Jonathan D. Frieden, Esq.
ODIN, FELDMAN & PITTLEMAN, P.C.
www.ofplaw.com
jonathan.frieden@ofplaw.com
@JonathanFrieden
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Teaming Agreements should be drafted with
the purpose of the specific project and
relationship in mind
If you use a form teaming agreement for each
project, you do so at your own peril
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Pre-Award Provisions
Post-Award Provisions
General Provisions
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Pre-award provisions govern the relationship of
the parties as they pursue the Government work
Concepts to consider:
Exclusivity
 Division of proposal labor and cost
 Assignment of leadership and management
responsibilities
 Termination conditions
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 Award of project
 Award of project to third-party
 No award by certain time
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Govern the relationship of the parties once the
Government work is awarded to the Prime
Contractor and may set forth the terms of the
Subcontract relationship
Concepts to consider:
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Work-share
Compensation
Flow-down clauses
Further subcontracting of the subcontractor’s work
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General provisions govern the overall
relationship, whether pre-award or post-award
Concepts to consider:
Confidentiality
 Protection of intellectual property
 Protection of employees and contractors
 Protection of client relationship
 Indemnification
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CASE RESULTS DEPEND UPON A
VARIETY OF FACTORS UNIQUE TO EACH
CASE, AND FURTHER STATE THAT CASE
RESULTS DO NOT GUARANTEE OR
PREDICT A SIMILAR RESULT IN ANY
FUTURE CASE UNDERTAKEN BY THE
LAWYER.
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The decision “raises questions about the usefulness
of these commonly employed agreements-and not
just in Virginia.”
“’Agreements to Agree’ May Provide a False Sense
of Security to Government Subcontractors”
Virginia is not “hospitable” to teaming
agreements.
“This case reinforces the need for contractors to
draft teaming agreements carefully to be sure the
agreement will be enforced should a dispute arise
between the parties.”
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Mere “agreements to agree” are unenforceable under
Virginia law
It was a “teaming agreement” written in terms of a
future transaction or later, more formal agreement and
presumed to be an agreement to agree
The parties’ chief post-award obligation was to “exert
reasonable efforts . . . to negotiate a subcontract”
within certain nebulous guidelines
The agreement expressly acknowledged the possibility
that such negotiations would fail and provided that the
teaming agreement would terminate upon the “failure
of the parties to reach agreement on a subcontract after
a reasonable period of good faith negotiations.”
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It is being appealed
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It applies Virginia law
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Maryland and D.C. and many other states also hold that
“agreements to agree” are unenforceable
It doesn’t apply to a teaming agreement’s pre-award
provisions
It should not have been a surprise to anyone familiar
with government contracting in Virginia
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We expect the District Court’s decision to be affirmed
The legal concepts upon which the opinion is based are wellsettled and long-standing
It is fundamentally fair and based upon business concepts well
understood in the industry
It’s fairly easy to follow the law
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If you intend for the parties to enter into a subcontract
once the Government awards word to the prime
contractor, attach a copy of the subcontract they will
execute as an exhibit to the teaming agreement
If you can’t attach the entire subcontract, attach a form
subcontract, leaving “blank” only the provisions which
cannot yet be included
Ensure that the teaming agreement clearly sets forth
the specific work to be done by each party, where that
work is to be completed, the personnel being used to
complete the work, and the compensation to be paid
for the work
If you intend your teaming agreement to also be the
subcontract, don’t act like you don’t
Jonathan D. Frieden, Esq.
ODIN, FELDMAN & PITTLEMAN, P.C.
1775 Wiehle Avenue, Suite 400
Reston, Virginia 20190
jonathan.frieden@ofplaw.com
@JonathanFrieden on Twitter