Board of Contract Appeals
                 General Services Administration
                      Washington, D.C. 20405

  THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND
        IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY
                    ON FEBRUARY 17, 2004   
          _____________________________________________

  GRANTED IN PART; DISMISSED FOR LACK OF JURISDICTION IN PART:
                        February 4, 2004
          ______________________________________________

                           GSBCA 15607

                DATA ENTERPRISES OF THE NORTHWEST,

                                             Appellant,

                                v.

           GENERAL SERVICES ADMINISTRATION,            

                                             Respondent.

     Marcia G. Madsen, David F. Dowd, and Michael J. Farley of Mayer Brown Rowe &
Maw, LLP Washington, DC, counsel for Appellant.

     Michael J. Noble and Robert T. Hoff, Office of General Counsel, General Services
Administration, Washington, DC, counsel for Respondent.

Before Board Judges DANIELS (Chairman), HYATT, and GOODMAN.

GOODMAN, Board Judge.

     This appeal was filed by Data Enterprises of the Northwest (DEN or appellant), on
June 8, 2001, from the General Services Administration's (GSA or respondent) contracting
officer's final decision dated May 18, 2001, denying appellant's certified claim dated
December 15, 2000.  On November 27, 2001, respondent filed a motion for summary relief
seeking denial of the appeal.  On February 25, 2002, appellant filed a motion for summary
relief on the issue of entitlement.  A ruling on the motions for summary relief was deferred
pending further discovery and a hearing on the merits.  A hearing on the merits was held in
Norfolk, Virginia on July 22-24, 2002.  On March 19, 2003, the hearing was reconvened in
Washington, D.C., and a witness who had testified previously was called as the Board's
witness for additional testimony.  [Foot # 1 ] 

     
****************** Footnote Begin **********
[Foot # 1 ]    The pages of the hearing transcript of March 19, 2003 are not numbered
sequentially from the previous transcript.  Reference in this opinion to testimony on March
19, 2003, is specifically noted by date.
****************** Footnote End ************

 As discussed below, we grant respondent's motion for summary relief in part and dismiss
appellant's appeal to the extent that it asserts a taking under the Fifth Amendment of the
United States Constitution and copyright infringement.  We grant appellant's appeal in part
and award damages as stated herein.

                         Findings of Fact

DEN and its Tool Management Software, ATICTS
     
     DEN was founded in 1970.  At the time of the hearing, DEN had eight employees.
Transcript at 76.  In 1980, DEN developed software that is used to manage valuable assets,
primarily tools and consumable items.  Transcript at 7, 11, 78; Answer   6.  The name of this
software is Automated Tool Inventory Control and Tracking System (ATICTS).  ATICTS
is appellant's primary product.  It is a commercial off-the-shelf (COTS) product which is
licensed for use by commercial and Government customers.  Appeal File, Exhibit 18 at 1;
Transcript at 7-8, 26, 39, 76.  DEN has continually revised and refined its ATICTS software
at its own expense in order  to meet the needs of  its commercial and Government customers. 
Appellant's Motion for Summary Relief, Exhibit A, Declaration of Dennis Michael Brown,
Jr., Feb. 21, 2002, (Brown  Declaration)   5; Answer   7; Transcript at 85.

     DEN has licensed ATICTS to commercial customers, including Rockwell, Raytheon,
Litton, General Dynamics, BDM, Westinghouse, Northwest Airlines, Delta Airlines, Textron
Industries, and First Energy.  In every case, DEN has vigorously protected its contract and
license rights.  Transcript at 7, 11; Brown Declaration   4.

     ATICTS originally was  DOS-based software.  In 1998 appellant developed ATICTS
2000, which is a Windows-based version with a graphical user interface (GUI).  Testimony
was offered by appellant that DEN spent approximately two million dollars over a period of
two years to develop the GUI for ATICTS 2000.  Transcript at 160.  Since then, DEN has
produced numerous upgraded releases.  Appellant's Motion for Summary Relief, Exhibit A, 
Brown Declaration   5.  The software is copyrighted.  The copyright legend and the version
number appear upon installation of the software and thereafter on the screen when the
"about" topic is selected under the Help function.  Transcript at 72.

     Licensed users receive a compact disc containing the software for installation and a
hard (paper) copy of the ATICTS 2000 Training Workbook (ATICTS Workbook). 
Appellant's Motion for Summary Relief, Exhibit A, Brown Declaration   9.  In addition to
the hard copy, the ATICTS Workbook is provided to the licensed user in a soft (electronic)
format on the compact disc which contains the software.  Transcript at 82. 

     In 1998, DEN developed the current version of the ATICTS Workbook.  Answer   8;
Appellant's Motion for Summary Relief, Exhibit A, Brown Declaration   5; Transcript at 70,
78.  The ATICTS Workbook is copyrighted and contains a legend that identifies the contents
as confidential, proprietary information.  The copy of the ATICTS Workbook submitted as
an exhibit in this appeal contains the following language on the second page:

     Copyright, 1998, Data Enterprises of the Northwest, Inc.
     Workbook Version 11/06/99
     These materials contain confidential and proprietary information and may not
     be used, reproduced, distributed or disclosed except as specifically authorized
     under prior written agreement with Data Enterprises of the Northwest, Inc.

 Appeal File, Exhibit 20  [Foot # 2 ] at 2; Transcript at 81.

     
****************** Footnote Begin **********
[Foot # 2 ]    The copy of the ATICTS Workbook included in the record of this appeal is the
one that was transmitted to Anteon Corporation, as described herein.  It is not the most
current workbook.  DEN issues updated versions as the need arises, on the average of once
a year.  Transcript at 83.
****************** Footnote End ************

 The ATICTS Workbook is the primary documentation for the software.  The only other
documentation for the software is contained in the on-line help function in the software itself. 
Transcript at 71, 337-43.  Unless one is a licensed user, one cannot obtain a copy of the
ATICTS Workbook.  Id. at 71, 331-32.  The ATICTS Workbook was not created for the
Government under a Government contract.  Appellant's Supplementary Appeal File, Exhibit 
23.  The Government did not fund the development of the Workbook.  Brown Declaration 
 5.  

     The copy of the ATICTS Workbook submitted as an exhibit in this appeal contains
approximately 250 printed pages.  The ATICTS Workbook is divided into twenty numbered
chapters that contain a detailed description of the software, including how to use the software
and the various functions performed by the software.  The ATICTS Workbook  details how
to perform the functions of the software by step-by-step direction for the user (point, click-
by-mouse, keyboard strokes) and illustrations of how the screen will appear during virtually
every operation.  Appeal File, Exhibit 20.

Formation of Appellant's Contract with Respondent

     For more than a decade, DEN has licensed ATICTS software to various Government
agencies.  Answer   11; Transcript at 8-10.  

     In November 1994, GSA issued solicitation number GSC-KES-00051-12-14-94 (the
solicitation), which stated:

     Offers are solicited for the latest official manufacturer's version of all
     microcomputer software products. 

     For the purpose of this solicitation, software products are defined to be
     licenses (including upgrades), documentation, and media. 

Appeal File, Exhibit 2 at 10.  This solicitation was a Request for Proposals (RFP) for  a
negotiated procurement.   Id. at 1.

     Section C of the solicitation, entitled "Description/Specifications/Work Statement,"
read in relevant part:

     C.1. DESCRIPTION/SPECIFICATIONS.

     FSC Group 70, Part I, Sections B&C, General Purpose Commercial
     Automated Data Processing Equipment and Software.  NOTE: A commercial
     item is defined as an item that is regularly - 1) used for other than Government
     purposes; and 2) sold or traded to the general public in the course of normal
     business operations. . . .
     
     SOFTWARE:  Offers are solicited for the latest official manufacturer's version
     of all microcomputer software products. 

     For the purpose of this solicitation, software products are defined to be
     licenses (including upgrades), documentation, and media.

Appeal File, Exhibit 2 at 12.

     Attachment IV of the solicitation was entitled "Glossary of Terms."  The glossary read
in relevant part:  

     The purpose of this glossary is to provide offerors and GSA with common
     ground to facilitate contract negotiations.  (This glossary is written for general
     business and not as a legal resource.  It is not a substitute for a more
     comprehensive technical or legal definition and does not constitute legal
     advice.)

     SOFTWARE-LICENSE AGREEMENT - A contract between the software
     vendor (licensor) and the software user (licensee) granting the licensee
     permission to use a given software product subject to certain conditions and
     obligations.  Synonym: License Agreement.

     DOCUMENTATION - Materials provided with, or available for, a software
     product for its implementation, operation, and maintenance, such as
     installation guides, tutorials, reference guides, technical and/or user manuals,
     and release notes.

     LICENSEE - The party in a software agreement receiving the license rights
     granted.

     LICENSOR - The party in a software agreement granting the license right.

     SOFTWARE PROGRAM - A set of sequential instructions that a computer
     can interpret and execute, logically assembled or compiled into one or more
     interrelated modules.  Synonym: Program.

     SOURCE CODE - Software programming statements written in a
     programming language, which can be translated into machine readable
     language for execution.

     SUPPORT SERVICES - A defined level of vendor assistance for the licensed
     software, which may include such services as defect correction, telephone
     assistance, and program enhancements.  Synonym: Maintenance.

Respondent's Motion for Summary Relief, Exhibit 17.

     The solicitation incorporated by reference contract clauses from the Federal
Acquisition Regulation (FAR), including clauses at FAR 52.227-14, Rights in
Data General (JUN 1987); FAR 52.227-19, Commercial Computer Software Restricted
Rights (JUN 1987); and FAR 52.215-33, Order of Precedence (JAN 1986).  [Foot # 3 ]
Appeal File, Exhibit 2 at 39. 

     
****************** Footnote Begin **********
[Foot # 3 ]    Relevant portions of these clauses are reproduced in the Discussion
section of this decision.
****************** Footnote End ************

 DEN submitted its initial offer in response to the solicitation on December 12, 1994.
Included in that offer was a document entitled "Data Enterprises of the Northwest, Inc.
Agreement for License of Computer Programs" (DEN License Agreement).  Appeal File,
Exhibit 5. 

     The DEN License Agreement states in relevant part:

     Customer agrees to purchase non-exclusive perpetual license rights to the
     program products listed on Schedule A, such license to be according to the
     terms and conditions set forth on this and the reverse side.

     Schedules 

     A. Software (Licensed Programs)

     . . .  Customer acknowledges that the license granted hereunder is limited to
     the Use of Licensed Programs as provided herein and that the Use thereof by
     an entity other than Customer is prohibited.  Customer shall have no right to
     assign or sub-license any of the Licensed Programs or the Use thereof.

     The Licensed Programs contain confidential and proprietary material.  The
     original and any copies of the Licensed Programs, in whole or in part, whether
     provided to or made by the customer shall be and remain the property of Data
     Enterprises.  Customer agrees not to provide or otherwise make available any
     Licensed Program or copy thereof, but not limited to, menus, screen formats,
     report formats and data dictionaries to any person.

Appeal File, Exhibit 5; Answer   9; Transcript at 10.

     DEN's initial offer also contained a certification, as required in the solicitation, which 
stated that "the Government was not the principal developer of, nor did the Government
either contract or grant funds specifically for the purpose of developing or substantially
improving a specific item or items of hardware or software, or substantial portion thereof,
proposed for inclusion in this contract."  Appeal File, Exhibit 2 at 72.
     
     In its May 8, 1995 best and final offer in response to GSA's solicitation, which GSA
accepted, DEN stated that "the basis of negotiations and award" is how DEN "sells to its
commercial end users" and that all of the products offered by DEN are "commercial items
which are regularly used for other than Government purposes and are sold in the course of
normal business operations."  Appeal File, Exhibit 3 at 1.

     On May 12, 1995, DEN and GSA entered into contract number GS00K95AGS,
pursuant to which Government agencies could purchase a license to use ATICTS,
maintenance of  ATICTS, and training.  Appeal File, Exhibit 6.  The basis of negotiation and
award, as indicated in the contracting officer's memorandum of award, was DEN's
commercial license.  [Foot # 4 ]  Respondent's Opposition to Appellant's Motion for
Summary Relief, Exhibit 23. 

     
****************** Footnote Begin **********
[Foot # 4 ]    The contracting officer states in his final decision: "The applicable
license agreement is the one that is attached to the contract under which the order was issued 
(i.e., GS-35F-30980D)." Appeal File, Exhibit 30 at 2.  The contract number referenced is
the contract number re-assigned to this contract after an extension in 1996.  Id., Exhibit 6. 
****************** Footnote End ************

The contract between GSA and DEN was a Federal Supply Schedule contract applicable to
all departments or independent agencies of the executive branch of the Federal Government. 
Appeal File, Exhibits 2 at 7, 14; 6 at 5.  Under its Federal Supply Schedule program, GSA
makes commercial products available to federal agencies.  48 CFR  8.401(a) (1994).

     The contract included special item number (SIN) 132-31, Purchase of Software; SIN
132-32, Maintenance of Software; and SIN 132-50, Classroom Training.  Appeal File,
Exhibits 3, 4.  The item number for Purchase of Software was subsequently changed to 132-
33 and the item number for Maintenance of Software was changed to 132-34. Id., Exhibits
6 at 36, 7 at 1.

     The price schedule in the contract read in relevant part:

     Mfr Part #     SIN       Description                   Govt Price

     AG-100    132-31    ATICTS-G Includes        8,000
                         all modules and User Manual
     AG-100A   132-31    User Ports 1-4, Each          4,000
     AG-100B   132-31    User Ports 5-12, Each         3,000
     AG-100C   132-31    User Ports 13-24, Each        2,000
     AG-100D   132-31    User Ports 25-33, Each        1,600
     AG-100E   132-31    User Ports 33+  Each          1,000
     AG-103    132-31    Additional User Manual           170

     G002      132-50    Training, 40 Hours On-site         3,800
     G005      132-32    Technical Support, Per Hour        85
     G006      132-32    Annual Maintenance Contract   8,000 [ ] [Foot # 5 ] 

     
****************** Footnote Begin **********
[Foot # 5 ]    The annual maintenance contract includes ten hours of support a month. 
Transcript at 337.
****************** Footnote End ************

 SIN 132-31 are CLIS [contract line items] - include media, license, documentation . . . An
operable system must include at least item #AG-100 and two of the User Ports listed under
item AG#100A.

Appeal File, Exhibit 4 at 17.

     The contract included a section entitled "Terms and Conditions Applicable to
Perpetual Software License (Special Item 132-33) and Maintenance (Special Item 132-34)
of General Purpose Commercial Information Technology Software."  These terms and
conditions included the following language:

      Utilization Limitations

     The Government agrees to refrain from changing or removing any insignia or
     lettering from the software or documentation that is provided, or producing
     copies of manuals or disks, except one copy for backup purposes, as allowed
     by the manufacturer.  The Government also agrees to comply with the
     following:

          a.  Title to and ownership of the software and documentation
          and any reproductions thereof, shall remain with the contractor.

          b.  Use of the software and documentation shall be limited to the
          facility for which the software is acquired, and shall be further
          limited to use on one (1) computer system.

          c.  FAR clauses 52.227-14 RIGHTS IN DATA GENERAL
          (JUN 1987) and 52.227-19 COMMERCIAL COMPUTER
          SOFTWARE RESTRICTED RIGHTS (JUN 1987) are
          incorporated by reference as part of this pricelist. 

Appeal File, Exhibit 7 at 13.

DoD's Two Systems for Inventory Management of Equipment and Tools

     Prior to 1998, the Joint Logistics Systems Command (JLSC) within the Department
of Defense (DoD) was responsible for establishing a standard system for all services to
minimize the cost for use of DoD computer applications.  Transcript at 728.  During the
1990s, the JLSC instituted two systems based on COTS software.  One system was used to
manage and track equipment, and was known as Facilities and Equipment Maintenance,
referred to by the acronym FEM.  The COTS software used for FEM was  MAXIMO, which
is currently developed and marketed by the Anteon Corporation (Anteon).  Transcript,  (Mar.
19, 2003) at 36.  

     The other system was used to track tools, and was known as the Tool Inventory
Management Application, referred to by the acronym TIMA.  The COTS software used for
TIMA was ATICTS.  Transcript at 86-87.  The JLSC selected ATICTS as the core
application for TIMA because the JLSC concluded that ATICTS was the best COTS
software for use by the Army, Navy, Air Force, and Marine Corps depots.  Answer   12; 
Appellant's Supplementary Appeal File, Exhibit 1; Transcript at 77, 86-87.

     In day-to-day practice, personnel came to use the terms FEM and MAXIMO
interchangeably when referring to either the equipment tracking system or the software used
to track equipment, and they would use the terms TIMA and ATICTS interchangeably when
referring to the tool tracking system or the software used to track tools.  Transcript at 86.

DoD Requests Feasibility Study of Combining Inventory Management of Equipment and
Tools into One System

     In 1998, systems management of TIMA was transferred within the DoD from the
JLSC to the Naval Systems Support Group (NSSG).  NSSG currently has oversight
responsibilities for both the TIMA and FEM systems.  Answer   14.

     The Navy's Automated Information Systems Advisory Board (AIS Board) distributes
the budget for computer and network needs among the Navy's various shipyards.  Transcript
at  724.   In 1999, the AIS Board directed NSSG to investigate the feasibility of combining
the FEM and TIMA systems.  The AIS Board directed that NSSG perform a cost estimate
together with the feasibility study.  Transcript at 725.

     According to Lester Kramer, the Director of the NSSG, the reason for this study was
that there were many difficulties in the shipyards and throughout the services with ATICTS
after the transition from the DOS version of ATICTS to the Windows-compliant ATICTS
2000.  The shipyards also had a goal of  reducing costs by having all  applications use Oracle
as a database management system, while ATICTS and ATICTS 2000 used a PICK (D3)
database management system.  Transcript at 730.

NSSG Purchases a Four-User License for ATICTS

     On February 17, 1999, order number N00104-99-F-Q155 was issued under the
contract by Rodney L. Klinger, the contracting/ordering officer on behalf of the Navy
Inventory Control Point (NAVICP), with shipment to NSSG at the Norfolk Naval Shipyard,
to the attention of Mr. Ernest Crosby.  The order read in relevant part:

     The purpose of this delivery order is to acquire support services for ATICTS
     2000 and Pick D3 software upgrade.  The services will support software
     implementation, training and other related services as described in the enclosed
     statement of work. 

     The items ordered under the delivery order were labor - technical support, initial
software training, refresher software training, and travel.  The price of the initial software
training was $3800.  The price of the refresher software training was also $3800.  Included
as a deliverable were training manuals.  [Foot # 6 ]  Appeal File, Exhibit 18; Answer   17. 
The delivery order stated that it was subject to the terms and conditions of the contract. 
Appeal File, Exhibit 18 at 2; Answer   17.  According to the contracting officer's final
decision which is the subject of this appeal, the DEN License Agreement, which is included
in the Appeal File as Exhibit 5 and was referenced previously in this opinion as the DEN
License Agreement, is applicable to delivery order number N00104-99-F-Q155.  Appeal File,
Exhibit 30 at 2.

     
****************** Footnote Begin **********
[Foot # 6 ]    As the statement of work referred to "classes" and included four weeks of
initial training and four weeks of refresher training, it is assumed that more than one training
manual was supplied.
****************** Footnote End ************

 On April 15, 1999, contracting/ordering officer Klinger issued modification number P00001
to order number N00104-99-F-Q155.  Appeal File, Exhibits 19, 30; Answer   17.  The
modification added item number 0003: "4-User ATICTS System for NSSG."  Appeal File,
Exhibit 19 at 2; Answer   17.  A licensed copy of  the ATICTS 2000 software for four users,
including the ATICTS 2000 Workbook, was provided to NSSG under this modification on
or about May 4, 1999.  Appeal File, Exhibit 30 at 1; Transcript at 95.     
The Four-User License Was Requested by American Management Systems

     American Management Systems (AMS) is a contractor with a direct contract with
DoD that provides technical support to the Norfolk Naval Shipyard's (NNSY) TIMA.
Transcript at 364.  Phillip Camacho, an AMS employee, is a security analyst and technical
expert with regard to TIMA.  Transcript at 441-42.  He testified that he requested that NSSG
purchase the ATICTS four-user license so that he could create security documentation for
the TIMA system because the version of the ATICTS Workbook which he had at that time
was not sufficient to develop the security documentation.  Transcript at 527.  [Foot # 7 ] 

     
****************** Footnote Begin **********
[Foot # 7 ]    According to NSSG Director Kramer, NSSG intended to use this four-
user license to set up a "test ring" to test each new release of ATICTS before sending the new
release of the software to the seventeen sites where ATICTS was installed.  NSSG did not
implement the test ring, once it determined that the various sites that were using ATICTS had
different versions of ATICTS installed, and DEN was dealing directly with the problems as
they arose.  Transcript at 731-32.
****************** Footnote End ************

 In December 1999, NNSY upgraded to ATICTS 2000 using the four-user licensed software. 
Respondent's Opposition to Appellant's Motion for Summary Relief, Exhibit 12, Declaration
of Vicky Crittendon, Apr. 9, 2002, (Crittendon Declaration)   2.  Mr. Camacho received
training on the ATICTS 2000 software when it was implemented at the NNSY in 1999. 
Transcript at 449.  In his support of ATICTS for the NSSG, he had access to the use of the
ATICTS 2000 software.  Transcript at 450.

AMS Prepares a Proposed Approach to Addressing Tool Management Functionality into
Facility Equipment Maintenance

     Nicholas Dahlkamp is an employee of AMS.  He prepared a document dated January
12, 2000, entitled "Proposed Approach to Addressing TIMA Functionality into FEM"
(Proposed Approach).  Transcript at 692.

     The Proposed Approach describes discussions between Mr. Dahlkamp and Ernest
Crosby, the NSSG project manager for TIMA, and William Richter, the NSSG project
manager for FEM.  These discussions concerned an approach to a feasibility study to
incorporate the functionality of tool management into the FEM system.  The Proposed
Approach stated that AMS would "complete the analysis of ATICTS functionality" and
another third-party contractor, Anteon (the developer of MAXIMO), would "observe
ATICTS functionality" and provide a cost estimate to integrate TIMA functionality into
FEM.  Anteon would then be tasked to "program" the functionality into FEM.  Appellant's
Supplementary Appeal File,  Exhibit 65 at 2.  The Proposed Approach stated that the benefit
to Anteon would be that an "[u]p front analysis [would be] completed by [the] government
resulting in cost savings to Anteon, [m]oney to be made in integrating the TIMA
functionality with the rest of FEM, [Anteon] [c]ould market TIMA functionality to other
commercial customers, [and there were] [c]urrent NSSG customers already in place for
TIMA functionality." Id.  Additionally, the Proposed Approach stated:  

     define which documents will most effectively support Anteon's development
     of TIMA functionality and then testing [sic] Anteon's product:

     Software Requirement Specification (SRS) Requirements

Id.

     By electronic mail message dated January 13, 2000, Mr. Dahlkamp transmitted the
Proposed Approach to his supervisor, Steven Turner, an AMS project manager.  His message
stated that this file "should capture the discussions I've had with Bill [Richter] and Ernie
[Crosby]."   Appellant's Supplementary Appeal File, Exhibit 65 at 1.

AMS Prepares the Software Requirements Specification (SRS)

     In December 1999, Mr. Camacho of AMS was involved in discussions concerning the
preparation of a document to set forth ATICTS functionality.  This document is mentioned
in the Proposed Approach as the "Software Requirement Specification (SRS)" and  ultimately
became known as the "Draft Facilities and Equipment Maintenance Tool Management (FEM
TM) Software Requirements Specification (SRS)."  Transcript at 454. As will be discussed
later, the enhanced version of MAXIMO that was developed by Anteon to incorporate tool
management functionality came to be known as FEM TM.

     Mr. Camacho worked with two individuals who did not testify at the hearing, Ken
Dukarm of AMS and Deborah Williams of PricewaterhouseCoopers, to develop the SRS.
Transcript at 455-56.  He and these two individuals had equal responsibility for preparing the
document.  Id. at 457.

     In January 2000, Mr. Camacho asked Vicky Crittendon, the NNSY functional
administrator for ATICTS 2000, for a copy of the latest version of the ATICTS Workbook. 
Mr. Camacho did not tell Ms. Crittendon why he wanted the copy.  Ms. Crittendon
understood that AMS was a technical support contractor and had a license to use ATICTS. 
She gave Mr. Camacho a copy of the ATICTS Workbook.  [Foot # 8 ]  Crittendon
Declaration    7, 8; Transcript at 210-13. 

     
****************** Footnote Begin **********
[Foot # 8 ]    Prior to upgrading ATICTS to ATICTS 2000, Ms. Crittendon had scheduled
refresher training for twenty-two shipyard employees during December 1999.  Shelley Stark
of DEN conducted the training and brought with her one copy of the ATICTS Workbook,
Version 11/6/99. Copies of the ATICTS Workbook were made for trainees.  Some received
full copies, and others received only partial copies.  At the conclusion of the class the
attendees retained their copies of the ATICTS Workbook.  Additional copies of the ATICTS
Workbook remained after the training was concluded, and they were later distributed to other
trainees.  Crittendon Declaration    1-6.
****************** Footnote End ************

 Mr. Camacho testified that he did not use the ATICTS Workbook in his preparation of his
portion of the SRS, but relied on his hands-on knowledge of and training in ATICTS.
Transcript at 463.  Mr. Camacho also had knowledge of ATICTS because he had spoken
with DEN personnel numerous times about its functionality.  Transcript at 463.  He
acknowledged that he had consulted the ATICTS Workbook to develop security standards
for TIMA.  Id. at 464-65.

     Mr. Camacho only worked on the SRS from late December 1999 through the first
week in January 2000.  He saw a draft of the SRS several months later, but does not know
when it was actually completed.  Transcript at 459.  After Mr. Camacho's initial involvement,
the SRS was completed by Mr. Dukarm and other individuals.  Id. at 459. 
     
     Ernest Crosby, the TIMA project manager for NSSG, testified that the purpose of the
SRS was to provide functionality of the tool inventory application (ATICTS) to Anteon and
to allow Anteon to develop a cost justification.  Transcript at 376, 380.  This was confirmed
by Nicholas Dahlkamp of AMS, who stated that the SRS was to provide Anteon with the
description of the functionality that would be necessary to provide tool management within
FEM.  Id. at 693-94.
 [Foot # 9 ] 

****************** Footnote Begin **********
[Foot # 9 ]    Mr. Camacho testified that he believed the SRS was developed "to
document the system TIMA requirements and be able to use it for a qualification testing and
make sure that the system met the customer's requirements."  Transcript at 523.   He testified
further that an SRS is a document that is "standard for any system.  It is just one of the many
standard documents we developed for the systems at NSSG."  Id. at 457.  However, when
questioned further, he stated that most of the systems for which he had produced an SRS
were systems developed by AMS, rather than COTS systems.  Id. at 535.  Mr. Kramer,
Director of the NSSG, testified that an SRS is not normally created for COTS software.  Id.
at 751.  However, he said it was needed to develop the testing scenarios for the test ring that
was never implemented.  Id. at 733, 752-54. 
****************** Footnote End ************

The Contents of the SRS 

     There are two versions of the SRS in the record of this appeal.  Appellant's
Supplementary Appeal File, Exhibits 5, 6.  The first version of the SRS makes specific
references to TIMA and ATICTS and contains extensive information copied directly from
the ATICTS Workbook.  This sixty four page document specifically lists the ATICTS
Workbook as a reference and states further that it was prepared by AMS on April 18, 2000, 
[Foot # 10 ] under contract number N00102-96-D-ZA02.  It reads in relevant part:  

     
****************** Footnote Begin **********
[Foot # 10 ]   As described herein, an earlier version of the SRS with a preparation
date of January 3, 2000, is substantially identical to this version and was transmitted to
Kenneth Linna of Anteon via electronic mail on March 15, 2000.  See Appellant's
Supplementary Appeal File, Exhibit 67.
****************** Footnote End ************

 The Software Requirements Specification (SRS) specifies the requirements for the Tool
Management (TM) module of Facilities and Equipment Maintenance (FEM) and the methods
to ensure that each requirement has been met.

     The Requirements presented in this SRS will be used as the basis for the
     design and qualification testing of FEM TM. 

Id., Exhibit 5 at 2.

     This version of the SRS further states, at section 1.1, that it :

     identifies and describes all software requirements in the Tool Inventory
     Management Applications (TIMA). . . .  TIMA is based on the Commercial
     Off-the-Shelf (COTS) product Automated Tool Inventory Control and
     Tracking System (ATICTS) 2000 developed by Data Enterprises of the
     Northwest (DEN) of Seattle, Washington.  TIMA and ATICTS are sometimes
     used interchangeably by the user community to identify the Program or system
     name.

 Appellant's Supplementary Appeal File, Exhibit 5 at 5.  

     The SRS provides at section 1.3 that "[t]he purpose of this document is to specify the
software requirements for the Automated Tool Inventory Control and Tracking System
(ATICTS)."  Appellant's Supplementary Appeal File, Exhibit 5 at 6.  

     The SRS includes a list of "Referenced Documents" which includes "Automated Tool
Inventory and Control Tracking System (ATICTS) Training Workbook, 01 April 1999." 
Appellant's Supplementary Appeal File, Exhibit 5 at 8.  

     The information from the ATICTS Workbook in the SRS is in the form of headers
from the Table of Contents of the ATICTS  Workbook and report numbers that are generated
by ATICTS 2000 that appear in the ATICTS Workbook.  The SRS includes information
contained in the version of the ATICTS Workbook included in the record of this appeal at
Appellant's Supplementary Appeal File, Exhibit  43.  

     It is apparent that persons preparing the SRS reviewed the ATICTS Workbook and
copied headers from the Workbook's chapters and internal portions of chapters directly into
the SRS.  A comparison of information from the ATICTS Workbook and the SRS is set forth
in detail in Appellant's Motion for Summary Relief, Statement of Uncontested Facts   35.

     The SRS lists ATICTS features that are included in the Workbook but are not used
by any Government ATICTS licensee, but are only used by DEN's commercial accounts.  For
example, the "M&TE Usage History Maintenance" menu is a feature of ATICTS that is not
used by DEN's Department of Defense customers; rather, it is used in nuclear power plants. 
The "Regrind Item Transfer Listing" is not a report used by DEN's Government customers;
rather, it is used in a manufacturing environment.  The SRS also lists "Fire Permit Reports." 
This suite of reports was custom-written to meet the needs of one of DEN's commercial
customers.  Brown Declaration   8.

     The second version of the SRS appears at Appellant's Supplementary Appeal File,
Exhibit 6.  While both versions in the record of this appeal have the same preparation date,
April 18, 2000, the second version deletes all references to ATICTS and the ATICTS
workbook, and states:

     This Software Requirements Specification (SRS) identifies and describes all
     software requirements for the Tool Management module of Facilities and
     Equipment Maintenance (FEM TM).

     Despite deleting references to ATICTS, the second version of the SRS contains
virtually all of the information from the ATICTS Workbook contained in the first version of
the SRS.  Appellant's Supplementary Appeal File, Exhibits 5, 6.

NSSG Issues a Task Order to Anteon to Perform a Feasibility Study of Incorporating the
Functionality of Tool Management into FEM

     As mentioned previously, MAXIMO is Anteon-developed COTS software which was
being used by NSSG for management of equipment inventory in the FEM system.  In
October 1996, GSA entered into contract number GS-35F-4357D (the Anteon contract) with
Anteon.  The Anteon contract included purchase of general purpose automated data
processing equipment and software.  Respondent's Supplementary Appeal File, Exhibit 56. 
Various written task orders and modifications were issued under the Anteon contract.  Id.,
Exhibits 65-81.  

     In February 2000, pursuant to verbal task order T0698BN0872, issued under the
Anteon contract, the NSSG, through Lester Kramer, its director, orally  requested that Anteon
conduct a study to determine the feasibility of incorporating the functionality of tool
management into the FEM system.  Mr. Kramer directed the verbal task order to James Bent
of Anteon.  Respondent's Supplementary Appeal File, Exhibits 71, 78, 85-87.

NSSG, AMS, and Anteon Personnel Meet at the NNSY in February 2000

      Mr. Kenneth Linna is a senior information engineer employed by Anteon.  He was
and is the lead developer for the incorporation of tool management into MAXIMO. 
Transcript at 585.  Mr. Linna first became involved in February 2000 to determine if the
functionality of tool management could be incorporated into MAXIMO.  Transcript, (Mar.
19, 2003) at 48.  He traveled to the Norfolk Naval Shipyard  on February 24, 2000, to begin
Anteon's feasibility study and meet with personnel from NSSG and AMS.  He was the only
individual from Anteon attending the meeting.  Transcript at 585-86.  He was not familiar
with ATICTS when he arrived.  He became aware of the existence of ATICTS during his
visit to NNSY.  Transcript, (Mar. 19, 2003) at 50.  

     Mr. Linna met with Vicky Crittendon, the TIMA functional administrator of the
NNSY, and discussed how the shipyard tracked tools.  Ms. Crittendon testified that she did
not show Mr. Linna how ATICTS 2000 functioned, but discussed business practices.  She
had not been told of the decision to conduct the feasibility study concerning the incorporation
of tool management into the FEM system, and she did not know why Mr. Linna was there. 
Crittendon Declaration   11; Transcript at  218-23.

     Mr. Linna was escorted to the meeting with Ms. Crittendon by Phillip Camacho of
AMS. Transcript at 481.  According to Mr. Camacho, Ms. Crittendon and Mr. Linna  "talked
briefly about some of  Ms. Crittendon's  concerns about TIMA" and "what some of the
problems she was having with . . .  TIMA."  Mr. Linna "wanted to see if there were any
thing[s] that she would like to see as far as an improvement or enhancement in any type of
Tool Management application."  Ms. Crittendon "had the ATICTS screen on" during her
discussions with Mr. Linna.  Mr. Camacho could not tell whether Mr. Linna was looking at
or could see Ms. Crittendon's computer screen.  Transcript at 481-82, 531.

     Ms. Crittendon testified that during her meeting with Mr. Linna, she discussed
NNSY's business practice of "kitting" tools, i.e., grouping tools into logical kits for specific
repairs.  During this discussion she turned her computer screen toward Mr. Linna so he could
view a kit with its contents displayed.  That is the only time Ms. Crittendon remembers
showing her computer screen to Mr. Linna.  Crittendon Declaration   11; Transcript at 223-
25.  Mr. Linna's questions were not ATICTS-2000 specific; rather, they were general
questions pertaining to subjects such as the kinds of data NNSY tracks, items NNSY "kits,"
and types of kits NNSY makes.  Transcript at 225-26.

     Mr. Linna testified that during that meeting, he did view the ATICTS 2000 user
interface, i.e., the screen display.  He stated that Ms. Crittendon was merely trying to show
what the application looked like.  He was not given access to ATICTS 2000.  Transcript at
634.  He also testified that he discussed with Steven Turner of AMS the functions that the
"community wanted to have incorporated."  Id. at 586.  Mr. Linna discussed requirements
with Vicky Crittendon and other shipyard personnel.  Id. at 601.  Mr. Linna stated that "they
had a vague idea of the functionality that they wanted included but not really the detail that
I needed."  Id. at 586-87. 

     During the same meeting, Mr. Linna discussed tool management with Mr. Camacho. 
Mr. Camacho showed Mr. Linna the ATICTS Workbook and logged onto ATICTS to show
Mr. Linna the "look and feel" of the software -- the way the menus are set up and the
standard "Windows" look.  Transcript at 469-72.  Mr. Camacho mentioned that he was
developing the SRS for NSSG and asked Mr. Linna if he would like a copy.  Mr. Linna said
that he would.  Mr. Camacho did not give Mr. Linna a copy of the SRS at that meeting.  Id.
at 587; Transcript (Mar. 19, 2003) at 52. 

Anteon Receives the ATICTS Workbook

     Steven Turner of AMS states that he was directed by Ernest Crosby of NSSG to give
Mr. Linna "whatever he needed to facilitate Anteon's development of a cost estimate for
enhancing the tool management capabilities of FEM,"  [Foot # 11 ] and that Mr. Linna
specifically requested an "updated version of the TIMA training workbook, which Mr.
Crosby requested that I copy and give to Mr. Linna."  [Foot # 12 ]  Mr. Turner states that he
photocopied the ATICTS Workbook and then gave a copy to Mr. Linna on February 24,
2000.  Respondent's Supplementary Appeal File, Exhibit 30,   7.  According to Mr. Camacho,
Mr. Turner asked him to give Mr. Linna a copy of the ATICTS Workbook.  Mr. Camacho
had a copy of the ATICTS Workbook he had received from Ms. Crittendon, and he made a
copy of that Workbook and gave it to Mr. Turner to give to Mr. Linna in January 2000. 
Transcript at 474-78.  Apparently,  Mr. Turner photocopied the Workbook he had received
from Mr. Camacho.

****************** Footnote Begin **********
[Foot # 11 ]   Mr. Crosby does not recall asking Mr. Turner to give the ATICTS
Workbook to Anteon. Transcript at 389-90. 
****************** Footnote End ************

****************** Footnote Begin **********
[Foot # 12 ]   Mr. Linna does not remember  requesting a copy of the ATICTS 
Workbook.  Transcript at 588.
****************** Footnote End ************

Anteon Receives the SRS

     Mr. Linna received a version of the SRS which contains the references to the ATICTS
Workbook and the RPT (report) numbers from the Workbook and is substantially identical
to the version with a preparation date of April 18, 2000 included in the record of this appeal
as Appellant's Supplementary Appeal File, Exhibits 5, 6.  [Foot # 13 ]  Mr. Linna testified
that he received a copy of the SRS on March 15, 2000, briefly reviewed the document, and
"threw it on a shelf," as it was of no use to him.  Transcript at 594.  Mr. Linna testified that
he did not use the SRS to prepare the document referred to as the Anteon Analysis, as
discussed below.

****************** Footnote Begin **********
[Foot # 13 ]   The record is not clear as to when Mr. Linna first  received a copy of
the SRS.  Steven Turner of AMS states that he sent the SRS as an attachment to an electronic
mail message to Mr. Linna during the week of February 27, 2000.  Respondent's
Supplementary Appeal File, Exhibit 30 at  4-5.  However,  Deborah Williams of
PricewaterhouseCoopers forwarded a version of the SRS to Mr. Linna as an attachment to
an electronic mail message dated March 15, 2000.
****************** Footnote End ************

 Mr. Linna's Knowledge of Tool Management

     Mr. Linna testified that he developed his understanding of the requirements for tool
management to be incorporated into the FEM system by his past knowledge of inventory
management, meetings with current users of TIMA, and his knowledge of MAXIMO.  FEM
performed certain functions as to equipment management which were needed to be
performed as to tool management.  Mr. Linna stated he did not gain this understanding of
tool management from the SRS or by reviewing the ATICTS Workbook.  Transcript at 594-
600.

Mr. Linna Authors the Anteon Analysis
     
     After returning from his trip to the NNSY, Mr. Linna authored a document entitled 
"Incorporation of Tool Management into NAVSEA FEM" (Anteon Analysis).  [Foot # 14
]  Appellant's Supplementary Appeal File, Exhibit 74.  He testified  that the purpose of the
Anteon Analysis was to determine which TIMA functions could be incorporated into the
FEM system and which TIMA functions would require custom applications.  Transcript at
605-06.
 
****************** Footnote Begin **********
[Foot # 14 ]   By e-mail message dated April 6, 2000, Mr. Linna of Anteon transmitted
the finished version of the Anteon Analysis to James Bent of Anteon.  Appellant's
Supplementary Appeal File, Exhibit 74.
****************** Footnote End ************

[Foot # 15 ]

****************** Footnote Begin **********
[Foot # 15 ]   Mr. Linna erroneously refers to the Anteon Analysis as the "White
Paper."  The "White Paper" is another document which was prepared by Anteon.  Mr. Linna
subsequently testified that he did not prepare the "White Paper."  Transcript at 615.
****************** Footnote End ************
 
     Mr. Linna wrote the Anteon Analysis when he had a copy of the ATICTS  Workbook 
at Anteon's corporate headquarters.  [Foot # 16 ]  Initially, he testified that he "never read
past the cover" of the ATICTS Workbook, because it was "not something he would want to
use."  Transcript at 588-89.  He later testified that he "glanced at it somewhat, maybe" and
did use the information in the ATICTS Workbook to extract "headers out of the Table of
Contents" for use in the Anteon Analysis.  Transcript at 590-91, 604-05, 635.  Despite Mr.
Linna's attempts to minimize his use of the ATICTS Workbook, the Anteon Analysis states: 

     
****************** Footnote Begin **********
[Foot # 16 ]   Mr. Linna also had an electronic version of the ATICTS Workbook. 
Transcript at 618-19; Appellant's Motion for Summary Relief, Exhibit G at 2.
****************** Footnote End ************

[t]he ATICTS 2000 Training Workbook, Version 11/06/99 was used as the primary
requirement source document for this analysis.

Appellant's Supplementary Appeal File, Exhibit 74 at 2.

     The Anteon Analysis contains a series of sections that "depict how major ATICTS
functions described in the Training Workbook will be incorporated into NAVSEA FEM."
Appellant's Supplementary Appeal File, Exhibit 74 at 2-3.  This document also provides:

     The approach to incorporating Tool Management into NAVSEA FEM will
     utilize cloning of existing MAXIMO applications and the creation of custom
     applications.  Clones will be used when MAXIMO functionality is similar to
     required ATICTS functions.  Custom applications will be used for
     functionality not currently supported within the MAXIMO package. . . .
     Whenever possible, the inherent strengths of the MAXIMO package will be
     used to support basic functions supplied by the current ATICTS software.

Id.

     The copy of the ATICTS Workbook included in the record of this appeal was
identified as the copy that Mr. Linna had received from NSSG, and this copy contains  Mr.
Linna's handwritten notes throughout.  Appellant's Supplementary Appeal File,  Exhibit 97. 
At the hearing, Mr. Linna testified that he was marking various screens illustrated in the
ATICTS Workbook as those which would require a custom application in MAXIMO. 
Transcript at 606.  [Foot # 17 ]  Mr. Linna then stated that after preparation of the Anteon
Analysis, he  made no further use of the ATICTS Workbook.  Id. at 635.

     
****************** Footnote Begin **********
[Foot # 17 ]   On various pages of the copy of the ATICTS Workbook, Mr. Linna has
written notes, many of which say "custom app," "exists," and "user defined."  Some
handwritten notes merely duplicate the subject matter of the screen which is illustrated on
the page.  In Chapter 14, Kitting, which consists of ten pages, there are two handwritten
notes, one of which says "IAS" and the other "Custom."  Appeal File, Exhibit 20.
****************** Footnote End ************

 Mr. Linna asserts that he did not use the SRS prepared by AMS to prepare the Anteon
Analysis.  He testified that the SRS was useless to him.  The SRS appeared to him as a list
of  headers extracted from the Table of Contents of the ATICTS Workbook.  Transcript at
635-36. 

     Mr. Linna's supervisor, James Bent, also testified concerning the Anteon Analysis. 
He stated that the ATICTS 2000 Workbook was used in the preparation of the Anteon
Analysis to identify the "high-level functions performed within TIMA" to allow for a
comparison with the capabilities in FEM.  Transcript at 707.

James Bent Prepares the Anteon White Paper and Cost Estimate

     Mr. Bent prepared a document entitled "White Paper, Integration of TIMA
functionality into NavSea FEM" (White Paper) and another document entitled "GSA
Schedule Contract Number GS-35F-4357D Cost Proposal, Integration of TIMA
Functionality in NAVSEA FEM" (Anteon Cost Estimate).  Appellant's Supplementary
Appeal File, Exhibit 74.  He testified that he relied upon the Anteon Analysis when preparing
the White Paper and the Anteon Cost Estimate.  Transcript at 715.

The Anteon Analysis, White Paper, and Cost Estimate are Transmitted to NSSG

     By electronic mail message dated April 11, 2000, James Bent transmitted the Anteon
Analysis, the Anteon Cost Estimate, and the White Paper to various NSSG employees
(William Richter, Donald Newsome, Ernest Crosby, and Lester Kramer).  Appellant's
Supplementary Appeal File,  Exhibit 74.  Mr. Bent testified that after Anteon completed the
White Paper and the Cost Estimate, the ATICTS Workbook was not used in Anteon's actual
enhancement of FEM. Transcript at 709. 

Recommendation to Contract with Anteon to Incorporate Tool Management into FEM

     NSSG issued a document entitled "FEM TM Estimate and Investment Analysis" dated
May 11, 2000, which reads in part:

     NSSG recommends Anteon be contracted to program tool management
     functionality into FEM as a new tool management module, DEN be contracted
     to provide only software maintenance for ATICTS 2000 and PICK through
     FY01, and that no future TIMA contracts be placed with DEN. . . .
                    
     NSSG developed a Software Requirements Specification (SRS) and a
     Requirements Traceability Matrix (RTM) documenting the functionality
     required to support tool inventory and management at the NSSG customer
     sites. . . .  These documents were provided to Anteon to support creating an
     estimate for development and implementation of a FEM Tool Management
     (FEM TM) module.

Appellant's Motion for Summary Relief, Exhibit Q at 3-4.

AIS Board Determines to Incorporate Tool Management into FEM

     In June 2000, in response to the feasibility study performed by Anteon, which
included the Anteon Analysis, White Paper, and cost estimate, the AIS Board made a
determination to incorporate tool management into the FEM system.  Appellant's
Supplementary Appeal File, Exhibit 81; Transcript at 560, 725-26.   

Anteon Receives a Task Order to Incorporate TIMA Functionality into FEM

     On July 17, 2000, GSA issued Modification PS10 to the Anteon contract.  The task
order title of the modification was:

     Site Implementation of Facility and Equipment Maintenance (FEM) Software -
     Implementation of Tools Management Functionality into NAVSEA FEM. 
     Also, follow-on system configuration management support.

Respondent's Supplementary Appeal File, Exhibit 55 at 2.  The objective of Modification
PS10 read in relevant part:

     NSSG requires the implementation of functionality in the FEM application that
     incorporates a generic, versatile, seamless structure that will provide support
     for all aspects of tool management in the naval shipyards.

Id. at 3.
 
     Modification PS10 also read in relevant part:

     10.0 Government Furnished Equipment (GFE)/Government Furnished
     Information (GFI)

     Government Furnished Equipment (GFE) will be provided to the contractor to
     support the development, maintenance and support of the software application
     specified in this contract.  The inventory of hardware and software provided
     as GFE is specified in the Navy System Support Group letter Ser. 1190/00-039
     dated, 7 July 2000.

Respondent's Supplementary Appeal File, Exhibit 55 at 12.

     Navy System Support Group letter Ser. 1190/00-039, dated 7 July 2000, referred to
in Modification PS10, reads in relevant part:

     Enclosures (1) and (2) reflect the hardware and software provided to Anteon
     in support of the FEM software applications for the services.  As technological
     updates occur, and the need for the capacity or other technical specifications
     of the hardware/software change, DMS [Defense Maintenance Systems],
     NSSG will provide hardware and software and update this attachment to
     accurately reflect these changes.  Anteon will maintain this equipment while
     in their possession and use in accordance with the provisions of the contracts
     requiring the use of the equipment.  Upon termination of the configuration
     support of the services' FEM applications by Anteon, this equipment and
     software will be returned to NSSG.

Respondent's Supplementary Appeal File, Exhibit 85.

     The two enclosures to the letter referred to above did not list the ATICTS Workbook
or the ATICTS 2000 Data Dictionary.  Respondent's Supplementary Appeal File, Exhibit 85.

Appellant Is Notified of the NSSG's Decision to Incorporate Tool Management into FEM
and the Disclosure of the ATICTS Workbook to Anteon

     In July 2000, NSSG personnel notified appellant by telephone that NSSG had made
a decision to develop software that would incorporate tool management into FEM.  Answer 
 20; Transcript at 87-89.  Appellant became concerned that NSSG had shared with third
parties  proprietary information relating to ATICTS.  By e-mail message dated July 28, 2000,
appellant asked that NSSG certify in writing that it had not done so.  Appellant's
Supplementary Appeal File, Exhibit 87.  Appellant received no response to this inquiry. 
Transcript at 97.   Appellant then had its attorney write a letter to NSSG dated August 9,
2000.  Id. at 96-97.

Anteon Identifies the Documents Supplied For the Feasibility Study
     
     In an August 14, 2000, electronic mail message to Donald Newsome of NSSG,
assistant project manager for FEM, Mr. Linna of Anteon attached a document which, it
stated, "contains a list of tool management documentation that I have received to date."  The
attached document provides:

     The following is a list of documents Anteon has received to aid in the analysis
     of Tool Management requirements.

     SOFTCOPY DOCUMENTS

     ATICTS 2000.doc    ATICTS 2000 Training Workbook, Version 07/17/00
     prepared by Data Enterprises of the Northwest, Inc. . . .

     DRAFT Software Requirements Specification- . . .   DRAFT Tool and
     Inventory Maintenance Application (TIMA) Software Requirements
     Specification (SRS).  PREPARED FOR:  Navy Systems Support Group,
     Norfolk Naval Shipyard, Portsmouth, VA 23709-5000.  PREPARED BY: 
     American Management Systems, Inc. . . .

     HARDCOPY DOCUMENTS

     Hardcopy of DRAFT Facilities and Equipment Maintenance
     Tool Management (FEM TM) Software Requirements
     Specification (SRS).  PREPARED FOR:  Navy Systems Support
     Group, Norfolk Naval Shipyard, Portsmouth, VA 23709-5000. 
     PREPARED BY:  American Management Systems, Inc. . . .
     Hardcopy of ATICTS 2000 Training Workbook, Version 11/06/99 prepared
     by Data Enterprises of the Northwest, Inc. . . . Was used as the primary
     requirement source document for feasibility study of whether tool management
     requirements could be incorporated [into] the NAVSEA FEM Tool
     Management function.  (Received during initial meeting, 02/22/2000  
     02/24/2000, with NSSG to gather requirements to determine FEM/TM
     feasibility).

Appellant's Motion for Summary Relief, Exhibit G at 2.

NSSG Identifies the Documents Supplied to Anteon

     An August 14, 2000 electronic mail message from Lester Kramer, the Director of the
NSSG, to the contracting officer, stated:  

     TIMA is the government name for the tool management application.  The
     COTS products are ATICTS 2000 (application) and PICK (database
     [management system]).  The owner of the software, development and
     implementation contractor is Data Enterprises of the Northwest.  NSSG was
     told by the Automated Information Systems (AIS) Board to move the tool
     management functionality into Facilities and Equipment Management
     application (FEM). . . .

There have been three documents provided to Anteon:
     1.   Software Requirements Specification This document
     describes the functionality of the ATICTS 2000 product
     (Client).  It was developed by NSSG and is a government
     document.
     2.  ATICTS 2000 Training Workbook This document provides the user with
     screen shots and steps them through the functionality provided by ATICTS. 
     It does contain the following statement on the second page: "These materials
     contain confidential and proprietary information and may not be used,
     reproduced, distributed or disclosed except as specifically authorized under
     prior written agreement with Data Enterprises of the North west, [sic] Inc."

     3.  A PNSY [Portsmouth Naval Shipyard] employee provided a
     Lockheed Martin training CD to a representative of Anteon. . .
     .
     We have allowed an Anteon representative to view a NNSY
     [Norfolk Naval Shipyard] employee using the ATICTS 2000
     product and ask them questions about their job.
Appellant's Motion for Summary Relief, Exhibit R.

Anteon Develops a Document Beyond the White Paper 

     Under the Anteon Contract, Anteon prepared at least two versions of a detailed
document entitled "FEM Tool Management Requirements Document for the Navy Systems
Support Group (NSSG) Facilities and Equipment Maintenance System (FEM)" (FEM TM
Requirements Document), one dated September 5, 2000, and the other dated February 1,
2001.  Appellant's Supplementary Appeal File, Exhibits 38, 44.  

     Michael Brown, President and Chief Executive Officer of DEN, testified that he
received a copy of the first version of this document by mail without a return address and
subsequently received a copy of the second version in response to a Freedom of Information
Act request.  Transcript at 134-37.  He had various technical employees of DEN review the
documents and concluded that the document contained programming notes to incorporate
ATICTS functions into MAXIMO using the Oracle database management system used by
MAXIMO.  Id. at 138.  For example, on page 116 of the second version of the document, the
"Tool Kit Application" showed a screen very similar to the same screen in ATICTS with
notes indicating how the functions of the ATICTS screen would be programed into
MAXIMO using Oracle.  Id. at 139-41; Appellant's Supplementary Appeal File,  Exhibit 141. 

The Proprietary Statement Was Removed from the ATICTS 2000 Workbook

     In an electronic mail message dated September 21, 2000, Ernest Crosby of NSSG
stated: "I talked to PNSY personnel today and they said they did receive an original [ATICTS
2000 Workbook] with the proprietary statement in the training manual.  They also said they
ran copies of the document and left the statement out of the document."  Appellant's Motion
for Summary Relief, Exhibit T.

     Another electronic mail message dated September 21, 2000, from Mr. Crosby to the
contracting officer, Rodney Klinger, indicated that "[a]ll but one" of "15 sites" reported that
their copy or copies of the Training Workbook "had the [proprietary] statement."  This
message forwarded an electronic mail message from Phillip Camacho of AMS to Mr. Crosby 
in which Mr. Camacho stated:

     I spoke to Portsmouth too, however, Rene Bonnin couldn't find a manual with
     the statement.  Even his manual didn't have the "proprietary" statement page. 
     Rene could only guess that copies were made from an original with the page
     removed purposely.

Appellant's Motion for Summary Relief, Exhibit U.

DEN is Notified that the Government Has Disclosed the ATICTS Workbook to Anteon

     Mr. Klinger, the contracting officer, wrote a letter dated September 27, 2000 to DEN,
which reads in relevant part:

     We have received your letter of August 9 to Mr. Les Kramer of the Navy
     Systems Support Group (NSSG) at Norfolk Naval Shipyard, and your follow-
     up letter to me dated September 6, 2000.   As the contracting office for the
     actions referenced in your inquiry, we are providing the response.

     After several discussions with NSSG personnel, and obtaining and reviewing
     the pertinent portions of the GSA Schedule, the Software License Agreement,
     the notice accompanying all software shipped, and the copyright warning
     which presumably appears when one utilizes the ATICTS software, as well as
     other contract vehicles under which contractor support services are being
     provided to NSSG, we feel we are now ready to address your questions.

     Our investigation elicited input from Mr. Les Kramer, who provided
     information obtained from personnel at all Naval Shipyards.  By Mr. Kramer's
     account, the only DEN document that has been shared with Anteon is an
     ATICTS 2000 Training Workbook.

     In responding to your allegations, a discussion of the shipyard community's
     intent with regard to tool management is considered necessary, and may help
     to resolve any misconceptions that exist.  The facts are that the shipyard
     community's Automated Information Systems Advisory Board has decided to
     eliminate TIMA and replace it with the broader Facilities and Equipment
     Maintenance (FEM) application.  This replacement will be a cost-saving
     measure, in part because it eliminates the need to run a separate database
     system, PICK, as is required for TIMA.  This decision is purely the
     Government's to make.  If DEN believes that the Navy intends to duplicate
     DEN's software application, this is, in fact, not the case.  What the Navy
     intends to do is to replace TIMA with a commercially available product.  In
     essence, the functionality that already exists in FEM will be further developed
     through business process reviews, and requirement definitions with the
     customer.  The ATICTS software has not and will not be used inappropriately,
     nor will the ATICTS software be "reverse engineered."  In truth, the Navy
     does not have the ability to reverse-engineer the ATICTS software, as we have
     neither the code nor the documentation to accomplish this.

     Under the terms of their contractual arrangement with NSSG, Anteon has
     agreed not to divulge any "live data" and/or highly sensitive information or
     records to anyone who is not authorized access to such information.  In
     addition, all Anteon employees are required to certify, on an annual basis, to
     a Code of Business Ethics and Conduct.  Employees certify that they will not
     disclose confidential information.  The term "confidential information" not
     only applies to the Company's information, but also includes third party
     information provided by Anteon's customers.

     Anteon has advised that their review of the training workbook was limited to
     only a few people for a short period of time, and upon receipt of your August
     9 letter, they ceased any review of the workbook altogether.  They have further
     assured us that they have made no copies of the workbook, and have since
     returned their only copy to us.

     In summary, I wish to stress that no one outside the Government was given
     access to or use of ATICTS software, or to DEN software code or software
     code documents.  No other "third parties" have been provided any materials
     related to DEN software.

Appeal File, Exhibit 26. 
     The contracting officer's letter did not mention that NSSG had supplied Anteon with
various versions of the SRS and versions of the ATICTS 2000 data dictionary as described
below.  [Foot # 18 ] 

****************** Footnote Begin **********
[Foot # 18 ]   After appellant filed a claim alleging that the Government had revealed
its proprietary information to Anteon, the contracting officer's final decision denying
appellant's claim also did not mention that Anteon had requested and received various
versions of the ATICTS 2000 data dictionary.
****************** Footnote End ************

 Various Versions of the ATICTS Data Dictionary Are Disclosed to Anteon

     More than a month before the contracting officer's letter to DEN addressing the
disclosure of the ATICTS Workbook to Anteon, on or about August 17, 2000, Mr. Linna
requested and received a hard copy   [Foot # 19 ] of the ATICTS data dictionary from
NAVSEA and also from the United States Air Force.  Transcript at 623-29; Transcript (Mar.
19, 2003) at 57, 111.  Phillip Camacho of AMS testified that he supplied a hard copy of the
NAVSEA ATICTS data dictionary to William Richter, NSSG FEM Project Manager, who
delivered it to a person he believed to be Mr. Linna.  Transcript at 518-19.  Mr. Linna
confirmed that he received the hard copy version of the ATICTS data dictionary from Mr.
Richter.  Transcript (Mar. 19, 2003) at 56.  Mr. Linna did not question whether there was any
restriction to receiving copies of the ATICTS data dictionaries. Id. at 59.

     
****************** Footnote Begin **********
[Foot # 19 ]   Donald Newsome, NSSG assistant project manager for FEM,
transmitted to Mr. Linna via electronic mail on June 4, 2001 an electronic copy of the
Portsmouth Naval Shipyard ATICTS data dictionary.  Respondent's Supplementary Appeal
File, Exhibits 57, 83.  Mr. Linna has no recollection of using the electronic version.  He
believes he requested it because the Portsmouth Shipyard was using a different version of
ATICTS 2000, and he would have compared this data dictionary to the hard copy version and
determined there was no significant difference between them.  Transcript (Mar. 19, 2003)
at 101-02.
****************** Footnote End ************

 At an unspecified time, Mr. Linna also received electronic versions of the ATICTS Air
Force data dictionary formatted as Excel spreadsheets.  Mr. Linna additionally  received from
the Air Force copies of ATICTS data dictionaries in the format of Excel spreadsheets  that
he used to map data for migration from ATICTS 2000 to MAXIMO at Air Force sites. 
Transcript (Mar. 19, 2003) at 98;  Respondent's Supplementary Appeal File, Exhibits 59-61. 
Mr. Linna found some differences between the Navy and Air Force ATICTS 2000 data
dictionaries, but much duplication.  If he found information in one that did not appear in the
other, he had to determine whether the information was actually needed.  Transcript (Mar.
19, 2003) at 99-101.  The original hardcopy version of the ATICTS data dictionary was
returned by Anteon to NSSG in January 2003.  Respondent's Supplementary Appeal File,
Exhibit 63, Declaration of Kenneth W. Linna, Mar. 10, 2003 (Linna Declaration)   3.

Nature of the ATICTS 2000 Data Dictionary

     Phillip Camacho of AMS testified concerning the hard copy of the ATICTS data
dictionary which he sent to Mr. Linna through Mr. Richter.  Mr. Camacho testified that he
believed the data dictionary was not an ATICTS product, but was inherent in the D3 database
management system of ATICTS.  Transcript at 520-21, 533-34.  Mr. Brown of DEN offered
rebuttal testimony that the data dictionary is inherent in the ATICTS database application.
If ATICTS were not loaded on the computer, he explained, the data dictionary would not be
accessible through D3, the database management system.  Transcript at 757-61.

     Both Mr. Linna and Ms. Shelley Stark of DEN confirmed Mr. Brown's testimony that
the ATICTS data dictionary resides in the ATICTS 2000 application and not in its D3
database management system.  Transcript (Mar. 19, 2003) at 26, 161-63.  Mr. Linna offered
additional testimony as to the nature of a data dictionary.  He first discussed the development
of a data dictionary within the context of the creation of a database:

     [Y]ou develop a table that is going to be used, and get all the data elements
     within that table.  From there you develop the strings and so forth for the
     applications that are going to interface with the tables.  That is when it actually
     becomes a data dictionary.  Up until that point, Oracle doesn't know what your
     table structure is going to be -- it's just a database management tool to be able
     to help you develop all of your different table structures and the relationships
     and so forth. . . .  You develop the tables with the elements, and that in turn
     creates the data dictionary.

Id. at 24-25, 38. 

     Mr. Linna offered the following definition of a data dictionary:

     [The data dictionary defines] the relationship of the tables, the data elements
     within the tables, the size of the data element, and the description of the data
     element.  And also the type of data, whether it's alphanumeric, numeric data,
     date, time, anything out there, whatever the format of the data. 

Transcript (Mar. 19, 2003) at 21. 

     Mr. Linna confirmed that in the development of a database, the data dictionary does
not reside in the database management system but is created by the characteristics of the data
elements in the tables of the database.  The data dictionary does not determine the
characteristics of the data elements; rather, the characteristics of the data elements must first
be determined by the software developer, and the data dictionary contains the characteristics
of the data elements.  "Data" is the value of a specific element of a database table.  Transcript
(Mar. 19, 2003) at 26.

     Mr. Linna testified that the data dictionary does not contain "data" -- it contains the
characteristics of the data elements.  For example, the data dictionary may contain the name
of a data element entitled "Social Security Number," with the parameters that it be nine
characters, alphanumeric.  The actual social security number of a particular person is data and
is not found in the data dictionary.  The data dictionary gives direction as to the type of data
that can be used to fill the data element field.  Transcript (Mar. 19, 2003) at  28-29.

      Mr. Linna testified that the best way to view the structure of a database is to access
the data dictionary, which shows the structure of the data.  If one were to view a printout of
the actual data, one could only guess at the structure of the data, as the structure of the data
is not self-evident from the data itself.  For example, if one views numerical data, one would
not necessarily know whether the numbers were the result of a mathematical computation or
an identification number such as a social security number.  Transcript (Mar. 19, 2003) at 30. 
The data dictionary does not contain the structure of the individual tables in the database, but
rather, the structure of the data is contained in the tables of a database.  Id. at 44.  

     Shelley Stark, director of software development for appellant for the past twenty five
years, testified that a data dictionary is a document that describes the data and the layout of
the files or tables for a particular database application.  She authored the ATICTS data
dictionary.  The data dictionary shows the structure of data, while a flat file is the data itself,
without an explanation as to the use of the data.  Transcript (Mar. 19, 2003) at 161-63.  Every
time a new data element is added, the parameters of that data element are added to the data
dictionary.  Id. at 168. 

     Ms. Stark testified that the ATICTS 2000 data dictionary consists of two files that are
unpacked from the installation compact disk that contains the software.  The two files contain 
a description of each table, the column or fields that make up the table, an English description 
of the table, a designation of the type of data (whether it is alphanumeric, a date, a time, an
integer, or otherwise), the maximum length of the field, and validation criteria.  There are also
correlation data that link various data fields to other tables.  Transcript (Mar. 19, 2003) at 
170-71.  

     Ms. Stark demonstrated to the Board, using a laptop computer, how a user could access
the ATICTS 2000 data dictionary and print out a copy.  Transcript (Mar. 19, 2003) at 171-86. 
Ms. Stark demonstrated that it was not possible to generate an ATICTS 2000 data dictionary
for printing a copy without accessing ATICTS.   Id. at 206.

     Ms. Stark reviewed the MAXIMO data dictionaries and noted similarities between the
various data elements in those data dictionaries and data elements in the ATICTS 2000 data
dictionary.  In many instances, ATICTS terminology was used to name the data elements. 
Examples were discussed, including the "issue grid," kit templates, and tool checkout. 
Respondent's Supplementary Appeal File, Exhibits 51-B, 52;  Transcript (Mar. 19, 2003) at
219-30.
     
Anteon's Use of the ATICTS Data Dictionary

      Mr. Linna testified that Anteon needed information contained in the ATICTS data
dictionary to facilitate data mapping, a procedural step in the data migration process of
copying existing data from the ATICTS database to the new database of  FEM TM. 
Transcript at 624-25.  Anteon needed the table name and the column name within the table
to know where to obtain the data elements to fill the various, required fields.  Mr. Linna said
that he had no interest in the table structure.  Id. at 640, 642.  He explained further that the
purpose of data mapping was to take a specific data element from ATICTS and relate it to a
specific data element in MAXIMO, so that the data in ATICTS could be migrated to the
proper place in MAXIMO.  Transcript (Mar. 19, 2003) at 65. 

     Mr. Linna testified that no one at Anteon other than himself used the ATICTS data
dictionary.  Transcript (Mar. 19, 2003) at 60.  He described the process of data mapping as
follows: 

     I would create a data map document where I put in the table names and the
     column name, the description, the size of the field, and the data type.

Transcript (Mar. 19, 2003) at 61.

     Mr. Linna used Microsoft Access software to perform the data mapping.  Transcript
(Mar. 19, 2003) at 62-63.  The Microsoft Access files that Mr. Linna created during the data
mapping process were supplied to the Board.   Respondent's Supplementary File, Exhibits 83, 
84.  He designated the data elements of ATICTS from the ATICTS data dictionary  [Foot #
20 ] as "source data" and mapped these data elements to those elements in MAXIMO which
he believed corresponded to the elements in ATICTS.   Transcript (Mar. 19, 2003) at 66-70. 
As he performed the data mapping process, which he described as time-consuming, Mr. Linna
made a list of data elements in ATICTS for which he could not identify a connection with an
existing data element in MAXIMO.  Id. at 74.   He would then consult NSSG users to
ascertain if they actually used that data element and if it should be migrated into MAXIMO. 
Id. at 70-71.  He said that he was not interested in the table structure of ATICTS or the
interrelationship of the data designated by keys.  Id. at 72-73, 98.  Of the 1524 data elements
in ATICTS, Mr. Linna mapped approximately four hundred data elements to MAXIMO.  Id.
at 81.  He testified further that his efforts to perform the data mapping were ongoing
throughout the development phase of FEM TM.  Id. at 74. 

       
****************** Footnote Begin **********
[Foot # 20 ]   The document that appears as Respondent's Supplementary Appeal File,
Exhibit 49-B, is the hard-copy version of the data dictionary that Mr. Linna received from
NSSG and that he used to perform the data mapping that is subsequently described. 
Transcript (Mar. 19, 2003) at 94-95.  The document received by Anteon appears to be an
incomplete version of the ATICTS 2000 data dictionary.  Testimony by Shelley Stark,
Director of Software Development for appellant, suggests that the document contains portions
of print-outs of the two documents that make up the data dictionary.  Id. at 187-89. 
****************** Footnote End ************

Mr. Linna testified that he could not determine the functionality of ATICTS 2000 by looking
at the data dictionary.  Transcript (Mar. 19, 2003) at 105-06. 

     Mr. Linna testified that using the ATICTS data dictionary reduced the cost and the
effort of data mapping and that in order to perform data mapping, he needed either the data
dictionary or information relatively close to that contained in a data dictionary.  Transcript
(Mar. 19, 2003) at 134, 137.  This was confirmed by Shelley Stark of DEN, who stated that
she had migrated data from other databases into an ATICTS database by using information
about the specific data elements to be migrated to create additional elements in the ATICTS
data dictionary, instead of using the information from the data dictionary of the other
application.  Id. at 207-13.

     Mr. Linna said that instead of using the ATICTS data dictionary, he could have
informed NSSG what data fields were available in MAXIMO and NSSG could have then
hired a contractor to supply the data about the corresponding data elements in ATICTS. 
Transcript (Mar. 19, 2003) at 135. 

     He testified that if the ATICTS data dictionary had an element in it that was not in
FEM, he would have to add that element into an existing screen or into an existing field that
was not being used.  Transcript (Mar. 19, 2003) at 137.  Mr. Linna said that he created a kit
template and issue grid in MAXIMO because the users wanted it.  He could see that these
elements existed in ATICTS because their existence was apparent from the data dictionary.
Id. at 139-41.

NSSG Concern that DEN Would Take Legal Action

     An electronic mail message dated November 17, 2000, from Ernest Crosby of NSSG
to other NSSG personnel regarding "TIMA E-Mail Traffic" stated that "[t]here is a possibility
DEN may take legal action against the government" and that "[u]ntil further notice do not
include any contract support personnel at NSSG as copy to on any e-mails associated with the
TIMA project."  Appellant's Motion for Summary Relief, Exhibit V.

     In response to this message, NSSG Director Lester Kramer stated:

     Just to clarify why not to put support contractors on copy of email dealing with
     TIMA.  There is a potential that DEN may take legal action against the
     government but that is not the reason for not putting contract support personnel
     on copy to email associated with TIMA.  The reason is very simple, when we
     started to develop Tool Management in FEM for NAVSEA NSSG became a
     competitor of DEN.  As a competitor DEN requires any contractor working for
     NSSG on TIMA to sign a Non disclosure/Non compete agreement as they have
     access to proprietary information.  NSSG is working on getting that done or
     resolved.  Once resolved, you can once again put all TIMA support personnel
     on copy to email as necessary.  NSSG will let you know when this occurs.

Appellant's Motion for Summary Relief, Exhibit V.

     The non-disclosure/non-compete agreements referenced in this e-mail message were
never agreed upon or executed.  Brown Declaration   9.

Anteon's Discussions with TIMA Users in the Software Development Process

     After meeting with Mr. Linna in February 2000 at the NNSY, Vicky Crittendon did not
speak with him again until August 2000.  From then until the summer of 2002, Ms. Crittendon 
had regular discussions with Mr. Linna as to NNSY's business practices for tracking tools. 
Transcript at 231-33.

     Testimony was offered by Mr. Linna and various individuals at NSSG concerning the
methodology used to add tool management functionality to MAXIMO  to develop FEM TM. 
Transcript (Mar. 19, 2003) at 86; Transcript at 567.  User conferences were held during which
Anteon personnel interviewed users in order to determine the functionality of tool
management to be incorporated.  Id. at 86.  Users were cautioned by NSSG e-mail messages
not to bring any ATICTS-related material to the user conferences. Respondent's
Supplementary Appeal File, Exhibit 44.  Electronic mail messages from Ernest Crosby to
Phillip Camacho of AMS, who arranged the user conferences, cautioned that the tool
management functionality module for FEM "will be built essentially from the ground up,
without using any software code, documentation, training materials, system design
specifications, or other proprietary DEN property."  Appellant's Motion for Summary Relief,
Exhibit P.  Mr. Camacho testified that Mr. Crosby told him that he did not want any users to
bring anything that could be construed as proprietary information from DEN.  They wanted
to develop a system "from scratch."  Transcript at 515-16.  This was also confirmed by Lester
Kramer's testimony during the hearing.  Id. at 735-37.

     Donald Newsome, NSSG assistant FEM project manager, testified that he believed the
functionality and requirements for tool management did not come from ATICTS software, but
from the users themselves.  Transcript at 551, 555.  Mr. Newsome testified as to the meeting
with the users to determine requirements for FEM TM:  "Our focus was the business process,
and we sat down and spent many excruciating hours with the users talking about what abilities
they needed to do their business process."  Id. at 567.  Mr. Newsome did not know whether
Anteon relied on the SRS or the ATICTS Workbook in developing the new software.  Id. at
552-53. He stated that screens that were cloned to create FEM TM were MAXIMO, not
ATICTS screens.  Id. at 554.  After several user meetings, Anteon personnel coded the
software to support user requirements, and they returned four or five times to show the results
of the software development to the users.  Transcript (Mar. 19, 2003) at 86.  Lester Kramer
of NSSG stated that Anteon was never provided the source code of the ATICTS 2000
software or access to the software.  Transcript at 737.

Data Migration from ATICTS 2000 to FEM TM Software

     Once FEM TM was developed and functional, the existing data in the ATICTS 2000
data base was migrated into the FEM TM database.   Data migration occurs after the software
is developed and tested by the users using sample data inputted by the users.   Transcript (Mar.
19, 2003) at 86-87.  Mr. Linna testified, based upon his twenty years of experience as a
software engineer and familiarity with MAXIMO, that if Anteon had not received the
ATICTS data dictionary, it could not have  accomplished the data migration from ATICTS
2000 in the way that it did.  He stated that he would have been able to design the new database
without the data dictionary, but data migration would not have been accomplished
electronically.  He testified that if he was not able to use the data dictionary, he would have
"gone to [his] boss and told him [Anteon] could not do the job."  This was a specific reference
to the requirement that Anteon migrate the data from ATICTS 2000 to FEM TM.  If Anteon
could not migrate the data electronically, the users would have had to manually input all the
data, which would have been a long process. Id. at 16, 77-79. 

     The Board questioned Mr. Linna on the impact of using the data dictionary to facilitate
data migration.

     Judge Goodman:  So you're saying that [if you had not been] given . . . the data
     dictionary, then you could have developed a system but there would have been
     a real pause between the development of the system and getting it running
     because it would have taken a lot of time to get the data from the old system to
     the new?

     Mr. Linna:  Yes sir. . . .

     Judge Goodman:  Do you have any feel for the amount of time it would have
     taken to key in this amount of data . . .?

     Mr. Linna:  They'd probably still be working on it.  I don't - I don't really know. . . .

Transcript (Mar. 19, 2003) at 83-84.

     Judge Goodman:  . . . [O]ne of the [Anteon] contract tasks was to initialize the
     FEM database with the Legacy [ATICTS 2000] system data[. W]ould you say
     you could have done that without the ATICTS data dictionary?

     Mr. Linna:  As I said before, manually. . . . [B]ased on the [Anteon] contract
     saying . . . that [Anteon] would put that data in there, then we would be the ones
     that would have to do so.  That's why I said earlier, I'd tell my boss we couldn't
     do it. . . .

     Judge Goodman:  . . . But as far as you are concerned without the ATICTS data
     dictionary, there was going to be a significant delay in getting that information
     into the system.

     Mr. Linna:  Yes, sir.

Transcript (Mar. 19, 2003) at 104-05.

     As the result of Mr. Linna's efforts to data-map the existing data elements in the
ATICTS 2000 data base using the ATICTS 2000 data dictionary, Anteon was able to
supervise NSSG personnel when they migrated the existing data in the ATICTS 2000 database
into the FEM TM software.  Mr. Linna testified that when the data migration at the Naval
shipyards actually occurred, the shipyard representative exported a text file with data. 
Transcript at 642.  Anteon was not given access to the ATICTS 2000 software during data
migration.  Id. at 643; Transcript (Mar. 19, 2003) at 89.  

      Donald Newsome of NSSG personally observed the data migration at the NNSY.  He
testified that Anteon personnel were present, but did not have access to ATICTS.  The TIMA
administrator at each shipyard -- a Government employee -- logged on to ATICTS, logged on
to FEM, and kept going back and forth to make sure that the data that moved from one system
actually moved correctly and reflected correctly in the new system.  Transcript at 565.  Anteon
personnel might have been able to see what was happening, but they were not involved in the
process.  The migration process was to assure that data from one system was transferred to
the proper field in the new system. Id. at 567-70.

     Mr. Linna also described the data migration process.  Once the shipyard employee
exported the data from ATICTS 2000 as a text file, Anteon took it and put it into another
Microsoft Access data basefile, and from there it was moved, using a COTS program called
Data Junction, to temporary tables in Oracle, the database management system for MAXIMO. 
The temporary tables were designated as DL (Data Load).  At this point various validation
checks were made to the data, and then the data was migrated from the DL tables into
permanent Oracle tables.  Transcript (Mar. 19, 2003) at 76, 90-91.

Systems Acceptance Testing of the FEM TM Was Conducted in June 2001 

     A systems acceptance test team of end users was created to test the FEM TM software
developed by Anteon.  Transcript at 244.  The first system acceptance test for FEM TM
occurred on June 11-15, 2001.  Transcript at 561.  On June 28, 2001, James Bent of Anteon
visited NNSY and spent time with Ms. Crittendon discussing concerns that the shipyard
test/development team had about Anteon's understanding of shipyard requirements, i.e.,
functionalities in ATICTS that did not appear in MAXIMO.  Id. at 235-36; Crittendon
Declaration   12. 

     During the meeting of June 28, 2001, Ms. Crittendon described to Mr. Bent ATICTS
functionalities such as global viewing, query-by-word, tool-in-transit, and badge inquiries. 
Mr. Bent viewed an employee performing these procedures using ATICTS 2000.  Transcript
at 236-37; Crittendon Declaration    12-13.  At that time, Mr. Bent also observed toolroom
personnel performing check-in/check-out of tools using ATICTS 2000, as well as procedures
for transferring tools between toolrooms.  Mr. Bent viewed the ATICTS 2000 screen during
the check-in/check-out procedure.  Transcript at 247, 561.  Mr. Bent was shown an ATICTS
2000 screen by Ms. Crittendon in order to see how Navy personnel were used to receiving
reports, i.e., by a list with radial buttons next to it.  Id. at 213.

     Ms. Crittendon testified that various functionalities of ATICTS which she requested
to be incorporated into FEM TM, such as global query and a custom application for the master
tool inventory, were not incorporated.  Transcript at 246-49, 254, 264.

The Government's Use of FEM TM

     As of the date of the first hearing in this appeal in July 2002, several shipyards were
using FEM TM instead of ATICTS 2000 for tool management.  Transcript at 563.  According
to the respondent, as of August 5, 2003, seven military facilities were using FEM TM -- the
Norfolk Naval Shipyard, Pearl Harbor Naval Shipyard, Portsmouth Naval Shipyard, Puget
Sound Naval Shipyard, Ogden Air Logistics Center, Oklahoma City Air Logistics Center, and
Robins Air Logistics Center.  All seven had replaced ATICTS with FEM TM.  The
Government does not pay a separate license fee for FEM TM.  Rather, the Government
continues to pay a site license fee for MAXIMO to MAXIMO's current supplier.  The
Government asserts that it acquired unlimited rights to the FEM TM enhancement by funding
the development of this enhancement by Anteon.  According to respondent, there were in July
2002 no additional military facilities that were planning to begin using FEM TM or to replace
ATICTS with FEM TM.  NSSG has not specifically prohibited Anteon's marketing of FEM
TM to non-governmental customers.  Respondent's Supplementary Appeal File, Exhibit 86.

Alleged Impact of NSSG's Actions on DEN

     Lost Revenue

     DEN's annual billings to all customers were approximately $1.65 million in 1999,
$1.456 million in 2000, and $1.272 million in 2001.  Brown Declaration   6.  As of February
2002, DEN alleges that it was experiencing a reduction of approximately $500,000 in annual
revenue from NSSG.  This is based upon the fact that in federal fiscal year 2000, DEN
received $605,000 in revenue under contract with NSSG, while in federal fiscal year 2002
DEN had less than $100,000 in anticipated revenue under contract from NSSG.  NSSG has
reduced orders relating to the expansion and upgrade of DEN's software at various DoD sites. 
Id.   10; Transcript at 173-76.  DEN's President and CEO testified that approximately 30% of
its revenue is attributable to cost.  Transcript at 177-78.  The Government did not rebut this
testimony. 

     Alleged Diminished Value of the Company

      DEN has alleged that immediately prior to NSSG's informing DEN that it had
transmitted DEN's proprietary information to Anteon, DEN was conducting negotiations with
prospective purchasers of the company.  One prospective purchaser submitted an affidavit
which read in relevant part:
     
     I am an attorney licensed to practice in the State of Washington since 1972.  In
     conjunction with my legal practice, I have been contacted by a group of people
     whom I have represented individually in the past and collectively have asked
     that I both represent them in negotiations with Data Enterprises of the
     Northwest, Inc. and invest personally in that venture. . . . 

     This prospective purchase was attractive to our group based largely on the
     opinions of [individuals] who are intimately familiar with the business affairs
     of Data Enterprises of the Northwest, Inc. after devoting several weeks of their
     time accumulating due diligence material background.  The professional
     background of both of these men involves high level business consulting in the
     high tech field.  [They] spent a fair amount of time analyzing the claims being
     asserted in the matter entitled Data Enterprises of the Northwest, Inc. v. General
     Services Administration and I personally discussed those claims with counsel
     for Data Enterprises of the Northwest, Inc.

     At the time this investigation took place, the current shareholders, Michael
     Brown and Dennis Brown, were asking $5,000,000.00 for their business which
     valuation was predicated almost entirely upon the value of its sole software
     asset.  It was our opinion that the business was worth $5,000,000.00 provided
     that we would have the unrestricted right to market the software to, among
     others, the military and all agencies of the federal government.  However, we
     determined in analyzing the claims being asserted in the above-entitled matter
     involving the General Services Administration that the proprietary information
     contained in the Company's software had been disclosed to a third party.  Until
     the learning of the nature of the claims pending in the above-entitled matter, it
     was our opinion that the business was in fact worth the $5,000,000.00 purchase
     price being asked by the current shareholders.  After learning of the fact of this
     disclosure and the position taken by the government, it was and currently is our
     position that the business has little or no value and we would not be interested
     in purchasing it.  This opinion of  the Company's present value is based solely
     upon the underlying assumption that a significant portion of the market for new
     sales of the subject software would be either prejudiced or entirely eliminated
     in the event the position of the General Services Administration is sustained.

Appellant's Supplementary Appeal File, Exhibit 129.

     Testimony Concerning Possible Royalties for Development and Use 

     Michael Brown of DEN also offered testimony concerning the structure and amount
of the agreement he would have attempted to negotiate had the Government requested
permission to use ATICTS 2000 to develop similar software.  He stated that he would have
asked for an "up front" fee of $1,000,000 plus a royalty for sales of licenses of the software
developed from ATICTS.  He estimated this royalty as approximately $35,000 per year per
license.  He calculated this royalty by dividing his total revenue from the Government sites
by the number of Government sites.  Transcript at 92-93.

Appellant's Claim and the Contracting Officer's Denial

     On or about December 15, 2000, DEN filed a certified claim with the GSA contracting
officer.  The claim alleged, in relevant part:

     DEN believes that NSSG has improperly disclosed proprietary information
     pertaining to ATICTS to third parties in violation of GSA contracts.  Among
     other reasons, NSSG has made such disclosures for the purpose of developing
     a software solution that would replicate ATICTS's functionality and replace
     ATICTS.  These improper disclosures breached DEN's contracts with the
     Government and will cause substantial harm to the Company.  

     Alternatively, the Government's attempts to copy and replicate ATICTS and to
     disclose ATICTS proprietary and copyrighted software and documentation in
     a manner that is not permitted by the contracts between the parties constitutes
     a taking under the Fifth Amendment to the U.S. Constitution. . . . 

     DEN does not yet know the full nature and extent of the Government's
     disclosures of DEN's protected proprietary software and documentation to third
     parties . . . .

Appeal File, Exhibit 27 at 2, 10.

     At the time appellant filed its claim, it knew that the ATICTS Workbook had been
disclosed to Anteon, but did not know that NSSG had transmitted the SRS and the various
ATICTS 2000 data dictionaries to Anteon.

     By letter dated May 18, 2001, the GSA contracting officer issued his final decision,
denying DEN's claim.  The final decision reads in relevant part:

     GSA awarded contract GS-35F-3080D to DEN for the Purchase of Software,
     Maintenance of Software, and Classroom Training on 01 Apr 1996.  Through
     the issuance of modifications performance of the above referenced contract was
     extended to 31 Mar 1999.

     On February 17, 1999, R. Klinger, on behalf of NAVICP, issued Order
     N00104-99-F-Q-155.  The delivery order was placed under and subject to the
     terms and conditions of GSA schedule [contract] GS-35-F-3080D.  The order
     included shipment to NSSG at the Norfolk Naval Shipyard (NNSY).  Included
     in this order were the purchase of technical support, initial and refresher
     software training, and travel to the shipyards.  Under the SOW [Statement of
     Work], a training manual was listed as a deliverable under the refresher
     training.  On April 15, 1999, R. Klinger issued Modification P00001.  The
     modification added Item Number 0003: "4-User ATICTS System for NSSG." 
     All other terms and conditions remained unchanged.  The training manual and
     the software were delivered to NNSY at or around 04 May 99 (i.e, more than
     3 years after GSA entered into the prior written agreement with DEN as
     expressed in contract number GS-35F-3080D).  The training manual was given
     to a contractor (Anteon), reviewed and returned to the Navy.

     Based on the above actions, DEN has filed a claim alleging breach of contract,
     or in the alternative a "Taking" under the 5th Amendment.  Specifically, DEN
     claims the Government breached the following:

     1. FAR clause 52.227-19-Commercial Computer Software-Restricted Rights
     2. FAR clause 52.227-14-Rights in Data
     3. License Agreement/Shrink-wrap License
     4. Utilization Limitations-contained in the contract
     5. Copyright Infringement

     The above referenced claim is hereby denied based on the following grounds.
     The Computer Software-Restricted Rights clause applies to "computer
     programs, computer data bases, or documentation thereof."  The ATICTS 2000
     training workbook is not computer software.  Nor is it considered software
     documentation.  The training workbook constitutes data under FAR clause
     52.227-14, Rights in Data-General.  Since the workbook is data, the
     Government has unlimited rights to said data, as defined at FAR 52.227-14.
     Additionally, the unlimited rights in this data include the right to reproduce the
     data and an entitlement to a paid up, nonexclusive, irrevocable worldwide
     license in any copyrighted data.

     The applicable licensing-agreement is the one that is attached to the contract
     under which the order was issued (i.e., GS-35F-3080D) . . . .  [ ] [Foot # 21 ] 
       More importantly, the cover page to this licensing agreement states that
     Licensed Programs is defined as Software.  The training workbook is not
     software, nor a software program.  Clearly a training workbook cannot be
     considered a software program, as the workbook cannot be run or used on a
     "single central processing unit."  With this being the case, this licensing
     agreement only applies to software programs and not to a training workbook
     which is "data" as described in the clause at FAR 52.227-14  (i.e., "manuals or
     instructional and training materials for installation, operation, or routine
     maintenance and repair of items, components, or processes delivered for use
     under this contract.")

     
****************** Footnote Begin **********
[Foot # 21 ]   The final decision contains an extensive footnote that asserts that by
operation of the Order of Precedence clause of the contract, the Government's unlimited rights
acquired by virtue of the clauses incorporated into the contract prevail over the language in
the licensing agreement.
****************** Footnote End ************

 DEN has asserted that the shrink-wrap license attached to the software effectively bound the
Government to the terms attached to said license. However, a contractor cannot frustrate the
contractual obligation they agreed to perform based on the terms and conditions set forth in
the contract (i.e., conferring unlimited rights in data to the Government pursuant to the clause
at FAR 52.227-14).  Once the contract was in effect, even if the training workbook had been
delivered in shrink-wrap (which it was not), DEN could not have required the Navy to return
the Workbook or agree to new terms and conditions (i.e., the shrink-wrap license) or
proprietary statements that were contrary to DEN's contract requirement to deliver the item
with unlimited rights.

     Under the contract, the utilization limitations applicable to the software and the
     maintenance of the software SIN numbers only apply to those SIN numbers. 
     As such, these foregoing utilization Limitations are not applicable to the
     classroom training SIN [special item number] numbers (training, manual,
     workbook).  The utilization limitations pertaining to SIN #132-33 and 132-34
     apply only to those special item numbers, to include the reference to "software,
     software documentation, manuals or disks" contained within the utilization
     limits pertaining to special item numbers 132-33 and 132-34.  As such, the
     utilization limitations for SIN #132-33 and 132-34 do not, by the terms of the
     contract, extend to SIN #132-50 which describes the classroom training
     requirement and manuals (para. 9(a)) used for training material such as
     handbooks, texts, workbooks, and the like, clearly not computer software
     manuals or disks as contemplated by the utilization limitations associated with
     SIN #132-33 and 132-34.

     For the same reasons stated above, the copyright and "Taking" claims have
     been considered and are also denied.

     Finally, in respect to DEN's express or implied allegations of Government
     disclosure of source code or other proprietary material, the Government knows
     of no such disclosures.

Appeal File, Exhibit 30. 

      The contracting officer's final decision made no mention of the disclosure of the
ATICTS data dictionaries to Anteon or the preparation and transmission of the SRS to
Anteon.

DEN's Appeal and the Respondent's Answer

     On June 8, 2001, DEN filed its notice of appeal of the contracting officer's May 18,
2001 final decision.  Appeal File, Exhibit 31.  DEN filed its complaint on July 9, 2001.  In its
answer filed on August 10, 2001, GSA affirmatively avers that, because the Workbook was
"data," "there was [sic] no proprietary restrictions on release of the Workbook to third
parties."  Answer   8.  GSA also "affirmatively avers that because the contract did not give
Data Enterprises a proprietary interest in the Workbook, Data Enterprises' prior knowledge
and consent [regarding providing the Workbook to Anteon] was not required."  Answer   33.

Motions Prior to the Hearing and the Hearing on the Merits

     On November 17, 2001, respondent filed a motion for summary relief seeking
dismissal of the appeal.  On February 25, 2002, appellant filed a motion for summary relief
on entitlement.  The Board deferred ruling on the respondent's motion for summary relief
pending a resolution of the appellant's motion for summary relief on entitlement.  As appellant
required additional discovery in order for the Board to rule on its motion for summary relief,
and a hearing on the motion was necessary thereafter, the Board held a hearing on the merits
once discovery was completed.   

     A hearing on the merits was held in Norfolk, Virginia on July 22-24, 2002.  The parties
filed post-hearing briefs in late September 2002.  In January 2003, the Board directed the
parties to supplement the record with additional information, including the ATICTS 2000 data
dictionaries, and called Mr. Linna to testify as the Board's witness on March 19, 2003.  During
the July 2002 hearing, Michael Brown of DEN demonstrated the use of ATICTS 2000 using
a laptop computer.  Transcript at 32-55.  During the hearing in March 2003, a demonstration
was given as to how a user would access the data dictionary from ATICTS 2000.  Transcript
(Mar. 19, 2003) at 160 et seq.  

                            Discussion

     This is an appeal of the contracting officer's denial of appellant's claim which alleged
that the Government's actions with regard to the use and disclosure of appellant's proprietary
information amounted to breaches of contract, copyright infringement, and a taking of
appellant's property without just compensation pursuant to the Fifth Amendment to the United
States Constitution.  

Respondent's Motion for Summary Relief

     On November 27, 2001, respondent filed a motion for summary relief which sought
dismissal of the appeal on the grounds that this Board lacked jurisdiction as to the claim for
copyright infringement and taking of property.  Additionally, respondent alleged that
appellant's claim that the breach of contract resulted in the diminished value of the company
was speculative and consequential damages, not compensable, and therefore not a basis of
recovery.  Additional evidence on the last issue was presented during the hearing on the
merits, and we address this issue later in this decision.
     
     The Board Lacks Jurisdiction to Determine a Taking Under the Fifth Amendment to
     the United States Constitution and Copyright Infringement

     The boards of contract appeals do not have jurisdiction to grant relief with regard to
appellant's assertions of a taking under the Fifth Amendment to the United States
Constitution.  See, e.g., United Technologies Corp., Pratt & Whitney Group, ASBCA 46880;
et al., 95-1 BCA   27,456, at 136,770; BAE Systems Information & Electronic Systems
Integration, Inc., ASBCA 44832, 01-2 BCA   31,495, at 155,527.  Accordingly, we dismiss
the appeal as to allegations that respondent's actions constituted a taking under the Fifth
Amendment.  

     We also grant respondent's motion and dismiss the appeal with regard to allegations
of copyright infringement.  Boards of contract appeals do not have jurisdiction over claims 
that a contractor's rights were violated under the Copyright Act and various statutes barring
disclosure of trade secrets.  See McKirchy and Co., ASBCA 51824, 99-2 BCA   30,468, at
150,516 ; People Management, Inc., EBCA 390-5-87, 91-1 BCA   23,288 (1990), at 116,787. 

     To the extent appellant seeks remedies that are not provided by the Contract Disputes
Act of 1978, 41 U.S.C.    601-613, (CDA) and its implementing regulations, appellant must
initiate separate proceedings in the appropriate tribunals.  Dan Parish v. General Services
Administration, GSBCA 16025, 03-01 BCA   32,211, at 159,304. 

     The Board Has Jurisdiction over Appellant's Claim for  Breach of Contract

      Appellant's claim was submitted pursuant to the CDA and appellant received an
appealable contracting officer's final decision in response to the claim.  In addition to
allegations of taking and copyright infringement, appellant in its claim alleged breach of
contract and entitlement to all reasonable damages resulting from the breach.  Such allegations
are sufficient to invoke our jurisdiction under the CDA.  People Management, Inc.; see also
Ship Analytics International, Inc., ASBCA 50914, 01-1 BCA   31,253 (board of contract
appeals had jurisdiction to resolve a breach of contract dispute arising from a Government
contract in which the Government alleged unlimited rights to computer software).  We
therefore deny respondent's motion as to the breach claim.

The Merits
     
     Summary of Events Leading to Appellant's Claim

     Appellant's software, ATICTS, is used for tool inventory management.  Appellant has
developed, continuously improved, and licensed its software to commercial and Government
customers since 1970.  ATICTS is a COTS product and was originally DOS-based software. 
In 1995, appellant negotiated and was awarded by GSA a Multiple Award Schedule (MAS)
contract, pursuant to which federal agencies could enter into a license to use ATICTS
software and also receive support and training.  The contracting officer's memorandum of
negotiation and award emphasizes that the basis of negotiation was the terms of DEN's
commercial license.  As will be discussed in this decision, by purchasing a license to use
ATICTS software, Government agencies gain restricted rights to use the software.  The
license to use ATICTS allows the Government agency to use the software for its intended
purpose, to track tools, and does not include the right to use ATICTS as a basis for developing
tool management software which would compete with ATICTS in the public and private
marketplace.  The Government breached its contract with DEN by using DEN's proprietary
information to develop competing tool management software, by allowing a third-party
contractor to analyze DEN's proprietary information for the purposes of disclosing same to
a third-party developer, and disclosing this information to a third-party developer.

     In the years prior to 1998, appellant spent approximately two million dollars to enhance
the DOS-based version of ATICTS by creating ATICTS 2000, the Windows-based version
of its software.  The primary documentation for ATICTS 2000 is the ATICTS Workbook,
which is approximately 250 pages in length and contains a legend stating that it is copyrighted
and contains proprietary information.  The ATICTS Workbook contains a detailed description
of the functions performed by ATICTS 2000, including representations of computer screens
and step-by-step direction for the user.  An integral part of ATICTS 2000 is its data
dictionary, which is resident on the CD-ROM media of the software and contains the structure
of every element of the ATICTS 2000 database application.  The ATICTS Workbook is only
available to licensed users of ATICTS.

     Since 1998, the Naval Systems Support Group (NSSG) has been responsible for the
Department of Defense's management of tool management applications.  In early 1999, NSSG
issued a purchase order for a four-user license for ATICTS 2000 to upgrade the current
license for ATICTS at the Norfolk Naval Shipyard (NNSY).

     At that time, NSSG had two separate systems to track tools and equipment.  The Tool
Inventory Management Application (TIMA) system, using ATICTS, was used to track tools. 
ATICTS and ATICTS 2000 both operated using a database management system known as 
Pick (D3).  The Facility Equipment Management (FEM) system, using software by the name
of  MAXIMO, developed by Anteon, was used to track equipment.  MAXIMO uses Oracle
as a database management system.

     The Government made a determination that it would benefit from the development of 
software that would manage both equipment and tools.  Generally, the Government or any
private entity is not prohibited from developing software that has functionality similar to or
even the same as existing software.  The Government was certainly free to develop tool
tracking software to replace ATICTS without violating its contract with appellant.  Various
Government personnel testified during the hearing in this appeal that the Government's goal
was to have a third party determine if the development of such software was feasible, and if
it was, to develop such software by determining the needs of the Government end users,
without using ATICTS-related information, since tool inventory management was a business
function whose processes were not specific to particular software.  Internal Government
correspondence indicates that the Government was aware that by attempting to develop such
software NSSG became a direct competitor to appellant.  There was nothing wrong with this
approach, had the Government actually followed it and not used appellant's proprietary
information.

     Instead, it is clear that the Government embarked on a different route.  In early 2000,
AMS, NSSG's support contractor for tool management, issued a written proposal to NSSG 
known as the Proposed Approach.  This proposal suggested that NSSG, through AMS, should
analyze the functionality of ATICTS 2000 by creating a document known as a Software
Requirements Specification (SRS), which would then be used by a third-party developer,
Anteon, to determine the feasibility of incorporating the functionality of tool management into
Anteon's MAXIMO software.  If incorporation of ATICTS' functionality into MAXIMO was
determined to be feasible, Anteon would then enhance MAXIMO so that it could be used to
track both tools and equipment.  NSSG would experience cost savings and efficiency by using
only one software program which operated using Oracle as a database management system.

     It is clear from the record in this appeal that the Government, based upon AMS's
Proposed Approach, allowed AMS to analyze appellant's software, ATICTS 2000, for the
purpose of providing information directly to Anteon.  Anteon was then tasked under a
separate contract with the Government to develop tool management software to replace
ATICTS 2000 at Government facilities.  Anteon did this by enhancing MAXIMO, and the
enhanced portion of MAXIMO came to be known as FEM TM.

     Even though the terms ATICTS and TIMA are often used interchangeably by those
who are involved in tool management, AMS's Proposed Approach was a proposal to analyze
ATICTS 2000 software, and the uses of the term "ATICTS" in that Proposed Approach were
not generic references to TIMA or tool management.  This became evident when AMS, at the
direction of the Government,  transmitted appellant's proprietary and copyrighted information
-- the entire ATICTS Workbook and  portions of the ATICTS Workbook in the document
known as the SRS -- to Anteon's senior information engineer, Kenneth Linna, to use in
Anteon's feasibility study.  AMS later transmitted additional proprietary information -- various
versions of the ATICTS 2000 data dictionary -- to Mr. Linna, who used them in the
development of the Anteon product FEM TM.  

      In late 1999 and early 2000, AMS employees began creating a document mentioned
in AMS's Proposed Approach -- the SRS.  This document is nothing more than information
copied from the ATICTS Workbook.  Two versions of the SRS appear in the record of this
appeal.  One acknowledges that its source was the ATICTS Workbook; the other does not. 
While it appears that the initial intent for the creation of the SRS may have been the creation
of internal security documentation for use in testing ATICTS 2000, the ultimate intent was
to use the document as outlined in AMS's Proposed Approach, i.e., to aid Anteon in
developing tool management software.     

     In February 2000, NSSG issued a verbal task order to Anteon to perform the feasibility
study discussed above.  Anteon's Mr. Linna traveled to the NNSY on February 24, 2000, and
met with shipyard and AMS employees.  These personnel stated that they were not sure why
Mr. Linna was there.  While Mr. Linna had been directed to perform a feasibility study of
incorporating tool management into Anteon's software, he  did not know of the existence of
ATICTS software when he arrived at the NNSY.  He discussed tool management with the
AMS and shipyard personnel, and for the first time became aware that ATICTS 2000 was
being used for tool management there.  

     Mr. Linna testified that the people with whom he met had a vague idea of the
functionality of tool management that they wanted, "but not really the detail" that he needed
to perform Anteon's feasibility study.  The first disclosure to Anteon of appellant's proprietary
information occurred during this meeting when Mr. Linna received a hard copy of the
ATICTS Workbook.  NSSG personnel directed AMS to give Mr. Linna whatever he needed
to aid Anteon in its feasibility study.  Before Mr. Linna left NNSY, he was given a hard copy
of the ATICTS Workbook by AMS at the direction of NSSG.  He also received an electronic
version of the ATICTS Workbook at an unspecified later date. 

     Mr. Linna used the ATICTS Workbooks to prepare the Anteon Analysis, a component
of Anteon's  feasibility study.  Despite his testimony that he did not read past the cover of the
ATICTS Workbook, the document states that the ATICTS Workbook was used as the primary
reference for the Anteon Analysis, which demonstrated the feasibility of incorporating tool
management into the FEM system.  In fact, Mr. Linna's handwritten notes appear throughout
the copy of the ATICTS Workbook which he received before beginning to prepare the Anteon
Analysis.  Mr. Linna's supervisor testified that the ATICTS Workbook was used in the
preparation of the Anteon Analysis to identify the "high level" functionality of tool
management.  Thereafter, Mr. Linna's supervisor relied upon the Anteon Analysis to prepare
a cost estimate and another document, the White Paper, which together with the Anteon
Analysis comprised Anteon's feasibility study.

     The second disclosure of appellant's proprietary information occurred when Anteon
received the SRS prepared by AMS.  As described below, Mr. Linna offered credible
testimony that he did not use this information contained in the SRS.

     After reviewing Anteon's feasibility study, which relied heavily on the ATICTS
Workbook, NSSG issued Anteon a written task order to enhance MAXIMO's capability to
incorporate tool management functionality.  The written task order contained a list of
Government-furnished information to be given to Anteon in the development process.  This
list did not contain any information relating to ATICTS.  Anteon retained the ATICTS
Workbook after it concluded the feasibility study.  

     In July 2000, NSSG notified DEN that it was developing software that it would use for
tool tracking to replace ATICTS 2000.  When appellant complained to the Government that
it believed the Government had wrongfully disclosed its proprietary information to third
parties, the Government investigated and was informed by Anteon that it had received the
SRS and the ATICTS Workbook.  In fact, Anteon had informed the Government that it had
used the ATICTS Workbook as the primary source of the Anteon Analysis.  Responding to
appellant's concerns, the contracting officer revealed to appellant  that Anteon had "reviewed"
the ATICTS Workbook.  The contracting officer then directed Anteon to  return the ATICTS
Workbook to the Government at the Government's request. 

     At about the same time that the Government directed Anteon to return the ATICTS
Workbook, AMS made a third disclosure of DEN's proprietary information to Anteon. 
Anteon's Kenneth Linna, the same person who relied heavily upon the ATICTS Workbook
to perform the feasibility study, requested and received from AMS various versions of the
ATICTS 2000 data dictionary, which he used during the development phase of FEM TM.  As
will be discussed in this opinion, the data dictionary is an integral component of ATICTS
2000 and contains information which defines the structure of every element in the ATICTS
2000 database. 

     The contracting officer, in denying appellant's claim for breach of contract, asserted
that the Government had acquired unlimited rights to the ATICTS Workbook and did not
reveal that the Government had disclosed the data dictionaries to Anteon.  Anteon used the
ATICTS Workbook and the various data dictionaries to develop FEM TM. 

     The Government cautioned its users before the first user conference that incorporation
of tool management into its FEM system as the result of Anteon's enhancing MAXIMO with
tool management functionality was to be accomplished without using any ATICTS-related
information.  By that time, Anteon had already received the ATICTS Workbook, the SRS, and
the ATICTS data dictionaries.  These disclosures of proprietary and copyrighted information
by AMS were intentional and in response to Anteon's requests.  The transfer of the proprietary
information was condoned by the Government, even though the contract between appellant
and respondent clearly prohibited such transfer, and the contract between Anteon and
respondent for the development for FEM TM gave Anteon no right to such information or any
expectation that the information would be supplied by respondent.

     Appellant filed a claim with the contracting officer alleging breach of contract,
copyright infringement, and a taking of its property without just compensation pursuant to
Fifth Amendment to the United States Constitution.  When it filed its claim, appellant had
been told that NSSG had given Anteon the ATICTS Workbook but did not know that Anteon
had requested and received various versions of the ATICTS 2000 data dictionary.  The
contracting officer denied appellant's claim, asserting that the ATICTS Workbook was "data"
to which the Government had received unlimited rights and a copyright license.  The
contracting officer did not mention the ATICTS data dictionaries or the SRS in his final
decision.

     The Contract Between Appellant and Respondent Contains Negotiated Rights

     This dispute arises from the parties' differing views of the Government's right to use 
appellant's proprietary information, the ATICTS Workbook and the ATICTS 2000 data
dictionaries.  The Government asserts that pursuant to its contract with appellant it acquired
unlimited rights, which included the right to use appellant's proprietary information for
development of competing software and to disclose the ATICTS Workbook and the ATICTS
data dictionaries to anyone, including a third-party software developer who would use this
information to develop software with the same functionality as ATICTS.  In denying
appellant's claim, the contracting officer states that "the [ATICTS Workbook] was given to
a contractor (Anteon), reviewed, and returned to the Navy."  The contracting officer
characterized the Workbook as "data," and concluded that the Government acquired unlimited
rights to such data under FAR clause 52.227-14, Rights in Data, and that such rights include
the right to reproduce the data and a paid up, nonexclusive, irrevocable worldwide license in
any copyrighted data.  The final decision does not mention the data dictionaries.

     Appellant asserts that the Government did not have the right to use the ATICTS
Workbook or the data dictionaries to develop competing software, that this information was
proprietary, and that disclosure was prohibited by its licensing agreement and the specific
language of the contract.  Accordingly, the use of the information to develop competing
software and the disclosure to a third-party developer were  breaches of contract which entitle
appellant to damages.

     In order to understand the rights acquired by the Government with respect to the
ATICTS Workbook, the information contained in the Workbook which was included in the
SRS, and ATICTS data dictionaries, we must first review the applicable regulatory structure
and contract language. 

     The contract between GSA and DEN was a Federal Supply Schedule, Multiple Award
Schedule contract applicable to all departments or independent agencies of the executive
branch of the Federal Government.  48 CFR 8.401(a), 8.403-2 (1994).  The contract was for
the acquisition of licenses to use existing commercial software which was not developed at
Government expense.  

     Generally, when computer software has been designed, developed, or generated  under
a Government contract, the Government has "unlimited rights" to the delivered software and
may use the software for any purpose.  48 CFR 27.404(a).  On the other hand, when the
Government enters into a contract to acquire a license to use computer software developed
at private expense, the Government enters into an agreement with the contractor that restricts
the use of the software to specific purposes.  This software is referred to as "restricted
software," and the Government acquires a license to use such software with "restricted rights." 
48 CFR 27.405(b)(2).  If the Government uses restricted software for any purpose that is not
permitted by the contract, the Government has breached the contract. 

     ATICTS 2000 was developed at private expense and is therefore restricted software. 
When existing commercial software such as ATICTS 2000 is acquired under the MAS, the
FAR does not mandate the use of any specific contract clause, but, rather, allows negotiation
of rights.  48 CFR27.405(b)(2), 27.409(k).  Specific rights were negotiated and included in
the contract, commensurate with DEN's commercial license, which was used as the basis of
negotiation and award, and these rights were expressly set forth in the clause of the contract
entitled "Utilization Limitations."  [Foot # 22 ]  

     
****************** Footnote Begin **********
[Foot # 22 ]   The Government may negotiate uniquely tailored rights for software
obtained under a MAS contract.  See Matthew Simchak and David Vogel, Licensing Software
and Technology to the U.S. Government 287-88 (2000).   
****************** Footnote End ************

As discussed below,  the Utilizations Limitations clause did not give the Government 
unlimited rights to the software.  In that clause, the Government clearly promised not to copy
or otherwise disclose the software and the documentation and restricted the use of the
software consistent with DEN's commercial license.  The provisions of two additional clauses
incorporated by reference into the contract, FAR clause 52.227-14, Rights in Data (Jun 1987),
and FAR clause 52.227-19, Commercial Computer Software - Restricted Rights (Jun 1987),
as applied to DEN's software, do not conflict with the rights in the Utilization Limitations
clause or DEN's commercial license.  The Government did not, as it asserts, acquire unlimited
rights to use appellant's proprietary information to develop competing software, either by itself
or by disclosing the ATICTS Workbook or the ATICTS data dictionaries to a third-party
developer.   Accordingly, the use of appellant's proprietary information by the Government
to develop competing software and the disclosures of this proprietary information to a third-
party developer for such purpose were breaches of contract.

     The nature of the ATICTS Workbook and the data dictionary will be analyzed below
in order to demonstrate that the Government did not have unlimited rights to this information,
and therefore could not use it to develop competing software.

     The Nature of the ATICTS Workbook and the ATICTS 2000 Data Dictionary

     An understanding of the nature of the ATICTS Workbook and the ATICTS 2000 data
dictionary is necessary before we analyze the parties' allegations as to their legal rights
concerning the use of this information.

     The ATICTS Workbook is the primary documentation for the software.  It is only
available to licensed users.  The only other documentation for the software is contained in the
on-line help function in the software itself.  The ATICTS Workbook was not created for the
Government under a Government contract.  The Government did not fund the development
of the Workbook.
     
     The ATICTS Workbook contains approximately 250 printed pages and is divided into
twenty numbered chapters that contain a detailed description of the software, including how
to use the software and the various functions performed by the software.  The ATICTS
Workbook details how to perform the functions of the software by step-by-step direction for
the user (point, click-by-mouse, keyboard strokes) and illustrations of how the screen will
appear during virtually every operation.  The ATICTS Workbook is copyrighted and contains
a legend that identifies the contents as confidential, proprietary information. 

     The data dictionary is resident in the software installation compact disk, the medium
of the software.  It is an integral part of the ATICTS 2000 program itself.  A leading authority
on the subject of  database design states:

     The structure of a relational data base is stored in the data base's data dictionary
     or catalog.  The data dictionary is made up of a set of relations, identical in
     properties to the relations used to hold the data. . . .  You will typically find the
     following types of information in a data dictionary:

          Definitions of the columns that make up each table
          Integrity constraints placed on relations
          Security information (which user has the right to perform
          operations in each table)
          Definitions of other database structural elements . . . .
     
     The data stored in a dictionary is known as metadata, or data about data.

Jan L. Harrington, Relational Database Design 88-89, 381 (2002).

     The creation of a  data dictionary is an initial step in the designing of a database.  The
following describes the process:

     In the process of building a database, you define elements such as tables, fields,
     indexes and so on.  The names of tables, fields, indexes and so on are data that
     describes the data the database contains.  Because it is literally data about data,
     it is known as metadata.  In the database world, metadata is also known as the
     data dictionary.  The data dictionary for a truly relational database is stored in
     tables that are similar to the data tables you define.

John V. Peterson, Absolute Beginner's Guide to Databases 14 (2002).

     The data dictionary contains the overall structure of a database. Two leading authorities
on databases have described the data dictionary this way:

     You design tables, you give the tables fields, you create joins between tables,
     you build queries, etc.  Have you ever stopped to think where that information
     is stored?  Where does the database store the information about which tables
     have which fields, which tables are joined and so on?

     In a relational database, this information . . . must be stored in a "data
     dictionary."

     A "data dictionary," known as a "system catalog," is a centralized store of
     information about the database.  It contains information about the tables -- their
     number, names, the fields they contain, data types, primary keys, indexes, the
     joins which have been established between those tables (foreign keys), [and]
     referential integrity. . . .  This information, stored in the data dictionary, is
     called "meta-data."

 Mark Horn and Bill Marklyn, Inside Relational Databases 254 (2d ed. 2001).
     
     Thus, a data dictionary is that portion of the database application which specifies the
structure of the data elements in the database.  It does not contain the data itself, but
information about the various data elements.  The term used for this type of information is 
metadata, or "data about data."  Mr. Linna of Anteon and Ms. Stark of DEN both confirmed
this concept, that the data dictionary was data about data, from their personal experience.

     As all access to data in a database is achieved through the data dictionary, relational
databases are said to be "data dictionary driven."  Harrington, Relational Database Design at 
89.  In essence, the data dictionary is the heart of the database application.  Without a data
dictionary, one would not have a database, and the database would not function.  Anteon's Mr.
Linna said that the best way to view the structure of data in a database is to view the data
dictionary.

     The Scope of the Solicitation and the Contract

     The solicitation stated that the procurement was for "software products" and further
stated that "for purposes of the solicitation, software products are defined to be licenses
(including upgrades), documentation, and media."  The term "license" was defined in the
contract's glossary, whose purpose was "to provide offerors and GSA with common ground
to facilitate negotiations."

     SOFTWARE-LICENSE AGREEMENT - A contract between the software
     vendor (licensor) and the software user (licensee) granting the licensee
     permission to use a given software product subject to certain conditions and
     obligations.  Synonym: License Agreement. [ ] [Foot # 23 ] 

     
****************** Footnote Begin **********
[Foot # 23 ]   This definition reflects trade practice in the software industry.  Typically,
software vendors claim that their wares are licensed rather than sold, i.e, the user acquires
rights to use the software only for stated purposes, while the title and ownership remain with
the vendor.  Mark A. Lemley, et al., Software and Internet Law 299 (2d ed. 2003).
****************** Footnote End ************

 DEN's commercial software license agreement that was applicable to ATICTS 2000 and the
basis of negotiation of the contract reads in pertinent part:

     Customer acknowledges that the license granted hereunder is limited to the Use
     of Licensed Programs as provided herein and that the Use thereof by an entity
     other than Customer is prohibited.  Customer shall have no right to assign or
     sub-license any of the Licensed Programs or the Use thereof.

     The Licensed Programs [ ] [Foot # 24 ]  contain confidential and proprietary
     material.  The original and any copies of the Licensed Programs, in whole or
     in part, whether provided to or made by the customer shall be and remain the
     property of Data Enterprises.  Customer agrees not to provide or otherwise
     make available any Licensed Program or copy thereof, but not limited to,
     menus, screen formats, report formats and data dictionaries to any person.

     
****************** Footnote Begin **********
[Foot # 24 ]   The glossary of the contract defined the term "program" as follows: 

     SOFTWARE PROGRAM - A set of sequential instructions that a computer can
     interpret and execute, logically assembled or compiled into one or more
     interrelated modules.  Synonym: Program.
****************** Footnote End ************

 The contract's glossary contained the following definition of the term "documentation":  
     DOCUMENTATION - Materials provided with, or available for, a software
     product for its implementation, operation, and maintenance, such as installation
     guides, tutorials, reference guides, technical and/or user manuals, and release
     notes.

     While there is no definition of the term "media" included in the contract, the use of the
term in this context refers to "the physical material such as paper, disc, and tape used for
storing computer-based information."  Microsoft Computer Dictionary 332 (5th ed. 2002).

     Thus, the scope of the contract was for the acquisition of a license to use software, the
documentation of the software, and the media on which the software was stored. 

     The Utilization Limitations Clause of the Contract Set Forth Conditions of the License
     Acquired by the Government

     The Utilization Limitations clause of the contract, contained in a section of the contract
entitled "Terms and Conditions Applicable to Perpetual Software License (Special Item 132-
33) and Maintenance (Special Item 132-34) of General Purpose Commercial Information
Technology Software," established the conditions under which the Government as licensee
could use the software which it licensed under the contract, and it placed restrictions on the
use of the documentation and media.  This clause reads:

     The Government agrees to refrain from changing or removing any insignia or
     lettering from the software or documentation that is provided, or producing
     copies of manuals or disks, except one copy for backup purposes, as allowed
     by the manufacturer.  The government also agrees to comply with the
     following:

          a.  Title to and ownership of the software and documentation and
          any reproductions thereof, shall remain with the contractor.

          b.  Use of the software and documentation shall be limited to the
          facility for which the software is acquired, and shall be further
          limited to use on one (1) computer system.

          c.  FAR clauses 52.227-14 RIGHTS IN DATA GENERAL
          (JUN 1987) and 52.227-19 COMMERCIAL COMPUTER
          SOFTWARE RESTRICTED RIGHTS (JUN 1987) are
          incorporated by reference as part of this pricelist.

     It should be noted that the Utilization Limitations clause refers to SIN 132-33, which
originally was SIN 132-31, which, according to the price schedule, contained the license,
documentation, and media.  The clause references license, documentation, and media (disks)
and clearly does not grant the Government unlimited rights to any of these.  Rather, the
Government must refrain from changing or removing any insignia or lettering from the
software or documentation, cannot produce copies of the documentation or the media, and the
title and ownership of the software and documentation remain with the contractor.  Use of the
documentation is limited to the facility for which the software is acquired.  There is nothing
in this clause, or in DEN's commercial license, that would allow the Government as licensee
to use the software to develop competing software or disclose proprietary information to a
third party to use to develop competing software.  The license grants to the licensee the right
only to use the software for its intended purpose   to track tools.

     The ATICTS Workbook is proprietary information as defined in DEN's commercial
license and  "documentation" as defined in the contract.  The ATICTS Workbook exists in
hardcopy and in electronic form on the CD-ROM media of the software.  As noted previously,
the ATICTS Workbook, which was marked as proprietary information, contains a detailed
description of the functionality of ATICTS 2000, including menus, screen formats, and report
formats which were explicitly prohibited from disclosure by DEN's commercial license
agreement and by the Utilization Limitations clause.  

     The data dictionary is part of the program itself, resident on the CD-ROM media, and
the licensee is  specifically prohibited from disclosing the data dictionary in DEN commercial
license and further prohibited from copying media in the Utilization Limitations clause. 

     The Government Did Not Acquire Unlimited Rights to the ATICTS Workbook
     Dictionary of the ATICTS 2000 Data Dictionary Pursuant to FAR Clause 52.227-14 -
     Rights in Data

     The contracting officer asserts in his final decision that the Government acquired
unlimited rights to the ATICTS Workbook pursuant to the FAR clause 52.227-14, Rights in
Data General (JUN 1987).  The regulatory requirements for the use of the Rights in Data
clause and language of the clause itself do not support the contracting officer's conclusion. 

     FAR subpart 27.4 explains the use of the Rights in Data clause and contains the
following definitions:

     Computer software, as used in this subpart, means computer programs,
     computer data bases, and documentation thereof.

     Data, as used in this subpart, means recorded information, regardless of form
     or the media on which it may be recorded.  The term includes technical data and
     computer software.  The term does not include information incidental to
     contract administration, such as financial, administrative, cost or pricing or
     management information.

     Restricted computer software, as used in this subpart, means computer
     software developed at private expense and that is a trade secret; is commercial
     or financial and confidential or privileged; or is published copyrighted
     computer software; including minor modifications of such computer software. 

48 CFR 27.401.

     ATICTS 2000 is restricted computer software based on the above definition -- it was
developed at private expense, is commercial, contains explicitly marked proprietary
information, and is  published and copyrighted.  The ATICTS Workbook is "documentation"
under the contractually supplied definition of "documentation."  Documentation is included
in the definition of "computer software," and computer software is also included in the
definition of "data."  The ATICTS Workbook is therefore "data" included in restricted
computer software.  The Government does not acquire unlimited rights to such data that is
included in restricted commercial software, pursuant to FAR 27.404(a) set forth below:

     (a) Unlimited Rights Data.  Under the clause at 52.227-14, Rights in
     Data-General, the Government acquires unlimited rights in the following data
     (except as provided in paragraph (f) of this section for copyrighted data): . . . 
     
           (3) data (except as may be included with restricted computer
          software) that constitute manuals or instructional and training
          material for installation, operation, or routine maintenance and
          repair of items, components, or processes delivered or furnished
          for use under a contract.

48 CFR 27.404(a)(emphasis added)

     The Rights in Data clause itself reads in pertinent part:

     (b) Allocation of rights.  (1) Except as provided in paragraph (c) of this clause
     regarding copyright , [ ] [Foot # 25 ]   the Government shall have unlimited
     rights in-

     
****************** Footnote Begin **********
[Foot # 25 ]   In his final decision, the contracting officer asserts that pursuant to the
Rights In Data clause, "the Government acquired the right to reproduce the [Workbook] and
an entitlement to a paid up, non-exclusive, irrevocable worldwide license in any copyrighted
data."  It appears that the contracting officer bases this assertion on FAR 27.404(f)(2) and that
portion of the Rights in Data clause which attempts to grant such a license, unless such a
license is contravened by a collateral agreement incorporated or made part of the contract. 
See 48 CFR 52.227-14(c)(2).  The contracting officer's assertion ignores the clear prohibitions
of the Utilizations Limitations clause, which is a collateral agreement made part of the
contract that clearly contravenes the copyright license asserted by the contracting officer.
****************** Footnote End ************

(i) Data first produced in the performance of this contract; 
     (ii) Form, fit, and function data delivered under this contract; [ ] [Foot # 26 ]  
     
****************** Footnote Begin **********
[Foot # 26 ]   In response to the appellant's motion for summary relief, the Government
asserts that the ATICTS 2000 Workbook was "form, fit, and function data" to which the
Government acquired unlimited rights pursuant to provision (b)(ii) of the Rights in Data
clause.  This is not a reasonable argument, because the concept of "form, fit, and function
data" involves situations in which a contractor could reasonably be expected to withhold the
end item and substitute "form, fit, and function data" instead.  See 48 CFR 52.227-14(g).  As
the ATICTS 2000 software and documentation were end items and deliverables under the
contract, the substitution of "form, fit, and function data" in this instance was not a viable
option.  See 48 CFR 27.404(e).
****************** Footnote End ************

(iii) Data delivered under this contract (except for restricted computer software) that constitute
manuals or instructional and training material for installation, operation, or routine
maintenance and repair of items, components, or processes delivered or furnished for use
under this contract.

48 CFR 52.227-14(b) (emphasis added).

     The ATICTS Workbook, because it is included with restricted computer software,
comes within the above exception in FAR 27.404(a)(3) and in Rights in Data clause
subparagraph (b)(iii).  The Government's argument as to the ATICTS Workbook ignores this
exception, and  is based on the theory that because the Workbook is used in training end users,
it is data pursuant to subparagraph (b)(iii) above.  In his final decision, the contracting officer
states that the ATICTS Workbook was a deliverable under the delivery order when training
was ordered.  The fact that the Workbook may have been received during training does not
change the fact that the Workbook is 1) proprietary information and "documentation" as
defined in the contract, 2) included electronically with the software itself and in hard copy,
and 3) therefore data included with restrictive software to which the Government does not
acquire unlimited rights.

     The ATICTS 2000 data dictionary is also data included in restricted software and does
not come within any category of data to which the Government acquires unlimited rights
under the Rights in Data clause.  It is not data first produced in the performance of the
contract; form, fit, and function data delivered under the contract; or data delivered under the
contract that constitute manuals or instructional and training material for installation,
operation, or routine maintenance and repair of items, components, or processes delivered or
furnished for use under this contract.

     The Government Did Not Acquire Unlimited Rights to the ATICTS Workbook or the
     ATICTS 2000 Data Dictionary Pursuant to FAR Clause 52.227-19, Commercial
     Computer Software - Restricted Rights

     The  FAR clause entitled "Commercial Computer Software - Restricted Rights (JUN
1987)," which was incorporated into the contract, does not support the Government's position
that it gained unlimited rights to the ATICTS Workbook.  The clause begins with the
following definition: 

     (a) As used in this clause, restricted computer software means any computer
     program, computer data base, or documentation thereof, that has been
     developed at private expense and either is a trade secret, is commercial or
     financial and confidential or -- privileged, or is published and copyrighted. 

48 CFR 52.227-19(a) (emphasis added).

     ATICTS 2000 is restricted computer software based on the above definition -- it was
developed at private expense, is commercial, contains explicitly marked proprietary
information, and is published and copyrighted.  The ATICTS 2000 data dictionary is an
integral part of the restricted software.  The ATICTS Workbook is also "documentation"
under the contractually supplied definition of "documentation."  Documentation is included
in the definition of "restricted computer software." 

     The rights afforded to the Government under the Commercial Computer Software
clause do not supersede or expand those that the Government has by virtue of  the Utilization
Limitations clause.  The Commercial Computer Software clause reads in relevant part:

     (b) Notwithstanding any provisions to the contrary contained in any
     Contractor's standard commercial license or lease agreement pertaining to any
     restricted computer software delivered under this purchase order/contract, and
     irrespective of whether any such agreement has been proposed prior to or after
     issuance of this purchase order/contract or of the fact that such agreement may
     be affixed to or accompany the restricted computer software upon delivery,
     vendor agrees that the Government shall have the rights that are set forth in
     paragraph (c) of this clause to use, duplicate or disclose any restricted computer
     software delivered under this purchase order/contract.  The terms and
     provisions of this contract, including any commercial lease or license
     agreement, shall be subject to paragraph (c) of this clause and shall comply
     with Federal laws and the Federal Acquisition Regulation.

     (c)(1) The restricted computer software delivered under this contract may not
     be used, reproduced or disclosed by the Government except as provided in
     paragraph (c)(2) of this clause or as expressly stated otherwise in this contract.

     (2) The restricted computer software may be-
     (i) Used or copied for use in or with the computer or computers for which it
     was acquired, including use at any Government installation to which such
     computer or computers may be transferred;
     (ii) Used or copied for use in or with backup computer if any computer for
     which it was acquired is inoperative;
     (iii) Reproduced for safekeeping (archives) or backup purposes; 
     (iv) Modified, adapted, or combined with other computer software, provided
     that the modified, combined, or adapted portions of the derivative software
     incorporating any of the delivered, restricted computer software shall be
     subject to same restrictions set forth in this purchase order/contract;
     (v) Disclosed to and reproduced for use by support service Contractors or their
     subcontractors, subject to the same restrictions set forth in this purchase
     order/contract; and
     (vi) Used or copied for use in or transferred to a replacement computer.

48 CFR 52.227-19(b)-(c).

These provisions in the Commercial Computer Software clause do not conflict with those in
the Utilization Limitations clause.  They do not provide unlimited rights to the Government. 

     Paragraph  (c)(3) of the Commercial Computer Software clause states further:

     (3) If the restricted computer software delivered under this purchase
     order/contract is published and copyrighted, it is licensed to the Government,
     without disclosure prohibitions, with the rights set forth in paragraph (c)(2) of
     this clause unless expressly stated otherwise in this purchase order/contract.

48 CFR 52.227-19(c)(3) (emphasis added).

     This provision does not give the Government the right to disclose appellant's software
for the purpose of software development.  Even though the software is published and
copyrighted, the specific prohibitions in the contract in the Utilization Limitations clause
previously discussed  are clear expressions that the Government does not receive the software
without disclosure prohibitions.  [Foot # 27 ]  Accordingly, the Commercial Computer
Software clause defers to the Utilization Limitations clause in this instance.

     
****************** Footnote Begin **********
[Foot # 27 ]   It has been suggested that the term "disclosure" as used in this provision
merely refers to the ability of the Government to disclose the use and purpose of the software
itself, as opposed to disclosure of information for developmental purposes.  Matthew Simchak
and David Vogel, Licensing Software and Technology to the U.S. Government 287 (2000). 

****************** Footnote End ************

Finally, paragraph (d) of the Commercial Computer Software clause affords the contractor
further rights to assure protection of disclosure of its material if that material is copyrighted. 
This provision reads:

     If any restricted computer software is delivered under this contract with the
     copyright notice of 17 U.S.C. 401, it will be presumed to be published and
     copyrighted and licensed to the Government in accordance with subparagraph
     (c)(3) of this clause, [ ] [Foot # 28 ]  unless a statement substantially as follows
     accompanies  such copyright notice:  Unpublished --rights reserved under the
     copyright laws of the United States.

****************** Footnote Begin **********
[Foot # 28 ]   For the same reasons set forth in n. 25 of this decision, no license in
DEN's copyrighted data has been  created for the benefit of the Government  pursuant to
paragraph (c)(3) of the Commercial Computer Software clause, as the clear prohibitions of
the Utilization Limitations clause contravene such a license.
****************** Footnote End ************

 48 CFR 52.227-19(d).

     The appellant complied with this provision by placing the following legend
conspicuously and directly below its copyright statement in the ATICTS Workbook:

     Copyright, 1998, Data Enterprises of the Northwest, Inc.
     Workbook Version 11/06/99

     These materials contain confidential and proprietary information and may not
     be used, reproduced, distributed or disclosed except as specifically authorized
     under prior written agreement with Data Enterprises of the Northwest, Inc.

     The fact that the Government distributed copies of the ATICTS Workbook without 
this copyright statement and proprietary language is itself a breach of the Utilization
Limitations clause and both incorporated clauses.

     The Order of Precedence Clause Does Not Support the Government's Position

     The clause found in FAR 52.215-33, Order of Precedence (JAN 1986) was included
in the list of contract clauses incorporated by reference into the contract between appellant and
respondent. It reads as follows:

     Any inconsistency in this solicitation or contract shall be resolved by giving
     precedence in the following order: (a) the Schedule (excluding the
     specifications);  (b) representations and other instruction; (c) contract clauses;
     (d) other documents, exhibits, and attachments; (e) the specifications. 

48 CFR 52.215-33 (1994).

     In his final decision, the contracting officer states that according to the Order of
Precedence clause, the terms of the Rights in Data clause prevail over the appellant's
commercial license in the event of inconsistency.  As discussed above, the Rights and Data
clause did not give the Government unlimited rights to the ATICTS Workbook.  There is 
therefore no inconsistency among DEN's commercial license, the Utilization Limitations
clause in the contract, or the clauses incorporated by reference into the contract.  The
appellant clearly marked the ATICTS Workbook as proprietary, and DEN's commercial
license explicitly referenced the data dictionary as prohibited from disclosure.  Neither the
contract nor the commercial license authorized the Government to use the ATICTS Workbook
or ATICTS 2000 data dictionary to develop competing software or to disclose the Workbook
and data dictionary to third parties for this purpose.  DEN made every effort to legally prevent
the use of its software, including the ATICTS Workbook and ATICTS 2000 data dictionary,
for development purposes -- through its license, its inclusion of the proprietary legend on its
Workbook, and negotiation of a contract that clearly stated the Government would not
disclose its documentation or copy its media.

     The Government's Interpretation of the Contract Is Unreasonable and Contrary to the
     Clear Language of the Contract and the Intent of the Parties

     As explained above, the Government gained only restricted rights to the ATICTS
Workbook and the ATICTS 2000 data dictionary.  The Government  promised not to copy or
disclose the Workbook, to use it only at the facility for which it was purchased, and to allow
a support contractor access for maintenance purposes.  These promises cannot be interpreted,
as the Government attempts to do, to allow the Government to use the ATICTS Workbook
to develop competing software, allow AMS to analyze the software and transmit proprietary
information to a third party to use in developing competing software, or for Anteon to use the
ATICTS Workbook in the development process.

     The Government makes an additional argument that is based upon an unreasonable
interpretation of the contract.  In his final decision, the contracting officer supports his
assertion that the Government had acquired unlimited rights to the ATICTS Workbook by
asserting that the ATICTS Workbook was listed as a deliverable under the third SIN of the
contract, Classroom Training, and therefore was not subject to the Utilization Limitations
clause, which only applied to the first two SINs.

     The Government's interpretation conflicts with a plain reading of the contract.  The
price schedule of the contract states that the software and the "User Manual" are included in
SIN 132-31, which was later changed to SIN 132-33, which is the SIN for the Perpetual
Software License to which the Utilization Limitations clause applies.  The price schedule also
states that additional user manuals are included in that same SIN, and that the SIN includes
"media, license, and documentation."  

     The Government's interpretation is therefore not reasonable and is contrary to the clear
contractual definition of the ATICTS Workbook as "documentation" and the promises and
prohibitions in the Utilization Limitation clause 1) to refrain from changing or removing any
insignia or lettering from the documentation; 2) not to make copies of documentation; 3) that
the title and ownership of the documentation would remain with the contractor; and 4) that
use of the documentation shall be limited to the facility for which the software is acquired. 
The position is also contrary to the similar rights of the contractor in the Rights In Data and
the Commercial Computer Software clauses.

      The Government's interpretation nullifies these promises.  Under the Government's
interpretation, the Government would be prohibited from disclosing the ATICTS Workbook,
which is clearly marked as proprietary information, when it received that workbook bundled
as documentation with the software itself under the first SIN, or when AMS received the
ATICTS Workbook as a maintenance contractor, but could freely disclose it when received
as a deliverable to train the users of the software.  It is not reasonable to conclude that the
contract restricted NSSG from disclosing documentation that accompanied the purchase of
the license of the software and maintenance, but allowed it to disclose that same information
to a third-party software developer if the documentation were received by those who were
being trained to use the software. 

     It is well established that in reading a contract as a whole, one should seek to interpret
provisions to avoid conflicts with other provisions in the same document.  Further, we must
interpret the contract in a manner that gives meaning to all its provisions and makes sense. 
Ace Federal Reporters, Inc. v. General Services Administration, GSBCA 13298-REM, et al.,
02-2 BCA   31,913, at 157,657.  In light of the clear prohibitions in DEN's commercial license
and the contract clauses, the Government's interpretation justifying disclosure of the ATICTS
Workbook because it was acquired for training simply does not make sense, especially when
viewed in the broader context of the purpose of the classroom training.  The ATICTS
Workbook was only available to licensed users of the software.  NSSG personnel could only
be trained to use ATICTS 2000 because NSSG had a four-user license to use appellant's
software.  The classroom training was useful only in conjunction with the use of the software,
and could be received only by a purchaser of the software license.  It is unreasonable for the
Government to expect that it could gain unrestricted rights to the contractor's  proprietary
information simply because that Workbook was being used in the context of classroom
training, rather than being bundled with the software. 

     The Government's interpretation fails for another reason, as well.  The Government
offered no evidence that its interpretation was that upon which it relied at the time the contract
was negotiated.  No testimony was offered by the contracting officer who negotiated the
contract as to the interpretation during contract formation.  In fact, the Government's
memorandum of negotiation and award cites DEN's commercial license as the basis of
negotiation.  That license certainly cannot be read as a grant to the Government to use DEN's
proprietary information to develop competing software.

     Additionally, the doctrine of concurrent interpretation, or contemporaneous
construction, holds that great, if not controlling, weight should be given to the parties' actions
before a dispute arises in order to interpret a contract.  Saul Subsidiary II Limited Partnership
v. General Services Administration, GSBCA 13544, et al., 98-2 BCA   29,871, at 147,861. 
In Alvin Ltd. v. United States Postal Service, 816 F.2d 1562 (Fed. Cir. 1987), our appellate
authority expressed the rule of concurrent interpretation as follows: 

     One may not ignore the interpretation and performance of a contract, whether
     termed "mistake" or not, before a dispute arises.  As in Macke Co. v. United
     States, 467 F.2d 1323, 1325, 199 Ct.Cl. 552 (1972), we discern an "excellent
     specimen of the truism that how the parties act under the arrangement, before
     the advent of controversy, is often more revealing than the dry language of the
     written agreement by itself."  [The contractor]'s position as to the parties'
     original intent is supported by the [Government]'s past and continuing conduct
     considered in light of the surrounding circumstances.

816 F.2d at 1566.

     The Government's own actions before the dispute arose indicate it did not believe that
it had acquired unlimited rights to the ATICTS Workbook.  The Government's internal
correspondence contains a recognition that the Government had become a competitor of DEN
by initiating the development process for competing software.  When DEN became aware of
the disclosure of the ATICTS Workbook and wrote a letter of objection to the Government,
the Government directed Anteon to return the ATICTS Workbook to the Government, rather
than asserting an unlimited right to disclose the ATICTS Workbook.  Only after DEN filed
its claim did the Government assert that it had acquired unlimited rights to the ATICTS
Workbook. 
     
     The contracting officer's interpretation of the contract, that the Government had
acquired unlimited rights to the ATICTS Workbook and could disclose its contents to a third-
party developer to develop competing software, is contrary to the clear intent of the parties
as evidenced in the provisions of DEN's commercial license and the Utilization Limitations
clause of the contract.  The Government's rights under the Rights in Data clause, relied upon
by the contracting officer in his final decision, do not conflict with or negate the parties'
intent.  Accordingly, the Government's interpretation is unreasonable and does not prevail
over DEN's interpretation. 
     
     The Government's Uses of the ATICTS Workbook and the Data Dictionary to Develop
     Competing Software Were Breaches of Contract

     Justice Holmes once said that "[m]en must turn square corners when they deal with the
Government."  Rock Island, Arkansas & Louisiana Railroad Co. v. United States, 254 U.S.
141, 143 (1920). This sentiment was reiterated by Justice Jackson's comment that the
Government should be held to the same standard, since "there is no reason why the square
corners should constitute a one-way street."  Federal Crop Insurance Corp. v. Merrill, 332
U.S. 380, 388 (1947) (Jackson, J., dissenting).  Our appellate authority and the boards of
contract appeals have applied this principle  to the Government's dealings with its contractors. 
In Maxima Corp. v. United States, 847 F.2d 1549 (Fed. Cir. 1988), the Court stated:

     The need for mutual fair dealing is no less required in contracts to which the
     government is a party, than in any other commercial arrangement.  It is no less
     good morals and good law that the government should turn square corners in
     dealing with the people than that the people should turn square corners in
     dealing with their government.

847 F.2d at 1556.  See also Alvin Ltd., 816 F. 2d 1562, 1566;  Turner Construction Co. v.
General Services Administration, GSBCA 11361,  92-3 BCA   25,115, at 125,212-13;  New
England Tank Industries of New Hampshire, ASBCA 26474, 88-1 BCA   20,395, at 103,171. 

     In the instant case, the Government did not "turn square corners."  The Government
did not have the right to use the ATICTS Workbook and the data dictionary to develop
competing software, and its uses for this purpose were breaches of contract.  The
Government's interpretation of the contract lacks merit, as it is contrary to the plain language
of the contract and the intent of the parties at the time of contracting.

     The Government Breached the Contract by Allowing AMS to Copy the ATICTS
     Workbook into the SRS

     In January 2000, AMS, the Government's support contractor for TIMA, proposed a
methodology by which ATICTS 2000 would be analyzed by Anteon, a third-party developer,
for the purpose of determining if the functionality of ATICTS 2000 could be incorporated into
MAXIMO, software owned and developed by Anteon.  AMS's proposal's use of the term
"ATICTS" refers to ATICTS 2000 software and is not a generic interchangeable term used
for tool management, as is clear by AMS's actions thereafter.

     At NSSG's direction, AMS authored a document that was titled "Draft Facilities and
Equipment Maintenance Tool Management (FEM TM) Software Requirements
Specification," which is referred to as the SRS.  While purporting to be a description of the
requirements of software to be developed for managing tools within the FEM system, the SRS
contains information almost exclusively from the table of contents and headers of the ATICTS
Workbook.  There is no description as to the functions to be performed.  One is left to guess
at the meaning of the topics contained in the SRS.  Early versions of the SRS contained
references to the ATICTS Workbook as a source document and to ATICTS 2000.  Later
versions of the SRS did not contain references to the ATICTS Workbook and ATICTS 2000,
but the content remained almost exclusively information copied word-for-word from the
ATICTS Workbook.  Testimony by DEN personnel at the hearing noted that functions of
ATICTS that are described in the Workbook but are used only by non-Governmental
customers were also listed in the SRS. 

     The SRS is clearly  part of the "analysis of ATICTS functionality" referred to in AMS's
proposed methodology.  The phrase "analysis of ATICTS functionality" was a reference to
the ATICTS 2000 software, and not just a reference to TIMA or tool management.  While
AMS's Mr. Camacho says he did not use the ATICTS Workbook in his preparation of the
SRS, someone clearly did, as the information contained in it is virtually copied from the
ATICTS Workbook.  In an August 14, 2000, electronic mail message from Lester Kramer,
the director of the NSSG, to the contracting officer, identifying documents that had been
supplied by NSSG to Anteon, Mr. Kramer stated that the SRS was a "document [that]
describes the functionality of the ATICTS 2000 product."  There is no question that the SRS
describes ATICTS 2000.

     The use of the ATICTS Workbook to prepare the SRS as an analysis of ATICTS
functionality for the use of a third-party software developer is a clear violation of DEN's 
commercial license and the Utilization Limitations, Rights in Data, and Commercial
Computer Software clauses of the contract. While these last  two clauses allow disclosure "to
and reproduc[tion] for use by support service Contractors or their subcontractors," AMS was
not acting in its role as a support contractor to TIMA when it used its personnel to prepare
information to be used by Anteon to develop software.

     The Transmission of the SRS to Anteon Was a Breach of Contract

     The transmission of the SRS to Anteon was a breach of DEN's commercial license and
the Utilization Limitations, Rights in Data, and Commercial Computer Software clauses, as
the SRS contained proprietary information from the ATICTS Workbook.  Anteon's Mr. Linna
offered credible testimony that the SRS was not used during the feasibility study and the
development phase of FEM TM.  He testified that the SRS was useless to him.  At the time,
he had the entire ATICTS Workbook, so it is understandable that he had no need for a
document that did nothing more than copy headers from the Workbook.  As described herein,
he relied on the ATICTS Workbook to develop the Anteon Analysis, a major portion of the
feasibility study which convinced NSSG to task Anteon with the development of software to
incorporate tool management into the FEM system.  This does not detract, however, from the
conclusion that the transmission of the SRS to Anteon was a breach.

     The Government Breached the Contract by Disclosing the ATICTS Workbook to
     Anteon

     The Government breached its contract with appellant when it authorized AMS to make
a copy of the ATICTS Workbook and give it to a third party, Anteon.  The disclosure of the
ATICTS Workbook to Anteon was a breach of  DEN's commercial license and the Utilization
Limitations, Rights in Data, and Commercial Computer Software clauses.  The ATICTS
Workbook was given to Anteon's Mr. Linna at his request immediately after the Government
had tasked Anteon to perform a feasibility study to determine whether the functionality of tool
management, the very purpose of ATICTS, could be incorporated into the FEM system, which
used the Anteon-owned COTS software, MAXIMO.  The Government's  removal of  the
proprietary warnings and copyright insignia from the ATICTS Workbook was itself a breach
of the Utilization Limitations clause of the contract, which specifically prohibited removal of
markings and insignia. 

     The Government Breached the Contract by Using the ATICTS 2000 Data Dictionaries
     to Develop Competing Software and Disclosing Them to Anteon
     
     A puzzling aspect of this case is the Government's actions with regard to the disclosure
of the data dictionary to Anteon.  Almost simultaneously with the Government's  direction to
Anteon to return the ATICTS Workbook, AMS transmitted the Navy's version of the 
ATICTS data dictionary to Anteon to use during the development phase of FEM TM. 
Subsequently, it transmitted several different versions.  The contracting officer's final decision
does not mention the data dictionary.  Apparently at the time the contracting officer issued his
final decision he did not understand the import of the data dictionary or was not even aware
that AMS had transmitted it to Anteon.  These transmissions of these various versions of the
data dictionary were clear breaches of DEN's commercial license and the Utilization
Limitations, Rights in Data, and Commercial Computer Software clauses of the contract.  

     Phillip Camacho, the AMS employee who generated the hard copy of the NAVSEA
data dictionary for Anteon, testified that the data dictionary was not part of the ATICTS
software but was resident in the Pick or D3 database management system for ATICTS.  This
was contradicted by both Mr. Linna of Anteon and  Ms. Stark of DEN, who confirmed that
the data dictionary is resident in the ATICTS 2000 database application itself.  Ms. Stark
demonstrated in detail how one would access the data dictionary from the ATICTS 2000
compact disk by the use of a laptop computer and the ATICTS 2000 software.

     The Fact that the Government Did Not Reveal the Source Code of ATICTS 2000 Does
     Not Justify Its Breaches of Contract

     The Government has argued that, regardless of the information it disclosed, it did not 
give Anteon the "source code" of ATICTS 2000.  Source code is defined as follows in the
contract.

     SOURCE CODE - Software programming statements written in a programming
     language, which can be translated into machine readable language for
     execution.  

     Even though the Government did not give Anteon the source code for ATICTS 2000,
apparently the Government does not understand the import of DEN's proprietary information
that it allowed to be used in the development of FEM TM, and the use that Anteon made of
this information during the development process as described in this opinion.  [Foot # 29 ] 

     
****************** Footnote Begin **********
[Foot # 29 ]   We note that throughout the proceedings in this appeal, DEN has alleged
that additional breaches of contract have occurred by NSSG revealing the functions of
ATICTS 2000 to Anteon's Mr. Linna by showing him an ATICTS terminal during his initial
visit to NNSY.  Mr. Linna stated that he was shown the computer screen by Ms. Crittendon
while she discussed the ATICTS 2000 kitting function, but that he did not look at the screen
while Ms. Crittendon described other functions.  Additionally, Ms. Crittendon testified that
she showed James Bent of Anteon the ATICTS software during the later stages of developing
FEM TM.  Even though this limited viewing occurred, we do not consider it significant.  We
have based our findings of breach on the Government's use of DEN's proprietary information
to develop competing software, the disclosure of the ATICTS Workbook, AMS copying
portions of same into the SRS and transmitting copies to Anteon, and the disclosure of the
ATICTS data dictionaries to Anteon.

****************** Footnote End ************

DEN is Entitled to Damages for Breach of Contract that Were Foreseeable as the Result of
the  Breaches
     
     In Western Aviation Maintenance, Inc. v. General Services Administration, GSBCA
14165, 00-2 BCA   31,123, this Board stated:

     In order to recover for breach of contract, the non-breaching party must
     establish that its damages were caused by the breach.  The  principle  of  legal 
     causation employed in contract cases is foreseeability, much the same as 
     proximate cause is the principle used in most tort cases.  Breach damages are
     recoverable only if, at the time the contract was made, the breaching party had
     reason to foresee that such damages were the probable result of a breach. 
     Damages are foreseeable either if they are the natural and ordinary 
     consequence of a breach, or if they are due to special circumstances of which
     the breaching party was aware at the time of contracting.

00-2 BCA at 153,740 (citing Exxon Co. U.S.A. v. Sofec  Inc., 517 U.S. 830, 839-40 (1996); 
Wells Fargo Bank v. United States, 88 F.3d 1012 (Fed. Cir. 1996), cert. denied, 520 U.S. 1116
(1997); Landmark Land Co. v. United States, 46 Fed. Cl. 261 (2000); California Federal Bank
v. United States, 43 Fed. Cl. 445 (1999); S.N. Nielsen Co., GSBCA 4916, 81-1 BCA   14,921;
Hadley v. Baxendale, 156 Eng.  Rep. 145 (Ex. 1854); Restatement (Second) of Contracts   
344, 351 (1981).

     Accordingly, the damages recoverable by appellant must be caused by the breach and
the foreseeable result of the breach.

     It Was Foreseeable that the Government and a Third-Party Developer Would Benefit
     from DEN's Proprietary Information and that ATICTS 2000 Would Be Replaced by
     the Third-Party Developer's Enhanced Software

     That appellant would suffer damages as the result of the Government's use of its
proprietary information to develop competing software and the disclosure of its proprietary
information to a third-party developer was foreseeable at the time of contracting.  The terms
of DEN's commercial license, the Utilization Limitations clause, and the restrictions against
disclosure in the Rights in Data clause and the Commercial Computer Software clause were
an implicit recognition by the contracting parties that such damages were foreseeable and a
natural consequence of the breach. 

     The Government made a business decision to develop competing software and pay a
third-party software developer to enhance its own software, MAXIMO, so that the enhanced
software would replace the use of ATICTS 2000 and be compatible with the Oracle database
management system.  The software developer, Anteon, derived a benefit from its use of
DEN's proprietary information in the development of FEM TM.  Anteon's senior information
engineer, Kenneth Linna, testified that he did not gain sufficient detailed information about
tool management during his initial visit to the NNSY, and apparently this led him to request
the ATICTS Workbook.  The use of the ATICTS Workbook as the primary source of the
Anteon Analysis clearly accelerated the feasibility study.  The knowledge gained from the
ATICTS Workbook accelerated the software development process.  

     Additionally, Anteon's Mr. Linna testified that he used the versions of the ATICTS
2000 data dictionaries to create data elements in MAXIMO, and this made possible the data
migration process from the ATICTS 2000 database to the new FEM TM database.  If he had
not been able to use the ATICTS 2000 data dictionaries, data migration would have a been
a long, tedious process.

     There is no doubt that appellant's proprietary information, which the Government was
prohibited from disclosing, played a critical role in the development of FEM TM, which is
being used by the Government to replace ATICTS 2000.  Even though FEM TM is not an
exact duplicate of ATICTS 2000, and does not perform certain functions of ATICTS 2000
that the end users wanted, the Government is using the software that was developed to replace 
ATICTS 2000.  FEM TM has replaced ATICTS 2000 for tool management in various
Government facilities to date, and the Government pays no licensing fees for the use of FEM
TM, as it claims that it has unlimited rights to the software that was developed at Government
expense.  The replacement of ATICTS 2000 by Government users was foreseeable when
appellant's proprietary information was disclosed for the purpose of being used in the software
development process of FEM TM.

     DEN has suffered foreseeable economic harm because the Government breached the
contract with DEN and developed competing software by disclosing its proprietary
information to a third party which developed software the use of which replaced the use of
DEN's software.  As described previously, the record in this case demonstrates how the
ATICTS Workbook and the various versions of the ATICTS 2000 data dictionaries were used
to develop FEM TM.  Anteon derived both the functionality and structure of ATICTS 2000
from DEN's proprietary information.  The ATICTS Workbooks was used as the primary
source of Anteon's feasibility study and Anteon retained possession and use of the ATICTS
Workbook after the feasibility study.  The ATICTS data dictionaries were used to define data
elements by data mapping and accelerate the migration of data from the existing ATICTS
2000 data base to the new FEM TM database  

Quantum

     With regard to quantum, the general rule is that for breach of contract damages, the
non-breaching party is entitled to be restored to an economic position in which it would have
been if the various breaches of contract had not occurred.  As this Board stated in Western
Aviation: 

     In  addition to being recoverable only if they are the foreseeable result of a
     breach, breach damages are recoverable only in the amount that can be 
     established with reasonable certainty.  Reasonable certainty does not mean
     mathematical certainty.  However, in  order for the Board to make  an award of
     damages, the appellant must present sufficient evidence to permit us to make
     a "fair and reasonable approximation" of the amount of damages.

00-2 BCA at 153,740 (citing Locke v. United States, 283 F.2d 521,524 (Ct. Cl. 1960); 
Restatement (Second) of Contracts   352 (1981); see also Wells Fargo.

     Appellant has posited several alternative methods of determining the quantum of
breach of contract damages.  We review each in turn.

     Damages for Loss of Net Worth Are Speculative and Not Recoverable

     Appellant's chief executive officer has offered testimony, supported by third-party
affidavits, that appellant was seeking to sell its company immediately before it discovered that
the Government had disclosed the ATICTS Workbook to Anteon.  Appellant alleges that
when appellant discovered that respondent had disclosed its proprietary information to a third
party and revealed this information to prospective purchasers, the net worth of the company
was diminished:

     The uncontested facts are that DEN had a purchaser for ATICTS who was
     ready, willing, and able to purchase ATICTS for $5 million.  But for the
     Government's disclosures and its efforts to have a third party software
     development company replicate and replace ATICTS, DEN would have sold
     ATICTS to this group of investors or another interested purchaser for at least
     $5 million.  The Government has never contested these facts. 

     This prospective, arms-length buyer has provided a sworn affidavit in this
     matter regarding their negotiations with DEN and their extensive due diligence
     efforts regarding DEN's business. . . .  This group of investors was of the
     opinion that DEN's business was worth the $5 million asking price . . . .  The
     valuation of this price was "predicated almost entirely upon the value of . . .
     [DEN's] sole software asset". . . until they learned of the Government's breach. 
     As a result of learning of the Government's disclosures, this group of investors
     determined that DEN's business had "little or no value." . . .  The Government's
     breach unquestionably caused this reduced value in DEN's business.  Thus, as
     a direct result of the Government's actions, the value (measured by the market)
     was significantly reduced, if not entirely destroyed.

Appellant's Post-Hearing Brief at 47-48.

     The affidavit submitted by appellant does not support appellant's assertion that "DEN
had a purchaser . . .  ready, willing, and able to purchase ATICTS for $5 million."  The
affidavit is from an attorney who states that he was asked to represent certain individuals in
negotiating a sale with DEN and that he was also asked to "invest personally" in that venture. 
The affidavit does not say that the purchasers were "ready, willing, and able" to purchase the
company; rather, it states that the prospective purchasers were of the opinion that the company
was worth $5,000,000 before they were aware of the Government's alleged use of DEN's
proprietary information and that their valuation would change "if the position of the
respondent is sustained."  

     There is no certainty that the transaction would have been concluded for $5,000,000,
or for any other price, regardless of the Government's actions, or that any other purchaser
would have purchased the company.  Additionally, the affiant's opinion that the appellant's
value was diminished by the actions of the Government was predicated on a condition
precedent which has not occurred, i.e, a finding that the position of "the General Services
Administration is sustained."  We have not sustained respondent's position in this appeal;
rather, we have found that the Government's actions are breaches of contract which entitle the
appellant to damages.

     We have held previously that alleged losses of net worth are generally speculative
damages and not recoverable.  David J. Tierney Jr., Inc., GSBCA 5585 et al., 88-2 BCA  
 20,806, at 105,169-70; see also Prudential Insurance Company of America v. United States, 
801 F.2d 1295, 1302 (Fed. Cir. 1986) (Nichols, J., concurring); William Green Construction
Co. v. United States, 477 F.2d 930, 936-37 (Ct. Cl. 1973), cert. denied, 417 U.S. 909 (1974). 
The alleged loss of net worth cannot serve as a measure of damages in the instant case.  We
grant respondent's motion on this issue and deny recovery of this specific element of damages. 

     Damages Cannot Be Measured by Creation of a Contract that Was Never Agreed Upon

     DEN's chief executive officer offered testimony concerning the structure and amount
of an agreement he would have attempted to negotiate had the Government requested
permission to use ATICTS 2000 to develop similar software.  He stated that he would have
asked for an "up front" fee of $1,000,000 plus a royalty for sales of licenses of the software
developed from ATICTS.  He estimated this royalty as approximately $35,000 per year per
license.  He calculated this royalty by dividing his total revenue from the Government sites
by the number of Government sites.  Appellant posits this testimony as a fair measure of
damages to be awarded as the result of the Government's breaches of contract.   We find this
proposed methodology of calculating damages highly speculative.  We cannot award damages
on the basis of an agreement that never came into existence.  See Wells Fargo, 88 F. 3d at
1021 ("Attempting to determine what would have happened if the guarantee had been issued
necessarily involves a highly speculative and conjectural inquiry.").

     This Board Cannot Award a Royalty for the Government's Use of FEM TM

     Appellant also suggests that the Board calculate damages based upon a "reasonable
royalty," a methodology used to calculate recovery in claims for taking under the Fifth
Amendment as well as for infringement of intellectual property rights such as copyright,
patent, and trade secret.  As stated previously, we do not have jurisdiction over such claims.
As discussed below, we award to appellant damages for breach of contract that are supported
by the record in this appeal.

     DEN is Entitled to Lost Profits on Contract Sales It Would Have Made Had No Breach
     Occurred

     DEN is entitled to lost profits on contract sales that would have been made under its
contract with the Government had no breach occurred.  A contractor is not entitled to an
award of damages for profits lost on transactions that are not directly related to the contract
that was breached.  Wells Fargo, 88 F.3d at 1021.

     In order to determine the quantum of damages, we first realize that the Government
made a business decision to replace ATICTS by funding the development of an Oracle-
compliant database software product.  Ultimately, the Government would very likely have
developed software to replace ATICTS, even if it had not used DEN's proprietary information. 
We must determine the economic damage that appellant incurred by the Government's use of
its proprietary information in developing the new software.

     The Government did not intend to use another product instead of ATICTS before it
developed FEM TM.  The Government therefore would have continued to license ATICTS
until FEM TM was available for use.  It is clear from the evidence in this appeal that the
Government was able to replace the use of ATICTS with FEM TM more quickly by using
DEN's proprietary information in the development of FEM TM.  Accordingly, we find that
appellant was damaged to the extent that it lost sales under its contract in the period of time
during which FEM TM would not have been able to be used by the Government but for the
use of DEN's proprietary information. 

     The Board Employs a "Jury Verdict" Approach to Calculate DEN's Breach of Contract
     Damages

     When the fact of damages is established, it is proper for the Board to enter a jury
verdict when there is uncertainty as to the extent or amount of the damage.  This relaxation
of the requirement that the injured party support its claim with definite and specific proof is
allowed when such proof is not reasonably available to the injured party.  Clark Concrete
Contractors, Inc. v. General Services Administration, GSBCA  14340,  99-1 BCA   30,280,
at 149,751; Vehicle Maintenance Services v. General Services Administration, GSBCA
11663, 94-2 BCA   26,893, at 133,892; Marty's Maid and Janitorial Service v. General
Services Administration, GSBCA 10614, et al., 93-1 BCA   25,284, at 125,940.

     In this instance, the extent of the damage is not yet known because the damages are to
be calculated by sales that would have been made in a period during which the Government
would have used appellant's software but for the Government's use of the appellant's
proprietary information to accelerate the Government's ability to replace the use of ATICTS
2000 with the use of competing software.  We apply a jury verdict to determine the length of
this period and the profit on sales that would have been made in order to arrive at a damage
award.

     In  Dawco Construction, Inc. v. United States, 930 F.2d 872 (Fed. Cir. 1991), rev'd on
other grounds, Reflectone, Inc.v. Dalton, 60 F. 3d 1572 (Fed. Cir. 1995) (en banc), the Court
required that three factors be present before adopting a jury verdict: (1) clear proof of injury
exists, (2)  there is not a more reliable method for computing damages, and (3) the evidence
is sufficient for a court to make a fair and reasonable approximation of the damages.  These
three factors are present in the instant case, and a jury verdict is therefore appropriate.  There
is clear proof of injury as described above; we do not have a more reliable method of
computing damages; the record contains sufficient evidence for this Board to make a fair and
reasonable approximation of damages.

     DEN is Entitled to Lost Profits on Sales for the Period of Time that the Data Migration
     from ATICTS 2000 to FEM TM Was Accelerated

     In order to determine the amount of time that the use of DEN's proprietary information
accelerated the ability of the Government to replace the use of ATICTS 2000 with FEM TM,
we base our jury verdict determination upon testimony in the record of this appeal that relates
to the use of DEN's proprietary information in the software development process.

     The first phase in the development of FEM TM, as in most software development,  was
a feasibility study.  Anteon's senior information engineer, Kenneth Linna, was the principal
creator of Anteon's feasibility study for FEM TM.  Mr. Linna visited the NNSY for one day
at the end of February 2000.  He testified that his knowledge of tool management was based
on his own experience, and until the day of his visit to the NNSY he did not know that
ATICTS was the tool management software used by the NSSG.  He testified further that the
Navy personnel with whom he met did not discuss the Navy's use of tool management in
sufficient detail.  Even though Mr. Linna left the NNSY with insufficient input from the Navy
personnel who managed tools, he was able to accomplish the Anteon Analysis, his portion of
the Anteon feasibility study, in two months, apparently without any additional interaction with
Navy personnel.  The record is clear that Mr. Linna was able to accomplish this because he
relied solely on the ATICTS Workbook.  During the hearing, he attempted to minimize his
use of the ATICTS Workbook in the feasibility study by stating that he "never read past the
cover of the document."  Mr. Linna's portion of the feasibility study, the Anteon Analysis,
contradicts his assertion, as the document states that the "ATICTS 2000 Training Workbook,
version 11/06/99 was used as the primary requirement source document for this analysis" and
that the analysis was written to show "how major ATICTS functions described in the Training
Workbook will be incorporated in NAVSEA FEM."  Mr. Linna's supervisor, James Bent,
relied upon the Anteon Analysis to prepare the remainder of the feasibility study, the White
Paper, and the Cost Analysis.

     Without the ATICTS Workbook, Mr. Linna would have needed other support for the
feasibility study, presumably face-to-face or telephone interviews with Navy users describing
their tool management needs and the functions that they currently accomplished by tool
management software.  Whether this would have required more than the two months that Mr.
Linna spent preparing the Anteon Analysis by using the ATICTS Workbook, however,  is not
addressed in the record.  It is clear that Mr. Linna used the ATICTS Workbook to prepare his
portion of the feasibility study and that this use made the preparation of the study more
efficient.  Even so, we do not have sufficient evidence to allow us to approximate the extent
damage was incurred by DEN as the result of Anteon's use of the ATICTS Workbook to
accelerate the feasibility phase of the development of FEM TM.

     As described by Mr. Linna, the development of FEM TM after the feasibility study
consisted of gathering user requirement information, designing the database, writing software
code, and testing.  The development phase of FEM TM began with the Government's issuance
of the task order to Anteon in mid-July 2000, three months after receipt of the feasibility
study.  Shortly thereafter, Mr. Linna requested and received the ATICTS data dictionary in
order to use it to perform data mapping.  While Mr. Linna testified that the use of the data
dictionary reduced the effort to perform the data mapping, he also testified that his efforts to
perform the data mapping were ongoing throughout the development phase of FEM TM. 
Accordingly, we cannot conclude that the design phase of FEM TM was accelerated by
Anteon's use of the various versions of the ATICTS data dictionary.

     A systems acceptance test was begun in mid-June 2001, but as of November 27, 2001,
FEM TM had not been used by any Government facility.  Installation and migration of data
occurred at various shipyards in the months that followed.  By July 2002, various shipyards
had migrated their data from ATICTS and were using FEM TM.  Mr. Linna testified that
based upon his experience as a software engineer, if Anteon had not received the ATICTS
data dictionary, the data migration could not have been accomplished by electronic transfer
as it was actually accomplished.  In fact, had he not received the ATICTS data dictionary, Mr.
Linna stated that he would have informed his supervisor that Anteon would not have been
capable of fulfilling its contractual requirement to migrate data from the ATICTS 2000 data
base to the FEM TM data base when FEM TM was initialized at the various Government
facilities.  Instead, the various users at the Government facilities would have had to input the
data manually.  Thus, the time period for migration of data would have been significantly
extended if Anteon had not used the ATICTS data dictionary.  

      When questioned by the Board as to the additional amount of time that would be
required to manually input the data, Mr. Linna responded that the users "would probably still
be working on it."  As FEM was initially implemented in July 2002 and Mr. Linna testified
in March 2003, Mr. Linna's response indicates that he believed that at least an additional eight
months, and probably more, would have been required to manually input the data had he not
been able to use the ATICTS data dictionary to perform data mapping to allow for electronic
migration of data.  Mr. Linna's response to the Board was credible, made in good faith, and
based upon his experience and his knowledge of the amount of data that was migrated.  He
reiterated during his testimony that significant time would have been required to manually
input the data from ATICTS 2000 to FEM TM at the various Government facilities after the
implementation of FEM TM.  

     While the amount of data to be migrated may vary from facility to facility, we make
a jury verdict determination that the data migration process would have required an additional
ten months at each facility but for the use of DEN's proprietary information.  We find that this
amount of time is a reasonable determination, in view of Mr. Linna's experience with software
development and data migration, his knowledge of the quantity of data and Anteon's
capability to migrate data, and his estimate of at least eight months in response to the Board's
question as to the additional time required to manually input data.

     We find that, but for the use of DEN's proprietary information, ATICTS 2000 would
have been used at each Government facility where its use was replaced by FEM TM for an
additional ten months.  Therefore, we find that DEN is entitled to damages as a result of the
Government's breaches in the amount of the lost profits on sales under the contract that DEN
would have received during this ten-month period, calculated by DEN's pricing structure in
its contract as discussed below.

     Determination of Lost Profits

     According to DEN's contract pricing structure, the annual revenue DEN receives from
each Government site where ATICTS 2000 is installed is determined by the number of users
at each site.  DEN's chief executive officer testified that approximately thirty percent of its
revenue is attributable to cost.  The Government did not rebut this testimony.  Accordingly,
we find that DEN's profit is seventy percent of its contract revenue.

     Determination of Damages

     The Government is directed upon receipt of this decision to identify the Government
facilities to date where the use of  FEM TM has replaced the use of ATICTS 2000, determine 
the number of individual users at each facility, and pay DEN damages in the amount of
seventy percent of the revenue the Government would have paid DEN under its contract at
these facilities for an additional ten months.     Thereafter, on June 31 and December 31 of each year through the year 2006, the
Government is to identify any additional Government facilities where the use of FEM TM has
replaced the use of ATICTS 2000 during the preceding six-month period, determine the
number of users at each facility, and pay DEN damages accordingly.  By December 2006, we
believe that the Government would have been able to accomplish its goal of using Oracle-
compliant software for tool management even without the use of DEN's proprietary
information, and DEN would therefore not be entitled to breach of contract damages after that
date.

                             Decision

      The appeal is GRANTED IN PART and DISMISSED FOR LACK OF
JURISDICTION IN PART.  Appellant is awarded damages for breach of contract as stated
herein. 

                                   __________________________________
                                   ALLAN H. GOODMAN
                                   Board Judge

We concur:

__________________________________ __________________________________
STEPHEN M. DANIELS                 CATHERINE B. HYATT
                                        Board Judge                             Board Judge