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

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

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2016 US Federal Government Contracting Webinar Series

2016 US Federal Government Contracting Webinar Series

AGENDA

2016 US Federal Government Contracting Webinar Series AGENDA:

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

2016 US Federal Government Contracting Webinar Series

INTRODUCTION Host

2016 US Federal Government Contracting Webinar Series

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

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

2016 US Federal Government Contracting Webinar Series

INTRODUCTION Guest

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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

2016 US Federal Government Contracting Webinar Series

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

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2016 US Federal Government Contracting Webinar Series

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

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2016 US Federal Government Contracting Webinar Series Teaming Agreements Procurement Context of Teaming Agreements •Non-disclosure agreement •[Memorandum of Agreement] •Teaming Agreement •Subcontract with Prime Contractor

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2016 US Federal Government Contracting Webinar Series Teaming Agreements Non-disclosure Agreement: First Rule: ♥ ♥

Do no harm to yourself - protect disclosed Intellectual

Second Rule: ♦ ♦ ♦ ♦

Property and Proprietary Information

Specifically incorporate “system” of security controls from FAR 52.204-21(b) into the NDA Mark disclosed information with trade secret or proprietary markings Trust but verify

Information exchanges through one person Identify users (esp. third party users) View / verify existing NDAs executed by users Audit rights

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(effective 6/15/2016)

2016 US Federal Government Contracting Webinar Series 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

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 Jennifer Schaus & Associates

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contacts)

2016 US Federal Government Contracting Webinar Series Teaming Agreements Enforceability of Teaming Agreement Seeking to enforce the expectation that upon award of the prime contract: 1.

2.

the prime contractor will award a subcontract and 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

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2016 US Federal Government Contracting Webinar Series 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 X Technologies, Inc. v. Marvin Test Systems, Inc. – exclusivity

Agreement unenforceable (E.D.Va decision, appeal denied)(2013) 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 Jennifer Schaus & Associates

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not enforced after RFP cancellation then reinstatement) (E.D.Va. 2016)

2016 US Federal Government Contracting Webinar Series 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 ● unilateral withdrawal ● award of a subcontract (let the subcontract ● duration of [specific] number of months Jennifer Schaus & Associates

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explanation terminate the teaming agreement)

2016 US Federal Government Contracting Webinar Series CONCLUSIONS

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2016 US Federal Government Contracting Webinar Series 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

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2016 US Federal Government Contracting Webinar Series

Q&A

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CONTACT DETAILS

Ms. Jennifer L. Schaus Washington DC +1-202–365–0598 jschaus@jenniferschaus.com www.JenniferSchaus.com -----------------------------David Dempsey Tysons Corner, Virginia (703) 880-9171 ddempsey@deftlaw.com www.deftlaw.com

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2016 US Federal Government Contracting Webinar Series