# Petition for Writ of Certiorari — National Park Hospitality Association v. Department of the Interior > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0589%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 538 U.S. 803 ## Text meme Cour, US, ~ t '; > i No. OFFICE OF THE OLERK Jn the Supreme Court of the Gnited States NATIONAL PARK HOSPITALITY ASSOCIATION, Petitioner, V. UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL. Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit PETITION FOR A WRIT OF CERTIORARI KENNETH S. GELLER Counsel of Record RICHARD B. KATSKEE DAVID M. GOSSETT Mayer, Brown, Rowe & Maw 1909 K Street, NW Washington, DC 20006 (202) 263-3000 Counsel for Petitioner 02 196 Aue 62002 |.) QUESTION PRESENTED Whether the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613, applies to contracts between the National Park Service and private parties for the development, operation, and maintenance of concessions, such as restaurants, lodges, and gift shops, in the national parks. i as es il RULE 14.1(b) STATEMENT In addition to the National Park Hospitality Association, plaintiffs/appellants in the court of appeals (in four consoli- dated cases) were Amfac Resorts L.L.C. (since renamed Xanterra Parks and Resorts L.L.C.), ARAMARK Sports and Entertainment Services, Inc., and Hamilton Stores, Inc. In addition to the United States Department of the Interior, re- spondents are Gale Norton, Secretary of the Interior, Fran P. Mainella, Director of the National Park Service, and Dela- ware North Park Services, Inc. (which intervened as a defen- dant in this and one of the consolidated cases). RULE 29.6 STATEMENT The National Park Hospitality Association (“NPHA”) is a non-profit trade association that has no parent corporations or stock. The NPHA represents concessioncrs who operate con- cessions, such as restaurants, lodges, recreational services, and gift shops, in the national parks. TABLE OF CONTENTS Page QUESTION PRESENTED .............:c:scsccccececececoccesesesesecsseseeeses I RULE 14.1(b) STATEMENT .00.0.......cccccccccccccscsescscerseseevseseees li RULE 29.6 STATEMENT .............cccccccccesescecececcecersceseceeceeeees ii TABLE OF AUTHORITIES. ................cccccccceccccececesescsesessees iv ce l ET ae l STATUTORY AND REGULATORY PROVISIONS ES Ee l I aa 2 REASONS FOR GRANTING THE PETITION ................... 8 A. The Decision Below Is Clearly Incorrect And Is Contrary To The Views Of The Comptroller General And The Department Of Interior’s Own Board Of Contract Appeals. .............. 8 B. The Decision Below Creates A Conflict In The Circuits On Whether The Contract Disputes Act Applies To Concessions ae 16 C. The Issue Presented Here Is Of Substantial Practical Importance. ...............ccccccccccsseeeeseeeeeeeeereeeees 18 ee 21 (IIT) 1V TABLE OF AUTHORITIES Page(s) CASES Canadian Aviator, Ltd. v. United States, es Se cniteitnnnciciniininieticiiinmamniaainmmmrnaientinnagss 12 Grunley Constr. Co., ENGBCA No. 6327, 99-1 BCA § 30,138, 1998 WL 835156 (Nov. 20, 1998) ................ 11 Harry Pohl KG, ASBCA No. 51523, 01-1 BCA 7 31,329, 2001 ASBCA LEXIS 40 (Feb. 28, Home Entm't, Inc., ASBCA No. 50791, 99-2 BCA § 30,550, 1999 ASBCA LEXIS 126 (Aug. 23, STE serccsntenntsienaiiniiadinisniihnaniaitiniieiniitaiitiantantiaibsiaabisetianinians 20 J.E.M. AG Supply, Inc. v. Pioneer Hi-Bred Py ER 12 Libra Eng'g Inc., NASABCA Nos. 1182-17 et ai., 1984 WL 13526 (July 13, 1984) 200.0... ccceeeeeeeeeeeeee 11 Nat'l Park Concessions, Inc., IBCA No. 2995, 94-3 BCA § 27,104, 1994 WL 462401 (Aug. 18, 1994)....... 12 Niko Contracting Co. v. United States, 39 Fed. Cl. 795 (1997), aff'd, 173 F.3d 437 Ga, Gao. CD Ga recnctenscrcscssscccssnsicnsesvscsssssenseseces 11 Oroville-Tonasket Irrigation Dist. v. United States, 33 Fed. Cl. 14 (1995) .............-.0++ 4, 18, 20 Pound v. United States, No. 94-496C, slip op. (Fed. Cl. Aug. 30, 1996)...........-...c00s++ 15, 16, 20 R & R Enters., IBCA No. 2417, 89-2 BCA q 21,708, 1989 WL 27790 (Mar. 24, 1989)...............0-+- 12 er ie me + - Vv TABLE OF AUTHORITIES -— continued Page(s) Senor Tenedor, S.A. de C.V., ASBCA Nos. 48502 et al, 97-2 BCA 4 29,192, 1997 ASBCA LEXIS ED Cis BU connesnnsensnsnssemmmsemnennsnsessnemesemmnaente 20 Starfleet Marine Transp., Inc., B-290181, 2002 U.S. Comp. Gen. LEXIS 90 (July 5, Sirti icaasahiathdeteincasatipiueieniaiienatatteadeaiaaiaeininenbasatashriatiaiainiibi intact 14, 15 Stephen Sloan Marine Corp., B-234219, 89-1 eR 13 Total Med. Mgmt., Inc. v. United States, 104 F.3d 1314 (Fed. Cir. 1997)................... 16, 17, 18, 20 Total Procurement Services, Inc., B-255934.3, 1994 WL 450445 (Aug. 16, 1994) o.oo eccccecceeeeees 13 United States v. Rodgers, 466 U.S. 475 (1984) ..........cc0000+ 12 United States v. Utah Constr. & Mining Co., ET irtecrsennuunenebeninienmennnine 20 Watch Hill Concessions Inc., IBCA No. 5284-2000, 01-1 BCA 4 31,298, 2001 WL 170911 (Feb. 16 Ee eee Ee 12, 13 West Coast Copy, Inc.; B-254044.2, 1993 WL 476970 (Nov. 16, 1993) ..........c.ccccceesecesereeees 14 Yosemite Park & Curry Co. v. United States, $82 F.2d 552 (Ct. Cl. 1978)...............00..00.... 11, 16, 17, 18 YRT Services Corp. v. United States, 28 Fed. Cl. 366 Sissies erase etderientinaasiaaaia 13, 15 STATUTES, RULES AND REGULATIONS An Act to Establish a National Park Service, Oe + vi TABLE OF AUTHORITIES -— continued Page(s) SP OE consenenssennsnnnnnnennmmanmennerenenmnnnenieanins passim National Parks Service Concessions Policy Act, Pub. L. No. 89-249, 79 Stat. 969 (1965) ........0..0..... 2,5 ee 5 National Parks Omnibus Management Act of 1998, Pub. L. No. 105-391, 112 Stat. 3497 00. ee eceeeeeees 5 Ses UTI cintrinenementennnnmmnmnnneeemaieeneei passim eee Sir UNE cisdernsieeesventintenmnemnenstantenenncenmmemsiasts 6, 9,17 is Or ee cdinrecenseinsensernseenenmiantesemenitneninanentinnies 10 Ee l Competition In Contracting Act of 1984, Pub. L. 98-369, 98 Stat. 1175 (codified at 31 U.S.C. §§ 3551-3556, 41 U.S.C. § 253)... ce cececeeeeeee 13 I 15 ee ee I cerrettenetevsintcieinednmnmmanninnenniannmensnaien 15 ie EE cnasnrinnesrentnennsnenuninnenininnnnnemeienteaienn 12 ee 12 Contract Disputes Act, 41 U.S.C. § 601-613 ............... passim Op le 0 cciennsccnenieentansnernnesensnnenteneanemeincnss passim ey es Se crcnnnnsrennenanenmncenienen 3 ls Oe crmetgrerenncnnreneeemmeneeinimnnns 3 GD ie Oe cneeesnnnemnnnmemene 3, 7,13 GB ie Oe crrneerrememnrsinienmenginenens 4,13 RR APT LA a 4 Se ee eee vil TABLE OF AUTHORITIES — continued Page(s) Concession Contracts, 64 Fed. Reg. 20,630 (April 17, 2000) (codified at 36 C.F.R. pt. 51)........ 4, 5,6 8 Re 2, 6, 7, 12 Standard Concession Contract, 65 Fed. Reg. 26,052 (May 4, 2000).............ccccccsseeeeeeeeeeeees 6,9, 10 MISCELLANEOUS aie incited iaeectleaniniiins 3 C. Kipps, T. KINDNESS, & C. HAMRICK, The Contract Disputes Act: Solid Foundations, Magnificent System, 28 PuB. CONT. L.J. 585 (1999) .............000 19, 20 Encourage Contracting Out of Federal Services: A Legislative Hearing on H.R. 3832, The Services Acquisition Reform Act of 2002 (SARA), Before the Subcomm. on Technology and Procurement Policy, House Comm. on Gov't Reform, 107th Oe 18 S. REP. No. 89-765, 1965 U.S.C.C.A.N. 3489.........:cccccseeeees 5 S. REP. No. 95-1118, 1978 U.S.C.C.A.N. Fae ceserensnimnaserteeennmemenseenennuennsemmmenneonmeenans 3, 19, 21 - ~~ ame PAE tens Mw tm PETITION FOR A WRIT OF CERTIORARI Petitioner, the National Park Hospitality Association (“NPHA”), respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-34a) is reported at 282 F.3d 818. The Memorandum Opinion of the district court addressing the issue before this Court (App., infra, 35a-92a) is reported at 142 F. Supp. 2d 54. Other opin- ions issued by the district court are reported at 143 F. Supp. 2d 7 and 150 F. Supp. 2d 96. JURISDICTION The judgment of the court of appeals was entered on March 1, 2002, and a timely petition for rehearing was de- nied on May 8, 2002 (App., infra, 93a-94a). The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). STATUTORY AND REGULATORY PROVISIONS INVOLVED Section 3(a) of the Contract Disputes Act of 1978, 41 U.S.C. § 602(a), provides: (a) Unless otherwise specifically provided herein, this chapter applies to any express or implied con- tract (including those of the nonappropriated fund activities described in sections 1346 and 1491 of Ti- tle 28) entered into by an executive agency for — (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair or maintenance of real property; or, 2 (4) the disposal of personal property. 36 C.F.R. § 51.3 provides in relevant part: A concession contract (or contract) means a binding written agreement between the Director [of the Na- tional Park Service] and a concessioner entered un- der the authority of this part or the [National Park Concessions Policies Act of 1965, Pub. L. No. 89- 249] that authorizes the concessioner to provide cer- tain visitor services within a park area under speci- fied terms and conditions. Concession contracts are not contracts within the meaning of 41 U.S.C. 60] et seq. (the Contact Disputes Act) and are not service or procurement contracts within the meaning of statutes, regulations or policies that apply only to federal service contracts or other types of federal procurement actions. (second emphasis added). STATEMENT This case concerns the applicability of the Contract Dis- putes Act of 1978 (“CDA”) to concessions contracts, and in particular to contracts between the National Park Service (“NPS”) and the private concessioners who contract to pro- vide visitor services and to operate and maintain facilities in the national parks. The language of the CDA broadly covers all contracts entered into by a federal agency for the pro- curement of personal property, services, or the repair and maintenance of real property. Despite the CDA’s breadth, the NPS has asserted by regulation that the statute does not apply to its concessions contracts. In upholding that regulation, the District of Columbia Circuit disagreed with the Federal Cir- cuit’s interpretation of the CDA and ignored the views of the Department of the Interior’s own Board of Contract Appeals. Furthermore, the Comptroller General has specifically ques- tioned the D.C. Circuit’s reasoning. el el Eo A 3 As Congress recognized when it passed the CDA, “[h]ow [government] procurement functions has a far-reaching im- pact on the economy of our society and on the success of many major Government programs.” S. REP. NO. 95-1118, at 4, 1978 U.S.C.C.A.N. 5235, 5238. Given the importance of the CDA to government contracting — and the court of ap- peals’ cramped interpretation of the scope of this important federal statute — review by this Court is plainly warranted. 1. The Contract Disputes Act of 1978, Pub. L. No. 95- 563, 92 Stat. 2383, 41 U.S.C. §§ 601-613, on its face applies to all government contracts for “the procurement of services” or “the procurement of construction, alteration, repair or maintenance of real property.” 41 U.S.C. § 602(a)(2)-(3). The statute was designed to replace a system of dispute reso- lution procedures based on “[t]he predilections of different agencies” (S. REP. No. 95-1118, at 3) that was “often too ex- pensive and time consuming for the efficient and cost- effective resolution of small claims and, on the other hand, often fail{[ed] to provide the procedural safeguards and other elements of due process that should be the rights of litigants” (id. at 4). Thus, the CDA has “broad application in order to unify the diverse and often inconsistent procedures presently existing among the many procuring agencies.” Jd. at 17. The CDA “provides a fair, balanced, and comprehensive statutory system of legal and administrative remedies in re- solving Government contract claims.” /d. at 1; see also H.R. REP. No. 95-1556, at 5. Under the CDA, parties contracting with the government have a number of important procedural and substantive rights. The CDA establishes that all claims “relating to” a contract covered by the CDA are subject to the Act’s administrative dispute processes. See 41 U.S.C. § 605(a). Those processes provide contractors with neutral arbiters to review decisions reached by the agency’s contract- ing officer. In particular, the contractor has the choice either to appeal any decision to the agency’s “Board of Contract Appeals” (see 41 U.S.C. §§ 606, 607)) or to remove the mat- 4 ter to the Court of Federal Claims (see 41 U.S.C. § 609(a)(1)), which is statutorily required to review the agency’s decision “de novo” (41 U.S.C. § 609(a)(3)). Sub- stantively, a major advantage of the CDA over the hodge- podge of dispute-resolution schemes it replaced is that contractors are entitled to interest on any amount found due to them on their claims. See 41 U.S.C. § 611; Oroville- Tonasket Irrigation Dist. v. United States, 33 Fed. Cl. 14, 23 n.3 (1995). 2. The NPS was created in 1916 “to oversee our national parks and to ‘conserve the scenery and the natural and his- toric objects and the wild life therein and * * * provide for the enjoyment of the same.”” App., infra, 49a (quoting 16 U.S.C. § 1 (omission in original)). In the Act creating the NPS, “Congress authorized the Interior Secretary to ‘grant privileges, leases, and permits for the use of land for the accommodation of visitors’ to each of the ‘various parks, monuments, or other reservations’ under the Secretary’s au- thority.” App., infra, 2a (quoting An Act to Establish a Na- tional Park Service, ch. 408, 39 Stat. 595 (1916)). “[Pjrovid[ing] for the enjoyment” of the national parks (16 U.S.C. § 1) generally requires that visitors both be of- fered various services throughout the parks and be provided access to facilities, such as lodges, restaurants, and retail out- lets, where those services are delivered. Because the gov- ernment has been unable or unwilling to undertake on its own behalf the huge financial burdens and other responsibilities associated with the provision of these visitor services and facilities, throughout its history the NPS has relied on private concessions contractors to build, maintain, and operate its visitor-service facilities and to provide many of the other ser- vices that the public typically associates with a national park, such as outfitter and guide services. See App., infra, 49a (NPS has always “relied on private concessioners for the provision of ‘lodging, food, merchandising, transportation, outfitting and guiding, and similar activities.””) (quoting 64 5 Fed. Reg. 20,630 (Apr. 17, 2000)). The national parks con- cessions program, therefore, historically has been a partner- ship between the NPS and concessions contractors to develop and provide access to the national parks for the enjoyment of the public. Between 1916 and 1965, there was no specific statutory scheme governing the relationship between the NPS and the concessioners that contracted to provide visitor services in the national parks. In light of growing industry and govern- mental concern about the NPS’s concessions-contracting policies (see App., infra, 3a-4a), Congress enacted the Na- tional Park Service Concessions Policy Act (“1965 Act”), Pub. L. No. 89-249, 79 Stat. 969 (1965), to govern conces- sions contracts. The 1965 Act basically codified preexisting NPS concession policy. See S. REP. No. 89-765, 1965 U.S.C.C.A.N. 3489, 3489 (principal purpose of the 1965 Act was “to put into statutory form policies which * * * have heretofore been followed by the [NPS] in administering con- cessions”). Among other things, the 1965 Act afforded con- cessioners a preferential right of renewal for their concessions contracts (16 U.S.C. § 20d) and authorized the NPS to grant other specified contractual inducements for making investments in the national parks. See App., infra, 4a, 50a-5la. In exchange, “[c]loncessioners paid the govern- ment a franchise fee * * * for the privilege of operating on federal land.” Jd. at 4a. In 1998, Congress repealed the 1965 Act and passed a re- placement statute, the National Parks Omnibus Management Act of 1998 (“1998 Act”), Pub. L. No. 195-391, 112 Stat. 3497 (codified with certain exceptions at 16 U.S.C. §§ 5951- 5966). The 1998 Act altered various technical aspects of the system under which the NPS enters into private concessions contracts io provide visitor services in the national parks. The 1998 Act sought to further the mission of the national park system by protecting the parks for the future while ensuring that the agency continued to provide the appropriate “ac- 6 commodations, facilities, and services” that are “necessary and appropriate for public use and enjoyment.” See 16 U.S.C. § 5951(b)(1). In particular, the 1998 Act specified that the NPS “shall utilize concessions contracts to authorize a person, corporation, or other entity to provide accommoda- tions, facilities, and services to visitors to units of the Na- tional Park System.” 16 U.S.C. § 5952. The NPS has since issued regulations implementing the 1998 Act (see Concession Contracts, 65 Fed. Reg. 20,630 (Apr. 17, 2000) (codified at 36 C.F.R. pt. 51)), as well as a model “Standard Concession Contract” (65 Fed. Reg. 26,052 (May 4, 2000)). The regulations declare that: Concession contracts are not contracts within the meaning of 41 U.S.C. 601 et seq. (the Contact Dis- putes Act) * * *. 36 CFR. § 51.3. 3. In November and December 2000, the National Park Hospitality Association (“NPHA”), a non-profit trade asso- ciation that represents many concessioners who do business in the national parks, and three individual concessioners filed separate actions challenging aspects of the NPS regulations and Standard Concession Contract. Among other claims, the NPHA and the individual plaintiffs (collectively, “NPHA”) challenged 36 C.F.R. § 51.3 as being contrary to the CDA. The NPHA alleged that the regulation improperly excluded NPS concessions contracts from the CDA, despite (1) the CDA’s plain language, legislative purpose, and legislative history; (2) contrary decisions of the Federal Circuit and its predecessor (the Court of Claims); (3) contrary decisions of the Court of Federal Claims and the Department of Interior’s Board of Contract Appeals (“IBCA”); (4) the position taken by the NPS in at least one prior reported decision on a con- cessions-contract dispute; and (5) the obvious consequent ability, if the regulation were upheld, of virtually any agency to circumvent the CDA. ee ee ee ee ee 7 The cases were consolidated in the district court. On May 23, 2001, the court granted summary judgment in the NPS’s favor in most respects, and in particular held that the CDA does not apply to concessions contracts. See App., infra, 68a-72a. The district court acknowledged that in an NPS concessions contract “the government is receiving services” and “is contracting for the provision of amenities to the visi- tors of its national parks” (id. at 68a), thus fulfilling its statu- tory obligation to accommodate visitors (see generally 16 U.S.C. §§ 1, 5951). The court also acknowledged that “be- cause the concession contracts contain various terms relating to the stewardship of concession areas, * * * it can be said that the government is also bargaining for the maintenance of real property.” App., infra, 68a. Despite these conclusions, the court determined that the CDA is ambiguous as to whether it applies to concessions contracts. See id. at 68a- 69a. The court then afforded Chevron deference to the NPS and concluded that 36 C.F.R. § 51.3 was a permissible inter- pretation of the CDA. See App., infra, 70a. The court of appeals affirmed. At the outset, the court of appeals held that the district court’s rationale was erroneous: the NPS “does not administer the Contract Disputes Act, and thus may not have interpretative authority over its provi- sions.” App., infra, 27a.' Accordingly, the court of appeals agreed with the NPHA that the agency was not entitled to Chevron deference in its interpretation of the CDA. Never- theless, the court upheld the determination that the CDA does not apply to concessions contracts: The primary purpose of concessions contracts is to permit visitors to enjoy national parks in a manner consistent with preservation of the parks. 16 U.S.C. ' Congress explicitly granted authority to implement and inter- pret the CDA to the Administrator of the Office of Federal Pro- curement Policy, not to the Secretary of the Interior. See 41 U.S.C. § 607(h). 8 § 5951. That the government receives monetary compensation or incidental benefits from the con- cessioners’ performance is not enough to sweep these contracts into the ambit of the Contract Dis- putes Act. Id. at 29a. In the D.C. Circuit’s view, concessions contracts do not fall within the CDA because their purpose is to benefit “park area visitors,” rather than the government. /d. at 27a. REASONS FOR GRANTING THE PETITION The Contract Disputes Act was enacted both to standard- ize the federal government’s contracting policies and to en- sure that those who contract with the government receive fair treatment. The decision below that the CDA is inapplicable to government contracts that procure goods or services for the benefit of third parties, rather than for the government itself, cannot be squared with the plain language of the CDA and creates a gaping hole in the coverage of this important federal statute. In addition, the decision is in direct conflict with the decisions of the Federal Circuit and its predecessor, the Court of Claims, and has been rejected or questioned by the Department of Interior’s own Board of Contract Appeals and by the Comptroller General. Further review is plainly warranted. A. The Decision Below Is Clearly Incorrect And Is Contrary To The Views Of The Comptroller General And The Department Of Interior’s Own Board Of Contract Appeals. The D.C. Circuit’s construction of the Contract Disputes Act is demonstrably incorrect. The CDA on its face applies to any “express or implied contract” entered into by “an ex- ecutive agency” for “the procurement of” either “services” or the “construction, alteration, repair or maintenance of real property” (41 U.S.C. § 602(a)(2)-(3)), unless the CDA “spe- cifically provide[s]” otherwise. Jd. § 602(a). The NPS does * ON re OE a ee ; 9 not deny that concessions contracts are “contracts” and that it is an “executive agency,” nor does it claim that the CDA it- self specifically exempts these contracts. Thus, the NPS is left to assert that concessions contracts entail neither the pro- curement of services nor the procurement of construction, repair, or maintenance of real property. However, conces- sions contracts are manifestly of both these sorts. 1. The NPS plainly “procur[es] services” when it con- tracts with a concessioner. The NPS has a statutory duty to provide “accommodations, facilities, and services that nis . are necessary and appropriate for public use and enjoyment of the national parks. 16 U.S.C. § 5951(b)(1); see also 16 U.S.C. § 1. Rather than undertaking these tasks itself, the NPS discharges its statutory duty by procuring the services of contractors who, subject to pervasive regulation and supervi- sion by the agency, provide visitor services, staff park facili- ties, construct, maintain, and repair federally-owned structures, and perform related functions that promote the public’s use and enjoyment of the national parks. For exam- ple, under section 3(a)(1) of the Standard Concession Con- tract, 65 Fed. Reg. at 26,064, the NPS lists for each contract the “visitor services” that the concessioner “is required to provide * * * during the term of” the contract. Similarly, sec- tion 10(a) of the Standard Concession Contract provides that concessioners “shall be solely responsible . on repairs, housekeeping, and groundskeeping for onces- sion Facilities ar satisfaction of the Director.” Id. at 26,068-26,069. Plainly, the NPS is procuring these services from concessioners. That visitors to the national parks enjoy a benefit from concessioners’ actions in no way negates the obvious fact that the government has “procur[ed] services” — among oth- ers, the discharge of its statutory duty to accommodate the public (see 16 U.S.C. §§ 1, 5952) and the upkeep of its facili- ties within the parks. Thus, as the district court itself ac- knowledged, “the government is receiving services; it 1s 10 contracting for the provision of amenities to the visitors of its national parks” (App., infra, 68a). 2. The NPS is also typically “procur{ing] construction, alteration, repair, or maintenance of real property” by con- tracting with concessioners. By statute, all the real property that concessioner= construct or use in the national parks be- longs to the geversment, not to the concessioner. See App, infra, 20a; 16 U.S.C. § 5954(d). Concessioners are nonethe- less responsible for constructing, maintaining and repairing that property. For example, under section 9(a) of the Stan- dard Concession Contract, 65 Fed. Reg. at 26,068, conces- sioners “construct or install upon lands assigned to the Concessioner * * * those real property improvements that are determined by the [NPS] to be necessary and appropriate for the conduct by the Concessioner of the visitor services re- quired and/or authorized under [the contract].” Such real property “will immediately become the property of the United States.” /bid. Similarly, section 9(d) of the Standard Concession Contract requires concessioners to “undertake and complete” a “Concession Facilities Improvement Pro- gram,” the specifics to be detailed in each contract. Jbid. Section 6(g) makes concessioners responsible for weed and pest mauagement at concession facilities. Jd at 26,067. Fi- nally, as discussed above, section 10(a) provides that conces- sioners “shall be solely responsible for maintenance, repairs, housekeeping, and groundskeeping for all Concession Facili- ties to the satisfaction of the Director.” Jd. at 26,068-26,069. It is thus beyond question that the government is procuring construction, repair, and maintenance services — as the dis- trict court again recognized (App., infra, 69a). 3. The D.C. Circuit nonetheless held that concessions contracts are not subject to the CDA because “[t]heir func- tion is * * * to procure services or goods for” “park area visi- tors” rather than “for the government.” App., infra, 27a. This statement is both incorrect and irrelevant. 11 The court of appeals’ statement is incorrect because, as noted above, concessions contracts provide a “service” to the government by helping the NPS discharge its statutory obli- gation to accommodate visitors in their enjoyment of the na- tional parks. In addition, whoever might be said to “benefit” from the provision of goods and services in the national parks, it is beyond question that the government itself is the principal beneficiary of the concessioners’ contractual obligation to maintain and repair park facilities owned by the government. A contract to maintain and repair the E] Tovar Hotel at Grand Canyon National Park is no different in this respect than a contract to maintain and repair the John F. Kennedy Center for the Performing Arts (see Grunley Constr. Co., ENGBCA No. 6327, 99-1 BCA 4 30,138, 1998 WL 835156 (Nov. 20, 1998)) or the Smithsonian Museums (see Niko Contracting Co. v. United States, 39 Fed. Cl. 795 (1997), aff'd, 173 F.3d 437 (Fed. Cir. 1998) (table); Libra Eng'g Inc., NASABCA Nos. 1182-17 et al., 1984 WL 13526 (July 13, 1984)). Moreover, the court of appeals’ statement is irrelevant because nothing in the CDA suggests that that statute applies only to agency contracts that procure goods, services or maintenance of real estate “for the government.” App., infra, 27a. To the contrary, the CDA unambiguously covers ail procurement contracts entered into by government agencies, even those that may be said to benefit third parties. As the Court of Claims has observed, “{i]t is hoped that every Gov- ernment purchase ‘benefits the public’ in some way.” Yosem- ite Park & Curry Co. v. United States, 582 F.2d 552, 559 n.8 (Ct. CL. 1978) (emphasis in original). Indeed, given the pur- poses of the CDA — to standardize government contracting and to bring fairness to the government contracting process — it is hard to see why it would matter whether the goods, ser- vices, or property repair contracted for by the government principally benefit “park area visitors” rather than the gov- ernment itself. The court of appeals was not at liberty to add 12 limiting language to a statute that Congress intended to be broad and comprehensive. See J.E.M. AG Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 122 S. Ct. 593, 598 (2001); United States v. Rodgers, 466 U.S. 475, 480 (1984); Cana- — Lid. v. United States, 324 U.S. 215, 222 4. As the court of appeals acknowledged (App., infra, 28a-29a), the Department of the Interior’s own Board of Contract Appeals has long held that NPS concessions con- tracts are subject to the CDA and has specifically found that the portion of 36 C.F.R. § 51.3 exempting such contracts from the CDA is invalid. See Watch Hill Concessions Inc., IBCA No. 4284-2000, 01-1 BCA 431,298, 2001 WL 170911, at *6 (Feb. 16, 2001); Nat'l Park Concessions, Inc., IBCA No. 2995, 94-3 BCA 427,104, 1994 WL 462401 (Aug. 18, 1994); R & R Enters., IBCA No. 2417, 89-2 BCA § 21,708, 1989 WL 27790, at *32 (Mar. 24, 1989), aff'd on reconsideration, 89-3 BCA 4 22,043, 1989 WL 75890 (July 6, 1989). As the Board stated in Watch Hill, Congress could not have expressed itself more clearly to the effect that a// contract claims based on a valid contractual theory fall within the procuring * Nor was the court of appeals correct that coverage under the CDA requires the government to “commit[] to pay out government funds.” App., infra, 28a (internal citation and quotation marks omutted). CDA coverage explicitly does not depend on the expen- diture of appropriated funds. See 41 U.S.C. § 602(a). Thus, the CDA is different from most other procurement-related statutes, which are limited to appropriated-fund activities and therefore do not apply to NPS concessions contracts. (For example, the Davis- Bacon Act (40 U.S.C. § 276a et seq.) applies only to certain “con- tract[s] in excess of $2,000” (id. § 276a(a)), and the Service Con- tract Act (41 U.S.C. § 351 et seg.) applies to contracts “in excess of $2,500” (id. § 351(a)); neither statute applies to NPS conces- sions contracts.) 13 agencies’ jurisdiction under the Contract Disputes Act. This was essential to Congress’ design that all contract disputes be resolved according to the same set of procedures, beginning with the decision of the contracting officer. 2001 WL 170911, at *6 (emphasis added). Rather than follow these decisions by the expert IBCA (see 41 U.S.C. §§ 607(d), 609(a)(1)), the court of appeals re- lied on YRT Services Corp. v. United States, 28 Fed. Cl. 366 (1993). See App., infra, 28a. But YRT held only that another set of rules, the Federal Acquisition Regulations (“FAR”), do not apply to concessions contracts. In addressing the question of whether the FAR applied to concessions contracts, YRT analogized to the applicability of yet another federal contract- ing statute — the Competition in Contracting Act (“CICA”), Pub. L. 98-369, 98 Stat. 1175 (codified at 31 U.S.C. §§ 3551- 3556, 41 U.S.C. § 253) — which the YRT court opined did not apply to concessions contracts. See YRT, 28 Fed. Cl. at 392. In making this CICA-applicability analogy, however, the YRT decision offered no opinion about the applicability of the CDA. Even if YRT were relevant to this case, that decision was expressly based on the views of the Comptroller General, who administers the CICA. See 28 Fed. Cl. at 392 (citing Stephen Sloan Marine Corp., B-234219, 89-1 C.P.D. 4 435 (May 9, 1989)). But the Comptroller General since has clari- fied that YRT was based on a misunderstanding of his CICA jurisdiction. Thus, in adopting YRT’s “permits” analogy, the D.C. Circuit ignored the Comptroller General’s repeatedly- “permits,” but instead involve services for the agency and hence are subject to CICA.’ > See Total Procurement Services, Inc., B-255934.3, 1994 WL 450445 (Aug. 16, 1994) (“Where a license agreement or conces- 14 Underscoring the D.C. Circuit’s error, the Comptroller General just last month explained the distinction between NPS ‘permits” and NPS “contracts,” holding that NPS con- cessions contracts are “procurements” within its CICA juris- diction: [Where the award of a concession contract included the provision of numerous services to the govern- ment, which the agency might otherwise have had to purchase or perform itself, we found that the solici- tation involved a procurement of services. * * * On the other hand, * * * where the agency’s issuance of concession permits merely allowed entry by visitors into @ national park, and did not also include the provision of services to the government, we did not exercise jurisdiction. Starfleet Marine Transp., Inc., B-2901 81, 2002 Gen. LEXIS 90, at *14-15 (July 5, 2002). ee Indeed, the decision in Starfleet Marine considered and , rejected the D.C. Circuit’s reasoning in this very case: In reaching its conclusion and holding, the [D.C. Circuit] seems to have assumed that all concession contracts result in no more than “incidental bene- fits” to the government. In its brief discussion of this sion contract confers a benefit upon the government and furthers the function of an agency, we view the agreement or contract as one involving the procurement of property or services and there- fore subject to our bid protest jurisdiction.”); West Coast Copy Inc.; B-254044.2, 1993 WL 476970, at *4 (Nov. 16, 1993) (“Where the government invites private vendors to compete for a business opportunity, the performance of which will produce a benefit to the government (such as a reduction in the government agency's own workload or some other support of the agency's mis- sion), — necessary to invoke our [CICA] jurisdiction are 15 issue, the court also appears to have assumed that the primary purpose of a contractual transaction makes it exclusively a sale or a procurement. In our opinion, the court’s view that a concession contract cannot also involve the procurement of property or services within the meaning of CICA does not take into account the specific facts of each situation. Id. at *16-17." 5. Finally, we note that when it was to the government’s advantage to do so, the Department of Justice itself argued that the CDA applies to concessions contracts. See Pound v. United States, No. 94-496C (Fed. Cl. Aug. 30, 1996); App. infra, 95a-100a. The concessions contract at issue in Pound was to operate a marina on land owned by the Army Corps of Engineers. See id. at 98a. The government argued that the CDA applied to that concessions contract under, among other subsections, 41 U.S.C. § 602(a)(3), which covers government contracts for the repair or maintenance of real property. See Defendant’s Motion To Dismiss Or, In The Alternative, For Summary Judgment Upon Count I Of The Complaint And Motion For Summary Judgment Upon Counts II And III And Defendant’s Counterclaim, at 10-11 (Apr. 28, 1995), re- ‘ Although the Comptroller General’s reasoning is persuasive evidence that the CDA applies to NPS concessions contracts, we agree with the NPS that the CICA in fact does not apply to such contracts. The CICA applies to “contract(s] for the procurement of or services” (31 U.S.C. § 3551(1)(A)), which, as the Comptroller General notes, are also contracts within the scope of the CDA. See Starfleet Marine, 2002 U.S. Comp. Gen. LEXIS, at *16 n.10. Like the CDA, the jurisdiction of the CICA “does not turn on whether appropriated funds are involved.” Jd. at *12. But the CICA, unlike the CDA, on its face “does not encompass pro- curement procedures which are otherwise expressly authorized by other statutes” (YRT, 28 Fed. Cl. at 392-393 (citing 41 U.S.C. § 253(a)(1))), such as the 1998 Act. 16 printed at App., infra, 100a. The government contended that the CDA was applicable because the concessioner con- structed structures on and maintained the marina, in much the same way that NPS concessioners construct structures on and maintain NPS concessions.” In sum, both the D.C. Circuit’s decision limiting cover- age of the CDA to contracts that “procure services or goods for the government” (App., infra, 27a (emphasis added)) and its determination that NPS concessions contracts fail to meet that test are contrary to the plain language and purpose of the statute and are inconsistent with the views of expert agencies. The NPS plainly procures both “services” and the “construc- tion, alteration, repair or maintenance of real property” (41 U.S.C. § 602(a)(2)-(3)) in its concessions contracts. B. The Decision Below Creates A Conflict In The Circuits On Whether The Contract Disputes Act Applies To Concessions Contracts. The court of appeals’ construction of the Contract Dis- putes Act cannot be squared with the decision of the Federal Circuit in Total Medical Management, Inc. v. United States, 104 F.3d 1314, 1320 (Fed. Cir. 1997), and of the Federal Circuit’s precursor — the Court of Claims — in Yosemite Park & Curry Co., 582 F.2d 552. Total Medical Management involved agreements be- tween the military and a private health care company to pro- vide medical services to military dependants at an army hospital. As here, the government argued that the agreements were not subject to the CDA “because they are not procure- ment contracts for the benefit of the government,” but instead “are solely for the benefit of the military dependents who re- 5 The Court of Federal Claims in Pound did not address substan- tively the applicability of the CDA, noting instead that the parties agreed that the Act applied. See Pound v. United States, No. 94- 496C, slip op. at 1 n.1, 10 n.2 (Fed. Cl. Aug. 30, 1996). 17 ceive the medical care.” See Total Med. Mgmt., 104 F.3d at 1320. The Federal Circuit rejected that argument, explaining that, “since it is clear that the government has legal obliga- tions to military dependents and benefits by obtaining said dependents’ care at a reduced cost,” the agreements were procurement contracts subject to the CDA. Jbid. In precisely the same way, the NPS has statutorily de- fined legal obligations to provide the visiting public with food, lodging, and other services in the national parks, and it has elected to discharge those duties by procuring them from concessioners rather than by furnishing them directly. See 16 U.S.C. §§ 1, 5951, 5952. See generally pages 4-6, supra. The decision below — that the CDA does not apply to NPS concessions contracts because their function is to “authorize third parties to provide services” rather than “to procure ser- vices or goods for the government” (App., infra, 27a) - is totally at odds with the Federal Circuit’s view of the CDA in Total Medical Management. Indeed, the NPS itself convinced the Court of Claims that concessions contracts fall within the reach of certain gov- ernment procurement statutes such as the CDA. In Yosemite Park & Curry Co., the concessioner argued that NPS conces- sions contracts were exempt from such statutes. The NPS disputed that assertion, and the court agreed with the agency. As the court explained, NPS concessions contracts will be covered by procurement statutes — assuming other statutory requirements are met — because the NPS cannot “avoid nor- mal, legally mandated, procurement procedures” by “charac- teriz[ing] the procurement of * * * services for the public as the granting of a ‘concession’ to a specific contractor.” Yo- semite Park & Curry Co., 582 F.2d at 558. As the court ex- plained, [P]laintiff’s attempted argument that a “concession” purchase is somehow different from a normal pur- chase because a concession contract “benefits the 18 public” should * * * be accorded little weight. It is hoped that every Government purchase “benefits the public” in some way. Id. at 559 n.8 (emphasis in original).° Despite the fact that the NPHA expressly relied on Total Medical Management, Yosemite Park & Curry Co., and Oro- ville-Tonasket in its briefs (see Br. Pls.-Appellants at 52, 54; Reply Br. Pls.-Appellants at 28), the court below never men- tioned, much less attempted to reconcile, these conflicting decisions. Certiorari is plainly warranted to resolve this sig- nificant split of authority. C. The Issue Presented Here Is Of Substantial Practical Importance. . This Court’s review is essential because of the practical importance of the issue presented. The government contracts to purchase more than $220 billion in goods and services each year. See Encourage Contracting Out of Federal Ser- vices: A Legislative Hearing on H.R. 3832, The Services Ac- quisition Reform Act of 2002 (SARA), Before the Subcomm. on Technology and Procurement Policy, House Comm. on Gov't Reform, 107th Cong. (Mar. 7, 2002) (statement of An- gela B. Styles, Administrator for Federal Procurement Pol- icy, at 1). This case has implications not only for NPS * The Court of Federal Claims - the court to which Congress has conferred jurisdiction over CDA claims (see page 4, supra) — has also held that the CDA applies to concessions contracts indistin- guishable from NPS concession contracts. See, e.g., Oroville- Tonasket, 33 Fed. Cl. at 22 (concluding that contract to manage a dam providing irrigation involved both “procurement of services” and procurement of “construction, alteration, repair or maintenance of real property” for purposes of CDA because contractor operated and maintained federally-owned facility, thus fulfilling responsi- bilities assigned by Congress to Secretary of Interior). 19 concessions contracts, but also for a significant portion of all government procurement contracts. As Congress explained in enacting the CDA, How procurement functions has a far-reaching im- pact on the economy of our society and on the suc- cess of many major Government programs. Both can be affected by the existence of competition and quality contractors — or by the lack thereof. The way po‘ential contractors view the disputes-resolving system influences how, whether, and at what prices they compete for Government contract business. S. REP. No. 95-1118, at 4. “Prior to the CDA, the ‘system’ for resolving federal contract disputes can best be described as a mess.” C. Kipps, T. Kindness, & C. Hamrick, The Con- tract Disputes Act: Solid Foundations, Magnificent System (“Solid Foundations”), 28 PuB. CONT. L.J. 585, 585 (1999). Thus, the CDA was passed with the express purposes of standardizing government contracting systems and providing contractors with an independent method to adjudicate dis- putes, thus freeing them from “[t]he predilections of different agencies.” S. REP. No. 95-1118, at 3. The CDA has been a great success, hailed as “a remark- able milestone in the field of government contracts for sev- eral reasons, including the fact that it lifted the disputes process out of the discretionary realm of agency clauses and placed the process squarely within a fixed statutory frame- work.” Solid Foundations, supra, at 591. The CDA has “worked exceedingly well” for the past two decades. Id. at 585. In the sole previous instance when the courts signifi- cantly limited the scope of the CDA — by proclaiming restric- tive rules for “certifying” a claim — Congress eventually stepped in to overrule that cramped interpretation. See id. at 592-595. Rather than rely on Congress, in this instance the Court should grant certiorari to resolve the confusion in the circuits over the coverage of the CDA and to correct the 20 lower court’s unduly narrow reading of the statute. Cf. United States v. Utah Constr. & Mining Co., 384 U.S. 394, 400 (1966) (Court granted certiorari “because of the impor- tance of [questions about the coverage of government con- tract disputes clause] in the administration of government contracts”). The decision below — exempting government contracts that benefit third parties from the scope of the CDA — un- . dermines the CDA’s goals of consistency and external ac- countability and threatens a return to the messy system of yesteryear, when “contractors were caught in an irrational patchwork system that limited their access to court, failed to provide adequate due process protections, and often resulted in substantial delays.” Solid Foundations, supra, at 587. As Total Medical Management, Oroville-Tonasket, and Pound demonstrate, the NPS is far from unique in relying on con- cessions contracts to fulfill significant portions of its statu- tory mission.’ The decision below could affect all such concessions contracts. Even uncertainty about whether con- cessions contracts include the protections of the CDA is, from the perspective of a contractor, almost as bad as not having such protections at all. Yet the D.C. Circuit’s amor- phous “benefits-third-parties” exception makes it difficult or impossible for agencies and contractors alike to determine whether a specific contract is covered by the CDA, or if in- . Stead its benefits inure to third parties to such an extent that the CDA does not apply. The decision below also creates an incentive for agencies that would rather not expose their contracting decisions to a ” See also, e.g., Harry Pohl KG, ASBCA No. 51523, 01-1 BCA 4 31,329, 2001 ASBCA LEXIS 40 (Feb. 28, 2001); Home Entm’t, Inc., ASBCA No. 50791, 99-2 BCA 430,550, 1999 ASBCA LEXIS 126 (Aug. 23, 1999); Senor Tenedor, S.A. de C.V., ASBCA Nos. 48502 et al., 97-2 BCA 4 29,192, 1997 ASBCA LEXIS 150 (Aug. 15, 1997). 21 neutral arbiter to design their contracting programs in such a way that the CDA would not apply. Because it could be ar- gued that any government service contract benefits the per- sons served—even if fulfilling a statutory mandate — the unifying protections and procedures afforded to a large per- centage of government contracts could unravel quickly. Finally, the decision below has significant implications for the mm rortin of the Nation’s national parks. Under the regulation at issue, NPS concessioners are denied neutral hl biters in any dispute they may have with the NPS, which “in- fluences how, whether, anc at what prices they compete for Government contract business.” S. REP. No. 95-1118, at 4. The lack of protection afforded by the CDA will damage the public-private partnership that long has served visitors to the national parks and fulfilled the statutory mandate of 16 U.S.C. § 1 (see pages 4-5, supra), in ways that may signifi- cantly undermine the public’s ability to enjoy these national treasures. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH S. GELLER Counsel of Record RICHARD B. KATSKEE DAVID M. GOSSETT Mayer, Brown, Rowe & Maw 1909 K Street, NW Washington, DC 20006 (202) 263-3000 AUGUST 2002 APPENDIX la APPENDIX A United States Court of Appeals, District of Columbia Circuit. AMFAC RESORTS, L.L.C., Appellant, Vv. UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., Appellees. Nos. 01-5223, 01-5226, 01-5229 and 01-5233. Argued Nov. 6, 2001. Decided March 1, 2002. Rehearing and Rehearing En Banc Denied May 8, 2002. _ Before: RANDOLPH and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge RANDOLPH. RANDOLPH, Circuit Judge: These are four consolidated cases on appeal from the judgment of the district court sustaining regulations of the National Park Service governing concession contracts in the National Park System. Many of the issues are tied to the his- tory of the National Park System and the functions conces- sioners perform in the operation of the parks. The history begins with the discovery of “Old Faithful” and the other natural wonders of what is now Yellowstone National Park. In 1872, Congress withdrew the land at the headwaters of the Yellowstone River from “settlement, occu- pancy, or sale,” thus creating the first national park in the United States. Act of Mar. 1, 1872, ch. 24, § 1, 17 Stat. 32. See also AUBREY L. HAINES, YELLOWSTONE NATIONAL PARK: ITS EXPLORATION AND ESTABLISHMENT (1974). Not everyone had been enthusiastic about the plan to create Yel- 2a lowstone National Park. A local newspaper editorial worried that “the effect of this measure will be to keep the country a wilderness, and shut out, for many years, the travel that would seek that curious region if good roads were opened through it and hotels built therein.” HAINES, supra, at 127 (quoting the HELENA DAILY HERALD of Mar. 1, 1872). In the final legislation, Congress responded by authorizing the Sec- retary of the Interior to lease portions of the park for “the erection of buildings for the accommodation of visitors.” 17 Stat. 33. As the United States withdrew more areas from the pub- lic domain, it continued to favor the interests of park visitors. In creating the National Park Service in 1916, Congress au- thorized the Interior Secretary to “grant privileges, leases, and permits for the use of land for the accommodation of visitors” to each of the “various parks, monuments, or other reservations” under the Secretary’s authority. An Act to Es- tablish a National Park Service, ch. 408, 39 Stat. 595 (1916). In the view of the first director of the Park Service, Stephen Mather: “Scenery is a hollow enjoyment to a tourist who sets out in the morning after an indigestible breakfast and a fitful sleep in an impossible bed.” Dennis J. Herman, Loving Them to Death: Legal Controls on the Type and Scale of Devel- opment in the National Parks, 11 STAN. ENVTL. L. J. 3, 3 (1992). During its first thirty years, the Park Service followed in- ternal regulations and policies governing concessioners and their obligations to park visitors and to the national park lands. The government also offered financial inducements to private contractors to convince them to provide and operate facilities in what were often remote locations. See Park Concession Policy: Hearings Before the Subcomm. on Na- tional Parks of the House Comm. on Interior and Insular Af- fairs, 88th Cong. 5-8 (1964) [hereinafter Park Concession Policy Hearings] (letter from John A. Carver, Jr., Assistant Secretary of the Interior). 3a For our purposes the most significant of these incentives was a preferential right of renewal, which “contemplated that every existing contract covering public operations [in the na- tional parks] will be renewed at the expiration thereof, pro- vided, of course, that full and satisfactory service to the public had been given thereunder.” Memorandum for the Acting Under Secretary, U.S. Department of the Intenor (Aug. 10, 1940). When the Interior Department sought to change its policies and withdraw some of these financial in- centives in the late 1940s, the concessioners and some in Congress balked. See H.R. RES. 66, 8lst Cong. (1950), by the Comm. on Public Lands and included in H.R. REP. No. 81-3133, at 5-6 (1950). In response, the Secretary announced new guidelines for concession contracts and pre- served many of the existing financial incentives for conces- sioners, including the preferential right of renewal. Jd. at 4-5. The House Committee on Public Lands passed a resolution endorsing these new guidelines, although the resolution of course had no legal effect. JNS v. Chadha, 462 U.S. 919 (1983). By the 1960s, other House committees started expressing doubt about the soundness of the Interior Department’s con- tracting policies, particularly the financial incentives it was giving concessioners. See HOUSE COMM. ON GOVERNMENT OPERATIONS, SURVEY OF SELECTED ACTIVITIES, H.R. REP. No. 88-306, pt. 3, at 4-12 (1963) (“The committee’s inquiry disclosed considerable weakness in the National Park Ser- vice’s operations in several matters involving concessioners in the national parks.”). When Congress considered the 1964 appropriations bill for the Department of the Interior, the House Committee on Appropriations recommended that “competitive bidding should be required for concession con- tracts, in lieu of the current practice of granting preferential ities to existing concessioners to negotiate new con- tracts.” DEPARTMENT OF THE INTERIOR AND RELATED 4a AGENCIES APPROPRIATION BILL, H.R. REP. No. 88-177, at 10 (1963). ; Concerned that “certain other committees that do not have junsdiction” had “attempted to get into the problem of concessions,” the House Committee on Interior and Insular Affairs produced a bill to “put into statutory form” the long- standing concessions policies of the Park Service, including the preferential right of renewal. H.R. REP. NO. 89-591, at 1 (1965); Park Concession Policy Hearings at 19. In 1965, these concession policies were enacted into law. See 111 CONG. REC. 23,632-48 (1965). Part of the legislation pro- vided that the “Secretary [of the Interior] shall ... giv[e] pref- erence in the reewal of contracts or permits and in the negotiation of new contracts or permits to the concessioners who have performed their obligations ... to the satisfaction of the Secretary.” National Park Service Concessions Policy Act, Pub. L. No. 89-249, § 5, 79 Stat. 969, 970 (1965), re- pealed by National Parks Omnibus Management Act of 1998, Pub. L. No. 105-391, § 415(a), 112 Stat. 3497, 3515. The preference gave “incumbent concessioners, upon renewal, the right to meet any better offer received” by the Park Service. U.S. DeEP’T OF THE INTERIOR, REPORT OF THE TASK FORCE ON NATIONAL PARK SERVICE CONCESSIONS 10 (1990). . The 1965 Act governed all concession contracts entered into by the Park Service. Concessioners paid the government a franchise fee, typically less than five percent of gross reve- nues, for the privilege of operating on federal land. If they used government-owned facilities they paid an additional fee. In 1998, after several aborted attempts, Congress re- pealed the preferential right of renewal and enacted other rules governing concession contracts. National Parks Omni- bus Management Act of 1998, 16 U.S.C. §§ 5951-5966. Plaintiffs are three companies who have current conces- sions contracts with the Park Service and an association of concessioners. They brought four separate actions challeng- Sa ing the Park Service regulations, issued in 2000, to imple- ment the 1998 Act. 65 Fed. Reg. 20,630 (Apr. 17, 2000) (to be codified at 36 C.F.R. pt. 51). The district court consoli- dated the four lawsuits, and granted summary judgment to the government on all of the claims save one (which has not been appealed to this court). Amfac Resorts v. United States Dep't of the Interior, 142 F. Supp. 2d 54 (2001). The first issue centers on the 1998 Act’s repeal of the statutory preferential right of renewal in § 5 of the 1965 Act. The 1998 Act provided that, except for small contracts and outfitter and guide services, “the Secretary shall not grant a concessioner a preferential right to renew a concessions con- tract.” 16 U.S.C. § 5952(7). A savings clause in the 1998 Act, § 415(a), states: “repeal of [the 1965 Act] shall not af- fect the validity of any concessions contract or permit entered © into under such Act, but the provisions of this title shall ap- ply to any such contract or permit except to the extent such provisions are inconsistent with the terms and conditions of any such contract or permit.” Pub. L. No. 105-391, § 415(a), 112 Stat. 3497, 3515 (1998). The Park Service interpreted the repealing and the sav- ings clauses in the following narrative regulation: § 51.102 What is the effect of the 1998 Act’s re- peal of the 1965 Act’s preference in renewal? (a) Section 5 of the 1965 Act required the Secretary to give existing satisfactory concessioners a prefer- ence in the renewal (termed a “renewal preference” in the rest of this section) of its concession contract or permit. Section 415 of the 1998 Act repealed this statutory renewal preference as of November 13, 1998. It is the final decision of the Director, subject to the right of appeal set forth in paragraph (b) of this section, that holders of 1965 Act concession 6a contracts are not entitled to be given a renewal pref- erence with respect to such contracts (although they may otherwise qualify for a nght of preference re- garding such contracts under Sections 403(7) and (8) of the 1998 Act as implemented in this part). However, if a concessioner holds an existing 1965 Act concession contract and the contract makes ex- press reference to a renewal preference, the conces- sioner may appeal to the Director for recognition of a renewal preference. (b) Such appeal must be in writing and be received by the Director no later than thirty days after the is- suance of a prospectus for a concession contract un- der this part for which the concessioner asserts a renewal preference. The Director must make a deci- sion on the appeal prior to the proposal submission date specified in the prospectus. Where applicable, the Director will give notice of this appeal to all po- tential offerors that requested a prospectus. The Di- rector may delegate consideration of such appeals only toa Deputy or Associate Director. The decid- ing official must prepare a written decision on the appeal, taking into account the content of the appeal and other available information. (c) If the appeal results in a determination by the Di- rector that the 1965 Act concession contract in ques- tion makes express reference to a _ renewal preference under section 5 of the 1965 Act, the 1998 Act’s repeal of section 5 of the 1965 Act was incon- sistent with the terms and conditions of the conces- sion contract, and that the holder of the concession contract in these circumstances is entitled to a re- newal preference by operation of law, the Director will permit the concessioner to exercise a renewal preference for the contract subject to and in accor- dance with the otherwise applicable night of prefer- 7a ence terms and conditions of this part, including, without limitation, the requirement for submission of a responsive proposal pursuant to the terms of an applicable prospectus. The Director, similarly, will permit any holder of a 1965 Act concession contract that a court of competent jurisdiction determines in a final order is entitled to a renewal preference, for any reason, to exercise a right of preference in ac- cordance with the otherwise applicable requirements of this part, including, without limitation, the re- quirement for submission of a responsive proposal pursuant to the terms of an applicable prospectus. 36 C.F.R. § 51.102 (2001). The Park Service thus will not recognize a preferential right of renewal for concessioners whose pre-1998 contracts are expiring, unless the contract expressly so provides. See 65 Fed. Reg. at 20,631-33. In the language of the savings clause of § 415(a), without such contractual “terms and con- ditions” it would not be “inconsistent” — as the Park Service sees it — to refuse to allow a preferential right of renewal. A typical concession contract runs for 15 or 20 years. REPORT OF THE TASK FORCE ON NATIONAL PARK SERVICE CONCESSIONS, supra, at 5. One of the plaintiffs, Amfac Re- sorts, L.L.C., had a 30-year contract for the Grand Canyon. A right of renewal for pre-1998 contracts is therefore a mat- ter of great interest to those holding these contracts. The concessioners say that the renewal provision of the 1965 Act represented an “entrenched policy”; that the policy was in- corporated by law as an unwritten term in every concession contract signed between 1965 and 1998; and that the Park Service regulation violates § 415 of the 1998 Act (the savings clause) because it allows a preferential right of renewal only if contracts before the 1998 Act expressly so state. 8a A. The concessioners’ argument in favor of an “implied” right of renewal initially rests on the “Christian doctrine,” named after G.L. Christian & Assocs., 312 F.2d 418, 424 (Ct. Cl. 1963). As they explain it, the doctrine requires “that longstanding and deeply-ingrained agency policies, such as the [Park Service’s] entrenched policy of granting conces- sioners renewal rights in exchange for concessioner invest- ments, form a mandatory part of all government contracts.” Brief for Appellants at 21. The Federal Circuit has, on occasion, concluded that cer- tain statutory or regulatory provisions may become part of a government contract even though the contract does not con- tain language to that effect. See S.J. Amoroso Constr. Co. v. United States, 12 F.3d 1072, 1075 (Fed. Cir. 1993); General Engineering & Machine Works v. O'Keefe, 991 F.2d 775, 779 (Fed. Cir. 1993). Our court has never adopted the Federal Circuit’s Chris- tian doctrine. Even if we did so, it would boot the conre¢s- sioners nothing. In describing the doctrine, they have omitted a crucial element. The Federal Circuit does not hold that significant or important federal policies “form part of government contracts even where absent from those con- tracts’ explicit text.” Brief for Appellants at 22. If that were the law, Congressional power to make adjustments in legisla- tion would be greatly constricted. Statutory provisions would live on as part of long-term contracts well after their repeal or modification. This is why, as the Supreme Court put it in Dodge v. Board of Education, 302 U.S. 74, 79 (1937), there is a “presumption” that “a law is not intended to create pri- vate contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise.” To this the Court added in Nat'l R.R. Passenger Corp. v. At- chison, Topeka & Santa Fe Ry., 470 U.S. 451, 465-66 (1985) [hereinafter Atchison]: “Policies, unlike contracts, are inher- 9a ently subject to revision and repeal, and to construe laws as contracts when the obligation is not clearly and unequivo- cally expressed would be to limit drastically the essential powers of a legislative body.” It is true, as the concessioners point out, that the holding of Atchison was that a statute did not itself create a contract. Reply Brief for Appellants at 12. But it is not true that the case is therefore “irrelevant.” Jd. The Court’s reasoning applies equally to claims, such as the concessioners’, that a statute (here the 1965 Act) created a contractual obligation in all contracts executed before its re- peal. See General Motors Corp. v. Romein, 503 U.S. 181, 190 (1992). One element of the Christian doctrine, the element miss- ing from the concessioners’ statement of the law, saves it from contradicting this line of Supreme Court authority. Ac- cording to the Federal Circui’, it is not enough that the legis- lative or regulatory provision is important or significant (assuming one could make such rankings). To constitute a contractual obligation even though not written in the con- tract, the provision must be a mandatory contract clause, a clause the legislation — or as in Christian, 312 F.2d at 424, the regulation — requires to be included in contracts. Thus, “a mandatory contract clause that expresses a significant or deeply ingrained strand of public procurement policy is con- sidered to be included in a contract by operation of law.” S.J. Amoroso Constr. Co. v. United States, 12 F.3d at 1075. And the Christian doctrine “applies to mandatory contract clauses which express a significant or deeply ingrained strand of public procurement policy.” General Engineering & Ma- chine Works v. O'Keefe, 991 F.2d at 779. The renewal provision contained in § 5 of the 1965 Act was by no stretch a mandatory contract term. The Secre- tary’s contracting authority was derived from a different part of the 1965 Act — § 3, which authorized the Secretary to “include in contracts” such “terms and conditions as, in h's judgment, are required to assure the concessioner of adequate 10a protection against loss of investment ... resulting from discre- tionary acts, policies, or decisions of the Secretary occurring after the contract has become effective....” § 3, 79 Stat. 969. Section 5 of the 1965 Act was of another sort. It stated that the Secretary “shall ... giv[e] preference in the renewal of contracts or permits....” § 5, 79 Stat. 970. Rather than leav- ing the matter to individual negotiations, §5 required the Secretary to grant a right of renewal to all concessioners, re- gardless of the terms of their individual concession contracts. The provision thus constituted “legislation which merely de- clares a state policy, and directs a subordinate body to carry it into effect.” Dodge v. Bd. of Educ., 302 U.S. at 78. We agree with the district court that if § 5 meant that the Secre- tary had to insert a preferential right of renewal clause in all concession contracts, one would have expected a direction, or at least an authorization, to this effect. 142 F. Supp. 2d at 72. There is none. It is possible that some parties nevertheless insisted on having a right of renewal written into their contracts and that the Secretary yielded. Possible, but not likely. The conces- sioners have identified no such contract and the Park Service is aware of none. 65 Fed. Reg. at 20,664. The Service’s standard-form concession contract, in effect from 1965 to 1998, contained no right-of-renewal clause. See 65 Fed. Reg. at 20,632. The regulation under the 1998 Act nevertheless allows for the possibility and, in compliance with the saving clause, states that if a concession contract contains an express right of renewal the Secretary will honor it. 36 C.F.R. § 51.102(c) (2000). Apart from the Christian doctrine, each of the conces- sioners maintains that the Park Service’s regulation is “fa- cially invalid because [it denies] altogether the possibility of implied contractual rights in individual cases” and prevents “any concessioner in a future proceeding from offering spe- | . : f 4 r | é | f i ‘ lla cific evidence of a bargained-for and mutually-agreed upon contractual renewal right. If even one concessioner has such evidence, the regulations denying those rights across-the- board are unlawful.” Brief for Appellants at 26, 27. In other words, although the regulation is valid as applied to dozens of concession contracts, it is invalid because of the possibil- ity that one concessioner might have an implied — that is, an unwritten — preferential right of renewal. The argument, aimed at the validity of the regulation on its face, does not accurately state the law. In United States v. Salerno, 481 U.S. 739, 745 (1987), the Supreme Court stated: A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of cir- cumstances exists under which the Act would be valid. The fact that the [statute] might operate un- constitutionally under some conceivable set of cir- cumstances is insufficient to render it wholly invalid, since we have not recognized an “over- breadth” doctrine outside the limited context of the First Amendment. Justice Stevens believes that only the second sentence of the Salerno excerpt states the governing principle for facial challenges. He and Justice Scalia have debated whether the first sentence from Salerno — what has become known as the “no-set-of-circumstances” test — is instead controlling. See City of Chicago v. Morales, 527 U.S. 41, 55 (1999) (plu- rality opinion by Stevens, J., joined by Justices Souter and Ginsburg); id. at 74-83 (Scalia, J., dissenting). See also Anderson v. Edwards, 514 U.S. 143, 155 n.6 (1995); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 318 (2000) (Rehnquist, C.J., joined by Justices Scalia and Thomas, dis- senting). For our part, we have invoked Salerno’s no-set-of- circumstances test to reject facial constitutional challenges. 12a See, e.g., James Madison Ltd., by Hecht v. Ludwig, 82 F.3d 1085, 1101 (D.C.Cir.1996); Chemical Waste Mgmt., Inc. v. EPA, 56 F.3d 1434, 1437 (D.C.Cir.1995); Steffan v. Perry, 41 F.3d 677, 693 (D.C.Cir.1994) (en banc). The facial attack on § 51.102 is not, of course, on the ba- sis that the regulation is unconstitutional. The claim is that § 51.102 conflicts with § 415 of the 1998 Act. In National Mining Ass'n v. Army Corps of Engineers, 145 F.3d 1399, 1407 (D.C.Cir.1998), we declined to adopt the Salerno test in a comparable case, stating that the “Supreme Court has never adopted a ‘no set of circumstances’ test to assess the validity of a regulation challenged as facially incompatible with gov- erning statutory law.” Our examination of Supreme Court precedent in National Mining apparently overlooked Reno v. Flores, 507 U.S. 292 (1993). There a class of alien juveniles, arrested on suspicion of being deportable and then detained pending deportation hearings, claimed that a regulation preventing their release except to close relative’ violated the Due Process Clause and conflicted with the underlying statute. The Court, speaking through Justice Scalia, described the case as involving only a facial challenge to the regulation and then held as follows: “To prevail in such a facial challenge, respondents ‘must es- tablish that no set of circumstances exists under which the [regulation] would be valid.’ United States v. Salerno, 481 U.S. 739, 745 (1987). That is true as to both the constitu- tional chalfienges, see Schall v. Martin, 467 U.S. 253, 268 (1984), and the statutory challenge, see [JNS v. National Cen- ter for Immigrants’ Rights, 502 U.S. 183, 188 (1991) [here- inafter NCIR]].” 507 U.S. at 301. See Public Lands Council v. Babbitt, 167 F.3d 1287, 1301 (10th Cir.1999) (applying the Reno v. Flores formulation to a statutory challenge to a regulation). Cf Pharmaceutical Research & Mfrs. v. Con- cannon, 249 F.3d 66, 77 (1st Cir.2001) (applying Salerno in a preemption case). See also Marc E. Isserles, Overcoming 13a Overbreadth: Facial Challenges and the Valid Rule Re- quirement, 48 AM. U. L. REV. 359, 405 (1998). When an intervening Supreme Court decision alters the law of the circuit, a panel of our court must follow the Court’s decision in all later cases. See, e.g., McKesson Corp. v. Islamic Republic of Iran, 52 F.3d 346, 350 (D.C.Cir.1995); National Treasury Employees Union v. FLRA, 30 F.3d 1510, 1516 (D.C.Cir.1994). But here the Supreme Court decision was not intervening; it was rendered before National Mining. Whether despite Reno v. Flores, National Mining therefore must stand as circuit law unless and until the full court over- rules it is a question unnecessary for us to answer. See LaShawn A. v. Barry, 78 F.3d 1389, 1395 (D.C.Cir.1996) (en banc). National Mining dealt only with the no-set-of- circumstances formulation of Salerno. It did not mention NCIR, the opinion cited in Reno v. Flores for the proposition that Salerno applied to statutory challenges. Justice Stevens, writing for the Court in NCIR, held: “That the regulation may be invalid as applied in some cases, however, does not mean that the regulation is facially invalid because it is with- out statutory authority.” 502 U.S. at 188. NCIR, without cit- ing Salerno, echoed in a non-constitutional setting the sentence in Salerno following the no-set-of-circumstances test — “The fact that the [statute] might operate unconstitu- tionally under some conceivable set of circumstances is in- sufficient to render it wholly invalid,” 481 U.S. at 745. See Janklow v. Planned Parenthood, 517 U.S. 1174 (1996) (memorandum of Stevens, J., on denial of certiorari). Either formulation — the no-set-of-circumstances test adopted from Salerno in Reno v. Flores, or the less strict NCIR standard — may pose potential problems for judicial review of agency regulations, especially in this circuit. Lack- ing a rulemaking record containing evidence relating to the rule’s application to a particular entity, petitioners ordinarily mount only facial attacks, often on the ground that the agency’s product conflicts with the statute. In such cases, the l4a consequence of upholding the regulation because it is not in- valid in all its applications (Reno v. Flores), or because it is invalid in only some of its applications (NCIR), may be that petitioners would have to make their challenge in another circuit and in another setting, in defense of an enforcement action for instance. Some of the statutes governing jurisdic- tion prescribe a specific time period for judicial review of regulations, restrict venue to our circuit, and may prohibit review outside the time period, except in limited circum- stances. See, e.g., Clean Air Act, 42 U.S.C. § 7607(b); Com- prehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9613(a); Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978); United States v. Ethyl Corp., 761 F.2d 1153 (Sth Cir.1985); Frederick Davis, Judicial Review of Rulemaking: New Pat- terns and New Problems, 1981 DUKE L.J. 279, 285-90. Al- though one court has held that the Clean Air Act, 42 U.S.C. § 7607(b), deprived it of jurisdiction to review EPA regula- tions when they are applied, see Potomac Elec. Power Co. v. EPA, 650 F.2d 509, 513 (4th Cir.1981), we have ruled that preclusion must be explicit for review to be barred in an en- forcement action, see Indep. Cmty. Bankers of Am. v. Bd. of. Governors of Fed. Reserve Sys., 195 F.3d 28, 34 (D.C.Cir.1999), and that even express preclusion may not operate when the issue would have been unripe during the period of statutory review. See Clean Air Implementation Project v. EPA, 150 F.3d 1200, 1204 (D.C.Cir.1998). Per- haps the congressional intent reflected in judicial review pro- visions such as § 7607(b) of the Clean Air Act may also demand adjustments in the Reno v. Flores or NCIR test for reviewing facial attacks on regulations, assuming the tests are not constitutionally compelled. See City of Chicago v. Morales, 527 U.S. at 77 (Scalia, J., dissenting). Whatever the outcome in such cases, the situation here is not comparable. Our circuit does not have exclusive jurisdic- tion over Park Service regulations, and judicial review is not 15a confined to a particular time period. Nothing would preclude a concessioner from bringing an action for a declaratory judgment that the regulation, as applied to the concessioner, deprives it of a contractual right in violation of the savings clause. In fact, one of the consolidated actions in the district court was such a suit. Amfac’s complaint alleged that its 1969 contract for the Grand Canyon was about to-expire, that the contract contained an implied preferential nght of re- newal arising “from the circumstances of the formation of the 1969 contract,” that the Park Service’s regulation denied the existence of such an implied term, and that the regulation as applied to Amfac therefore violated § 415 of the 1998 Act. Although § 51.102 may be valid on its face, this would not necessarily doom Amfac’s as-applied challenge. With this in mind, we return to the concessioners’ asser- tion that if “even one concessioner has [evidence showing an implied right of renewal], the regulations denying those rights across-the-board are unlawful.” Brief for Appellants at 27. We do not need to choose between Reno v. Flores or NCIR to dispose of that contention. Not even First Amend- ment overbreadth analysis — which embodies a far more dif- ficult standard for laws to satisfy than the one the Court formulated in Salerno — would render a law facially invalid because of the prospect of a single invalid application. An overbreadth attack will succeed only if the legislation is sub- stantially overbroad — that is, only if the law “reaches a sub- stantial number of impermissible applications.” New York v. Ferber, 458 U.S. 747, 771 (1982). That there might be one invalid application is therefore far from enough to make the regulation unlawful under any of the standards we have men- tioned. Perhaps recognizing as much, the concessioners assert that “some contracts might as a factual matter include the [renewal] right as a bargained-for term,” a “possibility” (de- spite obstacles posed by the parol evidence rule and perhaps statutes of fraud) they think is enough to render the regula- 16a tion unlawful. Brief for Appellants at 29. But far more is demanded before a regulation may be declared facially inva- lid. Under Reno v. Flores, § 51.102 must of course be sus- tained on its face because there are circumstances in which applying the regulation would not be inconsistent with § 415 of the 1998 Act. The regulation’s requirement of an express contract term, for instance, properly eliminates claims of an implied renewal right based on the Christian doctrine alone. Even under the more relaxed standard of NCIR, it is not enough that “some contracts might as a factual matter” con- tain an implied renewal night. To repeat, that “the regulation may be invalid as applied in some cases, however, does not mean that the regulation is facially invalid because it is with- out statutory authority.” NCIR, 502 U.S. at 188. We there- fore reject the concessioners’ facial attack on § 51.102. In reaching this result we have followed a course differ- ent than that of the district court. We should explain why. The district court thought the “lawfulness of the defendants’ regulations turns on whether the plaintiffs each have a con- tractual right to preference renewal.” 142 F. Supp. 2d at 71. With this we agree. We also agree — as our discussion of the Christian doctrine indicates — with the district court’s conclusion that the 1965 Act did not itself confer a contrac- tual renewal right on the concessioners. Jd. at 72. As to the concessioners’ allegations that they had an implied-in-fact contract embodying their nght of renewal, the court rejected these claims on the basis that “the administrative record pro- vides no indication that the parties had the mutual under- standing that the contract contained the renewal terms.” /d. at 73. (The court must have had in mind all existing conces- sion contracts, not just one.) The court added that the admin- istrative record “is wholly devoid of information suggesting that the [Park Service] intended the renewal term to be part of the contract.” Jd. But that is entirely understandable in light of the fact that the Park Service’s proposed rule dealing with nights of renewal did not contain the restriction requir- 17a ing the renewal right to be spelled out as an express term. See Concessions Contracts, 64 Fed. Reg. 35,516, at 35,535 (proposed June 30, 1999). The concessioners thus had no reason to submit evidence of implied renewal rights in each of their contracts, assuming this sort of evidence would have been allowed in the rulemaking proceeding or could have been mustered. Moreover, the Park Service never indicated that its final regulation rested on the district court’s rationale. See SEC v. Chenery, 332 U.S. 194, 196 (1947). After deny- ing that the right could be inferred from the 1965 Act, the Park Service explained that an implied renewal nght “is in- consistent with the express terms of almost all current NPS concession contracts,” 65 Fed. Reg. at 20,633. Most con- tracts, according to the Park Service, contained a provision along these lines: This Contract [or permit] and the administration of it by the Secretary shall be subject to the laws of Congress governing the Area and rules, regulations and policies whether now in force or hereafter en- acted or promulgated. Id. But that begs the question the concessioners posed here (and in the rulemaking, see Comments of the National Park Hospitality Ass’n at 23 (Oct. 14, 1999)). The savings clause of the 1998 Act is one of the “laws of Congress” to which this contractual provision refers. If a concessioner has an implied right of renewal in a pre-1998 contract, the savings clause preserves it. The Park Service does not deny the pos- sibility of an implied contractual provision — that is, an un- written one — in government contracts. See Willard L. Boyd, III & Robert K. Huffman, The Treatment of Implied- in-Law and Implied-in-Fact Contracts and Promissory Es- toppel in the United States Claims Court, 40 CATH. U. L. REV. 605 (1991); Michael C. Walch, Note, Dealing with a Not-so-Benevolent Uncle: Implied Contracts with Federal Government Agencies, 37 STAN. L. REV. 1367 (1985). The district court, quoting Hercules, Inc. v. United States, 516 18a U.S. 417, 424 (1996), summarized the law on the subject: an implied-in-fact contract requires a meeting of the minds, which may be inferred from the “conduct of the parties show- ing, in light of the surrounding circumstances, their tacit un- derstanding.” The concessioners alleged that there have been such meetings of the mind, at least in some instances. None- theless, we agree with the district court that the regulation is facially valid. As we explained earlier, the possibility that one or some concessioners had an implied-in-fact renewal right is not a sufficient basis for holding § 51.102 of the regu- lations invalid on its face. This still leaves the allegations in Amfac’s complaint that § 51.102 was inconsistent with the savings clause of the 1998 Act as applied to Amfac’s concession contract for the Grand Canyon. Complaint of Amfac Resorts at {J 21, 41. Amfac entered into that contract in 1969. The contract expired on December 31, 2001, after the district court’s judgment. Am- fac turned out to be the only offeror and so the government argues that its as-applied challenge to the right-of-renewal regulation is moot: “Amfac can have no ‘preference’ for [the Park Service] to consider when there are no other offerors.” Brief for Appellees at 33. Even if Amfac eventually won the Grand Canyon contract, a subject about which we are not in- formed, we do not believe its as-applied challenge would necessarily be moot. Amfac argues that because § 51.102 threw its alleged implied renewal right in doubt, it “was forced to bid more generously for the Grand Canyon contract than it otherwise would have.” Reply Brief for Appellants at 16. If this assertion can be proven, see Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), then Amfac continues to suf- fer an injury and the case is not moot. See Scheduled Air- lines Traffic Offices v. Dep't of Def., 87 F.3d 1356, 1358 (D.C.Cir.1996). Amfac can succeed in its claim that the regulation is inva- lid as-applied to its 1969 Grand Canyon contract only if it can prove the essential predicate — that the regulation, in 19a contradiction to the savings clause of the 1998 Act, deprived it of a contractual right. Amfac therefore should be allowed to adduce proof of its alleged implied right of renewal and should be permitted reasonable discovery to this end. The district court refused to allow any discovery on the ground that judicial review of the regulation must be confined to the administrative record, except in limited circumstances not presented here. 143 F. Supp. 2d at 10-13. See Am. Bankers Ass'n v. Nat’l Credit Union Admin., 271 F.3d 262, 266-67 (D.C.Cir.2001); Esch v. Yeutter, 876 F.2d 976, 991-92 (D.C.Cir.1989). We said in American Bankers, with respect to a claim that a regulation conflicted with a statute, that the court did not even need the administrative record to deter- mine the validity of the regulation. 271 F.3d at 266-67. But we were speaking there of a facial attack on the regulation. We agree with the district court’s denial of discovery to that extent. Amfac’s as-applied claim is another matter. Its evi- dence of an implied renewal right would not be presented to show what the Park Service did or did not consider in prom- ulgating § 51.102 of the regulations. It would be presented instead to show that the regulation would deprive it of a con- tractual right in contravention of the savings clause in the 1998 Act. In this respect, the evidence Ainfac proposes to adduce is akin to proof of its injury. Those challenging agency action must establish that they have standing and to do this, they must prove that the action causes injury to them. Lujan, 504 U.S. at 560-61. They are not confined to the ad- ministrative record. Far from it. Beyond the pleading stage, they must support their claim of injury with evidence. Jd. So here. In mounting an as-applied challenge to a regulation, whether in defense of an enforcement action or as here in an action for a declaratory judgment, the party making the chal- lenge may — indeed, in most instances must — present evi- dence outside the administrative record to show why its particular circumstances render the regulation unlawful. 20a We therefore reverse the district court’s grant of sum- mary judgment on Amfac’s as-applied challenge to the pro- spectus for concessions at the Grand Canyon National Park. In doing so, we recognize that one of the claims of another plaintiff, Hamilton Stores, Inc., might be construed as an as applied challenge similar to that of Amfac. Complaint of Hamilton Stores, Inc. at § 21. But the concessioners’ brief presents no argument to this effect; in fact, neither the con- cessioners’ brief nor their reply brief even mentions this por- tion of the Hamilton Stores complaint. We thus view the claim, which the district court rejected, as having been waived on appeal. See, e.g., Doe v. Dist. of Columbia, 93 F.3d 861, 875 n.14 (D.C.Cir. 1996) (per curiam). Il. A. The 1998 Act, as did the 1965 Act, recognized that the United States owns all capital improvements constructed on federal land within the National Park System. 16 U.S.C. § 5954(d). Nonetheless, the 1998 Act gave concessioners a “leasehold surrender interest” in any “capital improvement” the concessioner “constructs” “pursuant to a concession con- tract.” 16 U.S.C. § 5954(a). The Act defines “capital im- provement” as “a structure, fixture, or nonremovable equipment provided by a concessioner pursuant to the terms of a concession contract.” 16 U.S.C. § 5954(e). When the concession contract expires or is terminated, the incumbent is entitled to receive from its successor (or the government) the valve of this interest. 16 U.S.C. § 5954(c). The amount of each concessioner’s “leasehold surrender interest” — or, as the parties call it, LSI — is “equal to the initial value (con- struction cost of the capital improvement), increased (or de- creased)” by a percentage measured by the Consumer Price Index, less depreciation. 16 U.S.C. § 5954(a)(3). If the ex- piring concession contract is renewed, the concessioner’s LSI carries over. 16 U.S.C. § 5954(b). 2la The plaintiff-concessioners are unhappy with the Park Service’s regulations implementing these and other LSI pro- visions of the 1998 Act. They say that “‘capital improve- ment’ is a well-recognized technical accounting term that all companies, as a matter of financial reporting, tax accounting, and sound business practice use to distinguish upgrades to facilities from ordinary ‘repair and maintenance’ costs.” Brief for Appellants at 41. For support they cite an affidavit from an accountant submitted by Amfac in the district court. But the district court refused to consider, in this facial chal- lenge, affidavits not submitted as part of the administrative record, 142 F. Supp. 2d at 73, and so shall we. Concession- ers have not attempted to show why affidavits outside the agency record should be considered. See Steven Stark & Sarah Wald, Setting No Records: The Failed Attempt to Limit the Record in Review of Administrative Action, 36 ADMIN. L. REV. 333, 341-54 (1984). Still, we may acknowl- edge the standard accounting definition cf capital expendi- ture — an expenditure that extends the useful life of the asset or increases the asset’s value, and is not repair and mainte- nance. Whether an expenditure fits within the first category and thus must be depreciated or amortized, or the other cate- gory and thus must be expensed, often calls for difficult, fact- intensive judgments. See GLENN A. WELSCH & CHARLES T. ZLATKOVICH, INTERMEDIATE ACCOUNTING 443-46 (8th ed.1989); GARY L. SCHUGART, ET AL., SURVEY OF ACCOUNT- ING 197-212 (6th ed.1988); GLENN A. WELSCH & DANIEL G. SHORT, FUNDAMENTALS OF FINANCIAL ACCOUNTING 448-49 (5th ed.1987). As to tax accounting, which the concessioners invoke without any citation to the law, we think this is en- tirely beside the point. The tax code states that no deduction shall be allowed for “[a]ny amount paid out for new build- ings or for permanent improvements or betterments made to increase the value of any property or estate.” 26 U.S.C. § 263. In practice, there is a decided tilt to capitalizing many items because deductions are, as the Supreme Court put it in 22a INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992), “strictly construed.” That rule of interpretation, of course, has no bearing on whether a particular expenditure by a con- cessioner should be treated as an addition to its LSI. Besides, we do not understand what the concessioners see as the prob- lem here. The regulation of the Park Service repeats, word for word, the statute’s definition of “capital improvement.” Compare 16 U.S.C. § 5954(e) with 36 C.F.R. § 51.51. To the extent the concessioners are claiming that it was incum- bent upon the Park Service to add a gloss to the statutory definition, a gloss drawn from accounting standards, they are mistaken, as the district court held. See 142 F. Supp. 2d at 83. While agencies may have leeway in interpreting the stat- utes they administer, there is no rule of law compelling them to embellish what Congress has enacted. The concessioners also complain about § 51.67 of the regulations, 36 C.F.R. § 51.67, and the “Repair and Mainte- nance Reserve” in the Park Service’s “Standard Concession Contract,” 65 Fed. Reg. at 26,069. Section 51.67 provides that concessioners do not earn LSI “for repair and mainte- nance of real property improvements unless a repair and maintenance project is a major rehabilitation.” “Major reha- bilitation” is defined in 36 C.F.R. § 51.51 as a pre-approved “comprehensive rehabilitation” project the “construction cost of which exceeds fifty percent of the pre-rehabilitation value of the structure.” (The phrase “repair and maintenance” is not defined, in the regulations or in the 1998 Act.) The Stan- dard Concession Contract requires concessioners to establish a reserve fund for repairs and maintenance projects, which “may include repair or replacement of foundations, building frames, window frames, sheathing, subfloors, drainage, reha- bilitation of building systems such as electrical, plumbing, built-in heating and air conditioning, roof replacement and similar projects.” 65 Fed. Reg. at 26,069. The concessioners object that § 51.67 allows LSI only for “projects costing more than 50% of a structure’s replacement 23a costs....” 36 C.F.R. § 51.67. What types of “projects” they do not say. If the project is a “capital improvement” it is added to the LSI no matter what the cost of construction. See 142 F. Supp. 2d at 83. If the project is for repair and mainte- nance it does not qualify, as even the concessioners agree. The 50% regulation — § 51.67 — deals with the question whether an outlay that would otherwise be considered an ex- penditure for repair and maintenance should constitute a capital improvement because, for instance, the repairs are so extensive. How a particular project should be classified will depend greatly on the particular facts, as it does even in tax cases. See INDOPCO, Inc., 503 U.S. at 86. Nonetheless, the parties quarrel about hypothetical projects. The Park Service says that if a concessioner replaced a damaged dry wall or a rotted beam in a building these would not qualify as capital improvements and thus would not be included in the conces- sioner’s LSI. Brief for Appellees at 36; 65 Fed. Reg. at 20,656. The concessioners argue that the cost of replacing a hotel’s brick fireplace would be included. 142 F. Supp. 2d at 83. Replacement of a foundation, according to the conces- sioners, also would clearly be a capital improvement; accord- ing to the Park Service it would not qualify because a foundation is “merely a component of a structure,” rather than a “structure, fixture or nonremoveable equipment.” Compare Brief for Appellants at 44 with Brief for Appellees at 39. This last dispute arises because the repair and mainte- nance reserve clause in the standard contract mentions foun- dations. But all the clause says is that repair and maintenance “may” include repair or replacement of founda- tions. 65 Fed. Reg. at 26,069. The district court, after considering these arguments and others, thought it could not give a definitive answer to the issues thus posed. Echoing Reno v. Flores, 507 U.S. at 301, and NCIR, 502 U.S. at 188, without citing the cases, the court ruled as follows: “the Court cannot say that the regulation, on its face, will be unlawful in its every application. Thus, 24a this challenge to the regulation must fail.” 142 F. Supp. 2d at 85. The court was referring only to the concessioners’ attack on the “Repair and Maintenance Reserve” clause but we think its reasoning applies equally to the 50% rule in § 51.67. It is entirely possible that a project calling for repairs to a roof, the replacement of floor boards, the renovation of wir- ing and plumbing, and so forth would not ordinarily qualify as a “capital improvement.” Yet if the total cost of the repair project exceeded 50% of the pre-repair value of the structure it would be added to the LSI. See 36 C.F.R. §§ 51.51, 51.67. In that circumstance a concessioner would have no cause for complaint. On the other hand, if the rehabilitation project satisfied the statutory and regulatory definition of a “capital improvement” it would be unlawful for the Park Service to invoke § 51.67 and refuse to treat the expenditure as an addi- tion to the concessioner’s LSI. We do not suggest that the Park Service would do anything of the sort. See 65 Fed. Reg. at 20,656-57. Our point is that on the face of the regulations, the most we can imagine is that in some applications — de- pending on how the Park Service administers the LSI regula- tions — there may be a conflict with the statute. That is not a sufficient basis for holding the regulations unlawful on their face, for the reasons given in part I.B. of this opinion. The concessioners have two other problems with the LSI regulations. The first relates to 16 U.S.C. § 5954(a)(3) and the valuation of LSI: each concessioner’s “leasehold surren- der interest is equal to the initial value (construction cost of the capital improvement), increased (or decreased)” by a per- centage measured by the Consumer Price Index, less depre- ciation. The implementing regulation, 36 C.F.R. § 51.51, defines “construction cost” as “the total of the incurred eligi- ble direct and indirect costs necessary for constructing or in- stalling the capital improvement....” “Eligible direct and indirect costs” are costs “in amounts no higher than those prevailing in the locality of the project,” id. It is this “local- 25a ity” limitation to which the concessioners object. Projects in national parks, they tell us, are almost always more expen- sive to construct than “similar private projects in nearby lo- calities, and Congress could not reasonably have intended that concessioners swallow such costs without LSI credit,” a point the Park Service does not dispute. Brief for Appellants at 47-48. But as the Park Service points out, the concession- ers’ argument assumes that “locality” means outside the na- tional park. The regulations do not so state and we see no basis for indulging in that assumption. It may be that the Park Service’s particular interpretation regarding a particular project in a particular national park could unreasonably limit the valuation of a concessioner’s LSI. But that is no reason to hold that the regulation conflicts with the statute or that it is arbitrary. If a concessioner has its own construction com- pany, as some apparently do, nothing in the 1998 Act re- quires the Park Service to accept whatever amount the concessioner decides to charge itself for the construction work. See 65 Fed. Reg. at 20,651. Like the district court, we therefore sustain the regulation. The concessioners’ remaining problem with the LSI regu- lations deals with 16 U.S.C. § 5954(a)(5): if the conces- sioner “makes a capital improvement to an existing capital improvement in which the concessioner has a leasehold sur- render interest, the cost of such additional capital improve- ment shall be added to the then current value of the concessioner’s leasehold surrender interest.” Their claim is that § 51.65 of the regulations conflicts with this provision. The regulation states: A concessioner that replaces an existing fixture in which the concessioner has a leasehold surrender in- terest with a new fixture will increase its leasehold surrender interest by the amount of the construction cost of the replacement fixture less the construction cost of the replaced fixture. 26a 36 C.F.R. § 51.65. This regulation is unlawful, according to the concessioners, because there is nothing in the statute allowing subtractions from a concessioner’s LSI. They also believe the calculations required by the regulation would be an administrative nuisance. In the Grand Canyon concession, for instance, there are about 300 structures with many thou- sands of fixtures. The district court sustained the regulation for reasons given by the Park Service, reasons we also find persuasive. Without the regulation, concessioners would receive a wind- fall every time they removed a fixture and replaced it with a new one: - If a [concessioner] with a leasehold surrender inter- est in the hotel were to replace the hotel furnace once every five years for 15 years, the plaintiffs’ proposed accounting would be to increase the lease- hold surrender interest three separate times by the cost of the furnace. Under this approach, the [con- cessioner] would hold a leasehold surrender interest equal to four furnaces, even though the hotel would only contain one. 142 F. Supp. 2d at 88 n.16. As to the concessioners’ tex- tual argument, it is true that the statute speaks only of addi- tions not subtractions. But under the regulation the calculation is of net additions to LS] — the difference be- tween the cost of the new fixture and the discarded one. When concessioners replace fixtures for a greater cost, their LSI will increase. The regulation deals with how much the increase should be. The statute, which speaks in terms of additions not replacements, does not address that subject. We therefore reject the concessioners’ argument that § 51.65 of the regulations is inconsistent with 16 U.S.C. § 5954(a)(5). We reject as well their argument that the regulation is unrea- sonable. The Park Service’s policy of avoiding the windfalls that would result without the regulation is reason enough to 27a sustain § 51.65, despite the administrative burdens it may generate. Il. The concessioners claim the Park Service wrongly ex- cluded concessions contracts from coverage under the Con- tract Disputes Act, 41 U.S.C. § 601 et seg. See 36 C.F.R. § 51.3; 65 Fed. Reg. at 20,635. Enacted in 1978, the Contract Disputes Act provides an alternative forum for government contract disputes. Rather than seeking judicial relief in the Court of Federal Claims, a contractor may appeal decisions by a contracting official to an administrative board within that agency. 41 U.S.C. § 607. The board’s decision may be appealed to the U.S. Court of Appeals for the Federal Circuit. 41 U.S.C. § 607(g). Section 51.3 of the regulations states that concession con- tracts are not “contracts” within the meaning of the Contract Disputes Act. 36 C.F.R. § 51.3 (2000). With this we agree. The Act applies to any “express or implied contract” for the “procurement” of “property,” “services” or “construction.” 41 U.S.C. § 602(a)(2). A procurement contract, the Park Service reasoned, “is a contract for which the government bargains for, and pays for, and receives goods and services.” 65 Fed. Reg. at 20,635. Concession contracts are not of that sort. Their function is not to procure services or goods for the government. Instead, as the Park Service put it, conces- sion contracts “authorize third parties to provide services to park area visitors.” Jd. While the Park Service does not ad- minister the Contract Disputes Act, and thus may not have interpretative authority over its provisions, its reasoning finds support not only in the terms of that statute but also in the National Parks Omnibus Management Act of 1998, under which the Park Service may enter into concession contracts “to authorize a person, corporation or other entity to provide accommodations, facilities and services to visitors to” na- tional parks. 16 U.S.C. § 5952. The Committee reports ac- 28a companying the 1998 Act also concluded that concession “contracts do not constitute contracts for the procurement of goods and services for the benefit of the government or oth- erwise,” S. REP. NO. 105-202, at 39 (1998); H.R. REP. No. 105-767, at 43 (1998), a position the Park Service had reached earlier with respect to concession contracts under the 1965 Act. See, e.g., Concessions Contracts and Permits, 57 Fed. Reg. 40,496, at 40,498 (Sept. 3, 1992) (reiterating that the Park Service “has never considered [concessions con- tracts] a type of federal procurement contract”). The Court of Federal Claims, considering the nature of concession con- tracts, also concluded that “this arrangement does not consti- tute a procurement, but is a grant of a permit to operate a business.” YRT Servs. Corp. v. United States, 28 Fed. Cl. 366, 392 n.23 (1993). The decision rested, in part, on the fact that “the government is not committing to pay out gov- ernment funds or incur any monetary liability.” Jd. As against this analysis, the concessioners cite several decisions of the Interior Department Board of Contract Ap- peals [IBCA], a body created by Interior Department regula- tions, see 41 U.S.C. § 607(a); 43 C.F.R. § 4.100 ef seg. (2000). The IBCA has held that the Contract Disputes Act applies to concession contracts. See, e.g., Appeal of Watch Hill Concession, Inc., IBCA No. 4284-2000, 2001 WL 170911 (2001); Appeal of Nat'l Park Concessions, Inc., IBCA No. 2995, 1994 WL 462401 (1994). But the decisions of this body “on any question of law shall not be final or conclusive.” 41 U.S.C. § 609(b). And the IBCA’s rationale for determining that concession contracts are procurement contracts is flawed. In its first opinion to consider the issue, the IBCA acknowledged that the Contract Disputes Act does not cover all contracts but then assumed that the Act does apply unless coverage is explicitly foreclosed. See Appeal of R & R Enters., IBCA No. 2417, 1989 WL 27790, at 24-25 (Mar. 24, 1989). Nothing in the Act suggests such a sweep- ing presumption. Another IBCA opinion states that if any | ; . wore 29a “benefit” can be traced to the government, then the Contract Disputes Act must apply. Appeal of Nat'l Park Concessions, Inc., IBCA No. 2995, 1994 WL 462401, at 14 (Aug. 18, 1994). The primary purpose of concessions contracts is to permit visitors to enjoy national parks in a manner consistent with preservation of the parks. 16 U.S.C. § 5951. That the government receives monetary compensation or incidental benefits from the concessioners’ performance is not enough to sweep these contracts into the ambit of the Contract Dis- putes Act. IV. The concessioners’ last complaint deals with the portion of the new regulations designed to deal with transactions in- volving corporate concessioners (see 65 Fed. Reg. at 20,661). One of the regulations states: The concessioner may not assign, sell, convey, grant, contract for, or otherwise transfer (such trans- actions collectively referred to as “assignments” for purposes of this part), without the prior written ap- proval of the Director, any of the following: (a) Any concession contract; (c) Any controlling interest in a concessioner or concession contract; 36 C.F.R. § 51.85(a) & (c). A similar regulation prohibits, without prior approval, any “encumbrance” of a “controlling interest in a concessioner.” 36 C.F.R. § 51.86(c). In the con- cessioners’ view, the regulations extend beyond the statute. The 1998 Act forbids any “concessions contract” from being “transferred, assigned, sold, or otherwise conveyed or pledged by a concessioner” without government approval. 16 U.S.C. § 5957(a). Approval must be given unless “the 30a entity seeking to acquire a concessions contract is not quali- fied” or the transfer or conveyance would otherwise ad- versely affect performance of the contract in a manner specified in 16 U.S.C. § 5957(b). The crucial difference be- tween the regulations and the statute, the concessioners say, is that the regulations require approval of transactions dealing not only with the transfers or assignments of concession con- tracts but also with changes in control of the concessioner. The Park Service responds that its change-of-control rule en- sures that unqualified persons do not wind up holding con- cession contracts. Unlike individuals, a corporation can in effect transfer a concession contract by selling its stock to another entity. 65 Fed. Reg. at 20,661. As the Park Service sees it, the regulations are a permissible construction of the statutory phrase “otherwise conveyed or pledged,” an argu- — which the district court agreed. 142 F. Supp. 2d at How the Park Service regulations will operate does not exactly leap from the pages of the Federal Register. It is easy enough to see that if X corporation wanted to sell all its as- sets, including its concession contract, it would first have to get approval of the Director of the Park Service. No one doubts that the regulation properly requires as much. The Park Service also believes that if the non-public X corpora- tion structured the transaction as a sale of 100% of its stock instead of an asset sale, there would be no functional differ- ence as far as the concession contract is concerned. See Alarm Indus. Communications Comm. v. FCC, 131 F.3d 1066, 1070-71 (D.C. Cir.1997). It is only a short leap to the conclusion that if, rather than a sale of 100% of the stock, X corporation sold some lesser amount representing a control- lations define controlling interest in much the same manner as the Securities and Exchange Commission, see, e.g., 17 C.F.R. § 210.1-02(g), that is, not in terms of any particular percentage of outstanding voting stock. Rather, a “controlling 3la interest” in a corporate concessioner constitutes “sufficient outstanding voting securities” of “the concessioner or related entities that permits the exercise of managerial authority” over the concessioner. 36 C.F.R. § 51.84. Beyond these simple examples we enter a vale of ambi- guity. Transactions of the sort just described are not the fo- cus of the concessioners’ concern. Their problem is that the regulations--as they read them — require Park Service ap- proval of transactions undertaken by the concessioners’ “shareholders or their affiliates.” Brief for Appellants at 55. But do they? The shareholders of incorporated concessioners are typically not individuals but parent corporations. The Park Service reports that “many” of its concessioners “are corporations that hold a concession contract 4s their exclu- sive business activity” and that almost all of the largest con- cessioners are “wholly owned subsidiaries of larger corporations.” 65 Fed. Reg. at 20,661. One of the plaintiffs here, ARAMARK Sports and Entertainment Services, Inc., is a wholly-owned subsidiary of ARAMARK/HMS Company, which is a wholly-owned subsidiary of ARAMARK Sports and Entertainment Group; Inc., which is a wholly-owned subsidiary of ARAMARK Corporation, which is listed on the New York Stock Exchange. Brief for Appellants at iv. Wholly-owned means, in the case of incorporated sub- sidiaries, that the parent corporation holds all of the subsidi- ary corporation’s stock. What worries the concessioners is that transactions by the parent could potentially require Park Service approval if a change in control would result. But the regulations do not read that way. The critical provision is 36 C.F.R. § 51.8. It speaks only of sales, assignments, convey- ances and so forth by the “concessioner.” The term “conces- sioner,” in regulatory parlance, “is an individual, corporation, or other legally recognized entity that duly holds a conces- sion contract,” 36 C.F.R. § 51.3 — a definition that at least on its face encompasses only the subsidiary corporation, not the parent. It therefore appears that if the parent corporation 32a engages in a sale-of-control transaction, this would not re- quire approval because the concessioner — the subsidiary corporation — would not be doing the selling. The attorneys for the Park Service say, in their brief, that the regulations do indeed cover transactions by the corporate concessioner’s parent company. Brief for Appellees at 53-54. But they do not parse the language of the regulations, and they point to nothing in the Park Service’s explanation of its regulations that goes so far. In fact, the Park Service justified its regula- tions on the basis that it would be “anomalous” if a “corpo- rate concessioner” could sell “its stock to a new party (sale of a controlling interest)” without having to seek Park Service approval. 65 Fed. Reg. at 20,661. If, despite the language of the regulations, transactions at the parent level are also sup- posed to be covered, we are far trom certain how the Park Service intends to implement its rules. An investor might begin purchasing stock of the parent corporation of a corpo- rate-concessioner on the open market. Must the concessioner corporation go to the Park Service and ask for approval of the outsider’s purchases of the parent when the outsider’s per- centage of the outstanding shares reaches some magic num- ber? That makes no sense. Neither the concessioner corporation nor the parent corporation has any control over the purchaser. Perhaps this is why the regulation seems to speak only in terms of the concessioner selling its stock. If the regulations do not cover the transaction just mentioned, but do cover a sale of control by a parent corporation, the Park Service would have to justify a rule that allows an out- sider, a complete stranger, to gain a “controlling interest” through open market purchases but requires approval before the parent makes a block sale to the same person. Control of the parent, and thus of the subsidiary concessioner, would transfer in both situations, and under the Park Service’s the- ory, so would the concession contract, yet the one transaction would be regulated and the other not. 33a The short of the matter is that we do not know whether the problems the concessioners identify exist. We cannot be sure that the Park Service will apply its sale-of-control regu- lations to transactions involving only sales of stock by corpo- rate concessioners (as distinguished from open market sales by shareholders or sales by a parent company of its stock). The questions thus raised, and the other questions posed by the many possible forms of corporate restructuring (see, e.g., 1 MARTIN D. GINSBURG & JACK S. LEVIN, MERGERS, AC- QUISITIONS, AND BUYOUTS 105 (2001)), present “too many imponderables” to permit judicial review at this time. Clean Air Implementation Project v. EPA, 150 F.3d at 1200. This aspect of the case, in other words, is not ripe. See Media Ac- cess Project v. FCC, 883 F.2d 1063, 1070 (D.C.Cir.1989). The “classic institutional reason” for postponing review is the “need to wait for a ‘rule to be applied [to see] what its effect will be,’“ Louisiana Envtl. Action Network v. Browner, 87 F.3d 1379, 1385 (D.C.Cir.1996) (quoting Diamond Sham- rock Corp. v. Costle, 580 F.2d 670, 674 (D.C.Cir.1978)). The issues here can be presented in a more “concrete” set- ting. Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967); Ass'n of Am. R.R., 146 F.3d 942, 946 (D.C.Cir.1998). The regulations state that “[a]ssignments” without the prior ap- proval of the Park Service will be considered “null and void” and will be viewed as a “material breach of the applicable concession contract which may result in termination of the contract for cause.” 36 C.F.R. § 51.88. Whether this means the Park Service will deem transfers of controlling interests in a concessioner’s parent as “null and void” is not at all clear. But the prospect certainly can give rise to an interested party’s seeking the Park Service’s judgment that its proposed transaction does not need approval. A lawsuit could be brought if the concessioner is dissatisfied with the answer. Then at least the court would have some idea of what the Park Service thinks its regulations cover. Then too the valid- ity of the regulations, as thus interpreted, could be deter- 34a mined in light of the language of the statute, which speaks only of transfers of concession contracts. The possible hardship to the concessioners in waiting does not alter our conclusion that the issues are not ripe. No concessioner has indicated that a transfer of control is immi- nent. We therefore have no reason to believe that in the im- mediate future they will have to alter their conduct to their disadvantage. Contrast Abbott Labs., 387 U.S. at 152. It may be that matters cannot be sorted out without further liti- gation but that is not the sort of hardship we recognize in evaluating whether a case is ripe for review. See, e.g., Clean Air Implementation Project, 150 F.3d at 1206. Our conclusion that this aspect of the case is not ripe dif- fers from that of the district court, which ruled against the concessioners’ claim on its merits. We therefore vacate the district court’s judgment in this respect. *** The judgment of the district court is affirmed in part, re- versed in part and vacated in part. The case is remanded for further proceedings, consistent with this opinion, on Amfac’s as-applied challenge to regulations concerning the preferen- tial nght of renewal. So ordered. 35a APPENDIX B United States District Court, District of Columbia. AMFAC Resorts, L.L.C., Plaintiff, Ve UNITED STATES Department OF THE INTERIOR, ET AL., De- fendants. NATIONAL PARK Hospitality ASSN., Plaintiff, Vv. UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., De- fendants. HAMILTON Stores, INC., Plaintiff, Vv. UNITED STATES Department OF THE INTERIOR, ET AL., De- fendants. ARAMARK SPORTS AND Entertainment SERVICES, INC., Plain- tiff, Vv. UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., De- fendants. CIV.A. 00-2838, 00-2885, 00-2937, 00-3085. May 23, 2001. MEMORANDUM OPINION LAMBERTH, District Judge. a Now before the Court is a group of cases that implicate a variety of issues, all of which are covered in the defendants’ motion to dismiss, and the parties’ cross motions for partial 36a summary judgment. At its heart, the dispute centers on the National Park Service’s (“NPS”) treatment of current and potential concessioners at various national parks. The plain- tiffs — three of which are concessioners and one of which is an association of concessioners — all allege that various NPS regulations are contrary to Congressional pronouncements on national park concession management. On April 24, 2001, the Court niled that the plaintiffs were not entitled to discovery beyond the administrative record, and that certain confidential information could be shared with experts, provided various conditions were observed. The Court also ruled that day that Delaware North, Inc., a conces- sioner, was entitled to intervene in this matter on behalf of the defendants. Delaware North is a competitor of the plain- tiffs, and seeks to become a concessioner in certain parks where the plaintiffs currently hold concession contracts. To summarize the Court’s holding, the Court first holds that the plaintiffs’ Rule 56(f) motion to stay summary judg- ment proceedings and take discovery must be DENIED.' The Court next holds that the defendants’ motion to dismiss must be DENIED with respect to the preferential nght to re- ' This issue was substantially addressed in the Court’s April 24, 2001 Opinion. In that Opinion, the Court determined that the plaintiffs were not entitled to extra-record discovery. See Memo- randum and Order, Apr. 24, 2001, at 11-13. Federal Rule of Civil Procedure 56(f) “allows a summary judgment motion to be denied; or the hearing on the motion to be continued, if the nonmoving party has not had an opportunity to make full discovery.” Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). As the plaintiffs are not entitled to any discovery, a stay of proceedings would not increase the plaintiffs’ “opportunity to make full discovery.” Thus, the plaintiffs’ Rule 56(f) motion must be denied. 37a newal issue, but GRANTED with respect two other issues.’ Finally, the Court holds that the disputed regulations are permissible in all respects save one. The defendants’ regula- tions are generally concise, well explained, and responsive to the many comments received from interested parties. The defendants only run afoul of the law in their requirement that concessioners bid on prospectuses or else lose their preferen- tial right of renewal. An order consistent with this Opinion shall issue separately this date. As a preliminary matter, the Court 1 otes its jurisdiction under 28 U.S.C § 1331. The plaintiffs’ well-pleaded com- plaints present an issue of federal law, and all parties concede as much. See Bnef for Plaintiffs, Feb. 28, 2001, at 14-15; Brief for Defendants, Apr. 9, 2001, at 21. The law applicable to the resolution of this case is federal law, whether in consti- tutional, statutory, or common law form. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 726-27 (1979) (quoting Clearfield Trust Co. v. United States, 318 U.S. 363, 366 (1943)) (“[A]gencies derive their authority to effectuate ... transactions from specific Acts of Congress passed in the ex- ercise of ‘constitutional function or power’, [and thus] their rights, as well, should derive from a federal source.”’). I. THE DEFENDANTS’ MOTION TO DISMISS A. Background The plaintiffs have been concessioners in various national parks for the past 30 years.” Their concession contracts are ? These two issues are the plaintiffs’ claims regarding the timing of compensation for a concessioner’s leasehold surrender interest, see Part.II.N, and Hamilton Stores’ claim regarding the minimum franchise fee for the Yellowstone Park concession contract. See ~ Part L.B.3.b. * The Court notes that one of the plaintiffs, the National Park Hospitality Association (“NPHA”), is not actually a concessioner. Rather, it is an association of concessioners. Nonetheless, as the 38a set to expire on December 31, 2001, and they are currently interested in continuing as concessioners. To achieve this goal, the plaintiffs must participate in a contracting process dictated by the NPS. In the spring of 2000, the NPS modified this process in light of recent legislation.“ The new contracting process is chiefly controlled by an NPS regulation entitled “Concession Contracts.” 65 Fed. Reg. 20630 (A [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0589%3A02. Public record. Not legal advice.