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27 February 2010

Comments

Jeff Pelline

George,
You forgot to mention that the county board of supervisors unanimously approved the contract after a long discussion, as the minutes of the meeting show, so they also are accountable. This includes Sue Horne, whom you are endorsing for Assessor. And John Spencer, who's running again for Supervisor.

Dixon Cruickshank

You would think that would be the case since it was his office that knows what they need in a software program - not sure what this is all about though but your points make perfect sense.

Russ

George,

As a software development project manager and integrations laboratory manager for a major aerospace company which developed software for the federal government and state transportation agencies, I have to agree with your analysis. One of our big issues was the control and management of intellectual property rights. The government wanted full disclosure, but we often incorporated other vendors software in our products. We were often not in a position to make those disclosure without the permission of the vendor of the software. To do so without permission would violate preexisting intellectual property agreements. Something our legal department took very seriously. Thus, I was very concerned to learn that Mr. Diaz may have given Aptitude Solutions access to the intellectual property of AdPac. A clear ethics violation, with some serious legal consequences for the County.

Steven Frisch

Once again a lot of speculation based on the "reports" from our local paper. Knowing how information in newspapers can often get garbled, and considering the origins of one of their blogs was truthing the info in the local press, this is surprising. If I were going to charge someone with such a serious violation I would make sure that I had access to the County's procurement process description, and more information about the actual events, before i did so.

On one hand George and Russ's specific background would appear to give them some special knowledge; on the other hand, by incorporating language like "we were often not in a position to" and "no matter how the suit comes out", George and Russ appear to be jumping to conclusions before they really have all the facts. Are they just the the hit men for a stinky local political strategy? or dispassionate experienced observers? The point that they are declared early supporters of, financial donors to, and tea party comrades of, Mr. Pruett, would indicate the former.

Russ

Mr Diaz is innocent until proven other wise, as are all the other parties, including the motives of those writing about the issue from both sides.

If I am reading the story correctly, the breach took place after the award of the contract. After the BOS approved the contract.

"Rather, AtPac's complaint alleges Diaz gave Aptitude Solutions access to AtPac's software and source code after awarding Aptitude the 2008 contract."

This is not about the actions of Supervisors, but one of their staff that may, and again I say may, have committed an ethic violation, after the evaluation and decision process was complete. It appears there as some sloppy work in the request for proposal process, that put AtPac at a disadvantage, but that is not the subject of the lawsuit. The lawsuit is about the disclosure of intellectual property.
We will have to wait for the lawsuit to be heard by the judge before that issues is resolved.

Steven Frisch

How convenient. I predict the lawsuit will be settled out of court some time after November of 2010.

Jeff Pelline

Russ,
George also discussed the procurement process, not just the federal lawsuit. As for the lawsuit, why not wait until the county responses to the allegations rather than prematurely speculate? You have no special knowledge of this situation whatsoever.

Russ

You are right Jeff, I am not on the legal team on either side and have no special knowledge of the case. On the other hand I have run software development projects and I supervised a 90 person software development lab for an aerospace corporation. From this perspective I am fully aware of how slippery the intellectual property slope can be. All it takes is one engineer to slip a critical embargoed document across the table to a third party customer, and the company can be in real trouble.

Once they accepted the code and the documentation from Diaz, Aptitude Solutions demanded an indemnification agreement. They knew this was a very slippery slope and wanted legal protection. So my question is, if Aptitude Solutions knew there was potential legal issues for them to have access to the AdPac documentation and code, why did Diaz not know his act could result in legal problems for the County? What was he thinking? This not the action of a highly qualified manager who should have consulted the County Attorney before providing unfettered access to the computer code.

Perhaps, you have more insight, more experience and more wisdom and can explain how Aptitude Solutions gaining access to the software is not a problem? Lets stay on the issue here. Were laws broken, or not, and who broke them if they were? Were there only ethics violations or more legally damaging actions? It would be good to know before the election.

Michael Anderson

The suit alleges that intellectual property rights were violated. But the suit has yet to be served, and the county has yet to respond. If indeed Mr. Diaz sent AtPac's source code to Aptitude without contractual protection, that clearly exposes the county. But I haven't seen any evidence that this is what actually occurred so I'm going to reserve judgment, until more facts are revealed.

Mr. Pruett chose a different course, and delivered anecdotal evidence of violations, of which he could provide no proof. I found this to be premature and lacking good judgment. Regardless of whether or not Mr. Diaz supplied the source code to Aptitude, the prudent course for Mr. Pruett would have been to hang back and let the case develop.

There is plenty of time between now and voting day for everyone to get the whole story. Mr. Pruett and Mr. Diaz should campaign about general issues of competence and values, leaving aside speculations and spin on a federal lawsuit that has yet to be served.

George Rebane

Michael, the county had been served according to the County Counsel's office. However, looking at how long these things take, I think no one would bet that this thing gets resolved before the election. I believe Mr Pruett's point is a matter of established fact, Aptitude Solutions was awarded the contract and then some weeks later claimed it could not do perform without some TBD information about the AtPac software the Clerk-Recorder was allegedly still using.

Mr Diaz submitted such information, presumably after asking the county to indemnify Aptitude Solutions (per their request). Lawsuits are expensive, and small software companies do not enter into them capriciously as you well know. So one can presume that AtPac thinks there is a high probability that it will prevail.

With no pre-election resolution in sight, should the voters ignore the established course of events (regarding the contract award, informaton request, and indemnified transmission of information), and not use such information in their decision to vote for the Clerk-Recorders?

When these factors are joined to the other established happenings in the Clerk-Recorder's office under Mr Diaz, there may well be cause to take more than less into consideration without the necessity of having to pre-judge the outcome of the suit.

Michael Anderson

Thanks George, I hadn't heard that the suit had actually been served. That's good news.

I didn't mean to give the impression that I thought the suit would be settled before the election; I'm sure it won't be. But I fully expect that we will get more information from both sides regarding the contents of the suit, and hopefully some back and forth meat-and-potatoes.

Unfortunately, it appears that this contest for Clerk/Recorder will most likely be all about this suit. Unfortunate, because there is a lot more to this job than procuring software, but the silver lining is that Mr. Pruett and Mr. Diaz will be under the microscope regarding this case. We'll be able to find out a lot about who they are through the lens of this suit.

I agree that the county procurement process could withstand some scrutiny, but I have a different take on what I have read in the media about how I think the players acted. My read was that Mr. Diaz and his team (born out by a comment on the Yubanet story from someone who was on that team) were heavily involved in the analysis portion of the project, and then he turned over the results of that analysis to Mr. Monihan and the BOS. Mr. Diaz recused himself from the final decision so that a check and balance was applied to the decision. Pretty standard stuff in gov't procurement.

As you know, I have been involved in a fair amount of software buying and selling in my career, and it is SOP when moving from one vendor to another to perform data migrations that involve careful navigation around the various contractual obligations, indemnifications, caveats, exemptions, and exclusions. It's complex, so I'm withholding judgment on what exactly happened until I hear more specific details.


George Rebane

Fair enough Michael. I appreciate the de juris procedure for government software (and other things) procurement, and it seems that our experience may diverge somewhat. I have never seen an enduser manager separate himself from the decision process even though the pro formas called for him to do so, there was simply too much at stake. But then again, that is only my experience. We'll see how the dust settles on this case.

RL Crabb

It seems the biggest challenge for Mr. Pruett will be whether he intends to represent the voters of Nevada County, or Adpac.

George Rebane

That's a hefty concern Bob, and sure to raise an eyebrow or two. What would the undecided voter look for to conclude one way or the other regarding Mr Pruett's intentions?

Michael Anderson

I found the link to the lawsuit transcript on the Yubanet website, thanks to Peter Van Zant's recommendation in Jeff Pelline's blog. Yubanet has by far the best story in the county about this controversy: http://yubanet.com/regional/Atpac-fired-Nevada-County.php

Every serious voter needs to read this story, as well as all of the supporting documentation. I have now done this, and I will have some poignant opinions to share during the coming months regarding this case.

Before we are able to make any kind of judgment, we will need to understand what is a EULA. Get studied on that (just Google it), and then we will be able to carry on the discussion.

Michael Anderson

I have been involved in some recent California law cases dealing with contracts. EULAs are becoming less enforceable, not more so. Due to the bad economy, the California State Supreme Court (among others) has been making rulings in favor of less stringent contract adherence, rather than more, to "encourage entrepreneurs."

Good news for those out of work wanting to start new businesses. Not such good news for already-established small business owners trying to protect their intellectual property, as they attempt to grow their businesses. I hope this does not indicate that we are eating our seed corn in this country.

Found this on one site regarding the evolving law:
"If the term was outside of the reasonable expectations of the person who did not write the contract, and if the parties were contracting on an unequal basis, then it will not be enforceable. The reasonable expectation is assessed objectively, looking at the prominence of the term, the purpose of the term and the circumstances surrounding acceptance of the contract."

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