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.
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.
- 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
- 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)
- 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
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…
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-…
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.
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 …
The Bid Unit of the Massachusetts Attorney General’s Office Releases Decision on Bidder ResponsibilityMay 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 …
The Bid Unit of the Massachusetts Attorney General’s Office Issues a Bid Protest Decision Concerning MassDOT’s Mobilization CapFebruary 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…
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…
Legal Corner: Minimum Experience RequirementsJanuary 1, 2018
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…
The Bid Unit of the Massachusetts Attorney General's Office Rejects Mandatory Minimum Unit Price Requirements in MassDOT ProcurementOctober 3, 2017
Post-Bid Acceptance of WBE/WBE FormsSeptember 1, 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…
Post-Bid Change OrdersAugust 1, 2017
False Claims Act Liability: Deviation from Project SpecificationsMay 5, 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 …
MBE/WBE Bid Protest IssuesMarch 4, 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…
Collaborative Procurements: Traps for the Unwary?January 7, 2017
The First Circuit Rules on FAAAA Preemption of the Massachusetts Independent Contractor Law as Applied to Motor CarriersMarch 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…
Massachusetts High Court Rules That Parties Cannot Agree to Change the Scope of Judicial Review of Arbitration AwardsMarch 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…
The First Circuit Rules on FAAAA Preemption of the Massachusetts Independent Contractor Law as Applied to Motor CarriersMarch 4, 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 …
Massachusetts Attorney General's Bid Protest Unit Has No Jurisdiction to Oversee Compliance With Affirmative Action RequirementsFebruary 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…
Federal District Court in Boston Dismisses Claims Based on Plaintiff's Non-Disclosures in BankruptcyJanuary 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…
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…
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 …
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 …
Massachusetts’ Highest Court Vacates Coghlin v. Gilbane: The Construction Manager at Risk Method Does Not Eliminate the Owner’s Implied Warranty of Plans and SpecificationsDecember 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…
Legal Update: The Coghlin v. Gilbane Appeal and Its Impact on Construction Managers at Risk under Chapter 149AMarch 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…
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…
Legal Update: The Coghlin v. Gilbane Appeal and its Impact on Construction Managers at Risk Under Chapter 149AMarch 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…
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…
More than 40 years ago, the Massachusetts Supreme Judicial Court recognized that “hurried, last-minute calculations and compilations” often go hand-in-hand with competitive bidding. Bidders on public construction projects frequently refine and improve…
Appeals Court Decision Raises Questions Regarding an Awarding Authority's Ability to Waive Substantive Non-Statutory Bid RequirementsSeptember 30, 2011
A decision of the Massachusetts Appeals Court has raised important questions regarding an awarding authority’s ability to waive its own substantive bid requirements for a public construction project.It is well established in Massachusetts that an awardin…
In an August 2010 decision, the Massachusetts Appeals Court held that a standard American Institute of Architects ("AIA") waiver of subrogation clause in a construction contract applies to insurance policies obtained after completion of a project to bar in…
Effective October 3, 2008, Massachusetts began the use of civilian flaggers on construction sites. Road flaggers are individuals certified by MHD to perform traffic control services on public roads.New regulation requires awarding authorities to develop a …
RFQ packages must be customized with project-specific information; provide for a fair evaluation of contractors; practical assistance for evaluaton of contractors/subcontractors; Prequalification Committee must check all references; contractor's financial …
Brownfields refer to properties which remain undeveloped and unused; run-down properties that have remained unchanged for years; or properties that have not seen progress or development due to soil, groundwater, and actual building material contamination.E…
Extreme Makeover: Redefining Athletes' Identities in a Fantasy WorldJanuary 1, 2007
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…