36 C.F.R. § 51.4

How will the Director invite the general public to apply for the award of a concession contract and how will the Director determine when to issue a prospectus for a new concession opportunity where no prior concession services had been provided?

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(a) The Director must award all concession contracts, except as otherwise expressly provided in this part, through a public solicitation process. The public solicitation process begins with the issuance of a prospectus. The prospectus will invite the general public to submit proposals for the contract. The prospectus will describe the terms and conditions of the concession contract to be awarded and the procedures to be followed in the selection of the best proposal.

(b) Except as provided under § 51.47 (which calls for a final administrative decision on preferred offeror appeals prior to the selection of the best proposal) the terms, conditions and determinations of the prospectus and the terms and conditions of the proposed concession contract as described in the prospectus, including, without limitation, its minimum franchise fee, are not final until the concession contract is awarded. The Director will not issue a new prospectus for a concession contract earlier than eighteen months prior to the expiration of a related existing contract except when the Director determines it is necessary to provide additional time to potential offerors, such as when additional time is needed to avoid issuing a prospectus during a busy operating season or where potential offerors must make significant financial commitments to meet the requirements of the contract. This additional time should be as short as prudent.

(c) The Director will issue a prospectus for a new concession opportunity in a park area when the Director determines, in the Director's discretion, that a new concession opportunity is necessary and appropriate for public use and enjoyment of the park area and is consistent to the highest practicable degree with the preservation and conservation of the resources and values of the park area.

(d) The Director will establish procedures to solicit and consider suggestions for new concession opportunities within park areas from the public (including from potential concessioners) through the National Park Service's planning processes for such opportunities as well as through annual invitations for proposals for improving visitor experiences through third-party providers. The Director shall fully review all proposals received, provide a written evaluation for each proposal, and make all proposals and completed evaluations available to the public.

(e) In determining whether to issue a prospectus for a concession contract to provide such new concession opportunities, the Director will consider relevant factors including whether the suggested concession opportunities are adequately provided within the park area by other authorized commercial providers; the potential for augmented resources for park area operations; the effects of the suggested concession operations on the park area; the long-term viability of the suggested concession opportunities; the innovative quality of the suggestions; and the potential impacts on park area visitation and on communities located near the park area.

(f) No preference to a concession contract shall be granted to a party based on that party's having submitted a proposal for a new concession opportunity described in this section. The Director, however, may award a contract noncompetitively to such a party when determined appropriate as described in § 51.25.

(g) The Director may consider suggestions for new services as additional services to be provided through an existing concession contract as described in § 51.76.

(h) Nothing in this section shall constrain the discretion of the Director to solicit or consider suggestions for new concession opportunities or collect other information that can be used by the Director in connection with a new concession opportunity.

[65 FR 20668, Apr. 17, 2000, as amended at 88 FR 90117, Dec. 29, 2023]

Notes of Decisions

Cited in 15 cases, 1981–2018 · leading case: YRT Servs. Corp. v. United States, 28 Fed. Cl. 366 (Fed. Cl. 1993).

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YRT Servs. Corp. v. United States, 28 Fed. Cl. 366 (Fed. Cl. 1993). · cites it 7× “3 At the time the lawsuit was filed, the government had not yet complied with the congressional notification requirement mandated by 36 C.F.R. § 51.4 (a) (1992), which provides that after negotiation of a concession contract, for a term of five years or more, or with anticipated…”

Hamilton Stores, Inc. v. Hodel, 925 F.2d 1272 (10th Cir. 1991). · cites it 8× “6 More specifically, HSI claims that the Secretary illegally solicited and awarded the 1979 contract to TWS pursuant to the procedures outlined in 36 C.F.R. § 51.4 (1989) (“Solicitation and award of concession contracts and permits where no right of preference exists.”

Eco Tour Adventures, Inc. v. Jewell, 249 F. Supp. 3d 360 (D.D.C. 2017). “” 36 C.F.R. § 51.4 (a). The prospectus must include, among- other things, “the minimum requirements of the.”

Seva Resorts, Inc., a Nevada Corp. Seva Dev. Corp., an Arizona Corp. v. Donald P. Hodel, Sec'y of the Interior, 876 F.2d 1394 (9th Cir. 1989). · cites it 4× “” 36 C.F.R. § 51.4 (d). In this case the Secretary concluded that under section 51.”

Seven Resorts, Inc. v. United States, 112 Fed. Cl. 745 (Fed. Cl. 2013). · cites it 2× “”); see also 36 C.F.R. §§ 51.4 , 51.5 (1998). Defendant ultimately concluded, however, that “the parties’ uninterrupted performance after December 31,1997 demonstrates that the parties had agreed to waive the expiration of Contract No.”

Seva Resorts, Inc. v. Hodel, 675 F. Supp. 1542 (D. Ariz. 1987). · cites it 6× “Pursuant to these statutory grants of power, the Secretary promulgated the rule set forth in 36 C.F.R. § 51.4 (d). See 36 C.F.R. § 51.”

Yachts Am., Inc. v. United States, 8 Cl. Ct. 278 (Ct. Cl. 1985). “The procedural requirements for issuance of concession contracts and permits are specified primarily at 36 C.F.R. § 51.4 . Only under exceptional circumstances can they be waived and a contract or permit negotiated without public notice and advertising.”

Glacier Park Found. v. Watt, 663 F.2d 882 (9th Cir. 1981). · cites it 2× “However, on the present record we do find that the Service violated 36 C.F.R. § 51.4 (c) when it negotiated with GPI after rejecting both proposals.”

Canyoneers, Inc., Etc., Dba Grand Canyon Trail Guides v. Donald Hodel, Sec'y, Dep't of the Interior, 756 F.2d 754 (9th Cir. 1985). “Pursuant to 36 C.F.R. § 51.4 (c), the Secretary then cancelled the SOR.”

Lewis v. Lujan, 826 F. Supp. 1302 (D. Wyo. 1992). · cites it 4× “The NPS shortened the 60-day period for SOR responses to 30 days pursuant to an NPS finding that “exceptional circumstances” existed under 36 C.F.R. § 51.4 (a), caused by the need to process a large concession permit backlog, and NPS belief that renewal of the permit authorizing…”

Lewis v. Babbitt, 998 F.2d 880 (10th Cir. 1993). “” 36 C.F.R. § 51.4 (c). Based on our review of evidence in the administrative record, we conclude that the NPS acted in accordance with these provisions.”

Canyoneers, Inc. v. Clark, 596 F. Supp. 106 (D. Ariz. 1984). “3 (b) is based on a misinterpretation of that regulation; Plaintiff does not otherwise allege that Defendants have failed to comply with necessary procedural requirements. Based upon the foregoing, IT IS ORDERED that Plaintiff's Motion for Summary Judgment, filed January 31,…”

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— 36 C.F.R. § 51.4(a) — 1 case

Lewis v. Lujan, 826 F. Supp. 1302 (D. Wyo. 1992). “The NPS shortened the 60-day period for SOR responses to 30 days pursuant to an NPS finding that “exceptional circumstances” existed under 36 C.F.R. § 51.4 (a), caused by the need to process a large concession permit backlog, and NPS belief that renewal of the permit authorizing…”

— 36 C.F.R. § 51.4(e) — 1 case

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