Title 36 Part 51

[Code of Federal Regulations]
[Title 36, Volume 1]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 36CFR51]

[Page 290-294]

TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY

CHAPTER I--NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR

PART 51_CONCESSION CONTRACTS--Table of Contents

Subpart C_Solicitation, Selection and Award Procedures

Sec. 51.4 How will the Director invite the general public to apply for
the award of a concession contract?

(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 Sec. 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 prospectus
for a concession contract earlier than eighteen months prior to the
expiration of a related existing concession contract.

Sec. 51.5 What information will the prospectus include?

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

[[Page 291]]

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.

Sec. 51.6 Will a concession contract be developed for a particular
potential offeror?

The terms and conditions of a concession contract must represent the
requirements of the Director in accordance with the purposes of this
part and must not be developed to accommodate the capabilities or
limitations of any potential offeror. The Director must not provide a
current concessioner or other person any information as to the content
of a proposed or issued prospectus that is not available to the general
public.

Sec. 51.7 How will information be provided to a potential offeror
after the prospectus is issued?

Material information directly related to the prospectus and the
concession contract (except when otherwise publicly available) that the
Director provides to any potential offeror prior to the submission of
proposals must be made available to all persons who have requested a
copy of the prospectus.

Sec. 51.8 Where will the Director publish the notice of availability
of the prospectus?

The Director will publish notice of the availability of the
prospectus at least once in the Commerce Business Daily or in a similar
publication if the Commerce Business Daily ceases to be published. The
Director may also publish notices, if determined appropriate by the
Director, electronically or in local or national newspapers or trade
magazines.

Sec. 51.9 How do I get a copy of the prospectus?

The Director will make the prospectus available upon request to all
interested persons. The Director may charge a reasonable fee for a
prospectus, not to exceed printing, binding and mailing costs.

Sec. 51.10 How long will I have to submit my proposal?

The Director will allow an appropriate period for submission of
proposals that is not less than 60 days unless the Director determines
that a shorter time is appropriate in the circumstances of a particular
solicitation. Proposals that are not timely submitted will not be
considered by the Director.

Sec. 51.11 May the Director amend, extend, or cancel a prospectus
or solicitation?

The Director may amend a prospectus and/or extend the submission
date prior to the proposal due date. The Director may cancel a
solicitation at any time prior to award of the concession contract if
the Director determines in his discretion that this action is
appropriate in the public interest. No offeror or other person will
obtain compensable or other legal rights as a result of an amended,
extended, canceled or resolicited solicitation for a concession
contract.

Sec. 51.12 Are there any other additional procedures that I must
follow to apply for a concession contract?

The Director may specify in a prospectus additional solicitation
and/or selection procedures consistent with the requirements of this
part in the interest of enhancing competition. Such additional
procedures may include, but are not limited to, issuance of a two-phased
prospectus--a qualifications phase and a proposal phase. The Director
will incorporate simplified administrative requirements and procedures
in prospectuses for concession contracts that the Director considers are
likely to be awarded to a sole proprietorship or are likely to have
annual gross receipts of less than $100,000. Such simplified
requirements and procedures may include, as appropriate and without
limitation, a reduced application package, a shorter proposal submission
period, and a reduction of proposal information requirements.

[[Page 292]]

Sec. 51.13 When will the Director determine if proposals are
responsive?

The Director will determine if proposals are responsive or non-
responsive prior to or as of the date of selection of the best proposal.

Sec. 51.14 What happens if no responsive proposals are submitted?

If no responsive proposals are submitted, the Director may cancel
the solicitation, or, after cancellation, establish new contract
requirements and issue a new prospectus.

Sec. 51.15 May I clarify, amend or supplement my proposal after it is
submitted?

(a) The Director may request from any offeror who has submitted a
timely proposal a written clarification of its proposal. Clarification
refers to making clear any ambiguities that may have been contained in a
proposal but does not include amendment or supplementation of a
proposal. An offeror may not amend or supplement a proposal after the
submission date unless requested by the Director to do so and the
Director provides all offerors that submitted proposals a similar
opportunity to amend or supplement their proposals. Permitted amendments
must be limited to modifying particular aspects of proposals resulting
from a general failure of offerors to understand particular requirements
of a prospectus or a general failure of offerors to submit particular
information required by a prospectus.
(b) A proposal may suggest changes to the terms and conditions of a
proposed concession contract and still be considered as responsive so
long as the suggested changes are not conditions to acceptance of the
terms and conditions of the proposed concession contract. The fact that
a proposal may suggest changes to the proposed concession contract does
not mean that the Director may accept those changes without a
resolicitation of the concession opportunity.

Sec. 51.16 How will the Director evaluate proposals and select the
best one?

(a) The Director will apply the selection factors set forth in Sec.
51.17 by assessing each timely proposal under each of the selection
factors on the basis of a narrative explanation, discussing any
subfactors when applicable. For each selection factor, the Director will
assign a score that reflects the determined merits of the proposal under
the applicable selection factor and in comparison to the other proposals
received, if any. The first four principal selection factors will be
scored from zero to five. The fifth selection factor will be scored from
zero to four (with a score of one for agreeing to the minimum franchise
fee contained in the prospectus). The secondary factor set forth in
Sec. 51.17(b)(1) will be scored from zero to three. Any additional
secondary selection factors set forth in the prospectus will be scored
as specified in the prospectus provided that the aggregate possible
point score for all additional secondary selection factors may not
exceed a total of three.
(b) The Director will then assign a cumulative point score to each
proposal based on the assigned score for each selection factor.
(c) The responsive proposal with the highest cumulative point score
will be selected by the Director as the best proposal. If two or more
responsive proposals receive the same highest point score, the Director
will select as the best proposal (from among the responsive proposals
with the same highest point score), the responsive proposal that the
Director determines on the basis of a narrative explanation will, on an
overall basis, best achieve the purposes of this part. Consideration of
revenue to the United States in this determination and in scoring
proposals under principal selection factor five will be subordinate to
the objectives of protecting, conserving, and preserving the resources
of the park area and of providing necessary and appropriate visitor
services to the public at reasonable rates.

Sec. 51.17 What are the selection factors?

(a) The five principal selection factors are:
(1) The responsiveness of the proposal to the objectives, as
described in the prospectus, of protecting, conserving, and preserving
resources of the park area;

[[Page 293]]

(2) The responsiveness of the proposal to the objectives, as
described in the prospectus, of providing necessary and appropriate
visitor services at reasonable rates;
(3) The experience and related background of the offeror, including
the past performance and expertise of the offeror in providing the same
or similar visitor services as those to be provided under the concession
contract;
(4) The financial capability of the offeror to carry out its
proposal; and
(5) The amount of the proposed minimum franchise fee, if any, and/or
other forms of financial consideration to the Director. However,
consideration of revenue to the United States will be subordinate to the
objectives of protecting, conserving, and preserving resources of the
park area and of providing necessary and appropriate visitor services to
the public at reasonable rates.
(b) The secondary selection factors are:
(1) The quality of the offeror's proposal to conduct its operations
in a manner that furthers the protection, conservation and preservation
of park area and other resources through environmental management
programs and activities, including, without limitation, energy
conservation, waste reduction, and recycling. A prospectus may exclude
this secondary factor if the prospectus solicits proposals for a
concession contract that is anticipated to have annual gross receipts of
less than $100,000 and the activities that will be conducted under the
contract are determined by the Director as likely to have only limited
impacts on the resources of the park area; and
(2) Any other selection factors the Director may adopt in
furtherance of the purposes of this part, including where appropriate
and otherwise permitted by law, the extent to which a proposal calls for
the employment of Indians (including Native Alaskans) and/or involvement
of businesses owned by Indians, Indian tribes, Native Alaskans, or
minority or women-owned businesses in operations under the proposed
concession contract.
(c) A prospectus may include subfactors under each of the principal
and secondary factors to describe specific elements of the selection
factor.

Sec. 51.18 When must the Director reject a proposal?

The Director must reject any proposal received, regardless of the
franchise fee offered, if the Director makes any of the following
determinations: the offeror is not a qualified person as defined in this
part; The offeror is not likely to provide satisfactory service; the
proposal is not a responsive proposal as defined in this part; or, the
proposal is not responsive to the objectives of protecting and
preserving the resources of the park area and of providing necessary and
appropriate services to the public at reasonable rates.

Sec. 51.19 Must the Director award the concession contract that is
set forth in the prospectus?

Except for incorporating into the concession contract appropriate
elements of the best proposal, the Director must not award a concession
contract which materially amends or does not incorporate the terms and
conditions of the concession contract as set forth in the prospectus.

Sec. 51.20 Does this part limit the authority of the Director?

Nothing in this part may be construed as limiting the authority of
the Director at any time to determine whether to solicit or award a
concession contract, to cancel a solicitation, or to terminate a
concession contract in accordance with its terms.

Sec. 51.21 When must the selected offeror execute the concession
contract?

The selected offeror must execute the concession contract promptly
after selection of the best proposal and within the time established by
the Director. If the selected offeror fails to execute the concession
contract in this period, the Director may select another responsive
proposal or may cancel the selection and resolicit the concession
contract.

Sec. 51.22 When may the Director award the concession contract?

Before awarding a concession contract with anticipated annual gross
receipts in excess of $5,000,000 or of more

[[Page 294]]

than 10 years in duration, or, pursuant to Sec. 51.24(b), the Director
must submit the concession contract to the Committee on Resources of the
House of Representatives and the Committee on Energy and Natural
Resources of the Senate. The Director must not award any such concession
contract until 60 days after the submission. Award of these contracts
may not be made without the Director's written approval. The Director
may not delegate this approval except to a Deputy Director or an
Associate Director. The Director may award a concession contract that is
not subject to these or other special award requirements at any time
after selection of the best proposal and execution of the concession
contract by the offeror.