Teaming Agreement and Subcontracts Lawyers
Our government contracts lawyers, led by a former procurement lawyer for the government, Tamara Dunlap, and a former SBA attorney, Cherylyn Harley LeBon, help negotiate and provide advice on both federal contractor teaming agreements and subcontract agreements. Because our government contracts team works closely with the litigation group that handles a wide variety of government contract disputes, the advice we provide is born of a wealth of hard-earned experience. Whether the arrangement results from the SBA’s CTA (Contractor Team Arrangement) or a private agreement to submit a response to an RFP or other solicitation, our experienced lawyers know the pitfalls of unstructured and undefined work share agreements. Our team provides counseling on responsibility, integrity, and compliance issues, including contractor integrity issues, compliance programs, fraud investigations, bid protests, and suspension and debarment (more fully explained elsewhere).
Our government contract clients need assistance in obtaining information related to various contracts, competitors, or agencies in some circumstances. We are well-versed in pursuing that type of information under the Freedom of Information Act (FOIA) at the federal and state or local level. Additionally, there have been times when a competitor is seeking to obtain our client’s information under an FOIA request. We have the knowledge and skillsets to protect that information from release.
We offer strategic legal advice related to various other potential government contracting issues, such as:
- Intellectual Property
- Information technology
- State and local contracting
- Performance problems, terminations, specifications, and payment or invoicing issues.
Contractor Teaming Agreements
Non-equal private teaming agreements usually focus on proposal preparation, the division of work between the parties upon award, and contain exclusivity and subcontract terms should a contract be awarded. In this context, a subcontract describes the work, pricing, and delivery requirements, including mandatory FAR or DFAR flow-down clauses. Typically teaming agreements come in two varieties, either requiring a subcontract award or requiring that the parties negotiate “in good faith” to complete a subcontract. From the subcontractor’s point of view, an agreement requiring an award of a subcontract that includes specific terms and work share is vital. Recent cases may make the other kind of teaming agreement, one to agree on terms later, invalid from the outset. Items to consider when negotiating include:
- Mandatory right to continue as a subcontractor if the Government exercises the prime contractor’s option to renew or extend;
- Limitations on termination for convenience by the prime, usually except when the prime is terminated;
- Provisions covering intellectual property and proprietary rights;
- Two-way prohibitions on poaching employees, particularly SMEs (subject matter experts);
- Substitution of work provisions; and
- Agreements regarding payment and joint management of claims against the Government.
What is the difference between a CTA and a Prime Contractor / Subcontractor relationship?
Principally the parties to a CTA must be co-equal, which is not the case for a prime sub relationship. Almost all federal contractors technically misuse the term “team” in this context, referring to a contract with another private company formed for purposes of submitting a response to a solicitation. The U.S. GSA offers a detailed chart that outlines the differences (below).
|Contractor Team Arrangement (CTA)||Prime Contractor / Subcontractor Arrangement|
|Each team member must have a GSA Schedule contract.||Only the prime contractor must have a GSA Schedule contract.|
|Each team member is responsible for duties addressed in the CTA document.||The prime contractor cannot delegate responsibility for performance to subcontractors.|
|Each team member has privity of contract with the government and can interact directly with the government.||Only the prime contractor has privity of contract with the government and can interact with the government. The prime contractor is responsible for its subcontracting activities. Buying agencies are encouraged to specify in the Request for Quotation (RFQ) that the CO must approve using subcontractors before they can perform.|
|The buying entity is invoiced at each team member’s unit prices or hourly rates as agreed in the task or delivery order or GSA Schedule BPA.||The buying agency is invoiced according to the prime contractor’s GSA Schedule contract, including any applicable price reductions.|
|Total solutions, otherwise impossible under individual GSA Schedule contracts, can be put together quickly and easily.||The prime contractor is limited to the supplies and/or services awarded on its GSA Schedule contract.|
These are just a few of the items to consider. Regardless of the type or nature of the agreement, you can rely on DBL’s former state and federal procurement lawyers to work for your best interests and get the details right.