Notice of Publication of Final Sample Prospectus and Related Guidelines

DEPARTMENT OF THE INTERIOR

National Park Service

Notice of Publication of Final Sample Prospectus and Related

Guidelines

AGENCY: National Park Service, Interior.

SUMMARY: The National Park Service published notice to rescind Chapter

6, 7, 8 and 11 of NPS-48 (``The Concessions Guidelines'') Thursday,

March 17, 1994 requesting comments at that time on the replacement

document ``Sample Prospectus and Related Guidelines.'' The document

includes among other matters, a sample prospectus for solicitation of

offers for National Park Service concessions contracts and permits,

related evaluation guidelines and application information and criteria.

As an internal staff manual, notice of the Sample Prospectus and

Related Guidelines is not required to be published in the Federal

Register nor was public comment required yet to assure that the view of

all interested parties were considered, the National Park Service

sought public comment on its Sample Prospectus and Related Guidelines

document and considered all comments received and amend the document if

it is so warranted. The 60-day comment period has expired, and the

public interest would not be served in further delay of the effective

date of this document.

General Comments

Only two entities responded to the publication of the notice with

comments.

One commenter suggested that we withdraw this proposal until the

Senate and House Finalize new legislation on Concession Management in

the Parks. The public would not be served to consider this alternative

as there exists a large backlog of NPS concession contract renewals

which are necessary to complete to allow the commencement of major

renovation and construction programs in areas of the nation park

system, including improvements necessary to protect the health and

safety of park visitors and NPS and concessioner employees. In

addition, many concessioners are now operating under the terms of

expired contracts and are accordingly, in need of contract renewal

actions as soon as possible to permit business planning, actions and

investments which require the existence of a new contract for

implementation. It is also noted that the Sample Prospectus and Related

Guidelines document is intended to provide guidance to NPS personnel

concerning possible means to implement new policies and procedures

adopted in the new NPS concession contracting regulations and new

standard language concession contract, both of which were adopted after

extensive public comment periods and consideration by NPS of all

comments received.

This commenter discussed some issues that relate to NPS concession

contracting regulations which were amended by NPS in furtherance of the

objective of the Secretary's concession reform initiative. These

issues, Possessory Interest, Compensation, Government Improvement and

Capital Improvement accounts * * *are not further discussed here as

they were the subject of extensive public comment in the adoption of

the amended regulations and standard contract language. The amended

regulations were published in final in the Federal Register on

September 3, 1992 (57 FR 40496) and the Final revision of the Standard

Contract Language was published in the Federal Register on January 7,

1993 (58 FR 43140).

This commenter cautioned that in the preparation of the Prospectus

there are two items listed for the Appendix which related to existing

possessory interest and suggest that care be taken to be sure that the

incumbent be aware of the value established by the present law. They

propose that values supplied by [[Page 9856]] the incumbent

concessioner would reflect a more accurate assessment of the

compensation required, rather than the use of an outside consultant or

NPS estimate of this value. NPS acknowledges that the incumbent is

entitled to compensation as outlined in a previous contract but that

the terms of that contract allow for negotiation between parties, and

should they be unable to reach a compromise, an arbitration process for

the final determination of that compensable value as purchased by a new

offeror.

The commenter expresses concern on the arbitration process utilized

to resolve these disputes and states that an incumbent concessioner

should not be expected to relinquish his or her rights to legal

adjudication of the issue through the courts should it become

necessary. NPS does not recognize this as a valid issue in this process

as the procedure to settle these issues will not vary from established

practice with the enforcement of the final regulations or standard

contract language utilized herein.

The commenter acknowledged that the Concessions Management section

of the prospectus had some excellent statements but that the

``partnership'' between NPS and the concessioner needs to be

emphasized. They later note that this is emphasized in the contract

language. NPS in designing the package took careful steps to avoid

repetition in placing information in the prospectus and the contract as

they are part of a complete presentation. The proposed contract is

included in the package to illustrate the importance of all contract

requirements.

Recent changes in the Utilities program as it relates to capital

investments were commended.

Concern was expressed regarding the requirement that all

concessioners comply with federal, state and local laws. NPS has made

this a requirement of all contracts since the labor legislation was

enacted. They described the problems recently encountered with the

Department of Labor in a case in Nevada involving operations that fall

under the Fair Labor Standards Act and the Contract Wage and Hours

Standards Act. The Department of Labor has been asked to address this

problem but as of yet, they have not issued a decision. This is a non-

issue as it relates to this process.

Financial programs and practices were discussed as they relate to

the law governing the concessions management program. They state that

the NPS statement regarding Fair Return for the Operator appears

misunderstood and misapplied. On Page 13 of the prospectus, it states

that ``it is the responsibility of the offeror to assure itself that

the terms of its offer provide it a reasonable opportunity for

profit''. The commenter states that while they understand that the

concessioner ultimately determines by his business practices whether he

will realize a profit, the whole intent of the statement in the law is

that NPS should realize that its policies could prevent that profit

from being realized if they were onerous and confiscatory. NPS makes

this statement in the Prospectus to caution the offeror that the terms

of an offer being presented must be realistic and achievable allowing a

reasonable opportunity for profit. Other devises in the contract such

as amendments, franchise fee reviews and arbitrations allow for

adjustments necessitated through economic changes, policy review and

revision.

A comment was made on the section entitled ``The Park Area and Its

Mission'' regarding the planning documents and maintenance and

operating plans for the park that are applicable. They note that plans

are only as good as the commitment of those involved to carry out its

terms and that no plans can be successful relating to the concession

and operations and visitor services unless they involve the

concessioner for meaningful input at the time of formulation. It is the

standard practice of NPS to involve consultants versed in the type of

operation proposed during the planning process. As the practice of

awarding the contract for the operation of these facilities is a

competitive process, completed at a future date, the actual

concessioner cannot be involved in this pre-planning as the contract

has not been executed. It is important that the planning, maintenance

and operation documents be included in the prospectus so that an

offeror can make an informed offer, taking the long and short term

requirements into consideration.

The commenter discussed the need for flexibility in the term of the

contract; Government Improvement and Capital Improvement accounts;

Compensation and Possessory interest. These were issues for comment

during the review of the Standard Contract Language and Final Rule for

Concession Operations. These comments do not apply to this process.

The proposed application was questioned as it related to the

alternatives presented for concessioner entitlement to present contract

language on the Preference of renewal. NPS included the alternatives as

a guide for future use of this sample. The issue of contract language

change was addressed during the review period of that subject and does

not apply to this process.

The commenter states that the proposed Application seems

inconsistent with the statement that the financial contributions are

secondary selection factors, when in fact, additional weight in the

scoring process is clearly outlined here for more generous

contributions to both the Government and Capital Improvement Accounts

and the amount paid in Franchise Fees. They question that if the

factors are secondary, why should they be given additional weight? NPS

in considering an offer, requires that all the primary factors are met

before the secondary factors are considered. In this way, should all

offerors satisfy the requirements of the primary factors, there can be

a means of determining a better offer by utilizing the secondary

factors.

A second commenter expressed concern in regards to removing the

possibility of incorporating a numerically-weighted system into the

proposed evaluation process. NPS feels that a numerically-weighted

system would not allow the flexibility required to deal with the

diverse operations it manages. Due to the diversity of the operations,

specifically stated criteria are designed for each application that

address the unique needs of the park and visitor. A numerically-

weighted system must be standardized to be effective, and the diversity

of the operations for which concessioners are solicited could not be

handled in this manner. The narrative system presents in clear and

concise language the exact reasons that the panel would choose one

offeror over another. There is no guarantee with a numerically-weighted

system to insure that the offer being presented is the best overall

offer. Should there become a need to present the reasons for selection

at a later time, the justification for a decision based on a

numerically-weighted system is not easily presented.

The Sample Prospectus and Related Guidelines document is intended

to be only a sample document. It is not meant to be a document which

must be used as written in every instance. It is to be modified as

appropriate to fit the needs of individual situations. Further, this

document is expected to be modified and refined over time as experience

indicates that changes are needed and to meet the changing needs of the

concession contracting program.

EFFECTIVE DATE: February 22, 1995.

FOR FURTHER INFORMATION CONTACT: Robert Yearout, Chief, Concessions

Division, National Park Service, [[Page 9857]] Washington, D.C. 20013-

7127. Telephone: (202) 343-3784.

Dated: February 3, 1995.

Maureen Finnerty,

Associate Director, Operations.

[FR Doc. 95-3676 Filed 2-21-95; 8:45 am]

BILLING CODE 4310-70-M