Contractors frequently form joint ventures to respond to federal contracts solicitations that require the submission of past performance information. Since joint ventures are entities separate from their member firms, created in many instances to pursue specific federal opportunities, they may not have the necessary past performance history. As a result, joint ventures often rely upon the past performance history of their individual member firms. Meanwhile, procuring agencies are generally permitted to consider the past performance history of individual member firms during evaluation. This is true even when the solicitation expressly limits the use of past performance information to contracts performed as a prime contractor. When responding to such solicitations, joint ventures may utilize the past performance history of their individual member firms, as long as the member firm was a prime contractor on the referenced contract, and the past performance information is reasonably predictive of the quality of the joint venture’s future performance under the contract being awarded. Similarly, if reasonably predictive of performance, joint ventures may use the past performance history of their individual members, even when those members earned it as members of a different joint venture. Contractors should be mindful that while joint ventures can usually submit the past performance history of their member firms, an exception to this general rule is if the solicitation contains an express provision prohibiting the use of such past performance information.

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.

In government contracts, the doctrine of accord and satisfaction is an affirmative defense that discharges a claim because some performance different from that which was claimed to be due is rendered and the claimant accepts such performance as full satisfaction of his claim. Accord and satisfaction may be viewed as a type of settlement agreement that typically takes the form of a bilateral modification executed by the government and its contractor. Furthermore, the terms of the bilateral modification are considered to be the best evidence of the parties’ intent to enter into an accord and satisfaction. To invoke the doctrine of accord and satisfaction, the party asserting the affirmative defense must demonstrate that four elements are met. First, the subject matter must be proper. Second, both parties must be competent; that is, the individuals signing the bilateral modification on behalf of the parties must be duly authorized. Third, there must have been a meeting of the minds between the parties. A meeting of the minds exists when there are accompanying expressions sufficient to make a reasonable claimant understand that the performance offered is in full satisfaction of the claim. Fourth, and finally, there must exist some form of valid consideration, which is defined as a bargained-for exchange that consists of an act, forbearance, or a return promise. If these four elements are met, the doctrine of accord and satisfaction may be invoked to discharge the claimant’s claim.