RFQ 36C10X21Q0102 A0002.pdf

5. PROJECT NUMBER (if applicable)

CODE 7. ADMINISTERED BY

2. AMENDMENT/MODIFICATION NUMBER

CODE

6. ISSUED BY

8. NAME AND ADDRESS OF CONTRACTOR

4. REQUISITION/PURCHASE REQ. NUMBER 3. EFFECTIVE DATE

9A. AMENDMENT OF SOLICITATION NUMBER

9B. DATED

PAGE OF PAGES

10A. MODIFICATION OF CONTRACT/ORDER NUMBER

10B. DATED

BPA NO. 1. CONTRACT ID CODE

FACILITY CODE CODE

Offers must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended, by one of the following methods:

The above numbered solicitation is amended as set forth in Item 14. The hour and date specified for receipt of Offers

E. IMPORTANT:

is extended,

(a) By completing Items 8 and 15, and returning __________ copies of the amendment; (b) By acknowledging receipt of this amendment on each copy of the offer submitted; or (c) By separate letter or electronic communication which includes a reference to the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND DATE SPECIFIED MAY is not extended.

12. ACCOUNTING AND APPROPRIATION DATA

(REV. 11/2016)

is required to sign this document and return ___________ copies to the issuing office. is not, A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: (Specify authority) THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT ORDER NO. IN ITEM 10A.

15C. DATE SIGNED

B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE ADMINISTRATIVE CHANGES SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).

RESULT IN REJECTION OF YOUR OFFER. If by virtue of this amendment you desire to change an offer already submitted, such change may be made by letter or electronic communication, provided each letter or electronic communication makes reference to the solicitation and this amendment, and is received prior to the opening hour and date specified.

C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY OF:

D. OTHER

Contractor

16C. DATE SIGNED

14. DESCRIPTION OF AMENDMENT/MODIFICATION

16B. UNITED STATES OF AMERICA

Except as provided herein, all terms and conditions of the document referenced in Item 9A or 10A, as heretofore changed, remains unchanged and in full force and effect.

15A. NAME AND TITLE OF SIGNER 16A. NAME AND TITLE OF CONTRACTING OFFICER

15B. CONTRACTOR/OFFEROR

STANDARD FORM 30 PREVIOUS EDITION NOT USABLE

Prescribed by GSA - FAR (48 CFR) 53.243

(Type or print) (Type or print)

(Organized by UCF section headings, including solicitation/contract subject matter where feasible.)

(Number, street, county, State and ZIP Code)

(If other than Item 6)

(Specify type of modification and authority)

(such as changes in paying office, appropriation date, etc.)

(If required)

(SEE ITEM 11)

(SEE ITEM 13)

(X)

CHECK

ONE

13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS,

IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.

11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS

AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT

(Signature of person authorized to sign) (Signature of Contracting Officer)

1 104

0002 04-08-2021

36C10X

Strategic Acquisition Center - Frederick Department of Veterans Affairs

5202 Presidents Court, Suite 103 Frederick MD 21703

36C10X

Strategic Acquisition Center - Frederick Department of Veterans Affairs

5202 Presidents Court, Suite 103 Frederick MD 21703

To all Offerors/Bidders

36C10X20Q0096

03-29-2021

X

X X

See CONTINUATION Page

X 1

The purpose of this amendment is to provide answers to RFQ questions received.

Please see the following pages.

All other terms and conditions remain unchanged.

RFQ 36C10X21Q0102, A0002

Question

Solicitation Reference

Question Answer

1. Is it possible to schedule another site visit?

No. A site visit was already conducted.

2. Will there be an extension due to the short window of time between questions bid due date?

No, not at this time.

3. Can the past performance of a “Major Subcontractor” to the Prime be used for past performance?

Per Section E.1,C.under Factor 2 of the RFQ “The Quoter may submit a list of up to 3 contracts (prime contracts, task/delivery orders, and/or major subcontracts) performed during the past five years from the date of issuance of the final solicitation, which are relevant (similar in size, scope and complexity) to the efforts required by this RFQ.

4.

What are you paying the current Contractor(s) per month/year?

This information is available at https://www.fpds.gov/fpdsng_cms/index.php/en/

5.

How long has the current Contractor(s) held the Contract?

The current contract was for a base year and four option years.

6.

Will office space be provided for the contractor in the building?

Yes. There is dedicated space in the Engineering area.

7. Is the Scope of Services the same in this Bid Proposal as in the current Contract?

Yes

8.

Are there any additions or deletions to this new Scope of Services in comparison to the current contract?

Carpet cleaning has been added to the scope.

9. For the purposes of including the current staff’s vacation needs into the staffing proposal, what is the tenure for existing crew.

Information not available.

10. To what extent will the contractor be liable for the cost of repairs?

The contractor will not be liable for any repairs except those resulting from its own actions. The contractor will be RESPONSIBLE for purchasing parts and seeking reimbursement via ODC.

https://www.fpds.gov/fpdsng_cms/index.php/en/

Replacement equipment will be procured by the government.

11. Will the contractor be allowed to compile an Initial Deficiency List to document existing conditions at time of contract start up?

Yes.

12. Will the contractor be liable for any existing deficiencies at time of contract start up?

The contractor will not be liable for cost, but the contractor is responsible for correcting any deficiencies found. There is no liability, but the contractor will need to perform the repairs just as it would at any other time in accordance with the

PWS.

13.

Will the owner provide the spare parts from the list the contractor develops or is this part of the contractors cost?

Spare parts are maintained onsite. Additional parts/materials are invoiced to the ODC CLIN.

14. Will the VA please provide a list of Government Furnished Equipment (GFE) and Government Provided Facilities (GPF)?

VA provides workstations for monitoring all critical systems.

15.

Is there a list of current materials being used? If so, will you please provide?

Unclear on the what materials are being requested. Please refer to the PWS and attachments.

16.

Is there a list of spare parts that need to be inventoried? If so will you please provide?

A spare parts inventory is maintained for all systems.

17.

Was the data center originally commissioned through Level V - IST at start-up? If so, are the commissioning scripts, results, notes, etc.

available?

Engineering Turnover Package scripts and commissioning information are available and maintained onsite.

18.

When testing the MTU and John Deere Generators, are they tested under load? If so does the procedure

Yes. Load bank available and also tested under live load. Additional load bank can be brought in as needed and will be covered by the VA.

employ load banks or transfer of live load? If load banks are employed, are they rented or owned by the government? If rented, does the VA cover the rental cost?

19.

When were fuel storage tanks and associated systems last inspected?

Will the VA please make those records available?

2020. Records will be made available after award.

20.

When were the fuel storage tanks installed?

Repaired? Replaced?

2010. Original equipment.

21. When is the last time the data center lost utility power?

22. When is the last time the data center experienced an un-planned outage that resulted in an interruption to network, storage, or computing infrastructure systems? What was the reason? Was there a formal incident report/report of findings/forensic analysis completed, and if so, will you please provide copies?

2014. Power failure. Report not available.

23.

Is there a calculated cost of downtime for the computer room related services due to unscheduled outages?

No.

24.

Have any refurbished replacement parts been authorized for use by the VA over the last five years?

No.

25.

Does the VA have the original as-builts and

Yes. As-built drawings are maintained onsite.

submittals for the data center? If so, will you please provide?

26.

Is there a list of “critical” spare parts currently kept on site? If so, will you please provide details including but not limited to manufacturer, part no, date of purchase or age of the component?

Yes. The spare parts list is maintained onsite.

27.

Is there a record of all equipment that has been replaced or repaired over the last 5 years? If so, will you please provide any records and details available?

Yes. All maintenance records are stored onsite.

28. With respect to the routine preventive maintenance of HVAC, generators, switchgear, CRAH units, BMS and clean agent equipment, it is understood that the contractor is to cover all maintenance materials and labor. Are repair parts and labor to be covered?

Parts/materials are covered under the ODC

CLIN.

29.

What is the status of the software renewal for the UPS systems?

All software is up-to-date.

30. Other Direct Cost line items, there is not a referenced paragraph.

How is this used? How does it work?

ODC covers expenses directly related to system maintenance where failure is anticipated as some point, but there is no way to forecast exactly when.

31.

Should other direct costs be included into the bid? What are these costs associated with?

ODC covers expenses directly related to system maintenance where failure is anticipated as some point, but there is no way to forecast exactly when.

32. Will the contractor be paid extra for time spent on

No. 24/7/365 operation. Refer to section 4.

Contractor Qualifications and Responsibilities, subsection “A” of the PWS.

emergency call back service?

33.

What CMMS is currently being used; is it owned by the VA or is it owned by the current contractor and will it be available for use by the incoming contractor?

E-Maint is maintained by the current vendor.

34.

Can the VA provide the quantities for the fire alarm devices?

a) Duct Smoke Detectors

b) Heat Detectors

c) Kitchen Hood

Systems

d) Fire and Smoke

Dampers

e) Sprinkler heads

No kitchen hood systems.

Quantities not available at this time, but are appropriate for a 66,300 ft² building.

Data floor utilizes both Clean Agent (FE25) and pre-action water sprinkler.

35.

Who is the current fire alarm and life safety contractor that service the facility?

Kinetix

36.

When was the last time the Fire Extinguishers had their 6-year test completed?

Information not available at this time. Fire extinguishers are monitored by the VA Medical Center.

37.

When was the last time the Fire and Smoke Dampers were tested?

11/9/2020

38.

What is the repair cost threshold on this contract?

(Cost cap that contractor is responsible for in the event of catastrophic equipment failure/repair needs)

This is a maintenance support contract.

Catastrophic equipment failure that is not due to vendor negligence is addressed outside of this contract vehicle.

39.

What is the allowable down-time for computer room HVAC and/or

Downtime is minimized due to redundant isolatable systems at CRRC.

electric equipment for PM services?

40.

Do all on-site HVAC techs need to be Liebert certified?

Section 5 Management, Supervision and Workforce, subsection “D” of the PWS addresses maintaining equipment to factory specifications.

41.

Does VA reimburse for all repair and replacement parts for building inventory equipment? If so, what is the allowed mark-up for purchasing needed components?

Parts/materials are invoiced against the Other Direct Costs (ODC) CLIN. No additional mark-up is permitted.

42.

Can the VA provide Historical Preventive and Corrective Maintenance workload data?

PM activities are up-to-date and field service reports are maintained onsite.

43.

Can the VA provide Historical field service reports?

PM activities are up-to-date and field service reports are maintained onsite.

44.

What support staff are part of the Building Engineer Team? Is it the expectation of the VA that the contractor includes these individuals in the staffing strategy? If so, can the VA provide the roles/job descriptions/job responsibilities of the staff?

Support staff are included as part of the facility maintenance support contract. Typical support role descriptions are listed in Section 6. Specific Tasks and Deliverables.

45. What is the Quality Control / Quality Assurance requirement for this contract?

Section 5 Management, Supervision and Workforce, subsection “D” of the PWS addresses maintaining equipment to factory specifications.

46.

FBO announcement for

36C10X21Q0102 CRRC

Facilities Maintenance Support Services posted the amendment announcing the site visit on Apr 01, 2021 allowing just 2 business days for offerors to review and determine if they need to

Please refer to answer to question 1.

attend the site visit. Would the government please consider scheduling a site visit that allows for qualified SDVOSB who plan to travel to the site visit more time to plan? Is April 12th possible?

47. In the attachment A mix of labor spread sheet, regarding the requirement to insert labor categories into row 4 of the spread sheet- does the offeror insert both Direct and Indirect labor categories?

Direct Labor Categories.

48.

Can you please provide clarity for who the key personnel are in the solicitation?

There are no key personnel. However, resumes may be submitted for personnel proposed.

49.

Just want to confirm that we don’t need to provide a bid bond.

Not Applicable.

50. RFQ Section B.3.3, Scope of Work

The Areas of Responsibility table lists Biennial Carpet Cleaning as a requirement.

However, no additional details or scope requirements are provided.

Is carpet cleaning and floor cleaning included in this scope? If so, please provide the scope requirements.

As stated. Included.

51. RFQ Section B.3.3, Scope of Work

The Areas of Responsibility table lists Parking Lot Restriping as a requirement. However, no additional details or scope requirements are provided.

Is parking lot maintenance and restriping included in this scope? If so, please specify which parking

The parking lot was resealed and restriped in 2020. This requirement covers any refreshing of areas as deemed necessary (e.g. pedestrian lane or vehicle gate stop stripe).

lot(s) as well as the scope requirements.

52. RFQ Section B.3.3, Scope of Work

The Areas of Responsibility table lists “Sidewalk Treating & Clearing” and “Inclement Weather Preparedness” as requirements.

However, no additional details or scope requirements are provided.

• Is sidewalk treating and clearing included in this scope? If so, please provide the scope requirements.

• Also, is it the VA’s intent that “Sidewalk Clearing” or “Inclement Weather Preparedness” include snow and ice removal?

Please clarify and provide the specific scope requirements.

Snow removal is performed by Medical Center personnel. Vendor will clear walkways as needed and prep the surface with ice melt ahead of inclement weather.

53. Is there a CMMS system? The CMMS is maintained by the vendor.

54. RFQ Section

B.3.3, Scope of Work; Section B.5.E; and Section D.1.2

The Areas of Responsibility table in Section B.3.3 lists Elevator Lift Maintenance and Certification as requirements.

Also, Section B.5.E lists Elevator Mechanic as a typical role supporting maintenance needs and Section D.1.2 lists qualifications for the Elevator Mechanic position.

However, no additional details or scope requirements are provided.

Is elevator lift maintenance included in this scope? If so, please

There is one wheelchair lift that requires yearly recertification.

provide the scope requirements.

55. RFQ

Section B.3.3, Scope of Work

The Areas of Responsibility table lists Data Floor (Above/Below) Cleaning as a requirement. However, no additional details or scope requirements are provided.

Please confirm that data floor cleaning is included in this scope and if it is, please provide the scope requirements and desired frequencies.

Data floor cleaning will be performed twice yearly.

56. RFQ Section B.3.3, Scope of Work

The Areas of Responsibility table lists Fuel Services Maintenance & Monitoring as a requirement.

However, no additional details or scope requirements are provided.

Who is responsible for providing the fuel oil – the contractor or the Government? Please clarify.

The Department of Veterans Affairs will arrange for procurement of fuel.

57. PAST

PERFOMANCE:

Page 95 and 96 of 123, Factor 2.

Number nine states

If the Quoter has no relevant past performance, it shall affirmatively state that it possesses no relevant past performance. In the case of an offeror without a

Please advise if the General Contractor may use its relevant experience in combination with their s/c to achieve factor 2?

Please refer to answer to question 3.

record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance.

58.

Please advise if the electrical scope of work related to Schneider Electric must be performed by Schneider Electric?

No. Only the proprietary aspects of the system require Schneider Electric support.

59. Please advise if there are proprietary maintenance services contractors that must preformed at Martinsburg and Shepherdstown, WV?

Schneider Electric BMS and SCADA software is maintained as part of the proprietary EcoStruxure system.

60. What % of work in the pricing trade sections is to be done at night, weekends or on holidays?

All work will be performed while minimizing adverse impact to operations at CRRC. Most work will be done during “normal work hours”;

remaining work will be completed at times that are least disruptive to business operations.

61. RFQ

Attachments B through I

Attachments B through I provide building equipment information for most of assets requiring maintenance under this contract. However, it does not include asset information for any HVAC equipment (e.g., chillers, boilers, air handling units, etc.

Please provide a complete list of asset data (incl. the manufacturer, model, Asset Spreadsheet Provided.

and serial number) for all equipment requiring maintenance under this contract.

62. Please provide the sizes of all waste containers on site under the contractor’s responsibility

Not Applicable

SECTION B - CONTINUATION OF SF 1449 BLOCKS

B.1 CONTRACT ADMINISTRATION DATA

1. Contract Administration: All contract administration matters will be handled by the following individuals:

a. CONTRACTOR:

b. GOVERNMENT: Contracting Officer 36C10X Strategic Acquisition Center - Frederick Department of Veterans Affairs 5202 Presidents Court, Suite 103 Frederick MD 21703

c. PO Number:

2. CONTRACTOR REMITTANCE ADDRESS: All payments by the Government to the contractor will be made in accordance with:

[X] 52.232-33, Payment by Electronic Funds Transfer—System For Award Management, or

[ ] 52.232-36, Payment by Third Party

3. INVOICES: Invoices shall be submitted in arrears:

a. Quarterly [ ]

b. Semi-Annually [ ]

c. Other [X] See Invoice Instructions below

4. GOVERNMENT INVOICE INSTRUCTIONS:

TUNGSTEN (fka OB10) ELECTRONIC INVOICE SUBMISSION FSC e-INVOICE PROGRAM THRU AUSTIN PORTAL

FSC MANDATORY ELECTRONIC INVOICE SUBMISSION FOR AUSTIN PAYMENTS

Vendor Electronic Invoice Submission Methods:

Fax, email and scanned documents are not acceptable forms of submission for payment requests.

Electronic form means an automated system transmitting information electronically according to the accepted data transmissions below.

• VA’s Electronic invoice presentment and payment system-The FSC uses a third party contractor, Tungsten, to transition vendors from paper to electronic invoice submission. Please go to this website:

http://www.tungsten-network.com/US/en/veterans-affairs/ to begin submitting electronic invoices, free of charge.

• A system that conforms to the X12 electronic data interchange (EDI) formats established by the Accredited Standards Center (ASC) chartered by the American National Standards Institute (ANSI).

VA119A-17-P-0182 Page 4 of 27

• The X12 EDI Web site (http://www.x12.org).

Vendor e-invoice Set-up information:

Please contact Tungsten at the phone number or email address listed below to begin submitting your electronic invoices to the VA Financial Services Center in Austin, TX for payment processing. If you have questions about the e-invoicing program or Tungsten, please contact the FSC at the phone number or email address listed below.

• Tungsten e-Invoice setup information: 1-877-489-6135 http://www.x12.org/

• Tungsten e-Invoice email: VA.Registration@tungsten-network.com

• VA TUNGSTEN Number: AAA544240062

• FSC e-Invoice contact information: 1-877-353-9791

• FSC e-Invoice email: vafsccshd@va.gov • http://www.fsc.va.gov/einvoice.asp

COMMUNICATIONS:

• https://www.federalregister.gov/articles/2012/11/27/2012-28612/vaacquisition-regulation-electronic-submission-of-payment-requests

• http://fcw.com/articles/2012/11/27/va-epayments.aspx?s=fcwdaily VAFSCFiscalSection101@va.gov or you can call 512-460-5401 ACKNOWLEDGMENT OF AMENDMENTS: The offeror acknowledges receipt of amendments to the Solicitation numbered and dated as follows:

AMENDMENT NO DATE

B.2 IT CONTRACT SECURITY

VA INFORMATION AND INFORMATION SYSTEM SECURITY/PRIVACY

1. GENERAL

Contractors, contractor personnel, subcontractors, and subcontractor personnel shall be subject to the same Federal laws, regulations, standards, and VA Directives and Handbooks as VA and VA personnel regarding information and information system security.

2. ACCESS TO VA INFORMATION AND VA INFORMATION SYSTEMS

a. A contractor/subcontractor shall request logical (technical) or physical access to VA information and VA information systems for their employees, subcontractors, and affiliates only to the extent necessary to perform the services specified in the contract, agreement, or task order.

b. All contractors, subcontractors, and third-party servicers and associates working with VA information are subject to the same investigative requirements as those of VA appointees or employees who have access to the same types of information. The level and process of background security investigations for contractors must be in accordance with VA Directive and Handbook 0710, Personnel Suitability and Security Program. The Office for Operations, Security, and Preparedness is responsible for these policies and procedures.

c. Contract personnel who require access to national security programs must have a valid security clearance. National Industrial Security Program (NISP) was established by Executive Order 12829 to ensure that cleared U.S. defense industry contract personnel safeguard the classified information in their possession while performing work on contracts, programs, bids, or research and development efforts. The Department of Veterans Affairs does not have a Memorandum of Agreement with Defense Security Service (DSS). Verification of a Security Clearance must be processed through the Special Security Officer located in the Planning and National Security Service within the Office of Operations, Security, and Preparedness.

d. Custom software development and outsourced operations must be located in the U.S. to the maximum extent practical. If such services are proposed to be performed abroad and are not disallowed by other VA policy or mandates, the contractor/subcontractor must state where all non-U.S. services are provided and detail a security plan, deemed to be acceptable by VA, specifically to address mitigation of the resulting problems of communication, control, data protection, and so forth. Location within the U.S.

may be an evaluation factor.

e. The contractor or subcontractor must notify the Contracting Officer immediately when an employee working on a VA system or with access to VA information is reassigned or leaves the contractor or subcontractor's employ. The Contracting Officer must also be notified immediately by the contractor or subcontractor prior to an unfriendly termination.

mailto:VA.Registration@tungsten-network.com http://www.fsc.va.gov/einvoice.asp https://www.federalregister.gov/articles/2012/11/27/2012-28612/vaacquisition-regulation-electronic-submission-of-payment-requests https://www.federalregister.gov/articles/2012/11/27/2012-28612/vaacquisition-regulation-electronic-submission-of-payment-requests

3. VA INFORMATION CUSTODIAL LANGUAGE

a. Information made available to the contractor or subcontractor by VA for the performance or administration of this contract or information developed by the contractor/subcontractor in performance or administration of the contract shall be used only for those purposes and shall not be used in any other way without the prior written agreement of the VA. This clause expressly limits the contractor/subcontractor's rights to use data as described in Rights in Data - General, FAR 52.227-14(d) (1).

b. VA information should not be co-mingled, if possible, with any other data on the contractors/subcontractor's information systems or media storage systems in order to ensure VA requirements related to data protection and media sanitization can be met. If co-mingling must be allowed to meet the requirements of the business need, the contractor must ensure that VA's information is returned to the VA or destroyed in accordance with VA's sanitization requirements. VA reserves the right to conduct on site inspections of contractor and subcontractor IT resources to ensure data security controls, separation of data and job duties, and destruction/media sanitization procedures are in compliance with VA directive requirements.

c. Prior to termination or completion of this contract, contractor/ subcontractor must not destroy information received from VA, or gathered/ created by the contractor in the course of performing this contract without prior written approval by the VA. Any data destruction done on behalf of VA by a contractor/subcontractor must be done in accordance with National Archives and Records Administration (NARA) requirements as outlined in VA Directive 6300, Records and Information Management and its Handbook 6300.1 Records Management Procedures, applicable VA Records Control Schedules, and VA Handbook 6500.1, Electronic Media Sanitization. Self-certification by the contractor that the data destruction requirements above have been met must be sent to the VA Contracting Officer within 30 days of termination of the contract.

d. The contractor/subcontractor must receive, gather, store, back up, maintain, use, disclose and dispose of VA information only in compliance with the terms of the contract and applicable Federal and VA information confidentiality and security laws, regulations and policies. If Federal or VA information confidentiality and security laws, regulations and policies become applicable to the VA information or information systems after execution of the contract, or if NIST issues or updates applicable FIPS or Special Publications (SP) after execution of this contract, the parties agree to negotiate in good faith to implement the information confidentiality and security laws, regulations and policies in this contract.

e. The contractor/subcontractor shall not make copies of VA information except as authorized and necessary to perform the terms of the agreement or to preserve electronic information stored on contractor/subcontractor electronic storage media for restoration in case any electronic equipment or data used by the contractor/subcontractor needs to be restored to an operating state. If copies are made for restoration purposes, after the restoration is complete, the copies must be appropriately destroyed.

f. If VA determines that the contractor has violated any of the information confidentiality, privacy, and security provisions of the contract, it shall be sufficient grounds for VA to withhold payment to the contractor or third party or terminate the contract for default or terminate for cause under Federal Acquisition Regulation (FAR) part 12.

g. If a VHA contract is terminated for cause, the associated BAA must also be terminated and appropriate actions taken in accordance with VHA Handbook 1600.01, Business Associate Agreements.

Absent an agreement to use or disclose protected health information, there is no business associate relationship.

h. The contractor/subcontractor must store, transport, or transmit VA sensitive information in an encrypted form, using VA-approved encryption tools that are, at a minimum, FIPS 140-2 validated.

i. The contractor/subcontractor's firewall and Web services security controls, if applicable, shall meet or exceed VA's minimum requirements. VA Configuration Guidelines are available upon request.

j. Except for uses and disclosures of VA information authorized by this contract for performance of the contract, the contractor/subcontractor may use and disclose VA information only in two other situations:

(i) in response to a qualifying order of a court of competent jurisdiction, or (ii) with VA's prior written approval. The contractor/subcontractor must refer all requests for, demands for production of, or inquiries about, VA information and information systems to the VA contracting officer for response.

k. Notwithstanding the provision above, the contractor/subcontractor shall not release VA records protected by Title 38 U.S.C. 5705, confidentiality of medical quality assurance records and/or Title 38 U.S.C. 7332, confidentiality of certain health records pertaining to drug addiction, sickle cell anemia, alcoholism or alcohol abuse, or infection with human immunodeficiency virus. If the contractor/subcontractor is in receipt of a court order or other requests for the above mentioned information, that contractor/subcontractor shall immediately refer such court orders or other requests to the VA contracting officer for response.

l. For service that involves the storage, generating, transmitting, or exchanging of VA sensitive information but does not require C&A or an MOU-ISA for system interconnection, the contractor/subcontractor must complete a Contractor Security Control Assessment (CSCA) on a yearly basis and provide it to the COR.

4. INFORMATION SYSTEM DESIGN AND DEVELOPMENT

a. Information systems that are designed or developed for or on behalf of VA at non-VA facilities shall comply with all VA directives developed in accordance with FISMA, HIPAA, NIST, and related VA security and privacy control requirements for Federal information systems. This includes standards for the protection of electronic PHI, outlined in 45 C.F.R. Part 164, Subpart C, information and system security categorization level designations in accordance with FIPS 199 and FIPS 200 with implementation of all baseline security controls commensurate with the FIPS 199 system security categorization (reference Appendix D of VA Handbook 6500, VA Information Security Program).

During the development cycle a Privacy Impact Assessment (PIA) must be completed, provided to the COR, and approved by the VA Privacy Service in accordance with Directive 6507, VA Privacy Impact Assessment.

b. The contractor/subcontractor shall certify to the COR that applications are fully functional and operate correctly as intended on systems using the VA Federal Desktop Core Configuration (FDCC), and the common security configuration guidelines provided by NIST or the VA. This includes Internet Explorer 7 configured to operate on Windows XP and Vista (in Protected Mode on Vista) and future versions, as required.

c. The standard installation, operation, maintenance, updating, and patching of software shall not alter the configuration settings from the VA approved and FDCC configuration. Information technology staff must also use the Windows Installer Service for installation to the default "program files" directory and silently install and uninstall.

d. Applications designed for normal end users shall run in the standard user context without elevated system administration privileges.

e. The security controls must be designed, developed, approved by VA, and implemented in accordance with the provisions of VA security system development life cycle as outlined in NIST Special Publication 800-37, Guide for Applying the Risk Management Framework to Federal Information Systems, VA Handbook 6500, Information Security Program and VA Handbook 6500.5, Incorporating Security and Privacy in System Development Lifecycle.

f. The contractor/subcontractor is required to design, develop, or operate a System of Records Notice (SOR) on individuals to accomplish an agency function subject to the Privacy Act of 1974, (as amended), Public Law 93-579, December 31, 1974 (5 U.S.C. 552a) and applicable agency regulations. Violation of the Privacy Act may involve the imposition of criminal and civil penalties.

g. The contractor/subcontractor agrees to:

(1) Comply with the Privacy Act of 1974 (the Act) and the agency rules and regulations issued under the Act in the design, development, or operation of any system of records on individuals to accomplish an agency function when the contract specifically identifies:

(a) The Systems of Records (SOR); and

(b) The design, development, or operation work that the contractor/ subcontractor is to perform;

(1) Include the Privacy Act notification contained in this contract in every solicitation and resulting subcontract and in every subcontract awarded without a solicitation, when the work statement in the proposed subcontract requires the redesign, development, or operation of a SOR on individuals that is subject to the Privacy Act; and

(2) Include this Privacy Act clause, including this subparagraph (3), in all subcontracts awarded under this contract which requires the design, development, or operation of such a SOR.

h. In the event of violations of the Act, a civil action may be brought against the agency involved when the violation concerns the design, development, or operation of a SOR on individuals to accomplish an agency function, and criminal penalties may be imposed upon the officers or employees of the agency when the violation concerns the operation of a SOR on individuals to accomplish an agency function. For purposes of the Act, when the contract is for the operation of a SOR on individuals to accomplish an agency function, the contractor/subcontractor is considered to be an employee of the agency.

(1) "Operation of a System of Records" means performance of any of the activities associated with maintaining the SOR, including the collection, use, maintenance, and dissemination of records.

(2) "Record" means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, education, financial transactions, medical history, and criminal or employment history and contains the person's name, or identifying number, symbol, or any other identifying particular assigned to the individual, such as a fingerprint or voiceprint, or a photograph.

(3) "System of Records" means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.

i. The vendor shall ensure the security of all procured or developed systems and technologies, including their subcomponents (hereinafter referred to as "Systems"), throughout the life of this contract and any extension, warranty, or maintenance periods. This includes, but is not limited to workarounds, patches, hotfixes, upgrades, and any physical components (hereafter referred to as Security Fixes) which may be necessary to fix all security vulnerabilities published or known to the vendor anywhere in the Systems, including Operating Systems and firmware. The vendor shall ensure that Security Fixes shall not negatively impact the Systems.

j. The vendor shall notify VA within 24 hours of the discovery or disclosure of successful exploits of the vulnerability which can compromise the security of the Systems (including the confidentiality or integrity of its data and operations, or the availability of the system). Such issues shall be remediated as quickly as is practical, but in no event longer than 30 days.

k. When the Security Fixes involve installing third party patches (such as Microsoft OS patches or Adobe Acrobat), the vendor will provide written notice to the VA that the patch has been validated as not affecting the Systems within 10 working days. When the vendor is responsible for operations or maintenance of the Systems, they shall apply the Security Fixes within 5 days.

l. All other vulnerabilities shall be remediated as specified in this paragraph in a timely manner based on risk, but within 60 days of discovery or disclosure. Exceptions to this paragraph (e.g. for the convenience of VA) shall only be granted with approval of the contracting officer and the VA Assistant Secretary for Office of Information and Technology.

5. INFORMATION SYSTEM HOSTING, OPERATION, MAINTENANCE, OR USE

a. For information systems that are hosted, operated, maintained, or used on behalf of VA at non-VA facilities, contractors/subcontractors are fully responsible and accountable for ensuring compliance with all HIPAA, Privacy Act, FISMA, NIST, FIPS, and VA security and privacy directives and handbooks.

This includes conducting compliant risk assessments, routine vulnerablity scanning, system patching and change management procedures, and the completion of an acceptable contingency plan for each system.

The contractor's security control procedures must be equivalent, to those procedures used to secure VA systems. A Privacy Impact Assessment (PIA) must also be provided to the COR and approved by VA Privacy Service prior to operational approval. All external Internet connections to VA's network involving VA information must be reviewed and approved by VA prior to implementation.

b. Adequate security controls for collecting, processing, transmitting, and storing of Personally Identifiable Information (PII), as determined by the VA Privacy Service, must be in place, tested, and approved by VA prior to hosting, operation, maintenance, or use of the information system, or systems by or on behalf of VA. These security controls are to be assessed and stated within the PIA and if these controls are determined not to be in place, or inadequate, a Plan of Action and Milestones (POA&M) must be submitted and approved prior to the collection of PII.

c. Outsourcing (contractor facility, contractor equipment or contractor staff) of systems or network operations, telecommunications services, or other managed services requires certification and accreditation (authorization) (C&A) of the contractor's systems in accordance with VA Handbook 6500.3, Certification and Accreditation and/or the VA OCS Certification Program Office. Government- owned (government facility or government equipment) contractor-operated systems, third party or business partner networks require memorandums of understanding and interconnection agreements (MOU-ISA) which detail what data types are shared, who has access, and the appropriate level of security controls for all systems connected to VA networks.

d. The contractor/subcontractor's system must adhere to all FISMA, FIPS, and NIST standards related to the annual FISMA security controls assessment and review and update the PIA. Any deficiencies noted during this assessment must be provided to the VA contracting officer and the ISO for entry into VA's POA&M management process. The contractor/subcontractor must use VA's POA&M process to document planned remedial actions to address any deficiencies in information security policies, procedures, and practices, and the completion of those activities. Security deficiencies must be corrected within the timeframes approved by the government. Contractor/subcontractor procedures are subject to periodic, unannounced assessments by VA officials, including the VA Office of Inspector General. The physical security aspects associated with contractor/ subcontractor activities must also be subject to such assessments. If major changes to the system occur that may affect the privacy or security of the data or the system, the C&A of the system may need to be reviewed, retested and re- authorized per VA Handbook 6500.3. This may require reviewing and updating all of the documentation (PIA, System Security Plan, Contingency Plan). The Certification Program Office can provide guidance on whether a new C&A would be necessary.

e. The contractor/subcontractor must conduct an annual self assessment on all systems and outsourced services as required. Both hard copy and electronic copies of the assessment must be provided to the COR. The government reserves the right to conduct such an assessment using government personnel or another contractor/subcontractor. The contractor/subcontractor must take appropriate and timely action (this can be specified in the contract) to correct or mitigate any weaknesses discovered during such testing, generally at no additional cost.

f. VA prohibits the installation and use of personally-owned or contractor/ subcontractor-owned equipment or software on VA's network. If non-VA owned equipment must be used to fulfill the requirements of a contract, it must be stated in the service agreement, SOW or contract. All of the security controls required for government furnished equipment (GFE) must be utilized in approved other equipment (OE) and must be funded by the owner of the equipment. All remote systems must be equipped with, and use, a VA-approved antivirus (AV) software and a personal (host-based or enclave based) firewall that is configured with a VA-approved configuration. Software must be kept current, including all critical updates and patches. Owners of approved OE are responsible for providing and maintaining the anti-viral software and the firewall on the non-VA owned OE.

g. All electronic storage media used on non-VA leased or non-VA owned IT equipment that is used to store, process, or access VA information must be handled in adherence with VA Handbook 6500.1, Electronic Media Sanitization upon: (i) completion or termination of the contract or (ii) disposal or return of the IT equipment by the contractor/subcontractor or any person acting on behalf of the contractor/subcontractor, whichever is earlier. Media (hard drives, optical disks, CDs, back-up tapes, etc.)

used by the contractors/ subcontractors that contain VA information must be returned to the VA for sanitization or destruction or the contractor/subcontractor must self-certify that the media has been disposed of per 6500.1 requirements. This must be completed within 30 days of termination of the contract.

h. Bio-Medical devices and other equipment or systems containing media (hard drives, optical disks, etc.) with VA sensitive information must not be returned to the vendor at the end of lease, for trade-in, or other purposes. The options are:

(1) Vendor must accept the system without the drive;

(2) VA's initial medical device purchase includes a spare drive which must be installed in place of the original drive at time of turn-in; or

(3) VA must reimburse the company for media at a reasonable open market replacement cost at time of purchase.

(4) Due to the highly specialized and sometimes proprietary hardware and software associated with medical equipment/systems, if it is not possible for the VA to retain the hard drive, then;

(a) The equipment vendor must have an existing BAA if the device being traded in has sensitive information stored on it and hard drive(s) from the system are being returned physically intact; and

(b) Any fixed hard drive on the device must be non-destructively sanitized to the greatest extent possible without negatively impacting system operation. Selective clearing down to patient data folder level is recommended using VA approved and validated overwriting technologies/methods/tools.

Applicable media sanitization specifications need to be pre-approved and described in the purchase order or contract.

(c) A statement needs to be signed by the Director (System Owner) that states that the drive could not be removed and that (a) and (b) controls above are in place and completed. The ISO needs to maintain the documentation.

6. SECURITY INCIDENT INVESTIGATION

a. The term "security incident" means an event that has, or could have, resulted in unauthorized access to, loss or damage to VA assets, or sensitive information, or an action that breaches VA security procedures. The contractor/ subcontractor shall immediately notify the COR and simultaneously, the designated ISO and Privacy Officer for the contract of any known or suspected security/privacy incidents, or any unauthorized disclosure of sensitive information, including that contained in system(s) to which the contractor/ subcontractor has access.

b. To the extent known by the contractor/subcontractor, the contractor/ subcontractor's notice to VA shall identify the information involved, the circumstances surrounding the incident (including to whom, how, when, and where the VA information or assets were placed at risk or compromised), and any other information that the contractor/subcontractor considers relevant.

c. With respect to unsecured protected health information, the business associate is deemed to have discovered a data breach when the business associate knew or should have known of a breach of such information. Upon discovery, the business associate must notify the covered entity of the breach.

Notifications need to be made in accordance with the executed business associate agreement.

d. In instances of theft or break-in or other criminal activity, the contractor/subcontractor must concurrently report the incident to the appropriate law enforcement entity (or entities) of jurisdiction, including the VA OIG and Security and Law Enforcement. The contractor, its employees, and its subcontractors and their employees shall cooperate with VA and any law enforcement authority responsible for the investigation and prosecution of any possible criminal law violation(s) associated with any incident. The contractor/subcontractor shall cooperate with VA in any civil litigation to recover VA information, obtain monetary or other compensation from a third party for damages arising from any incident, or obtain injunctive relief against any third party arising from, or related to, the incident.

7. LIQUIDATED DAMAGES FOR DATA BREACH

a. Consistent with the requirements of 38 U.S.C. 5725, a contract may require access to sensitive personal information. If so, the contractor is liable to VA for liquidated damages in the event of a data breach or privacy incident involving any SPI the contractor/subcontractor processes or maintains under this contract.

b. The contractor/subcontractor shall provide notice to VA of a "security incident" as set forth in the Security Incident Investigation section above. Upon such notification, VA must secure from a non- Department entity or the VA Office of Inspector General an independent risk analysis of the data breach to determine the level of risk associated with the data breach for the potential misuse of any sensitive personal information involved in the data breach. The term 'data breach' means the loss, theft, or other unauthorized access, or any access other than that incidental to the scope of employment, to data containing sensitive personal information, in electronic or printed form, that results in the potential compromise of the confidentiality or integrity of the data. Contractor shall fully cooperate with the entity performing the risk analysis. Failure to cooperate may be deemed a material breach and grounds for contract termination.

c. Each risk analysis shall address all relevant information concerning the data breach, including the following:

(1) Nature of the event (loss, theft, unauthorized access);

(2) Description of the event, including:

(a) date of occurrence;

(b) data elements involved, including any PII, such as full name, social security number, date of birth, home address, account number, disability code;

(3) Number of individuals affected or potentially affected;

(4) Names of individuals or groups affected or potentially affected;

(5) Ease of logical data access to the lost, stolen or improperly accessed data in light of the degree of protection for the data, e.g., unencrypted, plain text;

(6) Amount of time the data has been out of VA control;

(7) The likelihood that the sensitive personal information will or has been compromised (made accessible to and usable by unauthorized persons);

(8) Known misuses of data containing sensitive personal information, if any;

(9) Assessment of the potential harm to the affected individuals;

(10) Data breach analysis as outlined in 6500.2 Handbook, Management of Security and Privacy Incidents, as appropriate; and

(11) Whether credit protection services may assist record subjects in avoiding or mitigating the results of identity theft based on the sensitive personal information that may have been compromised.

d. Based on the determinations of the independent risk analysis, the contractor shall be responsible for paying to the VA liquidated damages in the amount of per affected individual to cover the cost of providing credit protection services to affected individuals consisting of the following:

(1) Notification;

(2) One year of credit monitoring services consisting of automatic daily monitoring of at least 3 relevant credit bureau reports;

(3) Data breach analysis;

(4) Fraud resolution services, including writing dispute letters, initiating fraud alerts and credit freezes, to assist affected individuals to bring matters to resolution;

(5) One year of identity theft insurance with $20,000.00 coverage at $0 deductible; and

(6) Necessary legal expenses the subjects may incur to repair falsified or damaged credit records, histories, or financial affairs.

8. SECURITY CONTROLS…