Let’s face it, teaming agreements are seldom creative writing assignments. They are burdened by decades of structural expectations and painfully dense language. Consequently, it’s tempting to write off teaming agreements as one dimensional legal documents, and nothing more. This would be a mistake. Teaming agreements have a diverse audience, which can be leveraged to improve a contractors odds of success.
Getting to Know Your Audience
Great writing requires firm understanding of your intended audience—at least that’s what my freshman composition professor kept trying to tell me. You know what? He was right.
Audience refers to the group or groups of people who you expect to read your writing. This may be a select group of readers with a common understanding of the subject material, or a broad group of readers with diverse understandings and interests. Regardless of the scope, your audience will dictate style and language choices, as well as depth and breadth that specific topics are addressed.
When written down, contracts have an audience. Whether contract drafters fully appreciate that audience, however, is less clear. The mechanical nature of the writing often overlooks what different audiences try to obtain from a contract. Where the parties may want guidance on transaction procedures, lawyers and judges may be evaluating language to find enforcement ambiguities. These audiences need different things but are all looking to the same document for guidance.
Teaming agreements for federal procurements are no different. Teaming agreements serve the unique purpose of committing a prime contractor and subcontractor to collaborate on developing a proposal for a federal procurement. The benefit of this collaboration is that the prime contractor, if awarded a federal contract, executes a subcontract with its teammate for specified work.
While fundamentally a legal document, there are several different audiences for teaming agreements. Each audience is looking for different information. Understanding the needs of these audiences can greatly improve the strength of your teaming agreements. We take a look at a few of these audiences below.
The Parties
As with all contracts, the primary audience of a teaming agreement is the parties themselves. The purpose of the teaming agreement is to specify how the parties will collaborate with one another to bid and, if awarded, perform the work.
Accordingly, this audience needs the teaming agreement to explain how the proposed subcontractor will support the contract acquisition efforts of the prime contractor, as well as set expectations with respect to subcontracts. For the parties, the teaming agreement establishes their respective responsibilities regarding proposal development, contract negotiation, confidentiality, and dispute resolution. It also establishes the essential bargain of the teaming agreement: proposal development assistance in exchange for a negotiated subcontract. These provisions establish the expectations of each party while preparing a proposal and (hopefully) negotiating a subcontract.
Lawyers and Judges
As legal documents, teaming agreements are also drafted with lawyers and judges in mind. In the event the teaming relationship sours, these legal professionals may be called upon to determine the minimum rights and obligations of the parties.
Consequently, this audience needs the teaming agreement to include provisions that assist with enforcement. To support this audience, the teaming agreement may specify dispute resolution procedures and elect applicable laws. These provisions dictate the legal tools for resolving disputes.
The Contracting Officer and Evaluators
A less obvious audience for a teaming agreement is the contracting officer and technical reviewers. For these individuals, the teaming agreement offers insight into the manner in which the parties will collaborate to complete the work.
The Federal Contracting Regulations (“FAR”) explain that “[t]he Government will recognize the integrity and validity of contractor team arrangements; provided, the arrangements are identified and company relationships are fully disclosed in an offer[.]” To this end, solicitations frequently request teaming agreements be submitted concurrently with the proposal.
Thus, according to the FAR, this audience is interested the identities of the teaming parties, as well as the resources and support each will provide. The teaming agreement, along with the proposal, must provide details about responsibilities of the parties in the event a contract is awarded.
The Small Business Administration
For procurements set-aside for small businesses, the Small Business Administration (“SBA”) can be another crucial audience. Teaming agreements are frequently reviewed during a size investigation to assess whether a prime contractor is affiliated with its subcontractor. The ostensible subcontractor regulation, for example, expressly identify teaming agreements as a document that should be considered when evaluating potential affiliation.
As such, this audience will review the teaming agreement for insight into the specific performance responsibilities of the parties. It needs to evaluate whether the small business prime contractor is unusually reliant on the proposed subcontractor for performance, as well as whether the proposed subcontractor will perform the primary and vital requirements of the project. Work delineations within a teaming agreement allow the SBA to determine what the parties will (and will not) do.
Conclusion
Teaming agreements are not one dimensional contract documents. They are read by a diverse audience with different objectives. Consequently, teaming agreements communicate far more than boilerplate contract terms and conditions. While ultimately a legal document, contractors who understand the diverse audience of teaming agreements can leverage their full potential to win and preserve awards.