US Code
SUBCHAPTER II— COMMERCIAL VISITOR SERVICES
§ 101913. Award of concession contracts

(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.
(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 notice of its availability at
least once in local or national newspapers or trade publications, by
electronic means, or both, as appropriate; and
(ii)
make the prospectus available on request to all interested
persons.
(3)
Information to be included in
prospectus.—
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 existing concession 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 that may be provided in a
proposal.
(D)
Facilities and services to be provided by the Secretary to the
concessioner, including public access, utilities, and buildings.
(E)
An estimate of the amount of compensation 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 proposed 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 proposed concession contract held by an existing 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 investment 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 Secretary 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 resources of the System unit and of providing necessary and
appropriate facilities and services to the public at reasonable rates.
(C)
All proposals fail to meet mimimum 
1
1 So in original. Probably
should be “minimum”.
requirements or are rejected.—
If all proposals submitted to the Secretary 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)
Terms and conditions materially amended or
not incorporated in contract.—
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 proposed
material amendments or changes are considered appropriate by the Secretary,
the Secretary shall resolicit offers for the concession 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 consider 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 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 the 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 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 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 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 submit 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 Resources of the House of
Representatives and the Committee on Energy and Natural Resources 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 renewals of the categories of
concession contracts described by paragraph (8), subject to the requirements
of that paragraph.
(C)
Entitlement to award of new
contract.—
A concessioner that successfully exercises a preferential right of
renewal in accordance with the requirements of this subchapter shall be
entitled to award of the proposed 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), concession contracts that solely
authorize the provision of specialized backcountry outdoor 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
activity.
(ii)
Subject to subparagraph (C), concession contracts with anticipated
annual gross receipts under $500,000.
(B)
Outfitting and guide concessioners.—
(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 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 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 predecessor before the subject
land was incorporated into the System;
(II)
the Secretary determines that the concessioner has operated
satisfactorily during the term of the contract (including 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 receipts of
less than $500,000.—
A concessioner that holds a concession 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); and
(ii)
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).
(9)
New or additional services.—
The Secretary 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 necessary and appropriate for public use and
enjoyment of the unit of the National Park System in which they are located and
are consistent to the highest practicable degree with the preservation and
conservation of the resources and values of the unit. Such new and additional
services shall not represent a material change to the required and authorized
services as set forth in the applicable prospectus 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 contract or to
establish its terms and conditions in furtherance of the policies expressed in
this subchapter.
(11)
Exceptions.—
Notwithstanding this section, the Secretary may award, without public
solicitation, the following:
(A)
Temporary contract.—
To avoid interruption of services to the public at a System unit, the
Secretary may award a temporary concession contract or an extension of an
existing concessions contract for a term not to exceed 3 years, except that
prior to making the award, the Secretary shall take all reasonable and
appropriate steps to consider alternatives to avoid the interruption.
(B)
Contract in extraordinary
circumstances.—
The Secretary may award a concession contract in extraordinary
circumstances where compelling and equitable considerations require the
award of a concession contract to a particular party in the public interest.
Award of a concession contract 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 Committee on Energy and Natural
Resources of the Senate and the Committee on Natural Resources of the
House of Representatives.