Date post: | 14-Sep-2014 |
Category: |
Business |
View: | 376 times |
Download: | 0 times |
Dra$ing Enforceable and Helpful
Teaming Arrangements
Presented By:
Jackson W. Moore
Smith, Anderson, Blount, Dorse=, Mitchell & Jernigan, LLP www.smithlaw.com
[email protected] (919) 821-‐6688
Outline
I. Teaming Agreement Basics: JV’s, TA’s and SubK’s
II. Cyberlock and Teaming Agreement Enforceability
III. Key ConsideraUons in DraVing a JV IV. Key ConsideraUons in DraVing a SubK V. QuesUons
2
I. Teaming Arrangement Basics
3
Teaming Arrangements
4
Joint Venture (JV) FAR 9.601(1)
Teaming Agreement
Prime / Subcontract (SubK)
FAR 9.601(2)
Teaming Agreements: Joint Ventures & Contracts/Subcontracts
• Joint Venture vs. contractor/subcontractor
– JV: “Two or more companies form a partnership or joint venture to act as a potenUal prime contractor” FAR 9.601(1). This includes mentor-‐protégé joint venture agreements.
– Contractor/Subcontractor: “A potenUal prime contractor agrees with one or more other companies to have them act as its subcontractors under a specified Government contract or acquisiUon program” FAR 9.601(2).
5
Teaming Agreements: Why the Government Cares
• Groupings to compete for a government contract. FAR 9.602. – “[c]omplement unique capabiliUes” – “[o]ffer the Government the best combinaUon of performance, cost,
and delivery for the system or product being acquired” • Government allows teaming agreements, so long as they follow
government regulaUons. FAR 9.603. • Versus tradiUonal B2B world, where joint ventures and prime/subcontract
relaUonships are: – Less regulated – Without size standards – Without governmental oversight.
6
Joint Ventures
• “[C]ompanies form a partnership or joint venture to act as a potenUal prime contractor”
• Key Word: Partnership • Members share profits and losses • Each Member has authority to:
– make decisions that bind the joint venture – interact with government
• Joint Venture has the contract with the government – not each member
7
Pros & Cons of a Joint Venture • Pros
– JV member has increased stature (vs. SubK) – Shared control – Individual firms can stay smaller longer
• Cons – Joint responsibility for performance (vs. SubK) – Shared control – Lead/Larger team member gives up some control to other team member
– TerminaUon/unwinding JV more complicated
8
Contractor/Subcontractor
• Prime contractor enters into contract with government – Prime subcontracts with other team member – No “privity” between the government and subcontractor
• Only Prime interfaces with government – Prime controls contract – DuUes are defined in SubK
• No sharing of profits and losses • Subcontractor paid according to SubK only
9
Requirements for Joint Ventures
• Requirements Vary by Type of Team – SBC/SBC JV for SBC set aside. 13 CFR § 121.103(h)(3)
– 8(a)/non-‐8(a) JV for 8(a) set-‐aside. 13 CFR § 124.513
– SDVOSB/SBC JV -‐ 13 CFR § 125.15(b) – WOSB/SBC JV -‐ 13 CFR § 127.506 – HUBZone/HUBZone JV -‐ 13 CFR § 126.616
10
More Joint Venture Requirements
• Generally: – “Managing venturer” must be the small business. – “Project manager” must be the small business. – Small business must perform percentage of the work (not including administraUve funcUons).
– A certain % of profits may need to go to small business. – JV agreement may need to include certain terms. – JV may need to show benefit to small business. – There may be registraUon and reporUng requirements.
• In some cases, SBA pre-‐approval required for JV agreement
11
III. The Cyberlock Decision
(April 3, 2013)
12
Cyberlock • A Detailed Teaming Agreement, and Not a Generic One, Is Needed Before the ParUes Can Chase a Government Contract.
• Lawsuit: Team members agreed, in wriUng, that if the prime bidder was awarded a contract, 51% percent would be performed by the prime and 49% by the teammate as a subcontractor. Team members did not: – Agree how the scope of work would be divided. – A=ach terms of subcontract that would be executed.
• Agreement noted that it was possible parUes would not be able to agree on the terms of a subcontract.
13
Cyberlock • Teammates prepared proposal together. Prime won the contract but teammates could not agree on terms of the subcontract.
• Decision:
– No contract, an “agreement to agree” only. – Teaming agreement too indefinite to enforce.
• Virginia law applied, might be appealed to Fourth Circuit.
14
IV. Dra$ing a JV Agreement (Key ConsideraVons)
15
IdenVfy the Purpose and Scope of the JV
• IdenUfy the specific contracts or projects the JV is pursuing
• What do you intend to do and not do • Is this a “Preference” JV with specific requirements • Number of parUes • Individuals vs. enUUes • What tax and other regulatory issues will be impacted • Is this an InternaUonal JV – what local laws are implicated
16
IdenVfy the Form of the JV
• Populated vs. Unpopulated • Jointly owned corporaUon or group of corporaUons • Partnership • LLC • Contractual (non-‐equity) JV – Informal and less structure
Ø Note: Issues affecUng determinaUon will include tax, liability, regulatory, acquisiUon strategy, IP ownership, exit strategies, etc.
Ø Interim Le=er of Intent (binding or non binding)
17
Governance of the JV
18
• How will be the JV be managed (manager managed, joint venturer managed, officers, board of directors, commi=ee)
• Authority of the manager – business decisions, personnel decisions, investment, distribuUons, etc.
• Authority of the co-‐venturers (Members) – replace managers, individual vs consensus powers, Ue breaker,
• MeeUngs – frequency, quorum, iniUaUon, locaUon, etc. • IdenUfy acUons requiring majority or unanimity approval
of the members or a board
Financial Decisions of the JV
19
• How will the JV be financed – venturer financed, 3d party, credit line, venture capital, etc.
• AccounUng pracUces and accounts • DistribuUons of profits and investment of profits • Responsibility for debt • Who signs the checks • Audit procedures • Financial reports – format, responsibility,
frequency, etc.
Business Decisions of the JV
20
• Bid and Proposal responsibiliUes • Who brings what to the table • Who makes the criUcal decisions • Who prepares and who approves the budget • Who prepares and who approves business plans • Insurance for the JV (separate policy)
Share and Interest Transfer RestricVons of the JV
21
• Normally no transfers permi=ed except as provided in agreement
• Transfers to affiliates – subject to agreement, joint and several
• Call rights • First Offer/First Refusal • Tag-‐along/drag-‐along rights • Buy-‐sell rights
ConfidenVality
22
• Separate nondisclosure agreements – Benefits • Protect Proprietary InformaUon • Term • Survivability • IP and Technology protecUon
IndemnificaVon & Insurance
23
• Mutually focused provisions and protecUons • What should be covered under insurance
NonsolicitaVon and Noncompete
24
• Most complicated and sensiUve to negoUate • Address exposure of your greatest assets –
employees • Exposure to compeUUon • Are restricUons reasonable • DissoluUon
Exit and/or TerminaVon Rights
25
• Triggering Events: ü Default – Material breaches, change of control,
suspension, debarment, etc. ü No-‐default – Deadlocks, 3d party offers,
frustraUon of business intent • ProtecUon for Minority Member(s) • Treatment of JV debt • Ongoing performance of contracts • ValuaUon of Exit Share
Closing Process of the JV
26
• Clearly define rights and obligaUons • ResignaUon of seller’s representaUves • Guarantees and Covenants of seller/co-‐venturer • Guarantees and Covenants of 3d party/buyer • Survival of key terms in agreement
V.
Dra$ing a Teaming and SubK Agreement
(Key ConsideraVons)
27
Teaming Agreements
28
• Set condiUons for SubK • Exclusivity • Define contribuUons, responsibiliUes and
obligaUons • Bid & Proposal costs • AffiliaUon • Good faith and Ume limits for creaUng a SubK • NDA and confidenUality provisions • Non-‐compete & non-‐solicitaUon clauses
Subcontract Agreements I
29
• Ensure it tracks prime contract (compliance term, period of performance, OCI plans, etc.)
• Flow down provisions (term for convenience, term for cause, etc.)
• Approval of 2nd Uer Subcontractors • RelaUonships with the client • IP & Technology protecUons (old vs. created)
Subcontract Agreements II
30
• Breaches • NoUces to parUes • TerminaUon (voluntary and involuntary) • Venue – will it be exclusive • Choice of Law – what law se=les disputes
ConfidenVality
31
• Separate nondisclosure agreements – Benefits • Protect Proprietary InformaUon • Term • Survivability • IP and Technology protecUon
IndemnificaVon & Insurance
32
• Mutually focused provisions and protecUons • What should be covered under insurance
NonsolicitaVon and Noncompete
33
• Most complicated and sensiUve to negoUate • Address exposure of your greatest assets –
employees • Exposure to compeUUon • Are restricUons reasonable
Dispute ResoluVon
34
• MediaUon • ArbitraUon
Ø An express arbitraUon clause Ø Mandatory?
• LiUgaUon • Venue • Exclusive jurisdicUon • Costs
Trust, Trust, Trust!
35
QuesVons?
Smith, Anderson, Blount, Dorse=,
Mitchell & Jernigan, LLP www.smithlaw.com
Jackson W. Moore
[email protected] (919) 821-‐6688