Eric J. Firstman

Principal

• Telephone: (510) 835-9100
• Facsimile: (510) 451-2170
• Email: efirstman [at] wulfslaw [dot] com

Biography

Eric J. Firstman, a senior principal with the Firm, has over 25 years of experience in drafting, negotiation, bidding, award, arbitration, mediation, and litigation matters arising from construction contracts of all types, including design, construction, design-build, CM At-Risk, construction management, and public "leaseback" contracts. Mr. Firstman’s practice encompasses construction project planning and administration, construction litigation and trials. 

In Mr. Firstman’s project planning and administration practice, Mr. Firstman represents project owners as special construction law counsel on large public and private construction and development projects -- determining appropriate procurement, evaluation and project controls methodologies; developing procurement documents; negotiating and drafting contract documents; negotiating and administering claims arising during contract administration; developing claims avoidance strategies and dispute resolution procedures; handling bid protests and administrative proceedings; and providing legal representation in mediation, arbitration and litigation of construction claims and related disputes including financing, bonds, state and federal securities laws.

In Mr. Firstman’s construction litigation and trial practice, Mr. Firstman represents project owners in all types of complex construction litigation disputes, including claims of defective work, extra work, schedule delay and disruption, acceleration, cumulative impact, differing site conditions, defective design and engineering, false claims, breach of warranty, constructive change, contract abandonment, defective materials, and exposure to toxic mold.  Mr. Firstman has tried complex construction cases to verdict, judgment or award, in both state and federal court, judge trials and jury trials, and in of arbitration proceedings.  Mr. Firstman has settled complex cases during trial and in pre-trial proceedings, following ADR proceedings, as well as in mediation, negotiation and judicial settlement procedures. 

Education

• B.A., University of California, Los Angeles, 1980;
• J.D., University of California, Hastings College of the Law, 1983

Recognition and References

• Northern California Superlawyers 2007, 2008, 2009 (construction litigation)
• Corporate Counsel Superlawyers 2008, 2009 (construction litigation)
• Legal 500, 2009
• Fellow, Litigation Counsel of America
• Martindale Hubble, AV Rated

Affiliations

• American Bar Association, Sections on Construction and Local Government
• Forum Committee on the Construction Industry
• Construction Specifications Institute

Professional Experience: Project Planning and Administration

Mega Projects

• Hospital Corporation 
  $3 billion hospital construction and renovation program, covering multiple sites throughout California including hospital facilities, central utility plants, hospital support buildings, supporting infrastructure, using design build, cost reimbursable (target cost and GMP) and lump sum contract methodologies. 
• Port District 
  $1.5 billion airport and seaport expansion including new terminal, boarding areas, parking and rental car facilities, new wharfs and berths, harbor deepening, joint intermodal terminal and roadways, and potential BART extension.
• Airports Commission 
  $2.4 billion airport expansion including the new international terminal, boarding areas, parking and rental car facilities, inbound and outbound roads, light rail facilities and public transit extension.

 Water, Sanitation, Port and Hospital Districts

• Bay Area Hospital District 
  $115 Million central plant and center for joint replacement; on-going construction programs.
• Bay Area Water District 
  Supervisory control and data acquisition system upgrade project for 2 water treatment plants and 15 remote sites; solids handling treatment facility; ultra-filtration process water treatment facility; on-call, hauling, and emergency services contracts.
• Northern California Water Agency 
  $100 million capital improvement program.
• Northern California Sanitation Agency  
  $70 million water treatment plant expansion project; procurement agreement and master construction contract for biological nitrogen removal process upgrade.
• Central California Port District 
  Construction expansion program including electrical substation and port expansion.

K-12 School Construction Bond Programs

• Bay Area Unified School District
  $170 million school facilities construction program covering fifteen school sites.
• Bay Area Unified School District
  $180 million school bond program covering new construction and renovation construction at eleven school sites.
• Northern California Unified School District 
  $40 million school bond program covering new construction and renovation construction at seven school sites.
• Bay Area Unified School District 
  $40 million school bond program covering new construction and renovation construction at eight school sites.
• Bay Area High School District 
  $58 million school bond program covering new construction and renovation construction at two high school sites.
• Bay Area Unified School District 
  $12 million school bond program covering new construction and renovation construction at three school sites.

Community College Construction Bond Programs

• Bay Area Community College District (Peninsula) 
  $300 million facilities bond program covering three campus sites.
• Bay Area Community College District (East Bay) 
  $750 million facilities bond program covering three campus sites.
• Bay Area Community College District (San Francisco) 
  New campus in urban setting.

 General Law and Charter City Construction Programs

• Bay Area City
  $100 million new and renovation construction of the main library, civic center, and public safety building.
• Central Valley City
  $100 million sports and event center project.
• Bay Area City
  $20 million new library and $24 million utility receiving station, using fast track and design/build procurement methodologies.
• Bay Area City
  $12 million senior center project.
• Bay Area City
  $15 million new library.
• Bay Area City
  $10 million cable laying and installation of City-wide cable TV system.

Housing Authorities and Redevelopment Agencies

• Central Valley Housing Authority 
  State and federally funded public housing project and USDA funded farm labor housing facilities.
• Bay Area Housing Authority
  Federally funded public housing renovation projects.
• Central California Housing Authority
  Public housing, new construction, and renovation projects.
• Bay Area Redevelopment Agency
  State and federally funded renovation construction of inner city projects.

Counties

• Bay Area County
  $74 million hospital extension and $20 million public office building.
• Northern California County
  $14 million new sheriff's building and 240,000 square feet office complex for Human Services Department of General Services Agency.
• Central Valley County
  $15 million animal shelter and $10 million recreation center.
• Central Valley County
  New sheriff’s facility.

Professional Experience:  Trial Practice (Recent)

Juvenile Hall Facility 

In 2003, representing a county against the prime contractor’s claim exceeding $4 Million on a juvenile hall facility, secured a complete defense judgment (after trial).

School Construction Program

In 2004, representing a school district against the performance bond surety on three defaulted school renovation projects, secured payment of substantially the penal sum of the performance bonds plus all retention withholds (recovery in excess of $4 Million), after three months of arbitration hearings.

Combined Cycle Power Facility

In 2005 - 2006, as part of a Wulfsberg Reese Colvig & Firstman trial team representing an EPC contractor on a power facility in Michigan, secured a successful defense of the majority (over 90%) of construction defect claims that initially exceeded $60 Million, as part of a 75 day arbitration hearing.

Water Tunnel 

In 2006 - 2007, represented an irrigation district in defense and prosecution of competing claims of breach of contract with its construction contractor on a water tunnel project, in a 25 day jury trial.  Matter settled on appeal; neither party recovered sums beyond their base contract amounts.

Public Library 

In 2006 – 2009, represented a city in defense of over $10 Million in contractor claims, secured a complete defense judgment (after a 9 day court trial) followed by an award to the city of $750,000 in attorney’s fees; after the court of appeal reversed the judgment and remanded for a new trial, secured summary judgment based on trial testimony and law of the case.

Wastewater Treatment Plant  

In 2008 - 2010, represented a city in defense of over $11 Million in contractor claims on a wastewater treatment plant project, settled after trial call for zero on all of contractor’s affirmative claims and over $500,000 in liquidated damages for delay to the city.

Professional Experience:  Construction Litigation – Significant Matters Resolved Before Trial (Recent)

Bay Area and Central Valley Housing Authorities

In 2003 - 2006, defend contractor claims arising from public housing renovation, public housing and USDA funded farm labor housing facilities; settled after mediation. 

Central California Water Agency

In 2005 - 2007, pursue and defend consultant claims arising from Earthen dam replacement project involving significant cost overruns; settled after mediation. 

Bay Area School District

In 2006 – 2008, pursued design negligence claims against a school design firm, recovering (after several mediation sessions) amounts in excess of one million dollars and sufficient to reimburse the school district the entirety of its losses. 

Bay Area Hospital District

In 2006 – 2008, defended contractor claims exceeding $4 Million on a complex hospital renovation project, through Dispute Review Board proceedings and mediation proceedings, resulting in a settlement for payment of less than the contractor’s contract price and zero on its delay and disruption claims.

Bay Area Water District

In 2006 - 2008, defended a Water District against two separate multi-million dollar contractor claims for delay, disruption, contract abandonment, default and surety claims, and one $750,000 delay and disruption claim; resolved two for payments less than the contract price with liquidated damage credits to the Owner, and one for approximately 15% of the contractor’s affirmative claim. 

Bay Area City

In 2007 - 2008, pursue design and construction defect claims arising from the design and construction of a new public library, recovering full value of construction deficiencies and substantial portions of legal expenses.

Central Valley County

In 2007 - 2009, defend County from contractor claims exceeding $10 Million on performing arts center, resolving the matter prior to trial for an amount approximating the contractor’s contract price (i.e., zero on its affirmative claims), following mediation and facilitated settlement negotiations.

Bay Area Special District

In 2007 – 2009, represented a special road construction authority in defense of claims on over $200 Million in roadway construction, settling claims in the preliminary stages of litigation and also in contract settlement procedures. 

Lecturer & Publications

Guest Instructor, School of Trial Advocacy, Stanford Law School

• Fall 2007
• Fall 2008
• Fall 2009

Presenter - Construction Superconference, San Francisco, CA

• Construction Superconference, December 2000, Competitive Bidding of Design Build Contracts
• Construction Superconference, December 2001, Managing Risk on Mega-Projects
• Construction Superconference, December 2009, The Emerging Trend of CM-At Risk on Public Procurements

Claims Administration Training

• United States Department of Housing and Urban Development (three-day training programs for HUD, US Army Corps of Engineers, Public Housing Authorities and Indian Housing Authorities in 21 cities)
• Various cities, water district, airport, and seaport.

Lecturer in Professionally Certified Continuing Education Programs

• Lorman Educational Services, Public Contract Code Requirements and Competitive Bidding in California (one day course)
• Lorman Educational Services, Construction Contracting for Public Entities (one day course)
• Lorman Educational Services, Construction Liens in California (one-half day course)

Publications

• Matthew Bender Co., Standard Forms of California Jury Instructions on Construction Contracts, Real Property Law and Debtor-Creditor Relations in California
• The Construction Lawyer, Vol. 21, No. 4, Fall 2001, Supreme Court Bars Civil Rights Claims Arising From Withheld Payments on Public Works Contracts.