In a recent decision, the Government Accountability Office (“GAO”) disappointingly, if unsurprisingly, confirmed that it no longer has jurisdiction to hear protests against a task order issued by a civilian agency.

First, a bit of history on the GAO’s jurisdiction to hear protests against task orders. As government contract aficionados likely already know, the Competition in Contracting Act (“CICA”) of 1984 established GAO’s jurisdiction to hear protests against contract solicitations ad awards. Because the trend towards massive, multiple-award contract vehicles was not yet in full swing in 1984, CICA did not distinguish between protests against individual contracts and task orders awarded off of IDIQ contracts.

A legal distinction between resolution on protests of standalone contracts and task order awards was not made until ten years later, when Congress passed the Federal Acquisition Streamlining Act (“FASA”). Confronting the issue of task order protests for the first time, FASA barred all GAO protests regarding procurements of task orders, except for where a protestor alleged that the task order increases the scope, period, or maximum value of the underlying IDIQ contract.

In 2008, following a period that saw an accelerated shift in contracting practices away from standalone awards and towards strategic sourcing vehicles and other large IDIQs, Congress reconsidered the issue of task order protest jurisdiction. Consequently, Section 843 of the National Defense Authorization Act for Fiscal Year 2008 (“the NDAA”) expanded GAO’s ability to hear protests against task order to include protests of any task order over $10 million. Subsequent NDAAs made GAO’s $10 million task order protest threshold permanent for orders placed by Department of Defense agencies, but established that the GAO’s jurisdiction over task orders of civilian agencies would cease on Sept. 30, 2016 without a further act of Congress. Compare 41 U.S.C. § 4106(f) (relevant provision for civilian agencies) with 10 U.S.C. § 2304c(e) (relevant provision for DoD). Congress, somewhat predictably, did not act before the Sept. 30^th deadline.

On November 7^th, 2016, the GAO issued a decision in Ryan Consulting Group, Inc. In Ryan, the protestor was one of many awardees of a National Institute of Health (“NIH”) IDIQ contract. The U.S. Department of Housing and Urban Development (“HUD”) issued a task order, valued over $10 million, off of the NIH IDIQ. Ryan Consulting bid, was not selected for award, and filed a bid protest with the GAO on October 14, 2016, alleging that HUD misevaluated proposals. GAO dismissed the protest, holding, in pertinent part:

[O]ur jurisdiction to resolve a protest in connection with a civilian agency task order, such as the one at issue, expired on September 30, 2016, pursuant to the express terms of 41 U.S.C. § 4106(f)(3). Moreover, the protester does not otherwise argue that the order at issue increases the scope, period, or maximum value of the underlying IDIQ contract. Accordingly, our Office does not have jurisdiction to consider the protest.

Takeaway for Contractors

Until Congress acts, contractors looking to challenge a civilian agency’s task order award are largely out of luck. Unless the potential protestor can allege that the order has expanded the parameters of the master IDIQ in some way, the GAO is unlikely to entertain any protests. Currently, the House of Representatives and the Senate are at odds over the path forward, with the House proposing to reinstate task order jurisdiction (See Section 1862 of the House’s proposal for the 2017 NDAA) and the Senate seeking to eliminate it permanently, in favor of a system where task order protests are resolved by an internal agency ombudsman (See Section 819 of the Senate’s proposed 2017 NDAA). The issue of task order jurisdiction is likely to be resolved when Congress passes a full NDAA for fiscal year 2017, which is expected to happen in the next several months.

Workers’ compensation insurance helps cover the medical costs and a portion of lost wages for an employee who becomes ill or injured during work. Discover if you’re eligible to include workers’ compensation coverage to your handyman insurance package

General liability insurance, or GL, is a fundamental part of handyman insurance. It helps to provide protection against lawsuits and other financial liabilities that result from things like accidents or other mishaps. General liability is often bundled with a variety of other coverages in a BOP.

At HandymanInsurance.com you can find the right policy at the best price for your business by shopping over multible A rated companies and programs in California.

Business Dental Plans 

As a business owner, you are facing many difficult dental insurance plan decisions. One of the decisions is buying a business dental plan. Business dental insurance plans have become essential to businesses due to the increasing benefit needs of the employees, especially when they visit the dentist.

Group business dental insurance coverage is more affordable since all the participants of the plan are under one policy normally paid by the employer. Offering dental insurance to employees can aid in the employer recruitment and retention.

Studies indicate that supplemental employee benefits such as dental insurance can help retain high quality employees. The cost for business dental insurance will very, depending on the number of employees, the plan specifications, employee contributions, and the cost limitations you specify with your dental insurance agent.

On July 31, 2014, President Obama signed Executive Order 13673. Subsequently, last year, the Department of Labor issued proposed guidance, and the Federal Acquisition Regulatory Counsel published proposed changes to the Federal Acquisition Regulations (“FAR”), implementing the order. Of all the Executive Orders signed by Obama during his tenure as president,Executive Order 13673 could be the most important for Federal government contractors. This is because it imposes substantial obligations on contractors.

Executive Order 13673 applies to any Federal government procurement contract where the estimated value of goods or services is over $500,000.00. To be eligible for any such contract, a Federal government contractor must, among other things, make certain disclosures concerning the violation(s) of labor laws by itself or its subcontractors.

More specifically, contractors must now self-report (at the time of bidding and periodically or on a semi-annual basis thereafter) any negative finding (including administrative merits determinations, arbitral awards or decisions, and civil judgments rendered against them) concerning non-compliance with certain laws (including violations of the National Labor Relations Act, the Fair Labor Standards Act, the Migrant and Seasonal Agricultural Worker Protection Act, the Service Contract Act, the Davis-Bacon Act, the Occupational Safety and Health Act, the Vietnam Era Veterans readjustment Assistance Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, Section 503 of the Rehabilitation Act, Title VII of the Civil Rights Act, Executive Order 11246, Executive Order 13658, or any analogous state statutes or regulations) in the preceding three (3) years.

Federal contractors must also disclose similar information regarding its subcontractors. Specifically, the contractor must disclose if its subcontractors were found guilty of violating any of the above-named laws in the last three years, on contracts exceeding $500,000.00. The contractor has a further obligation to pass through these reporting requirements to the subcontractor itself. In other words, the prime contractor must require its subcontractors to independently self-report violations of the referenced statutes in the preceding three years and to update that disclosure every six months. Finally, the contractor is required to consider its subcontractors’ disclosed violations when determining whether it is appropriate to enter into a subcontract with that subcontractor.

On the government side, the Executive Order will require each agency to designate a “Labor Compliance Advisor.” That Labor Compliance Advisor will assist the agency’s contracting officers in determining if the reported violations should affect the contractor’s ability to receive the award. Specifically, they will determine whether the violations are “serious, repeated, willful or pervasive”. They will also analyze whether the disclosed violations have been sufficiently remedied, and whether the contractor remains a “responsible source that has a satisfactory record of integrity and business ethics.” The Labor Compliance Advisor can, in their discretion, refer a contractor to the applicable debarment authorities based on these conclusions.

The White House has stated that these new requirements were enacted with numerous goals in mind, including the following: to Hold Corporations Accountable; Crack Down on Repeat Violators; Promote Efficient Federal Contracting; Protect Responsible Contractors; Focus on Helping Companies Improve; Give Employees a Day in Court; Streamline Implementation and Overall Contractor Reporting. These are all admirable goals.

As part of this expansion, a number of industries formerly listed as those in which women were “substantially underrepresented” have moved over to the “underrepresented” list. That means that, while contracts in these industries could previously only be set aside only for EDWOSBs, they now can be set aside for WOSBs. While EDWOSBs are still eligible to compete for WOSB contracts, it does widen the competition. For that reason, while WOSBs generally see this expansion as a huge win, some EDWOSBs feel it has negatively impacted their competitive edge. We will have to wait and see what the ultimate result is, and how it impacts the total number of contracts awarded to WOSBs and EDWOSBs.

Family Dental Insurance – The Most Popular Options

Family dental insurance plan works absolutely for those who desire coverage for family members.  A family dental insurance plan is one of the most popular supplemental options for overall medical insurance policies.  Family dental insurance plan is a very great way to cover your family, at reduced costs and greater benefits.  Most people that have an individual or family dental insurance plan have it provided to them under an employer-sponsored group dental insurance plan.

The Right Amount of Coverage – Family Dental Insurance Plans

There are a multitude of family dental insurance plans that can provide the right amount of coverage for your entire family at an affordable rate.  With a family dental insurance plan you will have access to oral surgeons, endodontists, pedodontists, periodontists and orthodontists. In addition, under an individual and family dental insurance plan basic preventative services such as teeth cleaning and oral exams are generally covered 100%.

How to Find the Best Family Dental Insurance Plans

Many of our family dental insurance plans provide access to more than 80,000 providers nationwide and include professional dentists located near your home.  Family dental care doesn’t have to cost an arm and a leg.  Family dental insurance will protect a family’s oral health and insure that trips to the dentist do not painfully affect the your wallet.

Family insurance dental plans are the greatest way to make sure healthy kids with great smiles and a strong mouth and teeth.  Family dental insurances include great benefits and coverage that includes everyone in your family.  Family members For most dental insurance plans are discussed in your household children under 18 years.  Family dental insurance for better oral health is a key aspect that creates a feeling of bond between the family members and is one of the most popular supplemental options for overall medical insurance policies.

Another important change with regard to subcontracting limitations is the addition of a carve-out for certain small dollar contracts. Set-aside contracts under $150,000 will no longer be subject to the limitations on contracting set forth at 13 C.F.R. § 125.6, so long as they are small business set-asides. For 8(a), WOSB/EDWOSB, SDVOSB and HUBZones set-aside contracts, these subcontracting limitations will still apply regardless of contract dollar amount.

As explained above, under the old rule, compliance differed based on the type of set-aside at issue, and varied based on whether the acquisition was for services, supplies, general construction, or specialty trade construction. Some self-performance requirements were calculated using “the cost of the contract incurred for personnel.” Others used “the cost of the contract (not including the costs of materials)” or “the cost of manufacturing the supplies or products (not including the costs of materials).” These small differences between the manner of calculation could cause much confusion. It often proved very difficult for contractors to figure out exactly what, exactly, they had to do, or what work they had to perform, in order to be compliant. Self-performance calculation questions were the some of the most common questions posed by our small business clients.

The revised regulation is much simpler. First of all, it eliminates the differences between the different small business programs: the same rules apply to small business, 8(a), WOSB/EDWOSB, SDVOSB and HUBZone set-asides. Second, regardless of whether the contract is one for services, supplies, or construction (general or specialty), the subcontracting limitations are described in terms of “the amount paid by the government to [the prime contractor]” That said, construction contractors will still have to exclude costs of materials from their calculations. Even so, this revision will make it much, much simpler to determine exactly how much you can subcontract and still be compliant.

The final rule also provides some clarification regarding “mixed contracts” – i.e. those contracts that contain elements of both supply and service contracts, to which several different subcontracting limitations could therefore apply. The rule explains that “the CO must first determine which category, services or supplies, has the greatest percentage of the contract value, and then assign the appropriate NAICS code.” The corresponding limitations on subcontracting will then apply “only to that portion of the requirement identified as the primary purpose of the contract.” The SBA further explained:

Therefore, where a procurement combines supplies and services, the limitations on subcontracting apply only to subcontracts that correspond to the principal purpose of the prime contract. For a contract principally for services, but which also requires supplies, this means that the prime contractor or its similarly situated subcontractors cannot subcontract more than 50 percent of the services to other than small concerns. However, the prime contractor can subcontract all of the supply components to any size business.

One of the most talked about elements of the new rule is the fact that subcontracts made to “similarly situated entities” are not counted towards the applicable subcontracting limit. The NDAA defined a similarly situated entity as “a small business subcontractor that is a participant of the same small business program that the prime contractor is a certified participant and which qualifies the prime contractor to receive the award.”  In other words, a HUBZone could subcontract to another HUBZone, or an 8(a) could subcontract to another 8(a), without counting those subcontracts towards the applicable limit.

In its 2014 proposed rule, the SBA proposed that a subcontractor had to be “small” for purposes of the NAICS code assigned to the prime contract in order to fall within the definition of “similarly situated entity.”  In the final rule, however, the SBA has departed from that idea; under the new regulation, a subcontractor may qualify as a “similarly situated entity” so long as it is “small” under the NAICS code assigned to the subcontract, regardless of whether the subcontractor is “small” for purposes of the prime contract’s NAICS code. Because prime contractors – and not the government – are responsible for assigning NAICS codes to their own subcontracts, this provides a lot more flexibility. (Of course, primes will have to remember to assign NAICS codes to their subcontract, something they often forget to do currently.)

The NAICS code shift is not the only change regarding “similarly situated entities” that occurred between the proposed rule and final rule. Under the proposed rule, the SBA required the prime contractor and any “similarly situated” subcontractors to execute written “teaming” agreements containing certain mandatory provisions. However, because the written agreement requirement was heavily criticized during the comment period, it was removed from the final rule. The new rule does not require written agreements between primes and their “similarly situated” subcontractors.

During the comment period, questions were raised about how these concepts would be applied to lower tier subcontractors. More specifically, people were concerned that if compliance was determined by looking at first tier subcontractors only, a first tier “similarly situated” subcontractor could in turn pass all of its performance on to a large or otherwise not similarly situated entity through a second subcontract, thus circumventing the regulation entirely. To address these concerns, the SBA explained in the final rule that:

SBA will apply the limitations on subcontracting collectively to the prime and any similarly situated first tier subcontractor. . . any work performed by a similarly situated first tier subcontractor will count toward compliance with the applicable limitation on subcontracting. Any work that a similarly situated first tier subcontractor subcontracts, to any entity, will count as subcontracted to a non-similarly situated entity for purposes of determining whether the prime/sub team performed the required amount of work. In other words, work that is not performed by the employees of the prime contractor or employees of first tier similarly situated subcontractors will count as subcontracts performed by non-similarly situated concerns.

Under the old version of the regulation, compliance with the performance of work requirements differed based on the type of small business program set-aside at issue (i.e. small as compared to 8(a), WOSB/EDWOSB, SDVOSB, or HUBZone). Moreover, the method for calculating compliance not only varied by program set-aside type, but also based on whether the acquisition was for services, supplies, general construction, or specialty trade construction. For example, a prime contractor on a general construction contract set-aside for HUBZone companies had to spend “at least 15% of the cost of contract performance incurred for personnel on the concern’s employees.” In comparison, an 8(a) prime contractor performing a set-aside contract for supplies or products had to “perform at least 50 percent of the cost of manufacturing the supplies or products (not including the costs of materials).” In other words, compliance was determined using a percentage threshold, which the prime contractor had to meet.

The rule shakes this up a bit. The overall goal remains the same: Keep a minimum of small business dollars in small business pockets. However, as the SBA explains, the revised regulation “creates a shift from the concept of a required percentage of work to be performed by a prime contractor to the concept of limiting a percentage of the award amount to be spent on subcontractors.” For instance, using the example above, rather than requiring a contractor to self-perform 15%, the revised 13 C.F.R. § 125.6 mandates that the prime contractor cannot subcontract more than 85%. It’s a slightly different, but important, change in perspective

As many of you know, 13 C.F.R. § 125.6 establishes minimum self-performance requirements for small business prime contractors performing various types of set-aside contracts. The intent of this regulation was to avoid “pass-through” situations (where small businesses awarded set-aside contracts subcontracted virtually their entire contracts to large businesses), which would divert government dollars from the intended small business beneficiaries, and thereby negate the purpose of the agency’s small business programs. To avoid this problem, SBA enacted 13 C.F.R. § 125.6, requiring small business prime contractors to self-perform a certain percentage of the work on its set-aside contracts.

In its final rule published on May 31, 2016, the SBA modified the regulations relating to affiliation based on an “identity of interest” pursuant to 13 C.F.R. § 121.103(f). Specifically, the SBA provided clearer guidelines regarding identity of interest affiliation due to familial relationships and economic dependence.

“Compliance Guidelines Regulations Concept” width=”171″ height=”109″ />he presumption of affiliation based on familial relationships to firms that conduct business with each other and are owned or controlled by married couples, parties to a civil union, parents, children and siblings. This presumption may be rebutted by showing a clear line of fracture between the firms. It is notable that the rule suggests that affiliation is presumed only if the firms conduct business with each other. This appears to allow family members who own firms to escape the presumption of affiliation so long as the companies are not engaged in any business transactions with each other.

Additionally, the final rule presumes an identity of interest affiliation based on economic dependence if the firm in question “derived 70% or more of its receipts from another concern over the previous three fiscal years.” Under the old rule, there was no such fixed percentage, however, the 70% figure was regularly used by SBA’s Office of Hearings and Appeals in its decisions. The presumption may be overcome by a showing that the firm in question is not solely dependent upon another firm. The final rule suggests that this presumption may be rebutted by, for example, a showing that a concern has only been in business for a short period of time, and therefore has only been able to secure a limited number of contracts.

The final rule has provided much needed clarity to the identity of interest basis of affiliation. It will be interesting to see how the SBA Office of Hearings and Appeals interprets and applies this rule going forward.

PPO Dental Insurance – Another True Private Insurance Plan

Learning about Dental PPO’s Preferred Provider Organizations – another true insurance plan, a preferred provider organizations ( PPO) falls somewhere between an indemnity plan and a dental HMO.  A PPO dental insurance plan will provide you with more freedom to choose your dentist than an HMO dental plan.  You will be able to seek dental services from a wider selection of dentists and may visit any dentist or specialist within the PPO network.

Deductibles and Coinsurance – Typical with a PPO Dental Insurance Plan

With a PPO dental insurance plan you will usually have a deductible and a coinsurance amount.  In some cases, PPO dental plans will give you an option to seek dental treatment outside of the directory of dentists.  If your PPO dental plan provides this option, you will most likely be required to pay a higher coinsurance and your maximum payable benefits amount may also be greatly reduced for treatments outside of the network.

Before Choosing a PPO Dental Insurance Plan – Considerations

Similar to the HMO dentist, a dentist that accepts PPO dental insurance members will do so in an attempt to establish a patient base.  Before choosing a PPO dental insurance plan, make sure that there are dentists available in your area that accept the plan.  Typically, PPO dental insurance plans are said to offer better service and have less limitations than HMO dental insurance plans, but the premiums are usually more costly.  The rates are usually lower if the insured member selects a primary dentist and/or dental specialists from the dental PPO network, but the insured individual still has the freedom to choose a dental care provider outside of the established network.

PPO Dental Plans – Final Thoughts When Selecting a Plan

Participants insured with a dental PPO insurance plan are responsible for paying their deductible before receiving any reimbursement.  One of the key differences between dental HMO insurance and dental PPO insurance is that DPPOs usually allow dentists to spend more time with insured patients.  Dentists in dental HMO insurance plans are expected to see a certain number of patients, so some dentists have been known to rush through dental appointments.  A PPO dental insurance plan consists of numerous dentists that sign up to join a network insurance system or group with hopes that they will have many patients to service.  When subscribers join a PPO dental plan, they benefit from lower out-of-pocket costs when they see one of the network dentists.

Though the two concerns outlined above are important factors when comparing the relative benefits of teaming or joint venturing, they are not the only two considerations contractors should take into account. Contractors must also consider the structure of each individual company, the degree of control each company wishes to have over the partnership and the projects it performs, and the specific business terms each company finds acceptable. Each of these inquiries is heavily fact dependent, and can implicate other issues and concerns described herein, and in our upcoming installments. If you are confused about which option is best for you, consult a legal professional who can help walk you through all of the possibilities.

Many people confuse teaming (sometimes referred to as a “Contractor Teaming Agreement” or “CTA”) and joint venturing. In truth, these two types of partnerships have some major differences, and raise different types of compliance concerns.

“Teaming” is really just a special kind of subcontracting, where (in the small business set-aside context) a small-business that fulfills a certain procurement’s set-aside requirements serves as the prime contractor, and subcontracts a substantial portion of the work to another (often larger) business. The “team” is set up before the bidding/proposal process, the contractors work together on the bid/proposal, and the procuring agency is made aware of the “team” prior to the source selection process. The teaming agreement is customarily submitted as part of the bid/proposal itself.

In comparison, joint venturing is when two companies (in the small business set-aside context, usually one large and one small) form a third, joint venture or “JV” entity. If the JV is formed and structured appropriately, the JV itself will be eligible to compete as a “small” business.

By now you might be asking, “how do companies know whether teaming or JVing is better for them?” The answer is that they have to consider a multitude of issues, including those set forth below.

Affiliation is a big deal, because it can impact whether a business qualifies as “small.” To determine if a contractor qualifies as a “small business” for the purposes of a given contract, the contractor must locate the North American Industry Classification System (“NAICS”) code assigned to that contract (usually found in the solicitation itself), and refer to the “size standard” associated with that code. A size standard is measured either in revenue or employees. To qualify as “small,” a concern must not exceed the dollar threshold or number of employees designated for a particular code. When two companies are found to be “affiliated,” their respective sizes (determined by either revenue or number of employees) are added together. The total is what is evaluated when determining whether the company is actually “small” based upon the SBA’s “size standards.” If the sizes of the two businesses, added together, exceed the applicable size standard, neither can be considered “small.” Accordingly, a finding of “affiliation” is something small businesses generally want to avoid.

Key Considerations in Small Business Teaming: How to Form a Productive Partnership While Safeguarding your Interests and Protecting your Small Business Eligibility. You can read Part I here. Today, we will be focusing on how to avoid common pitfalls in teaming. But check out our previous installment on the differences of teaming and joint venturing, and stay tuned for our final installment, which will address how to draft an enforceable teaming agreement that will protect your interests as a small business.

Teaming is one of the hottest topics in Federal contracting – and for good reason. Whether you are a small business looking to expand your capabilities, or a large business looking for access to set-aside contracts, teaming can greatly expand your federal contracting opportunities. However, though teaming is often talked about, it is just as often misunderstood. This is problematic because, when done incorrectly, teaming can cause a host of issues, all of which have very serious consequences. For small businesses in particular, there are significant risks. Improper teaming can adversely impact small business status, rendering a small business contractor ineligible for future set-aside contracts. For those reasons, it is critically important that small business contractors be educated as to the most common pitfalls relating to teaming. This article seeks to do just that. We will focus on two key problem areas: affiliation, and subcontracting limitations.

Indemnity Dental Insurance A Traditional Fee-for-Service Plan

Indemnity dental insurance is another plan where the plan pays the dentist on a traditional fee-for-service basis.  Indemnity dental insurance is an insurance package where the policyholder can choose his or her own dentist and the insurance provider will be the one to pay that designated dentist your fees or, usually, around half of them.  This indemnity dental insurance plan allows you to select any licensed dentist for service.  An indemnity dental insurance plan is often called a traditional dental coverage plan or a fee for service plan.  You will need to pay a deductible on your indemnity dental insurance.

Feature of an Indemnity Dental Insurance – 100% Preventive Care Options

There are several features of indemnity dental insurance plans for individuals that make these plans different from many other types of dental coverage: Insurance providers will pay up to 100% of preventative dental care.  Although they are becoming increasingly rare, indemnity dental insurance plans are also still available and provide the freedom to choose the dentist of your choice at a higher out-of-pocket expense.  In indemnity dental insurance plans, the insured has to pay all the costs for services directly and then submit a claim for reimbursement once a deductible has been met.

Indemnity Dental Insurance Plans – They are NOT Dental Discount Plans

Also included with discount dental plans, these are not dental insurance, but can provide you with the freedom to visit any dentists at considerable discounts over their standard charge, though they are seemingly rare, but the indemnity dental insurance plans are also available to provide freedom to choose the dentist from your choice on a higher out of pocket expenditure.  The lack of benefits has rendered traditional indemnity dental insurance little more than two inexpensive continuing care visits, consisting of an examination, prophylaxis (cleaning) and radiographs (X-rays) per year and help with minor restorative treatment, such as a few direct restorations (fillings).

Freedom of Choice When Selecting a Dentists – Indemnity Dental Insurance Benefits

Indemnity dental insurance plans usually employ an “open panel” of dentists.  Indemnity Dental Insurance Plans. This type of dental plan pays the dental office (dentist) on a traditional fee-for-service basis.  Like a PPO dental plan, indemnity dental insurance plans give you the freedom to go to the dentist of your choice.

As with any contract, it is important that the parties to a teaming agreement understand and agree with each other’s expectations in terms of division of work, control, and communication.  Nowhere is this more important than in the small business context, where small business contractors need to make sure that the performance of a contract does not negatively impact their small business size or status.  It is imperative that small business contractors discuss, and negotiate, teaming agreement (and subcontract) terms that ensure that affiliation, ownership and control issues are dealt with, and that all requirements set forth in the small business regulations – including those concerning performance of work requirements –be met.  A good way to cover these is to include provisions specifically outlining each contractor’s scope of work, responsibilities, and authority.   If you follow our advice above, concerning enforceability, it is likely that you have covered much, if not all, of these types of provisions already.  But if not, make sure these crucial provisions are included.

In addition, make sure to discuss other standard contract provisions such as how to handle disputes and disagreements, applicable processes and procedures, and communication requirements.  If you have questions, consult a legal professional.

Another important concept to keep in mind when you are a small business is exclusivity.  Exclusivity clauses are provisions in teaming agreements that prohibit one or both parties from entering into other teaming arrangements.  This is helpful from small businesses because it can keep larger businesses from “playing the field.”

Consider the following example.  SmallBiz, Inc. and LargeCo are going to team for purposes of competing for Project X.  Project X is a 100% small set-aside procurement.  SmallBiz, therefore, would be the prime, with LargeCo as the subcontractor/teaming partner.  Now, without an exclusivity provision, LargeCo could go around and enter into teaming agreements with SmallBiz, as well as all of SmallBiz’s competitors, who will also be competing for the Project X contract award.  It is in LargeCo’s interest to pursue such a strategy.  If they do, no matter which small business offeror gets the contract, LargeCo gets to perform as the teaming partner/subcontractor.  In other words, LargeCo wins no matter what – but, SmallBiz does not.

Presumably, the reason SmallBiz was teaming with LargeCo was so that SmallBiz could get a leg up and be a stronger competitor, as compared to the other small businesses competing for the Project X award.  Maybe SmallBiz was relying on LargeCo’s past performance and experience; maybe SmallBiz was relying on LargeCo’s extensive capital resources, or capabilities.  But if LargeCo has entered into teaming agreements with all of the offerors (or even some) then all of those offerors are getting the same LargeCo “boost.”  SmallCo isn’t gaining any competitive edge because all of its competitors are also relying on the same LargeCo teaming partner’s experience, resources, or capabilities.  SmallBiz, therefore, does not get a leg up over its competitors.  Which kind of defeats a major point of teaming.

So how do you avoid this?  With an exclusivity provision.  As a small business, it is critical that your teaming agreement prohibit your teaming partner from entering into multiple teaming agreements.  Make sure that they are teaming with you, and you alone, and that you are the only competitor who be getting that “boost” from your teaming partner’s past experience or capabilities, etc.  Sometimes, especially in cases of multiple-award contracts, exclusivity provisions are even boarder.  They might prohibit the team members from entering into teaming agreements with regard to any task order issued under a MAC/MATOC.  Either way, this is a vital provision that needs to be negotiated before entering into a teaming agreement.

Many people assume that they can draft a generic teaming agreement and figure the details of the teaming relationship, and eventually, subcontract, at a later point.  This is simply not the case.  It is critically important that you include in your teaming agreement detailed terms that outline, specifically, how the parties intend to structure their team, and what work each party plans on performing.  Absent specific provisions, courts will view teaming agreements as mere “agreements to agree”  Such “agreements to agree” are generally considered unenforceable.

How to Form a Productive Partnership While Safeguarding your Interests and Protecting your Small Business Eligibility.

In today’s Federal contracting market, a growing number of government contracts are set-aside for various types of small businesses.  It’s no surprise that, in this highly competitive environment, cooperative contractor relationships – including teaming and joint-venturing – are increasingly popular among small and large businesses alike.  Of the two, teaming has become more popular because it can provide more flexibility that joint-venturing, and can often be finalized more quickly than joint venture agreements.  For this reason, teaming has become one of the hottest topics in Federal contracting.

However, though teaming is often talked about, it is just as often misunderstood.  Many people overestimate the “flexibility” it allows for, and run afoul of the various SBA and VA small business regulations. Moreover, although there are many reputable, honest large business contractors out there looking for teaming partners, there are also one or two unethical large companies that will try to take advantage of small business contractors, using them as for their small business eligibility.  These businesses care little about protecting the small business’ long-term eligibility or reputation.  These things, together, can have disastrous consequences for small businesses, including the loss of small business size status and eligibility.

As a small business, it is critically important that, when teaming, you take care to avoid these types of problems.  The key to doing that is to draft a detail-specific, enforceable teaming agreement that creates a productive partnership, but also protects your interests and eligibility.   This article seeks to help you do just that by using the three “E”s: Enforceability, Exclusivity and Expectations.

 As many of you know, “affiliation” is a dangerous word in federal small business contracting. A finding of affiliation can destroy a business’ small business size status, and render you ineligible for future VOSB/SDVOSB set-aside contracts. The good news is, in most cases, “affiliation” is entirely avoidable. In this session, we explain what affiliation is, why it matters, and how to avoid it. We will discuss both ostensible subcontractor and general affiliation, and walk you through the tests used by the SBA when analyzing affiliation. Finally, we will highlight the most common affiliation mistakes that companies make, and provide strategies for avoiding them.