Establishing Authority to Bring Appeals and Take Actions on Behalf of Joint Ventures

October 9, 2025 Sareesh Rawat, Esq.

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 Armed Services Board of Contract Appeals (ASBCA) No. 63211, the Board determined that it lacked jurisdiction to hear an appeal filed by a joint venture that had been contracted to perform construction work in Japan by the US Army Corps of Engineers (USACE) because the individual that submitted the claim and authorized the appeal on behalf of the joint venture lacked the requisite authority to do so. The joint venture agreement, which was duly executed by the two member firms, contained the following provisions relevant to the member firms’ authority to act on behalf of or bind the joint venture.

“§ 3.1 No Party shall except with the prior consent of the other Party make, directly or indirectly, solely or in association with others, any agreement with the Employer or any third party in connection to the Project.”

“§ 3.4 No Party shall have the authority to bind or to make any commitment on behalf of the JV or of any other Party unless such authority is expressed in writing by Parties jointly in regard to the JV or by a Party individually in regard to the other Party.”

“§ 6.7 Each party shall have one vote at the Board (irrespective of the number of members attending), and decisions of the Board shall be taken unanimously. If unanimity cannot be achieved, then the meeting shall be adjourned for twenty four (24) hours or any other date mutually agreed between the Parties. If unanimity is still not achieved, the meeting shall be reconvened within seven (7) days or any other date mutually agreed between the Parties and the members shall attempt to finally reach unanimous decision.”

On January 15, 2021, one of the member firms sent a letter to USACE, informing the government of changes to the joint venture’s Supervisory Board. The letter listed three individuals from each member firm as forming the new Supervisory Board and identified the chairman. The letter further stated that while the Supervisory Board members could execute binding documentation, such as proposals, modifications, bonds, and take other necessary actions on the USACE contract, all such actions must first be approved by Supervisory Board members. The following month, the other joint venture member firm sent a letter to USACE, confirming that the contents of the January 15, 2021, letter had been duly approved by both member firms.

On September 28, 2021, one of the Supervisory Board members filed a certified claim with the contracting officer (CO). However, only two days later, the Supervisory Board members representing the other member firm wrote a letter to USACE, expressing their disagreement with the September 28, 2021, claim. On December 1, 2021, the USACE CO responded by stating that the claim was not certified by an individual authorized to bind the JV and further noted that Supervisory Board representatives of one of the member firms had objected to the claim. On February 28, 2022, counsel for the member firm that had filed the claim filed a notice of appeal at the ASBCA from the CO’s final decision dated December 1, 2021. The agency promptly filed a motion to dismiss the appeal for lack of jurisdiction, arguing that the claim was not certified by an individual duly authorized by the JV. In addition, USACE alleged that the appeal was not brought by an authorized representative of the contractor.

The ASBCA began its analysis by stating that, as the proponent of the Board’s jurisdiction, it was the Appellant’s responsibility to carry the burden of establishing jurisdiction. The Board then pointed to § 3.4 of the joint venture agreement and stated that it expressly prohibited either member firm from either binding or making other commitments on behalf of the joint venture unless both parties granted such authority in writing. Similarly, § 3.1 of the agreement barred either party from entering into an agreement with a third party with respect to the USACE project without the prior consent of the other party. Furthermore, even though the January 15, 2021, letter identified members of the Supervisory Board and acknowledged that they had the authority to take binding contractual actions, the same letter also limited their authority by requiring that any actions be approved by all the Supervisory Board members listed in the letter. The Board also noted that § 6.7 of the joint venture agreement should be interpreted as requiring unanimity in all Supervisory Board decisions.

A reasonable interpretation of these joint venture agreement provisions when taken together necessarily required both member firms to agree before a claim could be properly submitted to the USACE CO or a subsequent appeal could be brought before the ASBCA. To the contrary, here, only one member of the Supervisory Board representing one of the member firms submitted the claim and filed the appeal. Meanwhile, the other member firm not only failed to support the claim, but the Supervisory Board members representing that firm also wrote a letter to the CO expressly stating their disagreement with the claim. Under these circumstances, the Board correctly concluded that the Supervisory Board member who had submitted the claim and brought the appeal before the Board lacked the requisite authority to do so. The Board rejected the Appellant’s argument that Board Rule 15, which recognizes that a joint venture may be represented by one of its members or a duly licensed attorney at law, granted it jurisdiction to hear the appeal notwithstanding the joint venture agreement. The Board reminded the Appellant that the Board’s rules did not supersede the conditions of its jurisdiction, which was in this case determined by whether the person or entity bringing the appeal on behalf of the joint venture had the necessary authority to do so under the terms of the joint venture agreement. Consequently, the agency’s motion was granted, and the appeal was dismissed because the Board lacked jurisdiction to hear it.

Joint ventures are typically separate entities independent of their member firms. When a joint venture is awarded a government contract, it is the joint venture that is in privity of contract with the government, not its member firms. For this reason, only the joint venture as the contract holder can submit a claim against the government under the Contract Disputes Act (CDA) or bring an appeal from the CO’s final decision on that claim. In the absence of a provision in the joint venture agreement that states otherwise, the general rule is that any member firm may submit a claim or bring an appeal on behalf of the joint venture. In any event, the person or entity acting for the joint venture must have the necessary authority to do so. In cases where one of the member firms does not agree to submit the claim or bring the subsequent appeal, the relevant Board of Contract Appeals will review the terms of the joint venture agreement in light of the particular facts to determine whether it has jurisdiction to hear the appeal. Ultimately, contractors entering joint ventures to pursue and perform federal contracts should be mindful of their rights and obligations under the joint venture agreement and remember that individuals or entities that take actions on behalf of the joint venture must possess the requisite authority under the terms of the joint venture agreement, applicable rules, regulations, and precedents.

This Federal Contract Claims Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.

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Establishing Authority to Bring Appeals and Take Actions on Behalf of Joint Ventures

TILLIT LAW Federal Contract Claims Insights