36C25024Q0757_1.docx

36C25024Q0757

PAGE 1 OF

1. REQUISITION NO.

2. CONTRACT NO.

3. AWARD/EFFECTIVE DATE

4. ORDER NO.

5. SOLICITATION NUMBER

6. SOLICITATION ISSUE DATE

a. NAME

b. TELEPHONE NO. (No Collect Calls)

8. OFFER DUE

DATE/LOCAL

TIME

9. ISSUED BY

CODE

10. THIS ACQUISITION IS

UNRESTRICTED OR

SET ASIDE:

% FOR:

SMALL BUSINESS

HUBZONE SMALL

BUSINESS

SERVICE-DISABLED

VETERAN-OWNED

SMALL BUSINESS

WOMEN-OWNED SMALL BUSINESS

(WOSB) ELIGIBLE UNDER THE WOMEN-OWNED

SMALL BUSINESS PROGRAM

EDWOSB

8(A)

NAICS:

SIZE STANDARD:

11. DELIVERY FOR FOB DESTINA-

TION UNLESS BLOCK IS

MARKED

SEE SCHEDULE

12. DISCOUNT TERMS

13a. THIS CONTRACT IS A

RATED ORDER UNDER

DPAS (15 CFR 700)

13b. RATING

14. METHOD OF SOLICITATION

RFQ

IFB

RFP

15. DELIVER TO

CODE

16. ADMINISTERED BY

CODE

17a. CONTRACTOR/OFFEROR

CODE

FACILITY CODE

18a.

PAYMENT WILL BE MADE BY

CODE

TELEPHONE NO.

UEI:

EFT:

PHONE:

FAX:

17b. CHECK IF REMITTANCE IS DIFFERENT AND PUT SUCH ADDRESS IN OFFER 18b. SUBMIT INVOICES TO ADDRESS SHOWN IN BLOCK 18a UNLESS BLOCK BELOW IS CHECKED

SEE

ADDENDUM

19.

20.

21.

22.

23.

24.

ITEM NO.

SCHEDULE OF SUPPLIES/SERVICES

QUANTITY

UNIT

UNIT PRICE

AMOUNT

(Use Reverse and/or Attach Additional Sheets as Necessary)

25. ACCOUNTING AND APPROPRIATION DATA

26.

TOTAL AWARD AMOUNT (For Govt. Use Only) 27a. SOLICITATION INCORPORATES BY REFERENCE FAR 52.212-1, 52.212-4. FAR 52.212-3 AND 52.212-5 ARE ATTACHED. ADDENDA

ARE

ARE NOT ATTACHED.

27b. CONTRACT/PURCHASE ORDER INCORPORATES BY REFERENCE FAR

52.212-4. FAR 52.212-5 IS ATTACHED. ADDENDA

ARE

ARE NOT ATTACHED

28. CONTRACTOR IS REQUIRED TO SIGN THIS DOCUMENT AND RETURN _______________

29. AWARD OF CONTRACT: REF. ___________________________________ OFFER

COPIES TO ISSUING OFFICE.

CONTRACTOR AGREES TO FURNISH AND

DATED ________________________________. YOUR OFFER ON SOLICITATION

DELIVER ALL ITEMS SET FORTH OR OTHERWISE IDENTIFIED ABOVE AND ON ANY

(BLOCK 5), INCLUDING ANY ADDITIONS OR CHANGES WHICH ARE

ADDITIONAL SHEETS SUBJECT TO THE TERMS AND CONDITIONS SPECIFIED

SET FORTH HEREIN IS ACCEPTED AS TO ITEMS:

30a. SIGNATURE OF OFFEROR/CONTRACTOR 31a. UNITED STATES OF AMERICA (SIGNATURE OF

CONTRACTING OFFICER)

30b. NAME AND TITLE OF SIGNER (TYPE OR PRINT) 30c. DATE SIGNED 31b. NAME OF CONTRACTING OFFICER (TYPE OR PRINT) 31c. DATE SIGNED

AUTHORIZED FOR LOCAL REPRODUCTION

(REV. NOV 2021)

PREVIOUS EDITION IS NOT

USABLE

Prescribed by GSA - FAR (48 CFR) 53.212

7. FOR SOLICITATION

INFORMATION CALL:

STANDARD FORM 1449

SOLICITATION/CONTRACT/ORDER FOR COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES

OFFEROR TO COMPLETE BLOCKS 12, 17, 23, 24, & 30

36C25024Q0757 06-24-2024 Bailey, Lisa 317-341-5459 07-05-2024

4PM

EDT

Department of Veterans Affairs Network Contracting Office 10 8888 Keystone Crossing Suite 325 Indianapolis IN 46240 X X 621330 $9 Million N/A X Department of Veteran Affairs VA Ann Arbor Healthcare System Lt. Col. Charles S. Kettles VAMC 2215 Fuller Road Ann Arbor MI 48105 Department of Veterans Affairs Network Contracting Office 10 8888 Keystone Crossing Suite 325 Indianapolis IN 46240

Department of Veterans Affairs Financial Management System P O Box 149971 Austin TX 78714-9971 512-242-7300 N/A See CONTINUATION Page Contractor shall provide Employee Assistance Program (EAP) Services in accordance with the Statement of Work for the period of August 1, through July 31, 2025 with four (4) Option Years, exercisable at the Government's discretion.

All questions should be directed, in writing, to the Contracting Officer via email at Lisa.Bail ey12@va.gov no later than 12PM EDT July 1, 2024. After this time, a list of questions with answers will be provided via SAM.gov by issuing an amendment. Questions received after July 1, 2024 will not be accepted or considered.

Quotes are due no later than 4PM EDT July 5, 2024.

Award will be made under Comparative Evaluation IAW FAR 13 to the offeror who provides the best value to the Government. See Instructions to Offerors (Section E) for additional information See CONTINUATION Page X X Lisa Bailey Contracting Officer Table of Contents

SECTION B - CONTINUATION OF SF 1449 BLOCKS

B.1 CONTRACT ADMINISTRATION DATA

(continuation from Standard Form 1449, block 18A.)

1. CONTRACT ADMINISTRATION: All contract administration matters will be handled by the following individuals:

a. CONTRACTOR: _________________________

SAM UEI: _________________

2. CONTRACTOR REMITTANCE ADDRESS: All payments by the Government to the contractor will be made in accordance with: 52.23233, Payment by Electronic Funds Transfer – System for Award Management

3. INVOICES: Invoices shall be submitted in arrears: Monthly

4. GOVERNMENT INVOICE ADDRESS: All invoices from the contractor shall be submitted electronically in accordance with VAAR Clause 852.232-72, Electronic Submission of Payment Requests. Invoicing shall be in accordance with the requirements of the Department of Veterans Affairs (VA) Financial Services Center (VAFSC). The latest information shall be used for invoicing and payments and may change during the period of performance of this acquisition. Current Invoicing information is located at: http://www.fsc.va.gov/einvoice.asp.

All invoices shall include the following:

· Invoice Number

· Invoice Date

· Purchase Order Number (will always begin with 506)

5. CHANGES/MODIFICATIONS TO THE CONTRACT: The Contracting Officer will be the only person authorized to approve changes or modify any of the requirements under this resultant contract. The Contractor shall communicate with the Contracting Officer on all matters pertaining to contract administration. Only the Contracting Officer will be authorized to make commitments or issue changes that affect price, quantity, delivery or quality of performance of this resultant contract. In the event the Contractor effects any such change at the direction of any person other than the Contracting Officer, the change shall be considered unauthorized by the local VAMC and no adjustment will be made in the contract price to cover any increase in cost incurred as a result thereof.

6. ACKNOWLEDGMENT OF AMENDMENTS: The offeror acknowledges receipt of amendments to the Solicitation numbered and dated as follows:

7. SECURE FAX: In accordance with VA Handbook 6500, the following statement is required on all fax cover sheets; if it is determined the ordering process will include a fax: “This fax is intended only for the use of the person or office to which it is addressed and may contain information that is privileged, confidential or protected by law. All others are hereby notified that the receipt of this fax does not waive any applicable privilege or exemption for disclosure and that any dissemination, distribution or copying of this communication is prohibited. If you have received this fax in error, please notify this office immediately at the telephone number listed above.”

8. System for Award Management: Federal Acquisition Regulation requires contractor registration in the System for Award Management (SAM) database prior to the award of a contract. Offerors and Contractors may obtain information on registration and annual confirmation requirements via the internet at https://www.sam.gov/portal/public/SAM/.

B.2 PRICE/COST SCHEDULE

ITEM INFORMATION

Contract Period: Base POP Begin: 08-01-2024 POP End: 07-31-2025

Contract Period: Option 1 POP Begin: 08-01-2025 POP End: 07-31-2026

Contract Period: Option 2 POP Begin: 08-01-2026 POP End: 07-31-2027

Contract Period: Option 3 POP Begin: 08-01-2027 POP End: 07-31-2028

Contract Period: Option 4 POP Begin: 08-01-2028 POP End: 07-31-2029

B.3 STATEMENT OF WORK (SOW)

Employee Assistance Program for Veteran Integrated Service Network 10 (VISN 10) – Ann Arbor VA Healthcare System. The base period for these services is August 1, 2024 through July 31, 2025 with four (4) Option Years, exercisable at the Government’s discretion.

BACKGROUND - It is the policy of the Department to provide its employees, and family members, access to an Employee Assistance Program (EAP) to offer resources to address: work-related problems, traumatic incidents, substance abuse, mental illness, marital or family problems, and financial or other personal problems. EAP is a comprehensive program that can provide employees with the support, tools, and resources they need to manage through challenging times and remain productive on the job.

AUTHORITY - Federal law requires that Agencies must offer counseling services to employees. The EAP is the vehicle through which these laws are implemented (Public Law 79-658 (5 U.S.C. § 7901), 91-616 (42 U.S.C. § 290aa-1), and 92-255; Executive Order 12564 Drug Free Work Place Act; and the Americans with Disability Act Amendment Act (ADAAA). The U.S. Office of Personnel Management (OPM), as the lead Agency for Federal EAPs under these laws, offers recommendations regarding the provision of EAP services.

AREA OF COVERAGE

The EAP Contractor must provide services to employees at the following facilities. Total number of employees is approximately 2900.

Ann Arbor VA Health Care System Consists of:

1. Ann Arbor VA Medical Center (AAVAMC), 2215 Fuller Rd, Ann Arbor, MI 48105

2. Jackson Michigan (JCBOC), 4328 Page Ave Michigan Center MI 49254

3. Flint Michigan (FCBOC), 2360 S Lindon Rd Ste 300, Flint, MI 48532

4. Toledo Ohio (TCBOC), 1200 S Detroit Ave, Toledo, OH 43614

5. Green Rd Clinic: 2500 Green Rd, Ann Arbor, MI 48105

6. Packard Rd Clinic: 3800 Packard Rd, Ann Arbor, MI 48108

7. VISN 10 Offices, Ann Arbor MI

8. National Center for Patient Safety (NCPS), Ann Arbor MI

SPECIFICALLY, EAP SERVICES SHOULD:

· Be effective and efficient, and, based on the best available professional practices;

· Be provided within a safe, secure, and confidential environment;

· Maintain clear and open lines of communication with stakeholders;

· Treat clients equitably while demonstrating flexibility in meeting their needs;

· Allow clients appropriate control over their own care; and

· Provide continuity of care to help clients achieve their goals.

· The EAP shall embrace OPM's guidelines and incorporates them into service delivery.

SCOPE OF WORK

AREA OF COVERAGE

The EAP Contractor must provide services to all employees of the VISN 10 Ann Arbor. Total number of employees is approximately 3400.

SERVICES SHALL INCLUDE, but are not limited to:

· Assessment,

· Treatment Planning,

· Short-term Counseling,

· Financial Counseling,

· Traumatic Incident Management (TIM),

· Social Service Assistance,

· Information and Referral,

· Health Education Training,

· Short-term substance abuse counseling.

· Education for employees and managers about substance abuse, assessing employees with potential substance abuse problems; identifying resources for treatment and rehabilitation for employees found to need them; and, working with VISN 10 Ann Arbor and/or CBOC managers to successfully transition employees back to the workplace.

· The maximum number of visits per issue covered by this contract will be six (6).

TECHNICAL QUALIFICATIONS

EAP Counseling Staff shall:

At a minimum, professional counselors, shall hold a master's degree and a current state license or certificate to practice at the highest independent level as a mental health practitioner consistent with state laws.

Professional counselors must be trained to assist employees with a wide range of personal issues, as well as, to provide coaching, management consultations, and presentations on a variety of health and wellness topics (Section II. b.).

EAP counseling, communications, and information and referral services may be in person, by telephone, or fax, but generally may not be by e-mail, internet, or intranet. Exceptions may be made when the employee gives consent to send and receive information to and from the EAP by e-mail, internet or intranet. Consent must be documented and retained in the employee's EAP file. Before an employee gives consent, he or she must be informed that there is no expectation of privacy regarding such communication or information stored within the Agency’s computer system.

The EAP Contractor shall be available 24 hours day, 7 days a week, through a toll-free EAP point of contact.

Expert, credentialed staff must answer phone calls within 5 minutes, establish eligibility for services, and identify the services needed (e.g., referral to an EAP counselor, information on community resources, referral to legal and financial experts, etc.).

A separate TTD number (for the hearing impaired) is also provided.

Face-to-face counseling services must be available.

The EAP offers unequalled accessibility for employees and their family members – no matter where they live or work.

PUBLICATIONS

At contract initiation, the VISN 10 employees, and CBOC employees will receive introductory brochures, wallet cards, and posters. The Contractor shall provide each site with sufficient brochures and wallet cards to distribute one to each employee, plus ten (10) percent. The number of posters provided at contract start-up will be agreed upon by the Agency and the EAP Contractor.

Quantities will be based upon the number of Agency locations, the number of covered employees, and the needs of the Agency.

Thereafter, and upon request, the EAP Contractor will supply additional copies of brochures, wallet cards, and posters every 18 months. The EAP Contractor will mail brochures, wallet cards and posters third class bulk rate, to the Agency's locations.

Any materials requested beyond those provided, or to locations beyond the first two, will be at the expense-of the Agency.

Supervisor manuals shall be provided for distribution.

ORIENTATION

Initial orientation for employees and supervisors, and annually thereafter as requested by the Agency.

REPORTING REQUIRMENTS

The Contractor's Operations Manager will be an EAP professional, who will serve as the main point of contact for all operational issues throughout the term of the agreement, including the following:

Communication with the Agency Point of Contact and other identified Agency representatives (e.g., Union Representatives, Human Resources staff, Continuity of Operations Plan coordinators, etc.).

Review relevant Agency and EAP Contractor policies and procedures to discuss their effect on program operations, as well as, to identify any inconsistencies with professional best practices, standards, laws, and regulations with the Agency Point of Contact.

Access to Agency policies regarding the EAP, Privacy Act System of Records notices, relevant personnel procedures, Drug-Free Workplace Plan, etc., to identify their impact on the program and its clients, as well as, any incongruities with the EAP Contractor's procedures. Review and changes shall be coordinated with the Agency Point of Contact.

Individuals using the EAP shall be offered a client satisfaction survey. The composite results of the entire consortium are provided in the quarterly report.

The Contractor shall provide a standard, comprehensive report monthly to the COR.

EMPLOYEE ACCESS AND EAP ATTENDANCE

ELIGIBILITY FOR SERVICE

The EAP is available to the employees designated by the Agency.

PARTICIPATION AND JOB SECURITY

EAP participation is voluntary. An employee may privately access the EAP directly by phone or on a walk-in basis where available. An employee’s job shall not be jeopardized solely for requesting counseling assistance from the EAP. Individuals may be referred to the EAP by supervisors based on work performance or conduct deficiencies.

Employees may initiate contact with the EAP or be referred by-supervisor, labor representative, drug-testing program coordinator, Employee Health Physician, or any number of other sources.

SUPERVISORY APPROVALS

Informal Referrals A manager or supervisor may suggest that an employee seek EAP services when the employee’s performance, conduct, or attendance has begun to deteriorate, or when the manager or supervisor learns information that suggests that the EAP might be of assistance to the employee.

Formal EAP Referrals A manager or supervisor may also formally refer an employee to the EAP. A formal EAP referral is in writing, is usually verbally communicated to the employee, and states the performance, conduct, or attendance reasons why the referral is necessary.

ATTENDANCE

Employees are not required to seek permission to meet with an EAP counselor when it is on their own time. Employees may meet with an EAP counselor during their workday by taking approved leave or without a charge to leave, with the permission of their supervisors. Employees, who receive approval to visit an EAP counselor during their workday without a charge to leave, shall be allowed travel time to and from the EAP counselor’s office. Employees working irregular duty hours may have their tour of duty modified to accommodate their EAP attendance. Supervisors granting EAP visits during duty hours without a charge to leave, at an employee’s request, may require confirmation of attendance.

CONFIDENTIALITY AND RECORD-KEEPING

The EAP Contractor must be committed to the highest professional and ethical standards in maintaining the privacy and confidentiality of client information. EAP staff must adhere to the intent and spirit of the laws, policies, and regulations that provide for the protection of personal information. All individuals who utilize EAP services will be informed about the policies and procedures for maintaining confidentiality. In addition, organizations that partner with the EAP are required to adhere to these policies and procedures. Before the release of any confidential information, the client's signature is required. This signature allows for the flow of information between the client, the program, and the requisite organization. Disclosure may occur when there is a danger to self; others, or property, as outlined in the Statement of Understanding signed by the employee and as authorized by law.

EAP client information and records are protected from disclosure under 5 U.S.C. § 552a, the Privacy Act of 1974, Pub. L. No. 93-579 §3, 88 Stat. 1897 (1974) {codified as amended at 5 U.S.C. § 552a (1999)); 42 C.F.R. Part 2 (2001), Confidentiality of Alcohol and Drug Abuse Patient Records ("the Confidentiality Regulations"); and, 45 C.F.R. Parts 160, 162 and 164 (implementing provisions of the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (1996)), as applicable. Depending on the location in which RAP services are provided and the professional credentials of the EAP counselor, additional protection of client information may be provided by state and professional association laws, regulations, and procedures. The EAP Contractor will maintain records in accordance with 68VA05 Privacy Act System of Records Notice that can be found at the following link: http://www.rms.oit.va.gov/SOR_Records/68VA05.asp

RELEASE OF INFORMATION TO SUPERVISORS

Employees may be referred to the EAP by supervisors because of work performance and/or conduct issues. Information about an employee's visit to the EAP will not be released to a supervisor without the employee's written consent, regardless of the nature of the referral, except in very limited situations (e.g., when an employee uses the EAP during work hours, the EAP will confirm that the employee attended an EAP session). Employees are not compelled or required to release information about their visits to the EAP to supervisors. When they choose, to do so, they will sign a consent form that allows for the release of limited information.

RECORD KEEPING AND RECORD OWNERSHIP

The VISN 10 shall retain ownership of all records created by the EAP contractor for the duration of the contract. Upon completion of the contract, all records in the possession of the EAP contractor must be returned to the VISN 10 Records Manager or EAP program manager for appropriate disposition.

Exception: Transfer to another EAP under a new Contract Term. As outlined below, the contractor will be responsible to create a records inventory, file plan and appropriately disposition records that have exceed the records retention period, in accordance with the VA Records Control Schedule and 68VA05 Privacy Act System of Records Notice.

The Contractor shall maintain records in a manner that supports the professional delivery of services and the confidentiality requirements, including storage, contents, and destruction. Active records are under the custody of the Contractor for the length of the Contract.

Inactive records, if they have already been destroyed because their period of maintenance has passed, are not available for transfer to another EAP vendor.

At the completion of the Contract with the Contractor, any active cases may be transferred to another EAP provider with the express permission and instructions from the Contractor staff responsible for the records and the written consent of the clients.

ADDITIONAL REQUIREMENTS

The Contractor shall perform all training required within Attachment I – Training Requirements prior to working with any employees or patients. This training is required for all VA personnel and any person(s) with access to Privacy Information. Training shall be taken via VA’s Talent Management System (TMS) at https://www.tms.va.gov/learning/user/login.jsp. All contractor personnel shall set up a user account and perform the required training. Training shall be completed annually, as required, and all certificates shall be sent to the COR for documentation by the Records Management Officer.

(END OF STATEMENT OF WORK)

B.4 INFORMATION SECURITY IN ACCORDANCE WITH VA HANDBOOK 6500.6 Appendix C – Paragraphs:

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.

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

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

b. 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.

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;

(2) 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

(3) 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 three (3) 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 15 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 vulnerability 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 COTR 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 COTR. 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 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

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…