36 C.F.R. § 51.5

What information will the prospectus include?

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The prospectus must include the following information:

(a) The minimum requirements of the concession contract. The minimum requirements of the concession contract, include, but are not limited to the following:

(1) The minimum acceptable franchise fee or other forms of consideration to the Government;

(2) The minimum visitor services that the concessioner is to be authorized to provide;

(3) The minimum capital investment, if any, that the concessioner must make;

(4) The minimum measures that the concessioner must take to ensure the protection, conservation, and preservation of the resources of the park area; and

(5) Any other minimum requirements that the new contract may specify, including, as appropriate and without limitation, measurable performance standards;

(b) The terms and conditions of a current concession contract, if any, relating to the visitor services to be provided, including all fees and other forms of compensation provided to the Director under such contract;

(c) A description of facilities and services, if any, that the Director may provide to the concessioner under the terms of the concession contract, including, but not limited to, public access, utilities and buildings;

(d) An estimate of the amount of any compensation due a current concessioner from a new concessioner under the terms of an existing or prior concession contract;

(e) A statement identifying each principal selection factor for proposals, including subfactors, if any, and secondary factors, if any, and the weight and relative importance of the principal and any secondary factors in the selection decision;

(f) Such other information related to the proposed concession contract as is provided to the Director pursuant to a concession contract or is otherwise available to the Director, as the Director determines is necessary to allow for the submission of competitive proposals. Among other such necessary information a prospectus will contain (when applicable) are the gross receipts of the current concession contract broken out by department for the three most recent years; franchise fees charged under the current concession contract for the three most recent years; merchandise inventories of the current concessioner for the three most recent years; and the depreciable fixed assets and net depreciable fixed assets of the current concessioner; and

(g) Identification of a preferred offeror for a qualified concession contract, if any, and, if a preferred offeror exists, a description of a right of preference to the award of the concession contract.

Notes of Decisions

Cited in 6 cases, 1981–2011 · leading case: 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).

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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). · cites it 2× “hat the right of preference is not an enforceable right in the sense that the Secretary is statutorily bound to renew or grant a permit to satisfactory concessioners regardless of other appropriate factors the Secretary must weigh: Instead, the right of preference only entitles…”

Canyoneers, Inc. v. Clark, 596 F. Supp. 106 (D. Ariz. 1984). · cites it 2× “3 (b), as that provided under the contract or permit of an existing satisfactory concessioner, then the Secretary must recognize and honor the right of preference in the existing satisfactory concessioner and give that concessioner “an opportunity to meet the terms and…”

Glacier Park Found. v. Watt, 663 F.2d 882 (9th Cir. 1981). “36 C.F.R. §§ 51.5 and 51.4(c). The Foundation’s challenge was based on either the Administrative Procedure Act, 5 U.”

Lewis v. Babbitt, 998 F.2d 880 (10th Cir. 1993). “…of preference mdy be required to match a responsive proposal that the NPS has determined to be the best proposal. See 36 C.F.R. § 51.5 (b).”

Mahon v. United States, 795 F. Supp. 2d 149 (D. Mass. 2011). “36 C.F.R. § 51.5 (a). Each of these required elements is present in the Agreement: Eastern National agreed to remit ten percent of gross rent *156 als to the Service, Eastern National agreed that it would make the Commandant’s House available for rental 362 days per year, and…”

Hotcaveg v. Kennedy, 883 F. Supp. 428 (E.D. Mo. 1995). “The specific regulation involved in this case states: The concessioner with a right of preference shall be required to submit a responsive offer (a timely offer which the Director determines meets the terms and conditions of the prospectus) pursuant to the prospectus. If the…”

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