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Teaming Agreements & Advanced Subcontracting Issues

2008 Dates and Locations:

October 15-16
Marvin Conference Center
Washington, DC
REGISTER ONLINE

December 11-12
Flamingo Las Vegas
Las Vegas, NV
REGISTER ONLINE

Registration Fee
$ 995

Daily Schedule
Registration: 8:45 on the First Day
Meetings: 9:00 – 12:00 and 1:00 – 4:00

CLE Hours
This Course is Eligible for
11.0(60 minute)
13.2(50 minute)
More CLE Info

CPE Hours
This Course is Eligible for
13.0(CPE)
hours of credit.
Program Level: Basic
Program Prerequisite: None
Advance Preparation: None
Method: Group-Live
More CPE Info

The advanced issues, problems, and techniques of creating and performing teaming agreements and subcontracts in Federal procurement today.

The purpose of this special program is to detail the unique advanced problems and solutions that subcontracting and teaming arrangements present.

Companies often find that the boilerplate clauses on the back of purchase orders create more problems than they solve. Instead, a systems approach to subcontracting is needed - one that assesses the risk, defines the objectives, and then allows for flexible responses. Further, the use of teaming arrangements has increased significantly over the past number of years, especially on contracts for sophisticated, high-tech items where no single company has all the technical resources to do the work involved. Consequently, the Government has actively encouraged such arrangements for some programs and projects.

The course details are set forth in the balance of this brochure: the detailed Course Curriculum, the exceptional Course Faculty, the comprehensive Course Manual of originally prepared materials.

Teaming Agreements & Advanced Subcontracting Issues Course Curriculum

Subcontracting

  1. Subcontracting and Company Profits
    1. Company Motivation
    2. Controlling the Expenses
    3. The Subcontract Agreement
      1. Specific terms
      2. Profit/Loss shifting
      3. Administration after award
  2. A Systems Approach
    1. Preparing Terms and Conditions
    2. A Negotiator’s Manual
      1. Company policies
      2. Trade-off issues
      3. Harm assessment
      4. Obtaining deviations
      5. Management by exception
      6. Policing during performance
      7. Examples
  3. Pitfalls in Source Selection of Subcontractors
    1. Federal Rules
    2. State Rules
    3. Risks of Inclusion of Subcontractor's Material in Prime's Proposal
    4. Fraud Suit Potentials
    5. Protests At GAO
    6. Other Court Actions
    7. Subcontract Approval by Federal Government
      1. High risk areas-avoidance techniques
      2. How to comply
      3. Examples
  4. Contractor Procurement System Reviews (CPSRs)
    1. The Regulations
    2. The Government's Track Record
    3. How to Prepare and Conduct Them
    4. Taking Corrective Action
    5. Appealing Negative Findings
  5. Subcontract Types and Uses
    1. The Key Decisions
    2. Fixed Price
      1. Whys use
      2. Risks
    3. Cost Type
    4. Time and Material
    5. Successive Targets
    6. Incentives
    7. Award Fees
    8. Indefinite Quantity
    9. Going Too Far
  6. Major Terms and Conditions: Problems and Solutions
    1. Ending the Battle of the Forms
    2. Changes Clauses
    3. Payments Clauses
    4. Default/Delay Clauses
    5. Termination for Convenience Clause
    6. Liquidated Damages Provision
    7. Inspection Clauses
    8. Warranty Clauses
    9. Technical Data Clauses
  7. Key Performance Problems
    1. Controlling Change Orders
      1. Notice of claims
      2. Written agreement before proceeding
      3. Eliminating constructive change doctrine
      4. Simple clauses
      5. Primes who do not issue changes
    2. Delay Controls
      1. The contract language
      2. Liquidated damages-prime vs. subcontractor
      3. Schedule analysis
      4. Notice provisions
      5. Going too far
      6. Right of prime to stop subcontractor's work
  8. Sole or Designated Source Subcontractor
    1. Federal Rules
    2. The Problem
    3. State Rules
    4. Case Decisions
    5. The Prime’s Protection
      1. Pre-bid survey
      2. Negotiating with agency
      3. Special clauses
      4. High risk approaches
  9. Other Performance Issues
    1. The Breach Problem
    2. Clauses to Solve Work Stoppage
    3. “Scope” Changes
    4. Right to Performance Assurances
    5. Close Out of Contract Performance
    6. Managing Subcontract Documentation
  10. Defective Cost or Pricing Data
    1. The Subcontractor's View
    2. The Prime’s View
    3. Statutory Requirements
    4. Subcontractor's Defective Pricing
      1. Audits
      2. Government suit
      3. Prime liabilities
    5. A “Defective Pricing Proof” Prime or Subcontractor Transaction
    6. Certification Problems
    7. Indemnity Clauses
  11. Dispute Resolution Techniques
    1. Minimizing Litigation
    2. Close-End vs. Open-Ended Arbitration
    3. Prime vs. Subcontractor-Analysis of Goals
    4. The Three Basic Choices
    5. Subcontractor Remedies
    6. Cost of Dispute Resolution
    7. Joint Appeal Agreement

    TEAMING AGREEMENTS

  12. Purposes
    1. The Prime’s Perspective
    2. The Subcontractor's Perspective
  13. Preliminary Considerations
    1. Advance Confidentiality Agreements
    2. Exclusivity vs. Non-Exclusivity
      1. Prime and subcontractor perspectives
      2. Implications
      3. Cost and technical transfusion
    3. Intended Effect of Agreement
      1. To negotiate in good faith
      2. Agreement to agree
      3. Absolute duty to place subcontract
    4. Anti-Competition Issues
      1. Primary line impact
      2. Secondary line impact
      3. Duration
      4. Related legislation
  14. The Teaming Agreement
    1. Definition of “Program”
      1. Concept development
      2. Full scale development (FSD)
      3. Production
      4. Options
      5. Foreign sales
      6. Licensing
    2. “Contract” and “Subcontracts” Defined
      1. Changes
      2. Post-expiration options
    3. Allocating the Primary Responsibility
    4. Proposal Efforts and Content
      1. Areas of responsibility
      2. Preparing the drafts
      3. Decision authority
      4. Duty to submit
      5. Timing
      6. Negotiations with customer
      7. Relationship to subcontract price
    5. Termination
      1. Convenience
      2. Default
      3. Technical and cost jeopardy
    6. Expiration
    7. Alteration of Work
      1. By prime
      2. By customer
    8. Effecting the Subcontract
      1. Duty to place
      2. Duty to negotiate
      3. Duty to agree
      4. Duty to accept & perform
      5. Planning for failure
      6. Government approval
      7. Relationship of parties
    9. Intellectual Property
      1. Contribution to team
      2. Patents and data
      3. Use of intellectual property
      4. Licensing
      5. Field of use restrictions
      6. Derivative property
    10. Publicity
    11. Raiding
    12. Precedence/Survival of Agreement
    13. Disputes
    14. Subcontract Terms and Conditions
      1. Contract type
      2. Price
      3. Terminations
      4. Options
      5. Workshare
      6. Data rights

Course Faculty

John W. Chierichella Partner in the Washington, D.C. office of Sheppard, Mullin Richter & Hampton LLP • Mr. Chierichella has a broad range of experience in government contract matters, including prime contractor/subcontractor disputes, teaming agreements, claims and appeals, cost issues, qui tam litigation, General Services Administration schedule contracting, foreign military sales and judicial challenges to federal contract awards • He has written a number of articles and lectured extensively on various subjects relating to the federal procurement process, including independent research and development, teaming agreements, foreign procurement and foreign ownership, state and local procurement and the product liability problems of government contractors • Mr. Chierichella is on the Advisory Board of The Government Contractor ; a member of the American Bar Association's Sections of Public Contract Law, Administrative Law and Litigation; and the National Contract Management Association. He is admitted to the bar in the District of Columbia, California and New York • Bachelor of Arts degree from Cornell University; Juris Doctor degree from Columbia Law School where he was selected as a James Kent and Harlan Fiske Stone Scholar and served as Notes & Comments Editor of the Law Review.

Louis D. Victorino Practices law in the Washington, D.C. office of Sheppard Mullin Richter & Hampton LLP• Mr. Victorino's practice involves both counseling and litigation in the Public Contract Law field, representing domestic and foreign concerns that sell products or services to Federal, State, or local government agencies. In his 33 year career, he has litigated in excess of forty matters before the Court of Federal Claims, the Boards of Contract Appeals, the Comptroller General, various state and Federal District Courts • Mr Victorino has also participated in multiple International Chamber of Commerce and American Arbitration Association arbitrations • Admitted to the bars of the District of Columbia, California, U.S. Court of Federal Claims, and the Federal District Courts for the Northern and Central Districts of California, Colorado, Idaho, Michigan, Rhode Island, and Washington • Graduate of Stanford University, and the UCLA School of Law, where he was an Associate Editor of the UCLA Law Review • Author and lecturer on Government Contracts Law including: