FED GOV CON - Teaming Agreements: Good, Bad & The Enforceable

US Federal Government Contracting
Webinar Series - 2016
Presented By:
David Dempsey
JUNE 3, 2016
DEMPSEY | FONTANA PLLC

2016 US Federal Government Contracting Webinar Series

AGENDA

AGENDA:
• Introduction – HOST
•Introduction - GUEST
• Presentation
•Conclusions
• Q & A

INTRODUCTION
Host

Jennifer Schaus
About The Host
* Approx 20 Yrs in Gov Contracting
* Career: D&B (Govt Division)
Federal Sales & GSA Scheds
* Frequent Speaker: Chambers, NCMA, AFCEA, etc
* Member: WIPG
* Education: Towson University – B.A.
UC Berkeley - Leadership Accelerator
Cornell University - Exec Leadership

Jennifer Schaus
Jennifer Schaus & Associates
* DC Based Consulting Firm
* Over 10 Yrs in Business
* Support Services for Gov Cons
Proposal Writing / Contract Vehicles (GSA)
Sales & Biz Dev
Certifications – SBA 8(a); SDVO; etc.
Events

INTRODUCTION
Guest

David Dempsey
ABOUT OUR SPEAKER
39 years experience in government
procurement law and related matters
Experience covers formation, administration
and litigation of government contracts in US
and Europe
Focus on IT contracts, service contracts,
small business issues, government
accounting, intellectual property rights,
export controls

David Dempsey
Dempsey Fontana, PLLC
Dempsey Fontana founded in 2012 by two
lawyers with + 70 years experience in
government procurement law and related
matters
Firm provides value to small or large
companies from collective expertise and
experience in virtually all areas of
procurement law at rates significantly lower
than those with equivalent experience

PRESENTATION
Teaming Agreements – the Good, the Bad and
the Enforceable

Procurement Context of Teaming
Agreements
•Non-disclosure agreement
•[Memorandum of Agreement]
•Teaming Agreement
•Subcontract with Prime
Contractor
Teaming Agreements

Teaming Agreements
Non-disclosure Agreement:
First Rule: Do no harm to yourself - protect disclosed Intellectual Property and Proprietary Information
♥ Specifically incorporate “system” of security controls from FAR 52.204-21(b) into the NDA (effective 6/15/2016)
♥ Mark disclosed information with trade secret or proprietary markings
Second Rule: Trust but verify
♦ Information exchanges through one person
♦ Identify users (esp. third party users)
♦ View / verify existing NDAs executed by users
♦ Audit rights
Jennifer Schaus & Associates DEMPSEY | FONTANA PLLC

Teaming Agreements
Purpose of NDA and Teaming Agreement:
1.Collaborate to meet government requirements as a “Team”
► learn what the government wants – if known
► identify contributions to the proposal (experience, past performance, expertise, key personnel, government contacts)
► identify contributions to contract performance (% of work)
2.Objective of both parties is a subcontract relationship for duration of the prime contract
► conduct due diligence of the prime contractor or the subcontractor

Teaming Agreements
Enforceability of Teaming Agreement
Seeking to enforce the expectation that upon award of the prime contract:
1. the prime contractor will award a subcontract and
2. the subcontractor will perform the subcontract
Circumstances:
● When and where in the procurement process – MOA or TA
- exclusivity / non-compete (when and why)
- exchange of (NDA) information
● Do you want the teaming agreement enforced?
- execute NDA; begin proposal preparation
- go direct to subcontract negotiations
Jennifer Schaus & Associates D EMPSEY | FO NTAN A PLLC

Teaming Agreements
Enforceability of Teaming Agreement
Federal and State court decisions may deem a teaming agreement an “agreement to agree” unless certain provisions are clearly present
Cyberlock Consulting, Inc. v, Information Experts, Inc. – Teaming Agreement unenforceable (E.D.Va decision, appeal denied)(2013)
X Technologies, Inc. v. Marvin Test Systems, Inc. – exclusivity provision enforced (5th
Cir. decision)(2013)
Advance Telecom Process LLC v. DSFederal, Inc. – Teaming Agreement unenforceable (Md. 2015)
A-T Solutions Inc. v. R3 Strategic Support Group, Inc. (exclusivity not enforced after RFP cancellation then reinstatement) (E.D.Va. 2016)

Teaming Agreements
Enforceability of Teaming Agreement (cont.)
Beware of or avoid language indicating:
1.Agreement only to “negotiate in good faith”
2.Non-exclusivity or ambiguous intent to award
3.Termination by teaming agreement’s own terms
e.g.: ●failure to agree on price
● government disapproval without verified explanation
● unilateral withdrawal
● award of a subcontract (let the subcontract terminate the teaming agreement)
● duration of [specific] number of months
Jennifer Schaus & Ass ociat es DEMPSEY | FONTANA PLLC

CONCLUSIONS

CONCLUSIONS
1. Review existing NDAs and teaming agreements for consistency with the preceding suggestions and then amend where possible
2. Assess whether another form of agreement is more suitable (CTA or joint venture) and confirm validity of such other agreement

Q & A

CONTACT DETAILS
Ms. Jennifer L. Schaus
Washington DC
+ 1 - 2 0 2 – 3 6 5 – 0 5 9 8
jschaus@jenniferschaus.com
www.JenniferSchaus.com
------------------------------
David Dempsey
Tysons Corner, Virginia
(703) 880-9171
ddempsey@deftlaw.com
www.deftlaw.com

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