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.