When you win a bid, everything can feel like it is going your way — until defective plans, slow RFI responses, or other owner interference upend the work and costs pile up. The sense that you got burned is real, but it is not enough. Courts require that feeling to become something the law recognizes as damages.
Contract damages put the non-breaching party in the position it would have occupied had the contract been performed.
Legal Hurdles to Recovering Damages
Two gates control recovery: The loss must flow from the breach (causation), and the amount must be shown with reasonable certainty. Mathematical precision is not required, but the estimate needs an objective foundation in facts, figures, or data rather than pure guesswork. The parties’ contract should always be reviewed first, because waivers of consequential damages, no-damages-for-delay clauses, or liability caps can limit or eliminate recovery before proof even begins.
Two methods illustrate how these gates work in practice.
- The measured mile — comparing a contractor’s actual productivity on similar work during unimpacted periods versus disrupted ones — is often favored. It relies on the contractor’s own real performance, sidesteps disputes over the original bid, and ties the loss directly to the disruption.
- The total cost method (total costs minus the bid) is treated as a last resort by many courts, including the Federal Circuit, because it assumes both a reasonable bid and that every overrun belongs to the other side. A modified total cost approach that adjusts for the contractor’s own contributions can improve the odds.
An expert witness is not always required. Straightforward lost-profits claims, for example, can sometimes rest on a knowledgeable company officer’s testimony backed by objective records. More complex analyses such as a measured mile typically need specialized opinion.
Building a Claim That Can Survive Scrutiny
In every case the claim is only as strong as the underlying record. Accurate bids, contemporaneous daily reports, schedules, cost data, and clear links between specific impacts and specific costs built during the project — not after the dispute arises — make the difference between a recoverable claim and speculation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
