Does a Teaming Arrangement Create a Separate Legal Entity?

The Brooks Act requires architecture/engineering contractors to have a license. The government selected an awardee that relied on its subcontractor’s license. The court said this violated the Act. A license must be held by the legal entity making the offer. A teaming arrangement does not create a legal entity that can hold a license.

Accura Engineering and Consulting Services, Inc., COFC No. 22-1592C

• Brooks Act– The agency issued a synopsis seeking architecture and engineering services. Procurements for architecture/engineering are governed by the Brooks Act. That Act states a contract can only go to a firm with an architecture or engineering license.
• Protest – The awardee didn’t have a license. Rather, it had relied on a license held by one of its subcontractors. The protester alleged the Brooks Act requires the firm making the offer must possess the license; the license cannot be held by a subcontractor. The protester reasoned the award violated the Brooks Act.
• Teaming Arrangement – The government argued it was allowed to rely on the subcontractor’s license because the solicitation defined “firms” as including “teaming arrangements.”
• Firm Must Be Legal Entity – The court sided with the protester. The Brooks Act clearly defines a firm as a legal entity. A subcontracting arrangement does not normally create a new legal entity. The court also did not think the solicitation defined firms differently. The solicitation stated the license had to be held by an “offeror” not by a “firm.” Here, the awardee, not its subcontractor, was the offeror. The awardee thus had to possess the license itself.

The protester is represented by Diana Lyn Curtis McGraw and David Timm of Fox Rothschild LLP. The intervenor is represented by Stephanie Diane Wilson of Berenzweig Leonard, LLP. The government is represented by Tanya B. Koenig, Brian M. Boynton, Patricia M. McCarthy, Eric P. Bruskin, and Sonia William Murphy of the Department of Justice as well as Adam Supple and Rosalind Cylar of NASA.

–Case summary by Craig LaChance, Senior Editor