In the latest issue of The Wright Toolbox:

• Teaming Agreements From the Subcontractor’s Perspective – read now
• Missed It By That Much – read now
• Employers Beware of Making Automatic Deductions From Employees’ Pay – read now

Teaming Agreements From the Subcontractor’s Perspective

From a subcontractor’s perspective, there are many important components to making an effective Teaming Agreement which will secure the subcontractor’s place in maximizing its contract participation in any contract award. A good teaming agreement generally covers many areas including the protection of confidentiality and data, the exclusivity of the subcontractor to the team, the subcontractor’s participation in negotiations with the government, and the prime’s obligation to give a subcontract to its team members and compensation. Although most Teaming Agreements are standard, a simple review should insure that they include the following:

• • • • Mutual confidentiality and nondisclosure obligations between each party before exchanging any proprietary data such as technology, rates or know-how;
      • Clear explanation of whether labor rates, burdens, overhead, general and administrative costs and overhead rates will be available to the prime or strictly made available to the government for audit;
      • Survival of confidentiality obligations beyond termination and/or expiration of the agreement and methods for enforcing them through injunctions or similar relief;
      • Representations regarding the team members’ exclusive or nonexclusive involvement with the team;
      • Mutual indemnification for all direct, incidental and consequential costs arising from any defective cost or pricing issues which may arise from the provision by either party of cost and pricing data for use in the proposal or to the government;
      • Representations regarding team member’s resources, performance history and any Organizational Conflicts of Interest which may surface;
      • A clearly defined scope of effort by the team members in constructing the proposal;
      • A clearly defined scope of effort which will be given to the subcontract team member should the award be made to the prime contractor expressed in terms such as scope of responsibility, percentages, rates or other means;
      • Notice that a subcontract will be entered into in the event the prime contractor is awarded the contract which will incorporate the terms of the Teaming Agreement and will be at least as inclusive as the Teaming Agreement and notice of any specific other terms;
      • Acknowledgement and understanding regarding ownership of intellectual property arising under the performance of the Prime Contract;
      • Clear limitations on assignability of the obligations under the Teaming Agreement;
      • Express acknowledgment that the parties are not in a joint venture; and
      • No hire clauses which prevent either party from hiring the other’s employees for a limited period after termination of the Teaming Agreement and/or prime contract award.

  It is critical to address these important issues in the Teaming Agreement, up front, to avoid disputes and possible litigation later.

  Missed It By That Much . . .

  by Mike Stover

  The Department of Housing and Urban Development (HUD), awarded a 12–month contract to a management company to provide field service management at HUD properties in certain states. The contract was awarded on a sole-source basis and a competitor filed a protest arguing that HUD lacked a valid legal and factual basis to make the award on a sole-source basis. Whatever the merits of the protest may have been is no longer relevant because in Matter of: CWIS, LLC, B-416544 (July 12, 2018), the GAO dismissed the appeal as untimely.

  On May 1, 2018, the GAO fully implemented its new electronic protest docketing system (EPDS). Under new regulations for EPDS all protests are required to be filed using the EPDS system. Further, the regulations specify that “[a] document is filed on a particular day when it is received in EPDS by 5:30 p.m., Eastern Time.” Under the facts of this matter, the protest was due within 10 days of when the alleged impropriety was known or should have been known. HUD announced its decision to award the contract on June 19, 2018. Thus, a protest was due by June 29, 2018 at 5:30 p.m. ET.

  On Friday, June 29, at 5:29 p.m., the protester attempted to file its protest using EPDS. The attempt was unsuccessful, and resulted in an error message being received. At 5:31 p.m., the protester contacted the GAO by email, to advise that the attempt to file using EPDS had been unsuccessful. At 5:46 p.m., the protest was submitted by email to the GAO protest inbox. Because the filing was made after 5:30 p.m., it was treated as having been received the following business day, Monday, July 2, 2018. Accordingly, the GAO dismissed the protest.

  There have always been deadlines for filing protests and the new electronic filing system has its own deadline. Because new technology has been introduced to the protest process one must be sure they are familiar with that technology and allow for glitches in the process.

  Employers Beware of Making Automatic Deductions From Employees’ Pay

  Lawsuits for unpaid wages brought under the Fair Labor Standards Act continue to attack automatic deduction practices undertaken by employers where an employee is supposed to regularly take a daily break or lunch but does not. If nonexempt employees are not completely relieved of responsibility during the time they are punched out or off the clock, deductions are not permitted and they must be paid for the time. Plaintiffs’ attorneys continue to aggressively pursue these types of unpaid wage or overtime claims. Employers are cautioned to carefully analyze break and timekeeping practices and policies to ensure they comply with the law and are being followed and consider other measures for accurately tracking actual work hours.

  To browse past issues, visit The Wright Toolbox page.