Damages: Lessons from Harmon - White & Case

Damages: Lessons from Harmon
On tender costs, Harmon should receive an interim
payment of 95 per cent of the lowest estimate
of those accepted by the House of Commons’
own expert.
Conclusion
The remedy of damages, at least to judge from the
Harmon experience, is broadly accommodating
to an unsuccessful tenderer who can make out
a breach of the rules and satisfy probability
requirements of causation. Indeed, awarding
authorities have good reason to be concerned
about the extent of their risk exposure when such
matters as intra group profi t, subsequent contracts,
relationships with contractors on other projects
and currency fl uctuations are factored into the
calculation of quantum.
While aggrieved tenderers might typically be expected
to prefer to prevent an award in breach and reprise the
tendering exercise, if this has been lost because of the
stage reached, damages may constitute not so much
a token consolation as a generous runners-up prize.
Ellis Baker, Partner and Head of Construction &
Engineering Practice Group and Anthony Lavers,
Barrister and Professional Support Lawyer,
White & Case, London
The information in this article is for educational
purposes only; it should not be construed as
legal advice.
Copyright © 2005 White & Case
4