P09 - 09 -14 -2020 - Updated - ATS PWS.docx

Department of Veterans Affairs Workforce Management and Consulting Office (10A2A7) Veterans Health Administration

PERFORMANCE WORK STATEMENT (PWS)

WEB-BASED APPLICANT TRACKING SYSTEM SUBSCRIPTIONS

User Access and Data Storage to an Existing System Comment by Sparks, Nicholas (VHACLE): While we are removing the term “SaaS’ this work statement still reads as a SaaS and thus, will require FITARA approval based on the new FITARA guidance, see attached.

Please provide either the ARM approval from FITARA or the correspondence from the FITARA group demonstrating the FITARA approval is not required.

NATIONAL RECRUITMENT SERVICE

1. Introduction The Veterans Health Administration (VHA) National Recruitment Service (NRS) has been tasked with the vital mission to use best practices from the private and public sector to recruit for critical health care needs, in addition to providing consultative services to improve recruitment across the Veterans Health Administration (VHA). As a result of these strategies, the volume of candidate leads being received has increased significantly, resulting in thousands of leads received and shared throughout VHA since the start of the Program. In addition, new requests to take on searches continue to grow and with those come the increasing need to be able to quickly manage both new leads and searches in an effective, standardized, and centralized way. To these ends, an off-the-shelf health care-focused Applicant Tracking System (ATS) is a necessary tool to grow the VHA candidate leads database, manage candidates and searches through the recruitment process, track sourcing methods and lower recruitment costs to ensure efficiency and effectiveness. A state-of-the art health care ATS will also interface with external job boards to push out advertising and provide a candidate experience where interested candidates can respond directly through the ATS regarding their interest in VHA positions. Internal users of this ATS will include recruiters and support staff, marketing staff, field HR staff and other key stakeholders in the recruitment process.

2. Scope of Work The contractor shall provide user access licenses and data storage in an existing off-the-shelf web-based ATS to be used by VHA-designated recruitment, management, and support staff working at locations VHA-wide to be used throughout the VHA for lead sharing and provide the contractor’s existing platform for standardized and centralized capturing of leads, tracking, and reporting recruitment activities. Due to large amounts of active and existing data and a need for work-flow continuity, this contract is not to build a from-scratch custom system but is designed to purchase access to an existing one. This PWS outlines specific requirements and capabilities that an existing ATS must meet in order to address the elements mentioned above. For the purposes of this PWS, the Scope of Work includes a contractor providing user access to an existing ATS product that meets the capabilities outlined below, with flexibility for some minor customization that may be needed to an otherwise existing product to meet the full need. The selected health care ATS shall be capable of the following: :

a. Track status and relationships between clients (VISNs/ regions and Sites), their specific job opportunities and all potential candidates.

b. Track the status of recruited candidates through the entire recruitment, interviewing, verification, and closing process.

c. Monitor and allow reporting on the status of fill-times for openings.

d. Manage, report, and provide the ability to assign any and all actionable recruitment functions.

e. Provide marketing functions to include, but not limited to, pushing opportunities out to various job boards, and allowing for prospective applicants to apply directly via the ATS.

3. Performance Details

Period of Performance One (1) base year with four (4) option years.

Contract Type This will be awarded as a firm-fixed price contract.

Place of Performance The primary place of performance shall be the Contractor's facility.

Travel and Per Diem Travel costs will be included in the task order award as a separate, cost-reimbursable, “not to exceed” line item if needed at some point, but no travel costs are anticipated at this time.

The contractor must obtain written approval from the COR/PM before any travel begins, utilizing Section D, Attachment - Travel Authorization Request. Travel and per diem expenses will be reimbursed on an actual expenditures basis in accordance with Federal Travel Regulations and FAR 31.205-46. Travel that occurs without written pre-approval will NOT be reimbursed. The contractor MUST use Section D, Attachment - Travel Authorization Request for travel pre-approval. Other documents or e-mails will NOT be accepted as pre-approval.

In order to be reimbursed for travel, the contractor shall submit supporting documentation that is required by Federal Travel Regulations with invoices for expenses incurred. Expenses for subsistence and lodging will be reimbursed to the contractor only to the extent where an overnight stay is necessary and authorized by Federal Travel Regulations in effect at the time of the stay for the specific location.

The Department of Veterans Affairs (VA) estimates that travel will be only if needed, as outlined in the table below.

Location:

Oklahoma City, OK

Key Personnel - The contractor shall assign a single individual to serve as the primary program manager to support this project. Any changes of key personnel shall require the Contracting Officer’s approval.

4. Overview of Required Services and Features The proposed ATS shall meet the following requirements:

a. Installation/Adaption – No installation will be required - the desired product will operate from vendors’ servers in compliance with VA security and privacy directives and handbooks.

b. Access – Web-based platform with secure measures to ensure integrity of information.

c. Centralized Database – a single accessible, secure applicant tracking system database with ability to search on a wide variety of fields and keywords and with any modified fields to meet VHA needs.

i. Specific search criteria will also include ability to search for candidates by address, occupations, citizenship, specialty, etc.

ii. Fields such as specialties, medical doctors, nurses, state licenses, etc., will be included in the form of drop-down menus for standardization purposes. These health care- specific fields should be already included in the existing system and not require a lengthy custom-building process.

d. Task and To-do List – manage, track, and assign recruiting tasks by date, importance, or subject.

e. Management Reports – provide menu of auto-generated reports to provide recruiters and management with information that includes sourcing medium analysis, recruiter activity (number of searches/candidates working), time to hire, interviews per hire, cost per hire, opportunity status, and candidate status.

f. Importing and Exporting – ability to:

i. Initial import existing data from current ATS into new system, if required. Current ATS contains over 40,000 candidates and their attached documents, and linked positions and site information.

ii. Parse new CVs and resumes, importing vital information into ATS database in PDF, Excel, Word, etc.

iii. Allow for on-line application, by which candidates securely enter their information directly into the ATS database

iv. Data migration of leads from purchased lists and other sources to be mapped and migrated directly into ATS from lists in standard formats (Excel, etc.).

g. Communication & Marketing – ability to:

i. Make progress notes about clients, opportunities, and candidates

ii. Email candidates by selecting email addresses in ATS

iii. Email reports generated by ATS directly from ATS

iv. Record all Emails sent from ATS and link those to specific candidate or opportunity for which Email applies, if possible with VA security protocols

v. Perform mail merge functions and allow for storing and using letter and Email templates

vi. Perform broadcast/bulk Emails based on mailing lists based on search criteria defined by user, if possible with VA security protocols

vii. Push opportunity information out to various job boards used to advertise openings both for sending marketing and opportunity information out, as well as providing a portal through which users of social media can apply directly into the ATS.

h. Customization – Provide multiple options for customizing reports, ATS fields, and other outputs such as interview and reference questions.

i. Parse/Integrate/ Import ability to parse and import ongoing leads received from sources such as LinkedIn, HEALTHeCAREERS, PracticeLink, MDJobSite and other job boards into database, as well as post opportunities from within the ATS to external jobs boards that VHA maintains relationships with (e.g. PracticeMatch, PracticeLink, MDJobsite, 3RNet, etc.).

j. Training – Provide initial training for all new users and any additional training that might be required as part of major updates or changes to the contractor system and, provide supporting documentation such as user manuals and reference guides.

k. Helpdesk Support-Be able to support VHA with the technology implementation and ongoing helpdesk support.

l. Users – 200 users, with the option to add-on future user licenses at a fixed or batch price at that time, if VHA needs expand.

5. Specific Mandatory Tasks/Deliverables

Contract Line Items (CLINS)

Task

Task Name

Task Description

Task

6. Specific Requirements Function Categories (Modules) are outlined below, along with required features for each.

a. Client Module – provide ability to manage VISN (Regional networks) and site (individual medical centers and clinics within a VISN) relationships and groups opportunities linked to each VISN and site.

i. Add, edit, delete or search for an existing client

ii. Add multiple contact methods: phone, fax, pager, cell, emails, mail, etc.

iii. Manage client status along with linked opportunities

b. Opportunity Module – enable user to document an in-depth, consultative opportunity analysis, including the following:

iv. Add, edit, delete, duplicate or find an existing opportunity

v. Add opportunity specific details such as financial package, benefits, and candidate parameters

vi. Add practice specific details

vii. Add area specific details such as facility and community profiles

viii. Add consultative details such as the demand analysis

ix. Manage the entire procurement process (what sourcing mediums will be used and at what cost)

x. Create reusable facility and community profiles for use with other opportunities

xi. View all candidates referred for each opportunity

xii. Create printable/ shareable reports including: overview summary, all opportunity details and referred candidate lists

xiii. Match opportunities to candidates – ability to search for candidates, match opportunities to candidates, and then link the opportunities to those candidates.

1. Results should prioritize candidates matched, by strength of match based on a percentage of best compatibility between what is required by opportunity and what candidate has indicated they desire (geographical preferences, etc.)

c. Candidate Module (Leads Database) – a comprehensive database, including ongoing change of status, notes, correspondence, and uploading of documentation to include the following:

xiv. Candidates able to externally submit their information including contact information and a resume to reach a recruiter.

xv. Add, edit, delete or search existing candidates, have semantic search abilities

xvi. CV parsing and uploading

xvii. Add education, training, and practice experience to candidate records

xviii. Add health care certifications, licensing, and malpractice details in fields specifically tailored to health care practitioner requirements

xix. Conduct multiple candidate and reference interviews saving all documents online

xx. Link to top background and licensing verification sites and saving all results online

xxi. Add and manage candidate notes and related correspondence, including the ability to email directly from the ATS and saving such correspondence as part of the candidate record

xxii. View and modify candidate status

xxiii. Create printable/ shareable reports including: summary overview and all candidate details and status

xxiv. Track candidates interactions and communicate with candidates; show activity taken with each candidate including document uploads, opportunities associated with the candidate

xxv. Ability to share candidates and summaries of their information with non-user hiring officials.

xxvi. Administrators can see and manage workloads

d. Job Posting/Apply Online – Feature by which opportunities created within ATS may be automatically posted to a website accessible by candidates (such as VACareers, etc.), allowing recruiter to maintain control over which opportunities and what information is viewable and allows for responding candidates to apply on-line, populating the ATS with their information and attaching CV and other documents to include:

xxvii. Detailed facility and practice details drawn from information previously entered in the Client and Opportunity module xxviii. Toggle on/off which fields should be viewable online (compensation, bonuses, etc.)

xxix. Links to related community and facility websites

xxx. Graphics (facility and area pictures) and logo

xxxi. Ability for candidates to apply online and attach CVs in a variety of formats

xxxii. Provide resume/CV parsing ability, by which information from resumes and CVs uploaded into the candidate module, populate appropriate data fields and create/update lead records.

e. Marketing Module – Plan and track marketing activities associated both with specific opportunities as well as strategic campaigns and events, such as conferences, job fairs, and global advertising.

xxxiii. Historical reporting of lead sources.

f. Data Export- VHA will retain ownership of all candidates and opportunity data entered into the Applicant Tracking System. The Contractor will provide a method to export all data electronically into an indexed format along with a data dictionary detailing the name of each field, the datatype, and description at the termination of the contract period.

7. Changes to the Performance Work Statement

a. Only the Contracting Officer is authorized to make changes to this PWS; and the Contracting Officer will authorize such changes only through written correspondence. The Contracting Officer Representative (COR) will keep a copy of each change in a project folder along with all other products of the project. The contractor shall bear any and all costs incurred by the contractor through the actions of parties other than the Contracting Officer.

b. The COR and VA Project Manager (PM) or any other individual (including VA or other Government agency employees or employees of other contractors) other than the VA Contracting Officer are not authorized to make any changes of a contractually binding nature to the period of performance, funding and/or any other terms and conditions of any award or order resulting from this solicitation. The COR Appointment Letter stating the COR’s authority and limitations is attached to this PWS and is incorporated into the terms and conditions of any award or order resulting from this solicitation.

8. Government and Contractor Responsibilities

a. The Department of Veterans Affairs (VA) will provide the contractor with copies of documents that the Government is required to provide.

b. The contractor shall request other government documentation deemed pertinent to the work accomplishment directly from the government officials with whom the contractor has contact. The contractor shall consider the PM/COR as the final source for needed government documentation when the contractor fails to secure the documents by other means. The contractor is expected to use common knowledge and resourcefulness in securing all other reference materials, standard industry publications, and related materials that are pertinent to the work.

c. The contractor shall maintain frequent communications with designated Veterans Affairs (VA) staff to conduct work in progress reviews.

9. Other Personnel Considerations

a. Personnel assigned by the contractor to the performance of work on this order shall be acceptable to VA in terms of personal and professional conduct and technical knowledge. Should the assignment to this order of any person by the contractor be deemed to conflict with the interests of VA, or in the event performance is deemed to be unsatisfactory at any time during the life of the contract, the Contracting Officer may notify the contractor and request the person be immediately removed from the assignment. The reason for removal will be documented and a request to receive personnel replacement within three (3) business days of the notification will be made. Replacement personnel qualifications shall be equal to or greater than those of the personnel being replaced. Employment and staffing difficulties will not be justification for failure to meet established schedules.

b. Due to the technical nature of this contract, the contractor is required to maintain the competency level put forth in the original proposal submitted. Should the contractor, at any time during the performance of this contract propose a change in that skill set, the PM and COR must first review and approve the change before it is implemented. The contractor shall submit a resume of qualifications and the Contractor Personnel Change Control form to the PM and COR for all additional direct employees proposed for the project. The PM and COR will approve all contractor employees prior to bringing on duty via Contractor Personnel Change Request Form (Attachment B). If, at any time from date of award to the end of the contract, contractor personnel are no longer available, the VA will approve the qualifications of proposed replacement personnel and will reject individuals who do not meet the qualifications set forth herein. All contractor employees are subject to immediate removal from performance of this contract when they are involved in a violation of the law, VA security, confidentiality requirements, and/or other disciplinary reasons.

c. . The VA will not be liable for further payment of any contractor employee that VA requires the contractor to remove from the performance of this contract. VA's payment liability, for unsuitable contractor employees, ends five working days after contractor's receipt of "removal request.”

10. Quality Assurance Surveillance Plan

Description

Note 1: Significant errors or omissions are defined as deliverables not meeting the intent of the task and the work considered to be within scope of this order.

Note 2: Continued repetitive errors may result in an unacceptable rating on performance report to be used as part of the evaluation criteria on future order competition.

COMPLIANCE AND SECURITY SECTION

508 COMPLIANCE

Requirements for accessibility based on Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d) are determined to be relevant for the following program need: “Applicant Tracking System”.

Section 508 Service Requirements The anticipated information content deliverable is intended to be posted on a website. Delivered information content must consider the specific Section 508 accessibility requirements detailed in 36 CFR Part 1194.22 and the functional performance criteria detailed in 36 CFR 1194 Subpart C.

The anticipated information content deliverable is intended to be made available in a multimedia format. Delivered information content must consider the specific Section 508 accessibility requirements detailed in 36 CFR part 1194.24 and the functional performance criteria detailed in 36 CFR 1194 Subpart C.

Section 508 Acceptance Criteria Supplies or services delivered as a result of this solicitation will be accepted based in part on satisfaction of identified Section 508 requirements for accessibility.

If the deliverable includes features and functions in addition to those identified as requirements, these features and functions also need to conform to relevant Section 508 technical provisions, functional performance criteria, and information, documentation and support.

SECURITY

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.

1. 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.

a. Background Investigation: Position Sensitivity and Background Investigation - The position sensitivity and the level of background investigation commensurate with the required level of access is:

2. 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 onsite 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.

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. 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.

d. 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.

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

1) Vendor must accept the system without the drive;

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

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

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

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

b. Any fixed hard drive on the device must be non-destructively sanitized to the greatest extent possible without negatively impacting system operation. Selective clearing down to patient data folder level is recommended using VA approved and validated overwriting technologies/methods/tools. Applicable media sanitization specifications need to be pre-approved and described in the purchase order or contract.

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

6. SECURITY INCIDENT INVESTIGATION

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

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

c. With respect to unsecured protected health information, the business associate is deemed to have discovered a data breach when the business associate knew or should have known of a breach of such information. Upon discovery, the business associate must notify the covered entity of the breach. Notifications need to be made in accordance with the executed business associate agreement.

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

7. LIQUIDATED DAMAGES FOR DATA BREACH

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

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

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

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

2) Description of the event, including:

a. date of occurrence;

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

3) Number of individuals affected or potentially affected;

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

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

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

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

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

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

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

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

a. 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:

i. Notification;

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

iii. Data breach analysis;

iv. Fraud resolution services, including writing dispute letters, initiating fraud…