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"A Claim By Any Other Name": Jurisdiction Over Certified Supplement to Termination Proposal

Client Alert | 1 min read | 02.23.21

In Globe Trailer Manufacturing, Inc., ASBCA No. 62594 (Jan. 28, 2021), the Armed Services Board of Contract Appeals (the Board) addressed whether a contractor’s certified supplement to a termination settlement proposal (TSP) constitutes a claim under the Contract Disputes Act. After termination, the contractor submitted a TSP that included costs of constructive changes. During the ensuing TSP negotiations, the contractor provided government counsel with a supplement to the TSP that included supporting documentation, calculations, and a CDA certificate pertaining to the constructive change allegation. The contractor subsequently appealed, as a deemed denial, the TSP and supplement to the Board. The government moved to dismiss, alleging that (1) the TSP had not yet ripened into a valid claim, and (2) the supplement to the TSP was not a valid claim because (a) it was provided to government counsel instead of the contracting officer, and (b) did not make a demand in a single document. 

The Board dismissed the TSP as unripe, since there was insufficient evidence that the parties had reached impasse in TSP negotiations, but it held that the TSP supplement was a valid claim that was properly appealed as a deemed denial. The Board held that the contractor’s supplemental email and attachments met the jurisdictional requirements of a valid claim, and it reaffirmed the rule that submitting a claim to government counsel, instead of the contracting officer, does not invalidate the claim. 

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Client Alert | 10 min read | 09.11.26

Mining, Indigenous Consultation Rights, and Investment Treaty Protection

This alert, the first in a two-part series, surveys the legal landscape at the intersection of two issues that increasingly shape the outcome of mining and natural resources disputes regarding the protections available to foreign investors under investment treaties, as enforced through investor-state dispute settlement (ISDS). The first is the prior consultation obligation imposed on states under the Indigenous and Tribal Peoples Convention, 1989 (No. 169), adopted by the International Labour Organization (ILO 169). The second is social license, the practical acceptance of a project by surrounding communities, which is distinct from but related to the formal state consultation duty. This alert examines these issues across five foundational ISDS decisions:...