Recently, the West Virginia School Building Authority disseminated a list of 18 criteria which county school boards are supposed to use in order to determine whether a contractor bidding on a project is qualified to perform the work.  The list of 18 criteria is accompanied by a short paragraph explaining that no single criterion is to be determinative.  Rather, all of the criteria are to be considered as a whole.

Some West Virginia counties, however, have started to consider each criterion on the list of 18 separately, where the failure to satisfy any one criterion on the list will automatically disqualify a contractor from bidding on projects funded, in whole or in part, by the School Building Authority.  This has forced concerned contractors to remind those counties that the language which the School Building Authority included with the list of 18 criteria discourages this practice.  Should these counties more formally adopt the practice of automatically excluding contractors based on any single criteria, the impact on West Virginia employers could be significant.

One criterion among the list of 18 is that a contractor must have an apprenticeship program approved by the United States Department of Labor.  Those programs closely resemble apprenticeship programs found among construction trade unions, and it is rare to find such apprenticeship programs among non-union contractors in West Virginia and elsewhere.  Therefore, if only contractors with Department of Labor-approved apprenticeship programs are qualified to bid on projects funded by the School Building Authority, only union contractors will be bidding for, and awarded, most of this work.

If work on West Virginia projects funded by the School Building Authority ends up being limited to union contractors, much of it could end up being performed by out-of-state employers.  Only approximately 12% of West Virginia contractors are unionized.  Worse, not all of the construction trades can be found among unionized West Virginia contractors.  School boards looking for contractors to perform work will have to look out of state to find the skills necessary to get the job done.

Obviously, looking out of state to fill job requirements when qualified employees here in the state could do the work would be an unintended but very adverse outcome of the decision to adopt the practice that a single criterion will automatically disqualify a contractor.  Hopefully, West Virginia school boards can avoid this potentially disastrous consequence by evaluating all 18 criteria together, with no single criteria being determinative, as the School Building Authority says they are supposed to do.

If that is done, then both union and non-union contractors will have a fair and equal chance to bid on contracts, and work that could be performed by qualified West Virginia employees will not be sent out of state.

“Jack” Merinar is the leader of the firm’s NLRA team. He got his introduction to labor law in the early 1990’s seeking injunctions of picket line misconduct and handling arbitrations. By the mid 1990’s he was advising employers through union campaigns and elections. His experience with campaigns led Jack to develop a focus on advising employers how to avoid campaigns where possible.
» See more articles by John R. Merinar, Jr.
» Read the full biography of John R. Merinar, Jr. at Steptoe & Johnson


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