1. Pre-Claim Considerations
   1. Claim Recognition and Preservation
      1. Contract record-keeping
      2. Contract accounting
      3. Identifying losses
      4. Preserving claim rights
      5. Evaluating labor productivity
   2. Ability to Prove Damages
      1. Weighing the odds
      2. Contract rights
      3. Rights outside contract
      4. Records available
      5. Potential witnesses
      6. Witness availability
      7. Damage apportionment risk
   3. Nature of the Project
      1. Private work
      2. Bonded projects
      3. State and municipal projects
      4. Federal projects
      5. Federal grant projects
      6. Influence on pricing
   
   
2. Theories of Recovery
   1. Clauses Granting Remedies
      1. AIA
      2. AGC
      3. Federal Government contracts
      4. Federal grant clauses
      5. Force account
      6. Scope of work
   2. Special Risk Clauses
      1. No damages for delay
      2. Site investigation
      3. Variation in quantities
      4. Manifestly omitted details
      5. Overtime recovery limits
      6. Indemnification
      7. Performance specifications
   3. Breach of Contract
      1. Common law
      2. Statutory
   4. Tort
      1. Fraud and misrepresentation
      2. Contract relations interference
      3. A-E negligence
      4. CM negligence
      5. Defaming business reputation
   5. Constructive Trust
   
   
3. Burden of Proof
   1. Meeting the Burden
   2. Switching the Burden
   3. Proving Causal Connection
   4. Proving Reasonable Certainty
   
   
4. Rules of Evidence
   1. Federal Courts
   2. State Courts
   3. Boards of Contract Appeals
   4. Arbitration

   CALCULATING COSTS AND PROFITS

5. Methods of Calculation
   1. Actual Cost
   2. Total Cost
   3. Modified Total Cost
   4. Quantum Meruit
   5. Equitable Adjustment
   6. Jury Verdict
   
   
6. Labor Costs
   1. Direct Labor
      1. Additional hours
      2. Wage rates
      3. Taxes and insurance
      4. Fringes
      5. Supervision
      6. Small tools
   2. Labor Productivity Loss
   3. Calculating the Loss
      1. Work phases comparisons
      2. Similar contract comparisons
      3. Project productivity studies
      4. Industry productivity standards
      5. Industry manuals
      6. Estimated labor costs
      7. Expert analysis
      8. Bid comparisons
      9. Actual manloading
      10. vs. anticipated manloading
      11. Work per labor hour
   
   
7. Material Costs
   1. Additional Materials
   2. Additional Supplies
   3. Determining Quantities
   4. Computing Costs
   5. Deleted Materials Credits
   
   
8. Equipment Costs
   1. Determining Additional Use
   2. Outside Rentals
   3. Intracompany Charges
   4. ACG Manual
   5. AED Rates
   6. Blue Book Rates
   7. States and Local Compilations
   8. Industry Rates
   
   
9. Other Costs
   1. Insurance
   2. Bonds
   3. Miscellaneous
   
   
10. Overhead Rates
    1. Jobsite
    2. Home Office
    3. Established Rates
    4. Rate Composition
    
    
11. Interest
    1. On Borrowed Funds
    2. On the Claim
    3. Under State Statutes
    4. Under AIA Contracts
    5. Under Federal Contracts
    6. Under Other Contracts
    7. Absence of Statute
    8. Imputed Interest
    9. As Additional Profit
    
    
12. Profit
    1. Fair and Reasonable
    2. Based on What
    3. Historical Tests
    4. Comparisons
    5. Difficulty of Work
    6. Unusual Risks
    7. Special Factors

    SPECIAL CLAIMS

13. Delay Damages
    1. Escalation Costs
       1. Labor
       2. Material
       3. Supplies
    2. Extended Performance Costs
       1. Idle labor
       2. Idle equipment
       3. Jobsite overhead
       4. Home office overhead
    3. Support Costs
       1. Work in different seasons
       2. Maintaining excavations
    4. Currency Fluctuations
    
    
14. Subcontractor Damages
    1. Part of Prime’s Claim
    2. Consistency of Approach
    3. Markups Allowed
    4. Profit on Sub’s Claim
    5. Passthroughs
    6. Protecting Yourself
    
    
15. Business Losses
    1. Are They Damages?
    2. Loss of Bonding Capacity
    3. Loss of Income
    4. Loss of Reputation
    
    
16. Punitive Damages
    1. When Appropriate
    2. How Much
    3. Justifying Your Position
    
    
17. Attorney and Consultant Fees
    1. American Rule
    2. English Rule
    3. Contract Language
    4. Equal Access to Justice Act

    OWNER CLAIMS

18. Contractor Default
    1. Contract Termination
    2. Reprocurement
    3. Completion Expense
    4. Repair Expense
    5. Problems of Proof
    
    
19. Types of Delay Damages
    1. Liquidated
    2. Actual
    3. Reasonable Forecasting
    4. Prohibited Penalties
    
    
20. Delay Damage Elements
    1. Increased Financing
    2. Depreciation
    3. Unamortized Financing
    4. Lost Profit
    5. Jobsite Administration
    6. Materials Escalation
    7. Storage
    8. Budget Revisions
    9. Temporary Facilities
    10. Consultant Expenses

    DAMAGES PRESENTATION

21. Initial Claim Submittal
    1. Organization
    2. Custom-Tailored Packaging
    3. How Much Information
    4. Need for Legal Authority
    5. Audit Reports
    
    
22. Settlement Possibilities
    1. Strength of Presentation
    2. Customer Relations
    3. Recovery Risk Analysis
    4. Trade-Offs
    5. Erosion of Recovery
       1. Litigation costs
       2. Use of money
       3. Inflation
    
    
23. Claim Package as Trial Exhibit
    1. Expanding the Package
    2. Adding Supporting Data
    3. Admissible Evidence
    4. What to Exclude
    
    
24. Trial Presentation
    1. Overview of Damages
    2. The “Overview” Witness
    3. The “Specific Element” Witness
    4. Expert Witnesses
       1. Auditors
       2. Efficiency experts
       3. Estimators
       4. Technical experts
       5. Scheduling consultants

    OWNER DEFENSES

25. Assumption of Risk
    1. Labor
    2. Economy
    3. Acts of God
    4. Financing
    5. Bargained-For Risks
    
    
26. Unrecoverable Costs
    1. Barred by Contract
    2. Barred by Law
    3. Barred in Federal Work
    4. Duplicated Costs
    
    
27. Unrelated Damages
    1. No Causal Connection
    2. Identifying Other Causes
    3. Improvident Bid
    4. Effects of Other Contracts
    
    
28. Inefficient Performance
    1. Compared to Standards
    2. Compared to Other Contractors
    3. Productivity Studies
    4. Inefficiency Indicators
    
    
29. Challenging Equipment Costs
    1. IntraCompany Rentals
    2. Equipment Condition Factors
    3. Compared to Actual Costs
    
    
30. Challenging Overhead
    1. Unallocable Costs
    2. Unallowable Costs
    3. Unnecessary Overhead
    
    
31. Fraudulent Claims
    1. Private Contracts
    2. Public Contracts

John B. Tieder Senior partner in the Washington, D.C. and McLean, Virginia, law firm of Watt, Tieder, Hoffar & Fitzgerald, where he specializes in private and public construction contract litigation • Visiting Lecturer on Government Contract Law at the William & Mary School of Law. Speaker for various associations, including the Construction Specifications Institute and the American Institute of Architects • Author of various articles on construction contract problems • Member of the Federal and American Bar Associations., and participant in the ABA’s Section of Public Contract Law and Section of Litigation • Bachelor of Arts degree from Johns Hopkins University and Juris Doctor degree from American University’s Washington College of Law.

Julian F. Hoffar Senior partner in the Washington, D.C., and McLean, Virginia law firm of Watt, Tieder, Hoffar & Fitzgerald, concentrating on disputes and litigation in the construction industry • Author and lecturer on all phases of construction law for professional groups, industry associations and contractor associations • Member of the American Bar Association’s Section of Public Contract Law • Bachelor of Arts degree from Wittenberg University and Juris Doctor degree, with honors, from George Washington University's National Law Center.