Wednesday, March 28, 2018
Tuesday, March 27, 2018
"CANVS neglects to highlight that the first six years of this time period precede its filing of an appeal with the board"
"CANVS neglects to highlight that the first six years of this time period precede its filing of an appeal with the board"
The above is quoted from this document:
http://www.canvs.com/SOCOM-Response-to-Writ.pdf
The document was signed by these individuals:
CHAD A. READLER Acting Assistant Attorney General
ROBERT E. KIRSCHMAN, JR. Director
PATRICIA M. MCCARTHY Assistant Director
ANTHONY F. SCHIAVETTI Trial Attorney
Commercial Litigation Branch Civil Division
Department of Justice
PO Box 480 Ben Franklin Station
Washington, DC 20044
Tel: (202) 305-7572
Fax: (202) 307-0972
anthony.f.schiavetti@usdoj.gov
The following material is cut and pasted from CANVS' request for a writ forcing the ASBCA to render a decision in 30 days.
http://www.canvs.com/Request-for-Writ-of-Mandamus.pdf
The Government misused CANVS technical data related to CANVS’ night vision technology, including publishing a conference poster that was displayed at a week-long industry conference called the International Special Operations Forces Week and Advance Planning Briefing to Industry Conference (“SOF/APBI”) that was held in Tampa, Florida, and which took place on 8 June 2005. Thus exposing CANVS's most valuable and closely held internal technical information to the entire night vision and special operations industry.
CANVS followed proper procedural channels, notified the contracting officer and ultimately filed an appeal to the Armed Services Board of Contract Appeals in 2011.
Note to DOJ, here it is highlighted:
Since the second half of 2006 Mr. Walkenstein, Petitioner CANVS’s President, has been attempting to resolve the issue of misuse of CANVS’s technical data package provided under Contract No. USZA22-03-C-0027 by the Federal Government. After submitting its contract claims to the USSOCOM contracting officer in June 2011, SOCOM was able to reach a decision within seven months. However, despite the filing of an appeal to the ASBCA on September 19, 2011, by CANVS Corporation, the ASBCA has been unable to render any decisions for almost seven years.
In addition to the quotes above, in the beginning of CANVS V SOCOM I was representing CANVS before the ASBCA. The SOCOM lawyers at the time claimed that the only reason I could possible have for waiting 6 years till the last day of the statute of limitations to file was that I didn't care about the safety and security of the troops all I cared about was the money. I responded with over 10,000 pages of evidence proving that that was not true, and that the reason I waited to the very end was I was trying to exhaust every administrative process to settle this matter without having to talk about this in open court. After briefing numerous folks in Congress, Federal Law Enforcement, Department of State, SOCOM, Army, Intelligence Community Members, and many Inspector Generals, there was no serious attempt by SOCOM to settle this matter out of court. Only after an agonizing six year highly toxic battle that took significant time and resources from both CANVS and me personally was I forced to file CANVS V SOCOM at the ASBCA. This is part of the Rule 4 File (all of the evidence in the case). So how is it OK for representatives from the Department of Justice to so grossly improperly characterize the facts in evidence in the case? That was rhetorical. This is not OK and I am very upset.
Dear Chad, Robert, Patricia, and Anthony:
If you thought that you were going to be able to continue to lie and improperly characterize the facts in evidence in this case in a vacuum while leveling libelous and slanderous charges at me and my company you must have mistaken me for someone who doesn't understand his Constitutional rights.
“I think you should take a penny on the dollar, go make cookies and I'll take you off of the black list”
“I think you should take a penny on
the dollar, go make cookies and I'll take you off of the black list”
- Judge Robert T. Peacock
So I was sitting on the witness stand
at The Armed Services Board of Contract Appeals (ASBCA) in the case
of CANVS V SOCOM, and the Judge actually said this to me:
“I think you should take a penny on
the dollar, go make cookies and I'll take you off of the black list.”
Let us just examine just the first part
of Judge Peacock's statement (for now):
“I think you should take a penny on
the dollar”.
As this case was bifurcated into two
trials, first the Liability phase (which has been ongoing for ~7.5
years), and the Damages phase (which has yet to begin), I think it
was highly inappropriate for the Judge to say anything about the
monetary value of the case prior to seeing any evidence. Based on
this my legal team asked the Judge to recuse himself from the case as
his behavior was textbook prejudice, he “pre” “judged” the
monetary value of the case.
In the Judge's response to our request
he not only said he thought he did not do anything wrong, he admitted
that:
“The Board has not yet received any
quantum evidence and preforce has formed no opinions on the details
of the appellant's quantum methodology. The so-called “quantum”
discussions with appellant were generalized and focused on the need
for the appellant to greatly reduce its $100 million claim demand for
settlement purposes.”
And in what I can only perceive as a
further abuse of my rights, the Judge, being one of the three judge
panel hearing this case, actually got to vote if he did anything
inappropriate?! Any guess what he decided?
Now lets consider the rest of his
statement:
“go make cookies”
This is a reference to SOCOM getting to
try the case twice because they screwed up so badly the first time.
The Lawyer for SOCOM, Chun-I, says to me while I am on the stand:
“There are no non disclosure
agreements in evidence in this case.”
I waited a long time before I spoke and
everyone was staring at me, I said to the Judge, that was a statement
not a question, and I believe he is correct in that neither SOCOM or
CANVS has asked for any NDA's to be entered into evidence, but I will
not sit here and allow the insinuation that I did not provide and
NDA's to SOCOM during discovery, in fact I know there are hundreds of
NDA's on the hard drive that I provided SOCOM.
So SOCOM got to have a second trial to
go over all of the CANVS NDA's. One of the NDA's was between Drunken
Chefs (another company of mine) and a Casino. The Judge asked what
Drunken Chefs was and Chun-I said it was a company that Mr.
Walkenstein started to provide Drunken desserts for Food Network
events. The Judge then asked if this NDA had and bearing on the case,
at which point I chimed in and said, I sat here on the witness stand
and had SOCOM accuse me of not protecting my Color Night Vision
related intellectual property, no only do we know this not to be true
based on tens of thousands of pages of evidence, we also see that I
was even protecting my cookie recipes, so imagine how careful
Walkenstein and CANVS were with the various trade secrets necessary
to produce Color Night Vision Goggles.
Let me tell you about “testing fees”.
I was approached and basically was told, if you pay this testing fee,
SOCOM will purchase your goggles. I said, that sounds like a bribe to
me, if it is not a bribe, I will ask Congress for plus up money on my
contract to pay the testing fee. They responded with, Walkenstein is
out of control, he went directly to Congress for funding, he is a
threat to the entire SOCOM procurement process. What they really
meant was, I told Congress that SOCOM was extorting money out of
small business with the “testing fee” scheme. People went to jail
over this, but sadly they are still doing it and the new offenders
are untouched.
The jab at me, “go make cookies”,
at least the way I took it was, if you are not willing to pay the
bribes necessary to the night vision mafia to do night vision
business with the US Military, then you should go make cookies. Are
you kidding me?! In the schools and neighborhoods I grew up in, this
kind of talk routinely resulted in a good old fashioned bare knuckle
beat down by the flag pole after school.
And lastly, “and I will take you off
of the black list.”
Are your fracking kidding me?! So the
Judge is saying do what I say (namely take a penny on the dollar and
go make cookies) and he will something for me (take me off the black
list). Let us just wait one cotton picking minute. Are you fracking
kidding me?! So the judge is saying he knows there is a “black
list”, he knows “I am on the black list”, and he has the power
to take me off of the black list?!
Although I reserve my final opinion on Judge Peacock until this case is over, the way I feel right now is at what point did the inmates take
charge of the asylum?
Saturday, March 3, 2018
CANVS V SOCOM ~13 years later...
It is hard to believe that my Veteran Owned Small Business and I have survived 20 years in the night vision and military contracting universe!
This is a brief outline and update on CANVS V SOCOM, what can only be described as the collision of a John Grisham Novel and a Monty Python Movie!
As early as 1996 I had built numerous Color Night Vision Systems. Each system was designed to demonstrate various pros and cons of the different configurations. CANVS submitted a Color Night Vision Patent to the US Patent Office prior to taking any money from the US Government. During the time that the CANVS Color Patent was pending, Color Night Vision Patents were issues to CANVS' competitors while CANVS' Color Patent never issued (more on this in a future post)!
In 1998, CANVS was awarded an Army ACT-II Contract with the Dismounted Battlespace Battle Laboratory at Fort Benning Georgia, beating out Lockheed Martin (I will get back to this in another post...). The goal of the work was to prove that there was usable color at night, a point that was still being hotly debated at the time.
Based on the lessons learned in the ACT-II contract, after about five years of amazing experimental work, I was able to manufacture the first article CANVS Binocular Color Night Vision Goggle, the CNVS-4949.
Representatives of the US Special Forces Command (SOCOM) came to me asking for a contract to deliver three Color Night Vision Goggles and Two Color Night Vision Video Systems. CANVS signed the contract but insisted that the Limited Data Rights Clause was included in the contract.
CANVS worked with numerous US Special Forces and Intelligence Community members to carry out extensive laboratory and field testing of this transformational technology. After delivery of the three sets of CANVS Color Night Vision Goggles to SOCOM, CANVS was approached by another US Government customer who also ordered goggles even before the contract was over.
US Congressional Staffers and SOCOM selected CANVS to receive the prestigious SBIR Success Story Award for its Color Night Vision Technology. CANVS was presented this award by the Director of The Small Business Administration in a ceremony near Navy SEAL Headquarters in San Diego California.
These same folks from SOCOM and Fort Belvoir's Night Vision and Electronic Sensors Directorate then showed up at the 2005 International Special Forces conference in Tampa Florida displaying a CANVS CNVS-4949 Goggle, and a poster extracted from the CANVS monthly reports to SOCOM claiming they had invented the Color Night Vision Technology (all CANVS marking had been removed). Not only was this a direct violation of the Limited Data Rights Clause in the CANVS-SOCOM Contract (a clear breach of contract), it was also confirmed by US Department of State to be an International Trafficking in Arms Regulations (ITAR) Violation to release, discuss, or display Color Night Vision Technology to Foreign Nationals without written permission from the State Department (no authorization had been requested or received into evidence in the case)..
I got business cards from everyone in the SOCOM Booth and asked permission and then took a picture of the poster. The picture clearly documents both the ITAR Violation and the breach of data rights/breach of the CANVS-SOCOM contract.
September 19, 2011, CANVS files CANVS V SOCOM after over 7 years of trying to settle the matter through the severely broken Administrative Processes.
These same folks then show up in court and their defense is that the CANVS Color Goggles never worked. These are the same guys (literally the same individuals) who gave CANVS a national award for the work, purchased over a $1,000,000 worth of Color Night Vision Systems from CANVS, and said it was an amazing new capability that they invented.
A failed attempt by me to talk face-to-face to the Chief Judge at The Armed Services Board of Contract Appeals (ASBCA) a few weeks ago to discuss the fact that "Justice Delayed, is Justice Denied" resulted in the following exchange of documents.
This request for a Writ from CANVS is asking the Federal Appeals Court to order the ASBCA to render a decision in the liability phase of the case in 30 days (this battle has been ongoing now since 2005):
This is the Federal Appeals Court asking the Government for their opinion on the matter:
This is the response to the Federal Circuit Court from the Legal Team representing SOCOM:
It is a good thing that my superpower is staying calm in the face of criminal insanity.
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