DNC Parks & Resorts at Yosemite, Inc.

B-410998 Apr 14, 2015 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights DNC Parks & Resorts at Yosemite, Inc. (DNC), of Buffalo, New York, challenges the terms of prospectus No. CC-YOSE004-16, which was issued by the Department of the Interior, National Park Service (NPS), for a concession contract to operate, maintain, and make improvements to national park facilities located in Yosemite National Park and the El Portal Administrative Site. DNC, the incumbent contractor, argues that the Prospectus is inconsistent with applicable regulations and will not allow for a reasonable assessment of proposals because it is based on a flawed estimate of the initial capital investment that a non-incumbent awardee would be required to make by purchasing the incumbent contractor's assets. We dismiss the protest. We dismiss the protest. View Decision DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release. Decision Matter of:      DNC Parks & Resorts at Yosemite, Inc. File:                B-410998 Date:              April 14, 2015 Jennifer A. Shah, Esq., Nicolas J. Rotsko, Esq., and Spencer L. Durland, Esq., Phillips Lytle LLP, Thomas P. McLish, Esq., and Joseph W. Whitehead, Esq., Akin Gump Strauss Hauer & Feld LLP, for the protester. Melissa Lackey, Esq., and Daniel Pulver, Esq., Department of the Interior, for the agency. Evan D. Wesser, Esq., and Jonathan L. Kang, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1.  Government Accountability Office (GAO) has jurisdiction to hear a protest of the terms of a National Park Service concession prospectus where, in addition to authorizing the contractor to furnish concession services, the prospectus requires the contractor to furnish goods and services of more than a de minimus value to the government. 2.  Where an agency refuses to furnish an agency report responding to a protest, GAO will decide the protest on the basis of the documents available, even if that record is limited to documents submitted by the protester. 3.  GAO will not resolve disputes involving interpretation of an existing contract between the protester and the agency, even where the value of the assets to be acquired by the follow-on contractor from the protester bears upon evaluation factors of the current solicitation, because this involves a matter of contract administration not subject to GAO’s review. 4.  Protest challenging a solicitation’s estimate for the value of assets that the successor contractor will be required to acquire from the incumbent contractor as creating material uncertainty prohibiting a reasonable comparative evaluation of proposals is dismissed where the protester failed to establish that it is an interested party to challenge the estimates in the absence of any competitive prejudice. DECISION DNC Parks & Resorts at Yosemite, Inc. (DNC), of Buffalo, New York, challenges the terms of prospectus No. CC-YOSE004-16, which was issued by the Department of the Interior, National Park Service (NPS), for a concession contract to operate, maintain, and make improvements to national park facilities located in Yosemite National Park and the El Portal Administrative Site.  DNC, the incumbent contractor, argues that the Prospectus is inconsistent with applicable regulations and will not allow for a reasonable assessment of proposals because it is based on a flawed estimate of the initial capital investment that a non-incumbent awardee would be required to make by purchasing the incumbent contractor’s assets. We dismiss the protest. BACKGROUND The Prospectus seeks proposals to conduct the concession operations at Yosemite National Park and the El Portal Administrative Site, including overnight accommodations, food and beverage, retail, auto fuel, recreation activities, and related services.  Prospectus, Bus. Opp., at 1.  The Prospectus anticipates the award of a 15-year contract.  Id. at 12.  The concessioner, in exchange for the right to conduct the concession operations, will be required to pay the agency a portion of gross receipts, or a “franchise fee.”  Id., Draft Contract, at 15.  The minimum franchise fee is eight percent.  Id., amend. No. 12, at 3.[1] The Prospectus and resulting award are subject to NPS’s Concession Contracts regulations, located at 36 C.F.R. part 51.  Id., Bus. Opp., at 1; Proposal Instructions, at 1.  Consistent with the requirements of 36 C.F.R.