MEMC sued its electrical contractor and subcontractor after an accident shut down its plant. The court enforced a mutual waiver of consequential damages that was included in an addendum to the bid documents. Because the contractor did not object to the addendum during the bidding process, the court treated it as part of the final contract. This means MEMC could not recover lost profits or production losses—only direct damages.
Review all bid addendums carefully before submitting your bid. Silence or failure to object means you accept the terms, even if you disagree with them later.
Mutual waivers of consequential damages are enforceable and will limit your recovery if something goes wrong. Understand what damages you're giving up before you bid.
The bid process is your only chance to negotiate or reject unfavorable contract terms. Once you submit a bid without objecting, you're stuck with those terms.