Teaming Agreement Clinic April 25 2018 HHS Back

Teaming Agreement Clinic April 25, 2018 HHS Back 2 Business Event

Four Teaming Agreement Puzzle Pieces Draft a detail-specific, enforceable teaming agreement that creates a productive partnership, but also protects your interests and eligibility. Include in your teaming agreement detailed terms that outline, specifically, how the parties intend to structure their team, and what work each party plans on performing. Exclusivity clauses are provisions in teaming agreements that prohibit one or both parties from entering into other teaming arrangements. This is helpful from small businesses because it can keep larger businesses from “playing the field. ” Enforceability Absent specific provisions, courts will view teaming agreements as mere “agreements to agree” Such “agreements to agree” are generally considered unenforceable. Exception Gap Analysis Complete a requirement gap analysis and ensure each gap identified receives an exception reporting requirement. Expectations Make sure that you have a clear statement of work, and – more specifically – a clear explanation of what specific portions of the tobe-awarded contract each team member plans to self -perform. 2

Historical Case Law Cyberlock Consulting, Inc. v. Information Experts, Inc. , The plaintiff, Cyberlock Consulting, Inc. (“Cyberlock”), entered into two separate and distinct teaming agreements with the defendant and prospective prime contractor, Information Experts (“IE”). In the first agreement, the parties included very specific terms that demonstrated the parties intent to be bound, and laid out the structure of the parties relationship, and their performance in connection with the subject procurement. The agreement had appended to it a very detailed breakdown of the scope of work to be completed by each party in the event of award. Also attached was a formal subcontract agreement. The teaming agreement clearly stated that, if IE was awarded the prime contract, IE would, “within five (5) business days from date of award…enter into the subcontract attached to this Agreement. ” Lastly, the first teaming agreement identified a number of bases that could result in its termination. None of those bases included the failure to agree upon the terms of a subcontract agreement. Although IE received the prime contract in connection with the second solicitation, after negotiating for a month, IE and Cyberlock were unable to agree on a subcontract agreement. Cyberlock then sued IE, seeking enforcement of the teaming agreement. But the Court found that the agreement was not enforceable. Specifically, the judge concluded that the second teaming agreement simply was not definitive enough to qualify as an enforceable agreement. The problem was that the parties left too many details up in the air; too many issues subject to too many conditions. Trianco, LLC v. Int’l Bus. Machines Corp. , The Court held that a teaming agreement was unenforceable under New York law because the agreement omitted a material term, specifically, the price for performing the subcontract work. Therefore, the Court concluded, the teaming agreement was merely an unenforceable “agreement to agree. ” Cases that have gone the other way, and found that teaming agreements were enforceable, all did so based on the inclusion in those teaming agreements of very specific terms. 3

“What else is missing? ” Laboratory Tool Kit Customer Communications Escalation/ Issue Resolution Work Marketed Work Won When requested, PRIME will be responsible for providing team resumes and candidates to support other skill areas deemed necessary by the Customer. Teammate will support these efforts to propose additional scope and other requirements from the Customer. All interactions with the project Contracting Officer Technical Representative (COTR) will be coordinated with the PRIME PM beforehand. The Teammate shall be provided the opportunity to participate in discussions relative to team development and RFP response strategy. The Teammate understands that PRIME shall exercise its final decision making authority as appropriate to its role as the prime contractor for all team development and staffing decisions. contract will be staffed primarily by Sub, unless Sub is unable to provide the required support. Sub shall provide resumes of candidates to PRIME in support of the prime contract’s RFPs promptly. If Sub is not capable of staffing any available task order position within twenty (20) days, or if the Sub’s candidate fails to report to the specified worksite within twenty (20) days of the TO’s performance start date, PRIME shall have the option to replace the position with PRIME and/or other subcontractor’s employee. PRIME may add management and administrative hours to the TO for overall project management. Teammate shall pay its own pre-proposal and proposal expenses. [ Include Proposal Pricing]. Pricing Details 4

“What else is missing? ” Laboratory Tool Kit Continued Workshare Delineation Task Areas You are Supporting The Parties agree that Subcontractor’s Workshare for labor services will not fall below 29% of the total Prime Contract value annually, inclusive of all contract modifications, for each year of Prime Contract performance (base and all options years). PRIME shall use reasonable efforts to give Sub the right of first refusal to staff the <insert specific’s here > position and all other <insert specific’s here> positions on the Subject program up to <insert amount here> % of the total FTE or not to exceed <insert amount here> FTEs. Sub will make available to PRIME qualified candidates and shall provide resumes of candidates to PRIME promptly: approval shall not be unreasonably withheld. PRIME may add management and administrative hours for overall project management to Sub’s work share. Pre – Award/ Post Award Role/ Responsibilities Teammate shall participate in writing portions of the proposal management, technical, cost, and past performance volumes as requested by PRIME. Personnel may also be requested to support proposal reviews and editing – such as Pink and Red teams. Draft Subcontract Agreement Teammate agrees to diligently seek final resolution and execution of any resultant Subcontract Agreement prior to performance by Teammate. The definitive Subcontract Agreement will include terms and conditions substantially similar to those typically used by PRIME and any applicable clauses from the Prime contract. [There should be a draft/ redline agreement here. Think back to the procurement process!] Exclusivity The Subcontractor agrees to be exclusive to Prime on this Solicitation, and will not be a member of another Prime’s team in responding to the Solicitation. The Parties will mutually agree upon the addition of Subcontractors and changes to the [insert project team name here] both during the proposal effort and in a post-award environment. Non Compete; OCI Concerns; Legal Risk Mitigation (e. g. : Limitation of Liability; Warranties; Indemnification; Choice of Law States; Waiver of Jury Trail) 5