Federal contractors may enter into joint venture agreements to pursue and perform federal contracts and carry out specific business activities. Governed by the terms of the joint venture agreement, joint ventures are independent entities that typically exist separate and apart from their member firms. In the event the joint venture is awarded a government contract, it is this separate entity that is in privity with the government, not its member firms. Similarly, when a joint venture submits a claim and brings an appeal, it must do so in its own capacity. While each member firm possesses the requisite authority to act for or bind the joint venture, the member firms can agree otherwise in the joint venture agreement. In addition to the requirement that the appeal be brought by the contract holder, the person or entity bringing the appeal on behalf of the joint venture must have the necessary authority to do so under the terms of the joint venture agreement. An adjudicative forum’s jurisdiction over an appeal brought by a joint venture may depend entirely upon whether the person or entity bringing the appeal on behalf of the joint venture possesses the necessary authority to do so under the terms of the joint venture agreement.

In order to have the necessary standing to file a protest at the Government Accountability Office (GAO), a protester must qualify as an interested party. The GAO’s bid protest regulations define an interested party as an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract. A protester may challenge the procuring agency’s evaluation of the awardee’s proposal as an interested party when there is a reasonable possibility that its proposal would be next in line for award if the protest is sustained. In post-award protests with an intervening offeror between the awardee and the protester, the protester’s economic interest may be considered too remote to qualify as an interested party to raise certain challenges against the awardee’s proposal. This is because when there is an intervening offeror that would be next in line for award should the protester’s protest be sustained, that intervening offeror is deemed to have a greater economic interest in the procurement. To establish standing in such procurements, the protester must challenge the agency’s evaluation of the intervening offeror to either show that it possesses the necessary economic interest to raise the pertinent challenges or otherwise demonstrate that its competitive position is subject to change based on the errors it identifies in the government’s evaluation.

Solicitations for federal contracts often contain provisions that generally require compliance with all state and local laws, including obtaining all state and local licenses or permits necessary for performance. The Federal Acquisition Regulation (FAR) contains a permits and responsibilities clause at FAR 52.236-7, which requires contractors to obtain state and local licenses or permits relevant to the work being performed, which provides in pertinent part:

“The Contractor shall, without additional expense to the Government, be responsible for obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes, and regulations applicable to the performance of the work.”

When included in federal solicitations, FAR 52.236-7 or similar provisions that generally mandate a contractor’s compliance with state and local laws, such as by obtaining licenses or permits, do not require offerors to demonstrate compliance prior to award. This is because such matters are considered a matter of contract administration, only applicable to the successful contractor during the performance phase of the contract. Furthermore, such general solicitation provisions concerning state and local licenses have no impact on the procuring agency’s award decision, except as a general matter of responsibility. Thus, unless the solicitation specifically instructs otherwise, offerors need not obtain state and local licenses or permits before contract award on account of these general provisions.

Most aptly described as a legal fiction, the doctrine of constructive termination is invoked when the basis upon which the government contract was actually terminated is legally inadequate to justify the government’s actions. Stated another way, the doctrine of constructive termination is invoked to prevent the government’s breach of contract in case of an improper termination. Similar to termination for convenience, constructive termination is an option uniquely available to the government. The doctrine may be applicable as long as the contract, or a portion thereof, is actually terminated. Thus, in cases where the government has stopped the contractor’s performance for questionable or invalid reasons, the government’s actions can amount to a convenience termination under this doctrine. Notably, in such cases, the contractor is entitled to an amount it would otherwise be owed if the government had in fact terminated the contract for convenience. Consequently, the contractor may not recover for work not performed or any anticipatory profits. This means that fixed-price contracts or line items are essentially converted into a cost-reimbursement contract for the purposes of calculating the contractor’s recovery under the constructive termination.