Non-Disclosure Agreements (NDAs) & Teaming Agreements (TAs) Government Contracts University GOVCON U Non-Disclosure Agreements (NDAs) & Teaming Agreements (TAs) Milton Johns Partner

Milt Johns Partner, FH+H Has spent 30+ years in government and defense contracting arenas in a variety of roles Appeared and argued in General District and Circuit Courts of numerous Virginia jurisdictions, the Supreme Court of Virginia, the U.S. District Court, Eastern District of Virginia, the U.S. Bankruptcy Court, Eastern District of Virginia, U.S. Court of Federal Claims and the U.S. Fourth Circuit Court of Appeals

NDAs – Background What are NDAs? The first agreement in any business to business relationship. It is imperative to negotiate a good NDA. The basic purpose of an NDA is to allow each business to exchange sensitive data or information. There are no magic words or formulas for NDAs, but there are a number of key questions that an NDA should answer.

First Who are the parties? Are there more than two parties involved? Will the NDA bind subsidiaries, parents, or affiliated companies?

Second What is the scope of the information being exchanged? Do not be too broad, or too specific, in scope. An NDA should focus on a particular program, proposal or project.

Third What type of information will be exchanged? Will it be technical information shared between program counterparts? Will it be business development information? Will it be pricing data?

Fourth In what media will the data be exchanged? Will only written material be exchanged? If oral data is disclosed, how will each side notify the other side that that data is considered proprietary, and therefore covered by the NDA?

Fifth Are there any exceptions? Data not covered by the NDA: Data in the public domain Data discovered or learned from a third party Data discovered through independent efforts of a part Data not properly marked or qualified under the NDA

Sixth What are the penalties or sanctions for breach of the NDA?

Seventh How long will the NDA last? How long will the parties be required to protect the data that is exchanged?

Eighth Under what law, and in which courts, should the NDA be governed? If there is a breakdown between the parties, and litigation is inevitable, where will any contest be heard? What law will apply? Virginia law and courts are good. STAY AWAY FROM CALIFORNIA!

What Should Not be in an NDA? Teaming Agreement Information Work Share Exclusivity Promises to Perform on Other Contracts

Finally Always have contracts or legal personnel review a TA before signing. Always know what you are signing!

Teaming Agreements – Background TAs are crucial in government contracting. TAs lay the foundation for companies to cooperate in pursuing, budding on, and executing contracts. The basic purpose of a TA is to define the framework for the relationship between two companies. As with NDAs, there are no magic words or formulas for TAs. However, there are a number of key questions a TA should answer.

First Who are the parties? Are there more than two parties involved? Will the TA bind subsidiaries, parents, or affiliated companies?

Second What is the scope of the project? Is this a strategic partnership with long term goals and interests, or is this a limited agreement focused on a single proposal response? Be careful on how this is worded!

Third Will the parties deal exclusively with each other? What are the limitations of the exclusivity? How will they be enforced? Does the exclusivity agreement bind subsidiaries, parents, or affiliates? What is the duration of the exclusivity? Is the exclusivity reciprocal?

Fourth Is there an existing NDA covering the parties to the TA?

Fifth What are the duties of each party? Will one side produce the proposal alone? Will the other side be required to provide only financial data? Technical data? Resumes? Will each party be responsible for its own costs and expenses in connection with the proposal? When is the information due to be delivered to the other side?

Sixth What are the penalties or ramifications for late submissions? Will the data be fully disclosed or limited? In what media will the data be exchanged? Will only written material be exchanged? Is the data covered by an existing NDA?

Seventh Is there an agreement on work share of any resulting contract? Is the promise binding or illusory? Will the work share be based on dollars, hours, or some other metric?

Eighth What are the penalties or sanctions for breach of the TA? Will the TA include non-compete/non-solicit language? Is the language specific in subject matter and geographically reasonable?

Ninth How will the TA terminate (because it must)? Will it terminate on award of a resulting subcontract? Can a team member be terminated from the team for nonperformance or malfeasance?

Tenth Under what law and in which courts should the TA be governed? If there is a breakdown between the parties and litigation is inevitable, where will any contest be heard? What law will apply? Virginia law and courts are usually good choices. STAY AWAY FROM CALIFORNIA. Do not randomly agree on a jurisdiction with no connection to either party.

Finally Always have contracts or legal personnel review a TA before signing. Always know what you are signing!

Questions? For More Info www.fhhfirm.com (703) 590-1234 Milt Johns mjohns@fhhfirm.com