Outfitter Challenges NPS’ Allocation Of Oversnow Vehicle Access Abandoned By Prior Concessioner

An outfitter who unsuccessfully bid on several concession contracts authorizing oversnow vehicle access in Yellowstone National Park is challenging the National Park Service’s method for distributing the access under one of those concession contracts which had been awarded to another outfitter who later abandoned its contract.  NPS decided to allocate the access under the abandoned contract to the other concessioners who had been awarded contracts, rather than issue a contract to the disappointed bidder or issue a new prospectus.  The outfitter alleged that NPS had acted illegally and sought an emergency order from the court directing NPS to award the abandoned contract to the outfitter for this current winter season.  The court denied the request for emergency relief based on its view that the outfitter was not likely to succeed based on the court’s preliminary review of the matter, but the case is now proceeding forward for a more thorough review by the court.

The outfitter alleged that it had initially heard rumors that one of the concession contracts had been abandoned and that the access under the contract had been provided to other concessioners.  NPS, however, was not forthcoming with any details as to the situation.  The outfitter then filed its lawsuit, alleging that NPS had improperly distributed the access to the other concessioners and should have awarded the abandoned contract to the outfitter.

In response, NPS confirmed what the outfitter believed had occurred.  NPS, however, asserted that it had discretion to dole out the access to other concessioners because it was a minor adjustment to those concessioners’ existing contracts and the agency did not have to initiate a new competition.  The court agreed, stating that the situation appeared to be merely an amendment to existing concession contracts, which are authorized.  The court, however, noted that the outfitter may be able to “ultimately develop a stronger argument” showing that the amendments were sufficiently material to violate the law.  The court further held that, as to the proper relief it could grant, the outfitter had not shown why it should be granted the contract if in fact a new contract should have been issued.