Teaming Agreements in Virginia: Are They Enforceable? by Jack Rephan Teaming agreements are widely used in Virginia and elsewhere by prime contractors and subcontractors who regularly contract with the federal, state, and local governments for the provision of services, construction, and other projects to meet the needs of the government and other public bodies. For this reason, it is essential that the contractors and subcontractors be aware of the law in Virginia, and the fact that Virginia courts have refused to enforce teaming agreements as unenforceable “agreements to agree.” As detailed in this article, several guidelines may be gleaned from case law in Virginia to improve the chances of drafting an enforceable teaming agreement. I. The Signifi cance of Teaming Agreements The use of teaming agreements is rather well established with respect to submitting proposals or bidding upon federal 26 government contracts for the acquisition of supplies, services, construction, research and development and information technology. In fact, the federal procurement regulations encourage the use of teaming agreements. 1 Teaming agreements can also provide opportunities for disadvantaged and small businesses to participate in federal or other public construction or procurement contracts. Prospective prime contractors and subcontractors should consider carefully whether a proposed teaming agreement is an enforceable contract before entering into such an agreement. A successful bidder or awardee who relies on the expertise and pricing submitted by a particular subcontractor will want assurance that, if awarded the prime contract, the proposed subcontractor will enter into the proposed subcontract. Absent a binding teaming agreement, the proposed subcontractor will be free to walk away, exposing the prime contractor to the possibility of a substantial increase in cost to engage a different subcontractor. Unlike the law in some other jurisdictions, the theory of promissory estoppel in Virginia will not provide the prime contractor with a cause of action against the prospective subcontractor. 2 Similarly, the prospective subcontractor www.vsb.org VIRGINIA LAWYER | June 2019 | Vol. 68 | CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION