Small Business and Teaming Agreements, Part II

Disclaimer – I am not licensed to practice law or give legal advice.  The information written in this blog is based on my experience negotiating hundreds of teaming agreements for large and small businesses over my 20+ years in Government Contracting.

In Part I of the blog, I discussed why Government contractors team and how teaming agreements typically work. In Part II I will discuss terms and conditions that I have personally negotiated most often and why they are important to small business owners. This list is not all inclusive and may be different from one organization to the next in terms of importance.

Workshare – Most RFPs will describe work and tasks that are to be performed during the potential contract. Workshare is the portion of work that you will receive if everything goes as planned in the RFP.  Some primes will not guarantee any work prior to winning the contract, if you can negotiate a percentage of workshare in writing that will only assist you with future planning of resources. I mention percentage of workshare versus specific full time employed/equivalent positions (FTEs) because the Government can change or delete tasks during the amendment phase of an RFP and if you have a specific percentage instead of a FTEs, you have a better chance of receiving the same percentage vs losing specific positions.

Exclusivity – The prime contractor will normally require that once you become a team member, that you will not work with any other companies on that particular pursuit.  It is important to ensure that there is no statement that prevents you from teaming with other partners for that same client on different pursuits or providing your normal services to that same client for work outside of this pursuit.

Advertising – Many agreements will require that you get permission from the Prime before you are allowed to advertise the contract win. A win for the Prime is a win for you, and of course you would like to share that information with the world. Requesting that the prime not unreasonably withhold their permission is important in this area.

Indemnity – An indemnity is an obligation by a person (indemnitor) to provide compensation for a particular loss suffered by another person (indemnitee).  As the sub, when you see this clause, you should at the very least ask for the same protection that the prime requires of you in case of an incident.

Proposal Participation – If you can participate with the prime in proposal preparation, it is important that the prime’s expectations are spelled out and you have the resources to contribute whatever you agree to.

Governing Law – Specifies that the laws of a mutually agreed upon jurisdiction will govern the interpretation and enforcement of the terms of the contract. In this case, you would obviously want to have any legal action addressed where your company does business, or in a state that you and the prime can agree upon.

Intellectual Property – A work or invention that is the result of creativity, such as a manuscript or a design, to which one has rights and for which one may apply for a patent, copyright, trademark, etc.  As a sub, you want to retain the rights to any intellectual property that you designed or developed.

Term – This includes the length of the teaming agreement as well as the conditions that would terminate the agreement.  It is important to pay close attention as these items will vary from one teaming agreement to the next.

Teaming Agreements are a very important piece of the puzzle as they can determine what happens down the road with relationships and future business.  It is imperative that you have someone that is familiar with negotiating the key terms and conditions and who can represent your organizations best interest.

 

Small Business and Teaming Agreements

Disclaimer – I am not licensed to practice law or give legal advice.  The information written in this blog is based on my experience negotiating hundreds of teaming agreements for large and small businesses over my 20+ years in Government Contracting.

In a perfect world, two parties (prime and sub Government contractors) determine that they have capabilities that complement one another for a particular effort and decide to become a team. A teaming agreement is successfully negotiated, the prime wins the contract, a subcontract agreement is signed between the prime and the sub, and the team goes on to deliver either a great service or product(s) to the Government and they create a long term relationship. There are however instances when a teaming agreement is negotiated and nothing ever happens for various reasons, such as the Request for Proposal (RFP) was cancelled, amended or put on hold, or the prime decides not to pursue the effort.

A teaming agreement is a contract between a (potential) prime and a potential sub in pursuit of a Government contract.  In most cases, the terms and conditions negotiated in the teaming agreement are later incorporated into the subcontract agreement, once the subcontract has been fully executed the teaming agreement then becomes void. Based on this, it is very important that you as a small business sub attempt to negotiate an agreement that is mutually favorable as possible for your business.  I use the word attempt, because in some cases there will be items that the prime will not be open to negotiating regardless of the push back that is received from you.

Teaming agreements can be issued before or after the prime has won a contract.  In most cases, the prime will issue a teaming agreement prior to the release of a RFP but there are times, when the work has already started and because the contract with the Government requires the prime get permission from the Government before bringing a subcontractor onto a project, a teaming agreement will be signed while waiting to receive the OK from the Government.

The terms and conditions that a business considers favorable will vary from one business to another. As a small business owner, you will have to determine what terms and conditions are important to your business. Lastly, as mentioned previously the terms and conditions agreed to in the teaming agreement will more than likely be incorporated into the subcontract agreement, it is helpful if most of the terms and conditions have already been agreed to prior to the subcontract phase. A teaming agreement is legal and binding as is any other contract, it is best to educate yourself or hire someone that can review your teaming agreements prior to signature and acceptance.

In part II of the blog, I will compile a list of some of the terms and conditions that I have seen negotiated most often between the prime and the sub in teaming agreements.

Successful Contract Management – Part 2 of 2

 

Successful Contract Management, Part 2 of 2In Part I we discussed the importance of requesting a debrief even if you win, reviewing the contract award in its entirety to ensure that everything is accurate and contacting the Contracting Officer in writing immediately to address any mistakes within the contract award before signing.

The Program Management Review (PMR) is a meeting with key members of the Contractors Staff (Finance, Contracts, and Programs) and their counterparts on the Government side. PMRs are usually scheduled monthly or quarterly and can be held over the phone, virtually or in person. The reason this meeting is critical to contract management is because you and the customer will give and provide feedback on the status of the contract/program such as are you on schedule, within budget, are your deliverables received by the due date and last but not least is the customer happy with your performance. This meeting also provides an opportunity to bring up any issues that you as a contractor maybe facing that impacts your performance and to discuss your plan to correct these issues. If you are meeting with you customer on a regular basis and having honest and productive discussions regarding the program there should be no surprises at the end of your contract when the Government rates your performance in the Contractor Performance Assessment Systems (CPARS). This information will be used in most cases when you submit future proposals for Government contracts, so it is imperative that you read the rating in its entirety and respond accordingly. Your assessment and your response are available to any Government agency for determining your eligibility for future Government contracts.

Almost all contracts experience some issue during contract performance. These issues can be caused by the Contractor, the Government and outside sources that you have no control over. When a problem or a potential problem is discovered, you should contact the Contracting Officer immediately. You can contact the Contracting Officer via phone, but you must always follow up the conversation in writing. If the issue has been caused by the Contractor, you should take steps to get the issue resolved as quickly as possible, those steps should be documented in writing and provided to the Contracting Officer. In cases where the issue may have been caused by the Government, or forces beyond your control, after bringing the issue to the attention of the Contracting Officer, you should work with the customer on a resolution and ensure that everything is documented to ensure that it does not appear that any interruptions were caused by you or your staff. It is imperative that all correspondence between you and the Government be kept in the contract file.

In general, within six months of the physical ending of the contract, the Government will start closeout procedures. Depending on what the work was that you were performing the documents that you receive will vary. You may receive the following documents, that must be signed and returned to the customer; a statement advising that the work is complete, a statement that the final invoice has been submitted, a statement that any Government property has been returned and is accounted for, Patent reports and if you had subcontractors, the items above have been settled with the subcontractor as well.

As previously mentioned, after the period of performance has ended the Program Manager and/or Contracting Officer will provide a performance rating in the CPARS system. You will have the opportunity to review and respond to your rating, including documenting the reason and resolution for any issues.

The steps documented are high level and general rules for what is required for Successful Contract Management. Your particular situation may require more or less input to ensure the success of your contract performance.


 

Constance Jackson is the owner of Jackson Contract Solutions, LLC. Constance has more than 20 years’ experience working with small and large Federal Government Contractors, and Federal Agencies providing proposal management, contract management, training and acquisition planning.

Successful Contract Management – Part 1 of 2

Successful Contract Management, Part 1 of 2

You have won a Government contract, now what?

You have received the award letter from the Government advising that your proposal was chosen and you are the successful offeror. Congratulations! Successful contract management begins immediately after you receive the letter and the new contract for review and signature. Let’s discuss some of the steps that will help to ensure that your contract is managed successfully.

Request a Contract debrief – You should always request a debrief. The debrief request must be in writing and received from your company by the Government within 3 calendar days of receipt of the notice that you won the award. As no proposal submission is perfect, the debrief will provide an opportunity to review errors and mistakes with your submission, and will assist with creating lessons learned for future proposal submissions.

Schedule an internal kickoff meeting – An internal meeting to review the award should be scheduled ASAP. During this meeting a single POC for Contracts and the Program should be established.

Read, Review and Compare – Read the contract award in its entirety and compare your proposal submission to the contract documents to ensure critical areas such as the Statement of Work, Contract Deliverables, Period of Performance, Special Requirements, Invoicing Instructions, Contract Type, Contract Value and Funding are accurate. If any errors are found within the contract award they should be addressed with the Contracting Officer immediately in writing. (The Contract Award documents should be read and understood by Contracts, Finance, and the Program Manager at a minimum). Notes should be taken during this the internal kickoff meeting to document any questions or items for clarification which will be raised during the kickoff meeting with the customer.

Schedule an external kickoff meeting with the Customer – The kickoff meeting with the customer should be scheduled as quickly as possible to ensure that any questions or misinterpretations are addressed and to make certain that you and the customer are on the same page. Any ambiguous dates in the statement of work for contract deliverables such as “due on the 2nd Tuesday each month”, should be made as specific as possible and the interpretation of calendar days vs. business days should also be addressed to ensure that there is a firm understanding on actual due dates. During this meeting you should also establish dates for monthly or quarterly Program Management Reviews which should happen throughout the entire period of performance.

In Part II, we will discuss Program Management Reviews, Problems during Contract Performance and how they are addressed and Contract Closeout.


Constance Jackson is the owner of Jackson Contract Solutions, LLC. Constance has more than 20 years’ experience working with small and large Federal Government Contractors, and Federal Agencies providing proposal management, contract management, training and acquisition planning.

The Value of Professional Proposal Support

The Value of Professional Proposal Support - Jackson Contract Solutions, LLCThe expectation that because your business is small, your proposal cannot compete with large experienced businesses is simply untrue!  Investing in professional proposal support can ensure that your proposal submission is compliant, complete, submitted on time and professional.  While no individual or organization can guarantee that your company will be awarded a contract with local, state or federal Government, investing in professional proposal support could absolutely be the difference between new or additional business for your company and a Dear John letter from the Government advising that you were not selected as the awardee.

Compliance, completion and timeliness are the top tier reasons proposals are rejected and/or not selected for contract award.  Let us explore compliance, completion and timeliness as they relate to the Request for Proposal process with the Government.

Compliance – When your proposal is compliant, this means that you have read the entire document including the technical, management, pricing and past performance information requested and you have responded accordingly to all requirements as the Government has asked.

Completion – A complete proposal includes compliance with the requirements, the cover letter, representations and certifications, table of contents, page count, margins, font size etc. The instructions have been followed and packaged as the Government requires.

Timely – A timely proposal is one that is received by the Government on or before the due date and prior to the set time.

Professional – A professional proposal is one that is free of typos, math mistakes and grammatical errors.

The right professional proposal support can ensure that these critical areas are addressed and requirements are met by developing a compliance matrix specific to the request for proposal. This document captures the requirements, who is internally responsible for writing and provides a crosswalk to show where each requirement is addressed within the response. The development of the proposal outline ensures a complete proposal as the items that are required for compliance, and the other areas that have to be addressed are all included.  The proposal schedule is developed to ensure that your final submission is ready to go with ample time for review and corrections and delivered to the Government prior to the actual due date.

If you are unfamiliar with a compliance matrix, proposal outline and a proposal schedule, these documents are used by large contractors for every request for proposal that they respond to. Hiring a consultant to assist with your proposal support gives your small business the same tools as large businesses. While the cost varies based on the level of service required, it is well worth the investment to propel your organization to the next level in the multibillion dollar business of Government Contracting.


Constance Jackson is the owner of Jackson Contract Solutions, LLC. Constance has more than 20 years’ experience working with small and large Federal Government Contractors, and Federal Agencies providing proposal management, contract management, training and acquisition planning.