GLBA0TV-24 Q_A 9-14-23.pdf

CC-GLBA0TV-24 Prospectus Questions – Service Responses

To: All recipients of the Prospectus, CC-GLBA0TV-24, to provide Tour Vessels and Related Services within Glacier Bay National Park & Preserve. In the Prospectus, issued August 14, 2023, the National Park Service (Service) stated it would respond to questions submitted in writing (including e-mail) received by 4:00 P.M. 9/1/2023.

Questions received by the deadline and the Service’s responses are provided below. Please note that question text may have been modified to ensure clarity and anonymity.

Business Opportunity

Question 1: The Business Opportunity, page 5, Exhibit 2, does not list any Required Visitor Services.

Neither does section 2 of the Draft Contract. Can the National Park Service (NPS) clarify the required Visitor Services under the Contract?

Service Response: Exhibit 2 lists the required services as “Tour Vessel Services” and specifies that this refers to “one or more of the authorized services stated below.” The phrase “authorized services stated below” refers to the table at Exhibit 3. Thus, the required visitor service a Concessioner must provide is at least one of the services listed in Exhibit 3.

Question 2: The Business Opportunity, page 7, states that the Service will competitively allocate 184 summer season use days and 122 shoulder season use days, for a total of 306 use days. It also states that the maximum number of tour vessel use days that NPS will competitively allocate to any one company is 60 summer season use days and 40 shoulder season use days, for a total of 100 use days. In the last prospectus, the maximum number of use days that an offeror could request was 102, rather than 100. (See also Proposal Package, page 9, Tour Vessel Use Day Request.)

(1) Will the NPS consider going back to 102 day maximum permit?

Service Response: The Service will keep the allocation numbers as posted in the prospectus. The Service considered information developed since the last Prospectus and concluded that 100 days was more appropriate and necessary to ensure the prospectus meets statutory/regulatory 54 USCS § 101912(b) & 36 CFR 51.2.

Proposal Instructions

Question 3: The Proposal Instructions, page 5, paragraph 9 (Preferred Offeror Determinations) state that NPS has determined that a preferred offeror for this contract exists under section 403 of the Concessions Management Improvement Act (CMIA) and implementing regulations. The basis for that determination, however, is not clear. In addition, this paragraph does not specifically address the separate preferences that are applicable to this prospectus under section 1307 of ANILCA. Will the NPS clarify its statement regarding a preferred offeror determination under section 403 of the CMIA as well as add a discussion regarding the applicable preferences under section 1307 of ANILCA? In the last prospectus for these services, NPS separately discussed the preferences under the CMIA and ANILCA. It thoroughly discussed the preferences applicable under section 1307 of ANILCA. It also stated that NPS had determined that these were not qualified concession contracts under the CMIA and therefore that no preferred operator existed for these contracts under the CMIA provisions.

Service Response: The Service will correct the Proposal Instructions, page 5, paragraph 9) Preferred Offeror Determinations, the 2nd sentence to read the following. “Under the provisions of 36 C.F.R Part 51, Subparts E and F, the Service has determined that this is not a qualified concession contract, and, therefore, no Preferred Offeror for this contract exists.”

Note that the preferential right of renewal provided for in 54 USCS § 101913 and the definition of Preferred Offeror under the regulation (36 C.F.R. 51.27) is different than the definition of Preferred Operator under ANILCA Section 1307. ANILCA Preferred Operators are determined by the submission of the ANILCA 1307 Preferred Operator Application found on page 8 and 9 of the Proposal Package.

ANILCA Section 1307.

The Alaska National Interest Lands Conservation Act (ANILCA), Section 1307 (16 U.S.C.

3197) includes provisions concerning persons and entities who are to be given special rights and preferences with respect to providing commercial visitor services in conservation system units in Alaska – Historical Operators and Preferred Operators.

Historical Operator means “the holder of a valid written authorization from the Director to provide visitor services within a park area that on or before January 1, 1979, was lawfully engaged in adequately providing such visitor services in the applicable park area” (36 C.F.R 13.305). The NPS has determined there is no historical operator for this concession contract.

Preferred Operator means “a Native Corporation that is determined under 36 C.F.R 13.325 to be “most directly affected” by the establishment or expansion of a park area by ANILCA, or a local resident as defined in this subpart.” Local Resident is defined in 36 C.F.R 13.305.

On June 4, 1997 the National Park Service invited Native Corporations to apply for “most directly affected” status, pursuant to 36 C.F.R 13.325. Huna Totem Corporation was determined to be a Native corporation “most directly affected” by the establishment of Glacier Bay National Park and Preserve. Other Native Corporations may apply for this same determination in conjunction with this solicitation, pursuant to 36 C.F.R 13.325. See Proposal Package – ANILCA Section 1307 Preferred Operator Application.

Local residents (individuals and corporations) may apply for the preferred operator preference in conjunction with this solicitation, pursuant to 36 C.F.R 13.315. See Proposal package – ANILCA Section 1307 Preferred Operator Application.

The Native Corporations determined to be “most directly affected” and local residents have equal preference (36 C.F.R 13.315).

Question 4: Proposal Instructions Section 4 / Privacy Statement Public companies are limited in regard to providing financial information. In addition to the provisions mentioned in Proposal Instructions Section 4 and in the Privacy Statement, are there additional measures that can be put in place to protect public companies’ financial information, such as an NDA?

Service Response: The Service cannot impose additional or different restrictions on information submitted in response to the prospectus beyond those restrictions already provided for in the Proposal

Instructions, Section 4) b). Please use the two legends found in the Proposal Instructions, Section 4) b) to protect trade secrets, confidential commercial or financial information. Information so identified will not be made public by the Service except in accordance with the law.

Proposal Package

Question 5: Will the National Park Service please discuss how Offeror's should address the apparent overlap between PSF1, Subfactor 1a, Part 1, and Secondary Selection Factor 2? What is the difference between these two?

Service Response: The Service recognizes questions on wildlife are addressed in both PSF1 and SSF

2. PSF1 is about minimizing the effects on wildlife for both marine and land operations, while SSF2 is about reducing the concessioners effects on marine wildlife through reduced speed and operational tools to reduce collision risk and decrease disturbance.

Question 6: Subfactor 1(c). Preserving the Underwater Noise Environment of the Park Area This subfactor refers to MEPC.1/Circ.833. However, these regulations were revoked and replaced with MEPC.1/Circ.906 on 22nd August 2023. The new guidelines will take effect on 1 October 2023. Will the NPS advise?

Relevant text: “Describe your operational methods, including but not limited to equipment, you will use to minimize underwater noise aboard each vessel operating in the Park. A better proposal would demonstrate knowledge of and compliance with the International Maritime Organization’s 2014 guidelines for the reduction of underwater noise (MEPC.1/Circ.833) and performance indicators developed for the Green-Marine.org environmental program for all vessels proposed to operate in the Area.”

Service Response: These regulations were revoked and replaced after the posting of the Prospectus.

The Service will amend PSF1, Subfactor 1(c) to reflect the change from MEPC.1/Circ.833 to MEPC.1/Circ.906.

Question 7: Principal Selection Factor 3, Subfactor 3(c) of the Proposal Package requests information regarding violations and safety records. Subfactor 3(c)(1) specifies that infractions within the last five years must be listed. Subfactor 3(c)(4) asks if the Offeror had any marine casualties or accidents but doesn’t specify a time period. If yes, Subfactor 3(c)(4) further instructs the Offeror to list all marine casualties or accidents using the provided chart format, providing the date of incident, type of casualty or incident, number of fatalities, dollar amount of property damage, total accident cost, and geographical location of incident.

(1) What is the time period for any marine casualties or accidents that must be reported in response to Subfactor 3(c)(4)?

(2) How does NPS define marine casualties or accidents for purposes of this subfactor? U.S. Coast Guard regulations at 46 C.F.R. § 4.03-1 define “marine casualty or accident” to include, among other events, “[r]eduction of loss of a vessel’s electrical power, propulsion, or steering capabilities.” U.S. Coast Guard Form CG-2692, Report of Marine Casualty, similarly requires reporting, among other events, for accidents that involve “[l]oss of main propulsion or primary steering, or an associated component or control system, the loss of which causes a reduction of the maneuvering capabilities of the vessel” and explains that “[l]oss means that systems, component parts, subsystems, or control systems do not perform the specified or required function.” These are broad definitions.

Service Response: The Service wants to see any marine casualties or accidents that were reported in the last five years for Subfactor 3(c)(4). The Service will amend the Proposal Package, Principal Selection Factor 3, Subfactor 3(c) 4) to reflect the five-year requirement. The NPS uses the United States Coast Guard regulations to define marine casualties and accidents.

Question 8: Subfactor 3(c). Violations and Safety Record Will the NPS provide further clarification of the term “related entities” in this section?

• Would “related entities” include only the Offeror’s entities that operate (or will operate) in Glacier Bay National Park? Or would “related entities” include all entities owned by the Offeror that provide a similar service, even those that operate in different geographies and would not operate in Glacier Bay National Park? • If “related entities” includes vessels that would not operate in Glacier Bay, can the NPS also clarify whether “related entities” would also include chartered vessels (those that the Offeror does not own, but operates for certain itineraries) that would not operate in Glacier Bay?

Service Response: Related entities includes all entities owned by the offeror that provide similar services wherever they operate and regardless of whether the related entity owns or charters the vessels it uses.

Draft Contract – Exhibit B Operating Plan

Question 9: Section 4(C) of Exhibit B of the Draft Contract, the Operating Plan, defines “Relinquished/Revoked Tour Vessel Use Day Pool” to “refer to those relinquished or revoked use days for an individual year that are not currently allocated to a specific concessioner, but which may be available for use.” Section 4(C)(1)(a) (emphasis added), however, defines “relinquished use days” as tour vessel use days that the Concessioner or another concessioner has been allocated but which concessioner notified the Service, within the requirements of the Contract, that it will not use in a particular year.”

Because, although they are not being used in a particular year, relinquished use days remain allocated to a specific concessioner, the definition of Relinquished/Revoked Tour Vessel Use Day Pool appears to be inaccurate. Will NPS revise the definition of Relinquished/Revoked Tour Vessel Use Day Pool to be consistent with the definition of relinquished use days and to clarify that such days are allocated (as distinguished from revoked use days), but simply not being used in a particular year. If not, please explain.

Service Response: The Service will amend Exhibit B of the Draft Contract, the Operating Plan, Section 4(C)(1)(a) to state: “Relinquished/Revoked Tour Vessel Use Pool Day” refers to those relinquished or revoked use days for an individual year that may be available for use.

Question 10: Section 4(C)(2)(a) of Exhibit B of the Draft Contract, the Operating Plan, states that “Relinquished/Revoked Tour Vessel Use Day Pool days will be offered on a first come, first serve basis.”

Although it is somewhat unclear how NPS intends this would work (including how NPS would notify concessioners in a manner that ensures fairness), such a proposal is inconsistent with the letter and spirit of section 1307 of the Alaska National Interest Lands Conservation Act (ANILCA), which provides special rights and preferences with respect to the provision of commercial visitor services in conservation system units in Alaska. While the solicitation appropriately (though not consistently) recognizes that it is required to provide for the preferred operator preferences under section 1307 of ANILCA in issuing the contracts in the first instance, that preference should similarly apply to the offer of Tour Vessel Use Days from the Relinquished/Revoked Tour Vessel Use Days Pool. Section 1307(b) of ANILCA provides:

Notwithstanding provisions of law other than those contained in subsection (a), of this section, in selecting persons to provide (and in contracting for the provision of) any type of visitor service for any conservation system unit, except sport fishing and hunting guiding activities, the Secretary-

(1) shall give preference to the Native Corporations which the Secretary determines are most directly affected by the establishment or expansion of such unit by or under the provisions of this Act;

(2) shall give preference to persons whom he determines, by rule, are local residents;

16 U.S.C. § 3197(b). Similar to the offering of the initial contracts, the offering of additional Tour Vessel Use Days from the Relinquished/Revoked Tour Vessel Use Days Pool involves the selection of entities to provide visitor services. Although these additional Tour Vessel Use Days, by their nature, were not available at the time of initial contracting, had they been available and had they been added to the additional Tour Vessel Use Days for which offerors were able to then submit an offer, the offer of these days would have been subject to the ANILCA preferences. The fact that these days are only becoming available after the initial solicitation should in no way affect the application of the preference.

Accordingly, the proposed methodology for awarding Tour Vessel Use Days from the Relinquished/Revoked Tour Vessel Use Days Pool is inconsistent with the letter and spirit of section 1307 of ANILCA.

(1) Did NPS consider section 1307 of ANILCA in developing its proposed methodology for awarding additional Tour Vessel Use Days from the Relinquished/Revoked Tour Vessel Use Days Pool?

(2) If the answer to (1) is yes, please explain how the proposed methodology reflects Congress’s direction in section 1307 of ANILCA.

(3) Will NPS revisit this proposed methodology and appropriately provide Preferred Operators under section 1307 of ANILCA a preference for award of Tour Vessel Use Days from the Relinquished/Revoked Tour Vessel Use Days Pool?

Service Answer: The Service does not consider 1307 of ANILCA when awarding additional Tour Vessel Use Days from the relinquished/revoked Tour Vessel Use Days. ANILCA Section 1307 is used to select preferred operators as outlined in 36 CFR 13.315, Preferred Operators and the Proposal Package, 7), Offering of the Contracts. The Service is not currently engaged in any efforts to change the manner in which it awards Vessel Use Days from the pool.

Exhibit F Intellectual Property Licensed Marks

Question 11: The list of Marks described in Exhibit F, Intellectual Property Licensed Marks, appears to be exceedingly broad and to include Marks that NPS does not control, including but not limited to general terms like “Glacier,” “Passage,” “Peak,” “Snow,” and “Tidal,” “Gustavus” (an incorporated city), and others. Will NPS refine this list as appropriate?

Service Answer: The Service will refine the list.