Re: Delaware North Copyright Fight

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markskor
While in full agreement that this makes no sense, however...
Back in 1993 DNC was "obligated" to then purchase these rights (names - Ahwahnee, Curry, Wawona, etc) as a codicil to the contract in order to take over the concessions. IIRC, it cost them ~$20 million in 1993 dollars - and they paid up. This is not much different/ basically the same as today's takeover concession process except the price has risen. Why was there no outrage way back then? They knew then that this was part of the contract...inevitably this "cost" to be passed on to the next operator too.

Allowing for inflation, what would $20 mil be in today's dollars?

DNC is asking $51 million today...possibly inflating the worth a little, but...(BTW, never happy with the way DNC acted as stewards of Yosemite...a bit money grubbing for my taste, but) - if they were forced then also to pay for the same names...
Whatever, whoever pays (doesn't pay), this sucks...all about the almighty dollar.

Edit to add...
For me this does not bode well for the new concessionaires - Aramark.
They knew, or should have known...(I knew), about this "passing on of name rights" cost clause when they bid on the billion dollar Yosemite contract. All should have been discussed/ironed out long before bidding, not afterwards.
Now they are refusing to pay...alas, either naive or maybe not the right people to run our park.

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parklover

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markskor
While in full agreement that this makes no sense, however...
Back in 1993 DNC was "obligated" to then purchase these rights (names - Ahwahnee, Curry, Wawona, etc) as a codicil to the contract in order to take over the concessions. IIRC, it cost them ~$20 million in 1993 dollars - and they paid up. This is not much different/ basically the same as today's takeover concession process except the price has risen. Why was there no outrage way back then? They knew then that this was part of the contract...inevitably this "cost" to be passed on to the next operator too.

Allowing for inflation, what would $20 mil be in today's dollars?

DNC is asking $51 million today...possibly inflating the worth a little, but...(BTW, never happy with the way DNC acted as stewards of Yosemite...a bit money grubbing for my taste, but) - if they were forced then also to pay for the same names...
Whatever, whoever pays (doesn't pay), this sucks...all about the almighty dollar.

Edit to add...
For me this does not bode well for the new concessionaires - Aramark.
They knew, or should have known...(I knew), about this "passing on of name rights" cost clause when they bid on the billion dollar Yosemite contract. All should have been discussed/ironed out long before bidding, not afterwards.
Now they are refusing to pay...alas, either naive or maybe not the right people to run our park.

As I understand it, Aramark is not refusing to pay because the NPS has not asked them to pay and had not included paying for the names in their contract before all this who hah started. Also, there is a lot of confusion about what exactly DNC was required to purchase because it appears that there was not an actual list and a lot is left to interpretation. Not to mention that DNC trademarked names behind the back of the NPS after they had the contract and also after they knew they lost it. I don't just blame DNC in this matter because the NPS clearly had dropped the ball and after the issue with Xantera they should have been more careful with contracts. Not to mention you have to wonder what the Patent and Trade Office was thinking when they approved the new trademark applications.

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y_p_w

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parklover

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markskor
While in full agreement that this makes no sense, however...
Back in 1993 DNC was "obligated" to then purchase these rights (names - Ahwahnee, Curry, Wawona, etc) as a codicil to the contract in order to take over the concessions. IIRC, it cost them ~$20 million in 1993 dollars - and they paid up. This is not much different/ basically the same as today's takeover concession process except the price has risen. Why was there no outrage way back then? They knew then that this was part of the contract...inevitably this "cost" to be passed on to the next operator too.

Allowing for inflation, what would $20 mil be in today's dollars?

DNC is asking $51 million today...possibly inflating the worth a little, but...(BTW, never happy with the way DNC acted as stewards of Yosemite...a bit money grubbing for my taste, but) - if they were forced then also to pay for the same names...
Whatever, whoever pays (doesn't pay), this sucks...all about the almighty dollar.

Edit to add...
For me this does not bode well for the new concessionaires - Aramark.
They knew, or should have known...(I knew), about this "passing on of name rights" cost clause when they bid on the billion dollar Yosemite contract. All should have been discussed/ironed out long before bidding, not afterwards.
Now they are refusing to pay...alas, either naive or maybe not the right people to run our park.

As I understand it, Aramark is not refusing to pay because the NPS has not asked them to pay and had not included paying for the names in their contract before all this who hah started. Also, there is a lot of confusion about what exactly DNC was required to purchase because it appears that there was not an actual list and a lot is left to interpretation. Not to mention that DNC trademarked names behind the back of the NPS after they had the contract and also after they knew they lost it. I don't just blame DNC in this matter because the NPS clearly had dropped the ball and after the issue with Xantera they should have been more careful with contracts. Not to mention you have to wonder what the Patent and Trade Office was thinking when they approved the new trademark applications.

If you've seen the federal response to Delaware North's lawsuit, they claim that their obligation to require the new concessionaire to purchase intangible assets is voided by Delaware North's bad faith in hiding their claim to the trademarks. Apparently they never listed them in any annual reports of assets, and they specifically didn't include them in a 2011 listing of assets requested by NPS, even though the appraisal they sought was from 2010. The 11th hour nature of "Oh - and the new guy is going to owe us for this stuff" seems to have been designed as a poison pill to make a new bidder think twice.

It's especially messy since (as you noted) there was no asset list, and the number of registered trademarks was minimal (although it includes "The Ahwahnee" ).

I don't even know if this is necessarily about the almighty dollar. The PR types at Delaware North must understand that this is a PR nightmare that can't possibly put them in a good light. Many people are noting where Delaware North operates casinos, stadium/event concessions, other park concessions, and other businesses. This is bound to be a consideration (even if not specifically noted) when new contracts come up with the National Park Service.

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On May 30, almost a month after NPS posted a notice of a site visit in advance of the release of the Prospectus, counsel for DNC notified NPS that it had undertaken its own valuation of the Other Property that DNC uses in connection with its incumbent operations, which DNC appraised at approximately $100 million. See Letter from DNC Asst. General Counsel to Yosemite Superintendent (May 30, 2014) at 1. Relevant to the issues in this protest is certain DNC intangible property, comprised of intellectual property, a customer database, and internet-related intangibles (hereinafter, the “Intangible Other Property”). DNC, based on third party appraisals, asserts that the “fair value” for its Intangible Other Property is approximately $51.2 million, which is comprised of: $36 million for 32 trademarks and service-marks; $8 million for “brand extension value” for the marks; $2 million for DNC’s customer database; and $5 million for Yosemite-related domain names, websites, and social media accounts.

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Additionally, the “harm” to DNC appears to be that the alleged “broad range” between NPS’s and DNC’s estimates could dilute its incumbent advantage because the Prospectus’ estimate suggests that DNC should only have a $3.5 million advantage over its competitors with respect to the Intangible Other Property that DNC, as the incumbent, will not be required to account for in its proposal. See DNC Br. (Mar. 4, 2015) at 7 (arguing the alleged range in the Prospectus “prejudices DN[C] because it encourages and rewards a buy-in strategy” from other offerors). We do not find that a protest concerning this type of harm falls within the scope of our jurisdiction under CICA, which requires us to ensure that the statutory requirements for full and open competition are met--not to protect any interest a protester may have in more restrictive specifications. See Virginia Elec. & Power Co.; Baltimore Gas & Elec. Co., B-285209, B-285209.2, Aug. 2, 2000, 2000 CPD ¶ 134 at 7-8. In this regard, our Office generally does not permit a protester to use our Bid Protest function to advocate for more restrictive, rather than more open, competitions for government requirements. E.g., New Mexico State Univ., B-409566, June 16, 2014, 2014 CPD ¶ 228 at 5 (denying an incumbent’s protest challenging an agency’s decision to not require pricing for components for which the incumbent had an exclusive teaming arrangement with the sole manufacturer); Honeywell Tech. Solutions, Inc., B-407159.4, May 3, 2012, 2013 CPD ¶ 110 at 3 (denying an incumbent’s protest that the solicitation should have included more 6 stringent minimum relevance levels under the past performance evaluation factor).

We dismiss the protest.

Susan A. Poling
General Counsel

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parklover
Wow this is one of those times that I wish I was an attorney so I could understand it more quickly.

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parklover
Wasn't the inherent advantage thing removed by an amendment to contracts (36-CRF part 51) in the final rule in 2000?