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Posts Tagged ‘Scorpion’

Crye Precision’s 2001 Scorpion Development Contract Calls Into Question Army Claims Of “Appropriate Rights To Use” New OCP Variant

Monday, September 22nd, 2014

Many have questioned the US Army’s right to use a recently announced camouflage pattern, so a few weeks ago we decided to put it to bed and asked the Army about it. They offered us a rather curt, but confident, answer. But then DLA began a quest to fund a new printer that didn’t pay commercial printing royalties to Crye Precision for Scorpion. So last week, we ran a story regarding the US Army’s statement that they had “Appropriate rights to use the Operational Camouflage Pattern” and, in the process, exposed a major controversy that had arisen over printing royalties for OCP.

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The US Army uses the name Operational Camouflage Pattern to refer to the Scorpion W2 camouflage pattern which is a 2010 modification of the so-called Scorpion pattern originally introduced by Crye Precision in 2001 and patented in 2004. What is at question, is whether or not the Army can use the pattern, royalty-free.

We know that Crye filed for, and was granted, a patent for this camouflage by the US Patent and Trademark Office, Camouflage Pattern Applied to Substrate US D487,848 S, March 30, 2004. We also know that not long after the patent was granted, the Army asked the PTO to insert the following addendum into the patent:

After claim, insert the following:
–Statement as to rights to inventions made under federally sponsored research and development.
The U.S. Government has a paid-up license in this invention and the right in limited circumstances to require the patent owner to license others on reasonable terms as provided for by the terms of contract No. DAAD16-01-C-0061 awarded by the US Army Robert Morris Acquisition Natick Contracting Division of the United States Department of Defense.–

From this, we surmised that the US Army’s assertion of appropriate rights is based on the funding of the Scorpion project via contract (DAAD16-01-C-0061) in September of 2001. This 13 year-old contract has remained the missing piece to this puzzle. Does this contract, in fact, prefer rights to the camouflage to the US Army?
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Why Has Controversy Over US Army Rights To Use Scorpion Camouflage Led To A Quest for New Camouflage Printers?

Monday, September 15th, 2014

To be sure, Operational Camouflage Pattern is the way ahead for the US Army. That fact is not at question and I’m very happy to see our Soldiers getting something effective. It is definitely an improvement over the Universal Camouflage Pattern that it is replacing.

But exactly what OCP is, and who actually owns it, are a bit more perplexing. With two distinct patterns sharing the same name, there’s sure to be some confusion. Turns out, ownership can be established based in records and a few pointed questions. But then there’s this whole printing issue that’s recently, and inexplicably come up. How that ties in, will all make sense, by the time you get to the end of the story.

As you know, the US Army selected the Crye Precision Multicam Pattern in 2010 and decided to call it Operation Enduring Freedom Camouflage Pattern, as it was intended specifically for use in operations in Afghanistan. Then, the Army began a Multi-year Camouflage Improvement Effort (aka Phase IV) that cost tens of Millions of Dollars and ultimately resulted in no new capability. During the Army’s rather protracted, ill-fated search, for a family of camouflage patterns for use in the world’s various operational environments, Congress decided to act, fearing waste. With the passing of the 2014 National Defense Authorization Act, the Defense Department had to stick with what whatever camouflage they already had. The Army reacted by renaming OCP to a simple “Operational Camouflage Pattern” to give it a more universal feel and started negotiations with Crye Precision to adopt the pattern service-wide. Unfortunately, the Army abruptly stopped talking to Crye Precision with the Army reportedly unhappy with the pricing provided by Crye.

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Then, in May of 2014, the Army’s leadership chose a course of action that would adopt a new flavor of OCP called Scorpion W2. It was a camouflage pattern created by modifying Scorpion, a developmental pattern designed in the early 2000s as part of the Objective Force Warrior Program and tested during the 2002-2003 camo studies. This new OCP variant also looked suspiciously similar to the existing Crye Precision MultiCam version of OCP. Interestingly, the Scorpion W2 pattern was tested for mere weeks before being certified fit for service, while the Phase IV testing went on for well over a year of actual testing and analysis with no final solution selected.

No sooner than the Army unveiled this variant did people start to question who “owned” the pattern. This was fueled partly by assertions by COL Robert Mortlock, Program Manager for Soldier Clothing and Individual Equipment that it would be less expensive than using MultiCam leading many to believe that the Army owns it. In fact, Scorpion W2 is a 2010 government modification of Crye’s patented Scorpion pattern and exhibits quite a bit of similarity to the MultiCam it is intended to displace as OCP.

To find the answer to the ownership question, I went to PEO Soldier, who’s Public Affairs Team directed me to the US Army’s Office of the Chief of Public Affairs. I asked some very specific questions about ownership of the Scorpion camouflage pattern and its use as a option under the NDAA. While they did reply in a timely manner, unfortunately, it wasn’t very forthcoming.

The Army possesses appropriate rights to use the Operational Camouflage Pattern (OCP) on its uniforms and equipment. Congress is aware of the Army’s intent and Army has been informed that it complies with the NDAA.

William J Layer
DAC, OCPA

From the response, we know this; the Army doesn’t own Scorpion W2. We asked specifically if they do. Rather than a simple, “We own it,” they instead claimed, “appropriate rights to use” the pattern.

The question then comes back to, who owns Scorpion? For that, we have to look at the Scorpion patent (USD487848), issued on March 30, 2004. This patent for a “Camouflage Pattern Applied To Substrate” was granted to Caleb Crye and assigned to LineWeight LLC, Crye Precision’s IP holding company. Later, after the patent was granted by the US Patent and Trademark Office, the Army asserted its “appropriate rights to use” Scorpion based on a correction letter amendment in June of that year:

After claim, insert the following:
–Statement as to rights to inventions made under federally sponsored research and development.
The U.S. Government has a paid-up license in this invention and the right in limited circumstances to require the patent owner to license others on reasonable terms (emphasis added) as provided for by the terms of contract No. DAAD16-01-C-0061 awarded by the US Army Robert Morris Acquisition Natick Contracting Division of the United States Department of Defense.–

The Army has never challenged the validity of the patent or who holds it. Not in 10 years. Instead, as is often the case with Federally Funded Research and Development, the Army had the USPTO amend the patent with that statement above. It is also important to note that this same amendment was applied to patents for all of the various technologies that spawned from the Scorpion effort, not just the camouflage pattern. Like I said, it’s pretty much boiler plate. Finally, it goes without saying that the Army does not enjoy this same position regarding the later MultiCam patent (USD572909).

The issue at hand is whether the Army has lived up to its end of the deal they applied to the patent. It reads, “paid-up license in this invention and the right in limited circumstances to require the patent owner to license others on reasonable terms.” As you can see, it’s not just enough to have established who owns what. We now have to take a look at whether the Army should be paying for the “rights to use” Scorpion. It seems that based on this language, they can use it as they see fit. I can see where they feel that this assertion would give the Army the right to have modified the base pattern to the W2 variant. But that only covers their use. The issue arises when they pay others to print it and that is what brings this last “reasonable terms” bit into question. Even in cases of “eminent domain” where private property is seized by the Government for use, they must always pay a reasonable fee for the value of the property. The Army isn’t printing the pattern. Instead they are purchasing material provided by vendors that incorporate the invention. This is where things get sticky because these private companies have existing agreements in place.

According to industry and government sources, the companies that are currently printing the Scorpion W2 fabric unto fabric are paying Crye Precision a royalty fee. Yes, for Scorpion. It has been an open secret in industry for some time. I’ve even alluded to it once or twice. The fee isn’t being paid because the Army is living up to the verbiage it had inserted into the patent, but rather due to commercial, contractual obligations between the printers and Crye Precision.

Those same sources who’ve indicated that the royalties are being paid have also said that there are those in the Army’s acquisition community who are incensed at the notion. And how much is this outrageous royalty? As I understand it, the Army is paying less than $1 per uniform. Ironically, this is a similar price to what Caleb Crye asserted the Army would pay for the use of MultiCam in a statement released earlier this year (less than 1% price difference between MultiCam and UCP).

How did this royalty come about? The answer is quite sublime. When the US Army selected Crye Precision’s MultiCam for use in 2010, they insisted that Crye license about 11 new printers to use the MultiCam pattern. Eventually, over time, these limited use licenses were converted to also cover commercial printing. The contents of the agreements, which remain confidential, I am told contain stipulations that the printer agrees to not print patterns with similar shapes or colors to MultiCam in order to discourage knockoffs. Seems reasonable to me that Crye Precision and a commercial printer would enter into a legally binding royalty agreement but this situation apparently has some in government hot under the collar.

Circumstances being what they are, the question of whether the royalty should be paid looks to have been answered. Contracts exist. The question has transformed to why the US Government is taking action that could be construed as to impede those contracts.

At least three times over the past month, DLA Troop Support and PEO Soldier have held private, by-invitation-only meetings with representatives from various parts of the supply chain to discuss the Army’s transition to the OCP Scorpion W2 variant. One important conversation point has been the royalty fee and if there is a mechanism to avoid paying it. Printers have been queried as to whether they would be willing to stop paying Crye Precision the royalty. Another suggestion has been that perhaps a printer could be purchased by a vendor or even a new one stood up that was unencumbered by any contractual obligations with Crye Precision. I am told that as these conversations were being guided by PEO Soldier, members of industry glanced nervously at one another wondering, “What’s to say they won’t turn on my company next?”

You could easily dismiss this information as hearsay, if it weren’t for a Sources Sought Notice released on 8 September, 2014 by the Defense Logistics Agency Troop Support entitled, “Operational Camouflage Pattern Fabric MIL-DTL 44436B Class 14“. In this FBO posting by the Defense Logistics Agency – Troop Support, they are looking “for printing capability and capacity of Operational Camouflage Pattern (OCP) on wind resistant poplin nylon/cotton cloth.” All-in-all, DLA needs about 6-9 Million Yards per year of OCP NYCO in order to manufacture enough Army Combat Uniforms. As if they didn’t already know, based on years and years of interaction with the supply chain, not to mention those numerous secretive meetings, they are trying to figure out who can print cotton here in the US. I’m not buying it.

A few very interesting things stick out in the Sources Sought. First, there’s these disclosures that potential offerors must comply with:

52.227-6 Royalty Information APR 1984

52.227-9 Refund of Royalties APR 1984

Those would be so they can identify who actually has a royalty agreement with Crye Precision although, as I understand it, the exact contents of those agreements are confidential, and could not be disclosed to the Government.

Another very curious statement caught my eye and made me realize that there was actually something to those clues I had been picking up.

This notice is intended to identify firms that either have the equipment or are willing to make capital investments to obtain the equipment necessary to support the aforementioned requirements. Warstopper funding may be available to firms needing to make some capital investments. (emphasis added)

The domestic printing industrial base has stayed fairly constant over the past 10 years and exists almost solely to support DoD’s Berry requirements. It’s more than held its own supporting military printing (of which the Army’s is the single largest user). If anything, that printing capacity has taken a beating over the past 18 months or so, as the Army has half-stepped toward a camouflage way ahead and they curtailed purchase of UCP ACUs. Now that the Army has decided what they are going to do, the existing printing industry should be more than ready to go to work. So why offer up taxpayer money to set up a new printer? What are they up to?

I looked into this “warstopper” funding program to see if there was a good reason. Here’s what I found:

The Warstopper Program was created to preserve and/or expand the industrial base for critical go-to-war items that had insufficient peacetime demands to keep the known industrial base producers in operation.

Since NYCO fabric is used for ACUs and the Army fights in FR uniforms, I have to question this notion of OCP printed NYCO being something that we need to stockpile as a nation. Then, there’s that whole existing supply chain infrastructure that seems to be able to hold its own.

So I dug more and found they’ve established criteria for commodities purchased with the program. Maybe those will hold the answer:

1. Mission Essential or Critical

2. Low peacetime demand but high wartime demand

3. Limited shelf-life

4. Long production leadtime

5. Cost effective alternative to War Reserve Inventory

No. In fact, peacetime or wartime, demand for NYCO remains constant and that fabric has a long shelf-life. None of those seem to apply.

Consequently, several questions come to mind. Why does DLA Troop Support want information on printers’ commercial royalty agreements? And, why do they want to establish new printers? Perhaps the current crop of printers aren’t suitable? If not, why? Wouldn’t it be less expansive and faster to help them come into compliance?

Doing the right thing is critical to the acquisition community. But it’s not just enough to follow the Federal Acquisition Regulations to the letter or to field great equipment. The end does not justify the means. Professionals must also avoid the appearance of impropriety. Unfortunately, as this story unfolded over the past couple of months, I’ve seen a lot of things happening that I’m concerned with; shake and bake testing, negotiations with IP owners breaking down, lack of transparency.

You should be concerned too and we deserve answers. We deserve to know why the Army and DLA are willing to invest taxpayer money in new printers that will compete with companies already struggling due to decreased government demand for their wares. We deserve to know why the Army and now DLA aren’t standing by the government’s own language by seeming to be interfere with private businesses negotiating “reasonable terms” with Crye Precision for the use of their Intellectual Property. Once again, I’ll echo a concern that has been voiced to me by members of industry, “If the Army can do this to Crye, what makes us think they might not do something to us later?”

I urge the Army and DLA to become more transparent in this process and explain why they have taken steps that appear to be made to avoid paying a company for the use of its intellectual property and why they are so interested in using taxpayer funds to establish new businesses in an already crowded space.

Scorpion W2 and MultiCam Side-by-Side

Sunday, August 24th, 2014

Like peas and carrots, the Scorpion W2 and MultiCam patterns are certainly complimentary but they aren’t exact matches.

MC-Scorpion Comparison

You asked for it, so here it is. Scorpion W2 is on the left and MultiCam pattern on the right. The lighting was not the same. However, the two side-by-side patterns are scaled based on the pattern repeat. This gives you an accurate view of how the pattern elements square up with one another.

A Look at Operational Camouflage Pattern (Scorpion W2 Variant)

Friday, August 22nd, 2014

Yesterday, SSD received several yards of the Scorpion W2 variant of the US Army’s recently adopted Operational Camouflage Pattern in 500D Cordura. As you can see, from these photos, it is similar to the commercial MultiCam pattern developed by Crye Precision and used by the US Army as OCP in Operation Enduring Freedom as well as various other DoD elements over the years. But, it isn’t an exact match. There are numerous differences in the patterns.

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The May 2014 marginal marking is the date that the pattern was registered.

Scorpion W2 Pattern

Two striking elements are the rather wide brown and green-based bands that run across the pattern. Additionally, you will note that Scorpion W2 is less dense than MultiCam and lacks vertical elements present in MultiCam.

Colors

Here you can see the eight colors in the pattern’s palette. The pattern is 60″ wide and repeats every 25″ vertically, which is the close to the same as MultiCam.
Pattern Repeat

Click here and then right click on image to see the full res version.

Below, you can see the MultiCam pattern. The pattern is about 60″ wide with a 26″ vertical repeat. The pattern is much more dense and would seem busy when compared to Scorpion W2. However, we do have almost 10 years of effective operational use of the pattern which was used as a baseline pattern in the unfinished Phase IV of the US Army Camouflage Improvement Effort.

MultiCam Pattern Sample

Please Note, major coloration differences are due to photos taken in different lighting.

What do you think?

Boom: That Just Happened

Thursday, August 21st, 2014

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Something Cool Just Showed Up At SSD. Details soon!

Latest Info On US Army Transition To Scorpion Camouflage Including Accessory Colors and Schedules

Monday, June 30th, 2014

This is the latest info shared with industry during a recent briefing. Everything is subject to change but most of it jives with what I have heard elsewhere.

-The Army selected a new camouflage pattern o/a 5 May 2014 as previously reported here on SSD.

-There is still no formal announcement from Army leadership but PEO Soldier and Natick are working very closely with industry to make this happen.

-Official, Berry Compliant, Scorpion W2 fabric is being printed. It is Scorpion W2 and not the W1 variant that everyone keeps searching for on the internet. I do not have photos of the pattern yet but a friend has seen it at the printers and describes it as similar to MultiCam but with very distinct differences. Attention Chinese printers attempting to flood the market with knockoff Scorpion fabric; you’re printing the wrong pattern!

-The ACU will continue to be the style of uniform. It will just have a new paint job but also incorporate modified sleeve pockets with zippers from the Army Combat Shirt. No other changes have been announced.

-Boots and gloves will be solid Coyote 498. No definitive word yet on t-shirts.

-Pulls such as loop and hook, thread, zippers and so on, will be Tan 499 as is currently used with MultiCam OCP. I still have no word on Scorpion printed webbing or hook and loop.

UPDATE

Tan 499 Chip from ITW Nexus Coyote Color Chip from ITW Nexus

These are Tan 499 (left) and Coyote (right) color chips from ITW which we first shared in 2010 when the Army had just adopted OCP and wanted to let you know what was going on.

-Currently, a tentative mandatory possession date for Scorpion clothing bag items is 3 years from the decision date. However, mandatory wearout/possession dates traditionally have fallen on Sep 30/Oct 1 to coincide with the fiscal year. No word yet on the wearout date for UCP or MultiCam/OCP. Despite assertions to the contrary by some, DLA continues to purchase items in MultiCam/OCP and the Army is fully aware that OCIE items in a modified UCP (Coyote overdye) as well as the MultiCam variant of OCP will remain in service for years to come.

-The goal is for clothing bag items in the new Scorpion W2 pattern to be available in 128 military clothing stores by May 1, 2015 and in clothing bag issues to new accessions starting Oct 1, 2015 at the 4 major Basic Training Central Issue Facilities. This is different than previous transitions to new patterns which saw issue to new accessions and their Drill Sergeants first with slightly delayed availability to the rest of the force.

-The Army is working closely with DLA Troop Support to only procure fill in sizes of ACUs in UCP. They have to continue to purchase them so long as they continue to issue them to new accessions in the clothing bag. This is one reason that making Scorpion W2 available first to the existing force through the Clothing Sales Stores makes little sense. The sooner they transition Basic Trainees to Scorpion, the sooner they can stop purchasing UCP. This plan would waste taxpayer dollars by purchasing unneeded uniforms that do not perform.

-The Army anticipates that at least 1/2 of its Soldiers will possess Scorpion ACUs within the first year. They are also anticipating a run on the clothing sales stores and are working hard to create a sufficient stock.

-Planners have prioritized clothing and equipment into 4 tiers. Tier 1 is everything that goes into the clothing bag and these are the main priority as the Army wants these available at Clothing Sales by May 1, 2015. Tier 2 includes all combat clothing items that have been purchased through RFI. Tier 3 and 4 products such as sleeping bags are considered less critical items.

-A large amount of money is planned for the transition (I am told up to $370 million) starting 1Q FY 2015. The Army plans to acquire Scorpion print equipment in one of two ways. First, they plan to modify current DLA Troop Support contracts that have approximately 2 or more option years remaining. On other items, Natick will issue new contracts, especially for those items that have traditional long lead times through DLA Troop Support.

-The primary means of transitioning from MultiCam OCP to Scorpion for TA50 will be through RFI/Deployer Equipment Bundles. MultiCam and UCP kit will remain in some parts of the force for some time to come. Yes, expect some mixing of patterns with OCIE for the near term. It’s going to happen. Hopefully, it won’t be uniform coats and trousers.

-The Army has currently contracted 5 printers with each concentrating on a different type of material such as NYCO, Cordura, FR, etc. Already, 1,500 to 2,000 yards of NYCO and Cordura have been printed. That is but a drop in the bucket. The long pole in this tent is getting the materials to pass the shading process and then to get different printers to learn how to do more than one substrate (type of material). Each type of material or substrate absorbs dye differently and the adoption of multiple patterns by DoD over the past 10 years has taught us that this process isn’t easy for companies to perfect. Specialists at Natick must examine fabric samples from each run and ensure that they meet quality standards for color and print. The Army desires to add additional printers but the bench is only so deep and the their missteps regarding a camouflage path forward and subsequent curtailing of purchases of combat clothing and equipment have sent the supply chain into disarray. Several years ago, shading process issues with USAF Digital Tigerstripe almost ran one company out of business. Some companies may not recover.

-There is no word on whether Scorpion W2 will be an unrestricted pattern meaning it could be printed and sold commercially. Based on some legal issues, Scorpion W2 may well not be available for use by manufacturers for commercial use or for outside of program buys. If it is not, no commercial products in Scorpion W2 will be available. The Army will have to decide whether it will allow Soldiers to use commercial products such as day packs in MultiCam. The patterns are similar in nature and use similar colors but they are not exact.

-Air Force deployers: You get your clothing and equipment from the Army’s stocks. You’ll get what the Army is issuing, when it issues it. This may be MultiCam OCP or Scorpion OCP.

Hey Anthony – ETADIK

Tuesday, May 27th, 2014

It’s Scorpion – go choke on a fat one.

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In the post where I suggested that readers go ask their CSM which Camo the Army had chosen, Anthony decided that I was an attention whore that was crying wolf. If you know Anthony give him a swift kick in his fourth point of contact for me.

US Army Selects Scorpion Camouflage Pattern – UPDATED

Friday, May 23rd, 2014

Originally developed by Crye Associates for the US Army’s Objective Force Warrior Program, the Scorpion camouflage pattern could be considered the precursor to the popular MultiCam pattern. Earlier this month, Army officials chose to proceed with a transition to the Scorpion pattern via a “soft launch”. Guess it’s not so soft anymore.

I will point out, that although industry is hard at work preparing fabric to begin the process, the US Army leadership has yet to make an official announcement. I have posted this story in order to offer additional information after another website felt they couldn’t wait for an official announcement and posted that the Army had selected Scorpion.

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Scorpion will replace the MultiCam pattern, currently fielded by the Army as the Operational Camouflage Pattern, making Scorpion the standard issue pattern of the Army, thereby completely replacing the unpopular Universal Camouflage Pattern, first adopted in 2004. The Army will continue to refer to the new Scorpion pattern as OCP. The patterns are very similar so the Army will continue to purchase MultiCam as OCP until the new supply chain for Scorpion is up and running.

This decision signifies the beginning of the end of a process that has taken four years and millions of Dollars in R&D to select a new camouflage pattern for the US Army. The Phase IV of the US Army Camouflage Improvement Effort that looked at four commercial families of patterns seems to have been abandoned in favor of a single pattern created is support of a S&T effort over 10 years ago. The Army still needs to look at so-called ‘bookend patterns’ for desert and woodland use.

UPDATED – Unfortunately, as the Army was still working on their strategic communication plan, the details most of you will seek are not yet available. For example, exact dates and timelines aren’t firm. I have heard that the Army is working with printers to get fabric rolling and plans to have gear on the shelf by next May with OCP in the clothing bag for new accessions by early FY2016. As it hasn’t been printed in any quantity in several years, industry is going to have to learn how to print it, despite lessons learned from printing MultiCam. Although very similar, Scorpion and MultiCam are different patterns. There’s going to be a learning curve here and we still don’t know if Army is going to restrict the pattern like MARPAT and AOR or make it open source like UCP. If it is restricted, you won’t see it for use in commercial gear. Additionally, although many Soldiers have been issued FR ACUs in OCP, there are currently no issue ACUs in OCP made of 50/50 NYCO which is the fabric for the Army garrison uniform. This makes authorization for wear problematic as the FR ACU is considered a combat uniform. Although, we may end up seeing some local commanders authorizing wear of issue FR ACUs in garrison and local training if the changeover timeline turns out to be too long. According to COL Robert Mortlock, PM SPIE at PEO Soldier, the full transition to the new pattern will take up to eight years considering the full wear out of OCIE. Naturally, clothing bag items will be much quicker.

As a sign that the Army is committed to this Course of Action, the recent deployment of elements of the 173rd Abn Bde to Estonia marks the first RFI issue in OCP for use outside of OEF. This is very significant.

I have heard from several Army sources that Scorpion is being referred to as “Scorpion MultiCam” by leadership. This is incorrect. They are two distinct, yet similar patterns. It is either Scorpion, or MultiCam, not both. In this case, the Army has chosen to proceed with Scorpion.

So far, USAF and SOCOM are sticking with MultiCam but at this point, Scorpion remains etherware. No fabric exists, aside from some random remnants found in storage, let alone finished goods. This may change once Scorpion is actually available.

Specifically, the new pattern is the W2 variant of Scorpion which is a ~2009 modification of the base pattern originally created for OFW. Around the same time, woodland and desert variants were also created but there is currently no indication that those will be considered for use as bookend patterns. Scorpion W2 will still receive a tweak or two to apply the latest IR technologies to the pattern.

I do have details on the upcoming bookend tests (woodland and desert) for Fall but I am going to keep those under wraps for now.