provided that: ‘‘(a) TREATMENT OF GLACIER BAY CONCESSION PERMITS PROSPECTUS.—Nothing contained in this title [enacting former sections 5951 to 5966 of Title 16, Conservation, which were repealed and restated in sections 101911 et seq. and 101524 of this title, amending former sections 1a–7 and 3 of Title 16, repealing section 17b–1 and sub- chapter IV of chapter 1 of Title 16, and enacting provi- sions set out as notes under this section and sections 100101 and 101912 of this title] shall authorize or require the Secretary to withdraw, revise, amend, modify, or reissue the February 19, 1998, Prospectus Under Which Concession Permits Will be Open for Competition for the Operation of Cruise Ship Services Within Glacier Bay National Park and Preserve (in this section re- ferred to as the ‘1998 Glacier Bay Prospectus’). The award of concession permits pursuant to the 1998 Gla- cier Bay Prospectus shall be under provisions of exist- ing law at the time the 1998 Glacier Bay Prospectus was issued. ‘‘(b) PREFERENTIAL RIGHT OF RENEWAL.—Notwith- standing any provision of this title, the Secretary, in awarding future Glacier Bay cruise ship concession per- mits covering cruise ship entries for which a pref- erential right of renewal existed prior to the effective date of this title [probably means the date of enact- ment of title IV of Pub. L. 105–391, which was approved Nov. 13, 1998], shall provide for such cruise ship entries a preferential right of renewal, as described in subpara- graphs (C) and (D) of section 403(7) [see 54 U.S.C. 101911(2), 101913(7)(C)]. Any Glacier Bay concession per- mit awarded under the authority contained in this sub- section shall expire by December 31, 2009.’’ ALASKA NATIONAL INTEREST LANDS CONSERVATION ACT Pub. L. 105–391, title IV, § 415(c), Nov. 13, 1998, 112 Stat. 3516, provided that: ‘‘Nothing in this title [enact- ing former sections 5951 to 5966 of Title 16, Conserva- tion, which were repealed and restated in sections 101911 et seq. and 101524 of this title, amending former sections 1a–7 and 3 of Title 16, repealing section 17b–1 and subchapter IV of chapter 1 of Title 16, and enacting provisions set out as notes under this section and sec- tions 100101 and 101912 of this title] amends, supersedes, or otherwise affects any provision of the Alaska Na- tional Interest Lands Conservation Act (16 U.S.C. 3101 et seq.) relating to revenue-producing visitor services.’’ § 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, fa- cilities, 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 con- sistent to the highest practicable degree with the preservation and conservation of the re- sources and values of the System units. (b) DECLARATION OF POLICY.—It is the policy of Congress that the development of public accom- modations, facilities, and services in System units shall be limited to accommodations, facili- ties, 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. (Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3138.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 101912 ......... 16 U.S.C. 5951. Pub. L. 105–391, title IV, § 402, Nov. 13, 1998, 112 Stat. 3503. In subsection (a), the words ‘‘section 100101(a)’’ are substituted for ‘‘sections 1, 2, 3, and 4 of this title, which directs the Secretary to administer units of the National Park System in accordance with the funda- mental purpose of conserving their scenery, wildlife, and natural and historic objects, and providing for their enjoyment in a manner that will leave them unimpaired for the enjoyment of future generations’’ to give a more precise cross reference because section 100101(a) of the new title is where that direction to the Secretary is restated. Statutory Notes and Related Subsidiaries REPEAL OF NATIONAL PARK SERVICE CONCESSIONS POLICY ACT; SAVINGS PROVISION Pub. L. 105–391, title IV, § 415(a), Nov. 13, 1998, 112 Stat. 3515, provided that: ‘‘Public Law 89–249 (com- monly known as the National Park Service Concessions Policy Act; 16 U.S.C. 20 et seq.) is repealed. The repeal of such Act shall not affect the validity of any conces- sions contract or permit entered into under such Act, but the provisions of this title [enacting former sec- tions 5951 to 5966 of Title 16, Conservation, which were repealed and restated in sections 101911 et seq. and 101524 of this title, amending former sections 1a–7 and 3 of Title 16, repealing section 17b–1 and subchapter IV of chapter 1 of Title 16, and enacting provisions set out as notes under this section and sections 100101 and 101911 of this title] shall apply to any such contract or permit except to the extent such provisions are incon- sistent with the terms and conditions of any such con- tract or permit. References in this title to concessions contracts awarded under authority of such Act also apply to concessions permits awarded under such au- thority.’’ § 101913. Award of concession contracts In furtherance of the findings and policy stat- ed in section 101912 of this title, and except as provided by this subchapter or otherwise author- ized by law, the Secretary shall utilize conces- sion contracts to authorize a person, corpora- tion, or other entity to provide accommoda- tions, facilities, and services to visitors to Sys- tem units. Concession contracts shall be award- ed as follows: (1) COMPETITIVE SELECTION PROCESS.—Except as otherwise provided in this section, all pro- posed concession contracts shall be awarded Page 49 TITLE 54—NATIONAL PARK SERVICE AND RELATED PROGRAMS § 101913 1 So in original. Probably should be ‘‘MINIMUM’’. by the Secretary to the person, corporation, or other entity submitting the best proposal, as determined by the Secretary through a com- petitive selection process. The competitive process shall include simplified procedures for small, individually-owned entities seeking award of a concession contract. (2) SOLICITATION OF PROPOSALS.—Except as otherwise provided in this section, prior to awarding a new concession contract (including renewals or extensions of existing concession contracts) the Secretary— (A) shall publicly solicit proposals for the concession contract; and (B) in connection with the solicitation, shall— (i) prepare a prospectus and publish no- tice of its availability at least once in local or national newspapers or trade pub- lications, by electronic means, or both, as appropriate; and (ii) make the prospectus available on re- quest to all interested persons. (3) INFORMATION TO BE INCLUDED IN PRO- SPECTUS.—The prospectus shall include the following information: (A) The minimum requirements for the contract as set forth in paragraph (4). (B) The terms and conditions of any exist- ing concession contract relating to the serv- ices and facilities to be provided, including all fees and other forms of compensation provided to the United States by the conces- sioner. (C) Other authorized facilities or services that may be provided in a proposal. (D) Facilities and services to be provided by the Secretary to the concessioner, includ- ing public access, utilities, and buildings. (E) An estimate of the amount of com- pensation due an existing concessioner from a new concessioner under the terms of a prior concession contract. (F) A statement as to the weight to be given to each selection factor identified in the prospectus and the relative importance of those factors in the selection process. (G) Other information related to the pro- posed concession operation that is provided to the Secretary pursuant to a concession 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 pro- posed concession contract held by an exist- ing concessioner as set forth in paragraph (7). (4) CONSIDERATION OF PROPOSALS.— (A) MINIMUM REQUIREMENTS.—No proposal shall be considered that fails to meet the minimum requirements as determined by the Secretary. The minimum requirements shall include the following: (i) The minimum acceptable franchise fee or other forms of consideration to the Federal Government. (ii) Any facilities, services, or capital in- vestment required to be provided by the concessioner. (iii) Measures necessary to ensure the protection, conservation, and preservation of resources of the System unit. (B) REJECTION OF PROPOSAL.—The Sec- retary shall reject any proposal, regardless of the franchise fee offered, if the Secretary determines that— (i) the person, corporation, or entity is not qualified or is not likely to provide satisfactory service; or (ii) the proposal is not responsive to the objectives of protecting and preserving re- sources of the System unit and of pro- viding necessary and appropriate facilities and services to the public at reasonable rates. (C) ALL PROPOSALS FAIL TO MEET MIMIMUM 1 REQUIREMENTS OR ARE REJECTED.—If all pro- posals submitted to the Secretary fail to meet the minimum requirements or are re- jected by the Secretary, the Secretary shall establish new minimum contract require- ments and re-initiate the competitive selec- tion process pursuant to this section. (D) TERMS AND CONDITIONS MATERIALLY AMENDED OR NOT INCORPORATED IN CON- TRACT.—The Secretary may not execute a concession contract that materially amends or does not incorporate the proposed terms and conditions of the concession contract as set forth in the applicable prospectus. If pro- posed material amendments or changes are considered appropriate by the Secretary, the Secretary shall resolicit offers for the con- cession contract incorporating the material amendments or changes. (5) SELECTION OF THE BEST PROPOSAL.— (A) FACTORS IN SELECTION.—In selecting the best proposal, the Secretary shall con- sider the following principal factors: (i) The responsiveness of the proposal to the objectives of protecting, conserving, and preserving resources of the System unit and of providing necessary and appro- priate facilities and services to the public at reasonable rates. (ii) The experience and related back- ground of the person, corporation, or enti- ty submitting the proposal, including the past performance and expertise of the per- son, corporation or entity in providing the same or similar facilities or services. (iii) The financial capability of the per- son, 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 System unit and of providing necessary and appropriate facilities to the public at reasonable rates. (B) SECONDARY FACTORS.—The Secretary may also consider such secondary factors as the Secretary considers appropriate. (C) DEVELOPMENT OF REGULATIONS.—In de- veloping regulations to implement this sub- Page 50 TITLE 54—NATIONAL PARK SERVICE AND RELATED PROGRAMS § 101913 chapter, the Secretary shall consider the ex- tent to which plans for employment of Indi- ans (including Native Alaskans) and involve- ment of businesses owned by Indians, Indian tribes, or Native Alaskans in the operation of a concession contract should be identified as a factor in the selection of a best proposal under this section. (6) CONGRESSIONAL NOTIFICATION.— (A) IN GENERAL.—The Secretary shall sub- mit any proposed concession contract with anticipated annual gross receipts in excess of $5,000,000 or a duration of more than 10 years to the Committee on Natural Re- sources of the House of Representatives and the Committee on Energy and Natural Re- sources of the Senate. (B) WAITING PERIOD.—The Secretary shall not award any proposed concession contract to which subparagraph (A) applies until at least 60 days subsequent to the notification of both Committees. (7) PREFERENTIAL RIGHT OF RENEWAL.— (A) IN GENERAL.—Except as provided in subparagraph (B), the Secretary shall not grant a concessioner a preferential right to renew a concession contract, or any other form of preference to a concession contract. (B) EXCEPTION.—The Secretary shall grant a preferential right of renewal to an existing concessioner with respect to proposed renew- als of the categories of concession contracts described by paragraph (8), subject to the re- quirements of that paragraph. (C) ENTITLEMENT TO AWARD OF NEW CON- TRACT.—A concessioner that successfully ex- ercises a preferential right of renewal in ac- cordance with the requirements of this sub- chapter shall be entitled to award of the pro- posed new concession contract to which the preference applies. (8) OUTFITTER AND GUIDE SERVICES AND SMALL CONTRACTS.— (A) APPLICATION.—Paragraph (7) shall apply only to the following: (i) Subject to subparagraph (B), conces- sion contracts that solely authorize the provision of specialized backcountry out- door recreation guide services that require the employment of specially trained and experienced guides to accompany System unit 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 that ac- tivity. (ii) Subject to subparagraph (C), conces- sion contracts with anticipated annual gross receipts under $500,000. (B) OUTFITTING AND GUIDE CONCES- SIONERS.— (i) DESCRIPTION.—Outfitting and guide concessioners, where otherwise qualified, include concessioners that provide guided river running, hunting, fishing, horseback, camping, and mountaineering experiences. (ii) WHEN ENTITLED TO PREFERENTIAL RIGHT.—An outfitting and guide conces- sioner 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 improve- ments on land owned by the United States within a System unit, other than a capital improvement constructed by a concessioner pursuant to the terms of a concession contract prior to November 13, 1998, or constructed or owned by a concessioner or the concessioner’s prede- cessor before the subject land was incor- porated into the System; (II) the Secretary determines that the concessioner has operated satisfactorily during the term of the contract (includ- ing any extension); and (III) the concessioner has submitted a responsive proposal for a proposed new concession contract that satisfies the minimum requirements established by the Secretary pursuant to paragraph (4). (C) CONTRACT WITH ESTIMATED GROSS RE- CEIPTS OF LESS THAN $500,000.—A concessioner that holds a concession contract that the Secretary estimates will result in gross an- nual receipts of less than $500,000 if renewed shall be entitled to a preferential right of re- newal under this subchapter if— (i) the Secretary has determined that the concessioner has operated satisfac- torily during the term of the contract (in- cluding any extension); and (ii) the concessioner has submitted a re- sponsive proposal for a proposed new con- cession contract that satisfies the min- imum requirements established by the Secretary pursuant to paragraph (4). (9) NEW OR ADDITIONAL SERVICES.—The Sec- retary may propose to amend the applicable terms of an existing concessions contract to provide new and additional services where the Secretary determines the services are nec- essary and appropriate for public use and en- joyment of the unit of the National Park Sys- tem in which they are located and are con- sistent to the highest practicable degree with the preservation and conservation of the re- sources and values of the unit. Such new and additional services shall not represent a mate- rial change to the required and authorized services as set forth in the applicable pro- spectus or contract. (10) AUTHORITY OF SECRETARY NOT LIMITED.— Nothing in this subchapter shall be construed as limiting the authority of the Secretary to determine whether to issue a concession con- tract or to establish its terms and conditions in furtherance of the policies expressed in this subchapter. (11) EXCEPTIONS.—Notwithstanding this sec- tion, the Secretary may award, without public solicitation, the following: (A) TEMPORARY CONTRACT.—To avoid inter- ruption of services to the public at a System unit, the Secretary may award a temporary concession contract or an extension of an ex- isting concessions contract for a term not to exceed 3 years, except that prior to making Page 51 TITLE 54—NATIONAL PARK SERVICE AND RELATED PROGRAMS § 101915 the award, the Secretary shall take all rea- sonable and appropriate steps to consider al- ternatives to avoid the interruption. (B) CONTRACT IN EXTRAORDINARY CIR- CUMSTANCES.—The Secretary may award a concession contract in extraordinary cir- cumstances where compelling and equitable considerations require the award of a con- cession contract to a particular party in the public interest. Award of a concession con- tract under this subparagraph shall not be made by the Secretary until at least 30 days after— (i) publication in the Federal Register of notice of the Secretary’s intention to award the contract and the reasons for the action; and (ii) submission of notice to the Com- mittee on Energy and Natural Resources of the Senate and the Committee on Nat- ural Resources of the House of Representa- tives. (Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3138; Pub. L. 114–289, title V, § 502, Dec. 16, 2016, 130 Stat. 1490.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 101913 ......... 16 U.S.C. 5952 (less (7)(C)). Pub. L. 105–391, title IV, § 403 (less (7)(C)), Nov. 13, 1998, 112 Stat. 3504. In paragraph (1), the words ‘‘entities seeking award of a concession contract’’ are substituted for ‘‘concessions contracts’’ for clarity. In paragraph (2)(B)(i), the words ‘‘by electronic means’’ are substituted for ‘‘the Commerce Business Daily’’ to eliminate obsolete words. Federal Business Opportunities is the designated single point of uni- versal electronic public access for publication of all procurement information and notices previously pub- lished in the Commerce Business Daily. See 66 Fed. Reg. 27407, May 16, 2001, 68 Fed. Reg. 56678, October 1, 2003, 48 CFR ch. 1, subch. B, part 5, and the special no- tice posted in CBDNet on December 28, 2001, and print- ed on January 2, 2002. In paragraph (5)(C), the words ‘‘concession contract’’ are substituted for ‘‘concession, contracts’’ to correct an error in the source provision. In paragraph (8)(B)(ii)(III), the word ‘‘concession’’ is added for consistency in this subchapter. Editorial Notes AMENDMENTS 2016—Par. (9). Pub. L. 114–289 amended par. (9) gen- erally. Prior to amendment, text read as follows: ‘‘The Secretary shall not grant a preferential right to a con- cessioner to provide new or additional services in a System unit.’’ § 101914. Term of concession contracts A concession contract entered into pursuant to this subchapter shall generally be awarded for a term of 10 years or less. The Secretary may award a contract for a term of up to 20 years if the Secretary determines that the contract terms and conditions, including the required construction of capital improvements, warrant a longer term. (Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3142.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 101914 ......... 16 U.S.C. 5953. Pub. L. 105–391, title IV, § 404, Nov. 13, 1998, 112 Stat. 3508; Pub. L. 106–176, title III, § 311, Mar. 10, 2000, 114 Stat. 34. § 101915. Protection of concessioner investment (a) DEFINITIONS.—In this section: (1) CAPITAL IMPROVEMENT.—The term ‘‘cap- ital improvement’’ means a structure, a fix- ture, or nonremovable equipment provided by a concessioner pursuant to the terms of a con- cession contract and located on land of the United States within a System unit. (2) CONSUMER PRICE INDEX.—The term ‘‘Con- sumer Price Index’’ means— (A) the ‘‘Consumer Price Index—All Urban Consumers’’ published by the Bureau of Labor Statistics of the Department of Labor; or (B) if the Index is not published, another regularly published cost-of-living index ap- proximating the Consumer Price Index. (b) LEASEHOLD SURRENDER INTEREST IN CAP- ITAL IMPROVEMENTS.—A concessioner that con- structs a capital improvement on land owned by the United States within a System unit pursu- ant to a concession contract shall have a lease- hold surrender interest in the capital improve- ment subject to the following terms and condi- tions: (1) IN GENERAL.—A concessioner shall have a leasehold surrender interest in each capital improvement constructed by a concessioner under a concession contract, consisting solely of a right to compensation for the capital im- provement to the extent of the value of the concessioner’s leasehold surrender interest in the capital improvement. (2) PLEDGE AS SECURITY.—A leasehold sur- render interest may be pledged as security for financing of a capital improvement or the ac- quisition of a concession contract when ap- proved by the Secretary pursuant to this sub- chapter. (3) TRANSFER AND RELINQUISHMENT OR WAIVER OF INTEREST.—A leasehold surrender interest shall be transferred by the concessioner in connection with any transfer of the concession contract and may be relinquished or waived by the concessioner. (4) LIMIT ON EXTINGUISHING OR TAKING INTER- EST.—A leasehold surrender interest shall not be extinguished by the expiration or other ter- mination of a concession contract and may not be taken for public use except on payment of just compensation. (5) VALUE OF INTEREST.—The value of a leasehold surrender interest in a capital im- provement shall be an amount equal to the initial value (construction cost of the capital improvement), increased (or decreased) by the same percentage increase (or decrease) as the percentage increase (or decrease) in the Con- sumer Price Index, from the date of making the investment in the capital improvement by the concessioner to the date of payment of the value of the leasehold surrender interest, less