Security Clearances: Yours, theirs, but what about ours?

Teaming arrangements provide great opportunities to corral the expertise and experience of two or more organizations to pursue federal contracts. Depending on the terms of any given solicitation, the past performance of one firm might support the qualifications of the team as a whole. Likewise, depending on the terms of the solicitation (note the second use of this phrase), the credentials of one might redound to the benefit of the broader team.

A recent bid protest decision caught my eye because it highlighted the importance of the connection between the qualifications of team members, the terms of the solicitation and the ability of the team to “share” their capabilities. The case of which I speak is Veteran Technology Integrators, LLC v. U.S., Case No. 18-1751C (Fed. Cl. 2019) (“VTI LLC”). VTI is a joint venture that was formed by two entities under the SBA mentor-protege program. VTI was pursuing the award of a blanket purchase agreement for cyber security support services. At least one of the JV partners, perhaps both, held facility security clearances; however, VTI—the joint venture, did not have a clearance in its name. Without delving into the legal weeds that led to the Court’s rejection of the protest due to a lack of standing, the issue of whether VTI held a security clearance was a significant (albeit not decisive) aspect of the Court’s analysis. For the lawyers in the house, this was dictum.

The solicitation provided that the “[f]ulfillment of [the] requirement [for a security clearance] will require the prime contractor to have and maintain a Top Secret Facility Clearance.” VTI LLC, slip op. at 14 (quoting terms of solicitation). The solicitation went on to state that “[a]ny proposal submitted by a contractor that does not hold a TS-FCL will not be considered for award.” Id. (emphasis added). VTI did not, itself, hold the requisite clearance; however, it argued that it should have been able to “rely upon the facility clearance held by the members of the joint venture. . . .” Id. In response, the Court pretty much just said “so what.” In its view, the terms of the solicitation required the prime contractor to hold the clearance. VTI did not have its own clearance. The fact that the JV partners held clearances was little more than an interesting fact because the JV parties were not proffered to serve as the prime contractor.

Thus, the technicalities matter. And, I would daresay that they especially matter when it comes to security clearances. When putting together a team, it is critical to vet your teammates, to make sure that the parties’ respective qualifications match the solicitation’s requirements, and to ascertain how the team should be organized so as to obtain the greatest advantage. Should the parties take a prime/sub approach? Would a joint venture be the best approach? Should a JV be a separate entity or simply an agreed upon relationship? These and other questions are critical to making sure that your qualifications and those of your teaming partners are positioned in a teaming arrangement that maximizes the impact of your collective capabilities and experience.