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

The Secretary^* must use concession contracts to let a person, corporation, or other entity provide accommodations, facilities, and services to park visitors — except where this subchapter or another law says otherwise. Concession contracts are awarded following eleven rules.

(1) Competitive selection process. Except where this section says otherwise, the Secretary awards every proposed concession contract to whoever submits the best proposal, judged through a competitive process. That process must include simplified procedures for small, individually owned businesses.

(2) Solicitation of proposals. Except where this section says otherwise, before awarding a new concession contract — including a renewal or extension of an existing one — the Secretary must publicly ask for proposals. As part of that solicitation, the Secretary must prepare a prospectus (a document describing the opportunity) and publish notice that it's available, at least once, in local or national newspapers or trade publications, electronically, or both. The Secretary must also make the prospectus available to anyone who asks for it.

(3) Information to be included in prospectus. The prospectus must include: the minimum requirements for the contract (described in paragraph (4)); the terms of any existing contract for the same services and facilities, including all fees paid to the United States; other facilities or services a bidder may propose to add; what the Secretary itself will provide the concessioner, like access, utilities, and buildings; an estimate of what a new concessioner would owe an outgoing one under the old contract's terms; how much weight each selection factor will carry; any other information the Secretary decides bidders need to submit competitive proposals; and, if it applies, a description of any preferential right of renewal^* an existing concessioner holds under paragraph (7).

(4) Consideration of proposals. No proposal can be considered if it fails the Secretary's minimum requirements, which must always include: the lowest acceptable franchise fee or other payment to the government; any facilities, services, or capital investment the concessioner must provide; and whatever measures are needed to protect, conserve, and preserve the unit's resources. The Secretary must reject any proposal — no matter how high its fee — if the bidder isn't qualified or likely to provide satisfactory service^*, or if the proposal doesn't meet the goals of protecting resources and providing needed services at reasonable rates. If every proposal submitted fails the minimum requirements or gets rejected, the Secretary must set new minimum requirements and restart the competitive process. And the Secretary cannot sign a contract that materially changes, or leaves out, the terms and conditions promised in the prospectus; if a change is genuinely needed, the Secretary must ask for new proposals that include it.

(5) Selection of the best proposal. In picking the winner, the Secretary must weigh: how well the proposal serves the goals of protecting resources and providing services at reasonable rates; the bidder's experience and track record providing similar services; the bidder's financial strength; and the franchise fee offered — though revenue to the government always matters less than protecting resources and serving the public at reasonable rates. The Secretary may also weigh other secondary factors. And when writing regulations for this subchapter, the Secretary must consider whether plans to employ Indians and Native Alaskans, and to involve Indian- or Native Alaskan-owned businesses, should count as a selection factor.

(6) Congressional notification. If a proposed contract is expected to bring in more than $5,000,000 a year, or last more than 10 years, the Secretary must send it to the House Committee on Natural Resources and the Senate Committee on Energy and Natural Resources. The Secretary cannot award that contract until at least 60 days after notifying both committees.

(7) Preferential right of renewal. As a general rule, the Secretary cannot give a concessioner a preferential right to renew its contract, or any other kind of preference — except for the specific category of contracts described in paragraph (8), where the Secretary must grant that preference. A concessioner that successfully uses this preferential right is entitled to be awarded the new contract.

(8) Outfitter and guide services and small contracts. The preferential right in paragraph (7) applies only to two kinds of contracts: specialized backcountry outdoor recreation guide services — which require specially trained and experienced guides to accompany visitors in the backcountry to provide a safe and enjoyable experience for visitors who otherwise may not have the skills and equipment to engage in that activity — and contracts expected to bring in less than $500,000 a year. An outfitting or guide concessioner (offering things like river running, hunting, fishing, horseback riding, camping, or mountaineering) gets the preferential right only if: its contract doesn't give it any ownership interest, including a leasehold surrender interest or possessory interest, in capital improvements on federal land — unless that improvement was built under a contract before November 13, 1998, or was built or owned by the concessioner or its predecessor before the land became part of the System^*; the Secretary finds it has operated satisfactorily, including during any extension; and it submits a responsive proposal meeting the paragraph (4) minimum requirements. A concessioner whose contract is expected to earn less than $500,000 a year if renewed gets the same preferential right if the Secretary finds it operated satisfactorily and it submits a responsive, minimum-requirements-meeting proposal.

(9) New or additional services. The Secretary may amend an existing concession contract's terms to add new services, if the Secretary decides they're necessary and appropriate for public use and fit with preserving the unit's resources. But this can't amount to a material change to the services already required or authorized in the prospectus or contract.

(10) Authority of secretary not limited. Nothing in this subchapter limits the Secretary's authority to decide whether to issue a concession contract at all, or to set its terms and conditions, in keeping with this subchapter's policies.

(11) Exceptions. Despite everything above, the Secretary may award two kinds of contracts without any public solicitation. First, a temporary contract or extension — of no more than 3 years — to avoid an interruption in visitor services, but only after taking all reasonable steps to consider alternatives that would avoid the interruption. Second, a contract awarded in extraordinary circumstances, where compelling and fair considerations require giving the contract to a particular party in the public interest; this kind of award can't happen until at least 30 days after the Secretary publishes notice of the plan and its reasons in the Federal Register, and notifies the Senate and House committees.