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Ferguson, Robert

Robert T. Ferguson, Jr.

Partner

Bob handles complex cases involving construction, commercial/business disputes and insurance recovery. In addition to civil practice in both state and federal court, including frequent practice in the Massachusetts Business Litigation Session, Bob also has significant experience relating to arbitration, mediation and civil appeals.

Bob has served clients in both the private and public construction contexts, including cases arising out of Boston’s Central Artery/Tunnel Project. Bob’s construction experience includes contract, surety, and tort-based litigation, mechanic’s lien claims, and bid protest disputes. Bob has successfully obtained pre-judgment attachments and injunctive/equitable relief for construction clients. In addition, Bob played an important role on behalf of the Perini/Kiewit/Cashman joint venture in extensive Big Dig litigation which resulted in a final payment of $88.7 Million by MassDOT in December 2014.

A significant facet of Bob’s practice involves litigation of business disputes, such as disputes arising out of commercial leases and real estate transactions, joint ventures/partnerships, professional services agreements, business torts, and insurance coverage disputes. As a general litigator, Bob has also served clients in landlord-tenant, professional malpractice, personal injury and property law cases.

Bob is a contributing researcher, writer, and editor of West’s Massachusetts Practice Series volume on Construction Law as well as the USLAW Network, Inc.’s Massachusetts Construction Law Compendium. Bob is also a regular contributor to construction industry periodicals, including Utility Contractors’ Association of New England, Inc’s (UCANE) Construction Outlook Magazine. Bob played a significant role authoring the amicus brief for AGC Massachusetts in the appeal of Coghlin v. Gilbane – a first-of-its kind Massachusetts case involving the Construction Manager-at-Risk delivery method under Chapter 149A.

Experience

Representative Cases

Insurance Coverage Dispute – Mediation

Bob successfully represented a client on a significant insurance claim arising under a specialized insurance policy.  Bob obtained a 7-figure settlement at mediation without having to file suit.

Insurance Coverage Dispute – Settlement

Bob was a critical part of a Hinckley Allen team representing a client on an insurance claim for business income losses arising out of a roof collapse.  The team obtained a very favorable settlement without significant litigation.

Bid Protest Dispute Bid Unit of the Massachusetts Attorney General’s Office

Bob 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.

Bid Protest Dispute – Bid Unit of the Massachusetts Attorney General’s Office

Bob 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 recently amended Massachusetts statute.

Bid Protest Dispute – Bid Unit of the Massachusetts Attorney General’s Office and Massachusetts Superior Court

Bob 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 Attorney General, and again in Massachusetts Superior Court.

 Review of an Engineer’s Decision under M.G.L. c. 30, s. 39J – Business Litigation Session, Massachusetts Superior Court

 Bob played an important role representing the Perini/Kiewit/Cashman joint venture in extensive Big Dig litigation against MassDOT, including the joint venture’s challenge of a series of MassDOT engineer’s decisions concerning the arbitrability of claims.  Bob successfully briefed these issues in the Business Litigation Session of the Suffolk Superior Court.  One of only a handful of Massachusetts decisions to vacate engineer decisions under the Massachusetts statute, the Court vacated MassDOT’s engineer decisions and reinstated a series of arbitration awards exceeding $50 Million.  The Court’s 103-page decision – one of the longest known decisions of the BLS – paved the way towards an $88.7 final payment by MassDOT in December 2014.

Construction Manager-at-Risk – Massachusetts Supreme Judicial Court

Bob played a significant role authoring the amicus brief for AGC Massachusetts in the Coghlin v. Gilbane appeal – a first-of-its kind Massachusetts case involving the Construction Manager-at-Risk delivery method under Chapter 149A. The issues in the case included important questions regarding whether the CM-at-risk should bear ultimate design responsibility. The SJC issued a decision in September 2015 favorable to the interests of AGC Massachusetts and CMs-at-risk.

Subject Matter Jurisdiction – Federal Court, District of Massachusetts

Bob was part of the team representing the winning bidder for an MBTA contract to build new subway cars. When the disappointed bidder filed a bid protest action in federal court, Hinckley Allen moved to dismiss. Bob played a significant role authoring the briefs seeking dismissal on subject matter jurisdiction grounds, which the federal court granted.

Injunctive Relief/Bid Protest – Business Litigation Session, Massachusetts Superior Court

Bob was part of the team representing the winning bidder for an MBTA contract to build new subway cars. The disappointed bidder filed an action in federal court, and Bob played a significant role authoring the briefs which successfully dismissed the federal court action. When the disappointed bidder filed a new action in state court, Bob played a significant role authoring the briefs opposing the disappointed bidder’s request for injunctive relief. The case resolved after the court denied the request for injunctive relief.

Real Property/Adverse Possession – Massachusetts Superior Court

Bob served as first-chair counsel representing defendants in a real property case.  The plaintiff claimed rights to pass over a “paper road” running through the defendants’ property.  Bob settled the case on the eve of trial, obtaining a better result for the clients than if they had won at trial.

Breach of Contract – Federal Court, District of Massachusetts

Bob served as second-chair trial counsel representing an investment company in a week-long federal Jury trial in Boston. The dispute arose out of the original owner-developer’s claim for an “earnout payment” under a purchase and sale agreement for a newly constructed residential living complex. The jury returned a verdict in favor of the investment company and also awarded damages in favor of the insurance company. The court subsequently awarded the investment company costs and attorneys’ fees.

Big Dig Litigation – Arbitration

Bob was part of the arbitration team representing the Perini/Kiewit/Cashman joint venture with respect to its claims against MassDOT arising out of the Big Dig. In the fall of 2014, the parties arbitrated the issue of interest on prior arbitration awards issued in favor of the joint venture. The arbitrators awarded the joint venture an additional $38 Million in interest, an award which ultimately led to an $88.7 settlement of the case.

Pre-Judgment Security/Bank Account Attachment – Massachusetts Superior Court

Bob 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.

Summary Discharge of Mechanics’ Lien – Massachusetts Superior Court

Bob successfully represented a contractor client against a mechanic’s lien claim. When the lien claimant refused to drop the lien claim, Bob commenced an action for the summary discharge of the lien under the Massachusetts statute. Within 8 days of filing the action, Bob had obtained a Court Order dissolving and discharging the lien.

Site Contractor Claim – Binding Mediation

Bob 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.

Nuisance Claim – Mediation

Bob 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.

Business Torts – Business Litigation Session, Massachusetts Superior Court

Bob played a significant role authoring summary judgment papers on behalf of a project owner in a Business Litigation Session case arising out of a project at Logan Airport. A subcontractor asserted tort claims – including defamation and international interference with contract – against the project owner. Through summary judgment, Hinckley Allen successfully extracted the project owner from the litigation, which also involved other project participants.

Credentials

Work Experience

  • Hinckley Allen
    • Partner (2017-Present)
    • Construction Technology Liaison Group (2016-Present)
    • Associate (2007-2016)
    • Associate Liaison Committee, Original Member (2013-2016)
    • Summer Associate (2005-2006)
  • The Honorable Denis P. Cohen, Philadelphia Court of Common Pleas
    • Student Externship (2006)

Honors & Awards

  • Super Lawyers, Rising Stars, Massachusetts (2009)
  • Villanova Sports and Entertainment Law Journal, Distinguished Service Award/Staff Writer of the Year (2007)

Charitable & Civic Involvement

  • Holy Cross Club of Boston
  • Town of Weston, MA, Permanent Building Committee
  • Villanova Law Alumni Association, New England Chapter

Professional Affiliations

  • American Bar Association Forum on Construction Law & Young Lawyers Division
  • Associated General Contractors (AGC) Massachusetts Young Contractors Professional Institute (2014)
  • Boston Bar Association
  • Federal Bar Association
  • Utility Contractors' Association of New England, Inc. (UCANE)

Bar Memberships

  • Massachusetts, 2007
  • Pennsylvania, 2007
  • United States Court of Appeals, First Circuit, 2015
  • United States Court of Federal Claims, 2016
  • United States District Court, District of Massachusetts, 2008

News & Insight

Publication

The Problem of Bad Actors in Construction

March 1, 2019

In any given week, you could run a few searches and find recent news articles about fraudulent or criminal contractor conduct in the world of construction. For example, in April of 2019, a branch manager for an insulation contractor pleaded guilty to bid-r…

Publication

Massachusetts High Court Bars Chapter 93A Claim as Untimely

September 5, 2018

The Massachusetts Supreme Judicial Court (“SJC”) closed out August with a decision concerning contractor exposure to Chapter 93A claims for unfair and deceptive trade practices.  A divided court concluded that a Chapter 93A claim was subject to the 6-…

Publication

Minding Your Manners: Personality Issues and Bidder Responsibility

August 3, 2018

In May’s issue, we discussed a bidder responsibility decision of the Bid Unit of the Massachusetts Office of the Attorney General (the “Bid Unit”).  In that case, the awarding authority rejected the low bidder as allegedly “difficult to work with.

Publication

The SJC Weighs in on Termination for Convenience

June 5, 2018

Despite the prevalence of termination for convenience clauses in construction contracts, there has been little caselaw in Massachusetts addressing such provisions.  That needle moved on May 2, 2018, when the Massachusetts Supreme Judicial Court discussed …

Publication

The Bid Unit of the Massachusetts Attorney General’s Office Releases Decision on Bidder Responsibility

May 3, 2018

 The competitive bidding statute for public works projects (M.G.L. c. 30, § 39M) generally requires an awarding authority to award to the lowest eligible and “responsible” bidder on large projects.  Because awarding authorities have discretion when …

Publication

The Bid Unit of the Massachusetts Attorney General’s Office Issues a Bid Protest Decision Concerning MassDOT’s Mobilization Cap

February 1, 2018

In 2015, the Massachusetts Department of Transportation (“MassDOT”) issued Supplemental Specifications to its Standard Specifications for Highways and Bridges. One of the changes in the Supplemental Specifications was the addition of a percentage cap t…

Publication

Minimum Experience Requirements

January 3, 2018

An awarding authority has discretion when it comes to waiver of non-statutory bidding requirements.  However, as illustrated in a recent decision of the Bid Unit of the Massachusetts Attorney General’s Office (the “AGO”), that discretion does not en…

Publication

Legal Corner: Minimum Experience Requirements

January 1, 2018
Publication

Massachusetts Supreme Judicial Court Sets Limits on an Insurer’s Duty to Defend

November 14, 2017

In Massachusetts, insurance companies owe a broad duty to their insureds to defend against claims within the scope of policy coverage.  Many times, an insured will face several different claims in litigation.  Some may be covered by insurance, while othe…

Publication

The Bid Unit of the Massachusetts Attorney General's Office Rejects Mandatory Minimum Unit Price Requirements in MassDOT Procurement

October 3, 2017
Publication

Post-Bid Acceptance of WBE/WBE Forms

September 1, 2017
Publication

Bid Protest Decision Invalidates Mandatory Minimum Unit Prices

August 16, 2017

On August 1, 2017, the Bid Unit of the Massachusetts Attorney General’s Office (the “AG”) issued a first-of-its-kind decision concerning MassDOT’s use of minimum unit price requirements. The AG’s well-reasoned opinion invalidates MassDOT’s mini…

Publication

Post-Bid Change Orders

August 1, 2017
Publication

False Claims Act Liability: Deviation from Project Specifications

May 5, 2017
Publication

False Claims Act Liability: Deviation from Project Specifications

March 8, 2017

The Massachusetts Attorney General’s Office (“AGO”) closed out February 2017 by announcing substantial False Claims Act penalties against two contractors.   In addition to damages and civil penalties, the AGO barred the contractors from bidding on …

Publication

MBE/WBE Bid Protest Issues

March 4, 2017
Publication

Front-Loaded and Inflated Pay Apps

March 1, 2017

On February 24, 2017, the Massachusetts Attorney General’s Office (“AGO”) announced sweeping penalties against two contractors for violations of the Massachusetts False Claims Act.  According to the AGO, a General Contractor (GC) and its subcontract…

Publication

Collaborative Procurements: Traps for the Unwary?

January 7, 2017
Publication

The First Circuit Rules on FAAAA Preemption of the Massachusetts Independent Contractor Law as Applied to Motor Carriers

March 18, 2016

Last year’s Spring Newsletter featured an article discussing a pair of decisions holding that the Federal Aviation Administration Authorization Act (the “FAAAA”) preempts the Massachusetts Independent Contractor Law when it comes to freight and packa…

Publication

Massachusetts High Court Rules That Parties Cannot Agree to Change the Scope of Judicial Review of Arbitration Awards

March 9, 2016

Following a well-known Supreme Court case addressing the same issue at the federal level, the Massachusetts SJC issued a decision today holding that judicial review of arbitration awards is limited to the specific grounds set forth in the Massachusetts Arb…

Publication

The First Circuit Rules on FAAAA Preemption of the Massachusetts Independent Contractor Law as Applied to Motor Carriers

March 4, 2016
Publication

MA SJC Limits Court Options for Major Development Permit Appeals

February 12, 2016

The Massachusetts high court has just issued a decision holding that permit appeals for certain development projects can be brought only in the Permit Session of the Land Court or in Superior Court, and not in Housing Court or District Court. The decision …

Publication

Massachusetts Attorney General's Bid Protest Unit Has No Jurisdiction to Oversee Compliance With Affirmative Action Requirements

February 2, 2016

The Bid Unit in the Fair Labor Division of the Massachusetts Attorney General's Office frequently hears and decides bid protests arising out of publicly bid projects.  By statute, the AG's Office has enforcement authority over public construction bidding…

Publication

Federal District Court in Boston Dismisses Claims Based on Plaintiff's Non-Disclosures in Bankruptcy

January 25, 2016

In a decision issued this afternoon, a federal judge sitting in Boston held that the plaintiff in a wage case could not proceed with claims that he did not disclose in bankruptcy.  Hinckley Allen handled the defense for two of the defendants.The plain…

Publication

Broad Arbitration Agreement Not Enough

January 14, 2016

In a recent opinion, the Massachusetts Appeals Court held that a broad arbitration agreement did not apply retroactively to the parties’ prior course of dealing.  The case arose out of claims against an accounting firm.  The accounting firm had been pe…

Publication

MA SJC Holds AAA Arbitrators Cannot Award Attorneys' Fees Pursuant to M.G.L. c. 231, s. 6F

January 7, 2016

The Massachusetts Supreme Judicial Court issued a decision this morning holding that, absent an agreement to the contrary, arbitrators in a American Arbitration Association (AAA) proceeding (applying the AAA’s commercial arbitration rules) cannot award …

Publication

The Sun Is Setting on the Safe Harbor Provision of the New Earned Sick Time Law

December 10, 2015

The Massachusetts Office of the Attorney General (AG) made news earlier this year when it issued final regulations implementing the new voter-approved Massachusetts Earned Sick Time Law. Effective as of July 1, 2015, the regulations impose new earned paid …

Publication

Massachusetts’ Highest Court Vacates Coghlin v. Gilbane: The Construction Manager at Risk Method Does Not Eliminate the Owner’s Implied Warranty of Plans and Specifications

December 10, 2015

On September 2, 2015, the Massachusetts Supreme Judicial Court (SJC) issued its long-awaited opinion in Coghlin v. Gilbane, a case that presented questions of first impression regarding the scope of design liability in the context of the construction manag…

Publication

Legal Update: The Coghlin v. Gilbane Appeal and Its Impact on Construction Managers at Risk under Chapter 149A

March 31, 2015

On March 2, the highest court in Massachusetts heard arguments in the appeal of Coghlin v. Gilbane, a case involving the rights and obligations of construction managers on Chapter 149A projects. The case garnered wide attention last summer when the Worcest…

Publication

The FAAAA Preempts the Mass Independent Contractor Laws As Applied to Motor Carriers Like FedEx

March 2, 2015

In a pair of February 5, 2015 decisions likely to garner wide interest, Judge Stearns has held that, as applied to freight and package delivery motor carriers, the Massachusetts Independent Contractor Law is preempted by the Federal Aviation Administration…

Publication

Legal Update: The Coghlin v. Gilbane Appeal and its Impact on Construction Managers at Risk Under Chapter 149A

March 1, 2015

On March 2, the highest court in Massachusetts heard arguments in the Coghlin v. Gilbane appeal, a case involving the rights and obligations of construction managers on Chapter 149A projects.  The case garnered wide attention last summer when the Worceste…

Publication

Avoidable Litigation

December 1, 2014

The Appeals Court issued an unpublished decision at the end of October in a case where costly litigation could have been avoided.The case arose out of a public construction project.  The millwork subcontractor asserted claims against the general for addit…

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Firm News

Hinckley Allen Promotes Conrad, Ferguson, Hershman and Lemke

January 23, 2017

Hinckley Allen rings in the New Year with the promotion of three new partners: Luke R. Conrad, Robert T. Ferguson, Jr. and Sarah T. Lemke and our new counsel, Chad L. Hershman. These attorneys assumed their new positions on January 1, 2017.“Each of these…