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Essential Documents for
Effective Teaming
Davis & Steele
NCRC Annual Conference
Putting Together Small Business
Teams to Compete for Larger Contracts
April 18, 2012

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Presenter
• Janice Davis, Esq.
• Chair of Davis & Steele’s Government Contracts
Practice Group
• 20+ years of government contracts law
experience
• Work extensively with businesses selling to
governments—federal, state, and local
© 2012 Davis & Steele: Uncompromising Service, Unparalleled Value
www.davissteele.com

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Prepare Before You Share!
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www.davissteele.com

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Prior to engaging in preliminary discussions regarding the joint
pursuit of potential opportunities
Require marketing/business development staff to have executed
mutual non-disclosure agreements in place
Do not share proprietary data without an NDA!
© 2012 Davis & Steele: Uncompromising Service, Unparalleled Value
www.davissteele.com

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An NDA is a binding agreement that defines proprietary data
and establishes limits on the use of such data by the parties
generally.
An NDA prohibits the disclosure of proprietary data to third
parties, with narrowly defined exceptions.
© 2012 Davis & Steele: Uncompromising Service, Unparalleled Value
www.davissteele.com

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Why is a Non-Disclosure
Agreement Necessary?
• Share data without fear of losing trade secret protections or having
proprietary information disclosed publicly
• Uncovers unscrupulous businesses (e.g., those who insist on
disclosure of proprietary data before signing an NDA)
• Fosters the relationship
• Facilitates planning
© 2012 Davis & Steele: Uncompromising Service, Unparalleled Value
www.davissteele.com

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Essential Terms of a
Non-Disclosure Agreement
• Agreement between the parties to maintain confidentiality of
information and not disclose each other’s proprietary information
• Relatively broad definition of proprietary information – specifically
reference any information of unique value
• Strict limits on the use of information/permissible use should be
very narrow
• Agreement on how the information is to be disposed of upon
termination of the agreement
• Requirement that employees of recipient have also signed NDA
covering the proprietary information
© 2012 Davis & Steele: Uncompromising Service, Unparalleled Value
www.davissteele.com

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Essential Terms of a
Non-Disclosure Agreement
• Term/duration – long enough to enable the parties to explore
teaming possibilities, PLUS additional time period to protect your
interests
• Provision detailing what is exempt/not included in the definition of
proprietary data:
▫ Public domain
▫ Already known
▫ Independently developed
▫ Legitimately obtained from another source
• Use common sense: Don’t disclose more than you need to!
© 2012 Davis & Steele: Uncompromising Service, Unparalleled Value
www.davissteele.com

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Teaming Arrangements
• FAR 9.601 Defines a “Team Arrangement” as an
arrangement in which:
▫ Two or more companies form a partnership or joint
venture to act as a potential prime contractor; or
▫ A potential prime contractor agrees with one or more
companies to have them act as its subcontractors
under a specified government contract or acquisition
program
▫ Includes subcontracting, partnerships, JVs
© 2012 Davis & Steele: Uncompromising Service, Unparalleled Value
www.davissteele.com

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Teaming Agreements: Purpose
1. To designate a team leader who will act as the prime
contractor for a particular contract;
2. To identify the products or services that each party will
provide, being as specific as possible;
3. To assign duties and responsibilities for preparing the
proposal (and to assign responsibility for costs of
preparing the proposal); and
4. To impose a duty on the parties to negotiate in good
faith toward the execution of a subcontract if the
proposal is successful.
© 2012 Davis & Steele: Uncompromising Service, Unparalleled Value
www.davissteele.com

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Teaming Agreements:
Enforceable?
• Enforceable When Carefully Drafted
• Teaming agreements may or may not be legally binding
commitments
• If forward looking and general, not likely to be a binding
commitment
• If detailed with essential provisions, may be a binding
commitment
© 2012 Davis & Steele: Uncompromising Service, Unparalleled Value
www.davissteele.com

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Teaming Agreements:
Enforceable?
• W.J. Schaefer Associates, v. Cordant, Inc., 254 Va. 514,
493 S.E.2d 512 (Va. 1997)
▫ Nonspecific agreement that left too many key provisions for later
negotiations was merely an “agreement to agree” and was,
therefore, unenforceable
▫ Too many terms “to be determined,” including
 Price
 Subject matter
 Delivery schedule
© 2012 Davis & Steele: Uncompromising Service, Unparalleled Value
www.davissteele.com

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Teaming Agreements:
Enforceable?
• EG&G Technical Services v. Cube Corp., 63 Va. Cir. 634
(Va. Cir. 2002)
▫ Teaming agreement was sufficiently specific and addressed the
essential terms
▫ Intent to bind the parties for contract formation in Virginia:
 Scope of work to be performed
 Compensation to be paid
 Terms and conditions to be incorporated in resulting contract
© 2012 Davis & Steele: Uncompromising Service, Unparalleled Value
www.davissteele.com

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Teaming Agreements:
Enforceable?
• ATACS v. Trans World Communications. (155
F.3d 659 (3rd Cir. 1998)
▫ Third Circuit Court of Appeals Held: teaming
agreement enforceable
▫ Intent to be bound
▫ Consideration
▫ Definite terms
© 2012 Davis & Steele: Uncompromising Service, Unparalleled Value
www.davissteele.com

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Teaming Agreements:
Enforceable?
• Factors favoring the creation of a binding and enforceable
agreement:
• Intent to be bound:
▫ Statements that one party will be awarded a subcontract if the
other party wins the prime contract
▫ Specific statement that the parties will work together as a team on
the project
• Consideration
▫ Specific price provisions covering the work to be performed by
the subcontractor
• Definite terms
▫ Specific scope of work under the prime contract
▫ Specific terms and conditions to be incorporated into the
expected prime contract
© 2012 Davis & Steele: Uncompromising Service Unparalleled Value
www.davissteele.com

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Teaming Agreements:
Enforceable?
• Factors against the creation of a binding and enforceable
agreement:
• No intent to be bound:
▫ Statement that the team members plan to enter into good faith
negotiations toward a final subcontract
▫ No statement that the team member will be awarded a
subcontract if the other team member wins the prime contract
• Consideration
▫ General statement that team members will seek to agree on
compensation
• Terms and Conditions
▫ General description of scope of work under the prime contract
▫ Statement that the parties will be released from their obligations
if they fail to negotiate a subcontract
▫ Lack of detailed terms and conditions
© 2012 Davis & Steele: Uncompromising Service Unparalleled Value
www.davissteele.com

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Content of a Teaming Agreement
• Every Teaming Agreement should contain, at a
minimum:
1. the purpose of the agreement;
2. whether the agreement is exclusive or non-exclusive
3. specific duties of the prime contractor;
4. specific duties of the subcontractor;
5. specific consideration
6. confidential information protection provisions;
7. dispute resolution provisions;
8. payment terms; and
9. a term and termination provision.
© 2012 Davis & Steele: Uncompromising Service Unparalleled Value
www.davissteele.com

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Content of a Teaming Agreement
• Additional provisions (not exhaustive):
1. non-solicitation
2. failure to agree on subcontract
3. exclusivity
4. organizational conflict of interest
5. technology transfer
6. disputes
7. assignment
8. publicity
© 2012 Davis & Steele: Uncompromising Service Unparalleled Value
www.davissteele.com

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Questions?
Janice Davis, Esq.
Davis & Steele
jdavis@davissteele.com
Phone: (202) 508-1492
© 2012 Davis & Steele: Uncompromising Service, Unparalleled Value
www.davissteele.com