INSLAW, Inc. v. United States

REPORT

MILLER, Hearing Officer.

BACKGROUND

1. Proceedings before the congressional reference

The Department of Justice (“DOJ”) sought to implement a standardized case management system in specified United States Attorneys’ Offices and the Executive Office of United States Attorneys to assist in the record keeping and tracking of civil, criminal, and debt collection actions. To this end, through the Justice Management Division, DOJ entered into a contract with INSLAW, Inc. (“INSLAW’), on March 16, 1982 (the “1982 Contract”), for the customization and installation of INSLAWs case management system — the Prosecutors’ Management Information System — known as “PROMIS” in the Executive Office for United States Attorneys and in specified United States Attorneys’ Offices. During the course of contract administration, disputes arose between IN-SLAW and DOJ. Specifically, INSLAW claimed that it made enhancements to its PROMIS software program and that these enhancements were developed with private funding. It was INSLAWs position that the enhancements and supporting documentation were proprietary to INSLAW, constituted INSLAWs property, and deserved protection as a trade secret. Because DOJ had possession of INSLAWs allegedly enhanced PROMIS, INSLAW maintained that DOJ was wrongfully exercising dominion and control over its property. This wrongful exer *311 cise of control allegedly resulted in the disparagement of INSLAW’s property, public questions concerning the software’s ownership, and devaluation of the software by disclosing the enhancements to third parties. INSLAW also contended that DOJ failed to take appropriate action to prevent INSLAW from suffering harm due to the personal bias of key DOJ personnel in the administration of the 1982 Contract. DOJ conducted internal investigations of INSLAW’s charges against officials and employees. Ultimately, INSLAW pressed its claims before both the Department of Transportation Contract Appeals Board (the “DOTCAB”) and the United States Bankruptcy Court for the District of Columbia.

INSLAW’s claims before the DOTCAB largely concerned administration costs associated with the 1982 Contract, including IN-SLAWs computer center timesharing charges; payments and fees withheld by DOJ and related costs; indirect and direct costs, including overhead; and costs incurred by INSLAW as a result of DOJ’s partial termination for convenience. However, prior to trial, INSLAW “withdr[e]w its claims.” Def s Br. filed Dec. 29, 1995, at 2 (Motion in Limine To Exclude as Beyond the' Scope of the Reference Evidence Concerning the Version of PROMIS Provided by INSLAW to the Lands Division). “Finding that ‘[t]he requested dismissal in effect results in a determination that no amounts are owing to I[NSLAW] under its claims,’ the DOTCAB dismissed [INSLAWs] appeals with prejudice” on November 9,1992. Id. at 2-3 (quoting Appeals of INSLAW, Inc., Contract JVUSA-82-C-0074, Docket Nos. 1609, 1673, 1775, 1828 (Dep’t of Transp. Nov. 9, 1992)).

During 1987 INSLAW litigated its claims before the bankruptcy court. INSLAW, Inc. v. United States (In re INSLAW, Inc.), 83 B.R. 89 (Bankr.D.D.C.1988), ajfd, 113 B.R. 802 (D.D.C.1989), vacated, 932 F.2d 1467 (D.C.Cir.1991). Specifically, INSLAW sought: 1) a declaratory judgment that IN-SLAW owned the alleged proprietary enhancements and that, by its continuing use of INSLAWs property, DOJ violated the automatic stay provision of the Bankruptcy Code; 2) an order directing DOJ to cease and desist its exercise of control in violation of the automatic stay provision; 3) an award of damages in excess of $25,000,000.00 to redress DOJ’s violations of the automatic stay provision; and 4) $5,000,000.00 in punitive damages. See Plfs’ Br. filed Oct. 16,1995, at 18-19 (describing INSLAW’s claims before bankruptcy court).

INSLAW obtained an automatic stay from the bankruptcy court.

The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. The stay gives the debt- or a breathing spell from creditors and stops all collection efforts, all harassment, and all foreclosure actions.

Although the primary purpose of the automatic stay is to benefit the debtor or trustee, the stay also provides creditor protection. By prohibiting such a race for the debtor’s assets and assembling all the creditors and their claims into the Bankruptcy Court for a single organized proceeding, the stay facilitates the administration of the bankruptcy case to allow the orderly resolution of all claims and the distribution of the debtor’s assets in accordance with the priorities recognized by the Bankruptcy Code.

9A Am.Jur.2d Bankruptcy 1369 (1991) (footnotes omitted). The bankruptcy court found that INSLAW made proprietary enhancements to PROMIS; that INSLAW’s proprietary enhancements deserved protection as trade secrets; that DOJ unlawfully used the proprietary enhancements in violation of the automatic stay; that DOJ induced INSLAW to sign a contract modification through fraud; that DOJ failed to correct bias against IN-SLAW, thereby violating the automatic stay; that INSLAW was entitled to a permanent injunction; and that INSLAW was entitled to “to recover of and from the United States for its wrongful acts” over $6.79 million, as well as attorneys’ fees and costs. Plfs’ Br. filed Oct. 16,1995, at 18-19 (discussing bankruptcy court’s findings).

After the bankruptcy court ruled in IN-SLAWs favor and the district court affirmed the ruling, the federal appeals court vacated the lower court’s decision, holding that the bankruptcy court lacked subject matter juris *312 diction to adjudicate INSLAW’S claims. United States v. Inslaw, Inc., 932 F.2d 1467, 1475 (D.C.Cir.1991). Investigations by the Senate Judiciary Committee, Senate Permanent Investigations Subcommittee, and the House Judiciary Committee, as well as renewed DOJ investigations followed. Plfs’ Br. filed Oct. 16,1995, at 7-8. Now the matter is before this court, after a three-week trial, as a congressional reference ease.

A congressional reference is a unique mechanism that allows a party to seek relief through a private bill passed by one house of Congress. See 28 U.S.C. § 1492 (1994).

Congressional [reference] eases, of which this [case] is one, are peculiar to the jurisdiction of this court alone and have their origin in those acts ... which authorize either house ... of Congress to refer certain bills for a judicial investigation upon which findings are to be made and reported to the body transmitting the resolution. They are a separate class of cases designed to supply information so full and exact as to leave to the legislative body nothing to do but determine the justice of the complaint ... as a legal or equitable demand against the United States____

Alleman v. United States, 43 Ct.Cl. 144, 150-51 (1908); see Spalding & Son, Inc. v. United States, 28 Fed. Cl. 242 (1993).

Because of the “[c]onsiderable controversy surround[ing] the merits of INSLAWs claim[s,]” 141 Cong. Rec. 5910 (daily ed. May 1, 1995) (statement of Sen. Hatch), on May 3,1995, by S. Res. 114,104th Cong., 1st Sess. (1995), the Senate referred S. 740, 104th Cong., 1st Sess. (1995), to the Chief Judge of the United States Court of Federal Claims. The resolution reads in full:

Resolved, That the bill S. 740 entitled “A bill for the relief of I[NSLAW], Inc., and William A. Hamilton and Nancy Burke Hamilton” now pending in the Senate, together with all the accompanying papers, is referred to the chief judge of the United States Court of Federal Claims. The chief judge shall proceed with the same in accordance with the provisions of sections 1492 and 2509 of title 28, United States Code, and report thereon to the Senate, at the earliest practicable date, giving such findings of fact and conclusions thereon as shall be sufficient to inform the Congress of the nature and character of the demand as a claim, legal or equitable, against the United States or a gratuity and the amount, if any, legally or equitably due to the claimants from the United States.

S. 740, the Bill accompanying this resolution, provides:

The Secretary of the Treasury shall pay, out of any money in the Treasury not otherwise appropriated, the sum due, if any, jointly to I[NSLAW], Inc., a Delaware Corporation, and William A. Hamilton and Nancy Burke Hamilton for damages incurred arising from claims relating to the furnishing of computer software and services to the United States Department of Justice.

The payment ... shall constitute full settlement of all legal and equitable claims by I[NSLAW], Inc., and William A Hamilton and Nancy Burke Hamilton against the United States, or any agency, official, officer, employee, or agent thereof.

Nothing in this Act shall be construed as an inference of liability on the part of the United States.

2. Preliminary proceedings in the Court of Federal Claims

Plaintiffs 1 filed in the Court of Federal Claims their complaint, which, as amended, pleads seven counts:

1) deprivation of property without due process of law in violation of the Fifth Amendment to the Constitution of the United States;

2) taking of private property for public use without just compensation in violation of the Fifth Amendment to the Constitution of the United States;

3) common law fraud, misrepresentation, suppression and deceit;

4) conversion;

*313 5) disparagement and breach of the duty of good faith and fair dealing;

6) negligence and wantonness; and

7) copyright infringement.

Complaint filed Aug. 4,1995; Amended Complaint filed Oct. 2, 1995. Defendant denied plaintiffs’ right to recovery, asserted several affirmative defenses, Answer filed Oct. 3, 1995, 2 and moved for entry of a scheduling order to limit discovery and set trial for the liability phase of the case. See Defs Br. filed Oct. 3, 1995 (Motion for Entry of a Scheduling Order).

Defendant pointed out that plaintiffs had “alleged elsewhere that DOJ distributed the PROMIS software to foreign countries, international organizations, and a half a dozen federal law enforcement or intelligence gathering agencies.” Id. at 7. Defendant took the position, in these circumstances, that the most efficient way to advance the case was to limit discovery and trial to what it deemed the threshold issue: “[D]id the contract give DOJ unlimited rights in the software that INSLAW delivered to it?” Id. at 5. If DOJ had unlimited rights to the software, defendant proposed that limiting discovery to the threshold issue would save the court and “the parties the expense and time needed to litigate [the other] issues that will, in all likelihood, be rendered moot.” Id. at 6.

Plaintiffs opposed this motion, arguing that even if Defendant is correct in its contention (with which Plaintiffs herein and two other Courts have disagreed) that it obtained unlimited rights in Enhanced PROMIS, that would be totally insufficient to extinguish even the claims of copyright infringement, much less all of Plaintiffs’ other claims and demands, nor diminish the necessity to investigate the dissemination of Plaintiffs’ other claims and demands, nor diminish the necessity to investigate the dissemination of Plaintiffs’ property.

Plfs’ Br. filed Oct. 16,1995, at 25. Plaintiffs attached to their brief copies of the bankruptcy and appellate court opinions and the Investigative Report by the Committee on the Judiciary, entitled THE INSLAW AFFAIR. Not for the last time, a party attempted to interject the prior litigation and investigations into this matter. Unfortunately, references to these prior proceedings continually resurfaced. 3

The court chose not to review these prior fact-finding proceedings and defined its role for the parties at the October 30, 1995 status conference held after defendant filed its motion to limit the scope of discovery and trial. The court stated:

I am not a special prosecutor. More pertinently, I am not an investigating magistrate. I am here to review all information that you wish to bring to my attention that passes through the filter of admissible evidence. And when evidence is deemed admissible, it will get full consideration----

Transcript of Proceedings, INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X, at 26-27 (Fed.Cl. Oct. 30, 1995) (hereinafter *314 “Tr.”). The court cannot rely on the “facts” found in an evidentiary proceeding that does not adhere to the Federal Rules of Evidence. See Sac and Fox Indians of Iowa v. Sac & Fox Indians of Oklahoma, 45 Ct.Cl. 287, 300 , 1909 WL 895 (1910) (“Counsel can not, by stipulation or otherwise, require a court to admit testimony, which under legal rules, is not admissible as evidence in a case. Hence said ex parte affidavits, even though they may be printed in the report of a congressional committee, can not properly be admitted as testimony in this litigation.”), aff'd, 220 U.S. 481 , 31 S.Ct. 473 , 55 L.Ed. 552 (1911). Nor can the court rely on factual findings by the bankruptcy court because the opinion was vacated and therefore does not exist. 4 See Myers v. International Trust Co., 263 U.S. 64, 70-71 , 44 S.Ct. 86, 87 , 68 L.Ed. 165 (1923); Southern Pac. R.R. Co. v. United States, 168 U.S. 1, 48-52 , 18 S.Ct. 18, 27-29 , 42 L.Ed. 355 (1897); State of Oklahoma v. United States, 146 Ct.Cl. 185, 193 , 173 F.Supp. 349, 354 (1959); Edgar v. United States, 145 Ct.Cl. 9, 11-12 , 171 F.Supp. 243, 245-46, 248 (1959). The court has limited its involvement with this prior proceeding to a restatement of the bankruptcy court’s holdings solely to provide the background of the case at bar. See INSLAW, Inc. v. United States, 35 Fed.Cl. 63, 64-65 (1996) (order denying motion in limine). Any other knowledge the court has of the prior proeeedings or their findings is a direct result of the evidence adduced at trial, as well as the parties’ pleadings and representations. The court has read none of these earlier materials, except for the rulings in the bankruptcy court’s opinion summarized above.

3. Ruling on the scope of the congressional reference

The court denied defendant’s motion to limit discovery and trial to DOJ’s rights under the 1982 Contract. Defendant thereafter filed a motion in limine seeking to exclude, as beyond the scope of the congressional reference, all of INSLAWs claims concerning the version of PROMIS provided by IN-SLAW to the Land and Natural Resources Division of DOJ. See Defs Br. filed Dec. 29,1995 (Motion in Limine To Exclude as Beyond the Scope of Discovery the Version of PROMIS Provided by INSLAW to the Lands Division); INSLAW, 35 Fed.Cl. 63 . In support of its motion, defendant argued that the congressional reference only covered the PROMIS software provided under the 1982 Contract with the Justice Management Division.

The court determined that the reference was broad and allowed for all of plaintiffs’ claims. INSLAW, 35 Fed.Cl. at 68 . The legislative history describes INSLAWs claims: “I[NSLAW] sold to [DOJ] a software program it alleges was improperly shared *315 with other federal agencies.” 141 Cong. Ree. 5910 (daily ed. May 1, 1995) (statement of Sen. Hatch). The Senate referred the IN-SLAW matter to the Court of Federal Claims to resolve “this matter once and for all.” Id. INSLAW asserted that “[defendant through a series of contracts and through a course of dealings, had a confidential relationship with Plaintiffs.” Compl. filed Aug. 4, 1995, 1134. “INSLAW seeks compensation from defendant based on claims that DOJ knowingly misappropriated computer enhancements made to the PROM-IS software that INSLAW exclusively owned.” INSLAW, 35 Fed.Cl. at 68 . Therefore, in order to serve the congressional reference, the court found that plaintiffs must be given an opportunity to demonstrate their claims for furnishing “computer services to the Department of Justice,” 141 Cong. Rec. 5911 (daily ed. May 1, 1995) (statement of Sen. Hatch), not just a division of DOJ. See INSLAW, 35 Fed.Cl. at 68 .

After the parties’ first discovery dispute, which concerned defendant’s privilege claims and privilege logs, the parties entered into an agreement to obviate litigating defendant’s privilege claims to facilitate an early trial date. INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X (Fed.Cl. Dee. 19, 1995) (Stipulated Order). Defendant agreed to produce “all depositions, sworn affidavits, sworn statements, staff memoranda of witness interviews, and documents memorializing evidence collection on trips, as well as documents identified by these categories.” INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X, 113 (Fed.Cl. Dec. 15, 1995). “All documents that defendant deems fall outside the categories described above” were to be listed in a privilege log. Id. The documents and the privilege log were produced for an in camera inspection “to verify that the documents excluded do not fall within the categories that defendant has agreed to produce. However, to the extent that the materials submitted in camera contain ‘substantive pieces of information,’ the court will direct the production of some or all the affected documents.” Id.; see First Submission of Privileged Documents Pursuant to the Court’s Order of December 19, 1995, filed Jan. 25, 1996; Second Submission of Privileged Documents Pursuant to the Court’s Order of December 19, 1995, filed Feb. 26, 1996; Third and Final Submission of Privileged Documents Pursuant to the Court’s Order of December 19, 1995, filed Mar. 15, 1996.

In total, the court reviewed thousands of documents — many duplicated in the serial submissions — ordering the production of some documents and upholding defendant’s privilege claims in others. See INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X (Fed.Cl. Mar. 13, 1996) (Hand-out to Parties at the March 13,1996 Status Conference); Id. (Fed.Cl. Mar. 26, 1996); Id (Fed. Cl. Mar. 29,1996); Id. (Fed.Cl. Apr. 2,1996); Id. (Fed.Cl. Apr. 22,1996); I & (Fed.Cl. July 12, 1996) Id. (Fed.Cl. Sept. 12, 1996); Id, (Fed.Cl. Nov. 1, 1996). The court reviewed these documents in an effort to protect the integrity of the proceedings. Tr. at 46-47 (Fed.Cl. Nov. 6,1996).

4. Rulings on plaintiffs’ legal and equitable data rights claims

On January 17, 1996, defendant filed its second Motion in Limine or, Alternatively, for Partial Summary Judgment upon Contractual Data Rights Issue, seeking a ruling that the Government had unlimited rights in the software delivered by INSLAW to DOJ. The court learned that the 1982 Contract was a $9.6 million cost-plus-basis contract, requiring

INSLAW to prepare and install 1) the computer-based public domain PROMIS software in the [Executive Office for United States Attorneys] and in the 20 largest United States Attorneys’ Offices, with an option by which DOJ could require installation of the software in another 10 offices; and 2) a word process-based casetracking system in the remaining smaller United States Attorneys’ Offices____ There are two versions of PROMIS at issue. The “VAX” version of PROMIS was made available to DOJ via telephone lines through INSLAWs own in-house VAX computer. The “PRIME” version of PROMIS was made available to DOJ upon INSLAW’S installation of the system on government-furnished computers.

*316 INSLAW, Inc. v. United, States, 35 Fed. Cl. 295, 298 (1996) (order granting in part motion in limine and motion for partial summary judgment) (footnote omitted). Defendant contended that the Government conclusively possesses all the rights to the VAX and PRIME versions of PROMIS delivered pursuant to the 1982 Contract. See id. at 298-99 .

In considering the motion, the court focused on two contractual provisions, Clause 74(b) and Modification No. P0012. Clause 74(b) is part of the original contract, whereas the parties entered into Modification 12 on April 11, 1983, after “a number of disputes [arose] between INSLAW and DOJ — regarding, among other issues, the funding of certain alleged enhancements made to the PROMIS system and the extent of the Government’s rights in the PROMIS system.” Id. at 300 . The court’s rulings limited and framed several issues involving Clause 74 and Modification 12 for trial.

Clause 74(b)(1), “Rights in Technical Data and Computer Software,” gave the Government “Unlimited Rights” in

(i) technical data and computer software resulting directly from performance of experimental, developmental or research work which was specified as an element of performance in this or any other Government contract or subcontract;

(ii) computer software required to be originated or developed under a Government contract, or generated as a necessary part of performing a contract;

(iii) computer data bases, prepared under a Government contract, consisting of information supplied by the Government information in which the Government has unlimited rights, or information which is in the public domain;

(iv) technical data necessary to enable manufacture of end-items, components and modifications, or to enable the performance of processes, when the end-items, components, modifications or processes have been, or are being, developed under this or any other Government contract or subcontract in which - experimental, developmental or research work is, or was specified as an element of contract performance, except technical data pertaining to items, components, processes, or computer software developed at private expense (but see (2)(ii) below);

(v) technical data or computer software prepared or required to be delivered under this or any other Government contract or subcontract and constituting corrections or changes to Government-furnished data or computer software;

(vi) technical data pertaining to end-items; components or processes, prepared or required to be delivered under this or any other Government contract or subcontract, for the purpose of identifying sources, size, configuration, mating and attachment characteristics, functional characteristics and performance requirements (“form, fit and function” data, e.g., specification control drawings, catalog sheets, envelope drawings, etc.);

(vii) manuals or instructional materials prepared or required to be delivered under this contract or any subcontract hereunder for installation, operation, maintenance or training purposes;

(viii) technical data or computer software which is in the public domain, or has been or is normally furnished without restriction by the Contractor or subcontractor; and

(ix) technical data or computer software listed or described in an agreement incorporated into the schedule of this contract which the parties have predetermined, on the basis of subparagraph (i) through (viii) above, and agreed will be furnished with unlimited rights.

Clause 74(a)(7) defines “Unlimited Rights” as the “rights to use, duplicate, or disclose technical data or computer software in whole or in part, in any manner and for any purpose whatsoever, and to have or permit other[s] to do so.” These clauses allowed the Government to do whatever it wished with the PROMIS software that was required to be delivered under the contract.

Clause 74(b)(2), however, states that the Government shall have “Limited Rights” in

(i) technical data, listed or described in an agreement incorporated into the Schedule of this contract, which the parties have *317 agreed will be furnished with limited rights; and

(ii) technical data pertaining to items, components or processes developed at private expense, and computer software documentation related to computer software that is acquired with restricted rights, other than such data as may be included in the data referred to in [Clause 74](b)(l)(i), (v), (vi), (vii), and (viii). [P]rovided that only the portion or portions of each piece of data to which limited rights are to be asserted pursuant to (2)(i) and (ii) above are identified (for example, by circling, underscoring, or a note), and that the piece of data is marked with the legend below----

Clause 74(a)(8) defines “Limited Rights” as rights to use, duplicate, or disclose technical data, in whole or in part, by or for the Government, with the express limitation that such technical data shall not, without the written permission of the party furnishing such technical data be (a) released or disclosed in whole or in part outside the Government, (b) used in whole or in part by the Government for manufacture, or in the case of computer software documentation, for preparing the same or similar computer software....

Despite these contractual provisions, the 1982 Contract did not provide for a limitation of the Government’s limited rights. “The portion of Clause 74(b)(2) of the contract labeled ‘Limited Rights Legend’ is marked prominently ‘N/A,’ signifying not applicable.” INSLAW, 35 Fed.Cl. at 299.

The contract, by Clause 74(a)(9), also granted the Government “Restricted Rights,” which “apply only to computer software and include a right to: (i) use computer software with the computer for which or with which it was acquired ...; (ii) use computer software with a backup computer ...; (iii) copy computer programs for safekeeping (archives) or backup purposes[.]” Finally, Clause 74(b)(3) provides the Government with “Restricted Rights”

in computer software, listed or described in a license or agreement made a part of this contract, which the parties have agreed will be furnished with restricted rights, provided, however, notwithstanding any contrary provision in any such license or agreement, the Government shall have the rights in (a)(9)(I) through (v). Such restricted rights are of no effect unless the computer software is marked by the Contractor with the following legend ...

Once again, that portion of Clause 74(b)(3) labeled “Restricted Rights Legend” is marked prominently “N/A” INSLAW, 35 Fed.Cl. at 300.

INSLAW argued that “the court must interpret the evidence independently of the contractual provisions, because the Government allegedly obtained INSLAWs property by tortious acts.” Id. The court held that INSLAW was entitled “to a trial on all contested factual issues, but the meaning of clear, unambiguous English in a contract is not among them.” Id. Accordingly, the court reviewed the contractual provisions above and held that, ignoring Modification 12, the contract

conferred upon the Government Unlimited Rights in computer software and other technical data. Furthermore, the “N/A” notations, on the two Clause 74 sections dealing with limitations in the Government’s rights, indicate that these contract provisions were inoperative and did not limit the Government’s rights. INSLAW may attempt to show that the “N/A” notations had some other purpose or use, but such an effort very likely will prove fruitless. Consequently, the contract itself, without consideration of Modification 12, fully empowered the Government to use INSLAWs computer software and other technical data in whatever manner it deemed proper, including, but not limited to, dissemination of these materials beyond the [Executive Office for United States Attorneys] and the United States Attorneys’ Offices.

Id. at 305.

The court also examined Modification 12, which states, in pertinent part:

The purpose of this Supplemental Agreement is to effect delivery to the Government of VAX-Specific PROMIS computer programs and documentation requested by the Government on December 6,1982, pur *318 suant to Article XXX — Date Requirements, and to at this time resolve issues concerning advance Payments to the Contractor.

A. The Contractor shall deliver to the Government all PROMIS Computer programs and supporting documentation developed for or relating to this contract

The information provided pursuant to this request must include everything necessary to transfer all above mentioned operation versions of PROMIS to a different VAX computer with a minimum of effort, and to further develop, tailor, and implement PROMIS software to the extent contemplated in this contract on a different VAX computer.

B. The Government shall limit and restrict the dissemination of the said PROM-IS computer software to the Executive Office for United States Attorneys, and to the 94 United States Attorneys’ Offices covered by the Contract, and, under no circumstances shall the Government permit dissemination of such software beyond these designated offices, pending resolution of the issues extant between the Contractor and the Government under the terms and conditions of Contract No. JVU-SA-82-C-0074; and

E. Contract No. JVUSA-82-C-0074 governs the rights and obligations of the parties thereto. Neither the Government nor the Contractor intend by means of the Supplemental Agreement to change or affect in any way the terms and conditions of the said Contract____ Rather, this Supplemental Agreement to the Contract is intended solely and only to assure access by the Government to the current software utilized by the Contractor in performance under the Contract, and to limit dissemination of the same by the Government, as set forth above, pending a decision with respect to the data rights in enhancements to VAX computer software being used to run U.S. Attorneyst’] PROMIS....

All other terms and conditions remain unchanged.

Defendant argued that Modification 12 applies only to the VAX version of PROMIS and that the Government maintained unlimited rights to the PRIME version of PROMIS. INSLAW countered that Modification 12 applies to both the VAX and the PRIME versions. The court determined that Modification 12 was ambiguous because it provided that INSLAW must deliver “ ‘all PROMIS computer programs and supporting documentation developed for or relating to this contract.’” INSLAW, 35 Fed.Cl. at 305 (quoting Modification 12). Thus, the court allowed INSLAW to present

1) evidence that, as a result of, and pursuant to Modification 12, INSLAW gave the Government software or other technical data related to the PRIME version of PROMIS; and 2) contemporaneous statements or documentary evidence, from IN-SLAW or government officials involved in the drafting of Modification 12, that the parties’ intended the modification to apply to the PRIME version.

Id. The court held that, if INSLAW could not make such a showing, then Modification 12 applies only to the VAX version, and any claim by INSLAW for recovery based on the deprivation, conversion, dissemination, or other use complained of with respect to the PRIME version, whether endowed with privately-funded enhancements or not, will provide no basis for relief. Such a result is mandated by the broad and Unlimited Rights for software and other technical data that the contract accords to the Government.

Id. at 306.

Defendant also asserted that consideration of plaintiffs’ claims is foreclosed because plaintiffs had failed to meet a statute of limitations. After contract completion IN-SLAW submitted a claim to the contracting officer on October 17,1985, seeking additional compensation on issues relating to the privately-funded enhancements. On February 21, 1986, the contracting officer issued a final decision: “INSLAW’s claim for licensing fees ... is denied in its entirety.” IN-SLAW had 90 days to appeal this decision to the DOTCAB, see 41 U.S.C. § 606 (1988), or *319 12 months to appeal to the United States Claims Court (this court’s former name). See 41 U.S.C. § 609 (a)(3) (1988).

INSLAW did seek review before the DOT-CAB, but not with respect to the contractual rights issue. INSLAW, 35 Fed.Cl. at 306. INSLAW did not seek review before the Claims Court. “In the context of a congressional reference, failure to meet a statute of limitations bars legal recovery.” Id. at 306 (citing cases). INSLAW’s failure to seek review of the contracting officer’s decision rendered it final. Id. Consequently, “the merits of [the] decision cannot be judicially challenged.” Seaboard Lumber Co. v. United States, 903 F.2d 1560,1562 (Fed.Cir.1990); see 41 U.S.C. § 605 (b) (1988) (providing that contracting officer’s decision not reviewable in any tribunal absent timely appeal or suit).

INSLAW argued that its claims were not time-barred, as several of its tort-based claims could not be brought before the contracting officer. However, INSLAW did

not quarrel with the case law establishing that jurisdiction to resolve a government contract claim empowers the cognizant agency board or the court to resolve tort claims related to the Contract Disputes Act, 41 U.S.C. § 601-613 (1994).... Since INSLAW’s claims of conversion, deprivation, dissemination, and other tortious acts, with regard to the contractual data rights issue, could have been brought to the contracting officer, the applicable statute of limitations bars its claims for legal recovery.

INSLAW, 35 Fed.Cl. at 306.

INSLAW also argued that the statute of limitations had not expired pursuant to Modification 12. Modification 12 states: “[U]nder no circumstances shall the Government permit dissemination of [the] software beyond those designated offices [the Executive Office for United States Attorneys and the 94 United States Attorneys’ Offices], pending resolution of the issues extant between the Contractor and the Government____” “From this INSLAW would infer a free-floating limitations event that never occurred, since the Government and INSLAW never resolved the issues between them.” INSLAW, 35 Fed.Cl. at 307. The court held that “when the contracting officer rendered his final decision regarding INSLAW’s contract claim for ‘propriety rights to privately financed enhancements,’ a decision was made____” Id. The contracting officer denied INSLAW’s claim in its entirety; the issue, in effect, was resolved. The court held:

As a legal matter, any claims by INSLAW for conversion, deprivation, dissemination, and other unauthorized acts with regard to PROMIS after the date on which the contracting officer’s final decision became unappealable cannot provide a basis for recovery as legal claims. However, in pursuing its equitable claims, INSLAW may present evidence concerning the meaning of the term “resolution” in Modification 12.

Id. With respect to INSLAW’s equitable claims, the court stated:

The absence of a legal right to recovery does not foreclose INSLAW’s right to a claim under a theory of equitable relief. A right to equitable relief “‘must rest on some unjustified governmental act that caused damage to the claimants.’” California Canners, 9 Cl.Ct. at 785 (review panel) (quoting Wong, Cong. Ref. No. 3-74, slip op. at 12-13). “[W]hile equitable claims, like legal claims, may be founded on the Constitution, a statute, a regulation, or a common law principle, such bases are not absolutely necessary to warrant relief in equity.” Spalding & Son, Inc. v. United States, 24 Cl.Ct. 112, 132 (1991), rev’d on other grounds, 28 Fed.Cl. 242 (1993) (congressional reference). In ascertaining whether INSLAW suffered a wrong, the first step is to determine if INSLAW possessed some right or interest that could have been damaged by the Government’s alleged wrongful actions.

INSLAW, 35 Fed.Cl. at 307-08. Resolution of defendant’s motion assisted in framing several issues presented at trial: 1) whether the “N/A” notations in Clause 74 had some significance other than their obvious implication; 2) whether Modification 12 applies to both the PRIME and VAX versions of PROMIS; 3) what the parties intended by the term “resolution” in Modification 12; and 4) what rights or interests INSLAW pos *320 sessed with respect to the PROMIS software. See id. at 308-09 & n. 12.

5. Protocol proposed for the expert panel review of software

As discovery progressed, the court learned more about this case characterized by plaintiffs as involving “software piracy.” Tr. at 23 (Fed.Cl. Jan. 29, 1996). Plaintiffs explained that, despite the lengthy history of the matter, they had not inspected the Government’s software or compared it with plaintiffs’ PROMIS to determine whether the Government truly made use or had possession of the alleged proprietary enhancements.

MR. NORWOOD: The court has noted that there has been a long history of discovery in this case. And one of the things that happened was that the District Court, at one point, ordered the government to produce software, Judge Robinson issued an order to produce the software for inspection and comparison.

Before that order was complied with, the Court of Appeals vacated the judgment[ ] below on grounds of jurisdiction[ ]; so it never was done.

Tr. at 24 (Fed.Cl. Jan. 29, 1996). Plaintiffs sought additional discovery on the data management systems, used by federal agencies other than the United States Attorneys’ Offices (the “USAOs”) and the Executive Office of the United States Attorneys (the “EOU-SA”), that plaintiffs allege are similar to IN-SLAWs PROMIS software.

Initially, plaintiffs sought to examine software used by eight agencies, two within and six outside DOJ, in order to ascertain any similarities that might exist between these programs and INSLAWs PROMIS. A dispute arose concerning the nature and extent of allowable discovery on the data management issue. See Tr. at 27-28 (Fed.Cl. Jan. 29, 1996). The court recognized that there was a

need to find out whether and to what extent plaintiffs’ software has moved from beyond the Department of Justice, because we know the Department of Justice had rights to use it; and we know that the Department of Justice limited itself from disseminating, beyond Justice, any software in which I[NSLAW] could show that it had a proprietary interest.

So we need to know if there is software out there that is plaintiffs’.

Id. at 40-41. Plaintiffs explained that they

attempted ... to seek, chronologically, the advance ... of dissemination or the piracy of the software; seeking first eight particular agencies, two within Justice and six without, where there has been some indication and some testimony before some bodies, not always the same body, [of] the fact that it [the Government’s software] is a pirated copy of P[ROMIS] or a derivative of a pirated copy of P[ROMIS].

Id. at 27. Plaintiffs asserted that they narrowed their initial discovery requests to these eight particular agencies because testimony in the prior proceedings and the House Judiciary report lead them to these agencies. Id. at 31.

Defendant contended that the agencies were not using any PROMIS program or PROMIS derivative. Defendant represented that it

took th[e] step of asking each of these agencies that the plaintiffs included in their interrogatories to provide information about the systems that they were currently using or used that were called P[ROMIS] or particular programs that the plaintiffs asked about.

And then the government provided sworn statements by agency employees describing those systems and swearing that they were not related to I[NSLAW]’s P[ROMIS].

Id. at 39. Defendant was concerned that plaintiffs were embarking on a fishing expedition, although plaintiffs continually represented that they could support their requests with sworn statements from individuals with knowledge that certain software was based on PROMIS. See id. at 32 (“I think we can get it for you. And I think it’s probably already in the can, like I say, if we can get these documents in.”). In fact, plaintiffs stated that they already had sworn testimony to support certain discovery requests. See id. (“I know we’ve got the sworn testimony *321 of Michael Rieonoseiuto and Jula Lavieve and perhaps a half dozen people.”).

The court and the parties established a protocol to address plaintiffs’ request to examine the software at the agencies in order to ascertain any similarities that might exist between the Government’s software and IN-SLAWs PROMIS. This procedure

allowed for discovery into the alleged dissemination of PROMIS-based software to eight government agencies upon plaintiffs’ production of sworn statements, by individuals with first-hand knowledge, that a certain piece of software at issue is believed by that individual to be based on PROMIS. Defendant would have the right to contact the affiant to confirm that the individual made the statement, but otherwise the sufficiency of the statement would be obvious on its face. Once the sworn statement was produced, a panel of three experts (one chosen by each side and the third chosen by both) would review the software configuration to determine whether it is a PROMIS-based program. The review would be conducted pursuant to an agreed-upon methodology. If the three experts were to reach a unanimous assessment on a particular piece of software, that assessment would be accepted by and binding on the parties. If the experts were to disagree on a certain piece of software, then the nature and basis of any disagreement could be explored at trial.

INSLAW v. United States, Cong. Ref. No. 95-338X, at 1-2 (Fed.Cl. Mar. 7, 1996) (summarizing agreement made at January 29, 1996 status conference). The use of this expert panel allowed for an objective and competent method of evaluating plaintiffs’ dissemination claims.

On March 4, 1996, pursuant to the agreement reached at the January 29, 1996 status conference, plaintiffs submitted four affidavits — those of Charles S. Hayes, Thomas M. Strzemienski, Michael J. Rieonoseiuto, and ■ William Usher Norwood. Plaintiffs noted that

the Court only required Plaintiffs, in order to conduct discovery, to submit a facially sufficient affidavit setting forth first-hand knowledge that INSLAW’S proprietary enhanced PROMIS is or was located within these agencies. For these reasons, Plaintiffs have not submitted any further circumstantial evidence concerning these particular agencies or any other agencies. In fact, the court specifically instructed the parties to go forward with said comparison without challenges to these affidavits.

Plfs’ Br. filed Mar. 4, 1996, at 4 (Plaintiffs’ Submission).

Plaintiffs also narrowed their discovery requests; they no longer sought discovery at eight agencies, but, rather, at six: 1) the U.S. Customs Bureau (“Customs”); 2) the Federal Bureau of Investigation (the “FBI”); 3) the Drug Enforcement Agency (the “DEA”); 4) the National Security Agency (the “NSA”); 5) the Defense Intelligence Agency (the “DIA”); and 6) the Central Intelligence Agency (the “CIA”).

The sufficiency of the four affidavits was addressed at the March 13, 1996 status conference. Defendant challenged the facial sufficiency of the affidavits and asked “the Court to rule that they do not justify the burden and expense of expert review of any Government software.” Defs Br. filed Mar. 11, 1996, at 1 (Status Report). Three of the four affidavits did not comply with the parties’ agreement established at the January 29, 1996 status conference. The affidavits of Thomas M. Strzemienski and William Usher Norwood were based on hearsay, not firsthand knowledge, Tr. at 13-14 (Fed.Cl. Mar. 13, 1996), so these failed to satisfy the agreed-upon standard. See id. The court found that the affidavit of Michael J. Rieo-nosciuto was remote because it was executed on March 21,1991, almost five years prior to plaintiffs’ submission in this proceeding. Id. at 17-18. Plaintiffs agreed. Id. at 17 (commenting that affidavit “is remote”). Because the affidavit did not satisfy the standard developed in the January 29 status conference, the court asked plaintiffs to “[s]ee if [Rieonoseiuto] will execute something that meets the standards ..., but right now this is remote.” Id. at 18. Plaintiffs responded: “That is fine, Your Honor. We can accomplish that.” Id. Plaintiffs never produced a more recent affidavit.

*322 Defendant challenged the sufficiency of the Hayes’ affidavit, see Defs Br. filed Mar. 11, 1996, at 1 (Status Report), arguing that the affidavit failed “to show how the affiant knows the statements that he makes in the affidavit.” Tr. at 14 (Fed.Cl. Mar. 13, 1996); see id. at 19. The affidavit, defendant submitted, was “inadequate because it laek[ed] any factual predicate to lead anyone reading it objectively to realize that he had any basis for making these bold assertions in his affidavit.” Id. at 15. The court found the Hayes’ affidavit sufficient under the standard adopted at the January 29 status conference, id. at 18, and allowed the discovery plaintiffs sought with respect to the agencies referenced in the Hayes’ affidavit: the FBI, NSA, DIA, DEA, and Customs. 5 Id. at 100.

On March 28, 1996, plaintiffs filed a Supplemental Submission consisting of two affidavits, the affidavit of Joe N. Pate and Carl Jackson. Plaintiffs submitted these affidavits to support their request for comparing the DEA’s and FBI’s “case/information management and tracking systems with IN-SLAW’S proprietary enhanced PROMIS.” Plfs’ Br. filed Mar. 28,1996, at 1 (Supplemental Submission). The court discussed these affidavits with the parties at an off-the-record status conference on April 4, 1996. The court found:

With respect to plaintiffs’ supplemental submission filed on March 28, 1996, the affidavit of Joe N. Pate is insufficient because it is hearsay and not based on personal knowledge. The affidavit of Carl L. Jackson is redundant, since an examination of case-tracking software used by the Drug Enforcement Administration already is being undertaken.

INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X, at 2,1Í 4 (Fed.Cl. Apr. 4, 1996).

In order to safeguard the integrity of the agreed-upon protocol developed at the January 29,1996 status conference,

[t]he court requested that both parties memorialize an agreement, to be signed by plaintiffs William A. and Nancy. Burke Hamilton, as well as by the authorized representative of the Attorney General of the United States, whereby the parties manifest their agreement to the procedure covered by the transcript of proceedings of January 29, 1996 and the order entered on March 7, 1996. Under this procedure [after the plaintiffs’ produced the required affidavits] defendant will produce case-tracking software to plaintiffs for expert examination to determine whether the software is based on or derived from PROMIS without the need for plaintiffs to establish their entitlement thereto utilizing the procedures of RCFC 26. This agreement shall be filed as soon as practicable, but no later than April 20,1996. Since the procedure affords both parties litigative advantages with corresponding costs, it is essential to the integrity of these proceedings that the parties manifest their assent. In the court’s view, under this procedure plaintiffs will be able to secure examination of case-tracking software without establishing their entitlement, through the traditional tools of discovery, to examine software used by agencies other than the Executive Office of the United States Attorneys and the United States Attorneys’ Offices; defendant will secure a defined universe of software subject to examination. The parties will secure an eventual termination to plaintiffs’ long-time quest for this information and to the long-time internal and external investigations of DOJ respecting the PROMIS software.

Id. H 5. The parties complied with this request and filed their Stipulation Respecting Review of Software on April 23, 1996. Once again they expressly “agree[d] to address the[ ] contentions using the procedures” set forth in the agreement pursuant to the Janu *323 ary 29 and March 13, 1996 status conferences. INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X, at 1 (Fed.Cl. Apr. 23, 1996) (Stipulation Respecting Review of Software).

The court also allowed plaintiffs to examine two other data management systems used by DOJ, the Uniform Office Automation and Case Management Project software (“Project Eagle”) and USACTS (including the “PC,” “DG,” and “SCO” versions). See INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X (Fed.Cl. Apr. 15, 1996); IN-SLAW, Inc. v. United States, Cong. Ref. No. 95-338X (Fed.Cl. Mar. 7,1996). After learning that “Project Eagle was a large-scale procurement of both hardware and software for a number of agencies within the Department of Justice,” the court, with the parties’ consent, on April 15,1996, modified the scope of this discovery. INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X, at 1 (Fed.Cl. Apr. 15, 1996). Defendant was ordered to produce “any case-tracking software used on or related to Project Eagle hardware within the United States Attorneys’ Offices, the Executive Office of United States Attorneys, the Solicitor General’s Office, and the Office of Professional Responsibility.” Id. at 2, H1. The court also ordered defendant to “provide to plaintiffs case-tracking software used by the following agencies within the Department of Justice that both use case-tracking software and participated in Project Eagle: the Tax Division, the Criminal Division, the Office of Information and Privacy, and the Office of Pardon Attorney.” Id. 112.

Pursuant to the parties’ Stipulation Respecting Review of Software, the systems to which the court granted plaintiffs access were to be evaluated under a two-step procedure. First, plaintiffs were required to provide a sworn affidavit of an “individual with first hand-knowledge of the system or by an expert who has compared the system with PROMIS and affirms that it is based on PROMIS.” INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X, at 3 (Fed.Cl. Mar. 7, 1996). Second, if plaintiffs made this showing, the software would be analyzed by the expert panel pursuant to the protocol. Id.

On May 7, 1996, plaintiffs filed under seal a Status Report regarding their review of the USACTS software. Although plaintiffs’ examiners did not find any evidence that any of the versions of USACTS software were based on PROMIS software, they did find that some

PROMIS-like features exist in the software resident on the AMDAHL mainframe computer in Washington, D.C____ [This] can be inferred from the kinds of reformatting that U.S. Attorney’s Offices perform on the computerized caseload data they extract from these hyphenated USACTS databases before sending the extracts to Washington, D.C. each month for automated entry into the AMDAHL-based software system.

Affidavit of Pife’ Examiners at 3 (May 2, 1996); see Plfs’ Br. filed May 7,1996. Based on this showing, the affiants recommended that the court allow the expert panel established pursuant to the protocol to examine the AMDAHL mainframe-based software.

In denying the request, the court stated:

When the court, with considerable assistance from the parties, developed the software discovery protocol during the January 29, 1996 status conference, the objective was to speed the discovery process so that this matter, which dates from the early 1980s, could move as swiftly as practicable to trial. In keeping with this goal, the court, through the protocol, offered the parties an opportunity to participate in a procedure that would yield each side benefits, but would also exact certain costs. On the benefit side, plaintiffs would get access to certain software programs without making the necessary showing under RCFC 26(b)(1), while defendant would be obligated to allow plaintiffs to examine a defined universe of software. On the cost side plaintiffs would be limited in the number of programs they could examine, while defendant would be obligated to allow examination of certain programs that plaintiffs might not have been able to examine under RCFC 26(b)(1).

It was a bargain that was not foisted upon the parties, but offered to them. *324 They accepted the offer and pledged to abide by it. See INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X (Fed.Cl. Apr. 23, 1996) (Stipulation Respecting Review of Software). Plaintiffs’ request to examine the AMDAHL mainframe software undermines the protocol. By this request plaintiffs seek more than they bargained for. The April 22, 1996 Confidentiality Order listed specifically what software plaintiffs could examine. Upon finding that none of the USACTS versions examined is based upon PROMIS, plaintiffs seek to expand the list of software subject to examination.

Even absent the protocol, defendant has proffered strong evidence to blunt plaintiffs’ showing that they are entitled to examine the AMDAHL mainframe software. When the protocol is factored into the analysis, plaintiffs’ request could be regarded as an attempt to sidestep that agreement. A bargain was struck between the parties that gave each benefits and similarly exacted costs, The parties agreed to this bargain. If plaintiffs now wish to renege on that bargain, they may do so. The court will rescind the protocol, call off the software review, disband the review panel, and proceed with discovery in the normal course prescribed under RCFC 26. The court is not forcing either party to participate in the protocol. As long as each party manifests a commitment to comply with its procedures and limitations, however, those procedures and limitations will be enforced.

INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X, at 3-4 (Fed. Cl. June 4, 1996); see Tr. at 42-43 (Fed.Cl. May 8, 1996). Because neither plaintiffs nor defendants wished to abandon the protocol, it remained in effect, and discovery continued.

Controversy permeated discovery concerning the Hayes affidavit. On April 2, 1996, defendant deposed Mr. Hayes to discover the .basis of the statements made in his affidavit. INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X, at 2 (Fed.Cl. May 8, 1996). Mr. Hayes’ comments were “evasive and abusive in the extreme. He refused to answer defense counsel’s substantive questions and repeatedly insulted defense counsel.” Id. The court severely understates the degree of Mr. Hayes’ uncooperative behavior.

On April 8, 1996, defendant brought the United States’ Motion for Order Compelling Answers to Deposition Questions and for an award of costs pursuant to RCFC 37. The court asked defendant to file a supplemental brief to address whether Mr. Hayes, as he claimed, was “inhibited by virtue of any legal prohibitions from answering questions relative to the grand jury testimony dealing with Judge Nicholas [Bua’s] investigation.” See supra note 3. Defendant was also to address the effect on Mr. Hayes’ deposition testimony, if any, of security agreements made between Mr. Hayes and any federal agency with which he was associated. Tr. at 3-4 (Fed.Cl. May 8,1996).

Defendant filed a supplemental motion, and the issue was briefed fully. Plaintiffs’ response, or lack thereof, proved problematic. See Plfs’ Br. filed Apr. 26, 1996, at 2 n. 1 (Response to the United States’ Supplemental Motion for Order Compelling Answers to Deposition Questions) (“[W]hen Plaintiffs questioned Mr. Hayes regarding the basis of his opinions contained in his affidavit, he refused to respond based upon confidentiality agreements and Grand Jury secrecy.”). The court found:

Plaintiffs have no answer at all with respect to the motion to compel. They seem to concede that the scope of the questioning is well within the purview of the rules. The[y] ask that the Court, Defendant, and themselves petition the court in charge of the grand jury for release of the transcript — that’s a matter that Plaintiffs can handle. It is not necessary to involve this Court or Defendant. Certainly it’s not a defen[s]e to that motion. That matter could have been fully addressed before the deposition and indeed should have been.

Secondly, and also problematic, is Plaintiffs response to the Rule 11 problem of whether they’ve made a reasonable inquiry into this affidavit before proffering in terms the factual background — the answer is no. To take the position that Mr. Hayes was a[s] uncooperative with them as he *325 was with Defendant is not an answer____ We’re too busy to stop the presses in this particular case, but the Court notes that, with a degree of pleasure, Defendant has exercised forbearance in not asking for the cancellation of the examination of the software of the five agencies that were covered by Mr. Hayes’ affidavit. We’re going to go ahead with that. I don’t want to see anything more like that in this case. It’s very, very close to sanctionable conduct, and the only reason it is not going to be closer is that I am not going to proceed under Rule 11.

Tr. at 4-5 (Fed.Cl. May 8,1996).

The court ordered plaintiffs to “reimburse defendant for attorneys’ fees and expenses related to the April 2, 1996 deposition, the subsequent motion to compel answers to deposition questions, and the resumption of Mr. Hayes’ deposition.” INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X, at 3, H 3 (Fed.Cl. May 8, 1996). The court also ordered Mr. Hayes “to answer all deposition questions relevant to this matter ... and related to the statements he made in his affidavit, including issues supposedly discussed before the grand jury.” I. H1. Rather than having Mr. Hayes answer the deposition questions, the parties entered into a stipulation respecting Mr. Hayes’ testimony, which provided:

1. Charles S. Hayes shall not be called as a witness in this proceeding.

2. Plaintiffs shall not offer prior statements made or testimony given by Charles S. Hayes in this or any other proceeding involving the United States.

INSLAW, Inc, v. United States, Cong. Ref. No. 95-338X (Fed.Cl. July 11, 1996) (Stipulated Order Respecting the Testimony of Charles S. Hayes).

With Mr. Hayes out of the picture, plaintiffs could no longer rely on his affidavit to justify discovery. Nonetheless, the court held defendant to its agreement, noting:

The protocol was implemented despite plaintiffs’ failure to produce any qualified affidavits. See INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X (Fed.Cl. May 8, 1996) (discussing Hayes’ affidavit); Tr. at 99 (Fed.Cl. Mar. 13, 1996) (instructing parties to begin software examination process). Thus, plaintiffs gained discovery rights despite their failure to meet the minimal standards specified by the protocol.

INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X, at 2 (Fed.Cl. Dee. 10, 1996).

During the November 6, 1996 status conference, plaintiffs raised another concern— the availability of documents and computer source codes for the expert panel. Plaintiffs sought access to government computer software from the 1970s and 1980s, as well as supporting documentation demonstrating the software’s development. Defense counsel asserted that the Government would furnish everything available; however, the Government had not retained every document or every version of computer software used during the 1970s and 1980s. Plaintiffs suggested that the Government should be penalized in some way for the missing evidence. The court stated: “Absent ongoing litigation, there is simply no requirement to keep materials that you otherwise are not disposed to keep around beyond a period described by various agencies.” Tr. at 38 (Fed.Cl. Nov. 6, 1996). This matter has not “always been in court. But [after] a lengthy period of time, it’s been under various investigations, internal and those initiated by the parties involving each other. And there just is no basis unless internal procedures weren’t followed to draw adverse inferences.” Id. at 39. Because of plaintiffs’ concerns, the court instructed defendant to file affidavits providing “an explanation why [doeuments/source code are] not available.” Id. at 40. Defendant responded that it was “committed to submitting affidavits attesting to the production of all available source code and documentation.” Def s Br. filed Dec. 3, 1996, at 5; see Tr. at 40-41 (Fed.Cl. Nov. 6,1996) (reflecting plaintiffs’ agreement); INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X, at 3-4 (Fed. Cl. Dec. 10, 1996) (discussing integrity of protocol). These affidavits were filed in due course, and plaintiffs did not attack their sufficiency. More importantly, neither plaintiffs nor the expert panel contested the scope of the examination.

*326 As a further assurance that plaintiffs received everything to which they were entitled, the court ordered defendant to produce for an in camera inspection all documents that “reflect an actual inspection, examination, or report concerning software in any agency.” INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X, 111 (Fed.Cl. Nov. 12,1996). The court did so to allay plaintiffs’ concerns that developmental data existed, but was not being produced. The court determined that plaintiffs were not entitled to any material in addition to that already disclosed.

Pursuant to the protocol, the expert panel filed its report on December 18, 1996. The panel concluded:

[N]o evidence in the software we examined that any of the Agency software listed below was copied from INSLAWs PROM-IS system or that any of it was derived from INSLAWs PROMIS system:

1. The FBI’s Field Office Information Management System, FOIMS

2. The U.S. Customs Service’s TECS-II

3. The Drug Enforcement Agency’s Case Status System, CAST

4. The National Security Agency’s PROMIS System

5. A system written by PROMIS Systems Ltd., purchased in or about 1985 by the National Security Agency, from I.P. Sharp Co.

6. A variety of systems used by the Defense Intelligence Agency.

Significantly, the expert panel did not express any reservation concerning its access to any agency facility or the time allowed for their analysis. The report represents a thorough and credible analysis by an objective and competent panel of experts. The panel’s analysis laid to rest plaintiffs’ dissemination claims with respect to non-DOJ agencies.

Throughout this litigation “the court has expressed the. view that this matter should move quickly to trial because the underlying disparate facts date back over ten years and it already has been the subject of one full adversary proceeding, as well as numerous investigations by the Department of Justice and Congress.” INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X, at 3 (Fed.Cl. Aug. 5, 1996). Nevertheless, even with the implementation of the protocol and the parties’ best efforts, discovery deadlines were extended and trial was rescheduled twice. See INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X, at 1 (Fed.Cl. July 12,1996) (continuing trial due to time required by expert panel); INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X, at 2-3 (Fed. Cl. May 9, 1996) (granting plaintiffs’ motion for continuance); INSLAW, Inc. v. United States, Cong Ref. No. 95-338X, at 1-2 (Fed. Cl. Mar. 13,1996) (setting trial dates). With the filing of the expert panel’s report, however, no further discovery was warranted, and trial commenced on March 10,1997.

6. Rulings on issues for trial

The court’s rules provide that

the parties shall ... file a joint statement setting forth the issues of fact and the issues of law to be resolved by the court. Issues should be set forth in sufficient detail to enable the court to resolve the case in its entirety by addressing each of the issues listed. The statement of issues shall control the admissibility of evidence at trial and evidence will be deemed to be irrelevant unless it pertains to one or more of the issues.

RCFC App. G 1115. Unable to agree to the triable issues, the parties proposed them, and the court adopted the following issues for trial: 6

1. The effect of Modification 12 on the 1982 Contract, including, but not limited to,

a) the meaning of “N/A” as it appears as a marginal entry beside Clause 74.

b) whether Modification 12 applies to the PRIME version of the PROMIS software, as well as the VAX (or time-sharing) version. '

*327 c) the meaning of the term “resolution” as it is used in Modification 12.

2) whether, and to what extent, the software INSLAW delivered pursuant to Modification 12 was “enhanced.”

3) if the software INSLAW delivered pursuant to Modification 12 was “enhanced,” whether the enhancements were privately funded.

4) whether DOJ impeded, frustrated or refused to respond unjustifiably or in bad faith to INSLAWs efforts to resolve the issue of its rights to any enhancements, or did DOJ officials frustrate, interfere with or prevent INSLAWs exercise of its rights under Modification 12 to present to the EOUSA evidence that the claimed enhancements were privately funded.

5) whether DOJ improperly precluded IN-SLAW from proving the existence and ownership of any “enhancements” in the software delivered pursuant to Modification 12.

6) if the software INSLAW delivered pursuant to Modification 12 was “enhanced,” whether no further compensation for those copies was due because INSLAW acted as a volunteer.

7) whether any recommended monetary award to INSLAW should be reduced by $503,162.00, as a set-off for prior overpay-ments (if any) to INSLAW under the 1982 contract.

8) whether DOJ took possession of and/or used and/or possesses and/or uses copies of INSLAWs privately funded, enhanced software (if any) so as to entitle INSLAW, Inc. and William A and Nancy Burke Hamilton to an award relating to the furnishing of computer software and services to DOJ as a claim, legal or equitable, against the United States or a gratuity and the amount, if any, legally or equitably due.

9) whether DOJ’s continued possession and/or use of INSLAWs privately funded enhanced software (if any) violates copyright laws so as to entitle INSLAW to damages.

10) whether INSLAW, Inc. and William A. and Nancy Burke Hamilton diligently pursued their rights and their claims against DOJ.

11) whether DOJ holds monies as a constructive trust for the benefit of INSLAW, Inc. and William A. and Nancy Burke Hamilton because it held INSLAWs privately financed enhanced PROMIS software, and derived benefits therefi-om.

12) whether as a part of any monetary award to plaintiffs, an additional amount should be awarded as costs and expenses of litigation and attorneys’ fees.

See Tr. at 85-57 (Fed.CI. Feb. 20, 1997); Pife’ Joint Pretrial Issues of Fact and Law (Feb. 19, 1997); Defs Proposed Issues of Fact and Law (Feb. 19,1997).

The court’s opinion in INSLAW, 35 Fed. Cl. at 309, established that plaintiffs’ legal claims based on data rights (issues 1-6, 8-9, and 11) are barred because plaintiffs failed to meet an applicable statute of limitations. See id. at 302-03, 306-07 (citing eases). Under this congressional reference, the court can consider them fully as equitable claims and will determine whether plaintiffs have proved that an unjustified governmental act, which encompasses negligence or wrongdoing, caused damage to them. See id. at 302, 307-08 (citing cases).

Two issues that were tried can be resolved summarily. As to issue 1(a), the evidence was wholly one-sided that “N/A” had no other significance than non-applicable. 7 As to issue 10, the court finds that Mr. and Mrs. Hamilton diligently pursued their rights and their claims against DOJ. 8

Plaintiffs press the claim, as part of a general claim that DOJ administered the 1982 Contract in bad faith, that they are entitled to recovery for wrongful withholding of computer center costs. This claim is the *328 mirror image of issue 7, defendant’s claim for a set-off. The DOTCAB dismissed IN-SLAWs several claims relating to the computer center costs after INSLAW withdrew them. Appeals of INSLAW, Inc., Contract JVUSA-82-C-0074, Docket Nos. 1609, 1673, 1775, 1828 (Dep’t of Transp. Nov. 9, 1992). As a legal claim in this proceeding, the doctrine of res judicata therefore bars plaintiffs’ claim relating to computer center costs. Ko-chendorfer v. United States, 193 Ct.Cl. 1045, 1055 (1970). Consequently, it will be considered fully as an equitable claim. See id. Plaintiffs’ data rights claims also embrace issues of bad-faith contract administration, which are considered fully as equitable claims. However, the issues for trial do not comprehend a general claim for bad-faith contract administration apart from issues 1-9 and 11.

FACTS AND DISCUSSION

Plaintiffs seek damages for claims relating to the furnishing of computer software services to DOJ. Plaintiffs assert that before and after the execution of the 1982 Contract, they notified DOJ that INSLAW had enhanced substantially its PROMIS software with private funding. Defendant contends that plaintiffs have failed to prove 1) that INSLAW created all but 12 of the 106 claimed discrete and three stand-alone enhancements or 2) that any of the claimed enhancements was developed with funds from sources other than the Federal Government and therefore is proprietary to IN-SLAW.

This court previously ruled that the statute of limitations barred plaintiffs from recovering damages on any legal claim. See INSLAW, Inc. v. United States, 35 Fed. Cl. 295, 302, 306-07 (1996) (order granting in part motion for partial summary judgment and motion in limine). The court did not make findings as to whether the bar of the statute of limitations should be lifted in order to consider plaintiffs’ legal claims.

28 U.S.C. § 2509 (e) (1994), the statute authorizing congressional references, requires that the court make findings, inter alia, “bearing upon the question whether the bar of any statute of limitation should be removed, or facts claimed to excuse the claimant for not having resorted to any established legal remedy.” If this court finds that the bar should not be removed, the parties take dramatically opposed positions on the consequences. Plaintiffs submit that the court should proceed to consider their claims under the equitable standards set forth in the court’s opinion. INSLAW, 35 Fed.Cl. at 302. Defendant views a negative answer as a gateway: Without finding that good reason exists to lift the statute of limitations, the court cannot consider either plaintiffs’ legal or equitable claims. See McQuown v. United States, 199 Ct.Cl. 858, 874-76 (1972).

The statute, by its terms, directs the inquiry as to whether the bar should be lifted only with respect to legal claims, which explains why McQuown is singular in its approach. Interestingly, the cases cited in INSLAW, 35 Fed.Cl. at 306, stand for the proposition that when the court finds that a legal congressional reference claim is barred by a statute of limitations, the court proceeds to consider it as an equitable claim without making any separate finding on lifting the bar. Although such has been the procedure since at least 1954, this court will make the finding sought by 28 U.S.C. § 2509 (c) with respect to plaintiffs’ legal claims. See Spalding & Son, Inc. v. United States, 28 Fed.Cl. 242, 251 (1993) (Merow, J. concurring).

INSLAW was advised to press its data rights claims in bankruptcy court instead of the DOTCAB. Michael E. Nannes and Richard J. Conway, INSLAWs former attorneys, so testified. Tactical considerations were involved. The decision was a considered one, although the forum proved not to be proper. Similarly, INSLAW abandoned its claims concerning computer center costs before the DOTCAB. INSLAW was in bankruptcy at the time, and financial considerations dominated. Countervailing these circumstances are those of the Government, for it was put to protracted and costly defenses in both the bankruptcy court and DOTCAB proceedings. Relieving plaintiffs from INSLAWs decisions is not warranted. No inability or excusable failure to pursue remedies is present; rather, INSLAW made *329 an incorrect choice of one legal forum and abandoned another legal proceeding for financial reasons. The court finds that plaintiffs have failed to demonstrate good cause why the bar of the statute of limitations should be lifted with respect to plaintiffs’ legal claims, including any claims relating to computer center costs not brought before the DOTCAB. In any event, the court already has noted that plaintiffs’ claim for computer center costs that was appealed to the DOT-CAB is res judicata, which forecloses its consideration as a legal claim. With respect to plaintiffs’ equitable claims, however, the court considers them fully on the merits.

In the context of a congressional reference, even if consideration of plaintiffs’ claims as legal claims is foreclosed, an unjustified governmental act that damages plaintiffs can be redressed. See INSLAW, 35 Fed.CI. at 307-08. The general principles of law bearing on a claim assist in applying the proper standards for fixing liability. See id at 308. According to plaintiffs, the Government has wrongfully appropriated IN-SLAW’S proprietary rights in PROMIS such that the court should impose a constructive trust. In order to recover on such a theory plaintiffs must demonstrate that they have a res, some property right, upon which to construct a trust. See id. at 307-08 & n. 12. Thus, putting aside whether INSLAW produced — or was prevented from producing— sufficient proof to DOJ personnel of its proprietary enhancements and INSLAW’S funding of such enhancements, the court must determine whether plaintiffs have proved by a preponderance of evidence that INSLAW created enhancements and that those enhancements are proprietary to INSLAW. Plaintiffs are obligated to discharge this burden whether their data rights claims are viewed as legal or equitable claims. See INSLAW, 35 Fed.CI. at 308. This overriding concept is crucial. Since the 1980s plaintiffs have claimed to DOJ, the bankruptcy court, and Congress that during 1983 DOJ officials frustrated or otherwise impeded their efforts to prove that plaintiffs had developed with INSLAWs funds enhancements to PROMIS that were not called for by the 1982 Contract. To the court’s knowledge, the nonjudicial inquiries have focused on DOJ’s actions or inactions, as opposed to plaintiffs’ a priori ownership interests. This court now resolves this threshold issue.

If plaintiffs fail, they may still be able to establish their equitable claim that the contract was administered in bad faith, specifically concerning INSLAWs rights under Modification 12 and concerning the withholding of computer center costs. Plaintiffs argue that the Project Manager on the 1982 Contract, C. Madison (“Brick”) Brewer, III, conspired to destroy INSLAW and its President and Chairman of the Board, William A. Hamilton; that Mr. Brewer and others frustrated and impeded INSLAWs efforts to complete the 1982 Contract; and that he and others hampered INSLAW with increasing administrative burdens, ultimately driving INSLAW into bankruptcy. The court must evaluate plaintiffs’ claims and decide whether DOJ committed any unjustified governmental act in administrating the 1982 Contract that damaged plaintiffs. Although the court considers this claim broadly, the parties limited the issues on plaintiffs’ claim of bad-faith contract administration to two identified issues — Modification 12 and computer center costs.

In rendering its decision on all of plaintiffs’ claims, the court must

adjudicate the issues that are in controversy; and it is the responsibility of the attorneys for the parties to select and present to the court those items of evidence which they regard as pertinent to the issues in controversy and as supporting their respective theories of the case.

H.R. Henderson & Co. v. United States 169 Ct.Cl. 228, 249 (1965). “[N]either testimony nor physical objects are evidence unless they are produced, introduced, and received in a trial.” 29 Am.Jur.2d Evidence § 3 (1994) (citing cases).

This ease is unique in that the underlying transactions occurred beginning 15 years ago. One key witness could not testify in person, 9 and time took a predictable toll on *330 the memory of other witnesses. A significant degradation in memory was admitted by witnesses who testified in the 1987 bankruptcy proceedings. The testimonial evidence would have been more probative had this court sat as trier of fact a decade ago. Through no fault of the Government, the court lacked that opportunity. Plaintiffs had elected what proved to be the wrong trial forum for the trial that was conducted in 1987. Nonetheless, the evidence was adequate to enable findings over a range of complex, interrelated, and contentious factual issues. This was due in large part to the quality of the advocates; the parties presented their best cases, and counsel deserve commendation for their advocacy.

I. PROMIS, INSLAW, and the Institute

After leaving the National Security Agency, where he worked as an intelligence analyst, Mr. Hamilton went to work for Peat, Marwick, Mitchell & Company, a public accounting firm. At Peat, Marwick, Mr. Hamilton primarily worked as Project Manager on a contract to develop computer software for the District of Columbia Superior Court Division of the United States Attorneys’ Office (the “DCUSAO”). Dean C. Merrill joined Mr. Hamilton on the project and became one of its principal programmers. While working on this project, Messrs. Hamilton and Merrill assisted in developing the Prosecutor’s Management Information System (“PROMIS”), described by Mr. Hamilton as “a computer software system for keeping track of criminal prosecutions, witnesses, police offieer[s], defendants, everybody involved in a case as it goes through the criminal justice system.” Dr. Randall Davis, defendant’s expert in computer software, described PROMIS as giving personnel in the prosecutors’ offices the ability

to collect, update, and retrieve the large amounts of information they collected concerning cases they were working on. The system allowed them to do such things as:

a) enter into a database information about a specific ease, such as name of defendant, name of prosecuting attorney, name of opposing counsel, charge, sentence, and so forth;

b) update that information as it changed;

c) print out the information in a consistent format for reporting purposes; and

d) obtain statistics from the database by extracting data, such as the number of arrests, the number of murder defendants, the caseload for a specific attorney in an office, and so forth.

John L. Gizzarelli, Jr., was managing the implementation of the PROMIS system for the DCUSAO. After approximately one year, the three men resigned and became contractors or consultants to “perfect” the PROMIS software. In January 1973 Mr. Hamilton, together with Mr. Merrill, who became Vice President for Systems (later Vice President for Marketing); Joyce Deroy, who became Vice President for Software; and Mr. Gizzarelli, who became Special Counsel, 10 founded the Institute for Law and *331 Social Research (the “Institute”). 11

The Institute was a not-for-profit Internal Revenue Code 501(c)(3) corporation, whose purpose, Mr. Hamilton explained, was to “repackage” the DCUSAO’s PROMIS “so that it could be distributed at no cost to local district attorneys’ offices throughout the United States” pursuant to contracts with DOJ’s Law Enforcement Assistance Administration (“LEAA”). As LEAA’s purpose was to promote state and local justice systems, approximately 90% of the Institute’s business came from “local, street crime prosecution offices, [and] state and local” government. Mr. Hamilton stated that the Institute did not distribute the software to the USAOs because the Institute developed the software pursuant to state-level LEAA funds, and the USAOs are federal offices. The 1982 Contract between the Justice Management Division (the “JMD”) and INSLAW, which is the subject of this litigation, was the first national effort to implement PROMIS in the US-AOs. Prior to the 1982 Contract, the USAOs used an internally-developed case management system.

LEAA awarded the Institute a “PROMIS transferability” grant in 1973. Under this grant the Institute was “to adapt PROMIS and make it available to the widest range of state prosecutors and courts.” The Institute won a second grant in 1976 that allowed it to reprogram PROMIS by 1) making it an “online” system, providing updated case monitoring, and 2) making PROMIS available on microcomputers.

The Institute conducted an EOUSA-spon-sored pilot/feasibility study examining the USAOs’ case management and information systems in 1979. The feasibility study also contained a “pilot project” under which the Institute was to automate two USAOs, San Diego and Newark, with computer-based PROMIS and install word processing-based PROMIS in two other offices. 12 Gregory A McKain, currently INSLAW’S Research and Development Manager, worked on that pilot study as a programmer. According to Mr. McKain, the San Diego and Newark offices received the LEAA PRIME version of PROMIS ported from INSLAWs PDP 11/70 computer.

In 1979 the Institute won another competitively awarded cost-plus contract, Contract J-LEAA-006-79. from the LEAA The contract was to run from May 1979 to May 1982; however, in 1980 after Congress decided to phase out the agency, LEAA notified the Institute that it could not continue the project for its third year beginning on May 15, 1981. 13 As described by one of INSLAW’s law firms 14 in a July 12, 1982 opinion letter to INSLAW,

Upon the cessation of LEAA funding, the Bureau of Justice Statistics ..., within the [DOJ], which assumed certain LEAA functions, undertook the administration of the LEAA contract. Although LEAA funding had terminated, the [DOJ], through the [EOUSA], transferred funds to BJS to enable it to continue the administration of the contract, so that INSLAW might adapt the software for additional purposes specified by the Executive Office. On December 24, 1981, the 1979 contract was modified. Instead of calling for generalized maintenance services as it had previously, the 1979 contract was revised to call for the development of five named, specified enhancements, of particular interest to [USAOs].

These enhancements became known as the “BJS enhancements.”

Mr. Hamilton sent a memorandum dated April 2, 1982, to one of INSLAWs attorneys. Attached to this memorandum was his “His *332 tory of Federal Funding for PROMIS Development,” which states:

At the time LEAA funding for PROMIS ceased, 54 PROMIS systems were fully operational in state and local agencies, 116 were actively in the process of transferring PROMIS, and 108 were planning to transfer PROMIS. The basic, prosecutor’s version of PROMIS had been adapted to serve the needs of courts, juvenile justice agencies, and on-line booking and jail management agencies. Use of the PROMIS technology had also spread to several provinces in Canada and to the Republic of Ireland.

Mr. Hamilton testified that at some point during the 1980s PROMIS had been distributed to Canada, Australia, Ireland, United Kingdom, Italy, other European countries, the Middle East, and the Far East. DOJ, through LEAA, had spent approximately $10 million to create and update the software. Without federal funding INSLAW faced a crisis, as Mr. Hamilton described the situation. In order to maintain PROMIS’ viability, the software required constant maintenance. According to Mr. Hamilton, IN-SLAW found alternative funding sources with state and local governments and invested about $150,000.00 of its own capital to sustain maintenance.

During fall 1980 Mr. Hamilton retained Roderick M. Hills and James F. Rogers, attorneys with Latham & Watkins, 15 to assist in organizing a for-profit corporation whose primary purpose would be to upkeep and upgrade the PROMIS software then operating at approximately 60 local district attorneys’ offices. This for-profit corporation would sell, as Mr. Hamilton recounted, “a proprietary upkeep and upgrade service to the ... local prosecutors, where I[NSLAW] would have the rights to the improvements that it made pursuant to those fixed-price contracts with them.” In essence, the newly-formed for-profit corporation would not sell the old PROMIS, but an upkeep and upgrade to the old PROMIS, which eventually became known as “Enhanced PROMIS.” 16

INSLAW also planned to market derivatives of PROMIS. Mr. Hamilton testified that INSLAW “intended to create derivative products from the enhanced version of PROMIS for trial and appellate courts, jails, municipal law departments, which are civil law departments for the entire administration of justice in a county level and for the legal departments of Fortune 500 companies.”

1. Formation of the for-profit corporation INSLAW

Before converting the not-for-profit Institute to the for-profit INSLAW, Mr. Hamilton met with his attorneys, Messrs. Hills and Rogers; the United States Attorney for the District of Columbia, Charles F.C. Ruff; and Deputy Attorney General Charles Renfrew. They discussed the potential incorporation of the Institute and informed the Government of the for-profit corporation’s marketing plans. Mr. Hamilton stated that Mr. Renfrew welcomed Mr. Hamilton’s efforts to sustain the PROM-IS software developed pursuant to the LEAA project. He claimed that Mr. Ruff expressed a similar sentiment. In January 1981 IN-SLAW purchased the Institute’s assets and was formed. “INSLAW did not pay anything for the PROMIS software because it was deemed to be in the public domain,” Mr. Hamilton wrote in a January 16, 1986 memorandum to one of his attorneys. 17 Mr. Ham *333 ilton was named President and Chairman of the Board and continues to serve in those capacities today.

2. Operations of INSLAW and the Institute

The Institute and INSLAW operated in much the same manner. Both companies performed work under competitively awarded cost-plus contracts from DOJ. Mr. Hamilton explained that “many of the LEAA contracting and auditing personnel who were involved in our contracts when we were at the Institute moved over to what’s referred to as Main Justice when LEAA was abolished, and many of them continued to perform similar functions with the for-profit I[NSLAW].” Prior to the contract at issue in this litigation, Messrs. Hamilton and Giz-zarelli claimed that the company had no significant negative dealings with DOJ.

INSLAW also performed work that the Institute faded to complete. The July 12, 1982 legal opinion continues:

After the May 15, 1981, cessation of LEAA funding, INSLAW delivered to the [DOJ] a copy of the software as it existed on May 15,1981, together with all associated documentation. That version was the version being employed by users of the software, since INSLAW had kept each user’s software up-to-date where requested by the user.

Included in the delivered software were three of the five BJS enhancements. The other two enhancements were “only partially developed when funding under the three-year contract ceased.” Because the Institute was unable to finish these enhancements within the timeframe and with the money provided, Mr. Hamilton testified that EOU-SA

provided through an interagency transfer of funds some money for [INSLAW] to do that work on the five BJS enhancements through an existing contract that IN-SLAW had been awarded by the now defunct [LEAA]. [INSLAW was] unable to *334 finish the work within the time, May ’81 to May ’82, and within the amount of money that the Executive Office transferred in the interagency transfer.

So the contracting officer, V[i]denieks, authorized us to finish the work under the PROMIS implementation contract which is this contract in this proceeding and to do it by finding economies in the implementation services which we could obtain because the new five BJS enhancements we believed would reduce the amount of IN-SLAWs labor when they went out to the [USAOs] to implement the software.

3. The 1982 Contract

DOJ, through the JMD, awarded IN-SLAW Contract No. JVUSA-82-C-0074 on March 16, 1982. The JMD administered the 1982 Contract. The contract was an incrementally funded, three-year eost-plus-incen-tive-fee contract with a target price not to exceed $9.612 million. Joan S. Lovelace was defendant’s expert in government cost analysis, with a speciality in software-type contracts. She explained that the contractor and the Government share the risks of contract performance. “The Government still has the risk that ... there will be a cost overrun that they will have to pay. But the contractor has the risk that he will not earn the fee that is designated as the target fee.”

The 1982 Contract essentially has three variable components: 1) It is incrementally funded, 2) reimburses costs, and 3) contains an incentive fee. In her expert report, Ms. Lovelace explained:

“Incrementally funded” means that, when I[NSLAW] and DOJ entered into the contract, the amount of money available to pay for the work required under the contract was less than the complete contract price.

The “cost-reimbursable” character of the contract means that I[NSLAW] would only be reimbursed for its actual allowable costs allocated to the performance of the contract work. These costs would be determined through audit procedures.

An “incentive fee” contract uses an adjustment of fee to motivate the contractor to effectively manage costs (FPR 1-3.405-4, FPR 1-3.407, and FAR 16.402-1, FAR 52.216-10). The incentive fee was a formula-based determination where I[NSLAW] would earn a “target fee” of 8% of its actual costs (to the extent allocable and allowable) if those costs were equal to the original contract “target cost”— which was $8,900,000 — or to the “target cost” as increased (or decreased) by modifications to the contract____ I[NSLAW]

would increase the percentage of fee earned if actual costs were below the contracted “target cost.” Conversely, I[NSLAW] would lose a percentage of fee if its actual costs exceeded the contracted “target cost.” ... Under this type of fee structure, the contractor risks losing fee if it does not manage its costs.

(Footnote omitted.) The JMD contracting officer was charged with overseeing all three aspects of the contract.

The contract required INSLAW to customize, prepare, and install PROMIS case-tracking software in various USAOs and in the EOUSA. Specifically, INSLAW was to install: 1) the computer-based PROMIS software in EOUSA headquarters and in the 20 largest USAOs 18 and 2) a word-processing program designed to function like PROMIS in the remaining smaller USAOs. 19

DOJ was to furnish the hardware for the contract and ultimately selected PRIME computers for the 20 largest USAOs and Lanier word processors for the remaining USAOs. Pending on-site installation of the PRIME computers, the 1982 Contract required INSLAW to provide ten USAOs with access to its computer-based software via a “time-sharing” arrangement on one of its VAX computers located in Lanham, Maryland.

*335 The contract provided that INSLAW must base the PROMIS developed for the 1982 Contract on the pilot study version of PROMIS. The pilot study project used computers with 16-bit technology. Under the 1982 Contract, INSLAW was required to use VAX and PRIME computers that had 32-bit technology. In short, INSLAW was to perform the 1982 Contract using software based on the 16-bit technology developed in the 1979 pilot study and install it in computers with 32-bit technology. The word-processing portion of the 1982 Contract, as well, was to be based on the pilot study.

In addition to basing the software developed in the 1982 Contract on the pilot study, INSLAW undertook other requirements. First, INSLAW was to add to the PROMIS software the five BJS enhancements that were still in the developmental stages. Second, INSLAW was required to develop software and procedures for converting data from the USAOs’ docket ánd reporting systems to the PROMIS database. Third, IN-SLAW was to tailor the PROMIS developed to meet the demands of each USAO, provided the tailoring did not alter the base version of PROMIS by 25%. INSLAW also committed to perform an annual retailoring or restructuring of the PROMIS databases. In so doing, INSLAW also was required to reformat the existing records within the databases or the PROMIS program would not function properly.

II. Proprietary enhancements

At a meeting on February 4, 1983, DOJ officials learned that INSLAW was using allegedly proprietary enhancements in its performance under the 1982 Contract. DOJ officials immediately requested INSLAW to identify those enhancements. Since then, INSLAWs claims of proprietary enhancements have varied. In a submission to DOJ dated April 5, 1983, INSLAWs government contracts counsel, Harvey G. Sherzer, claimed in excess of 800 proprietary enhancements. This number dropped to 251 discrete enhancements plus four major enhancements on April 12, 1983, in connection with another submission to DOJ from Mr. Sherzer; it then skyrocketed to more than 1,000 on June 9, 1986, in connection with INSLAWs complaint in the bankruptcy proceeding. This number dropped to 97 discrete and three major enhancements on August 4, 1995, in connection with plaintiffs’ complaint in this proceeding, and then increased to 106 discrete and three major enhancements in connection with their pretrial filings on January 30,1997. Although Mr. Hamilton posits that these fluctuations can be attributed to the use of different methods in accounting for the degree of INSLAWs enhancements, the attorney who worked on the bankruptcy complaint, Mr. Conway, testified that the number of enhancements was less than 200.

1. What types of enhancements did IN-SLAW make?

INSLAW began to develop enhancements to the PROMIS software using private non-government funds beginning in May 1981. These enhancements took two forms: discrete and stand-alone enhancements. Whereas discrete enhancements are “sewn inside” the existing PROMIS code, standalone enhancements add functionality and are “hooked-on” to the PROMIS code. As described by Mr. Hamilton, the stand-alone enhancements are not “loaded on to a computer with the PROMIS application, [but] kept ... on the shelf and use[d] ... when” needed. Plaintiffs claim that they made three stand-alone enhancements to PROMIS: 1) port to VAX, 2) batch update, and 3) database adjustment.

1) Pori to VAX

Mr. Hamilton explained that “I[NSLAW] used the 1970s generation of Digital Equipment Corporation [ (“DEC”) ] computers for its software development during the 1970s.” The computers were called PDP ll/70s, and had a 16-bit architecture machine, “which means that you could process data inside the computer in increments of 16-bits, which is a computer measurement.” Mr. McKain, IN-SLAWs Research and Development Manager, testified that the 16-bit architecture is “an indication of how much the computer can keep track of at any one point in time. It’s known as a 16-bit address. So you have that much space. The computer basically does one thing at a time, and it has to know where *336 to do it, where to get the data from. That’s contained in a 16-bit register.”

During the 1980s the 16-bit PDP ll/70s were superseded by 32-bit architecture machines, such as the VAX 11/780 and PRIME 550. INSLAW had three of these VAXes. With these machines Mr. Hamilton considered

that the VAX would enable [its] customers to do things with [its] software that they could not do. during the 1970s, and to execute commands at much greater speed than you execute commands on a 16-bit architecture machine. And because you wouldn’t have the delay in performance, you could attempt to get additional logic into the software to do more things, more features and more functions, and make the system easier to use for the customers.

In order to take advantage of the VAX’s additional capabilities, however, Dr. Thomas G. DeLutis, plaintiffs’ expert in information technologies, testified that “certain structural components of PROMIS would have to be rewritten in order to be able to simplify the software and make its operation more efficient.” Availing itself of the VAX technology, INSLAW “ported” 20 the PROMIS program from its existing DEC PDP 11/70 to the VAX. INSLAW took the LEAA PDP public-domain version of PROMIS and transferred it to the VAX sometime between June 1981 through September 1981. Marion Mullins Holton, then INSLAW’s Director of Systems and Software, testified at the 1987 trial, see supra note 9, that INSLAW did not utilize private funding, labeled the project research and development, and charged the costs to the computer center.

Up until this point, the master version of PROMIS ran on the 16-bit PDP 11/70. After the port, the 32-bit VAX version became the “master copy” and was used for research and development, maintenance, and time-sharing services for the USAOs under the 1982 Contract. Ms. Holton also testified that all of INSLAW’s software application systems are developed “using the same software. We maintain one version and develop those different database applications using that same software.” Thus, once INSLAW adopted the VAX version as its master version of PROMIS, it became the sole version. 21 Every witness addressing the subject other than Mr. Hamilton testified to this effect. Thus, to use any other version of PROMIS in implementing any contract would cause INSLAW considerable time and expense. Because INSLAW maintained the VAX version for upkeep, corrections (or “bug fixes”), and maintenance, no other version was retained in such error-free condition, as vouchsafed by Ms. Holton.

Ms. Holton’s testimony established the following: Although the 1982 Contract called for a PROMIS version in which the Government would have unlimited rights, INSLAW used the VAX version of PROMIS to create the version required to be installed on the government-furnished PRIME computers. INSLAW used the VAX version, not the earlier pilot version, because the differences between the PRIME computers selected by the Government and the VAX version were not as extensive. Moreover, keeping one master decreased INSLAWs maintenance costs. When INSLAW ported the VAX to the government-furnished PRIME computers, everything that had been done on the VAX was transferred to the PRIME, whether or not DOJ requested the additional programming.

Ms. Holton acknowledged that INSLAW could have ported the pilot PROMIS version from the PDP to the PRIME. It may not have been as efficient; INSLAW would have *337 needed to add all bug fixes reported by DOJ, the BJS enhancements, and the docket and reporting conversion (“D&R”) 22 and have needed to tailor 23 the software to each USAO. In fact, Mr. McKain testified that he was not certain that the BJS enhancements or the docket and reporting data could be added to the pilot version. Although both Mr. McKain and Dr. DeLutis testified that INSLAW should have been able to use the 16-bit program on the 32-bit machine, it would not run as efficiently.

Mr. McKain explained the process by which INSLAW took the LEAA public-domain version of PROMIS, ported it to the VAX, and then ported the VAX version to the PRIME computer. INSLAW made this decision deliberately and conscientiously for the ease of its programming. Ms. Holton testified:

Q: So it was INSLAW, in effect, that in creating the PRIME version of PROMIS for the [EOUSA] in connection with the 1982[C]ontract, determined or decided to make that PRIME version of the software out of its VAX version, as opposed to using a different version of PROMIS that was being utilized in the San Diego [USAO]?

A: It was our decision because the earlier version was so different.

Q: Do you know whether anyone at IN-SLAW asked the Government whether they wanted INSLAW to make the PRIME version out of the VAX version?

A: I believe that we were reimbursed for that port, and the most cost-effective way was to start with the VAX version because it was more compatible with the newer PRIME compiler.

Q: In fact the Government paid to have the version of PROMIS ported from the

VAX version to the PRIME version, didn’t it?

A: Yes. They paid for a port. I don’t know that they knew that it came from the VAX.

Q: I see. So you’re not even sure if the Government knew what source of the port was?

A: I would imagine that Jack Rugh [Jack S. Rugh, Assistant Director, EOUSA Office of Management Information Systems and Support] knew. I don’t know beyond that. But I don’t know.

Q: Now with respect to this port to VAX that you’ve testified about, that was privately funded, wasn’t that port to VAX in fact charged to INSLAW’S computer center?

A: Yes, it was.

Q: And do you know whether or not— that isn’t an R & D account, is it?

A: No. It was just a source of funding, but the project itself was R & D because it was a software project, a software division project.

Q: So basically, that project was funded out of INSLAW’s computer center — in other words, a port to VAX was funded out of INSLAWs computer center?

A: The funding came from the computer center, yes.

Thus, INSLAW ported the PDP 11/70 version of PROMIS to the VAX, charging the costs to the computer center, which was supported by DOJ funding, and then deliberately chose to port the VAX version to the PRIME, using DOJ funding, because it was cost effective.

*338 2) Batch update

Mr. Hamilton explained that the “batch update subsystem is designed to take data that are in a different computer system[s] and input those data in a batch. That’s where the name batch comes from.” Batch update is a “generalized subsystem that can be used irrespective of how many different ways you have tailored PROMIS. Or how many different ... pre-existing computer systems you’re taking data out of.” Ms. Holton described batch update as allowing a user to add computerized information to an existing database in batches; therefore, the user is relieved from having to enter data manually. Mr. McKain testified:

Batch update is an I[NSLAW] tool that it allows for pseudo-code or simple instructions to be inserted, and those instructions are then translated by a generator to provide the proper interface to I[NSLAW]’s edit manager program and database manager program. So it relieved the need for a programmer to code a stand-alone interface to those programs or to write a program from scratch to read docket reporting data and to include it into the PROMIS database.

INSLAW licensed this product for both single and multiple uses. INSLAW claims that this program was developed pursuant to a contract with the New York City Law Department, and, according to Mr. McKain, it existed prior to INSLAWs work on the 1982 Contract.

INSLAW used the batch update system in its contract performance. Mr. McKain testified that “INSLAW used the batch update program for each one of the 20 [USAOs] in which INSLAW installed PROMIS. IN-SLAW used the batch update program to transfer data from the Government’s computerized Docket and Reporting database for each of these offices to the PROMIS data base.” He took the position that INSLAW did not need to use the batch update system for the 1982 Contract, but

could have written something from scratch, either to, I guess the most basic level would have been just to write the date to PROMIS, but that would have required extensive knowledge of the proprietary da-

tabase structure and the pointers that are used in the PROMIS database.

As a level tip from that, you may have written your own interface to our edit and update manager programs. That would entail satisfying a dozen or so parameters required for each call of the program, and those things the batch update did automatically.

None of these alternative methods would have been as easy, efficient, or cost effective as running INSLAW’s batch update system.

3) Database adjustment system

Mr. Hamilton wrote to one of INSLAW’s attorneys on January 27, 1986, explaining that INSLAW used “the data base adjustment program to reorganize the data bases for the 10 U.S. Attorney’s Offices on time-sharing to the data base designs requested by the Government for the in-house computer versions of each of these 10 offices.... ” Essentially, database adjustment (“DBA”) refers to “rewriting the data base when its structure changes as ‘Data Base Adjustment’ in PROMIS,” according to Dr. Davis. Mr. Hamilton explained in his January 27 letter:

The data base adjustment program makes it possible to convert a data base developed in one version of PROMIS, i.e., in a version of PROMIS that was ‘tailored’ to a particular set of specifications, to a new PROMIS data base design, i.e., to a version of PROMIS that was ‘tailored’ to a different set of specifications.

Ms. Holton provided an example. If a person wants to expand an address in her address book that includes a person’s name, address, and phone number so that it also includes the person’s zip code, she would use database adjustment. DBA would realign the entries of the address book and create a field for zip code entry.

The use of this program was essential to the project. Indeed, Ms. Holton admitted that the 1982 Contract “called for data base adjustment as part of the task for each of the offices that were [operating] on the [VAX] equipment and for the two automated types and pilot project.” Furthermore, INSLAW stated that it would use its proprietary DBA *339 program in performing the contract. IN-SLAW represented in its Technical Proposal for the 1982 Contract, which was incorporated into the contract by Art. I 6: “INSLAW will adjust the original data by utilizing its proprietary DBA software so that all previously entered data conforms to the new design.”

4) Discrete enhancements

Mr. Hamilton explained that discrete enhancements are also known as “sewn in” enhancements. “These enhancements either make the base software application of PROMIS easier to user, or they introduce new features and functions into it, or they make it operate more efficiently, faster on the computer; usually one of those three things.” INSLAW made these enhancements from May 1981 through the third quarter of 1984, and plaintiffs claim a total of 106 discrete proprietary enhancements in this litigation.

INSLAW determined that these enhancements were proprietary by examining the PROMIS source code and tracing the contemporaneous documentation to which the source code leads. The document trail, however, fails to link the change number for a claimed enhancement to an account or charge code to which INSLAW billed work. When Ms. Holton testified in 1987, see supra note 9, she had been associated since 1980 with PROMIS, the Institute, and INSLAW. She has a unique understanding of the inner-workings of the company. Plaintiffs rely on Ms. Holton’s unique corporate perspective in an attempt to prove that plaintiffs’ claimed enhancements are proprietary.

2. How did INSLAW protect these enhancements?

To maintain the confidentiality of its alleged proprietary enhancements, Mr. Hamilton claimed that INSLAW “fixed a copyright legend to the source code and ... documentation”; “entered into licensing agreements with the customers,” obliging them to maintain the source code as a trade secret; and “entered into” employer-employee “non-disclosure and confidentiality agreements.” IN-SLAW had such a confidentiality agreement with the Land and Natural Resources Division of DOJ.

Mr. Hamilton claimed that the copyright legend “was included every time [INSLAW] furnished [PROMIS] to anyone.” The legend details the year the changes were added, the latest year changes were added, and the copyright year. The copyright is “entered into the source code itself and it’s also affixed to the documentation for the software.” Mr. Hamilton did not know, however, if a copyright existed for any, or all, of the claimed proprietary enhancements at issue in this case, and Dr. DeLutis testified that he only found copyright notations in a “select number of modules.”

Mr. Hamilton admitted that INSLAW had entered into contracts that contained provisions giving customers, not INSLAW, ownership of the software that INSLAW produced. Mr. Hamilton could not specify the number of such contracts in existence; rather, he stated that he had examined the contracts at issue in the 1987 trial and their various data rights clauses and determined that an enhancement was created pursuant to federal funding. He caveated: “I can’t be sure that I caught everyone [sic] of them. I read a lot of them. We’re talking about over a hundred contracts, I think.”

INSLAW’S then attorneys discovered at least three of Mr. Hamilton’s oversights when they started to review the contracts, examining the data rights clauses. Mr. Hamilton testified:

[INSLAWs counsel] advised us there were approximately — excuse me. I’m going from broad recollections now. It is my recollection that out of approximately 100 contracts that they looked at, there were three of them that had data rights clauses, federal data rights clauses. And I had missed all three of them because all although I understand the concept, I was not expecting with our state and local, these are state and local government contracts, I was not expecting [the] Federal Government to insert itself through those data rights clauses. I forgot about how that happened sometimes that federal funds are passed from the Federal Government to a state or local government.

*340 These errors occurred because Mr. Hamilton had failed to note that local governments in those instances were funded by federal funds. Ten years later INSLAW still had not culled out the contracts that utilized federal funds, and failed to produce a considerable number of these contracts in discovery. Nevertheless, Mr. Hamilton was of the view that, because of the close relationship between INSLAW and DOJ during the relevant time period and because DOJ personnel knew the cognizant INSLAW personnel, any omissions or inconsistencies should not be cited as a failure of proof. While not discounting plaintiffs’ evidence, the record does not reveal which program modules INSLAW copyrighted, which program modules are subject to data rights clauses, or which program modules were funded privately or whether INSLAW retained data rights in the missing contracts. INSLAW produced many of the contracts, but it is presenting a copyright claim, and, unfortunately, Mr. Hamilton’s testimony is insufficient to establish that claim. See J. Thomas McCarthy, McCarthy’s Desk Encyclopedia of Intellectual Property 355 (2d ed.1995) (quoted supra note 17).

Assuming that INSLAW held copyrights to the claimed enhancements, plaintiffs insist that “copyrights for software developed by a private contractor with funds provided by the United States will inure to the contractor rather than the government.” Plfs’ Br. filed Jan. 30,1997, at 14. 17 U.S.C. § 105 (1994), allows the Government to hold a copyright transferred to it by contract. See M.B. Schnapper v. Foley, 667 F.2d 102, 109 (D.C.Cir.1981) (‘Without laying down a broad rule, we are reluctant to cabin the discretion of government agencies to arrange ownership and publication rights with private contractors absent some reasonable showing of a congressional desire to do so.... Section 105, therefore, is not ... subverted by assigning to the Government the copyright in a commissioned work that is neither produced by current or former employees nor related to the official duties of any Government employee.”) (cited with approval by Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 , 443 n. 23, 104 S.Ct. 774 , 789 n. 23, 78 L.Ed.2d 574 (1984)). Such is the effect in this case of Clause 74(b)(1), the Unlimited Rights Clause. See 17 U.S.C. § 106 (stating that owner with exclusive rights may “reproduce the copyrighted work,” “prepare derivative works based upon the copyrighted work,” and “distribute copies ... of the copyrighted work to the public”).

James F. Kelley, INSLAW’s former General Counsel, negotiated the 1982 Contract for INSLAW. Mr. Kelley was called as a defense witness. Mr. Hamilton fired Mr. Kelley, and the witness left INSLAW’s employ in November 1982. This circumstance was explored fully at trial. The court carefully observed this witness, scrutinized his testimony, and could discern nothing but candor and equanimity in this witness. There were no hard feelings; he is not a disgruntled former employee. Mr. Kelley was straightforward in his testimony that DOJ negotiated for unlimited rights in the PROM-TS software to be installed and “that’s'what we gave them.” 24

3. Did plaintiffs prove that INSLAW had propriety rights in its claimed enhancements?

Plaintiffs rely on the methodology developed by Dr. DeLutis, Ms. Holton, and Bellie Ling, INSLAWs former Chief, Accounting System and currently its Controller, to prove that 1) plaintiffs created proprietary enhancements; 2) that INSLAW had sufficient non-federal funds to cover the costs of the enhancements; and 3) that those non-federal funds can be linked to specific proprietary enhancements. The court found Dr. DeLutis and Ms. Ling to be credible witnesses. Both witnesses testified in an honest and forthright manner; however, they made several assumptions in their analyses. These assumptions do not withstand scrutiny. The *341 analysis of Ms. Holton is riddled with ambiguities and guesswork, which plaintiffs term “institutional knowledge.” Institutional knowledge may be taken into account, but Ms. Holton’s analysis requires that the court bridge evidentiary gaps in order to justify plaintiffs’ claim of proprietary enhancements. While noting that Dr. DeLutis found her assumptions reasonable, the court must take exception for three reasons: 1) the thorough analysis undertaken by Dr. Davis, see infra at 79, as opposed to the limited analysis for which Dr. DeLutis was retained; 2) the nature of the task INSLAW assigned to Dr. DeLutis; and 3) the fact that INSLAW planned prior to submitting its response to the Request for Proposals to “make available,” ie., include without informing DOJ, proprietary enhancements in DOJ’s software. INSLAW knew prior to execution of the 1982 Contract that it must be prepared to prove its proprietary enhancements if it wanted to receive payment for them. This fact, known uniquely to INSLAW, is the centerpiece of plaintiffs’ claims.

1) Ms. Ling’s analysis

Mr. Hamilton testified that INSLAW developed proprietary enhancements from

the revenue from the fixed price software upkeep and upgrade contracts that we began entering into in May of 1981; mostly with state and local governments, but over time with some federal agencies as well. And it would have been the venture capital that came into the company, the 750,000, approximately, in May of 1983. It would have been the money provided by computer hardware manufacturers so that the software could be demonstrated effectively on their machines. It would have been capitalized R&D work if the company would have been' — retained profits.

In total Mr. Hamilton estimated that IN-SLAW had approximately $7 million available to create enhancements.

According to Mr. Hamilton, the funds for the port-to-VAX and DBA stand-alone enhancements came from his and his wife’s capital; Mr. Merrill’s and his wife’s capital; capitalization of research and development costs; venture capital; contracts with computer hardware manufacturers; and loans with commercial lending institutions. He stated that INSLAW also had funds available through a line of credit established with First American Bank in Washington, DC, for $750,000.00, although by May 1981 this line of credit had been fully utilized. Once EOU-SA awarded INSLAW the 1982 Contract, the Bank of Bethesda assumed the First American line of credit and increased it by $500,-000.00 to $1.2 million. Thus, by increasing its line of credit, INSLAW increased its available funds.

Mr. Hamilton maintained that some of the funds for INSLAW’s claimed enhancements came from contracts with computer hardware companies, e.g., IBM and Burroughs, which wanted INSLAW to use their hardware to “show off” its capabilities. Mr. Hamilton, however, could not remember the dates of the contracts, nor did he know if the contracts had been turned over to DOJ during discovery.

Interestingly, Mr. Hamilton’s testimony is contradicted directly by Ms. Ling. If the court were to credit Mr. Hamilton’s testimony, it would be required to find that IN-SLAW had insufficient income to cover the costs of all of the discrete enhancements and two stand-alone enhancements, the DBA and batch update enhancements, for the period beginning May 1981 and ending March 1985. Ms. Ling testified that the costs of all of INSLAW’s enhancements for that time period, excluding the port-to-VAX enhancement, totaled $8,328,883.00, whereas Mr. Hamilton approximated INSLAW total available capital at $7 million. Any discrepancy is overlooked because plaintiffs’ position, through Ms. Ling, was that a total of $12,998,076.00 in revenues was available from private sources, which she characterized as “Private Funding Sources.”

Ms. Ling utilized INSLAW’s general ledger and the reports generated therefrom, ie., the project or cost control reports. She then determined whether the monies to support the project or the costs incurred on that project were Federal Government or private (including state or local governments) based upon the name of the contract. Ms. Ling’s minimal analysis of the contractual data *342 rights clauses renders her analysis highly questionable. Only occasionally did she review the actual contract or the data rights clauses in examining whether any federal monies paid for the enhancements developed. In fact, no one at INSLAW considered whether federal funds paid for work under a non-federal contract.

Q [By defense counsel]: And by the way, while we’re on the subject of cost codes, isn’t it also true that I[NSLAW] did not even track whether its non-federal customers were paying with federal funds?

A [By Murray W. Hannon, INSLAWs then Controller]: That’s true. If the State of New York received a grant, we did not check with them as far as the source of their funds. As far as we were concerned, they were New York State funds.

The failure to go to the contract represents a significant omission in INSLAW’s analysis.

Ms. Ling utilized PX 224, a document created by Ms. Holton that lists all of INSLAWs proprietary enhancements to the PROMIS program through the agreed-upon cut-off date of June 7, 1984. See INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X (Fed.Cl. Nov. 8, 1996), amended by INSLAW, Inc. v. United States, Cong. Ref. No. 95-338X (Fed.Cl. Feb. 21, 1997). Ms. Ling examined that exhibit to determine the date of implementation of the last claimed proprietary enhancement. Thus, she could determine within which time period INSLAWs revenues and expenses should be examined. Once Ms. Ling determined the relevant time period, she then calculated INSLAWs direct and indirect expenses for all non-federal government customers related to enhancements and codified her results into a summary sheet introduced into evidence as PX 230A. Her worksheets were introduced as PX 230B.

Ms. Ling then attempted to show that sufficient private funding was available to cover the costs of INSLAWs claimed proprietary enhancements. Thus, Ms. Ling created a second summary sheet, PX 231, detailing INSLAWs private funding sources and the amounts from each source. For purposes of explaining the summary sheet, plaintiffs labeled Ms. Ling’s worksheets and copies from INSLAWs general ledger exhibits as PX 231B and 231C, respectively.

Although plaintiffs produced the summary sheets to defendant, they failed to supply all of the underlying documentation, including approximately one third of the underlying eontraets/agreements. The court therefore excluded the evidence under Fed.R.Evid. 1006 as the “originals or duplicates [were not] made available for examination or copying, or both, by parties at reasonable time and place.” However, the court did allow plaintiffs to proceed with the examination of Ms. Ling and to introduce the documents as an offer of proof under Fed.R.Evid. 103(a)(2).

INSLAWs expenses relating to enhancements are detailed in Ms. Ling’s charts, PX 230 and PX 230B, which identified nine categories of funding: 1) maintenance subscribers; 25 2) technical service contracts for non-federal government customers; 3) license sales; 4) stockholders’ contribution; 5) advances from two law firms; 6) advances from computer hardware companies; 7) increase of borrowing; 8) increase of other payables; and 9) earned management fees.

Plaintiffs took the position that INSLAW developed the enhancements listed on PX 224 between May 1981 through March 1985 from private, non-federal funds. Ms. Ling divided her analysis into three time periods: May 1981 through February 1982; March 1982 through September 1984; and October 1984 through March 1985. Although the date of the last claimed proprietary enhancement in this case was June 7, 1984, Ms. Ling explained that she went beyond the cutoff date because INSLAW performs other cost-incurring functions on a program after its completion date and must accumulate enhancements prior to doing a release, 26 which *343 also increases INSLAW’S expenses. 27 Ms. Ling further testified:

The cost related to the enhancements it’s not just the direct salary dollars and other direct dollars such as the expenses for travel. And also we have allocation, cost allocations, fringe benefit allocation, and indirect allocation and a computer center allocation. Those cost allocations, we — the actual allocations run like each fiscal year after the year end closing, then we run the actual cost allocation. So usually it’s not that, like we can cut off that day and say the work’s done and every cost is already recorded. According to our accounting procedures system, there’s no way we can do that.

Because INSLAW released the PRIME version of PROMIS after June 7, 1984, to at least some of the USAOs, some of the costs extending past June 7, 1984, properly are considered in the cost of an enhancement.

INSLAW did not incur any research and development costs until March 1982, the month the 1982 Contract was signed by IN-SLAW and DOJ. All of INSLAW’s research and development costs were incurred after the 1982 Contract was signed. This begs the question: To what enhancements were the research and development costs applied, considering that DOJ constituted approximately 75-80% of INSLAW’s business, as Mr. Hamilton estimated.

Problems surfaced with the underlying documentation for Ms. Ling’s summary exhibits. First, PX 230, Ms. Ling’s analysis of costs INSLAW incurred relating to enhancements in connection with non-federal government contracts, represents a much broader universe than the enhancements involved in this proceeding. Ms. Ling included monies received for specific enhancements which may or may not have been included in the PRIME version of PROMIS at issue in this case. Indeed, Ms. Ling did not know what enhancements were at issue in this litigation. When Ms. Ling calculated INSLAW’s incurred costs for privately-funded enhancements, she did not know which change numbers on PX 224, the list of enhancements, were covered by the total $8.3 million in costs for all enhancements. She did not know how much the changes listed on PX 224 cost.

Ms. Ling’s reliance on the general ledger may also have been misplaced. The general ledger denotes all financial transactions; however, the accuracy of the statements in the general ledger must be verified. Ms. Ling’s testimony merely related that a transaction occurred, not the accuracy of the underlying transaction. For example, DX 223 is one of Mr. McKain’s time sheets. A time sheet does not contain a space to indicate what work was done during the time period specified; it merely states that work was done and lists a charge code. Thus, one cannot determine whether an expense was associated properly with a charge code. Ms. Ling admitted that “I[NSLAW]’s accounting system would not have the cost for each change, but ... there may be some indication that this is for a particular enhancement or particular* bug fixes.” The problem arises where no indication of the correlation exists.

Ms. Ling could not testify as to how much of the total funds available covered IN-SLAW’s expenses for privately-funded enhancements. She ignored all of INSLAW’s other expenses and the funding sources for those expenses. She also could not testify as to which software changes related to the almost $12 million of expenditures for contracts with the Federal Government.

Ms. Ling did not factor the port-to-VAX enhancement as part of her analysis. She stated:

I believe the reason we didn’t include it as the cost for port to VAX, ... VAX port was charged to computer center during the May ’81 through October ’81. And at the time I — personally, I don’t know why that was charged to computer center. But at this time we cannot extract how much exactly, you know, related to the VAX port. So I did not include that cost in my cost incurred table.

*344 Other problems with the underlying documentation surfaced. Defendant established that INSLAW failed to produce approximately 120 maintenance contracts. Ms. Ling testified that INSLAW did not always get a maintenance agreement signed by the customer, but there should be at least one signed contract on record. When defense counsel represented that 120 cash receipts did not have an underlying contract to which each could be traced, Ms. Ling was not surprised. Rather, she stated that INSLAW had documentation to prove that it received the payment and that at least one contract with a customer should be on file.

Despite Ms. Ling’s best efforts, some of the contracts containing provisions that they would be paid for with federal monies were included in INSLAW’S count of private funding. For example, a maintenance agreement with the State of Hawaii stated that its funding source was “Federal Grants,” but Ms. Ling included it in her summary sheet as private funding. Defendant also demonstrated that several of the technical service agreements were missing, making it impossible for defendant to analyze INSLAWs data rights clauses with other customers. Examination of these clauses would have confirmed whether INSLAW had a proprietary interest in an enhancement or whether the contract was paid for with any federal monies. For example, to demonstrate the private funding for its proprietary enhancements, INSLAW introduced its contract with AT&T Communications, Inc. This contract makes all software deliverable under the contract AT&T Communications’ exclusive property. Without engaging in guesswork, the court cannot discern, based on Ms. Ling’s exhibits, whether the enhancements developed pursuant to the AT&T Communications’ contract are claimed as proprietary to INSLAW in this proceeding.

Ms. Ling included a contract from the State of Alaska on her list of privately-funded contracts. Article 13 of this contract provides:

All designs, drawings, specifications, notes and other work developed in the performance of this agreement are and remain the sole property of the State of Alaska and may be used by the State for any other purpose without additional compensation to the Contractor.

Ms. Ling did not know what work was performed pursuant to this contract. Once again, the court is at a loss.

Defendant also drew the court’s attention to a contract between INSLAW and the City of Detroit. That contract provides:

The parties acknowledge that should the performance of this Contract result in the development of new proprietary and secret concepts, method, techniques, processes, adaptions, discoveries, improvements and ideas, same shall be promptly reported to the City, belong solely and exclusively to the City without further consideration and without regard to the origin thereof, and the Contractor will not, other than in the performance of this Contract, make use of or disclose same to anyone. At the City’s request the Contractor shall execute all documents and papers and shall furnish all reasonable assistance requested in order to establish in the City all right, title and interest in such inventions, discoveries and improvements or to enable the City to apply for United States patents thereon, if the City elects to do so.

This contract was included in Ms. Ling’s analysis of funding, and Ms. Ling did not know if any of these enhancements were listed on PX 224. Nevertheless, Ms. Ling recalled that INSLAW might have rejected this contract in bankruptcy court. Despite her misgivings about the contract, INSLAW included it as a source of funding.

INSLAW also could not provide several underlying contracts with technical service agreements. Ms. Ling explained:

Yeah, see, it’s my understanding, you know, some of the customer have bought not just one license, but, you know, two or three different licenses. Then in accounting record we have to record, you know, license sales for PROMIS, license sale for DOCKETRAC, or, you know, whatever. Then — but it’s under one contract. So that’s why I’m saying, you know, could be one entry has document available, and that could also cover couple other entries. [L]ike the New York JJIS, I think I — I’m *345 talking about New York Juvenile Justice, I remember they had another contract somewhere in here. They bought, you know, two or three different licenses[ ] like SCREENPAC, and let’s see, the PROMIS.

This may be true, but INSLAW must demonstrate that an underlying contract, letter, or some memorialization exists. Although Ms. Ling also testified that INSLAW had money for developing privately-funded enhancements from a stock transaction, she testified that the transaction was “before [her] time.” INSLAW failed to provide any documentation underlying this assertion.

INSLAW also failed to furnish proof for some of its claimed funding from law firms. Of the $460,000.00, a $100,000.00 cash receipt from Milbank, Tweed, Hadley & MeCloy was missing. Ms. Ling testified that the sum was “an investment that the two law firms made to I[NSLAW] for I[NSLAW] to develop the software.” However, these advances were for contracts to provide certain services for Sullivan & Cromwell and Milbank, Tweed. The money furnished pursuant to these contracts was not for general software development, but payment for work pursuant to a contract.

Ms. Ling also cited a contract between INSLAW and AT&T Information Systems as a funding source. This contract, however, was not entered into until after the date of the last claimed enhancement. Although IN-SLAW may have expenses relating to enhancements completed on or before June 7, 1984, funding for enhancements pursuant to contracts subsequent to June 7, 1984, is not probative of whether INSLAW had sufficient funding to develop proprietary enhancements on a prior date.

Plaintiffs also claimed that INSLAW increased its borrowing to get more funds for enhancements. Although they introduced copies of general ledger transactions to demonstrate the occurrence of the loans, plaintiffs did not provide copies of the notes demonstrating the debts. As defense counsel stated: “[T]here is no way of knowing what the purpose of these loans were for; if they were for particular software development, if they were to pay their bills generally, if they were to pay their rent or their payroll or any other circumstance, Your Honor. The purpose of the borrowing has never been testified to.”

Plaintiffs add that INSLAW had money to spend from earned management fees, most of which INSLAW earned pursuant to contracts with the Federal Government, specifically the 1982 Contract. Ms. Ling explained that any of the money earned from the EOU-SA contract with respect to INSLAWs fee may be utilized for whatever INSLAW wishes.

After the conclusion of Ms. Ling’s testimony, the court ruled:

On Friday, I admitted Ms. Ling’s testimony with respect to Plaintiffs’] 230 and 231, and that would include 230B and 231B as well, under Federal Rule of Evidence [103(a)(2) ], offer of proof____

The direct examination of Mr. Tomlinson and the cross-examination of Mr. Rivera were very helpful in learning more about both these documents. Mr. Rivera has renewed his objection to the evidence, which isn’t necessary because they had been excluded. However, now is the time when I either revise or reaffirm my earlier ruling.

I am going to revise it. I am going to admit Plaintiffs’] Exhibit 230 and 230B. The problems that have been identified go to the weight, not the admissibility of this document.

With respect to Plaintiffs’] 231, I am revising the ruling. I am finding some of it excludable. There are additional problems with the weight to be accorded this exhibit. However, for purposes of exclud-ability based on Mr. Rivera’s cross-examination, there were insufficient contracts or other backup information required under the Court’s order of February 21, 1997, with respect to the following categories: technical service contracts, stockholders contribution, $100,000 of the advances from two law firms, and increase of borrowing. Those amounts must be deducted from the $12,988,076 that is the total available listed on Plaintiffs 231.

The specific deletions are: For technical service contracts, $3,405,334; for stock-

*346 holders contribution, $814,866; $100,000 deleted from the amount in Category 5, advances from two law firms; and $1,128,-129 deleted from No. 7, increase of borrowing.

The Court is aware that the effect of these deletions is to make the total available in the order of $1 million less than the total reflected on Table 1 of Plaintiffs 230, the privately funded expenditures by time period. However, that is the consequence of the ruling, and the other problems noted by Mr. Rivera will be evaluated in weighing the admissible portions of Plaintiff’s 231.

The court finds that, at most, $7,549,747.00 was available to fund proprietary enhancements. Thus, plaintiffs fall short by $779,-136.00, the cost of the proprietary enhancements developed from May 1981 through March 1985, excluding the port-to-VAX stand-alone enhancement. Even if plaintiffs had proved that INSLAW had ample non-federal funding for developing the proprietary enhancements, plaintiffs did not prove that the available funding was linked to any of the discrete enhancements claimed in this litigation as listed on PX 224.

C. Michael Mayer, defendant’s expert in government contract accounting and cost accounting standards, discussed another flaw in Ms. Ling’s analysis: It failed to take into account indirect costs that were “so substantial that it would be almost impossible for some part of I[NSLAW]’s work not to have been funded by these indirect costs paid by the Government.” The failure to consider indirect costs may result in a finding that the Government funded an enhancement or project.

In Bell Helicopter Textron, ASBCA No. 2119 , 85-3 BCA H 18,415, the Armed Services Board of Contract Appeals held that “ ‘at private expense’ means entirely funded without any Government reimbursement, direct or indirect, other than through IR&D [independent research and development] cost allocations.” Id. U 18,415, at 92,434. The ASBCA held:

IR&D costs which are reimbursed in part through indirect cost allocations to Government contracts nevertheless represent “private expense” for purposes of the data rights clause. Any other Government reimbursement, however, as a direct or indirect cost, of some of the costs of developing an item, component, or process would mean that that item, component, or process was not developed “at private expense.”

Id. U 18,415, at 92,423. Plaintiffs do not offer any good reason why the court should not apply Bell Helicopter. The court finds Mr. Mayer’s position reasonable and the ASBCA decision highly persuasive. Therefore, in order to prove private funding, INSLAW must demonstrate that the Government did not reimburse INSLAW for its indirect costs, other than de minimis indirect costs, with the exception of independent research and development costs. INSLAW failed to make such a showing.

Ms. Ling explained that at the time of the 1982 Contract INSLAW included in its indirect costs “administration, salaries or the rent, the telephone cost, anything which is not attributable directly to the project, it was booked as indirect cost.” She also testified that DOJ’s share of indirect costs was 51.32%. Ms. Ling explained that her computation was “the only way that [she] kn[e]w [was] correct.”

Mr. Mayer calculated DOJ’s indirect rate as 92%; however, he was willing to adopt Ms. Ling’s figure of 51.32%. Mr. Mayer commented:

My point made consistently was that the methodologies advanced in this ease for pricing the enhancements never addressed the indirect costs; and that a substantial amount of indirect costs, a very large number, were paid by the Government. By Ms. Ling’s admission, a million and a half dollars of indirect costs were paid by the Government, and that represents half of all the indirect costs that I[NSLAW] had that year.

And so whatever number used, 51 percent is a large portion of indirect costs. And under those circumstances I maintain that it is almost impossible that the Government did not to some extent reimburse *347 some of the indirect costs that were applied to these enhancements.

The court agrees with Mr. Mayer’s analysis. By Ms. Ling’s own admission, the Government paid for 51.32% of INSLAWs indirect costs. These funds were not restricted to independent research and development and are not de minimis. Plaintiffs cannot make the showing required by Bell Helicopter.

Ms. Ling’s analysis establishes that IN-SLAW had revenues to pay for proprietary enhancements, assuming that the $7,549,-747.00 was not used to cover any other expenses, which is a baseless assumption. Revenues available do not equate automatically to funds available. Even if no shortfall were present, she fails to account for that portion of the $8,328,883.00 cost for the claimed enhancements, excluding port to VAX, that came from the Government’s payment of indirect costs. The court cannot ascertain which enhancements should be excluded by the $779,136.00 shortfall or, if the shortfall found by the court is put aside, by the indirect costs. Ms. Ling’s proof is not reliable.

2) Ms. Holton’s analysis

While Ms. Ling attempted to supply the analysis that sufficient non-federal funds were available to cover the cost of the claimed enhancements, Ms. Holton attempted to correlate specific enhancements to non-federal funding. In doing so, Ms. Holton examined INSLAWs “Report of Bugs and Suggested Changes/Enhancements” (“report forms”) to correlate a software change to a programmer’s Time and Attendance Report (“time sheet”) in order to demonstrate that the programmer billed his time to a non-federal account. Ms. Holton also relied on annotations within the source code for the PROMIS software, which described each change in the software. 28 She stated:

To begin with, within the source code there is a chronology of all the changes that have been applied to each source code module, the module being the particular grouping of lines and given a particular name, and these modules may be a program or they may be a substantive programs to make up the program.

The chronology of changes are each identified by a date and number assigned to that change, and that would correspond to th[e] report form.

I reviewed all the history sections from the version of the [PRIME] software. That was turned over to the Executive Office in 1985. And reviewed the change numbers.

Contained within the source code is a change number followed by a description of that change. INSLAW placed “book ends,” also known as “label markers” or “change markers” — a combination of asterisks and greater- and-lesser-than signs — to signal where a change occurs. In that manner, at least theoretically, if a customer decided that it did not want change 270, INSLAW could search for the book ends designating the change and delete them. Ms. Deroy cautioned that this may prove problematic, because one never knows how a change in a line of source code will affect the rest of the source code.

Ms. Holton explained her methodology: Again I was matching the report form. We have a user support center where users will call in requests for software changes, either enhancements or corrections to problems they have encountered. *348 And these forms are completed based on what the user has asked or reported.

The user may also be someone within the company who is testing different versions of the system.

I reviewed the master book of all these report forms and matched them to these change numbers.

Once Ms. Holton identified the change number in the source code, she matched the change number against a report form. The report form was divided into two parts. The top part “is the actual reporting part, giving a report date, the INSLAW contact [the person with whom the customer spoke or the INSLAW employee who reported the problem], the person making the comment, ... and a description of the request.” The bottom part “is the follow-up by the programmer giving the programmer’s name and the date of the completion and the programs affected by this change.” If the “INSLAW contact” part of the form was left blank, Ms. Holton assumed that the report came from a person in-house.

Ms. Holton then analyzed the report dates and the completion dates. If they were the same, she pulled the time sheets from the corresponding time period and examined what project codes the programmer billed on the day involved.

The time sheets list the employee’s name, the project codes, and the hours billed to each project code over a two-week period. The time sheets were reviewed by the Project Director on major projects, but, at the least, they are signed by the Division Director, who verified that the project code charges were correct. Ms. Holton examined the project codes and determined which project codes applied to the work performed as described in the report form. For example, she assumed that a billing to a 9000 code signified maintenance or research and development and that such fuhding did not come from the Federal Government.

Ms. Holton performed this analysis for all the claimed discrete proprietary enhancements. She prepared a summary sheet, which was PX 224. This document identifies the “dates and programmer that came from the report f[orm], charge code [from the time sheets], and [her] analysis of the change [based on the source code and report form].” The summary sheet contains the charge number, 29 change number, 30 report date, change date, programmer, and program module.

Ms. Holton considered various factors, all of which she attributed to her “institutional knowledge,” including: Who the programmer was (based on how the coding looked, Ms. Holton may identify the programmer), whether the programmer was in the maintenance pool, how many changes were being done at one time, and whether the report date and the completion date differed. In short, where documentation was lacking, Ms. Holton improvised:

THE [BANKRUPTCY] COURT: [H]ow did you arrive at the conclusion that Charge Code 9001 is applicable to Change No. 174[?]

THE WITNESS [Ms. Holton]: Well, just looking at the summary right here, 174, 175, and 176 are three individual changes applied to the same program, so those indicate, first of all, that they would be through maintenance task. They were done within the same time period by Dan Lazarre.

And certainly, the change 176 would not have been required for the Executive Office because they would not have encountered this problem. The 175 was not recorded by them. 174 — ■

THE COURT: How can you tell it was not recorded by them?

THE WITNESS: I know that they did not have that problem. I actually can’t say that they did not report it, but I feel confident that they did not report it be-

*349 cause I worked on that project and we never encountered this problem.

The Change 174, again, there are five files in the master database, and there was sufficient records in the database to assign records to all five files. So they also never encountered that.

The major flaw in Ms. Holton’s analysis is that she made an assumption, based on the change date on the report form, as to when an enhancement or program module actually was completed. She assumed that it was completed close to the time of the completion date listed on the report form, but the completion date only represents when the PROMIS program ran a test on the new program module. The module could have been developed and in the PROMIS program for months, awaiting its test, because a higher priority item arose. Unfortunately, this assumption is not the only one Ms. Holton made that brings into question the validity of her methodology.

Ms. Holton not only had to guess when the change was completed, but the number of hours necessary to make the program module. She considered her knowledge of programming, her subjective knowledge of the programmer’s experience, and the description of the program change in order to determine how long it took an individual programmer to make a change:

I looked at the programmer who made the change. I looked at the module on which the change was applied. Took into consideration whether or not the programmer had been acquainted with that particular routine, source code. If they had worked on it before, then I most likely narrowed the scope of my search because it would take them less time to make the change. If they were a junior programmer, then I gave them allowance for a little bit more time. And, also knowing too, who were the junior programmers at the time and what programs they had been exposed to.

Ms. Holton acknowledged that her methodology was based on “assumptions, really, just from being there, and being through it over the years.” Regrettably, the court was unable to hear this witness. Her 1987 trial testimony reveals her to be a knowledgeable, capable individual, fully conversant in the PROMIS technology and history. Had she appeared at this trial, Ms. Holton may have provided justification for all the assumptions defendant pointed out. The court cannot perform this reconciliation on its own.

Ms. Holton also identified as enhancements program modules that existed in the pilot version of PROMIS, which was in the public domain. On this basis alone, defendant was able to demonstrate conclusively that her analysis was incorrect. Ms. Holton testified that her source documents listed the dates on which the enhancements were completed, which were after the delivery of the LEAA version. However, Dr. Davis established that the PROMIS program itself contained the modules in question when it was delivered in the earlier public domain version of PROMIS. According to Ms. Holton’s analysis, this is impossible, as her source documents told her that the changes were not completed until later.

Ms. Holton testified that if work was billed to maintenance, the work would not have been performed with federal contract funds, but the maintenance pool charge, whatever that was. However, some of the charge codes Ms. Holton identified as maintenance had at least some federal subscribers, including maintenance code 9001. The Government thus could have paid for a bug fix or enhancement listed on PX 224.

Additionally, if the vendor/jurisdiction space on the report form was left blank, Ms. Holton assumed that the request for the fix or enhancement originated in-house. Defendant demonstrated the inadequacy of this assumption by leading Ms. Holton through a series of examples, after which she stated: “The funding showed that they were done for the Executive Office project.” Although Ms. Holton took issue with whether INSLAW held these enhancements out as proprietary, the incorrect assumption made in her methodology must be considered in determining the weight the court accords Ms. Holton’s testimony.

Plaintiffs retained Dr. DeLutis, an expert in information technologies, to (1) “[ajssess the value of the privately-funded major en *350 hancements and other privately-funded changes to the PROMIS software”; (2) “[r]e-view the documentation of changes used by INSLAW”; and (3) “[r]eview and assess the strategies and procedures used in accounting for the changes and the way they were reconstructed by Ms. Holton.” Dr. DeLutis was charged with evaluating Ms. Holton’s methodology and determining if DOJ received the proprietary enhancements claimed in this litigation.

This expert had also testified in the bankruptcy trial. In performing his assignment for this trial, Dr. DeLutis reviewed Ms. Hol-ton’s and his testimony, depositions, exhibits, and work notes. He consulted with IN-SLAW technical employees, Ms. Ling, and the Hamiltons and reviewed source and object codes and INSLAW documents, including contracts, funding documents, programmer time sheets, and change sheets. Dr. DeLutis concluded:

1. Enhancements were made by IN-SLAW to PROMIS using private funds which afford significant increased functionality to the PROMIS software product; [and]

2. Procedures employed by Ms. Holton to identify privately funded changes to PROMIS were appropriate for the purpose of correlating PROMIS software change numbers with INSLAW charge numbers appearing on INSLAW staff time records.

In forming his opinions, however, Dr. DeLu-tis relied in large part on the work performed by Ms. Ling and Ms. Holton. Once again, the problem resurfaces: Ms. Ling and Ms. Holton made many assumptions, and Dr. DeLutis relied on these assumptions. Dr. DeLutis had to make those assumptions his own and justify them at trial, but he declined to do so: “What I was asked to do was to check the methodology that she used. I was not asked to check whether or not what she did was correct or not correct.” In his opinion all of Ms. Holton’s assumptions were reasonable.

Dr. DeLutis could not confirm the validity of Ms. Holton’s methodology. Indeed, his testimony highlighted another defect in her analysis. Dr. DeLutis concluded that, according to Ms. Holton’s methodology, the

earliest time that a programmer could have worked on a change was the report date of the preceding change. This procedure was not always followed, or, at least, was not always documented correctly. Dr. DeLutis attempted to explain the discrepancies, stating that they all occurred with one programmer or that the source document was illegible. Nevertheless, the methodology failed in at least three instances.

Cross-examination of Dr. DeLutis revealed that the documentation on which Ms. Holton relied, the report forms and time sheets, do not include an unbroken chain, because the time sheets do not identify specific change numbers and the report forms listing the changes do not include a specific project code or charge code. He accepted as valid her assumptions to bridge the gaps. Therefore, the weight of Dr. DeLutis’ testimony is diminished by the defects in Ms. Holton’s assumptions that have been noted.

Dr. DeLutis testified as to the industry standards with respect to the documentation of software changes.

Q: [By plaintiffs’ counsel]: Dr. DeLutis, at this point in time were there industry standards with regard to the documentation of software changes?

A: I am personally not aware of any standard that would be applicable to [tying] a specific change to a time sheet.

It was Dr. DeLutis’ expert opinion that “the manner in which the documentation of changes associated with the ongoing maintenance of the product were reasonable”; that INSLAW’S handling of time sheets was also reasonable; that INSLAW also had reasonable procedures for documenting its changes; and that what INSLAW did in this regard was “very excellent.” In response to the court’s question whether he was aware in 1983-84 if any methodologies were in place that would have reported more specifically the time spent on individual changes, Dr. DeLutis stated that he was not required on his time sheets to record any “direct linkage” to changes that he made in his software.

Dr. DeLutis’ high opinion related to the manner in which INSLAW’s programmers documented their software changes in the *351 code. He was able to “identify the total change history” of the PROMIS software since 1981. The “thoroughness in which the changes were documented continually in the software” greatly impressed Dr. DeLutis, which is what he considered to be “very excellent.” The court agrees with Dr. DeLu-tis that the source code was well documented; but that does not signify that INSLAW’s methodology to account for the claimed proprietary enhancements was reasonable.

The court cannot accept Dr. DeLutis’ opinion of INSLAW’s record keeping. Prior to performing the contract, INSLAW knew that it had one version of PROMIS that it operated; INSLAW also knew that it was planning on using its proprietary enhancements to implement the 1982 Contract. Although IN-SLAW’s record-keeping procedures may have been acceptable in the early 1980s environment of nascent computer operations, they were not adequate to the specific task that INSLAW undertook in performing the 1982 Contract on its own terms, i.e., in furnishing and installing PROMIS with enhancements not required by the contract that DOJ subsequently would be asked to purchase or decline. INSLAW’s own employees testified that INSLAW could have documented its software development and forged a complete paper trail that would have enabled it to track the costs of each claimed enhancement. For example, Ms. Holton readily admitted that INSLAW easily could have adapted its documentation to demonstrate its proprietary enhancements without greatly increasing its administrative burden.

Q: [By defense counsel]: Would that have imposed any kind of onerous burden upon you if you had to fill out an additional blank on the report form that showed which account you did the work for?

A: I’m not sure I would call it onerous. It would certainly be another line to fill out and you would have had it available at the time you were completing this form. I don’t think it would have been a lot of trouble. We just didn’t require it.

Dr. DeLutis’ also helped to define “bug” and “enhancement.” Ms. Holton undertook an analysis to determine which discrete enhancements constituted bug fixes and which constituted enhancements. 31 She identified the enhancements in terms of their nature, i.e., did they provide a new functionality, did they increase user-friendliness, or did they increase the efficiency of the system? The remainder of the claimed proprietary enhancements constituted bug fixes. Ms. Hol-ton could not testify as to whether DOJ requested those bug fixes.

Ms. Holton codified her results into a chart, introduced as PX 228, an exhibit identifying bugs and enhancements. The chart does not depict the port to VAX because the “port is all of PROMIS, all of this would be part of the VAX port. All of these programs would have been within that port, had they been available at that time.” DBA originally was developed on the VAX. Plaintiffs contend that INSLAW developed other proprietary enhancements that are not claimed in this litigation around the time of the 1982 Contract. Based on her testimony in the bankruptcy court trial and PX 228, the parties entered into a stipulation filed April 4, 1997, which identifies each enhancement that Ms. Holton classified as a bug or an enhancement.

According to Dr. DeLutis, Ms. Holton was more conservative than necessary in identifying a change as an enhancement as opposed to a bug fix. Unfortunately, plaintiffs did not retain Dr. DeLutis to engage in any such analysis, so he did not opine beyond that observation. He did define an enhancement:

I would like to answer that by saying in the industry there continues to be an ongo *352 ing discussion of the term “enhancements.” I use the term “enhancements” to mean a broad spectrum of — potentially a broad spectrum of additional functionality to a product. And they could either fall into the class of major enhancements or they could fall in the class of minor enhancements, or cosmetic enhancements.

Dr. DeLutis agreed that a bug fix is “something that shouldn’t have gone wrong, but did and it’s fixed.” In software of this size, Dr. DeLutis testified that “approximately [7%] of the total defects in the software would not be detected at the time that it was released to the public.”

Dr. DeLutis previously had testified that PX 224 contained product defects:

What I said is that what is in 224 are, and a good term to use, is elimination of defects in the product. And elimination of defects in the product could have, could fall into one of four different categories. And these categories are common. One is the defect could be critical in that it causes the program to stop executing. The defect could be severe, classified as severe. In which case it may have one subsystem not operating correctly or be impaired. It could be minor in terms of causing no inconvenience to the operation of the system. Or it can be classified as being cosmetic in which it’s adding features to the software which are not considered to be major features. All four of those categories of defects are considered to be within the realm of maintenance.

A defect is the “lack of something necessary for completeness; deficiency; shortcoming;” or “an imperfection or weakness; fault; flaw; blemish.” Webster’s New World Dictionary 361 (3d ed.1988). In other words, it is something that should not be wrong, but is. Dr. DeLutis’ testimony could be susceptible to an interpretation that all of the software changes in PX 224 could be classified as bug fixes.

Dr. DeLutis compared the PRIME version of PROMIS to the pilot version, explaining that an enhancement may increase software reliability or functionality. The three standalone enhancements increased functionality over the pilot version. The changes on PX 224 increased functionality over that in the pilot version; thus, the changes may be classified as minor enhancements, rather than bug fixes. However, on cross-examination, Dr. DeLutis stated that an enhancement is something not called for by the contract specifications:

I would say that if the contract that said I need — that you are to develop software with these specific specifications and I’m going to pay for that software and what’s delivered is exactly what the specification called for. Then you’re right. Whatever’s incorporated into that for in this case let’s use the USA, that that would not have enhancements in it if you paid for everything that was there.

In rendering its decision, the court must undertake an examination and determine whether the contract called for the three stand-alone enhancements and the 106 discrete enhancements.

Defendant’s expert, Dr. Davis, approached this analysis from a technical standpoint. Testifying as an expert in computer software, he was one of the three experts on the expert panel established during the discovery stage of this proceeding. Dr. Davis analyzed the PROMIS code while on the expert panel. Dr. Davis also had prior experience analyzing PROMIS for an FBI investigation, also related to the dissemination of PROMIS.

In his role as defendant’s software expert, Dr. Davis reviewed the manuals and source code; received live demonstrations of the software; consulted with INSLAW personnel; used PX 224 “as a way of focusing my attention on specific pieces of this fairly large body of software”; read deposition and trial transcripts, contract documents, manuals, and legal documents; conducted telephone interviews; and examined the source code for both the discrete and supplemental enhancements. Dr. Davis brought considerable clarity to the proceedings.

The court finds Dr. Davis’ analysis the most thorough and exacting analysis performed on the PROMIS data rights claims. In comparison to Dr. Davis’ expert report, that of Dr. DeLutis was cursory and summary. Unlike Dr. DeLutis, Dr. Davis was *353 retained to examine the exact nature of the alleged enhancements and to analyze each of the 106 discrete enhancements and three stand-alone enhancements. Dr. Davis undertook his own examination of PX 224, plaintiffs’ list of claimed enhancements, and thoroughly reviewed Ms. Holton’s methodology. He traced through Ms. Holton’s procedures and found INSLAW’S internal procedures were not always followed. For example, both Ms. Holton and Dr. DeLutis testified that INSLAW assigned each software change a unique number and that the number could be found in the history section of the source co

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