I'm a little confused by the rule concerning the evaluation factor for small business participation in source selections. The last sentence of DFARS 215.304(c)(i) states:

"The contracting officer shall evaluate the extent to which offerors identify and commit to small business and historically black college or university and minority institution performance of the contract, whether as a joint venture, teaming arrangement, or subcontractor."

This seems to require an evaluation of an offeror's 1) identification of SBs/HBCUs and 2) commitment to use such firms. However, DFARS 215.304(c)(i)(A) states:

"Evaluation factors MAY include—
(1) The extent to which such firms are specifically identified in proposals;
(2) The extent of commitment to use such firms (for example, enforceable commitments are to be weighted more heavily than non-enforceable ones);
(3) The complexity and variety of the work small firms are to perform; (4) The realism of the proposal;
(5) Past performance of the offerors in complying with requirements of the clauses at FAR 52.219-8, Utilization of Small, Small Disadvantaged and Women-Owned Small Business Concerns, and 52.219-9, Small, Small Disadvantaged and Women-Owned Small Business Subcontracting Plan; and
(6) The extent of participation of such firms in terms of the value of the total acquisition."

Note that (1) talks about identification of SBs/HBCUs and (2) talks about commitment to use such firms. Yet, the fact that the regulation states that evaluation factors "may" include (1) through (6) suggests that the use of (1) and (2) is optional. This seems to be contradictory.

Any ideas on what the rule is trying to say?

The way I read it, you are required to evaluate "identification" and "committment," but you don't have to use the specific factors listed in (c)(i)(A). You can use these factors if you wish, or you could use other factors, or you could use some of these factors and some different factors. But you do have to evaluate the offeror's identification and commitment in some reasonable way.

Lone Wolf,

How else could "identification" and "commitment" be evaluated other than using (c)(i)(A)(1) and (2)?

(c)(i)(A)(1) -- The contracting officer can give preference to those proposals that name names. All else being equal, if offeror A makes a promise of xx% subcontracting to SBs and yy% to HBCU/MIs without naming names, and offeror B makes the same commitments but it names specific SBs and HBCU/MIs and work content in the proposal to be incorporated into the contract, then the contracting officer may give preference to offeror B.

(c)(i)(A)(2) -- The contracting officer can give preference to those offers that have contractually enforceable commitments. If offeror A names names but offeror B goes a step further and has signed subcontracts in place (or enforceable intent to subcontract agreements), then the contracting officer can give preference to offeror B.

ji20874,

I appreciate your response. You've described an effective way to evaluate "identification" and "commitment" using (c)(i)(A)(1) and (2). However, my question to Lone Wolf was how else could one evaluate "identification" and "commitment" other than using (c)(i)(A)(1) and (2). Lone Wolf's interpretation of the regulation was that an evaluation of "identification" and "commitment" is required, but the use of the evaluation factors listed in (c)(i)(A)(1) through (6) were optional. This seems contradictory because if the evaluation of "identification" and "commitment" is required, then it would follow that the use of the evaluation factors at (c)(i)(A)(1) (addressing "identification") and (2) (addressing "commitment") is also required. However, (c)(i)(A) still says "evaluation factors may include", suggesting the use of (1) through (6) is optional.

Is there a logical interpretation of the regulation, or is it just poorly written? If the latter, how have people been interpreting it?

Don -

To answer your specific question, I could envision a situation where the agency, for one reason or another, determined that it did not need to evaluate one of the six factors -- for example, (c)(i)(A)(3). The "may" language in the clause would permit the agency to omit this factor in section M and its evaluation. As another example, an agency might decide for one reason or another that it wants to evaluate the number of small business and HBCU subs proposed as compared to the total number of subs proposed. This type of numerical comparison, which is different from the "extent of participation" factor in (c)(i)(A)(6) (because it focuses on numbers of firms rather than on dollar value) doesn't seem to me to be covered by any of the six factors. Again, the "may" language would permit an agency to evaluate this factor in an appropriate case.

I agree that the six factors listed look fairly comprehensive, and that agencies might use these six (and only these six) on most procurements, but the "may" language would give the agencies the discretion to use less than these six, or different factors in addition to these six, where it is appropriate to do so under the circumstances of the particular acquisition.