Starfleet Marine Transportation, Inc.

B-290181 Jul 05, 2002 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights A firm protested a decision by the Department of the Interior, National Park Service (NPS), to cancel the prospectus seeking proposals for a concession contract award for the operation of a ferryboat transportation service for Fort Sumter National Monument and to extend the contract of the incumbent, contending that the decision by NPS to cancel the prospectus lacked a reasonable basis, and was the result of improper congressional interference. GAO held that the decision by NPS to cancel a concession contract prospectus in order to review agency requirements was reasonable and consistent with applicable regulations. Accordingly, the protest was denied. View Decision Starfleet Marine Transportation, Inc., B-290181, July 5, 2002 DIGEST Attorneys DECISION Starfleet Marine Transportation, Inc. protests the decision by the Department of the Interior, National Park Service (NPS), to cancel the prospectus seeking proposals for the award of a concession contract for the operation of a ferryboat transportation service for Fort Sumter National Monument, South Carolina, and to extend the contract of the incumbent, Fort Sumter Tours, Inc. (FST). Starfleet principally alleges that the decision by the NPS to cancel the prospectus lacked a reasonable basis, and was the result of improper congressional interference. We deny the protest. Fort Sumter, the site at which the first shots of the American Civil War were fired, is an island fort located at the entrance of Charleston Harbor, South Carolina. An important part of our nation's history, Fort Sumter became part of the National Park Service in 1948. Prospectus, Fort Sumter National Monument, at 2. /1/ Today, with more than 200,000 annual visitors, the Fort Sumter National Monument (Monument) consists of four components--Fort Sumter, Fort Moultrie, The Historic Coast Guard Station on nearby Sullivan's Island, and a new Visitor Education Center (Visitor Center) with boat dock facility at Liberty Square, located in downtown Charleston. /2/ The NPS has utilized concession contractors to provide Monument visitors with ferryboat transportation to and from Fort Sumter, which is only accessible by boat. For the past 40 years FST has operated the ferryboat service at the Monument. Protest at 2. The NPS entered into the present contract with FST on June 13, 1986 for a period of 15 years. Although originally to expire on December 31, 2000, the contract was extended until December 31, 2002. /3/ Under this contract FST has provided ferryboat service to Fort Sumter from two locations that are not part of the Monument--from the City Marina in Charleston, and from the Patriots Point Naval and Maritime Museum (Patriots Point), located across the harbor from Charleston in the town of Mount Pleasant. /4/ On December 13, 2001 the NPS issued a prospectus seeking competitive proposals for the award of a 10-year concession contract to provide ferryboat service for the visiting public within the Monument. Starfleet exhs. at 3, Commerce Business Daily: Notice of Availability of Prospectus. The prospectus was issued pursuant to the National Park Service Concessions Management Improvement Act of 1998. Pub. L. No. 105-391, Sec. 401 et seq., 112 Stat. 3497, 3503-18 (1998), codified at 16 U.S.C. Sec. 5951 et seq. (Supp. IV 1998) (the 1998 Act). The 1998 Act, which repealed and replaced the National Park Service Concession Policies Act of 1965 (16 U.S.C. Sec. 20 et seq.) (the 1965 Act), had as one of its primary objectives the enhancement of competition in NPS concession contracting. See 65 Fed. Reg. 20630 (Apr. 17, 2000). Specifically, the 1998 Act established a competitive selection process for the award of concession contracts and generally eliminated the preferential right of renewal that existed for the incumbent concessioner under the 1965 Act. 16 U.S.C. Sec. 5952. Both the Senate and House reports on the 1998 Act--but not the statute itself--expressed the view that concession contracts do not constitute contracts for the procurement of good and services for the benefit of the government or otherwise. S. Rep. No. 105-202, at 39 (1998); H.R. Rep. No. 105-767, at 43 (1998). Similarly, the agency regulations developed to implement the 1998 Act state that [c]oncession contracts are not contracts within the meaning of 41 U.S.C. 601 et seq. (the Contract Disputes Act) and are not service or procurement contracts within the meaning of statutes, regulations or policies that apply only to federal service contracts or other types of federal procurement actions." 36 C.F.R. Sec. 51.3 (2000). In general terms the prospectus here requires the concessioner to provide ferryboat services to Monument visitors at rates and at minimum frequencies as determined by the NPS. Prospectus, Business Opportunity, at 2-3.