TITLE:  Southwestern Bell Telephone Company, B-292476, October 1, 2003
BNUMBER:  B-292476
DATE:  October 1, 2003
**********************************************************************
Southwestern Bell Telephone Company, B-292476, October 1, 2003

   DOCUMENT FOR PUBLIC RELEASE                                                
The decision issued on the date below was subject to a GAO Protective      
Order.  This redacted version has been approved for public release.        

   Decision
    
Matter of:   Southwestern Bell Telephone Company
    
File:            B-292476
    
Date:              October 1, 2003
    
James J. Regan, Esq., Daniel R. Forman, Esq., and J. Catherine Kunz, Esq.,
Crowell & Moring, for the protester.
James L. Feldesman, Esq., and Kathy S. Ghiladi, Esq., Feldesman Tucker
Leifer Fidell, and Brian T. Fitzgerald, Esq., LeBoeuf, Lamb, Greene &
MacRae, for Adelphia Business Solutions, Inc., an intervenor.
Clarence D. Long, III, Esq., and Donald Mosely, Esq., Department of the
Air Force, for the agency.
Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
1.  Protest challenging agency*s evaluation of the protester*s and
awardee*s past performance, which found the two firms had essentially
equal past performance, is sustained, where the agency did not consider
awardee*s record of integrity and business ethics, as required by the
solicitation, and the record raises serious concerns that awardee may have
problems in this area, and where agency did not document its assessment of
protester*s past performance, despite the fact that solicitation provided
for qualitative assessment of offerors* past performance.
    
2.  Contracting officer*s affirmative determination of the awardee*s
responsibility is not reasonably based where, despite having general
awareness of misconduct by some of awardee*s principals and parent
company, the contracting officer did not obtain sufficient information
about or consider the awardee*s record of integrity and business ethics in
making his responsibility determination. 
DECISION
    
Southwestern Bell Telephone Company protests the award of a contract to
Adelphia Business Solutions, Inc. under request for proposals (RFP) No.
F34608-03-R-5012, issued by the Department of the Air Force for commercial
communication services at McConnell Air Force Base (AFB), Kansas.
Southwestern Bell challenges the agency*s past performance evaluation and
its affirmative determination of Adelphia*s responsibility.In addition,
Southwestern Bell asserts that Adelphia is ineligible for award because it
falsely certified that none of its principals had been indicted.
    

   We sustain the protest.
    
The RFP, issued December 12, 2002, provided for the award of a fixed-price
contract for local voice and data communication services for McConnell AFB
for a period not to exceed 5 years.  Detailed proposal preparation
instructions were provided, which required, among other things, that
offerors submit their proposals in three volumes:  (1) technical, (2) past
performance, and (3) price and contracting information.  With respect to
the past performance volume, offerors were required to provide detailed
information concerning relevant contracts performed within the last 5
years. 
    
The RFP provided that proposals would be evaluated against the following
evaluation criteria:  technical, past performance, and price.  Offerors
were informed that, under the technical evaluation criterion, proposals
would be evaluated on a pass/fail basis, that is:
    
A decision on the technical acceptability of each offeror*s technical
proposal shall be made.  Only those offers determined to be technically
acceptable, either initially or as a result of discussions, will be
considered for award.
Technically acceptable proposals would then be evaluated under the past
performance and price criteria.  The RFP stated that the agency would use
the *performance-price trade-off* basis for award and that past
performance and price were equally weighted.  RFP at 20. 
    
The RFP stated that in evaluating past performance risk the agency would
use data from a variety of sources, including the offerors* proposals and
other government and commercial sources.[2]  Offerors were also informed
that the agency would place strong emphasis on the offeror*s record of
past performance of jobs of comparable complexity and similar technical
requirements, and that the offeror*s organization itself would be
evaluated with respect to, among other things, *[its] [r]ecord of
integrity and business ethics.*  RFP at 21.
    
The RFP also included the *Certification Regarding Debarment, Suspension
or Ineligibility for Award,* as required by Federal Acquisition Regulation
(FAR) S: 9.409(a).  The certification included in the RFP required the
offeror to identify in its certification whether *to the best of its
knowledge and belief, . . . the offeror and/or any of its principals* had
been debarred, suspended, proposed for debarment or declared ineligible
for award, or had been within a 3-year period prior to the date of its
offer convicted of various crimes or had certain civil judgments against
it, or was presently indicted for, or otherwise criminally or civilly
charged, with the commission of certain identified offenses.  RFP S: K at
6.
    
The Air Force received proposals from Southwestern Bell and Adelphia in
response to the RFP.  After discussions were conducted, both offerors were
determined to be technically acceptable by the agency*s technical proposal
evaluation team (TPET).  Adelphia*s evaluated 5-year price was $318,437.70
and Southwestern Bell*s evaluated price was $[Deleted].  Agency Report,
Tab 15m, Price Competition Memorandum, at 1. 
    
The agency evaluated the firms* past performance, relying upon the
offerors* past performance proposal volumes, survey input from previous
customers, and the agency*s own knowledge of the contractors* performance
on other government contractors.  Both offerors were evaluated as *very
good* under the past performance criterion.  Agency Report, Tab 9, Past
Performance Assessment, at 2.  Adelphia*s rating was based upon the
agency*s judgment that Adelphia had very good performance under three
identified contracts[3] and the pre-award survey recommendation of *full
award* from the Defense Contract Management Agency (DCMA).[4]  Id. at 1. 
With respect to Southwestern Bell*s past performance rating, the agency
stated only:
    
[Southwestern Bell] was the only other company that submitted a bid. 
However, [Southwestern Bell*s] proposal was $[Deleted] higher. 
[Southwestern Bell] has several dozen contracts with this office, and
their past performance is well documented within this office.
Id. at 2.
    
The contracting officer concluded:
    
Since both [Adelphia*s and Southwestern Bell*s] proposals were found to be
technically acceptable, and since each Offeror received the same past
performance rating (*very good*), the discriminating factor would be, in
accordance with the evaluation criteria specified in the acquisition, the
lowest evaluated price.  Since [Adelphia] had the lowest evaluated price,
they were determined to represent the greatest value, and consequently,
[Adelphia] was awarded the contract.
Contracting Officer*s Statement at 4.  This protest followed.
    
Southwestern Bell challenges the Air Force*s evaluation of its and
Adelphia*s past performance, complaining that the agency*s determination
that the two firms* past performance ratings were equivalent is not
rationally supported in the record. 
    
In reviewing protests of alleged improper evaluations and source selection
decisions, our Office examines the record to determine only whether the
agency*s judgment was reasonable and in accord with the stated evaluation
criteria and applicable procurement law.  Abt Assocs., Inc., B-237060.2,
Feb. 26, 1990, 90-1 CPD P: 223 at 4.  Generally, the evaluation of an
offeror*s past performance is a matter within the discretion of the
contracting agency, and we will not substitute our judgment for reasonably
based past performance ratings.  However, we will question such
conclusions where they are not reasonably based, inconsistent with the
solicitation criteria and/or are undocumented.  Sonetronics, Inc., B-
289459.2, Mar. 18, 2002, 2002 CPD P: 48 at 3. 
    
With respect to Adelphia*s past performance evaluation, Southwestern Bell
states that the agency did not evaluate Adelphia*s record of integrity and
business ethics, as required by the RFP.  Southwestern Bell asserts that
this failure is significant because Adelphia*s record of integrity and
business ethics is unacceptable.  In this regard, Southwestern Bell notes
that three members of the Rigas family, who are currently majority
shareholders of the awardee*s former parent corporation, Adelphia
Communications Corporation, and that corporation itself have been charged
by the Securities and Exchange Commission (SEC) with violating various
provisions of federal securities laws.  Quoting the SEC*s complaint for,
among other things, injunctive and monetary relief against awardee*s
parent company and members of the Rigas family, Southwestern Bell notes
that the *principals of the awardee stand accused by the government of
committing *the most extensive financial fraud ever to take place at a
public company.**  See
.  Subsequently, five
individuals (including three Rigas family members) were criminally
indicted by a federal grand jury, each on 16 counts of securities fraud, 5
counts of wire fraud, 2 counts of bank fraud, and 1 count of conspiracy. 
Although Adelphia Business Solutions, of which the awardee is apparently
an affiliate, was spun off from Adelphia Communications Corporation in
early 2002, the protester states that a majority of the shares of Adelphia
Business Solutions stock were transferred to members of the Rigas family
and to entities controlled by the Rigas family.[5] 
    
The record shows that the Air Force did not evaluate Adelphia*s *record of
integrity and business ethics* as part of its past performance evaluation,
as was specifically required by the RFP.  The Air Force does not assert
that it performed such an evaluation, but merely argues that its *very
good* rating of Adephia*s past performance was justified, given the
information provided and reviewed.  The record shows that the Air Force
assessed Adelphia*s past performance as *very good* based only upon the
survey responses it received from the three contract sources identified by
Adelphia in its proposal and the DCMA pre-award survey.  See Agency
Report, Tab 9, Past Performance Assessment, at 1; Contracting Officer*s
Statement at 3.  The past performance surveys, however, did not seek or
receive any information concerning Adelphia*s record of integrity or
ethics. [6]  Furthermore, as asserted by the protester, Adelphia performed
these three referenced contracts while the indicted members of the Rigas
family had significant ownership interest and control in the awardee and
its parent companies.  Given the specific RFP language, the charges
brought by the SEC and the indictment of the Rigas family members should
have been (but were not) evaluated as relevant information in the agency*s
assessment of Adelphia*s past performance.  In short, because the agency*s
past performance evaluation was not in accord with the stated RFP
criteria, we find the agency*s evaluation of Adelphia*s past performance
to be inconsistent with the RFP evaluation scheme and unreasonable.  See
Beneco Enters., Inc., B- 283512.3, July 10, 2000, 2000 CPD P: 176 at 7.
    
We also find no basis in the record to find reasonable the Air Force*s
evaluation of Southwestern Bell*s past performance.  As indicated above,
the agency*s entire explanation of its evaluation rating of the
protester*s past performance was that Southwestern Bell had a dozen
contracts with the Air Force*s procuring office, that these contracts were
*well documented,* and that the protester*s evaluated price was higher
than that of the awardee.  Agency Report, Tab 9, Past Performance
Assessment, at 2.  Despite the agency*s statement that Southwestern Bell*s
performance of contracts with its office were *well documented,* no
documentation or explanation of that performance has been provided to
support the agency*s evaluation rating, which was equal to Adelphia*s
rating.  In fact, despite the protester*s specific complaint of the
paucity of the Air Force*s explanation, the agency has provided no further
information of any kind in support of its evaluation assessment.  We find
this inexplicable, given that the RFP provided for a qualitative
assessment of the offerors* past performance and for an integrated
assessment of the merits of the offerors* respective assessments and their
evaluated price to determine the *greatest value.*  See RFP at 20.
    
Thus, the agency*s judgment that Adelphia*s slightly lower price reflected
the best value to the government lacks a reasonable basis.  As noted
above, the RFP provided for a tradeoff between the offerors* qualitative
past performance rankings and their respective evaluated price.  The Air
Force concluded here that the two firms* *very good* past performance
rankings reflected essentially equal merit and therefore price became the
discriminating factor.  However, because the agency did not reasonably
evaluate the firms* past performance in accordance with the RFP criteria,
the agency did not have a reasonable basis for its conclusion that the
firms were essentially equal under this factor, so as to justify an award
based solely on price.  In fact, the comment regarding the protester*s
higher price in the past performance evaluation suggests that the agency
did not qualitatively evaluate the offerors* past performance, as required
by the RFP*s evaluation scheme, but improperly converted the procurement
to one based upon low price and the submission of a technically acceptable
proposal by an offeror with acceptable past performance.  See Dewberry &
Davis, B‑247116, May 5, 1992, 92-1 CPD P: 421 at 5. 
    
Under a reasonable evaluation of past performance, Southwestern Bell*s
past performance rating might have been found to be superior to
Adelphia*s, such that the Air Force would be required to conduct a
tradeoff analysis to determine whether in fact Adelphia*s slightly lower
price represented the best value to the government.  Accordingly, we agree
with Southwestern Bell that the Air Force*s award selection is not
consistent with the RFP evaluation and is unreasonable.  See Trijicon,
Inc, B‑244546.3, June 22, 1992, 92-1 CPD P: 537 at 11.
    
Southwestern Bell also challenges the contracting officer*s affirmative
determination of Adelphia*s responsibility.  Simply stated, the protester
argues that the agency failed to consider evidence about Adelphia*s
integrity and business ethics in making its responsibility determination
as is required by FAR S: 9.104-1(d).
    
As an initial matter, the Air Force argued that this aspect of
Southwestern Bell*s protest should have been dismissed because the
contracting officer allegedly had sufficient information upon which to
find that Adelphia was responsible because the contracting officer was
aware of the indictments of the principals of the awardee*s parent
company. 
    
Because the determination that an offeror is capable of performing a
contract is largely committed to the contracting officer*s discretion, our
Office will generally not consider a protest challenging an affirmative
determination of responsibility except under limited, specified
exceptions.  4 C.F.R. S: 21.5(c) (2003); Verestar Gov*t Servs. Group,
B-291854, B-291854.2, Apr. 3, 2003, 2003 CPD P: 68 at 3.  One specific
exception provided in the revised Bid Protest Regulations is that our
Office will consider a protest that identifies serious concerns that a
contracting officer in making an affirmative determination of
responsibility failed to consider available relevant information or
otherwise violated statute or regulation.  4 C.F.R. S: 21.5(c).  As
explained in the preamble to our revised regulations, the revision to our
regulations was
    
intended to encompass protests, where, for example, the protest includes
specific evidence that the contracting officer may have ignored
information that, by its nature, would be expected to have a strong
bearing on whether the awardee should be found responsible.
67 Fed. Reg. 79,833-834 (2002).
    
We did not dismiss Southwestern Bell*s protest because on its face it fell
within this exception, inasmuch as this well-documented, detailed protest
raised serious concerns that the contracting officer failed to consider
relevant information bearing on Adelphia*s record of integrity and
business ethics, such that, if the allegations were true, it could not be
said that the agency*s affirmative determination of responsibility was
reasonably based.  The agency*s dismissal request in response to the
protest did not show that the agency gave any consideration to Adelphia*s
record of integrity and business ethics in making its responsibility
determination.[7] 
    
Contracts may only be awarded to responsible prospective contractors.  FAR
S: 9.103(a).  In making the responsibility determination, the contracting
officer must determine, among other things, that the contractor has *a
satisfactory record of integrity and business ethics.*  FAR S:
9.104-1(d).  *In the absence of information clearly indicating that the
prospective contractor is responsible, the contracting officer shall make
a determination of nonresponsibility.*  FAR S: 9.103(b).  Although the
contracting officer is not required to explain the basis for his or her
responsibility determination, *[d]ocuments and reports supporting a
determination of responsibility or nonresponsibility . . . must be
included in the contract file.*  FAR S: 9.105-2(b).
    
The contracting officer, in his statement in response to the protest,
states:
    
Because of the notoriety associated with Adelphia and its founders, [he]
added various notes to block 23 (Remarks) of the SF-1403, Pre‑Award
Survey of Prospective Contractor, putting the DCMA Pre‑Award Survey
Monitor (PASM) on notice of the fact that [Adelphia*s] parent company . .
. had allegedly filed for bankruptcy protection, had allegedly been
charged with fraud by the [SEC], was allegedly being audited by the
Pennsylvania Attorney General, and that the Adelphia CEO had been indicted
for alleged conspiracy and fraud by the US Attorney for Southern New York.
Contracting Officer*s Statement at 2. 
    
As noted above, DCMA performed a pre-award audit of Adelphia Business
Solutions, Inc. and recommended *a complete award.*  Agency Report, Tab
14, Pre-Award Survey of Adelphia, at 2.  However, the pre-award survey did
not comment upon Adelphia*s record of integrity and business ethics, or
discuss in any way the indictments of members of the Rigas family or the
charges brought by the SEC against Rigas family members and the parent
company, Adelphia Communications Corporation.  Nor has there been any
information provided from or on behalf of DCMA that shows that DCMA
considered the awardee*s record of integrity and business ethics, as
requested by the contracting officer.  Based upon this record, there is no
basis to conclude that DCMA reviewed the awardee*s integrity and business
ethics prior to recommending award.
    
In reply to the protester*s comments detailing the problems relating to
Adelphia*s integrity and business ethics and his responsibility
determination, the contracting officer contends that he was aware of
Adelphia*s alleged improprieties through *various media outlets* and the
Internet.  Contracting Officer*s Affadavit at 2.  It was apparently based
upon his awareness of allegations against Adelphia that the contracting
officer requested the pre-award survey, which, as noted above, did not
address Adelphia*s integrity and business ethics.[8]  The contracting
officer also asserts that he spoke to two other government officials who
apparently provided *no negative performance information* about Adelphia,
although their agencies did *substantial business with them.*[9]
    
The extent to which the contracting officer was aware of the allegations
against Adelphia*s principals and parent company is neither documented in
the record nor explained by the agency.  Nevertheless, we believe that the
contracting officer*s general recognition that there were allegations of
misconduct concerning Adelphia is not alone sufficient to establish that
the contracting officer reasonably assessed the awardee*s record of
integrity and business ethics.  In fact, the contracting officer*s
statements in response to the protester*s comments suggest that he may not
have known relevant facts concerning Adelphia*s integrity and business
ethics.  That is, the contracting officer appears to argue that members of
the Rigas family could not have any influence over Adelphia because these
family members had resigned their positions as corporate officers and that
*their status as stockholders was and is basically irrelevant.*[10] 
Contracting Officer*s Affidavit at 2.  However, significant evidence has
been presented by the protester to show that Rigas family members
continued (and continue today) to own a controlling interest in Adelphia
due to their majority ownership of class B (voting interest) stock. 
Moreover, the record supports the protester*s assertion that some amount
of *debtor-in-possession* financing has been provided to the awardee by
Adephia Communications Corporation, the entity charged by the SEC with
fraudulent conduct.  Despite the apparent relevance of the potential
control and influence of these Rigas family members and of Adelphia
Communications Corporation, the record establishes that the contracting
officer did not consider the extent of the Rigas family members* stock
ownership in Adelphia, and what influence or control over the awardee this
ownership interest accorded them.  Also, the record indicates that the
contracting officer did not consider, nor was he apparently aware of, the
relationship between the awardee and Adelphia Business Solutions (doing
business as TelCove).[11]
    
Based upon this record, we find that the contracting officer simply
assumed that Adelphia had an adequate record of integrity and business
ethics.  This assumption appears to have been based upon the award
recommendation of the pre-award survey, which did not address in any way
Adelphia*s integrity or business ethics.  In any event, the record does
not establish that the contracting officer obtained sufficient information
to decide, or for that matter even considered, Adelphia*s record of
integrity and business ethics.  In the absence of any consideration of the
involvement, control or influence of the indicted Rigas family members and
Adelphia Communications Corporation in the awardee, the contracting
officer*s statements of general awareness of alleged misconduct on the
part of the Rigas family members and Adelphia Communications Corporation
is not sufficient to show that the contracting officer*s affirmative
determination of responsibility is reasonable.  Compare Impresa
Construzioni Geom. Domenico Garufi v. United States, 52 Fed. Cl. 421, 428
(2002) (agency failed to reasonably consider questions concerning an
awardee*s integrity and business ethics) with Verestar Gov*t Servs. Group,
supra (agency specifically and reasonably considered questions concerning
the awardee*s integrity and business ethics in making its responsibility
determination).
    
Southwestern Bell also protests that Adelphia falsely certified that none
of its principals had been indicted within the 3 prior years.  The
protester argues that, because of this misrepresentation, Adelphia should
be found ineligible to receive award.  The Air Force denies that any
misrepresentation occurred.
    
However, as admitted by the intervenor, Adelphia *submitted a mistaken
certificate that did not indicate that some of its shareholders had been
indicted.*  See Intervenor*s Reply to Protester*s Comments, Aug. 20, 2003,
at 5.  That is, although Adelphia certified that none of its principals
had been indicted within the identified time period, in fact three members
of the Rigas family had been indicted.  The term *principals* is defined
to include officers, directors, owners, partners, and persons having
primary management or supervisory responsibilities within a business
entity.   See FAR S: 52.209-5.  Given that these stockholders owned the
majority of the stock, Adelphia does not dispute that the indicted Rigas
family members are owners and therefore principals whose indictments
should have been disclosed.
    
In Universal Techs. Inc.; Spacecraft, Inc., B-248808.2 et al., Sept. 28,
1992, 92-2 CPD P: 212 at 13, we noted that where an offeror has made an
intentional misrepresentation that materially influenced the agency*s
consideration of its proposal, a proposal should be disqualified and a
contract award based upon the proposal canceled.  In Universal, we found
that an offeror*s inaccurate completion of the same certificate that is at
issue in this case did not disqualify the offeror there because it did not
appear that the false certification was made in bad faith, nor did it
materially influence the agency*s affirmative determination of the
offeror*s responsibility.  Id. at 15.
    
Here, it is not clear from the record what impact, if any, the false
certification had upon the contracting officer in making his affirmative
determination of Adelphia*s responsibility.  Nor is it clear that Adelphia
intentionally misrepresented whether its principals had been indicted; in
this regard, Adelphia asserts that it mistakenly believed that the
*intent* of the certificate was to restrict the identification to those
principals that had primary management or supervisory responsibility.  See
Intervenor*s Reply to Protester*s Comments at 5.  Nevertheless, some of
the contracting officer*s statements suggest that the false certificate
may have materially influenced the contracting officer.  For example, the
contracting officer in response to the protester*s comments states that he
*did not consider the Rigas family to be principals any longer* and that
the *management of TelCove has completely changed.*  See Contracting
Officer*s Affidavit at 2.  These statements reflect a misreading of the
definition of *principals* as well as confusion on the part of the
contracting officer as to which Adelphia entity was making this
certification.  In any case, the record shows that the agency did not know
of, much less consider, the inaccuracy of Adelphia*s certification or how
this should affect that firm*s eligibility for award. 
    
We recommend that the Air Force determine whether Adelphia*s incorrect
certification renders that firm ineligible for award.  If the agency
determines that Adelphia is eligible to continue to compete for award, the
Air Force should re‑evaluate the firms* proposals in accordance with
the RFP*s past performance criterion, conduct further discussions (if
necessary), make a new source selection decision, and, if Adelphia is
selected for award, reasonably determine that firm*s responsibility.  If
Southwestern Bell is selected for award, the Air Force should terminate
Adelphia*s contract and make award to Southwestern Bell, if otherwise
appropriate.  We also recommend that the protester be reimbursed the
reasonable costs of filing and pursuing the protest, including attorneys*
fees.  4 C.F.R. S: 21.8(d)(1).  The protester*s certified claim for costs,
detailing the time spent and costs incurred, must be submitted to the Air
Force within 60 days of receiving this decision.  4 C.F.R. S: 21.8(f)(1).
    
The protest is sustained.
    
Anthony H. Gamboa
General Counsel
    
    
    
    
    
    
    

   ------------------------

   [1]  According to the pre-award survey, the awardee was Adelphia Business
Solutions, Inc., of Wichita, Kansas, which is an affiliate or branch
office of Adelphia Business Solutions (doing business as TelCove) of
Canonsburg, Pennsylvania.  Agency Report, Tab 14, Pre-Award Survey of
Adelphia, at 5, 7.  Adelphia*s proposal, however, was submitted in the
name of Adelphia Business Solutions Investments, LLC.  Agency Report, Tab
7, Adelphia*s Price and Contracting Information, DD Form 428.  Adelphia*s
technical proposal depicted in two charts that the Wichita office was the
*local team organization* of the *Adelphia Business Solutions* corporation
organization.  Agency Report, Tab 7, Adelphia*s Technical Proposal, at
7-8.  The proposal also identified Adelphia Business Solutions Investments
LLC as the offeror and as being both located in Wichita, see, e.g., id.,
Adelphia*s Price & Contracting Information, DD Form 428, and in
Canonsburg.  See id., Adelphia*s Kansas Tariff Filing.
[2] With respect to the past performance evaluation, offerors were
informed that past performance would be evaluated as either exceptional,
very good, satisfactory, neutral, marginal, or unsatisfactory.
[3] There is no indication in either Adelphia*s proposal or the customers*
survey responses as to which Adelphia *entity* performed the three
contracts.
[4] The pre-award survey found that the awardee was a well-organized and
viable enterprise with sufficient resources available to perform the
contract and an 11-year history of providing advanced communication
services.  *On the down side, the financial situation is so complex that
it is nearly irrelevant for this award* inasmuch as all factors indicated
a *high* financial risk, but the pre-award survey concluded that other
factors (such as the relatively small size of the contract and Adelphia*s
apparent improving financial situation) minimized the risk.  Agency
Report, Tab 14, Pre-Award Survey of Adelphia, at 7-8.
[5] For their part, the Air Force and the intervenor do not dispute that
members of the Rigas family and Adelphia Communication Corporation have
been charged with serious financial misconduct, and that the three members
of the Rigas family have been indicted.  On its behalf, Adelphia disputes
the protester*s representation of the amount of Adelphia Business
Solutions stock transferred to members of the Rigas family and entities
controlled by the Rigas family; however, the intervenor admits that the
indicted Rigas family members own some a significant amount of Class A
(financial interest) and Class B (voting interest) stock, and that Rigas
family member and affiliated interests have enough Class B shares
(51.6 percent) to constitute voting control.  (We note that the
intervenor*s analysis of the stock ownership of the Rigas family focuses
on their ownership of stock in TelCove.  As indicated above, the record
appears to indicate that Adelphia Business Solutions, Inc., the apparent
awardee here, is an affiliate of Adelphia Business Solutions, doing
business as TelCove.  See Agency Report, Pre‑Award Survey of
Adelphia, at 5, 7.  The record is not clear as to the ownership interest
of the Rigas family in the apparent awardee or to what extent TelCove
exerts control over the apparent awardee.)  The intervenor nevertheless
states that notwithstanding this majority interest, the influence of the
Rigas family was removed as a result of *Unanimous Written Consents of the
Board of Directors of Adelphia Business Solutions, Inc.,* whereby the
awardee removed the three Rigas family members from positions as officers
and employees of the Corporation on July 26, 2002.  There is no indication
in the record that this was considered by the contracting officer in
making his responsibility determination.
[6] As discussed in detail below, DCMA also did not comment on Adelphia*s
integrity or business ethics.
[7] As discussed below, as the case developed the record established that
the agency did not reasonably consider Adelphia*s record of integrity and
business ethics in making its responsibility determination.
[8] In his affidavit, the contracting officer notes *DCMA recommended
complete award, corporate financial fraud allegations and bankruptcy
notwithstanding.*  Contracting Officer*s Affidavit at 2.  This statement
fails to recognize that DCMA did not address Adelphia*s integrity and
business ethics, even though this was requested by the contracting
officer.
[9] There is no documentation in the record of these two conversations or
identification of what aspect of Adelphia*s past performance was discussed
or even what Adelphia entity was being discussed.
[10] The contracting officer also admits in his affidavit that he did not
know at the time of his responsibility decision that the Rigas family
members had resigned their corporate offices, and only learned of their
resignations in the protest submissions.  See Contracting Officer*s
Affidavit at 2.  We note that this statement appears inconsistent with the
Air Force*s legal argument that the contracting officer had determined
before his responsibility determination that Rigas family members were no
longer officers of the corporation.  See Air Force Response to Protester*s
Comments at 5.
[11] The contracting officer*s review apparently also did not consider
which Adelphia entity was the offeror and awardee here, given the
confusion in the record on this matter and the lack of comment by the
contracting officer.  See note 1 above.