MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:

My name is Ralph W. Tarr. I served as Solicitor of the U. S. Department of the Interior from 1985 to 1989, and am currently an attorney with the law firm of Andrews & Kurth L.L.P. We have been providing legal advice to the Gettysburg Battlefield Coalition (the "GBC" or the, "Coalition") and the McGorrisk Group with respect to preparation of a response to the National Park Service's Request for Proposals (the "RFP" or the "Gettysburg RFP") regarding a public-private partnership to construct new visitor center and museum facilities at Gettysburg National Military Park ("Gettysburg NMP" or the "Park"), and to the selection process. The GBC is a nonprofit entity composed of professionals from across our Nation who came together because of a deep and abiding interest in the proper preservation and interpretation of the battlefield and its collection of Civil War archives and artifacts. The professionals associated with the Coalition came together to provide, and have provided, a not-for-profit alternative to the National Park Service in response to the RFP. I appreciate this opportunity to discuss the Gettysburg RFP solicitation and selection process with you today.

Imagine ushering President Abraham Lincoln through the mini-mall now proposed by the National Park Service within the Gettysburg NMP prior to his planned speech rededicating and reconsecrating the Gettysburg National Cemetery. You walk him down the center gallery, browse through the gift shops, and walk past the 500-seat family food court, to a viewing of the giant IMAX theater presentation in the 450-seat "National Geographic Gettysburg Theater," and then lead him to a pre-ceremony meal at the 150-seat "upscale casual" restaurant with its "white tablecloth" service. You notice the rather stem, but deeply saddened look on the face of the President as he scratches on an envelope at the table. You can imagine that he is scratching out the following portion of his planned address:

But in a larger sense, we cannot dedicate -- we cannot consecrate we cannot hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember, what we say here, but it can never forget what they did here.

As you sit there watching, you can see President Lincoln wondering how Americans could have agreed to a commercial mini-mall on hallowed ground, and how a government agency charged with preservation of this sacred ground could have become a shill for these commercial ventures, and could have shirked its responsibilities and turned over interpretation of the Battlefield to the makers of the IMAX movie presentation. Would you feel comfortable in explaining to President Lincoln that the National Park Service, the government agency charged with preserving and interpreting the Battlefield for current and future Americans, believed that it had made a good deal in gaining the anteroom to the mini-mall as a visitors center, and that it had no choice but to encourage visitors to patronize the commercial shops, restaurants, and theater so that the mortgage on the building would be paid. Or, perhaps you would be comfortable in more aggressively lauding the National Park Service for having successfully leveraged its General Management Plan with this public-private partnership, and convincing Americans to donate $22 million, 55% of the cost of the project, to support the private commercial ventures in the mini-mall.

Fortunately, none of us will find ourselves in the position of having to explain these matters to President Lincoln. But we all will have to explain them to our children and grandchildren, and  the descendants of those who fought on the Gettysburg Battlefield, if the National Park Service is allowed to proceed with its proposed project. Thankfully, the project has not been built and the Members of this Subcommittee have called this hearing to take an objective view on behalf of all Americans.

How did we reach this point, where the National Park Service is willing to suffer a commercial mini-mail within the Battlefield in order to have a modest visitors center and museum; where the Park Service has lost its vision of creating "the premier [collections storage, visitor center, and museum facility] of its kind"; and where the driving force for this project, the need to have a facility in which the Park Service can preserve and restore the Park's extensive collection of archives and artifacts under proper conditions, has not even been addressed publicly with respect to the proposed project? The answer is that the National Park Service has pursued a deceptive, if not illegal, process in an inept and unfair manner, that has suggested frequently over the past several months that the Park Service had predetermined the outcome of the process. Through this course of conduct, the Park Service has not given itself or the American people a fair opportunity to consider and to pursue a not-for-profit alternative for a public-private partnership.

Deceptiveness of the Process

On December 11, 1996, the Park Service released the RFP, giving every impression it was establishing a fair and open competition for a public-private partnership. The RFP sets forth the project's program and criteria for site evaluation, the process, submission requirements, including a deadline beyond which the Park Service would not accept proposals, and the criteria for selection. Throughout the solicitation period Superintendent John Latschar made repeated statements publicly that everything was being done "by the book", at times referring in this regard to the Federal  Acquisition Regulations (the "FAR"). As late as December 4, 1997, Park spokeswoman, Katie Lawhon, was quoted in the Gettysburg Times as explaining that because of the requirements of the FAR and Defense Department contracting guidelines, the proposals received in response to the RFP were not public documents and could not be released to the public.

Since the selection was announced, however, the Department of the Interior and the National Park Service on other occasions have taken the position that the requirements of the FAR do not apply because the RFD seeks to enter into a cooperative agreement, which is specifically excluded from the definition of contracts subject to the FAR. Thus, for example, the Park Service has taken the position that it is not required to provide a debriefing to unsuccessful respondents in a timely manner, or at all (48 C.F.R.  1 5.1004), and the Department of the Interior has taken the position that the Secretary is not required to conduct an independent review of the solicitation process and National Park Service Director Robert Stanton's decision (48 C.F.R. 33.103(c)(4)). Without the FAR, however, there is no "book" to follow. In fact, the reason the Park Service likes to use cooperative agreements is because it can enter into them on a "sole source" basis, without having to first seek competitive bids.

It is now obvious that the National Park Service gave the impression that it was, following. the requirements of the FAR in order to create the appearance of an objective, fair competition so that the resulting selection would have greater credibility, while at the same time, believing that it had complete discretion to make the rules up as it went along because it could have simply sole- sourced the agreement from the beginning.

Applicability of the FAR

The FAR codifies and publishes uniform policies and procedures for acquisition by all federal government agencies. In defining "acquisition," the FAR refers to the acquiring "by contract with appropriated funds of supplies or services (including construction) by or for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created" (48 C.F.R. 2.101). The definition of "contract" excludes cooperative agreements covered by 31 U.S.C. 6301 et seq. By the sections referenced, Congress sought to prescribe the criteria for executive agencies in selecting appropriate legal instruments from among grants, cooperative agreements and procurement contracts, in order to promote increased discipline on the part of agencies in using these legal instruments. The statutory authority of the National Park Service to enter into cooperative agreements, 16 U.S.C.  I g, specifically refers to Section 6305 of this series, which prescribes when an executive agency shall use a cooperative agreement. Section 6305, subdivision (1), prescribes that

the principal purpose of the relationship is to transfer a thing of value to the State, local government, or other recipient to carry out a public purpose of support or stimulation authorized by law of the United States instead of acquiring (by purchase, lease, or barter) property or services for the direct benefit or use of the United States Government.

Given the structure of the Park Service proposal, that involves leasing a portion of the facilities to be constructed for its use, a procurement contract, which is clearly subject to the FAR, would appear to be the more appropriate instrument, as prescribed by Section 6303, subdivision (1) of Title 3 1:

the principal purpose of the instrument is to acquire (by purchase, lease, or barter) property or services for the direct benefit or use of the United States Government.

If the Park Service were correct, that a cooperative agreement is the appropriate legal instrument for a project of this kind, the question for Congress to consider is whether or not the entry into a cooperative agreement such as that contemplated by the Park Service with respect to Gettysburg NMP should be subject to the FAR or some other structure that ensures an open, fair and competitive process, pursuant to which the Park Service can he held accountable.

Unfair and Ineptly Conducted Solicitation and Selection Process

At the very least, the Park Service has unfairly and ineptly conducted the solicitation and selection process. I would like to provide you with a few examples. The first indication that this process was suspect came when Superintendent Latschar, nearly four months after the RFP was released, and the Monday (April 7, 1997) of the week in which the proposals were due on Friday (April 11, 1997), granted a 30-day extension in response to a letter from the ultimately successful respondent requesting a two-week extension. That letter, which was not made available publicly by the Park Service until the end of October, 1997, claimed the respondent had "full control" of its recommended site, when in fact, the respondent has never had full control of the site, even on the date the selection was announced, or even as late as last week (the last information we have). Written notice of this extension was given to potential respondents by ordinary mail, Which the GBC did not receive until the day before the proposals were originally due. This last-minute extension prejudiced GBC and other respondents who were prepared to proceed on the original schedule.

The entire credibility of this process fell apart in mid-October, 1997, when the Department of the Interior leaked the identity of the successful respondent and a general description of the selected proposal and provided an inaccurate and unfair characterization of at least the GBC proposal. The Department and the Park Service denied the accuracy of these reports in the USA Today. We now know, however, the reports were accurate, except perhaps to the extent Director Stanton had not actually signed the Decision Memorandum. None of the unsuccessful respondents were advised of the decision until the day before the public announcement on November 7, 1997 The Park Service made public the Decision Memorandun at the press conference in Gettysburg on that day, prior to providing it to unsuccessful respondents. At the press conference, the Park Service also handed out copies of press releases from the National Trust for Historic Preservation and the National Parks and Conservation Association, ostensibly supporting the selection.

All of this public "shopping" of the proposals destroyed any appearance of an objective decision-making process. This conduct removed the cloak of open and fair competition. The Park Service totally managed this semi-public selection process to reach the result it wanted. Perhaps its previous failed attempt to sole-source this same project motivated the Park Service to attempt to create the aura of open and fair competition around the RFP.

Further undermining the objectivity of this process is information we have seen that was released in response to a Freedom of Information Act request. Although Michael Adlerstein, Chairman of the Evaluations Panel, has publicly taken credit for selecting the members of that panel, e-mail messages from Superintendent Latschar indicate that he was deeply involved in selecting the members, but stayed off of the panel himself for "local political reasons."

Furthermore, the Decision Memorandum sent by Mr. Adlerstein to Director Stanton, which the Director subsequently signed indicating his agreement, contains a very limited evaluation of the respective proposals and an inaccurate description of at least the GBC proposal. In response to agency-level protests filed by two of the unsuccessful respondents, the Park Service prepared a more comprehensive evaluation of the proposals, which resulted in the upgrading of both of the unsuccessful proposals, but still failed to accurately depict them. In the case of the GBC, both of the written analyses we have been provided completely ignore the clarifying information we provided to the Evaluation Panel during our interview. It is as if the interview never occurred. More troubling is the apparent lack of a careful analysis of the pro forma financial analyses required to accompany each proposal. Illustrative is the Park Service's document reconsidering its evaluation of the proposals in response to GBC's agency-level protest. The Park Service notes that evaluation of financial benefits to it is dependent in large part on the relative reliability of the projections of operating expenses in the successful proposal and in GBC's proposal. The reconsideration, however, does not contain any further analysis of the respective projections, and simply states that it is appropriate to assess both proposals as "good."

Lack of Headquarter's Invovement

Why have the headquarters of the Park Service, as well as its superiors in Washington, D.C. allowed this flawed process to take its course? Despite repeated efforts, the GBC has failed to engage either the Secretary of the Interior or the Director of the National Park Service to carefully reconsider what Superintendent Latschar is proposing to do at Gettysburg. Secretary Babbitt has completely refused to respond to our entreaties and Director Stanton has only sporadically, and always belatedly, responded. Our impression, therefore, is that headquarters is simply backing up the Superintendent and has never become directly involved or knowledgeable about the Superintendent's decisions.

The General Management Plan Process

There is an additional problem with the Park Service's process. Nowhere in the RFP does the Park Service state that the successful proposal must await completion of the General Management Plan ("GMP") for the Park. It merely states that the successful respondent will be required to sign a Letter of Intent, which will commit the proposed cooperator to implement the proposal, "subject to further NPS environmental planning procedure and decisions." The RFP suggests that the planning process has largely been completed, by referring to a Draft Development Concept Plan, upon which an Environmental Assessment had already been completed. This document was made available to prospective respondents.

Making the successful proposal subject to the development and adoption of the GMP strains the conunercial feasibility of the project. The proposal will be entirely out of date by the time the GMP process is completed. No private entity could assume the risk of committing to this project, knowing that it might not be undertaken for one to two years, without including a significant cushion. Such a cushion would prevent the Park Service from being able to rely upon the stated costs and financing of the project.

More significantly, it is apparent that the Park Service intends to utilize the Letter of Intent to drive the GMP process. This sequence of events is entirely inappropriate. The GMP should result in the best plan for the Battlefield, and should not be subject to being leveraged by the management of the Park with a document that casts a particular approach in stone. This approach to the GMP process is yet another example of how the Park Service is arrogantly pursuing a predetermined course without providing adequate opportunity for input from the American people.

Conclusion

Taken as a whole, the conduct of the solicitation and selection process by the National Park Service has been tainted, mismanaged, and presented to the public in a fashion lacking professionalism and honor. The American public and those who gave their lives on the Gettysburg Battlefield deserve better from the National Park Service. Unfortunately, the manner in which the Park Service has handled this matter has seriously jeopardized the viability of the public-private partnership concept to accomplish this project, and perhaps others in the future at other units of the National Park System.

The exercise I asked you to indulge in at the outset of my testimony was not mere oratorical technique. President Lincoln, in one of history's most famous speeches, honored the brave men who died at Gettysburg with elegant simplicity. Edward Everett, who spoke that same day for some two hours prior to President Lincoln, subsequently wrote to President Lincoln to express his understanding of the power of that simplicity: "I should be glad it I could flatter myself that I came as near the central idea of the occasion in two hours as you did in two minutes." We must not forget either President Lincoln's technique, or his purpose. We cannot allow the National Park Service, the agency charged with protection and preservation of our core natural resources and historical places for the enjoyment and understanding of this and future generations, to take a myopic view of its responsibilities in order to solve an immediate need or satisfy immediate wishes, and thereby cause future generations to remember more what the Park Service did to desecrate the Battlefield than what the brave fighting men did to consecrate it.

Thank you again, Mr. Chairman, for this opportunity to discuss these critical issues with the Subcommittee. I would be happy to answer any questions you or the other Members of the Subcommittee may have.

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