Robert Ferguson

Practice Areas

Construction & Public Contracts

Compliance

Crisis Response & Management

Dispute Resolution

Government & Internal Investigations

Procurement

Risk Management & Surety

Transactions

Insurance Coverage

Occupational Safety and Health (OSHA) & Crisis Mitigation

Professional Memberships

American Bar Association Forum on Construction Law

Associated General Contractors (AGC) Massachusetts Young Contractors Professional Institute (2014)

Boston Bar Association

Federal Bar Association

Utility Contractors' Association of New England, Inc. (UCANE)

Experience

Bob is a trusted counselor, litigator, and long-time member of Hinckley Allen’s nationally recognized, Tier 1 Construction & Public Contracts Group. Bob serves clients of all types in both the private and public construction contexts (local, state, and federal) and has a broad range of experience spanning virtually all aspects of the construction process.

Known for his responsiveness and best-in-class work, Bob regularly handles bid protests and other procurement matters, including drafting and negotiating contracts. Bob counsels clients during the course of construction projects and trains and advises clients on a host of issues, including crisis response/management, compliance, and other risk management matters. He regularly handles claims and disputes, representing clients with respect to numerous forms of dispute resolution, including mediation, arbitration, litigation, civil, and administrative appeals. Bob has also represented clients in an array of project development and permitting issues, challenges, and appeals. Earlier in his career, Bob played an important role in extensive Big Dig litigation which culminated in tens of millions of dollars in recovery for the contractor-client. His experience extends to OSHA matters and insurance recovery, as well as business disputes and various other general litigation matters, including commercial lease disputes.

A thought leader in the construction industry, Bob served as a primary author of amicus briefs to the Massachusetts Supreme Judicial Court with respect to the Massachusetts Construction Manager at Risk Statute (M.G.L. c. 149A) in the Coghlin v. Gilbane case, as well as the Massachusetts Prompt Payment Act (M.G.L. c. 149, s. 29E) in the Business Interiors v. Graycor case. He co-authors monthly articles in the Utility Contractors Association of New England’s Construction Outlook Magazine, as well as in Construction Industries of Massachusetts, Inc.’s Construction Journal. Bob is also an annual contributor to multiple chapters in Thompson Reuters’ Massachusetts Practice Series: Construction Law. Bob also authored a chapter in the ABA Construction Law Forum’s 2024 Design-Build and EPC Contracting: A Practical Legal Guide. Bob has presented to several industry associations over the years, covering a wide range of construction topics.

Expert in these Jurisdictions

Massachusetts

Pennsylvania

United States Court of Appeals for the First Circuit

United States Court of Federal Claims

United States District Court for the District of Massachusetts

Work Highlights

Bid Protest Disputes

Successfully represented utility contractor in bid protest before the Bid Unit of the Massachusetts Office of the Attorney General. Successfully challenged validity of awarding authority’s decision to: (1) waive issues in apparent low bid; and (2) reject bid of client. Secured bid protest decision: (1) confirming that awarding authority was required to reject low bidder; and (2) invalidating awarding authority’s attempt to reject client’s bid.

Successfully represented contractor client in connection with bid protest before the Bid Unit of the Massachusetts Office of the Attorney General arising out of a river dam pump rehabilitation project.

Successfully defended contractor client in bid protest before the Bid Unit of the Massachusetts Office of the Attorney General, securing award of contract for client in connection with $92 million school project.

Successfully argued that awarding authority improperly rejected all bids and re-bid project in bid protest before the Bid Unit of the Massachusetts Office of the Attorney General.

Successfully defended bid protest in connection with a ~$50 million MassDOT roadway project involving questions concerning the protesting bidder’s ability to submit a bid in an amount above its prequalification Single Project Limit without a waiver from MassDOT.

Won bid protest and successfully demonstrated that awarding authority violated public bidding laws by rejecting client’s bid for ~$7 million in trade work in connection with the construction of a new $305+ million school.

Successfully defended construction contractor client in bid protest dispute, paving the way for ~$11 million contract award to client.

Represented construction contractor client in successful bid protest, securing ~$10+ million contract award in connection with M.G.L. c. 149A project.

Successfully defended a contractor client in a bid protest action involving the late submission of MBE/WBE bid forms. Bob successfully defeated the bid protest in a proceeding before the Bid Unit of the Massachusetts Attorney General, and again in Massachusetts Superior Court.

Filed a protest on behalf of a contractor-client who had submitted the second-low bid for a project. The low bidder had certified in its bid that it was a minority-owned business enterprise when, in fact, it was not. The Bid Unit of the Attorney General’s Office upheld the bid protest, which involved the implications of a Massachusetts statute that had been recently amended.

Successfully represented a contractor in a bid protest before the Bid Unit of the Massachusetts Attorney General’s Office. Although the contractor-client submitted the low bid for the project, the awarding authority rejected the bid. The awarding authority asserted past experience as grounds for the rejection. Bob filed a protest and the Attorney General’s Office concluded that the awarding authority had wrongfully rejected the bid. It was an extremely rare instance in which the Attorney General’s Office upheld a bid protest in a bidder responsibility case.

Represented client in successfully challenging an awarding authority’s use of the Commonwealth’s statewide blanket contract program in connection with public building project subject to the competitive bidding laws.

Represented construction client in successful bid protest action arising out of M.G.L. c. 149A project.

Represented construction contractor client in successful bid protest, securing contract award in connection with public building project.

Represented construction contractor in successful defense of bid protest arising out of a housing authority project.

Development/Permitting/Zoning Issues

Successfully obtained an order of the Massachusetts Superior Court dismissing an administrative appeal of agency determination.

Successfully defended a construction client in connection with an appeal of an earth removal permit, obtaining a dismissal and final judgment of the Superior Court after briefing and a hearing on competing motions for judgment on the pleadings. Successfully defended the client on appeal to the Massachusetts Appeals Court.

Successfully represented a client before MassDEP’s Office of Alternative Dispute Resolution in connection with an appeal of a superseding order of conditions and also successfully obtaining orders striking three experts before securing an Order dismissing the appeal.

Successfully represented a client in vacating a Planning Board’s denial of a special permit for building construction and securing a special permit after remand to the Planning Board.

Successfully represented a client in dismissing a challenge to a local Zoning Board of Appeals decision.

Successfully obtained a withdrawal of a municipal cease and desist order in connection with use of a client’s property.

Successfully obtained a dismissal of a challenge to a construction client’s activities pursuant to Orders of Conditions.

Litigation/Arbitration/Mediation

Successfully represented mechanical contractor against tortious interference claim in litigation arising out of construction of new public high school, resulting in stipulated dismissal of claim.

Represented construction contractor client in connection with claims arising out of public works construction project. Commenced litigation and moved for summary judgment, prompting settlement of dispute.

Represented construction client and secured favorable settlement in multi-party litigation arising out of slope failure.

A primary author of an amicus brief filed with the Supreme Judicial Court in the Business Interiors v. Graycor case, the first Prompt Payment Act case to reach the Commonwealth’s highest court. The case involved questions concerning waiver of defenses in instances of non-compliance with the statutory requirements.

Represented construction client and secured settlement of differing subsurface conditions claim arising out of Massachusetts public works project.

Successfully represented a pipeline contractor in litigation to recover sums due and owing under a bill of sale. Bob obtained a court order freezing/attaching the defendant’s bank accounts and subsequently settled the case.

Represented client and secured settlement in connection with litigation of seven-figure contract claim on federal project.

Successfully represented a site contractor in connection with a lack of access and suspension claim arising out of a municipal roadway rehabilitation project. The parties participated in a novel “high-low” binding mediation – meaning that if the parties could not reach an agreement, the mediator would impose a settlement amount within a bracketed range. When the parties reached an impasse, the mediator imposed a favorable settlement for the site contractor, which the municipality paid. This innovative form of mediation worked well for this case, ensuring payment and avoiding costly litigation.

Successfully represented a construction project owner at the mediation of an abutter’s nuisance claim. The abutter claimed to have been damaged as a result of construction activities at the construction site. The case settled at mediation with the project owner contributing nothing towards the settlement.

For a complete list of matters, visit Bob's website bio at https://www.hinckleyallen.com/people/robert-t-ferguson-jr/.

Education

Awards