Virginia Attorney General J. Marshall Coleman told Fairfax County authorities yesterday it is his opinion that they cannot use a construction firm's safety record as the only reason for excluding it from county contracts.
The state's chief legal officer said a resolution by the Fairfax County Board of Supervisors that bars construction safety violators from bidding on county projects makes it impossible for the county to hire firms with the "lowest responsibile bid," as required by state law.
The opinion does not have the force of law but could carry considerable weight if the supervisors' resolution were challenged in court. It complicates official efforts to clamp down on unsafe working conditions in fast-developing Northern Virginia, where there have been 14 construction-related deaths in the last two years.
"I said all along that we didn't have the power to do this," said Supervisor Joseph Alexander (D-Lee). He said he thinks the Board of Supervisors -- which approved the controversial resolution that 5-to-4 vote two months ago -- is likely to reverse that action. r
Supervisor Audrey Moore (D-Annandale) said she hopes the county will continue to follow its policy regardless of Coleman's opinion, which she said reflects an effort by state officials to cater to business interests.
"Mr. Coleman, like the governor [John N. Dalton], is responsive to the Northern Virginia Builders Association -- which seems to have a little more influence with both of these individuals than do endangered workers," she said.
It is not entirely clear whether the Fairfax resolution has protected any workers. Although Moore claims that the safety records of area builders have been improved by county vows of vigilance, other county officials say that no contractors have been excluded under the resolution.
"In every instance the bidders have been able to certify that they meet the county's requirements," said John diZerega, director of the county's office of capital facilities. "I like to think that most of the people who work for us are not the kind who have these violations."
In an opinion requested by Del. Vincent F. Callahan (R-Fairfax), Coleman said the fact that a contractor was cited for job safety violations did not necessarily mean that the contractor lacked the skill and ability to perform quality work.
"To exclude one or a number of such contractors whose bids may well play a significant role in determining the lowest bid would largely frustrate the purposes of the competitive bidding requirement," Coleman said.
He added, however, that his opinion does not bar local governing bodies from using a firm's safety record as one of the factors considered in determining whether to award it a contract.
Following two construction-related deaths in the county, the supervisors voted unanimously last December to do no business with contractors who had been found guilty of serious violations of federal occupational and safety regulations within the last three years.
That policy was watered down in January when the board voted to limit county business only with those contractors whose violations had been both willful and serious -- that is, contractors who had ignored official warnings that their conditions were unsafe.
The county policy would not bar the awarding of a county contract to the William B. Hopke Co. of Alexandria, which was supervising a project at which one worker was killed and another injured in an unshored trench last fall.
Acting County Executive J. Hamilton Lambert is expected to recommend soon that the supervisors give Hopke a $220,000 contract on a storm drainage project in the Franconia area.
Hopke has certified to county officials that it has been penalized for no safety violations in the three years before it submitted a bid on the project.
Julian Carper, president of the Virginia AFL-CIO, said yesterday that Coleman's opinion ignores what have traditionally been inadequate penalties in the state against unsafe contractors.
"We certainly agree with Fairfax County -- there needs to be some kind of strong measures used to ensure increased safety," Carper said.
State and federal officials have long been at odds over job safety enforcement in Virginia, with U.S. Labor Department officials threatening to take over Virginia's inspection program because violations are processed in the state court system rather than through an administrative hearing panel.
A month ago, Coleman filed suit in federal court to block those takeover efforts.