These references give good advice for teaming arrangements between
for-profits, but do not focus on points to which universities should give
careful consideration.  These comments come from several teaming
arrangement negotiations over the years.

1)      Federal regulations specific to universities, with particular
attention to A-21 (FAR 31.3).  Industries seldom understand university
costing, including F&A rates.  Education of the prospective prime team
member is very important, and needs to start very early in the
process.  The teaming arrangement should include specific recognition of
the differing regulations, and assurances that the prime's response to
RFP's will address these factors, so that differences do not come as a
surprise late in the process!  Partners need assurance that there is no
value judgement involved in the differences; it's just that the federal
applicable regulations are different.

2)      Intellectual Property needs careful consideration.  Universities'
IP is often much broader -- or should we say, less
specific-industry-focused -- than a commercial prime's.  So reach-through
and reach-back terms need very careful consideration.  Those matters in a
university are also more likely than an industry's to be complicated with
prior direct or implied commitments.
 Industries seldom fully appreciate the IP rights, and obligations,
universities get under federal contracts from  Bayah-Dole, codified at
37CFR401.  This affects the what rights a university can grant a prime to
inventions made in the course of a project under a teaming arrangement.  It
also influences the rights a university must retain.  It is my personal
opinion that any rights the prime receives for future use of IP should be
royalty-bearing.  Rates should not be negotiated until the nature of the IP
is known; see IRS Rev.Proc.97–14 for effect on a university's capability to
issue tax-free bonds for failure to do this.  I also suggest IP rights
should be limited in field of use, because university inventions are often
more basic in nature than industrys', so have a market (for the university)
beyond that which the industry can exploit.

3)      Industrial teaming arrangements generally expect a non-compete
clause for teaming purposes.  Universities should consider these
carefully.  Industries, being more monolithic than universities, seldom
understand that a university can, and probably should, commit that a
specific research group agree not to team with a competitor industry on the
RFP, but must retain the right for other research groups to do so.  Also a
university should be alert for non-compete language that reaches beyond the
specific RFP.

4)      As always with university-industry agreements, the publication
rights of the university and its faculty must be negotiated to meet the
university's standards.  Also, confidentiality concerns need to be
carefully considered, including (or maybe especially!) impacts on
students.  Confidentiality regarding the teeming arrangement itself may be
fairly reasonable, but extending it to the prospective subcontract may
violate the university's standards.  And state universities need always be
aware of state FOI law effect on confidentiality.

5)      Export regulation impacts need careful consideration.  Limitations
on publication can make them applicable when they would otherwise fall
under the fundamental research safe harbor.  It is probably advisable that
the university insist that the industry not provide information to the
university in the teaming arrangement building phase that falls under
export regulations, or that such information be identified and only shared
with certain university individuals.  Of course the effect of export
regulations on the conduct and results of the prospective subcontract needs
careful consideration, too.

6)      The university needs to be particularly aware of any limitations
the teaming arrangement, or the resulting subcontract, places on the nature
of personnel who can participate; citizenship questions may loom large.

As we all know, industries and universities have different goals, methods,
and places in society.  Good agreements, win-win for both, can be reached
in the areas where these realities overlap.  But we must watch for areas
where they do not overlap, and avoid getting entangled in the differences.

Chuck

At 04:08 PM 5/5/2004, you wrote:
>Ellen,
>See this presentation from the NASA...but not NASA specific.
>Principles of Effective Teaming agreements:
>http://www.hq.nasa.gov/office/codek/teaming_agreement.pdf
>
>Also, Government Contract Teaming Arrangements: Key Issues
>http://www.zsrlaw.com/publications/articles/PDF/rlk000600Teaming.pdf
>
>Hope you find them helpful.
>Terri
>
>
>Terri M. Hall
>Assistant Director of Sponsored Programs
>Office of Research
>University of Notre Dame
>511 Main Building
>Notre Dame, IN 46556-5602
>Phn: (574) 631-7378  Fax: (574) 631-6630
>http://www.nd.edu/~research
>
>----- Original Message -----
>From: "Ellen Reinsch Friese" <xxxxxx@WRIGHT.EDU>
>To: <xxxxxx@HRINET.ORG>
>Sent: Wednesday, May 05, 2004 2:23 PM
>Subject: [RESADM-L] Teaming Agreements and Funding Promises
>
>
> > Dear Colleagues:
> >
> > As our faculty members' reputations grow, they are
> > increasingly called upon to "team" with local contractors to
> > develop competitive proposals, generally for the federal
> > government.  We enter into "Teaming Agreements" with these
> > companies and make every effort to include language in those
> > agreements that commits them, at least in "good faith," to
> > fund our university's efforts if the application is
> > successful.
> >
> > We have heard on a number of occasions from faculty who feel
> > that they have been "used" by these kinds of arrangements,
> > when the work was funded but the company was later unwilling
> > or unable to support our particular statement of work.  This
> > has caused some hard feelings.  We want to support these
> > collaborative efforts, as there may be potential for
> > lucrative funding for our faculty.
> >
> > We are considering some alternate language suggestions for
> > future "Teaming Agreements," in the hopes that we can
> > minimize the cases in which our faculty's contributions go
> > unrewarded.  Have any of you run into this kind of
> > situation, and, if so, how have you handled it?  If anyone
> > has some more definitive language that they have used in
> > "Teaming Agreements," our research office would certainly be
> > happy to see it.
> >
> > Thank you for your assistance.
> >
> > Ellen Reinsch Friese
> >
> >
> > ======================================================================
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> >
>
>
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Herbert B. Chermside, CRA
Special Asst. to VP-Research
Virginia Commonwealth University
PO BOX 980568
Richmond, VA  23298-0568
Voice:  804-827-6036
Fax     804-828-2051
e-mail xxxxxx@vcu.edu

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