36C26119Q0308-0001004.docx

B.3 PERFORMANCE WORK STATEMENT (PWS) (Revised 2-11-19)

1. GENERAL

1.1. SERVICES REQUIRED: Contractor shall provide temporary personnel (phlebotomist) on-site phlebotomy services on an as as-needed basis for the VA Northern California Health Care System (VANCHCS) medical facilities listed below. Contractor personnel will have use of all required patient care equipment, supplies, and computer access for performing services required by this contract. All services shall be provided in accordance with the specifications, terms and conditions contained herein.

1.2 PLACE OF PERFORMANCE: Services will be provided at the following VA Northern California Health Care System medical facilities:

Fairfield VA Outpatient Clinic, 103 Bodin Circle, Travis Air Force Base, Fairfield, CA 94535 Mare Island VA Outpatient Clinic, 201 Walnut Avenue, Vallejo, CA 94592 Martinez VA Outpatient Clinic, 150 Muir Road, Martinez, CA 94553 Oakland VA Outpatient Clinic, 2221 Martin Luther King Jr. Way, Oakland, CA 94612

NOTE: THE ACTUAL PLACE OF DUTY WILL DEPEND ON VA’s NEEDS AS THEY ARISE. PARTICIPATING FACILITIES MAY BE AMENEDED AS NEW FACILITES/CLINICS ARE ADDED OR REMOVED.

1.3. AUTHORITY/POLICY/HANDBOOKS: Health Care Resources in accordance with Title 38 United States Code (USC) 8153 to be furnished by the contractor on behalf of VANCHCS.

1.4. POLICY AND REGULATIONS: Contractor shall comply with all applicable policy and regulations, including, but not limited to the following:

1.4.1. VA Directive 1663: Health Care Resources Contracting - Buying http://www1.va.gov/vapubs/viewPublication.asp?Pub_ID=347

1.4.2. VHA Handbook 1100.18 Reporting And Responding To State Licensing Boards - http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=1364

1.4.3. VHA Handbook 1100.19 Credentialing and Privileging - http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=1806

1.4.4. Privacy Act of 1974 http://vaww.vhaco.va.gov/privacy/Documents/5USC552a.htm

1.5. DEFINITIONS/ACRONYMS

1.5.1 ACO: Administrative Contracting Officer

1.5.2 CAP: College of American Pathologists

1.5.3 CDC: Centers for Disease Control and Prevention

1.5.4 CEU: Continuing Education Unit

1.5.5 CME: Continuing Medical Education

1.5.6 CMS: Centers for Medicare and Medicaid Services

1.5.7 CO: Contracting Officer

1.5.8 COR: Contracting Officer’s Representative

1.5.9 COS: Chief of Staff

1.5.10 CPARS: Contractor Performance Assessment Reporting System

1.5.11 CPRS: Computerized Patient Recordkeeping System

1.5.12 FSMB: Federation of State Medical Boards

1.5.13 HHS: Department of Health and Human Services

1.5.14 HICPAC: Healthcare Infection Control Practices Advisory Committee – a federal advisory committee made up of 14 external infection control experts who provide advice and guidance to the CDC and the Secretary of HHS regarding the practice of health care infection control, strategies for surveillance and prevention and control of health care associated infections in United States.

1.5.15 HIPAA: Health Insurance Portability and Accountability Act

1.5.16 ISO: Information Security Officer

1.5.17 POP: Period of Performance

1.5.18 PWS: Performance Work Statement

1.5.19 QASP: Quality Assurance Surveillance Plan

1.5.20 QMP: Quality Management Program

1.5.21 SPE: Senior Procurement Executive

1.5.22 TJC: The Joint Commission

1.5.23 VA: Department of Veterans Affairs

1.5.24 VANCHCS: Veterans Affairs Northern California Health Care System

1.5.25 VetPro: A Federal web based credentialing program for health care providers

1.5.26 VHA: Veterans Health Administration

2. QUALIFICATIONS:

2.1. STAFF/FACILITY: The contractor will be responsible for ensuring that each Phlebotomist providing services under this contract is fully trained and completely competent to perform the required services covered by this contract.

2.2. CONTRACTOR PERSONNEL REQUIREMENTS/SPECIFICATIONS: Contractor shall ensure that all contract personnel meet the qualifying criteria outlined in this section.

2.2.1. Phlebotomist:

2.2.1.1. Certification: Contract personnel must hold and maintain a current certificate by the State of California as a Certified Phlebotomy Technician.

2.2.1.2. Current Curriculum Vitae: a review of individual education and professional qualifications must be available for VANCHCS’ review to assure appropriate placement in a medical discipline commensurate with contract personnel’s qualifications and experience.

2.2.1.3. Dress Code: Contract personnel will abide by the facility and service dress code, which will be provided during initial orientation and training. A lab coat will be provided as personal protective equipment and will be laundered by the VA.

2.2.1.4. Health Tests: Contract personnel shall provide proof of the currency (within one (1) year) of the following tests prior to working any shift; tuberculosis testing, rubella testing and immunizations. Other tests may be required by the local facility.

2.2.1.5. Health Restrictions: Contract personnel will have no health or physical disability restrictions that interfere with the performance of duties.

2.2.1.6. Competencies: The Contractor will keep on file validated competencies and training program records, to include HIPAA, of all contract personnel and shall maintain a system to make them available to VANCHCS on a 24 hour, 7 day a week basis.

2.2.1.7. Experience: Contract personnel will have a minimum of one (1) year direct patient care experience performing venipunctures in a clinic or hospital setting.

2.2.1.8. Computer Literacy: Contract personnel shall have the knowledge and ability to use computers and technology efficiently.

2.3. TECHNICAL DIRECTION: The qualifications of Contractor personnel are subject to review by the Laboratory Supervisor or his/her designee. A COR may be appointed, however, only the CO is authorized to consider any contract modification request during the administration of the resultant contract.

2.4. NON PERSONAL SERVICES: The parties agree that The Contractor, all Contractor staff, agents and sub-Contractors shall not be considered VA employees for any purpose.

2.4.1. Inherently Governmental Functions: Contractor and Contractor personnel shall not perform inherently governmental functions. This includes, but is not limited to, determination of agency policy, determination of federal program priorities for budget requests, direction and control of government employees, selection or non-selection of individuals for federal government employment including the interviewing of individuals for employment, approval of position descriptions and performance standards for federal employees, approving any contractual documents, approval of federal licensing actions and inspections, and/or determination of budget policy, guidance, and strategy.

2.4.2. No Employee status: The Contractor shall be responsible for protecting the Contractor's staff furnishing services. To carry out this responsibility, The Contractor shall provide or certify that the following is provided for all their staff providing services under the resultant contract:

• Worker's compensation

• Professional liability insurance

• Health examinations

• Income tax withholding, and

• Social Security payments.

2.4.3. Tort Claims: The Federal Tort Claims Act does not cover Contractors or Contractor's personnel. When a Contractor or a member of their staff has been identified as a provider in a tort claim, The Contractor is responsible for notifying their legal counsel and/or insurance carrier. Any settlement or judgment arising from a Contractor's (or Contractor's) staff action or non-action is the responsibility of The Contractor and/or insurance carrier.

2.5. KEY PERSONNEL AND EMERGENCY SUBSTITUTIONS: The Contractor shall assign to this contract the following key personnel: all personnel working on this contract must have Contracting Officer (CO) approval once a clearance submittal by a contract employee has been successfully accepted by and access granted by the (CO).

2.5.1. Right of Refusal: The Government reserves the right to reject any Contractor personnel and refuse them permission to provide services who fail to perform in accordance with the solicitation requirements and who’s personal or professional conduct jeopardized patient care or interferes with the regular and ordinary operation of the facility.

2.5.2. Acceptance of Personnel: Contractor shall ensure that all contract personnel have met qualifying criteria, including current and valid licenses and certifications. Ultimately, the decision to reject and accept Contract Staff rests with the Department of Veterans Affairs.

2.5.3. Healthcare Industry Standards: Contractor personnel shall perform services in accordance with ethical, professional and technical standards of the healthcare industry consistent with VA policy, regulations, procedures and protocol. Contractor Personnel shall be technically proficient in the skills necessary to fulfill the requirements stated herein.

2.5.4. Personal Hygiene and Clothing: In performance of this contract, Contractor personnel shall be neat, clean, well-groomed and shall otherwise exercise good personal hygiene. Appropriate and professional attire shall be worn at all times while on duty at VANCHCS facilities.

2.5.5. Health Restrictions: Contractor’s personnel shall have no health or physical disability restrictions which interfere with the performance of duties and shall have a current physical.

2.5.6. Training and competency (ACLS, BLS, CPRS and VA MANDATORY): Contractor personnel shall meet all VA educational requirements and mandatory course requirements defined herein; all training must be completed as required by the VA. All contractor personnel will have to maintain competency and will be assessed periodically as required by regulatory agencies such as CAP and/or The Joint Commission.

2.5.7. Standard Personnel Testing (PPD, etc.): Contractor shall provide to the CO and COR proof of the following tests for contractor personnel within five (5) calendar days after contract award and prior to the first duty shift. Tests shall be current within the past year.

2.5.8. Tuberculosis Testing: Contractor shall provide proof of a negative reaction to PPD testing for all contractor personnel. A negative chest radiographic report for active tuberculosis shall be provided in cases of positive PPD results. The PPD test shall be repeated annually.

2.5.9. Rubella Testing: Contractor shall provide proof of immunization for all contractor personnel for measles, mumps, rubella or a rubella titer of 1.8 or greater. If the titer is less than 1.8, a rubella immunization shall be administered with follow-up documentation to the COR.

2.5.10. OSHA regulation concerning occupational exposure to bloodborne pathogens: Contractor shall provide generic self-study training for all contract personnel; provide their own Hepatitis B vaccination series at no cost to the VA if they elect to receive it; maintain an exposure determination and control plan; maintain required records; and ensure that proper follow-up evaluation is provided following an exposure incident. VANCHCS shall notify the Contractor of any significant communicable disease exposures as appropriate. Contractor shall adhere to current CDC/HICPAC Guideline for Infection Control in health care personnel (as published in American Journal for Infection Control – AJIC 1998; 26:289-354 http://www.cdc.gov/hicpac/pdf/InfectControl98.pdf ) for disease control. Contractor shall provide follow up documentation of clearance to return to the workplace prior to their return.

3. HOURS OF OPERATION AND SCHEDULE:

3.1. WORK HOURS:

Regular working hours for VANCHCS facilities are typically from 7:30 a.m. to 5:30 p.m., Monday through Friday, excluding federal holidays. However, the Martinez VA campus also operates an inpatient facility which is on weekends and holidays from 7:00 a.m. to 10:00 p.m. While Contractor personnel will normally work Monday through Friday, there may be times when VANCHCS requires Contractor personnel to work at the Martinez facility on weekends or holidays. However, in no case will any Contractor personnel work more than 40 hours in one week.

3.2. SCHEDULE:

Contractor personnel will be scheduled for up to eight hour shifts with a 30-minute lunch and two 15-minute breaks depending on the needs of VANCHCS.

The contract Phlebotomist shall report to the VANCHCS Laboratory Supervisor. Work assignments will normally be made by Laboratory Supervisor or designee and will be based upon the needs of VANCHCS. The contract Phlebotomist shall coordinate any work schedule changes through the VANCHCS Laboratory Supervisor.

VANCHCS will establish a record keeping system of contractor hours worked to include maintaining a timesheet.

3.3. FEDERAL HOLIDAYS:

The following holidays are observed by the Department of Veterans Affairs:

Or, any other day specifically declared by the President of the United States to be a National Holiday. When a holiday falls on a Sunday, the following Monday will be observed as a National Holiday. When a holiday falls on a Saturday, the preceding Friday is observed as a National Holiday by U.S. Government agencies. An administrative closure of federal offices by Executive Order is not a national holiday for the purpose of holiday pay.

3.4. SHIFT CANCELLATION: The COR or designee will give the Contractor notification of available shifts no less than one (1) week in advance for scheduled shifts, exclusive of emergencies. Contractor personnel may be released from if their services are no longer required, however contract personnel will only be paid for actual hours worked. Any tour of duty for Contractor’s personnel may be canceled prior to assigned shift (without penalty to VA). If Contractor personnel are released from duty prior to the end of the scheduled shift VA will notify the Contractor and Contactor will only be paid for actual hours worked.

3.5. TARDINESS/NO SHOWS: If Contractor personnel are tardy, payment to the Contractor will be paid only for actual hours worked. Unacceptable patterns of tardiness or no shows may result in a poor performance rating of the Contractor and/or Contractor personnel may be prohibited from performing services at VA, which may adversely affect future government contracts. After one (1) hour of tardiness, a Contractor’s employee will be considered a no show.

3.6. RECORD KEEPING SYSTEM: The VA has established and will maintain a record keeping system for verification of actual hours worked by Contractor’s employee each day. The Contractor’s personnel must be present at the VANCHCS sites and actually be performing services required by the agreement during the scheduled work period to be paid for that period. Contract personnel will report to the supervisor or designee in and out at the Laboratory as a method of accounting for hours worked.

4. CONTRACTOR RESPONSIBILITIES

4.1. SERVICES REQUIRED: Contractor shall provide certified Phlebotomists to augment in-house staffing in accordance with the requirements herein. Contactor’s personnel shall provide staffing for shifts as designated by the Laboratory Supervisor or his/her assigned representative.

Introduction: In area of assignment within the VANCHCS, the Phlebotomist provides direct and indirect care. The position requires the ability to follow directions; determine priorities as they relate to patient care needs within the scope of a Certified Phlebotomist; organization skills; and observational skills.

Organizational Relationship: The Certified Phlebotomist is subject to the professional direction of the VA Laboratory Supervisor or designee.

4.1.1. Functions of the Certified Phlebotomist: The Phlebotomists shall provide the following services in accordance with VANCHCS policies and procedures:

1. Verify patient identified by confirming two (2) patient identifiers, per VA policy (patient name, date of birth and/or social security number) prior to accepting or collecting specimens for processing or testing performing. Differences in patient identification will be reconciled and corrected before drawing blood or accepting patient samples.

2. Perform venipuncture by following published Laboratory procedures.

3. Collect adequate and properly labeled specimens.

4. Properly determine current clinician orders in the computer, per Laboratory procedures.

6. Perform waived and/or non-waived testing.

7. Process specimens for testing and/or shipment to another laboratory for testing.

8. Make contacts with patients, relatives, staff members, and coworkers in a concerned, compassionate and helpful manner.

9. Promote a harmonious and cooperative working environment in their interaction with co-workers and supervisors.

5. STANDARDS OF PRACTICE: Contractor shall be responsible for meeting or exceeding VA and Joint Commission or the College of American Pathologists (CAP) standards.

5.1. REGULATORY AND OTHER SPECIAL REQUIREMENTS: The Contractor will be responsible to ensure that Contracted employees providing work on this contract are fully trained and completely competent to perform the required work. The Contractor is required to maintain records that document competence/performance level of Contractor employees working on this contract in accordance with CAP, The Joint Commission and other regulatory body requirements.

6. MEDICAL RECORDS

6.1 AUTHORITIES: Contractor personnel shall be considered as part of the Department Healthcare Activity and shall comply with the U.S.C.551a (Privacy Act), 38 U.S.C. 5701 (Confidentiality of Claimants Records), 5 U.S.C. 552 (FOIA), 38 U.S.C. 5705 (Confidentiality of Medical Quality Assurance Records) 38 U.S.C. 7332 (Confidentiality of Certain Medical Records), Title 5 U.S.C. § 522a (Records Maintained on Individuals) as well as 45 C.F.R. Parts 160, 162, and 164 (HIPAA).

6.1 HIPAA: This contract and its requirements meet exception in 45 CFR 164.502(e), and do not require a BAA in order for Covered Entity to disclose Protected Health Information to: a health care provider for treatment. Based on this exception, a BAA is not required for this contract. Treatment and administrative patient records generated by this contract or provided to the Contractors by the VA are covered by the VA system of records entitled ‘Patient Medical Records-VA’ (24VA19). Contractor generated VA Patient records are the property of the VA and shall not be accessed, released, transferred, or destroyed except in accordance with applicable laws and regulations. Contractor shall ensure that all records pertaining to medical care and services are available for immediate transmission when requested by the VA. Records identified for review, audit, or evaluation by VA representatives and authorized federal and state officials, shall be accessed on-site during normal business hours or mailed by the Contractor at his expense. Contractor shall deliver all final patient records, correspondence, and notes to the VA within twenty-one (21) calendar days after the contract expiration date.

6.2 DISCLOSURE: Contractor personnel may have access to patient medical records: however, Contractor shall obtain permission from the VA before disclosing any patient information. Subject to applicable federal confidentiality or privacy laws, the Contractor, or their designated representatives, and designated representatives of federal regulatory agencies having jurisdiction over Contractor, may have access to VA’s records at VA’s place of business on request during normal business hours, to inspect and review and make copies of such records. The VA will provide the Contractor with a copy of VHA Handbook 1907.1, Health Information management and Health Records and VHA Handbook 1605.1, Privacy and Release of Information http://vaww.va.gov/vhapublications/ViewPublication.asp?pub_ID=1423. The penalties and liabilities for the unauthorized disclosure of VA patient information mandated by the statutes and regulations mentioned above, apply to the Contractor.

Professional Standards for Documenting Care: Care shall be appropriately documented in medical records in accordance with standard commercial practice and guidelines established by VHA Handbook 1907.01 Health Information Management and Health Records: http://vaww.va.gov/vhapublications/ViewPublication.asp?pub_ID=3088 and all guidelines provided by the VAMC.

6.3 RELEASE OF INFORMATION: The VA shall maintain control of releasing any patient medical information and will follow policies and standards as defined, but not limited to Privacy Act requirements. In the case of the VA authorizing the Contractor to release patient information, the Contractor in compliance with VA regulations, and at his/her own expense, shall use VA Form 3288, Request for and Consent to Release of Information from Individual’s Records, to process “Release of Information Requests.” In addition, the Contractor shall be responsible for locating and forwarding records not kept at their facility. The VA’s Release of Information Section shall provide the Contractor with assistance in completing forms. Additionally, the Contractor shall use VA Form 10-5345, Request for and Authorization to Release Medical Records or Health Information, when releasing records protected by 38 U.S.C. 7332. Treatment and release records shall include the patient’s consent form. Completed Release of Information requests will be forwarded to the VA Privacy Officer at the following address:

VA Northern California Health Care System Privacy Officer

001/PO/FOIA/FF

103 Bodin Cir., Bldg. 778 Travis AFB, CA 94535

7. PERFORMANCE STANDARDS, QUALITY ASSURANCE AND QUALITY IMPROVEMENT

7.1. PERFORMANCE MONITORING:

A. Performance Standards and Methods of Surveillance: Contractor shall comply with the required standards as outlined in the QASP. The QASP shall be attached to the resultant contract and shall define the methods and frequency or surveillance conducted.

B. REQUIRED REGISTRATION WITH CONTRACTOR PERFORMANCE ASSESSMENT REPORTING SYSTEM (CPARS) C. The Contractor shall perform services under this contract in accordance with the ethical, professional, and technical standards of the healthcare industry, and must meet, or exceed, the current quality assurance standards recognized by Joint Commission and mandated by VHA quality assurance policies and/or performance measures. A copy of these standards, policies, and performance measures may be viewed by contract personnel in the Chief Technologist office.

D. The Contractor will not participate in, nor be a party to, any activities which are in conflict with Federal and/or State guidelines. In the event the Contractor encounters said conflicting situations, the Contractor will notify the COR or the Contracting Officer to resolve such issues. The Contracting Officer will document and be responsible for resolution of any such situations. Neither the VA nor the Contractor will be responsible for any delays or failures to perform due to causes beyond each party's control.

8. GOVERNMENT RESPONSIBILITIES

8.1 OVERSIGHT OF SERVICE/PERFORMANCE MONITORING:

8.1.1. Contract Administration/Performance Monitoring: After award of the contract, all inquiries and correspondence relative to the administration of the contract shall be addressed to the assigned Contracting Officer Representative:

8.1.2 CO RESPONSIBILITIES:

8.1.2.1. The CO is the only person authorized to approve changes or modify any of the requirements of this contract. The Contractor shall communicate with the CO on all matters pertaining to contract administration. Only the CO is authorized to make commitments or issue any modification to include (but not limited to) terms affecting price, quantity or quality of performance of this contract.

8.1.2.2. The CO shall resolve complaints concerning Contractor relations with the Government employees or patients. The Contracting Officer is final authority on validating complaints. In the event the Contractor effects any such change at the direction of any person other than the CO without authority, no adjustment shall be made in the contract price to cover an increase in costs incurred as a result thereof.

8.1.2.3. In the event that contracted services do not meet quality and/or safety expectations, the best remedy will be implemented, to include but not limited to a targeted and time limited performance improvement plan; increased monitoring of the contracted services; consultation or training for Contractor personnel to be provided by the VA; replacement of the contract personnel and/or renegotiation of the contract terms or termination of the contract.

8.1.3. COR RESPONSIBILITIES:

8.1.3.1. The COR shall be the VA official responsible for verifying contract compliance. After contract award, any incidents of Contractor noncompliance as evidenced by the monitoring procedures shall be forwarded immediately to the Contracting Officer.

8.1.3.2. The COR will be responsible for monitoring the Contractor’s performance to ensure all specifications and requirements are fulfilled. Quality Improvement data that will be collected for ongoing monitoring includes but is not limited to: enter data that may be collected.

8.1.3.3. The COR will maintain a record-keeping system of services. The COR will review this data monthly when invoices are received and certify all invoices for payment by comparing the hours documented on the VA record-keeping system and those on the invoices. Any evidence of the Contractor's non-compliance as evidenced by the monitoring procedures shall be forwarded immediately to the CO.

8.1.3.4. The COR will review and certify monthly invoices for payment. If, in the event the Contractor fails to provide the services in this contract, payments will be adjusted to compensate the Government for the difference.

8.1.3.5. All contract administration functions will be retained by the VA.

9. SPECIAL CONTRACT REQUIREMENTS

9.1. BILLING:

9.1.1. Invoice requirements and supporting documentation: Supporting documentation and invoice must be submitted no later than the 20th workday of the month. Subsequent changes or corrections shall be submitted by separate invoice. In addition to information required for submission of a “proper” invoice in accordance with FAR 52.212-4 (g), all invoices must include:

9.1.1.1. Name and Address of Contractor

9.1.1.2. Invoice Date and Invoice Number

9.1.1.3. Contract Number and Purchase/Task Order Number

9.1.1.4. Date of Service

9.1.1.5. Contract technician(s) (Name of Contractor’s employee)

9.1.1.6. Hourly Rate

9.1.1.7. Quantity of hours worked

9.1.1.8. Total price

9.1.2. Invoices will be for days/hours worked. The Contractor shall be paid only for actual work performed onsite. Contract providers shall be responsible for reporting time worked accurately.

9.2. VENDOR ELECTRONIC INVOICE SUBMISSION METHODS

9.2.1. Facsimile, e-mail, and scanned documents are not acceptable forms of submission for payment requests. Electronic form means an automated system transmitting information electronically according to the accepted electronic data transmission methods below:

9.2.2. VA’s Electronic Invoice Presentment and Payment System – The FSC uses a third-party contractor, OB10, to transition vendors from paper to electronic invoice submission. Please go to this website: http://ob10.com/us/en/veterans-affairs-us/ to begin submitting electronic invoices, free of charge.

9.2.3. A system that conforms to the X12 electronic data interchange (EDI) formats established by the Accredited Standards Center (ASC) chartered by the American National Standards Institute (ANSI). The X12 EDI Web site (http://www.x12.org ).

9.2.4. The Contractor may contact FSC at the phone number or email address listed below with any questions about the e-invoicing program or OB10:

9.2.1.1. OB10 e-Invoice Setup Information: 1-877-489-6135

9.2.1.2. OB10 e-Invoice email: VA.Registration@ob10.com

9.2.1.3. FSC e-Invoice Contact Information: 1-877-353-9791

9.2.1.4. FSC e-invoice email: vafsccshd@va.gov

10. INFORMATION SECURITY AND MANDATORY TRAINING

10.1. 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

10.2. ACCESS TO VA INFORMATION AND VA INFORMATION SYSTEMS:

10.2.1. 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.

10.2.2. 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.

10.2.3. The contractor or subcontractor must notify the CO 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 CO must also be notified immediately by the contractor or subcontractor prior to an unfriendly termination.

10.3. VA INFORMATION CUSTODIAL LANGUAGE

10.3.1. 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).

10.3.2. 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.

10.3.3. 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.

10.4. SECURITY INCIDENT INVESTIGATION

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

10.4.2. 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.

10.4.3. 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.

10.4.4. 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.

10.5. LIQUIDATED DAMAGES FOR DATA BREACH

10.5.1. 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.

10.5.2. 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.

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

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

· Description of the event, including:

· Date of occurrence;

· Data elements involved, including any PII, such as full name, social security number, date of birth, home address, account number, disability code;

· Number of individuals affected or potentially affected;

· Names of individuals or groups affected or potentially affected;

· 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;

· Amount of time the data has been out of VA control;

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

· Known misuses of data containing sensitive personal information, if any;

· Assessment of the potential harm to the affected individuals;

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

· 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:

· Notification;

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

· Data breach analysis;

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

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

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

10.6. TRAINING

10.6.1. 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:

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

· Successfully complete the VA Cyber Security Awareness and Rules of Behavior training and annually complete required security training;

· Successfully complete the appropriate VA privacy training and annually complete required privacy training; and

· Successfully complete any additional cyber security or privacy training, as required for VA personnel with equivalent information system access.

· The Contractor shall provide to the COR and/or the COR a copy of the training certificates and certification of signing the Contractor Rules of Behavior for each applicable employee within one week of the initiation of the contract and annually thereafter, as required.

· 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.

10.6.2. Security Requirements for Unclassified Information Technology Resources: The contractor, their personnel, and their subcontractors shall be subject to the federal laws, regulations, standards, and VA Directives and Handbooks regarding information and information system security as delineated in this contract.

10.6.3. Security Accreditation Package (C&A): The C&A requirements do not apply and a Security Accreditation Package is not required.

10.6.4. Training Management System (TMS): Mandatory VA Training will be accomplished by the use of TMS, a system that offers Web-based training to VA employees and its partners. As contract employees, the contractor personnel must self-enroll for a profile on the VA TMS by visiting https://www.tms.va.gov/plateau/user/login.jsp.

10.6.5. All contract personnel accessing any other VA information/computer system will be required to complete VA Information Security Awareness, Rules of Behavior, Privacy Act, and HIPAA training and sign all applicable computer user agreements (e.g. Rules of Behavior) prior to accessing VA systems. All employees, including contract personnel are required to complete this training annually. The COR will be responsible for ensuring and documenting that this requirement is satisfied. Contract personnel shall maintain, access, release, and otherwise manage the information contained on VA information/computer systems in accordance with all VA/VHA security policies, applicable VA confidentiality statutes (Title 38 U.S.C. Section 5701 and Title 38 U.S.C Section 7332) and the respective regulations implementing these statutes, and Federal statutes and/or regulations applicable to federal agency records. Copies of this information discussed in the aforementioned paragraphs can be provided to the Contractor and contract personnel upon request.

10.6.6. Contract personnel with access to VA information/computer systems shall take reasonable safeguards, both physical and electronic, to safeguard the information and prevent unauthorized disclosures. Should contract personnel know, or suspect, that VA information/computer security was compromised or that VA information was, or could possibly be, disclosed to an unauthorized party, contract personnel must immediately report such knowledge or suspicion to the COR, who will then immediately notify the appropriate VA officials.

10.6.7. If contract personnel are authorized by VA to access VA information/computer systems remotely via non-VA issued computers, the Contractor will ensure that such computers are consistent with VA requirements, and will upgrade those computers (hardware and/or software) if instructed to do so by VA in order to ensure compatibility and security when VA information/computer systems are accessed by the end user. Individually identifiable health information will not reside on the contractor’s computer hard drives. After contract award, VA reserves the right to inspect the contractor’s facilities, installations, operations, documentation, records, databases, and computers to ensure these requirements are met.

10.6.8. The Contractor shall make its internal policies and practices regarding the safeguarding of medical and/or electronic information available to VA, and any other federal agencies with enforcement authority over the maintenance and safeguard of such records, upon request.

10.6.9. The Contractor shall follow all of the previously mentioned statutes and respective regulations implementing these statutes as well as VA Directive 6504 – Restrictions on Transmission, Transportation and Use of, and Access to VA Data Outside a VA Facility, VA Directive 6601 – Removable Storage Media, and any other VA/VHA policies and procedures governing the information discussed in this section of the contract. Copies of the information discussed in the aforementioned paragraphs may be viewed by contract personnel in the Office of Information Security (see the Information Security Officer).

10.6.10. Any changes in the laws, regulations, or VA/VHA policies or procedures governing the information covered by this section of the contract, during the term of this contract, shall be deemed to be incorporated into this contract.

10.6.11. In performance of official duties, Contractor’s staff have regular access to printed and electronic files containing sensitive data, which must be protected under the provisions of the Privacy Act of 1974 (5 U.S.C. 552a), and other applicable laws, Federal Regulations, Veterans Affairs statutes, policies and regulations. Contractor’s staff are responsible for (1) protecting that data from unauthorized release or from loss, alteration, or unauthorized deletion and (2) following all applicable regulations and instructions regarding access to computerized files, release of access codes, etc., as set out in a computer access agreement which contract provider(s) signs.

10.6.12. Rules of Behavior for Automated Information Systems: Contractor’s staff members having access to VA Information Systems are required to read and sign a Rules of Behavior statement which outlines rules of behavior related to VA Automated Information Systems. The COR will provide, through the facility ISO, the Rules of Behavior to the Contractor for the respective facility.

10.7. OTHER MANDATORY VA TRAINING AS REQUIRED. Upon reporting to the Sacramento VAMC, VANCHCS will inform the Contractor of any other required training by the COR.

11. RECORDS MANAGEMENT

The following standard items relate to records generated in executing the contract and should be included in a typical Electronic Information Systems (EIS) procurement contract:

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

11.2. 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.

11.3. 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.

11.4. 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.

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

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

11.7. 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.

11.8. 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.].

11.9. 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.

11.10. 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.

(End Performance Work Statement)