FEDERAL Govt Contracting - Teaming Agreements: Good, Bad & The Enforceable

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

• AGENDA

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2016 US Federal Government Contracting Webinar
Series

• AGENDA
• Introduction HOST
• Introduction - GUEST
• Presentation
• Conclusions
• Q A

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2016 US Federal Government Contracting Webinar
Series

• INTRODUCTION
• Host

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2016 US Federal Government Contracting Webinar
Series

• Jennifer Schaus
• About The Host

Approx 20 Yrs in Gov Contracting Career
DB (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
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2016 US Federal Government Contracting Webinar
Series

• 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
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2016 US Federal Government Contracting Webinar
Series

• INTRODUCTION
• Guest

DEMPSEY FONTANA PLLC
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2016 US Federal Government Contracting Webinar
Series

• 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
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2016 US Federal Government Contracting Webinar
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• 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
DEMPSEY FONTANA PLLC
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2016 US Federal Government Contracting Webinar
Series

• PRESENTATION

• Teaming Agreements the Good, the Bad and the
  Enforceable

DEMPSEY FONTANA PLLC
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2016 US Federal Government Contracting Webinar
SeriesTeaming Agreements

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

DEMPSEY FONTANA PLLC
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2016 US Federal Government Contracting Webinar
SeriesTeaming 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
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• 2016 US Federal Government Contracting Webinar
  SeriesTeaming Agreements
• Purpose of NDA and Teaming Agreement
• 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)
• Objective of both parties is a subcontract
  relationship for duration of the prime
  contract ? conduct due diligence of the prime
  contractor or the subcontractor
• Jennifer Schaus Associates DEMPSEY
  FONTANA PLLC

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2016 US Federal Government Contracting Webinar
SeriesTeaming 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 DEMPSEY FONTANA PLLC
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• 2016 US Federal Government Contracting Webinar
  SeriesTeaming 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) Jennifer Schaus Associates
  DEMPSEY FONTANA PLLC

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• 2016 US Federal Government Contracting Webinar
  SeriesTeaming Agreements
• Enforceability of Teaming Agreement (cont.)
• Court decisions (and others) indicates that
  enforceability of a teaming agreement will likely
  require most (if not all) of the following terms
• The intent / objective of the teaming agreement
  is clear
• The parties will / shall enter into a subcontract
  upon award of the prime contract
• Specific details regarding the subcontractors
  workshare
• Details regarding the price terms of the
  subcontract
• Specific identification of the subcontractor and
  subcontractors past performance in the proposal
• The teaming agreement for the specific workshare
  is exclusive
• Limited termination provisions / Liquidated
  Damages
• Known subcontract terms and conditions
• Other alternatives (GSA CTA, joint venture
  arrangement)
• Jennifer Schaus Associates DEMPSEY
  FONTANA PLLC

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• 2016 US Federal Government Contracting Webinar
  SeriesTeaming Agreements
• Enforceability of Teaming Agreement (cont.)
• Beware of or avoid language indicating
• Agreement only to negotiate in good faith
• Non-exclusivity or ambiguous intent to award
• Termination by teaming agreements 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 Associates DEMPSEY
  FONTANA PLLC

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2016 US Federal Government Contracting Webinar
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• CONCLUSIONS

DEMPSEY FONTANA PLLC
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2016 US Federal Government Contracting Webinar
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• CONCLUSIONS
• Review existing NDAs and teaming agreements for
  consistency with the preceding suggestions and
  then amend where possible
• Assess whether another form of agreement is more
  suitable (CTA or joint venture) and confirm
  validity of such other agreement

DEMPSEY FONTANA PLLC
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2016 US Federal Government Contracting Webinar
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• Q A

DEMPSEY FONTANA PLLC
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CONTACT DETAILS Ms. Jennifer L.
Schaus Washington DC 1 - 2 0 2 3 6 5 0 5 9
8 jschaus_at_jenniferschaus.com www.JenniferSchaus.c
om ------------------------------ David
Dempsey Tysons Corner, Virginia [phone]
ddempsey_at_deftlaw.com www.deftlaw.com
DEMPSEY FONTANA PLLC
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2016 US Federal Government Contracting Webinar
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