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Will signing a non-compete restrict my ability to work on the same government contract?

Baltimore, MD |

I work for a sub-contractor on a large companies contract providing services to the government. My company wants me to sign a non-compete after 1+ year of employment (did not have to sign one at date of hire). Will signing this limit my ability to work on the same contract(s) for another company, even if the contract does not belong to my company but belongs to the "Prime" contract owner?
Here is the wording in question from the non-compete:

"During my employment with X or for one year after...will not solicit to perform or provide any services for its commercial customers for the specific contracts, programs, or projects between X and its commercial customers that are active or actively being pursued."

Thanks for the help

Attorney Answers 4

  1. It is not 100% clear, but the brief quote you have provided suggests that you would not be prohibited from working for a successor subcontractor on a later contract. It seems that you are working on a rather typical service contract that gets recompeted every few years. It is common, even expected, that employees of the predecessor team will transition to the successor team. What this language seems to restrict is your ability to sign on to be part of a competing prime/sub team while a competition is in process. There probably are additional facts that clarify or change my reaction, and there may be other provisions in the agreement that could affect this. If you want something more definitive, I think you would need to have a lawyer review the agreement and analyze it in the context of a fuller understanding of the surrounding circumstances.

    This response to the posted question is provided for general informational purposes only. None of this information is offered, nor should it be construed, as legal advice on any matter. Posting a question or receiving this response and any other related information, in whole or in part, is not intended to, and does not, create an attorney-client relationship. Although this response is believed to be accurate, it may not reflect the most current legal developments. The content and interpretation of the law addressed herein is subject to revision. Moreover, this response may not be correct because more facts are often needed to fully analyze a given situation. Accordingly, I accept no liability for inaccuracies or omissions, nor for any decisions made in reliance upon any information in this response. Consult legal counsel before making any decision or acting upon any information presented herein.

  2. Issues:
    1. Is your employer the prime contractor or a subcontractor to the prime?
    2. Is its government contract with a “commercial customer” or with the government?
    3. Does the FAR or its successor have any restriction on government contractors’ imposing non-compete covenants on their employees?
    I don’t know the answers, but you should clarify Nos. 1 and 2 before you consult an employment lawyer who understands government contracting.

    DISCLAIMER—This answer is for informational purposes only under the AVVO system, its terms and conditions. It is not intended as specific legal advice regarding your question. The answer could be different if all the facts were known. This answer does not establish an attorney client relationship. I am admitted only in California. (Bryant) Keith Martin

  3. Maryland courts are not happy with non-competes, b/c they interfere with commerce. What you have shown, and there may well be other relevant passages, shows no limit on geography and a quite long time frame. If I recall correctly, Maryland courts will not rewrite such a non-compete if it is found to be excessive but will refuse to enforce it at all. I'd need to do research to be sure. The lack of a limit on what _type_ of work may also be a problem for enforcement.

    I wish I could be more certain but legal questions tend not to have black and white answers—first shock on starting law school :-).

    Licensed in Maryland with offices in Maryland and Oregon. Information here is general, does not create a lawyer-client relationship, and is not a substitute for consulting with an experienced attorney on the specifics of your situation.

  4. We see non-compete agreements in many different industries, and almost all of them are overbroad and only partially enforceable. It is definitely not "one size fits all." For example, in your quoted language, you would be restricted from work with "commercial customers...actively being pursued." Unless the employer gives you a list of them, at severance, and you had some part in pursuing them, this language is overly broad and not likely to be enforced against you. Your next step is to share all the facts of your work, tasks, and the document with counsel for more detailed advice.

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