Partnering to Win on Federal Contracts: Teaming, Joint Ventures, and Mentor-Protégé Programs

1. 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

2. Maria L. Panichelli, Esq. Maria L. Panichelli, Esq. Maria.Panichelli@Obermayer.com 215.665.3017 @MariaPanichelliwww.linkedin.com/in/mariapanichelli

3. A Primer

4. 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

5. 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 affiliationand why is it important?

6. 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…

7. 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!

8. 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?

9. Teaming or Joint Venture? Which is Right For You?

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

11. 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

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

13. Teaming Tips

14. 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

15. 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!

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

17. 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!

18. Teaming 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**

19. 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?

20. Teaming 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!

21. “Small” Joint Ventures

22. 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

23. “Small” Joint Ventures & The Mentor Protégé Programs

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

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

26. 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

27. 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

28. Compliant Joint Ventures

29. 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?

30. 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!

31. Questions?

32. Contact Me