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Ferguson_Robert

Robert T. Ferguson, Jr.

PartnerBoston

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.

Representative Cases

Bob served as the lead counsel or co-lead counsel in the following representative cases:

Bid Protest Disputes – Bid Unit of the Massachusetts Office of the Attorney General / Massachusetts Superior Court

  • 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.

Construction – Development/Permitting/Zoning Issues

  • Defense of Appeal of Decision of Massachusetts Department of Environmental Protection Office of Alternative Dispute Resolution – Massachusetts Superior Court. Successfully obtained an order of the Massachusetts Superior Court dismissing an administrative appeal of agency determination.
  • Certiorari Appeal – Earth Removal Permit – Massachusetts Superior Court & Massachusetts Appeals Court. 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.
  • Defense of Appeal of Superseding Order of Conditions – Massachusetts Department of Environmental Protection. 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.
  • Vacated Denial of Special Permit – Massachusetts Land Court. 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.
  • Defense of Appeal of Zoning Board of Appeals Decision – Massachusetts Superior Court. Successfully represented a client in dismissing a challenge to a local Zoning Board of Appeals decision.
  • Withdrawal of Cease and Desist – Massachusetts Municipality. Successfully obtained a withdrawal of a municipal cease and desist order in connection with use of a client’s property.
  • Defense of Request for Conservation Commission Enforcement – Massachusetts Superior Court. Successfully obtained a dismissal of a challenge to a construction client’s activities pursuant to Orders of Conditions.

Construction Litigation/Arbitration/Mediation

  • Tortious Interference Claim – Massachusetts Superior Court.  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.
  • Public Works Construction Dispute – Massachusetts Superior Court. 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.
  • Slope Failure – Massachusetts Superior Court. Represented construction client and secured favorable settlement in multi-party litigation arising out of slope failure.
  • Prompt Payment Act – Massachusetts Supreme Judicial Court. 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.
  • Settlement of Claims on Massachusetts Public Works Project – Arbitration. Represented construction client and secured settlement of differing subsurface conditions claim arising out of Massachusetts public works project.
  • Pre-Judgment Security/Bank Account Attachment – Massachusetts Superior Court. 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.
  • Federal Construction Claim – Armed Services Board of Contract Appeals. Represented client and secured settlement in connection with litigation of seven-figure contract claim on federal project.
  • Site Contractor Claim – Binding Mediation. 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. 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.
  • Summary Discharge of Mechanics’ Lien – Massachusetts Superior Court. 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 eight days of filing the action, a Court Order dissolving and discharging the lien was obtained.
  • Construction Manager-at-Risk – Massachusetts Supreme Judicial Court. Played a significant role authoring the amicus brief 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.
  • Review of an Engineer’s Decision under M.G.L. c. 30, s. 39J – Business Litigation Session, Massachusetts Superior Court. Played an important role representing a major construction contractor 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. Served as a primary author of the briefing of these issues in the Business Litigation Session of 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 million final payment by MassDOT in December 2014.
  • Big Dig Litigation – Arbitration. Member of the legal team representing a major construction contractor joint venture with respect to claims against MassDOT arising out of the Big Dig. Served as a primary author of briefing on the client’s motion for judgment on the pleadings, which the Superior Court allowed, reinstating tens of millions of dollars in arbitration awards in the client’s favor. 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 $88.7 million settlement followed.

Construction – Administrative Agency Issues

  • Certificate of Eligibility – Massachusetts Division of Capital Asset Management and Maintenance. Counseled construction client in connection with successful appeals of adverse certification determination.
  • Contractor Evaluations – Massachusetts Division of Capital Asset Management and Maintenance. Counseled construction clients in connection with successful efforts to overturn or disregard adverse contractor evaluations.

Construction – Other

  • Defense of MSHA Citations. Represented and negotiated settlement for mine operator/crusher in connection with action before Federal Mine Safety and Health Review Commission.
  • DPU Matters. Successfully counseled contractor in defense of citations issued by Massachusetts Department of Public Utilities resulting in reduction and/or dismissal of citations.
  • Project Closeout – Massachusetts Department of Transportation. Counseled construction client in connection with successful project closeout, which recognized time extension and eliminated assessment of liquidated damages.
  • Construction Project Closeout/Settlement – Massachusetts Municipality. Counseled client in connection with closeout of public works project and settlement of claims.
  • License and Operating Agreement – Massachusetts Bay Transportation Authority. Represented client in connection with dispute arising out of a Wi-Fi licensing and operating agreement with the MBTA, resulting in seven-figure settlement for client.
  • Federal Construction Claim – Federal Project. Counseled client in connection with negotiation of settlement of claim.
  • OSHA Matters – Occupational Safety and Health Review Commission. Experience working with construction clients in connection with defense of OSHA citations and litigation.
  • Removal of Default on Public Project – Massachusetts Municipality. Represented construction contractor in settling claims, including removal of default, in connection with dispute arising out of airport taxiway reconstruction project.
  • Contract Claim Appeal – Massachusetts Department of Transportation. Represented construction client in successful appeal of MassDOT’s initial denial of differing site conditions claim.
  • Contractor Prequalification – Massachusetts Municipality. Successfully assisted client in overturning adverse prequalification determination in connection with public contract.

Other Public Contract Procurement Issues

  • Procurement of Public Construction Contract. Successfully represented client in reviewing procurement, identifying problematic issue in procurement, and securing re-bid of project based on the procurement issue.
  • School Transportation Contracts – Massachusetts Municipalities. Represented client in connection with securing school transportation contracts.
  • Injunctive Relief/Bid Protest – Business Litigation Session, Massachusetts Superior Court. Part of the legal 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 briefs to dismiss the action on subject matter jurisdiction grounds. When the disappointed bidder filed a new action in state court, Bob held a significant role authoring the briefs opposing the disappointed bidder’s request for injunctive relief. The case was resolved after the court denied the request for injunctive relief.

Non-Construction Matters

  • Business Litigation: Broker Fee Tail Dispute in Real Estate Transaction – Massachusetts Superior Court. Represented client in litigation arising out of dispute concerning broker’s claim for fee under fee tail provision of real estate brokerage agreement. Successfully negotiated defense and indemnity of corporate client, and also obtained dismissal of litigation.
  • Breach of Contract – Federal Court, District of Massachusetts. 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.
  • Insurance Coverage Dispute – Mediation. Successfully represented a client on a significant insurance claim arising under a specialized insurance policy; obtained a 7-figure settlement at mediation without having to file suit.
  • Insurance Coverage – Settlement. Served as a critical part of the legal 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.
  • Real Property/Adverse Possession – Massachusetts Superior Court. 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. The case was settled on the eve of trial, obtaining a better result for the clients than if they had won at trial.
  • Cell Tower Agreement – Private Transaction. Counseled client in connection with negotiation of cell tower agreement.
  • Commercial Eviction Action – Lynn District Court. Represented landlord and tried commercial eviction action. Obtained executions for possession and money damages in full amount sought.
  • Commercial Eviction Action – Massachusetts Superior Court. Commenced commercial eviction action on behalf of landlord and negotiated settlement of litigation.
  • Solar Inverter Litigation – Massachusetts Superior Court. Represented client in connection with litigation and settlement of dispute arising out of solar inverters.
  • Neighbor Dispute – Massachusetts Housing Court. Represented homeowners in connection with neighbor dispute and obtained dismissal of action.
  • Business Torts – Business Litigation Session, Massachusetts Superior Court. 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 intentional 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.

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

  • Best Lawyers in America® (2024-2026)
    • Construction Law
    • Litigation – Construction
  • Chambers and Partners, Chambers USA (2025-2026)
    • Construction
  • Boston Magazine, Top Lawyers (2025)
    • Construction
  • Utility Contractors Association of New England, Associate Member of the Year (2024)
  • Super Lawyers, Rising Stars, Massachusetts (2009)
  • Villanova Sports and Entertainment Law Journal, Distinguished Service Award/Staff Writer of the Year (2007)

Charitable & Civic Involvement

  • Town and Club Youth Hockey Coach (2016-Present)
  • Town of Weston, MA, Permanent Building Committee (2016-2019)

Professional Affiliations

  • 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)

Bar Memberships

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

Exposure Risks and Practical Tips for Contractors on Federally Funded Projects due to Build America Buy America Laws

Construction contractors and their employees can face significant civil and criminal exposure under state and federal False Claims Acts (“FCA”), among other laws, for failing to appreciate the significance of, and nuances…

Publication

Lean, Mean, “Fraud-Fighting” Machine: The United States Department of Justice Creates a New “National Fraud Enforcement Division”

This article was featured in the May 2026 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook . In an April 7, 2026, written memorandum for the United States…

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Firm News

Hinckley Allen Earns Strong Recognition in Chambers USA 2026 Guide

Hinckley Allen has once again earned prominent recognition in the Chambers USA 2026 Guide. This year, 10 practice areas and more than 30 attorneys across the firm’s offices in the Northeast and…

Firm News

Boston Magazine Recognizes 26 Hinckley Allen Attorneys in 2025 Top Lawyers List

Hinckley Allen is proud to announce that 26 of its attorneys have been named to Boston Magazine’s 2025 Top Lawyers list, representing a broad range of its practice groups. This year, six…

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Past Event

Construction Industries of Massachusetts: Critical Issues in Massachusetts Public Construction

April 13, 2026

Christopher W. Morog and Robert T. Ferguson, Jr., partners in the Construction & Public Contracts Practice Group, will be the featured speakers at the Construction Industries of Massachusetts' Labor Relations Division (CIM-LRD)…

Past Event

Massachusetts Lawyers Weekly: SJC Allows Negligent Design Suit to Go Forward—What Businesses Need to Know

May 28, 2025

Robert T. Ferguson, Jr., partner in the Construction & Public Contracts Group, will be a featured speaker at the Massachusetts Lawyers Weekly panel, "SJC allows negligent design suit to go forward: What…

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Capabilities

Education

Villanova University School of Law, J.D., 2007

  • Villanova Sports and Entertainment Law Journal

  • Villanova Journal of Catholic Social Thought

  • J. Willard O’Brien American Inn of Court

College of the Holy Cross, B.A., 2004

St. Sebastian's School, 2000