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Teaming Agreements & Advanced Subcontracting Issues
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Provider:
Federal Publications Seminars, A Thomson Business
Topic(s):
Purchasing/Procurement
Who Should Attend?
Purchasing professionals
Full Seminar Description
In-depth review of concepts and problems of subcontract formation and performance; analysis of significant areas to be considered before entering into agreements; anti-competition issues; confidentiality agreements and exclusivity matters posed by teaming arrangements; prime contractor and subcontractor perspective of teaming arrangements, instruction on drafting and negotiating terms and conditions which work to minimize risk and increase profitability; solving performance problems and limiting litigation threats. 13 CPE hours. Fee per person: $1025.Daily Schedule
9:00a.m.-4:00p.m.
CLE Hours
This Course is Eligible for
11.0(60 minute)
13.2(50 minute)
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
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 may 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.
Course Curriculum
SUBCONTRACTING
SUBCONTRACTING and COMPANY PROFITS
- Company Motivation
- Controlling the Expenses
- The Subcontract Agreement
- Specific terms
- Profit/Loss shifting
- Administration after award
A SYSTEMS APPROACH
- Preparing Terms and Conditions
- A Negotiator’s Manual
- Company policies
- Trade-off issues
- Harm assessment
- Obtaining deviations
- Management by exception
- Policing during performance
- Examples
PITFALLS IN SOURCE SELECTION OF SUBCONTRACTORS
- Federal Rules
- State Rules
- Risks of Inclusion of Subcontractor's Material in Prime's Proposal
- Fraud Suit Potentials
- Protests At GAO
- Other Court Actions
- Subcontract Approval by Federal Government
- High risk areas-avoidance techniques
- How to comply
- Examples
CONTRACTOR PROCUREMENT SYSTEM REVIEWS (CPSRs)
- The Regulations
- The Government's Track Record
- How to Prepare and Conduct Them
- Taking Corrective Action
- Appealing Negative Findings
SUBCONTRACT TYPES and USES
- The Key Decisions
- Fixed Price
- Whys use
- Risks
- Cost Type
- Time and Material
- Successive Targets
- Incentives
- Award Fees
- Indefinite Quantity
- Going Too Far
MAJOR TERMS and CONDITIONS: PROBLEMS and SOLUTIONS
- Ending the Battle of the Forms
- Changes Clauses
- Payments Clauses
- Default/Delay Clauses
- Termination for Convenience Clause
- Liquidated Damages Provision
- Inspection Clauses
- Warranty Clauses
- Technical Data Clauses
KEY PERFORMANCE PROBLEMS
- Controlling Change Orders
- Notice of claims
- Written agreement before proceeding
- Eliminating constructive change doctrine
- Simple clauses
- Primes who do not issue changes
- Delay Controls
- The contract language
- Liquidated damages-prime vs. subcontractor
- Schedule analysis
- Notice provisions
- Going too far
- Right of prime to stop subcontractor's work
SOLE OR DESIGNATED SOURCE SUBCONTRACTOR
- Federal Rules
- The Problem
- State Rules
- Case Decisions
- The Prime’s Protection
- Pre-bid survey
- Negotiating with agency
- Special clauses
- High risk approaches
OTHER PERFORMANCE ISSUES
- The Breach Problem
- Clauses to Solve Work Stoppage
- “Scope” Changes
- Right to Performance Assurances
- Close Out of Contract Performance
- Managing Subcontract Documentation
DEFECTIVE COST OR PRICING DATA
- The Subcontractor's View
- The Prime’s View
- Statutory Requirements
- Subcontractor's Defective Pricing
- Audits
- Government suit
- Prime liabilities
- A “Defective Pricing Proof” Prime or Subcontractor Transaction
- Certification Problems
- Indemnity Clauses
DISPUTE RESOLUTION TECHNIQUES
- Minimizing Litigation
- Close-End vs. Open-Ended Arbitration
- Prime vs. Subcontractor-Analysis of Goals
- The Three Basic Choices
- Subcontractor Remedies
- Cost of Dispute Resolution
- Joint Appeal Agreement
TEAMING AGREEMENTS
PURPOSES
- The Prime’s Perspective
- The Subcontractor's Perspective
PRELIMINARY CONSIDERATIONS
- Advance Confidentiality Agreements
- Exclusivity vs. Non-Exclusivity
- Prime and subcontractor perspectives
- Implications
- Cost and technical transfusion
- Intended Effect of Agreement
- To negotiate in good faith
- Agreement to agree
- Absolute duty to place subcontract
- Anti-Competition Issues
- Primary line impact
- Secondary line impact
- Duration
- Related legislation
THE TEAMING AGREEMENT
- Definition of “Program”
- Concept development
- Full scale development (FSD)
- Production
- Options
- Foreign sales
- Licensing
- “Contract” and “Subcontracts” Defined
- Changes
- Post-expiration options
- Allocating the Primary Responsibility
- Proposal Efforts and Content
- Areas of responsibility
- Preparing the drafts
- Decision authority
- Duty to submit
- Timing
- Negotiations with customer
- Relationship to subcontract price
- Termination
- Convenience
- Default
- Technical and cost jeopardy
- Expiration
- Alteration of Work
- By prime
- By customer
- Effecting the Subcontract
- Duty to place
- Duty to negotiate
- Duty to agree
- Duty to accept & perform
- Planning for failure
- Government approval
- Relationship of parties
- Intellectual Property
- Contribution to team
- Patents and data
- Use of intellectual property
- Licensing
- Field of use restrictions
- Derivative property
- Publicity
- Raiding
- Precedence/Survival of Agreement
- Disputes
- Subcontract Terms and Conditions
- Contract type
- Price
- Terminations
- Options
- Workshare
- Data rights
Sponsor Background:
Federal Publications Inc., founded in Washington, DC in 1958, is recognized as the dominant force in providing Government procurement information to contracts professionals—the leader for high quality print publications, electronic materials, and educational seminars on Government contracting subjects. Construction contracting, immigration law, personnel and employment, international law and business, and environmental law are other areas in which Federal Publications has gained a reputation for high quality products.Instructor(s):
John W. Chierichella, Louis D. VictorinoInstructor Background:
John W. Chierichella, Partner in the Washington, D.C. law offices of Fried, Frank, Harris, Shriver & Jacobson • Concentrates on prime contractor/subcontractor disputes, the negotiation and litigation of teaming agreements, and the applicability of the antitrust laws to Government contracts • Member of the American Bar Association (ABA), Past Chairman of the Contracts Committee of the ABA’s Section of Public Contract Law; member of the Steering Committee of the Board of Contract Appeals Bar Association • Has written and lectured extensively on numerous Federal procurement matters • Bachelor of Arts degree from Cornell University; Juris Doctor degree from Columbia University, 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, Partner in the Washington, DC office of Fred, Frank, Harris, Shriver & Jacobson • Member of the American Bar Association's Section of Public Contract Law • Bachelor of Art degree from Stanford University; Juris Doctor degree from the University of California at Los Angeles where he served as an Editor of the UCLA Law Review
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