36C24219R0170-000.docx

FedBizOpps Sources Sought Notice

CLASSIFICATION CODE

SUBJECT

CONTRACTING OFFICE'S

ZIP-CODE

SOLICITATION NUMBER

RESPONSE DATE (MM-DD-YYYY)

ARCHIVE

DAYS AFTER THE RESPONSE DATE

RECOVERY ACT FUNDS

SET-ASIDE

NAICS CODE

CONTRACTING OFFICE

ADDRESS

POINT OF CONTACT

(POC Information Automatically Filled from User Profile Unless Entered)

DESCRIPTION

See Attachment

AGENCY'S URL

URL DESCRIPTION

AGENCY CONTACT'S EMAIL

ADDRESS

EMAIL DESCRIPTION

ADDRESS

POSTAL CODE

COUNTRY

ADDITIONAL INFORMATION

GENERAL INFORMATION

PLACE OF PERFORMANCE

* = Required Field FedBizOpps Sources Sought Notice Rev. March 2010 C

BUILDING 29 SEAL ATTIC PARAPET AND TUCKPOINT

10548-1454 36C24219R0170 08-29-2019 N 541330 Daniel Barone Franklin D. Roosevelt VA Medical Center 2094 Albany Post Road Montrose NY 10548-1454 Daniel Barone Daniel.Barone@va.gov Montrose VA Medical Center 2094 Albany Post Road Montrose, New York 10548 12590 United States Daniel.Barone@va.gov Daniel Barone - Contract Specialist THIS ANNOUNCEMENT IS NOT A REQUEST FOR PROPOSAL. THE GOVERNMENT WILL NOT PAY NOR REIMBURSE ANY COSTS ASSOCIATED WITH RESPONDING TO THIS REQUEST. THE GOVERNMENT IS UNDER NO OBLIGATION TO AWARD A CONTRACT AS A RESULT OF THIS ANNOUNCEMENT.

The Department of Veterans Affairs is seeking a qualified Architect-Engineering (AE) firm to provide Schematics, Design Development, Construction Documents, Technical Specifications, Construction Period Services, Site Visits, Cost Estimates, As-Built Documentation, and all other related information for Project 620-14-104 Seal Attic Parapet and Tuckpoint at Building 29. This Project will provide for a an investigation of the existing roof system at building 29 at the Hudson Valley Health Care System, Montrose Campus, 2094 Albany Post Road, Montrose, NY 10548.

This requirement is being procured in accordance with the Brooks Act as implemented in FAR Subpart 36.6. Applicable NAICS code is 541310 and small business size standard of $15 Million. Magnitude of Construction is between $1,000,000.00 and $5,000,000.00. This is a 100% Service Disabled Veteran-Owned Small Business Set Aside. The anticipated award date of the proposed A-E Contract is on or before November 15, 2019. Potential contractors must be registered in SAM (www.sam.gov) and visible/certified in Vet Biz (www.vetbiz.gov) at time of submission of their qualifications in order to be considered for an award. As a prospective offeror or bidder for this Service Disabled Veteran-Owned Small Business (SDVOSB) set aside, you are verifying your company meets the status requirements of a VOSB concern as established by 38 CFR Part 74. NOTE - Offerors are referred to 48 CFR 852.219-10(c) (1): “Services (except construction) at least 50 percent of personnel for contract performance will be spent for employees of the concern or employees of other eligible service disabled veteran-owned small business concerns”. In order to assure compliance with this clause, all firms submitting a SF 330 for this Sources Sought Notice are required to indicate what percentage of the cost of contract performance will be expended by the concerns employees and in which discipline(s) and percentage of cost of contract performance to be expended (and in what disciplines) by any other subcontracted or otherwise used small or large business entity(s). Any subcontracted or otherwise business entity(s) used must be identified by name, office location and size/type of business (i.e. SDVOSB, VOSB, 8(a), large, etc).

SCOPE OF SERVICE REQUIRED

PROJECT NO. 620-14-104 Seal Attic Parapet and Tuckpoint at Building 29.

Provide all Contract Drawings, Specifications and Estimates in accordance with the design submission phases of the seal attic parapet and tuckpoint project at building 29. The construction documents shall provide sufficient information and detail to illustrate, describe and clearly delineate the design intent of the AE Firm and enable all Contractors to uniformly bid the project.

Provide all construction period services including the review and approval all of product and shop drawing submittals for the project, change orders, and all field site visits & reports. .

This Scope of Work is intended as a guide for the AE to understand the overall basic design requirements of the project and is not intended to identify each specific design component related to code and construction items. The AE shall provide those details during the design phase of the project ensuring that they are in compliance with all applicable codes, regulating authorities, and the guidelines.

Codes required for compliance in this project include but are not limited to:

1. NFPA

2. New York State Fire Prevention and Building Code

3. ADAAG

4. ASHREA

5. NEC

6. AISC

7. ACI

The latest edition of code as of the time of contract being signed shall be used. In addition, any governing requirements that are scheduled to take effect on or before April 30th, 2019 are to be included in the design.

The Architect-Engineering (AE) firm shall be responsible for communication with, submission to, review with, and satisfaction of all necessary reviews with regulatory bodies. There shall be a preliminary engineering report supplied to all governing regulatory agencies with the 95% preliminary submission, and approval of this preliminary report must be received before the 100% preliminary design is considered complete. There shall also be a final engineering report supplied to all governing regulatory agencies with the 65% contract drawing submission, and approval of this preliminary report must be received before the 95% contract drawing design is considered complete. 100% complete contract submission package shall be submitted to the VA 14 days after 95% contract drawing design is approved. The AE firm is responsible for all other submissions required by these agencies for review, and for any corrections or adjustments required as a result of these reviews.

X. LOCATION

This Project will replace the building roof system at building 29 at the Hudson Valley Health Care System, Montrose Campus, 2094 Albany Post Road, Montrose, NY 10548.

COST RANGE

Estimated Construction Cost Range: Between $1,000,000 and $5,000,000.

TYPE OF CONTRACT CONTEMPLATED

The Department of Veterans Affairs is contemplating awarding a firm fixed price contract.

ESTIMATED START AND COMPLETION DATES

The Department of Veterans Affairs requires design and contract support services. The estimated start and end dates for the design and start and end dates for the construction are as follows:

ITEM DATE

Receive Notice to Proceed from (NTP) TBD

Deliver 100% Preliminary Design 45 calendar days from NTP

100% Preliminary Design Review 60 calendar days from NTP

Deliver 65% Working Drawings 105 calendar days from NTP

65% Design Review 120 calendar days from NTP

Deliver 95% Working Drawings 165 calendar days from NTP

95% Design Review 186 calendar days from NTP

Deliver 100% Working Drawings 231 calendar days from NTP

100% Design Review 252 calendar days from NTP

Deliver Construction Drawings and Bid Docs 282 calendar days from NTP

Review Construction Drawings and Bid Docs 296 calendar days from NTP

AE Submits final complete package to contracting 318 calendar days from NTP

(a) The A/E shall perform the work required within the limits of the following schedule. Professional architects, engineers and related design disciplines familiar with the work shall be provided, as directed by the Contracting Officer, to attend the VA reviews.

Construction:

Number of calendar days to complete construction is to be determined by the AE firm after the design is complete.

SELECTION CRITERIA/DESCRIPTIONS

The selection criteria descriptions are provided below.

(1) PROFESSIONAL QUALIFICATIONS NECESSARY FOR SATISFACTORY PERFORMANCE OF REQUIRED SERVICES.

Provide brief resumes of proposed team members who will specifically serve as the Project Managers and Designers of Record. The Designers of Record shall perform and direct the design within their respective discipline and shall sign and seal the drawings. All Designers of Record must be professionally registered in their discipline. Each resume shall include a minimum of two (2) specific completed projects that best illustrate the individual team members experience relevant to this contract scope;

(2) SPECIALIZED EXPERIENCE AND TECHNICAL COMPETENCE

Specialized experience and technical competence required for this specific project, including, where appropriate, experience in energy conservation, pollution prevention, waste reduction, and the use of recovered materials.

(3) CAPACITY

This factor evaluates the ability of the firm, given their current projected workload and the availability of their key personnel, to accomplish the possible myriad of design projects in the required time.

The general workload and staffing capacity of the design office will be evaluated.

i. List current projects with a design fee of greater than $20,000 being designed in the firms’ office.

ii. Indicate the firms’ present workload and the availability of the project team (including sub-consultants) for the specified contract performance period;

iii. Describe experience in successfully delivering projects per performance schedule, providing timely construction support, and successfully completing multiple projects with similar delivery dates

(4) PAST PERFORMANCE: VISN2 will evaluate past performance on recent and relevant contracts with government agencies (emphasis on VA work) and private industry in terms of cost control, quality of work, compliance with performance schedules and a record of significant claims against the firm due to improper or incomplete engineering services (references required).

i. Recent is defined as performance occurring within 5 years of the date of this Sources Sought, except that ongoing projects must have begun no less than one (1) year prior to the issuance of this Sources Sought.

ii. Relevancy is defined as performance of work on projects that are similar in scope to the types of projects anticipated under the resultant contracts.

iii. Respondents with no previous past performance shall state this when addressing the selection criteria. Where there is no record of past performance, the proposal will be evaluated neither favorably nor unfavorably. Superior performance ratings on relevant projects may be considered more favorably in the evaluation.

Submission Requirements:

i. Submit a minimal of three (3) references; any of the following evaluations are acceptable:

a. Contractor Performance Assessment Report System (CPARS), or

b. Past Performance Questionnaire (PPQ) evaluation for each project submitted under Criterion 2.

ii. If a completed CPARS evaluation is available, it shall be submitted with the completed SF330 package. If there is not a completed CPARS evaluation, the PPQ included with this notice is provided for the Offeror or its team members to submit for each project included in criterion (2). If a PPQ is submitted, but an official CPARS evaluation is found for that project in government databases, the official evaluation will take precedence. If a CPARS evaluation is not available, ensure correct phone numbers and email addresses are provided for each contract customer/reference. Completed PPQs should be submitted with your SF330. If the A-E is unable to obtain a completed PPQ from a contract customer/reference for a project before the response date set forth in this notice, the A-E should complete and submit with their response the first page of the PPQ (Attachment #1), including contract and point of contact information for the respective projects.

iii. A-Es should follow-up with references to ensure timely submittal of questionnaires. At the reference’s request, questionnaires may be submitted directly to the Governments point of contact, Attn: Daniel Barone, via email at Daniel.Barone@va.gov, prior to the response date. A-Es shall not incorporate by references into their response CPARS or PPQ evaluations previously submitted in response to other A-E services procurements. However, this does not preclude the Government from utilizing previously submitted PPQ information in the past performance evaluation. Submitted CPARS and PPQ evaluations will not be counted as part of the 30 page limitation and shall be attached to the SF330, behind the SF330 Part II document

(5) LOCATION

iv. The A/E Firm proximity to the Franklin D. Roosevelt VA Medical Center, Montrose, New York 10548 is an evaluation criteria.

v. This distance is determined according to http://maps.google.com/

vi. This factor evaluates the distance the AE firm's design office or offices lies from the location of work. Please provide the address (es) and distance of your closest office to the address listed below.

(6) Reputation and standing of the firm and its principal officials with respect to professional performance, General Management, and cooperativeness.

(7) Record of significant claims against the firm because of improper or incomplete architectural and engineering services.

(8) Specific Experience and Qualifications of personnel proposed assignment to the project and their record of working together as a team.

PLEASE NOTE: The AE Evaluation Board must be provided with complete and accurate information for ALL eight (8) evaluation factors above in order to rank as qualified and eligible firms. Therefore, the AE firm must expand upon, as it deems necessary, on any evaluation factor not well demonstrated or addressed with Part 1A to Part IG and Part II of the SF330. The AE firm shall use Part IH and/or use additional sheets to supplement/address all evaluation factors to clearly demonstrate its qualifications.

LIMITATIONS

VA NOTICE OF TOTAL SERVICE-DISABLED VETERAN-OWNED SMALL BUSINESS SET-ASIDE (JUL 2016) (DEVIATION)(a) Definition. For the Department of Veterans Affairs, “Service-disabled veteran-owned small business concern or SDVSOB”:(1) Means a small business concern: (i) Not less than 51 percent of which is owned by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service-disabled veterans or eligible surviving spouses (see VAAR 802.201 Surviving Spouse definition); (ii) The management and daily business operations of which are controlled by one or more service-disabled veterans (or eligible surviving spouses) or, in the case of a service-disabled veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran; (i) The business meets Federal small business size standards for the applicable North American Industry Classification System (NAICS) code identified in the solicitation document; (iv) The business has been verified for ownership and control pursuant to 38 CFR 74 and is so listed in the Vendor Information Pages database, (https://www.vip.vetbiz.gov); and (v) The business will comply with subcontracting limitations in 13 CFR 125.6, as applicable (2) “Service-disabled veteran” means a veteran, as defined in 38 U.S.C. 101(2), with a disability that is service-connected, as defined in 38 U.S.C. 101(16). (b) General. (1) Offers are solicited only from verified service-disabled veteran-owned small business concerns. Offers received from concerns that are not verified service-disabled veteran-owned small business concerns shall not be considered. (2) Any award resulting from this solicitation shall be made to a verified service-disabled veteran-owned small business concern. (c) Agreement. A service-disabled veteran-owned small business concern agrees that in the performance of the contract, the concern will comply with the limitation on subcontracting requirements in 13 CFR §125.6. (d) A joint venture may be considered a service-disabled veteran owned small business concern if the joint venture complies with the requirements in 13 CFR 125.15, provided that any reference therein to SDVO SBC is to be construed to apply to a VA verified SDVOSB as appropriate. (e) Any service-disabled veteran-owned small business concern (non-manufacturer) must meet the requirements in FAR 19.102(f) of the Federal Acquisition Regulation to receive a benefit under this program.

SUBMISSION REQUIREMENTS

Qualified Service Disabled Veteran Owned Small Business firms are required to submit three (3) hard copies of the SF 330 (which can be downloaded from www.gsa.gov/forms ) and one (1) Compact Disc (CD) which contains digital copies of the SF 330. All packages shall be submitted no later than August 29, 2019 including Past Performance (CPARS) evaluations or Questionnaires (attachment 1). All submittals must be sent to the attention of Daniel Barone, 2094 Albany Post Road, Building 29, Montrose, New York 10548.

The submission must include an insert detailing the following information:

The Contracting Officer is not responsible for not receiving submissions due to the offeror misaddressing the package or illegibility of the information. NOTE: Any request for assistance with submission or other procedural matters shall be submitted via email only to Daniel Barone telephone inquiries will not be honored.

THIS ANNOUNCEMENT IS NOT A REQUEST FOR PROPOSAL. THE GOVERNMENT WILL NOT PAY NOR REIMBURSE ANY COSTS ASSOCIATED WITH RESPONDING TO THIS REQUEST. THE GOVERNMENT IS UNDER NO OBLIGATION TO AWARD A CONTRACT AS A RESULT OF THIS ANNOUNCEMENT.

SEAL ATTIC PARAPET AND TUCKPOINT BUILDING 29

MONTROSE, NY (AE Design) 620-14-104

STATEMENT OF WORK

Background

This project is required due to roof leaks damaging the internal fabric of occupied space(s) for Building 29 at the Montrose Campus of the Hudson Valley Health Care System.

The Architectural/ Engineering (A/E) is to perform preliminary study, design and construction period services for the replacement of the building roof system and associated miscellaneous repair work.

Objectives

Objective of the acquisition is to have the A/E fully survey, investigate, and document the existing roof leaks. Prepare design drawings and specifications for the replacement of the building roof system; drain assembly, structural repair of supporting elements, parapet wall / capping, including miscellaneous repair work. The drawings and specifications will be used in the acquisition of a construction contract to implement the design.

Period of Performance

The period of performance for design shall be 1023 days from Notice to Proceed (318 days for design, 705 days for construction period services).

Place of Performance / Place of Delivery

The place of performance for this contract is Building 29, VA Hudson Valley Health Care System, 2094 Albany Post Road, Montrose, NY 10548.

Scope or Tasks (for services)

The Architectural/ Engineering (A/E) is to perform preliminary study, design and construction period services for the replacement of the building roof system and associated miscellaneous repair work for Building 29 at the Montrose Campus of the Hudson Valley Health Care System.

The project will require a condition survey report of the existing building roof giving consideration to architectural, mechanical, and electrical (for lightning protection), plumbing, structural, asbestos abatement and lead requirements, and include recommendations for the replacement of the building roof system and necessary repair work.

A/E Firm shall prepare design drawing, construction plans, building elevations and specification to meet the VA A/E Design Submission Requirements, including; construction cost estimates, listing of submittals, submittal priority and other necessary engineering and construction period service, technical support, submittal review, site visits for intermediate and final inspection and documentation submission to complete as-builts.

A/E Firm shall provide the services of a Certified Industrial Hygienist for lead and asbestos abatement inspection, planning and monitoring during construction.

Each submission shall include the required deliverables outlined in the supplement B to the SF 252.

Government-Furnished Property, Material, Equipment, or Information (GFP, GFM, GFE, or GFI)

The A/E firm will be furnished with paper or PDF copies of any available drawings for the areas included in the area of work.

Security

The AE firm shall obtain day passes for any site visits from the police station. If personnel from the AE firm are expected to be on site more than five (5) days (cumulative) during the design, they shall file paperwork to obtain a permanent ID for the station. Necessary paperwork can be obtained from the COR.

The AE personnel who intend to take photos must inform the COR, at least 48 hours ahead to time, of such intentions.

Safety Codes / Certification / Licensing

The AE firm shall comply with all codes as described above, as well as codes customarily applied in VA construction jobs such as NFPA fire code, OSHA, VA Design Guides, etc. Labs used by the AE firm shall be licensed as required by any applicable governing agencies, and their certifications and licenses shall be included in the engineering reports.

Travel

No travel as a result of this project is anticipated.

Special Material Requirements

No special materials are anticipated for this contract.

Any Other Requirements unique to the solicitation.

None

VA INFORMATION AND INFORMATION SYSTEM SECURITY/PRIVACY LANGUAGE FOR INCLUSION INTO CONTRACTS, AS APPROPRIATE

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 – Does not apply

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 COTR.

4. INFORMATION SYSTEM DESIGN AND DEVELOPMENT

1. 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 COTR, and approved by the VA Privacy Service in accordance with Directive 6507, VA Privacy Impact Assessment.

The contractor/subcontractor shall certify to the COTR 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.

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.

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

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.

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.

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.

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.

(4) “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.

(5) “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.

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.

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 ____ days.

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 ____ days.

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 – Does not apply

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 COTR 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

1. 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.

1. 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.

1. 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.

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 $ 37.50 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 COMPLIANCE TESTING

On a periodic basis, VA, including the Office of Inspector General, reserves the right to evaluate any or all of the security controls and privacy practices implemented by the contractor under the clauses contained within the contract. With 10 working-day’s notice, at the request of the government, the contractor must fully cooperate and assist in a government-sponsored security controls assessment at each location wherein VA information is processed or stored, or information systems are developed, operated, maintained, or used on behalf of VA, including those initiated by the Office of Inspector General. The government may conduct a security control assessment on shorter notice (to include unannounced assessments) as determined by VA in the event of a security incident or at any other time.

9. TRAINING

a. All contractor employees and subcontractor employees requiring access to VA information and VA information systems shall complete the following before being granted access to VA information and its systems:

(1) Sign and acknowledge (either manually or electronically) understanding of and responsibilities for compliance with the Contractor Rules of Behavior, Appendix D relating to access to VA information and information systems;

(2) Successfully complete the “VA Privacy and Information Security Awareness and Rules of Behavior ” training and annually complete required security training.

(3) Successfully complete the “VA Privacy and HIPAA training” ; and annually complete required privacy training; and

(4) Successfully complete any additional cyber security or privacy training, as required for VA personnel with equivalent information system access [to be defined by the VA program official and provided to the contracting officer for inclusion in the solicitation document – e.g., any role-based information security training required in accordance with NIST Special Publication 800-16, Information Technology Security Training Requirements.]

b. The contractor shall provide to the contracting officer and/or the COTR a copy of the training certificates and certification of signing the Contractor Rules of Behavior for each applicable employee within 1 week of the initiation of the contract and annually thereafter, as required.

c. Failure to complete the mandatory annual training and sign the Rules of Behavior annually, within the timeframe required, is grounds for suspension or termination of all physical or electronic access privileges and removal from work on the contract until such time as the training and documents are complete.

(5) The training is accessible on: https://www.tms.va.gov/plateau/user/login.jsp

10. NARA RECORDS MANAGEMENT REQUIREMENTS FOR CONTRACTS

1. The following standard Items relate to records generated in executing this contract:

1. Citations to pertinent laws, codes and regulations such as 44 U.S.C Chapter 21, 29, 31and 33; Freedom of Information Act (5 U.S.C. 552); Privacy Act (5 U.S.C. 552a); 36 CFR Part 1222 and Part 1228.

2. Contractor shall treat all deliverables under the contract as the property of the U.S. Government for which the Government Agency shall have unlimited rights to use, dispose of, or disclose such data contained therein as it determines to be in the public interest.

3. Contractor shall not create or maintain any records that are not specifically tied to or authorized by the contract using Government ‘IT’ equipment and/or Government records.

4. Contractor shall not retain, use, sell, or disseminate copies of any deliverable that contains information covered by the Privacy Act of 1974 or that which is generally protected by the Freedom of Information Act.

5. Contractor shall not create or maintain any records containing any Government Agency records that are not specifically tied to or authorized by the contract.

6. The Government Agency owns the rights to all data/records produced as part of this contract.

7. The Government Agency owns the rights to all electronic information (electronic data, electronic information systems, electronic databases, etc.) and all supporting documentation created as part of this contract. Contractor must deliver sufficient technical documentation with all data deliverables to permit the agency to use the data.

8. Contractor agrees to comply with Federal and Agency records management policies, including those policies associated with the safeguarding of records covered by the Privacy Act of 1974. These policies include the preservation of all records created or received regardless of format [paper, electronic, etc.] or mode of transmission [e-mail, fax, etc.] or state of completion [draft, final, etc.].

9. No disposition of documents will be allowed without the prior written consent of the Contracting Officer. The Agency and its contractors are responsible for preventing the alienation or unauthorized destruction of records, including all forms of mutilation. Willful and unlawful destruction, damage or alienation of Federal records is subject to the fines and penalties imposed by 18 U.S.C. 2701. Records may not be removed from the legal custody of the Agency or destroyed without regard to the provisions of the agency records schedules.

10. Contractor is required to obtain the Contracting Officer's approval prior to engaging in any contractual relationship (sub-contractor) in support of this contract requiring the disclosure of information, documentary material and/or records generated under or relating to this contract. The Contractor (and any sub-contractor) is required to abide by Government and Agency guidance for protecting sensitive and proprietary information.

VA HANDBOOK 6500.6

MARCH 12, 2010

APPENDIX C

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CONTRACTOR RULES OF BEHAVIOR

This User Agreement contains rights and authorizations regarding my access to and use of any information assets or resources associated with my performance of services under the contract terms with the Department of Veterans Affairs (VA). This User Agreement covers my access to all VA data whether electronic or hard copy ("Data"), VA information systems and resources ("Systems"), and VA sites ("Sites"). This User Agreement incorporates Rules of Behavior for using VA, and other information systems and resources under the contract.

1. GENERAL TERMS AND CONDITIONS FOR ALL ACTIONS AND ACTIVITIES UNDER THE CONTRACT:

a. I understand and agree that I have no reasonable expectation of privacy in accessing or using any VA, or other Federal Government information systems.

b. I consent to reviews and actions by the Office of Information & Technology (OI&T) staff designated and authorized by the VA Chief Information Officer (CIO) and to the VA OIG regarding my access to and use of any information assets or resources associated with my performance of services under the contract terms with the VA. These actions may include monitoring, recording, copying, inspecting, restricting access, blocking, tracking, and disclosing to all authorized OI&T, VA, and law enforcement personnel as directed by the VA CIO without my prior consent or notification.

c. I consent to reviews and actions by authorized VA systems administrators and Information Security Officers solely for protection of the VA infrastructure, including, but not limited to monitoring, recording, auditing, inspecting, investigating, restricting access, blocking, tracking, disclosing to authorized personnel, or any other authorized actions by all authorized OI&T, VA, and law enforcement personnel.

d. I understand and accept that unauthorized attempts or acts to access, upload, change, or delete information on Federal Government systems; modify Federal government systems; deny access to Federal government systems; accrue resources for unauthorized use on Federal government systems; or otherwise misuse Federal government systems or resources are prohibited.

e. I understand that such unauthorized attempts or acts are subject to action that may result in criminal, civil, or administrative penalties. This includes penalties for violations of Federal laws including, but not limited to, 18 U.S.C. §1030 (fraud and related activity in connection with computers) and 18 U.S.C. §2701 (unlawful access to stored communications).

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f. I agree that OI&T staff, in the course of obtaining access to information or systems on my behalf for performance under the contract, may provide information about me including, but not limited to, appropriate unique personal identifiers such as date of birth and social security number to other system administrators, Information Security Officers (ISOs), or other authorized staff without further notifying me or obtaining additional written or verbal permission from me.

g. I understand I must comply with VA’s security and data privacy directives and handbooks. I understand that copies of those directives and handbooks can be obtained from the Contracting Officer's Technical Representative (COTR). If the contractor believes the policies and guidance provided by the COTR is a material unilateral change to the contract, the contractor must elevate such concerns to the Contracting Officer for resolution.

h. I will report suspected or identified information security/privacy incidents to the COTR and to the local ISO or Privacy Officer as appropriate.

2. GENERAL RULES OF BEHAVIOR

a. Rules of Behavior are part of a comprehensive program to provide complete information security. These rules establish standards of behavior in recognition of the fact that knowledgeable users are the foundation of a successful security program. Users must understand that taking personal responsibility for the security of their computer and the information it contains is an essential part of their job.

b. The following rules apply to all VA contractors. I agree to:

(1) Follow established procedures for requesting,…