Back in the fall, hurricane Sandy destroyed the 350 slips at the Nichols Great Kills Marina on Staten Island, a Marina run by a small concessioner with a right of preference. The concessions contract expired on December 31, 2012. Based on the belief that marina services would not be possible in 2013, NPS did not renew the contract.

Consistent with the terms of the concession contract, the concessioner insured the facilities. As such, the concessioner wanted its contract renewed with the insurance proceeds being used to rebuild the facilities. After much discussion, NPS largely agreed – the contract was not renewed but the concessioner was given a three-year extension to avoid an interruption of visitor services, the concessioner is rebuilding the marina (and getting Leasehold Surrender Interest for it) and will be operating this season.

Not a bad ending (although much of that is because the facility was insured and the unavailability of the Park facilities occurred outside the normal operating season). The situation, however, raises other questions that have come up in the wake of Sandy that include

  • How will/should NPS deal with its concessioners where the Park is not operating due to things like uninsured damage to Park infrastructure or Park Service delay in reopening the park (factors which are greatly exacerbated where the concessioner would otherwise have been operating, covering its fixed costs, keeping its key employees busy and making a profit)?

CONCESSIONERS MAY HAVE TO FOREGO VISITOR FEES AT NATIONAL FOREST SITES

Recently, Bark, a not-for-profit corporation, and five other members of the Western Slope No-Fee Coalition, filed suit in the U.S. District Court for the District of Columbia challenging the imposition of visitor fees at five National Forest sites across the country – Rose Canyon Lake, Second Crossing, Rampart Reservoir, Walton Lake, and Big Eddy. The plaintiffs claim that these fees, and the lack of public involvement in deciding the fees, violate the Federal Lands Recreation Enhancement Act (“REA”).

The suit is reminiscent of Scherer v. U.S. Forest Service – a 2011 suit filed by Western Slope members challenging visitor fees charged at the Mount Evans Recreation Area in Colorado. In that case, the Tenth Circuit declined to hold that all fees violated the REA, but found, however, that the Forest Service may be in violation when a plaintiff challenges having to pay “the amenity fee only for picnicking and undesignated parking” and other non-amenity, undeveloped recreation, as those are “activities for which no fee is supposed to be charged under [the REA].” Based on this finding, the Scherer plaintiffs subsequently filed a second suit, which the Forest Service settled by agreeing to waive fees against persons who did not use the Forest facilities or who used undeveloped land in the area.

It remains to be seen whether Bark’s suit in another circuit will repeat the success of Scherer and spur fee waivers in National Forests across the country.

IF THE CONCESSIONS MANAGEMENT IMPROVEMENT ACT OF 1998 IS GOING TO BE CHANGED – A FEW NUTS AND BOLTS SUGGESTIONS

There has been talk about reexamining and seeking to amend the Concessions Management Improvement Act. (Of course, whether Congress is in the mood for such changes remains to be seen.) However, while the discussion seems to be around big changes in the lawnamely, LSI, right of preference and exceptions to the use of a competitive process - there are lots of nuts and bolts changes to the law that would make lots of sense. These would include

  • Requiring NPS to use factors (and subfactors) which lend themselves to comparative qualitative analysis
    • i.e., instead of asking for an offeror to describe the qualities of an ideal employee for a specific position, require offerors to: identify an individual and outline his/her qualifications and experience and indicate that the higher the individual’s relevant qualifications the higher the score that will be assigned.
  • Precluding NPS from giving an offeror evaluation credit merely for providing informational material such as “who is the offeror” (What this does is simply make every tenth of a point all the more precious in other factors.)
  • Requiring NPS to give less evaluation credit to an offeror’s experience depending on the dissimilarity of the visitor service to which that experience relates.
  • Precluding NPS from using secondary factors that simply reiterate principal factors.
  • Allowing or even requiring NPS, like other contracting agencies, to point out deficiencies in an offeror’s proposal and allowing the offeror to correct those deficiencies.
  • Requiring NPS (like most other agencies) to use a 1000 point scoring system rather than the approximately 30 point system adopted by the agency. Indeed, under the current system
    • the total value of a subfactor is frequently only 1.25 points which does not give NPS much room for fine distinctions, and
    • the loss of even ½ a point can be the difference between an offeror’s getting or not getting an award.
  • Simply making it more difficult for an offeror who writes a good proposal to be evaluated more highly than an offeror with specific experience and a proven track record doing work of the type required.
  • Mandating that the standard concession contract provide additional time to the concessioner where the Park is closed due to unanticipated circumstances beyond the control of either the concessioner or NPS and/or for an equitable adjustment of the franchise fee and the contract length where NPS actions or inactions result in increased costs/loss of profit to the concessioner.

NON-DISPLACEMENT OF QUALIFIED WORKERS UNDER SERVICE CONTRACTS

Pursuant to a new Rule issued by the Department of Labor, when a service contract expires, the follow-on contract for the same service at the same location must include a clause requiring the successor contractor to give the predecessor’s employees a right of first refusal of employment for positions for which they are qualified under the succeeding contract.

The Rule applies to service contracts exceeding $150,000. No less than ten days before an existing contract expires, the outgoing contractor must give the contracting office a certified list of all service employees who worked under the contract during the last month of contract performance. The successor contractor must then determine the number of employees necessary for efficient performance of the contract. It may elect to employ fewer employees than that employed by the preceding contract. Subsequently, the contractor must make a bona fide express offer of employment to qualified employees (other than managerial and supervisory employees) under the preceding contract; the offer must include the amount of time (no less than ten days) within which the employee must accept such offer.

Importantly, successor contractors may retain their own employees to work on the follow-on contract instead of the predecessor’s employees if the former have been employed by the successor contractor for at least three months prior to commencement of the new contract, and would otherwise face layoff or discharge. Additionally, successors are not required to employ incumbent employees who will be retained by the outgoing contractor, who were hired by the predecessor contractor to work on both federal and nonfederal service contracts as part of a single job, or who failed to perform suitably on their previous job. Finally, the Rule does not protect managerial and supervisory employees, and employees who are not service employees within the meaning of the Service Contract Act.

ARE PERMANENT CONCESSION RIGHTS, PROVIDED UNDER SPECIFIC STATUTE, SUPERSEDED BY THE COMPETITIVE BIDDING REQUIREMENT OF CONCESSIONS MANAGEMENT IMPROVEMENT ACT OF 1998? (PART 2)

In our last newsletter, we reported on the Turner family, who claimed that their exclusive rights to operate the Triangle X Ranch as a concession in the Grand Teton National Park (GTNP) had been violated by the NPS, when it began soliciting competitive proposals to run the ranch. The Turners filed suit, claiming that the 1950 GTNP Act (GTNA) granted them lifetime rights to the property, while the NPS argued that the concessions contract did not qualify the Turners for lifetime rights. The Court ruled against the Turners and found that by the express provisions of the GTNA, the privileges held by the Turners did not constitute property interests cognizable under the QTA. Although the Turners failed to win their fight in court, the NPS recently announced that they had been selected to continue running the ranch as a concessioner pursuant to the competitive bidding process.

BILL TO GIVE VETERANS NATIONAL PARK WORK BOGS DOWN IN SENATE

Before adjourning for the elections, Senate Republicans blocked a new bill that was designed to establish a job program for veterans, fueling allegations that the legislation had been derailed by partisanship. The proposed job program would have provided veterans with jobs in national parks and other federal, state and local lands, and in fire and police departments. However, opponents claimed that the bill’s $1 billion budget violated the Budget Control Act spending limits that Congress had agreed to last year, and that approving the program would be futile without evaluating the effectiveness of existing veteran training programs. It remains to be seen whether the veterans committee will advance another bill with a reduced budget.