The National Park Service recently released an updated schedule for release of prospectuses for concession operations through the end of 2016. The prospectuses intended to be issued include solicitations for contracts for food and beverage, retail, and parking operations at Mount Rushmore National Memorial, ferry services at Fort Sumter National Monument, and river trips at Glen Canyon National Recreation Area. The National Park Service also reported that it plans to release prospectuses for new operations in Indiana Dunes National Lakeshore, Channel Islands National Park, Haleakala National Park, and Jefferson Expansion National Memorial.
Archives for September 2015
The U.S. Forest Service recently agreed to pay $530,000 to the Pennsylvania Oil and Gas Association for attorneys’ fees it incurred in a lawsuit challenging an agreement between the Forest Service and two environmental groups. The agreement banned drilling while the Forest Service conducted an environmental impact statement (EIS) pursuant to the National Environmental Policy Act. The industry group successfully demonstrated that the ban on drilling exceeded the Forest Service’s authority and a federal judge overturned the agreement.
The Association recovered attorneys’ fees pursuant to the Equal Access to Justice Act, which allows eligible entities, based on their size and net value, to recover attorneys’ fees if the government’s position was not substantially justified. Attorneys’ fees are limited to maximum hourly rates set under the statute. The court action was initially filed in 2009 and also involved an appeal to the U.S. Court of Appeals for the Third Circuit, which upheld the district court’s ruling in January of 2015.
The incumbent concessioner at Yosemite National Park, DNC Parks & Resorts, filed a lawsuit against the National Park Service for damages resulting from NPS’s alleged breach of its concession contract. In the lawsuit, DNC claimed that its current contract with NPS required any successor concessioner to purchase and pay for certain property which DNC owned and used in connection with its concession operations at Yosemite National Park. DNC further alleged that, when NPS selected a new concessioner for the succeeding contract, Aramark, NPS breached its contract with DNC by not requiring Aramark to purchase certain items of DNC’s property. The items included DNC’s “fixed capitalized assets” and its “intangible property,” which consisted of DNC’s registered and unregistered trademarks, servicemarks and logos used in its concession operations. DNC stated that this property included its Half-Dome logo design and “The Awhanee” [sic] hotel name, as well as other marks.
DNC also alleged that NPS made a material change to the terms of the proposed new contract after selecting Aramark for award of the contract when NPS did not require the successor concessioner to purchase all of DNC’s property. The new contract also required the successor to transfer all such property to NPS at the end of the contract at no cost. DNC asserted that it would have submitted a “materially more attractive” proposal for the new contract had the new contract not required the successor to transfer this property to NPS at no cost.
DNC is seeking an unspecified amount of damages pursuant to the lawsuit. DNC stated that its damages include the dollar amounts it would have received from Aramark for the property at issue had Aramark been required to purchase it.
A small outfitter/guide company located outside Grand Teton National Park is continuing with its efforts to have an illegal award of two NPS concession contracts overturned. The company, Eco Tour Adventures, Inc., previously prevailed in demonstrating that the award of the contracts by NPS to its two incumbent concessioners was in violation of the law. NPS had found that Eco Tour’s proposals were in fact the best ones it received. However, NPS nonetheless went ahead with the award, claiming that the law required it to award the contracts to its preferred incumbent concessioners because they had a right of preference to any new contract. A federal court subsequently held that NPS was under no such obligation, but NPS proceeded with the awards to Jackson Hole Mountain Resort Corporation and another company nonetheless.
Eco Tour also demonstrated that, when NPS awarded the two contracts to its preferred incumbents, it failed to require those companies to match many parts of its better proposal. These elements included reduced fuel emissions by its vehicles. NPS took the position that reduced fuel emissions was not a material part of the concession operations and thus it would not require its preferred incumbents to match this better aspect of Eco Tour’s proposal.
The matter is currently pending before a federal judge in Washington, D.C.
The National Park Service recently sent to Congress proposed legislation entitled the National Park Service Centennial Act. However, NPS has inserted a provision in that proposed legislation which could potentially result in all of the rules currently applicable to its concession program being totally eliminated. Under Title VIII of the proposed legislation, NPS has proposed a new method for awarding and administering concession contracts which could result in NPS simply deciding to whom it wants to award a concession contract. In addition, NPS could potentially have complete discretion to do as it sees fit with no court oversight.
The proposed legislation would create a Visitor Services Management Authority (VSMA) which would have the authority to award concession contracts and create unenforceable bylaws, policies and procedures for this award process. However, because the proposed legislation contains no objective standards or guidelines as to how these awards will occur, the actions of the NPS in awarding concession contracts will likely be unreviewable in any court of law. The same could apply to NPS’s administration of concession contracts unless the actions constituted a breach of the contract’s terms. This outcome would be due to a court potentially invoking the general principle that the absence of any objective standards in a statute means that the court has no ability to determine if an agency violated the statute. As a result, NPS would be free to exercise its discretion, i.e., do as it wants, in any situation regardless of whether any concessioner believes it acted unfairly or improperly.
The draft legislation is confusing in that it appears to be an alternative process to the existing NPS Concessions Management Improvement Act of 1998 for awarding and managing concession contracts. If so, NPS would potentially be able to assert that its award of a particular concession contract was being made pursuant to the authority in the new legislation. In that event, the rules and requirements set out in the NPS Concessions Management Improvement Act of 1998 as well as NPS’s existing concession regulations would not apply.
Because of this potential problem, the specific relationship between the draft legislation and the NPS Concessions Management Improvement Act of 1998 needs to be clarified. To avoid the elimination of the existing rules regarding the award of concession contracts, the new legislation would also need to state that it does not supplant or provide NPS with the ability to evade the legal requirements set out in the NPS Concessions Management Improvement Act of 1998 and its implementing regulations. If not, the proposed legislation would need to include the same safeguards and requirements as set out in the current concessions statute.