PARTNERING TO WIN ON FEDERAL CONTRACTS: Teaming, Joint Ventures, and the Mentor Protégé Programs Presented By: Maria L Panichelli, Esq. Part 1 of a 4 - Part GovCon Webinar Series, Presented in Conjunction with

Maria L. Panichelli, Esq. Maria L. Panichelli, Esq. Maria.Panichelli@Obermayer.com 215.665.3017 @MariaPanichelli www.linkedin.com/in/mariapanichelli

A Primer

Know the Lingo…and The Key Differences What is “Teaming” Anyway? Sometimes used as “umbrella term” meant to encompass several things Strictly speaking, a specific type of subcontracting relationship CTAs? Are “Teams” the Same as “Joint Ventures?” No, there are important differences JV as prime contractor And Why is Mentor-Protégé in the Mix?? Relation to JVs? Purpose of program

Fundamental Concepts Basic Building Blocks What is a “set-aside” contract? What does it mean to be a “small” business? Are there specific types of small businesses? What are the benefits of being a “small” business? What is affiliation and why is it important?

Fundamental Concepts Why Do Companies Team? The rise of “set aside” contracts means large businesses are looking for a way in… Meanwhile, the increased importance on non-price evaluation factors means small businesses are looking for a leg up on the competition…

Fundamental Concepts Why Do Companies Team? Large businesses can leverage their small teaming partner’s eligibility, while Small businesses leverage their large business partner’s capabilities Other types of teams do exist!

Fundamental Concepts Why Do Companies Team? Helps small businesses grow Helps large businesses get access to contracts Promotes relationship-building The question becomes….what type of partnership is best And How do I do it right?

Teaming or Joint Venture? Which is Right For You?

Teaming v. Joint Ventures Lots of Things to Think About: Business Considerations Practical Considerations Legal Considerations

Teaming v. Joint Ventures Important Differences: Who is the Prime Contractor? Control, Responsibility, Liability, Finances, Etc. Affiliation Issues (Is Mentor Protégé Required?) Timing, Targets Leveraging of Capabilities

Teaming v. Joint Ventures Key Considerations: Your Goals, Strengths Weaknesses, Capabilities Your Partner’s Goals, Strengths, Weaknesses, Capabilities Reality v. Expectations or Hope

Teaming Tips

Teaming Tips Keys for a Successful Team: Diligence Accountability Transparency Open and Honest Communication Trust Keys to Drafting a Good Teaming Agreement: Exclusivity Enforceability Expectations

Teaming Exclusivity Do you want your competitors to have the same leg up? Remember: Trust; Communication; Transparency Address this issue up front Be specific about scope and term of exclusivity arrangement!

Teaming Enforceability A mere “agreement to agree” or does language manifest an intent to bind the parties? Level of specificity in language Jurisdiction

Teaming Expectations – Other Essential Provisions for Teaming Term and Termination Protest Rights and Responsibilities Protection of Proprietary Information/NDAs and Non- Solicitation Subcontract Terms Governing Law Plan for all Contingencies!

** Pro Tip: Attach a draft subcontract to your teaming agreement** Best Practice Advice Don’t be vague; the more specific the better Use mandatory language Be particular about scopes of work Open and honest communication and discussion of all potential contingencies ** Pro Tip: Attach a draft subcontract to your teaming agreement**

Teaming The Ugly Side of Teaming – What Can Go Wrong? Destroy small business Status/Eligibility Lost Eligibility for Future Contracts Other Violations Sanctions/Fees/Debarment?

Draft your teaming agreement to avoid these problems! The Ugly Side of Teaming – How Do Things Go Wrong? Affiliation “Unconditional” Control Issues Performance of Work Requirements Not Met Draft your teaming agreement to avoid these problems!

“Small” Joint Ventures

Joint Ventures Who is In the Joint Venture? Two (or more) Small Businesses Each is Individually Small… A Large and Small Business(es) Mentor Protégé is a Prerequisite

“Small” Joint Ventures & The Mentor Protégé Programs

Mentor Protégé Programs A Primer on the Mentor Protégé Programs Two Programs Purpose? Eligibility Mentors Protégés

Mentor Protégé Programs A Primer on the Mentor Protégé Programs Written Agreement, Application Application Review, Approval/Reconsideration On-going Evaluation and Reporting Requirements

Mentor Protégé Programs Benefits of Mentor Protégé Relationship In order to raise capital, the protégé firm may agree to sell or otherwise convey to the mentor an equity interest of up to 40% in the protégé firm

Mentor Protégé Programs Benefits of Mentor Protégé Relationship No determination of affiliation or control may be found between a protégé firm and its mentor based solely on the mentor-protégé agreement or any assistance provided pursuant to the agreement A protégé and mentor may joint venture as a small business for any government prime contract or subcontract, provided the protégé qualifies as small for the procurement

Compliant Joint Ventures

Mentor Protégé Joint Ventures “Small” Joint Ventures: Requirements Written Agreement Performance of Work and Performance of Work Reports Certificate of Compliance Inspection of Records Consequences?

Mentor Protégé Joint Ventures Other Eligible JVs: Requirements 8(a) - 13 CFR 124.513(c) HUBZone - 13 CFR 126.616 SDVO SBC - 13 CFR 125.18(b) WOSB/EDWOSB - 13 CFR 127.506 What about VA VOSB/SDVOSB? Don’t forget about CVE/VetBiz!

Questions?

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