John often used threat of litigation to stifle honest discussion as to the "quality" of his company's work. Even negative posts here on RYPN were quietly deleted (by a friendly moderator-likely Randy Hees), especially about the Big South Fork locomotive, right about the time the NPS was doing its due diligence.

> leads me to believe that the CO is not permitted to consider evidence that is outside of the application and so
> would not have been permitted to disqualify the applicant based on hearsay on this board or any other more
> credible evidence obtained outside of the application process. Please confirm. Thank you.

That is correct. The evaluation board and contracts people can only legally use the information contained in the proposal. Any one-on-one meetings, personal opinions, RyPN postings, etc. can not be legally used in the evaluation. The proposal stands on its own merit. Period.

JR, thanks for the concise explanation. The greatest asset to this board are experienced people like yourself who have the capacity and willingness to teach those of us with less experience. How goes it with the cabin car and the trolley?

There is nothing offered here that teaches us much other than the migration of procurement authority from people qualified on the territory in the Steamtown shop to people who are qualified on rules in Gettysburg produced a spectacular failure.

While I'm not involved in federal procurement; I am involved in state-level procurement and am the principal designer and team lead for the financial analysis that is a required submission for all projects and products we procure. I always advise the rest of the team that a great test of any submitter is to insist on financials that have been audited (or at least reviewed-an engagement with less assurance offered by the independent accountant). I wonder if financials were part of the submission.

Our procurement process failed in such a manner once, and only once-when the contract was made for an untested technology to a development stage enterprise that had connections at the gubernatorial level. Fortunately, the contract was participatory and while there was some egg on face, there wasn't a great loss of funds or a need to attempt to get blood out of a stone with a largely ceremonial restitution order.

Nobody, certainly not me, suggested that the procuring officer check with RYPN or operate on hearsay.

However, when we procure boutique services, we insist on risk mitigation. We have requirements for fidelity and surety (performance) bonds, periodic reporting and inspection, among other procedures designed to ensure a qualified delivery.

Our procurement team leads the process (working with legal counsel), but there are meetings. If the project involves real estate or leasehold improvements, there are real estate specialists involved. If it's an IT project, IT pros are there. Professional services of other kinds have subject matter experts and the subject matter experts provide their "assymetric knowledge" about the proposers and the proposers.

If I could reduce this to own question, I would want to know why there wasn't a performance bond indemnifying the NPS for this. Going after a guy who'll likely be working for Waste Management-and not in the C Suite, is likely not to produce a substantial recovery. Was a bond not required? Was it inadequate?

We already know that internal review has led to the introduction of a geographic distance limit for future projects. It's not hard to figure that is to facilitate periodic inspection. But this should already be part of a mature process..

Yes, yes. By all means, reduce! And own it.
I must have missed it so please point out in this thread, or anywhere on RYPN, where it was posted that there was no performance bond. Thank you.

It wasn't posted that there wasn't an adequate bond. It also wasn't posted that there was (an adequate) bond.

I'm inferring from the request that the NPS is seeking to be indemnified by JR, because there is nothing left of Wasatch or because the bond was inadequate in scope or magnitude.

Are you aware of a recovery from an issuer?

Do you not see the irony in trusting Bruce Mowbray develop a work scope and cost estimate for this project now that it's gone South, rather than having him do it in the first place, because he wasn't a GCO, because I do. I know Bruce. Good guy, cares or cared if he's now retired-about the things entrusted to his care-and understood them. When he was instructing me as fireman always explained about proper care of the engine as a part of the day.

I fail to understand why people can't look at this situation and say "what a damn shame" and start worrying about the minutiae of the process, rather than whether or not it's effective, either overall or in the circumstance.

Not certain of the meaning of your question. That said, I'm glad you inferred rather than assumed because, thanks to Felix Unger, we all know what that really means.

Humor aside, I did not recall seeing anything about the bond so I asked. I do not know much about how this whole bonding thing works. My limited understanding is that the contracted party (in this case Wasatch) has to buy a bond which basically insures that the work is completed or the cost of completing the work is covered by the insurer if it is not. So, in my mind, the other party to the contract (the feds in this case) is a third-party beneficiary of an insurance contract between the insured (Wasatch) and the insurance company/bond issuer.

What I really do not know is what is necessary to compel the bond to be paid? That is, does the contracted party have to be found in breach and does the non-breaching party then have demand damages that are then ordered by a court to be paid? If so, is that the process that we are seeing here?

My second question about this process goes back to what Overmod posted when he inquired about the possibility of the bond being "'invalidated' because improper procedures were followed". To be clear, the procedures were not only "improper" but they resulted in, or were a result of, the commission of a felony for which Rimmasch was convicted of multiple counts in Federal Court. So if the failure to complete is due to a commission of a felony or felonies by the insured, does this violate the terms of the insurance contract such that the insurer is no longer obligated to pay out?

Since JR May has the most relevant experience with federal contracting procedures, I'd appreciate it if he would be able to answer my questions.

I have no way of knowing if Bruce Mowbray was or was not involved in this process from the beginning. I have no way of knowing how closely Bruce worked or didn't work with the other folks in the organization when the contract was put out for bid. No matter how good Bruce is, the fact is that the decision was dictated by the process and thus restricted to considering the information in the application/bid. Here, the result was not what had been hoped for but in other cases it is a procedure which removes, as much as possible, favoritism, cronyism, and bias.

If the restitution goes through, I hope Bruce can get some good weekend skiing out of the deal.

In my dealing with Army acquisition, I never got involved in performance bonds or bid bonds.

In looking at the CNJ coach RFP, I find a couple of bond requirements. The amount of the bid guarantee shall be 20 percent of the bid price or $3,000,000, whichever is less. So, if the price was in the $750K range, then Wasatch provided a bond of roughly $150K. And in the event the contract is terminated for default, the bidder is liable for any cost of acquiring the work that exceeds the amount of its bid, and the bid guarantee is available to offset the difference.

The restitution document mentions the bond, but indicates that the government has not yet exercised (or what ever the correct word might be) the bond. As shown above, the bond is only there to off set any increase in price seen from a recompete of the work. If a bid comes in less than Wasatch, then it looks like the bond is not exercised, thus that is why it has not yet been touched.

J.R. May

Your somewhat dated humor aside, I said "infer" rather than "assume" because that's what I did. You make inferences from limited or incomplete knowledge, assumptions are without evidence. They are not synonyms. I never assume anything other than we will all die.

Here's the thing. If one were to audit this process; using the applicable "Yellow Book" performance auditing standards, there would be likely be multiple adverse findings.

A finding is a structured statement about what the auditor found.

A whimsical take on this, using the recently deceased Coolio's Gangsta's Paradise, is here:

https://sites.utexas.edu/bainesreport/2 ... t-finding/

It's a lot clearer than Sec. 1.21, et al here:

https://www.gao.gov/assets/720/713761.pdf


At least one finding is more or less obvious.

Criteria: "The National Park Service is responsible to provide effective preservational due care over the properties and artifacts committed to its custody. (The criteria would be derived from and cite established laws, regulations and standards)

Condition: CNJ Coach 1021 is currently in a state of disrepair, requiring substantial rework and hazardous material abatement and is physically dislocated, requiring recovery and transport.

Cause: TBD

Effect: A valuable artifact is endangered and unavailable.

Recommendation: TBD-but would be principally be related to abating or mitigating the issues that led to the condition and obtaining the artifact and remediating and damage plus effecting the intended restoration.

Prior to my departure, I spoke to shop folks about their interactions with the procuring officers. Without quoting any specific person or conversation, I consistently heard of two problems. One was that there was a profound unfamiliarity with railroad standards and practices by NPS procurement staff and it was requiring extensive conversations that disrupted work, especially when railroad standards or practices deviated from standard industrial practice. The second thing was a lack of physical proximity by off-site procurement staff. It was these accounts that led me to conclude that Steamtown is irretrievably broken.

I note that for October, Saturday shuttles are being cancelled due to the lack of availability.

https://www.nps.gov/stea/planyourvisit/conditions.htm

I get it, this is chump change compared to the billions wasted all the time but...

J.R. Thanks for the info. So the question remains as to whether the bond is paid out in a case like this where the recovery sought is not breach of contract damages as ordered in a civil case but rather restitution for the commission/conviction of multiple counts of a felony. Maybe the feds have to now sue the convicted felon in civil court for breach and get a civil judgement in order to avail themselves of the bond. Even then, if the bond is an insurance contract between JER/Wasatch and the bonding entity, do they pay if the civil breach is the result or was committed in the commission of the felony or felonies that he was convicted of?

Or am I totally off here and the bond of which you speak is actually money up front that JER/Wasatch put in escrow? In my burg, if one opens the street they have to put up a cash bond which the municipality returns once the repaired roadway has passed inspection by the DPW. This is a small amount so I'd imagine that for these larger contract amounts we are not speaking of a cash bond but rather some sort of insurance contract.

I will start with in my professional life I am a County Engineer and oversee the bidding and construction of roadway and bridge work for a northern NJ county. We have bonding requirements that matches state and federal required standards for roadway projects as a portion of our funds come from those sources. Here is a sample of the bonding requirements;



We currently have a bridge project with a neighboring county in which the contractor went out of business prior to any major construction on site but after they had the bridge beams manufactured. The bonding company took over and is in the process of re-bidding the project. However due to inflation the project is expected to come in at nearly $1.3M over the original bid price. The bonding company is asking the Counties to take on 20% of the additional cost to which we are negotiating. We will see how this shakes lose over the next few months.

I find it very hard to believe there was no bonding for the coach restoration that would cover 100% of the cost of restoration (including transportation to and from WY).

My $.02....

I agree. However, I certainly don't know the details on this specific bond, but over the years I've seen a number of bonds that were not good, although the contractor had the paperwork.

An old trick is to apply for the bond or insurance and make the first payment or a deposit. The company then uses the paperwork to show that they have the insurance or bond, but don't make any further payments. Then, if there are any problems, there is no insurance or bond to fall back on.

The key is to directly contact the insurer to see how it was paid and if it is good for the life of the contract or project. You can also require full payment in advance for the bond, along with proper documentation. The key is to know that games can be played with insurance and bonds.

On the many taxpayer funded construction projects that I worked on for 20 years, from the municipal to federal level, I only recall three types of bonds typically required. Very simply stated:

1. Bid bond. This would cover any losses to the owner if a contract was awarded and there was a failure to execute the contract within a specified amount of time by the contractor.

2. Payment bond. This covers any contractor’s defaults on his payments to subs and suppliers.

3. Performance bond. This would cover the completion of the project if the contractor walks away or goes teats up. Performance and payment bonds usually go hand in hand.

You don’t ever want your bonding company to have to pay out or take over a project. You’ll be an instant pariah to everybody that does construction projects and does due diligence.

IIRC, you can’t fake or fudge on the bonds. That in itself would be lawsuit material. The contractor must have his P&P bonds in place and copies of the certificates on file with the owner before any work starts. You don’t get those certificates without paying up front. How much a contractor pays for his bonds is a function of their reputation, financial strength, and what percent the bond is specified to cover - usually 100%.

You may get away with shenanigans like Bartman mentioned on insurance where it’s a pay as you go thing. However, bonding and insurance aren’t the same things though related.

That’s why I wanted to see the bid specs where bonding, insurance and payments schedules are in the boilerplate sections. I think we can pretty much assume what the technical specs were.

I'm not sure NPS could, but TXDOT disqualified him from any work on Texas State after a copy of the original 557 inspection report (obtained from his web page) was compared to the subsequent deep inspection and cost estimates on the locomotive.

I'll let you fill in the blanks on how that went, but it stood.

TXDOT also disqualified a track contractor due to 'behavior' on the site from any further bid/contract work in the entire state, so it wasn't just him.

And a bid irregularity on another line item caused TXDOT to force a withdrawl of a single bid due to a stalking horse issue, and some rather unveiled threats of jail time if that ever happened again.

Don't mess with Texas.

The federal government has Debarment, Suspension, and Ineligibility processes that protect the government from non-responsible contractors. Google the Federal Acquisition Regulation (FAR) if you want to learn more.

Suspension is usually used on people & companies under indictment, while Debarment is used on people and companies who are convicted.

I do not know if the NPS tried to impose Suspension and/or Debarment onto Mr. Rimmasch and/or Wasatch RR Contractors. However, my thinking is that there is no point to imposing Debarment onto Wasatch because the company has already been bankrupted and liquidated. Furthermore, Debarment usually only lasts for 3 years, so there is no point to imposing it onto Mr. Rimmasch since he is going to be imprisoned for 30 months anyway.