page is a montage of documentation acquired via the Freedom of
Information Act (FOIA) from USACE
Hydro Design Center (HDC) and DoE Bonneville Power Administration (BPA)
about the ITB project. Government personnel produced
documents indicating that ATECo's ITB was proven
successful in demonstrations at McNary in December 2005
at Ice Harbor Dam in February 2006, but the Government personnel
were averse to
producing these documents to ATECo or for public viewing. Numerous
FOIA requests and the intervention of DOD IG was necessary to acquire the limited
documentation shown herein regarding HDC's assessments of ATECo's
Index Test Box.
This web page presents a montage of USACE HDC's
assessments of ATECo's Index Test Box that were gleaned from FOIA
After the first field test at McNary Dam in December 2005, the project Technical Lead (Rod Wittinger, HDC's senior mechanical engineer) produced a test report of events, observations and conclusions, "for the record." This record of the testing events and conclusions was not published or made available to the supplier of the "device under test" for these Government "Proof of Concept" tests.
Numerous emails between Government personnel were acquired by a FOIA request to HDC. Rod's test report was attached to an email from Rod to Dan Ramirez, HDC's turbine test supervisor. Rod's test report indicates that ATECo's ITB "successfully passed bench testing" conducted by HDC's computer experts and additional field tests were indicated:
conclusion from the field tests was that the ITB software program's
algorithms and logic were sound, provided the desired
"steady state" data filter, and that ITB should be capable of
unattended, automatic data logging of "steady state" turbine operation
- the desired outcome of the Government's ITB "proof of concept"
However, as is typical of any first roll-out of any computer-based test instrument, some minor software bugs were found that needed to be fixed before the ITB would be ready for full deployment.
A subsequent PowerPoint presentation made to a Bonneville Power Administration (BPA) Hydro Optimization Team (HOT) meeting on January 25, 2006 reveals the Government personnel's opinions about the level of success, and the Government's future plans for the ITB project.
|Slide #1 shows HDC's conclusion, "Promising Results" from the proof of concept testing at McNary Dam. |
Slide #2 tells of HDC's plans for the next field-test at Ice Harbor Dam.
Slide #3 based on successful test results, this slide proposes the purchase of two more ITBs from ATECo for testing on a large Kaplan without the GDACS SCADA system (Dworshak Dam) and a Francis unit (Chief Joseph Dam) with the GDACS SCADA.
Slide #4 shows HDC's plans for how the Index Test Box functionality would be implemented into USACE's GDACS SCADA hardware platforms.
All of these slides combine to show that ATECo's ITB works as advertised, and the Government wants to implement the ITB technology into their systems.
The next step for the project was a second field test, after ATECo fixed a few bugs in the ATECo ITB software.
Another email from Dan Ramirez about the next field-test at Ice harbor Dam was sent to Rod Wittinger on 21 February, 2006.
This document was also acquired by a FOIA request from HDC. These two excerpts show Dan's relevant comments:
|Slide #1 restates the results and conclusions from the McNary Dam field test. |
Slide #2 shows the results and conclusions from the Ice Harbor Dam field test.
Slide #3 shows HDC's plans for future ITB testing.
The level of success with ATECo's ITB was such that HDC was requesting additional funds from BPA HOT to buy two more ITB's from ATECo, with the stated purpose of testing on a large Kaplan without the GDACS SCADA system (Dworshak Dam) and on a Francis unit (Chief Joseph Dam) with the GDACS SCADA.
Another indication that ATECo's ITB was successful was a job solicitation that was posted on January 4, 2007 on the Internet by HDC, which states:
|The successful "Index Test Box" mentioned in the job posting was purchased from ATECo on USACE Contract_W9127N-04-D-0009.|
However - the Index Test Box sofware source code was not developed by the Government on a prior contract, it was developed at private expense by ATECo during the time interval between 1993 to 2003. One instance of the compiled program was purchased by the government from ATECo in 2004. It works just like Microsoft's Windows(R) program. When you buy Windows, you only get one executable copy of the program. You do not get the source code so that an unlimited number of copies can be made.
A November 2005 text called the "T1 Future" is a report telling how HDC personnel were planning to co-opt and/or duplicate ATECo's Index Test Box technology to incorporate it into their existing GDACS SCADA system using GMT's "contractor" instead of purchasing the equipment from ATECo as delineated in the contract.
In February 2006, shortly after the February 3 HOT Meeting discussed above, my contacts at HDC called to say I should get started purchasing the long leadtime items, such as the pressure transducers with a 6+ week lead time.
In March 2006, another call came to warn of upcoming trouble telling me that federal marshals were coming with a warrant (signed by a judge) to seize all computers, laptops, thumb drives, CD, hard drives etc., any computer related products in my home and office. The warning went on to tell me to get anything I wanted to keep out of my house immediately. Federal marshals were coming the next week to seize everything - my computers, my wife's computer, my kid's computers, everything computer-related was going to be scooped up and taken back to HDC.
There, government personnel would be allowed sort through it and claim whatever they wanted as "government property." The muscle and commando-style retrieval of the government's property was deemed necessary because government personnel thought I was going to be "uncooperative" about it. Afterwards, it would be up to me to get a lawyer and sue the government to recover my property.
By the time I could have gotten a lawyer engaged, up to speed and gotten my property back, they'd have found and copied the Index Test Box software and taken it for use by others without compensation to me. The two partially constructed Index Test Box computer systems were to be inspected and reverse engineered. Once I got this into court, with copious apologies my property would all be returned. It would be up to my lawyer to convince the judge that Intellectual Property rights had been violated by copying the software. The legal precedents of "they couldn't have stolen it if you still have it" about the software and "no harm, no foul" about the rest of it would make this situation difficult, if not impossible to obtain justice.
The Intellectual Property (IP) at issue is the computer source code for the index test box SteadyState routine.
Actuation Test Equipment Company (ATECo) was a start-up in 1993, created to resurrect the Index Test Box project from whole cloth. In the 10-years from 1993 until 2003, ATECo invested hundreds of man-hours in the Index Test Box software development, all at private expense.
In 2003 venture capital and a first "launch-customer" were being sought. Unexpectedly, USACE HDC called with a sole-source solicitation; they wanted to buy an Index Test Box, and had lots of money to spend. After a year and a half of haggling with government contracting agents, we were at loggerheads on the contract and I was ready to walk away from the deal. The contract negotiation was difficult because the government kept writing the software source code into the contract as a deliverable or inserting it into the 45-pages of boilerplate as a "gotcha!" ATECo kept insisting the source code was not negotiable, rejecting their draft contracts and resubmitting drafts to them with the objectionable passages removed.
The COR devised a way to solve the dilemma by citing the new (enacted 6-month earlier) software copyright law that had been created to protect video game creators. Game creators had been complaining for years that piracy in the video game industry was rife. As much or more was being spent on software security and encryption as was being spent to write the games.
The COR wrote a "Special License Agreement" stating that any software that I held a US Copyright for at the beginning of the project could not be claimed as government property at the end of the project. Good thing he set this up - that's exactly what happened. Three steps got the protection we needed:
It was later learned that the government's plan was always to get the ITB software source code without paying for it, and then claim it as the work-product of government personnel. My word against theirs is how it would end up.
In February, 2006 ATECo was told verbally that the ITB "Proof of Concept" testing was successful and ATECo should start building two more Index Test Boxes because the government was going to buy them soon, and would want them right away.
The real plan was in secret - the government's plan was to let ATECo spend another month building two more Index Test Boxes, falsify records to indicate the project had been a failure, falsely claim the Index Test Box was designed and built entirely at government expense, so therefore all proceeds of the contract should be retrieved.
A "Cure Letter" was prepared that prescribed the cure for the problem of a failed contract. The prescription was for a warrant signed by a Federal Judge and federal marshals to come to my home and office to seize everything that was computer-related, including the Index Test Box software source code, two Index Test Box units under construction and all of the associated hardware as government property being reclaimed.
The plan was sound - after I could get a lawyer up to speed to sue to get my property back, damages will be hard to prove. The government personnel would have months to sift through my computers and take what they wanted.
When my lawyer finally got the case moving, the government personnel would just say, "It was all just a mistake, here's your stuff back."
The court would find by returning our stuff, we've been made whole, and would rule, "No harm, no foul."
The last retort from the government personnel would be, "Sue us again if you don't like it."
When this scheme was hatched, the government lawyers were unaware of the Special License Agreement in the contract and the U.S. Copyright on the software that the COR had instructed us to obtain.
After the government had put their plan into motion, the COR called to warn me of the federal marshals that were coming. When he was reminded of the Special License and Copyright, he said had forgotten about them.
When the Copyright was given to the contracting lawyers, after a short huddle it was decided, "We can't touch this guy." The cure letter and warrant were torn up, and that was the end of it.
The next problem was about the money. There was $3.2-million in the contract to buy up to 320 each Index Test Boxes if the field tests were successful. They were, but instead of buying the Index Test Boxes as delineated in the contract, USACE first attempted to divert the money to another more favored supplier to fund their project to reverse-engineer the Index Test Box, using the one ATECo had delivered as a study model. This was stopped by complaints to DOE IG.
USACE continued to submit requests to DOE BPA HOT for funds from the contract for the "Index Test Box" project, but instead were using the money to fund an internal project at HDC for newly-rehired government personnel to reverse-engineer the Index Test Box. To keep a low-profile, the name Index Test Box was retained for a year and a half.
*Recently retired government employees are sometimes taken back in as "rehired annuitants" if their skill-sets are needed.
Additional complaints to DOD IG about this situation prompted HDC to change the name of their project to Gate Blade Optimizer (GBO). Work continues on the GBO project today. The funds on the contract have been spent.
Today requests have been made by my Senators and Congressman to inquire about the status of the GBO project.
The initial response from USACE HDC is that there are no status reports on any GBO project, as if it never happened.
A true story about doing business with the government and injustice in America.