[Federal Register Volume 60, Number 35 (Wednesday, February 22, 1995)]
[Notices]
[Pages 9855-9857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3676]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
National Park Service
Notice of Publication of Final Sample Prospectus and Related
Guidelines
AGENCY: National Park Service, Interior.
SUMMARY: The National Park Service published notice to rescind Chapter
6, 7, 8 and 11 of NPS-48 (``The Concessions Guidelines'') Thursday,
March 17, 1994 requesting comments at that time on the replacement
document ``Sample Prospectus and Related Guidelines.'' The document
includes among other matters, a sample prospectus for solicitation of
offers for National Park Service concessions contracts and permits,
related evaluation guidelines and application information and criteria.
As an internal staff manual, notice of the Sample Prospectus and
Related Guidelines is not required to be published in the Federal
Register nor was public comment required yet to assure that the view of
all interested parties were considered, the National Park Service
sought public comment on its Sample Prospectus and Related Guidelines
document and considered all comments received and amend the document if
it is so warranted. The 60-day comment period has expired, and the
public interest would not be served in further delay of the effective
date of this document.
General Comments
Only two entities responded to the publication of the notice with
comments.
One commenter suggested that we withdraw this proposal until the
Senate and House Finalize new legislation on Concession Management in
the Parks. The public would not be served to consider this alternative
as there exists a large backlog of NPS concession contract renewals
which are necessary to complete to allow the commencement of major
renovation and construction programs in areas of the nation park
system, including improvements necessary to protect the health and
safety of park visitors and NPS and concessioner employees. In
addition, many concessioners are now operating under the terms of
expired contracts and are accordingly, in need of contract renewal
actions as soon as possible to permit business planning, actions and
investments which require the existence of a new contract for
implementation. It is also noted that the Sample Prospectus and Related
Guidelines document is intended to provide guidance to NPS personnel
concerning possible means to implement new policies and procedures
adopted in the new NPS concession contracting regulations and new
standard language concession contract, both of which were adopted after
extensive public comment periods and consideration by NPS of all
comments received.
This commenter discussed some issues that relate to NPS concession
contracting regulations which were amended by NPS in furtherance of the
objective of the Secretary's concession reform initiative. These
issues, Possessory Interest, Compensation, Government Improvement and
Capital Improvement accounts * * *are not further discussed here as
they were the subject of extensive public comment in the adoption of
the amended regulations and standard contract language. The amended
regulations were published in final in the Federal Register on
September 3, 1992 (57 FR 40496) and the Final revision of the Standard
Contract Language was published in the Federal Register on January 7,
1993 (58 FR 43140).
This commenter cautioned that in the preparation of the Prospectus
there are two items listed for the Appendix which related to existing
possessory interest and suggest that care be taken to be sure that the
incumbent be aware of the value established by the present law. They
propose that values supplied by [[Page 9856]] the incumbent
concessioner would reflect a more accurate assessment of the
compensation required, rather than the use of an outside consultant or
NPS estimate of this value. NPS acknowledges that the incumbent is
entitled to compensation as outlined in a previous contract but that
the terms of that contract allow for negotiation between parties, and
should they be unable to reach a compromise, an arbitration process for
the final determination of that compensable value as purchased by a new
offeror.
The commenter expresses concern on the arbitration process utilized
to resolve these disputes and states that an incumbent concessioner
should not be expected to relinquish his or her rights to legal
adjudication of the issue through the courts should it become
necessary. NPS does not recognize this as a valid issue in this process
as the procedure to settle these issues will not vary from established
practice with the enforcement of the final regulations or standard
contract language utilized herein.
The commenter acknowledged that the Concessions Management section
of the prospectus had some excellent statements but that the
``partnership'' between NPS and the concessioner needs to be
emphasized. They later note that this is emphasized in the contract
language. NPS in designing the package took careful steps to avoid
repetition in placing information in the prospectus and the contract as
they are part of a complete presentation. The proposed contract is
included in the package to illustrate the importance of all contract
requirements.
Recent changes in the Utilities program as it relates to capital
investments were commended.
Concern was expressed regarding the requirement that all
concessioners comply with federal, state and local laws. NPS has made
this a requirement of all contracts since the labor legislation was
enacted. They described the problems recently encountered with the
Department of Labor in a case in Nevada involving operations that fall
under the Fair Labor Standards Act and the Contract Wage and Hours
Standards Act. The Department of Labor has been asked to address this
problem but as of yet, they have not issued a decision. This is a non-
issue as it relates to this process.
Financial programs and practices were discussed as they relate to
the law governing the concessions management program. They state that
the NPS statement regarding Fair Return for the Operator appears
misunderstood and misapplied. On Page 13 of the prospectus, it states
that ``it is the responsibility of the offeror to assure itself that
the terms of its offer provide it a reasonable opportunity for
profit''. The commenter states that while they understand that the
concessioner ultimately determines by his business practices whether he
will realize a profit, the whole intent of the statement in the law is
that NPS should realize that its policies could prevent that profit
from being realized if they were onerous and confiscatory. NPS makes
this statement in the Prospectus to caution the offeror that the terms
of an offer being presented must be realistic and achievable allowing a
reasonable opportunity for profit. Other devises in the contract such
as amendments, franchise fee reviews and arbitrations allow for
adjustments necessitated through economic changes, policy review and
revision.
A comment was made on the section entitled ``The Park Area and Its
Mission'' regarding the planning documents and maintenance and
operating plans for the park that are applicable. They note that plans
are only as good as the commitment of those involved to carry out its
terms and that no plans can be successful relating to the concession
and operations and visitor services unless they involve the
concessioner for meaningful input at the time of formulation. It is the
standard practice of NPS to involve consultants versed in the type of
operation proposed during the planning process. As the practice of
awarding the contract for the operation of these facilities is a
competitive process, completed at a future date, the actual
concessioner cannot be involved in this pre-planning as the contract
has not been executed. It is important that the planning, maintenance
and operation documents be included in the prospectus so that an
offeror can make an informed offer, taking the long and short term
requirements into consideration.
The commenter discussed the need for flexibility in the term of the
contract; Government Improvement and Capital Improvement accounts;
Compensation and Possessory interest. These were issues for comment
during the review of the Standard Contract Language and Final Rule for
Concession Operations. These comments do not apply to this process.
The proposed application was questioned as it related to the
alternatives presented for concessioner entitlement to present contract
language on the Preference of renewal. NPS included the alternatives as
a guide for future use of this sample. The issue of contract language
change was addressed during the review period of that subject and does
not apply to this process.
The commenter states that the proposed Application seems
inconsistent with the statement that the financial contributions are
secondary selection factors, when in fact, additional weight in the
scoring process is clearly outlined here for more generous
contributions to both the Government and Capital Improvement Accounts
and the amount paid in Franchise Fees. They question that if the
factors are secondary, why should they be given additional weight? NPS
in considering an offer, requires that all the primary factors are met
before the secondary factors are considered. In this way, should all
offerors satisfy the requirements of the primary factors, there can be
a means of determining a better offer by utilizing the secondary
factors.
A second commenter expressed concern in regards to removing the
possibility of incorporating a numerically-weighted system into the
proposed evaluation process. NPS feels that a numerically-weighted
system would not allow the flexibility required to deal with the
diverse operations it manages. Due to the diversity of the operations,
specifically stated criteria are designed for each application that
address the unique needs of the park and visitor. A numerically-
weighted system must be standardized to be effective, and the diversity
of the operations for which concessioners are solicited could not be
handled in this manner. The narrative system presents in clear and
concise language the exact reasons that the panel would choose one
offeror over another. There is no guarantee with a numerically-weighted
system to insure that the offer being presented is the best overall
offer. Should there become a need to present the reasons for selection
at a later time, the justification for a decision based on a
numerically-weighted system is not easily presented.
The Sample Prospectus and Related Guidelines document is intended
to be only a sample document. It is not meant to be a document which
must be used as written in every instance. It is to be modified as
appropriate to fit the needs of individual situations. Further, this
document is expected to be modified and refined over time as experience
indicates that changes are needed and to meet the changing needs of the
concession contracting program.
EFFECTIVE DATE: February 22, 1995.
FOR FURTHER INFORMATION CONTACT: Robert Yearout, Chief, Concessions
Division, National Park Service, [[Page 9857]] Washington, D.C. 20013-
7127. Telephone: (202) 343-3784.
Dated: February 3, 1995.
Maureen Finnerty,
Associate Director, Operations.
[FR Doc. 95-3676 Filed 2-21-95; 8:45 am]
BILLING CODE 4310-70-M