Based on all the references mentioned are contractors for commercial item required to file VETS-4212 in order to get an award? Or are they exempt in accordance with FAR 22.1302(b)? FAR Clause 52.222-37 states,"...unless the contractor is a state or local government agency, the Contractor shall report at least annually..."
This response is based on the information provided. We suggest you discuss with your contracting team, program manager and/or legal department as appropriate.
You did not identify the value of your proposed contract action. Based on your background reference, we assume it to be over the simplified acquisition threshold (SAT).
"FAR 22.1302 Policy.
(b) Except for contracts for commercial items or contracts that do not exceed the simplified acquisition threshold, contracting officers must not obligate or expend funds appropriated for the agency for a fiscal year to enter into a contract for the procurement of personal property and nonpersonal services (including construction) with a contractor that has not submitted the required annual VETS-4212, Federal Contractor Veterans’ Employment Report (VETS-4212 Report), with respect to the preceding fiscal year if the contractor was subject to the reporting requirements of 38 U.S.C.4212(d) for that fiscal year."
This policy exempts contractors under commercial contracts from the requirement to complete and submit an annual VETS-4212 Report.
If your solicitation contained FAR Provision 52.222-38, the report may be required. The provision requires, "By submission of its offer, the offeror represents that, if it is subject to the reporting requirements of 38 U.S.C.4212(d)(i.e., if it has any contract containing Federal Acquisition Regulation clause 52.222-37, Employment Reports on Veterans), it has filed the most recent VETS-4212 Report required by that clause."
Additionally, FAR Clause 523.212-5 would be in your contract and it requires the contracting officer to identify which of the listed clauses apply to the contract action. FAR clauses 52.222-35 and 52.222-37 are on that list for potential selection.
"FAR 22.1310 Solicitation provision and contract clauses.
(a) (1) Insert the clause at 52.222-35, Equal Opportunity for Veterans, in solicitations and contracts if the expected value is $150,000 or more, except when-
(i) Work is performed outside the United States by employees recruited outside the United States; or
(ii) The Director, Office of Federal Contract Compliance Programs of the U.S. Department of Labor, has waived, in accordance with 22.1305(a), or the head of the agency has waived, in accordance with 22.1305(b), all of the terms of the clause.
(2) If the Director, Office of Federal Contract Compliance Programs of the U.S. Department of Labor, or the head of the agency waives one or more (but not all) of the terms of the clause, use the basic clause with its Alternate I.
(b) Insert the clause at 52.222-37, Employment Reports on Veterans, in solicitations and contracts containing the clause at 52.222-35, Equal Opportunity for Veterans.
(c) Insert the provision at 52.222-38, Compliance with Veterans’ Employment Reporting Requirements, in solicitations when it is anticipated the contract award will exceed the simplified acquisition threshold and the contract is not for acquisition of commercial items."
FAR policy states we do not require contractors with commercial contracts or contracts under the SAT to begin reporting (VETS-4212). Applicability language appears to contradict that. We believe the intent, when considering FAR language, FAR provisions and clauses and 38 U.S.C. 4212 is that contractors already reporting because of previous work with the government are to continue to do so. If a contractor has not been required to do so, this commercial contract would not trigger the requirement.
We suggest you determine which provisions and clauses are in your contract and if the contractor has previously been required to complete and submit the VETS-4212 Report.