When an individual or company objects to the terms of a prospectus or a decision by NPS related to a solicitation for a concession contract, there are several potential forums where that person can challenge NPS’s action by filing a protest. Each forum has its own requirements and deadlines for submitting a protest, as well as associated upsides and downsides. The potential forums include a federal District Court, the U.S. Government Accountability Office (GAO) and the United States Court of Federal Claims. A brief discussion of each forum and their applicable rules is set out below.
A decision related to either the terms of a concession prospectus or the evaluation of proposals submitted in response to a prospectus can be filed at a federal District Court in certain situations. Federal District Courts can hear these challenges if the concession contract is deemed by the court not to be a procurement. In fact, several lawsuits related to solicitations for NPS concession contracts have been recently filed in federal District Courts and NPS as well as the courts have agreed that the concession contracts at issue are not procurements, thus giving the court the ability to hear the protest. Typically, any such protest should be brought as soon as the basis for the challenge is known. In addition, if a party has objections to the terms of the prospectus, a protest regarding those terms should be brought before the proposals are submitted to avoid the risk that the challenge could be rejected as being too late. The lawsuit can potentially be brought either in the federal District Court which has jurisdiction over the area where the concession operations occur or in the federal District Court located in Washington, D.C. If the District Court agrees with the basis for the protest, it has the ability to invalidate any decision by NPS and require it to comply with the law.
Another potential forum for a challenge to any such decision is the GAO, also located in Washington, D.C. Contrary to the positions taken by some of the District Courts, GAO has held that NPS concession contracts which involve a sufficient amount of maintenance of federal structures are in fact procurement contracts which allows GAO to hear challenges related to them. GAO has strict deadlines for submitting protests, including a requirement that a protest be brought within 10 days of when the basis for it became known. While the GAO is typically a less costly forum for pursuing a protest, NPS has recently refused to provide any internal documents related to its decisions involving concession contracts to GAO when protests are filed. The result is that it can be very difficult to prevail on a protest where a resolution of the issues raised by the protester requires an examination of NPS’s internal documents.
A third potential forum for protests is the United States Court of Federal Claims. The Court of Federal Claims also has effective deadlines as to when a protest must be filed which require protests to be filed in a timely manner. Unlike the District Courts, the Court of Federal Claims can award a successful protester its costs for having prepared its proposal. However, the Court of Federal Claims has also recently ruled that, when it agrees that an NPS decision related to a concession contract was incorrect, the court can only provide these costs to the protester and cannot require NPS to revise its evaluation process or otherwise comply with the law. This limitation on the potential relief available is significant and is an important difference from relief available from the federal District Courts.
Selecting the most advantageous forum for any protest requires a careful and knowledgeable assessment of the basis for the protest and the forum’s prior holdings on the issues involved in the protest.