July 16, 2020 Public Contract Law Journal

Close Enough for Government Work: The Economic Utility of Teaming Agreement & the Issue of Enforceability

by Michael W. Mutek
Washington Monument

Washington Monument

Michael W. Mutek is general counsel, defense, for Aerojet Rocketdyne, at the company’s defense headquarters in Huntsville, Alabama. He is a past chair of the Public Contract Law Section and currently serves in the ABA’s House of Delegates as a Section delegate.

I.  Introduction

The phrase “close enough for government work” is generally believed to have originated during World War II.1 At that time, the phrase meant that a product met the highest standards of quality because the product would not be accepted by the U.S. military unless it met such exacting standards.2 Over time, popular culture began using the phrase in an ironic sense. Eventually, that ironic and sometimes disparaging usage of the phrase changed the common meaning from something that meets the highest standards to something that is just good enough to “get the job done.”3

The phrase’s evolution from an exacting standard to one that “gets the job done” is worth considering in the context of contractor team arrangements. Such arrangements combine complementary capabilities from different companies in order to satisfy government needs and are integral to contract pursuit strategies. They “get the job done,” but enforcement of such agreements is subject to state laws that have more exacting standards.4

A good starting point is the Federal Acquisition Regulation (FAR) because it recognizes the economic utility5 of team arrangements and provides a regulatory framework that supports such arrangements.6 Contractors also recognize the economic utility of team arrangements because for many years such arrangements have provided an effective means to join forces and become more competitive.7 The FAR does not mandate that an arrangement be memorialized in an enforceable teaming agreement, and there is no simple “bright-line” test to facilitate a federal government agency’s evaluation of enforceability.8

This is significant because team members collaborating to win a government contract can find themselves in a dispute that raises the issue whether their teaming agreement is enforceable.9 Thus, it is fair to ask whether a teaming agreement is “close enough for government work” — meaning that it is recognized as valid under the FAR — even though the agreement’s governing law could find the agreement unenforceable.

Stated differently, should the economic utility of a team arrangement —  one that helps teammates pursue a government contract and may provide the government with “the best combination of performance, cost, and delivery for the system or product being acquired” — be recognized as valid under   the FAR only if the team arrangement is memorialized in a teaming agreement that would be enforceable under its governing law?10 This standard for recognition — enforceability under the agreement’s governing law — would impose an exacting requirement similar to the original meaning of “close enough for government work.” Alternatively, should a teaming agreement clearly manifesting intent to cooperate and work together be recognized as a valid team arrangement under the FAR even if enforceability under state law is uncertain? This standard would reflect the current meaning of the phrase “close enough for government work” because the teaming agreement “gets the job done.”

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