36C77625Q0036.docx

DEPARTMENT OF VETERANS AFFAIRS

INSTITUTE FOR LEARNING, EDUCATION, AND DEVELOPMENT (ILEAD)

STATEMENT OF WORK

GENERAL INFORMATION

Program Contracting Activity Central

6100 Oak Tree Blvd, Suite 490 Independence OH 44131

POINT OF CONTACT*

Contracting Specialist Wayne Klotzbach wayne.klotzbach@va.gov

ADDITIONAL INFORMATION

EMAIL DESCRIPTION

Special Notice Special Notice

DESCRIPTION

Special Notice

Notice of Intent to Sole Source

Myers ProTrack traffic software system for (on air program scheduling).

Contract-Opportunities: 36C77625Q0036.

The Department of Veterans Affairs (VA), Program Contract Activity Central (PCAC) intends to solicit and negotiate with only one source under the authority of FAR 13.106-1(b) “Soliciting from a Single Source.”

The VA intends to solicit and negotiate with Myers Information Systems, Inc; 110 Elm Street, Westfield, MA 01060; to provide the ProTrack software system and Services at the ILEAD facility at 1 Jefferson Barracks Drive, Building 56, St. Louis, MO 63125. Myers will provide Off-site maintenance support for the ProTrack Traffic software System on a 24/7/365-day basis. This maintenance support shall be obtainable via telephone, email, and/or Virtual Private Network (VPN) connection as required to provide a solution to the problem within 24 hours for critical and configuration and management issues, and within 72 hours for other non-critical issues, unless major code modification and regression testing is required, or hardware replacement is required.

The ProTrack Software System is a proprietary system and Myers Information Systems, Inc. is the sole authorized provider of maintenance and support service.

The NAICS code for this procurement is 541519 and Size Standard is $34 Million.

This notice of intent is not a request for competitive proposals. No solicitation document is available and telephone requests will not be accepted. However, any responsible source who believes it is capable of meeting the requirement may submit a capability statement, proposal, or quotation, which shall be considered by the agency, only if received by the closing date and time of this notice. A determination not to compete the proposed requirement based upon the responses to this notice is solely within the discretion of the government.

Responses to this notice are due on or before November 13, 2024 at 10:00 AM ET by email to the point of contact wayne.klotzbach@va.gov or james.gantar@va.gov.

1. Title of Project: ProTrack SLA

2. Background:

The Department of Veterans Affairs (VA), Institute for Learning, Education, and Development (ILEAD) produces and distributes educational programs for all VA employees. The programs are distributed by various paths, satellite, Web based, Training Management System (TMS) etc.

The satellite distribution workflow for the VAKN (VA Knowledge Network) uses Myers/ProTrack traffic software system for the on air program scheduling. The two programing channels are VAOne and VNN (Veterans News Network). Both are 24/7/365 content delivery channels. So, its imperative that the traffic system is online and functional 24/7/365. The Myers/ProTrack traffic system software is a proprietary system that can only be supported by Myers/ProTrack.

3. Objectives: This project is for the remote technical support of the Myers/ProTrack traffic system software. This remote support shall be given on a 24/7/365 basis via VPN, telephone or Teams meetings or emails.

4. Scope of Work: The Contractor shall provide the following support services:

a. Off-site maintenance support for the ProTrack Traffic software System on a 24/7/365-day basis. This maintenance support shall be obtainable via telephone, email, and/or Virtual Private Network (VPN) connection as required to provide a solution to the problem within 24 hours for critical and configuration and management issues, and within 72 hours for other non-critical issues, unless major code modification and regression testing is required, or hardware replacement is required. The Contractor shall contact the local service ticket originator and the Contracting Officer Representative (COR)/Program Manager (PM) within one business day of the service ticket origination.

b. Users and Administrators support in resolving problems encountered using the ProTrack traffic software System. The Contractor shall provide a solution to the problem within 24 hours for critical and configuration and management issues, and within 72 hours for other non-critical issues, unless major code modification and regression testing is required for the request. If resolution of issues cannot be resolved remotely within the five business days, the Contractor may be required to provide on-site engineer support.

c. Installation and deployment of all ProTrack manufacturer patches, fixes, and workarounds. Prior to any maintenance actions, the Contractor shall identify and coordinate with the COR and hosting environment POC for approval to implement any maintenance actions to ensure any updates, patches and fixes will not impact the operations of the hosting environment.

d. The Contractor shall coordinate with the COR to schedule maintenance activities. Maintenance activities shall occur during off business hours (after 7PM and before 7AM weekdays) or weekends.

The Contractor shall document all maintenance actions in the ticket closeout Report.

5. Applicable Documents: None

6. Mandatory Tasks and Deliverables: The Contractor shall perform the mandatory tasks and provide the specific deliverables within the performance period stated in this Statement of Work (SOW). If, for any reason, any deliverable cannot be delivered on time according to the below schedule, the Contractor shall provide a written explanation to the Program Manager (PM)/Contracting Officer’s Representative (COR) three days prior to deliverable due date. This written transmittal shall include a firm commitment of when the work shall be completed. This transmittal to the PM/COR shall cite the reasons for the delay and the impact on the overall project.

The Contractor shall not commit or permit any act that interferes with the performance of work awarded to another Contractor or with the performance of Government employees. In any case where, in the course of fulfilling the contract requirements, the Contractor disturbs any work guaranteed under another separate contract, the Contractor must restore such disturbed work.

Task 6.1:

6.1.1 Off-site maintenance support for the ProTrack Traffic software System on a 24/7/365-day basis. This maintenance support shall be obtainable via telephone, email, and/or Virtual Private Network (VPN) connection as required to provide a solution to the problem within 24 hours for critical and configuration and management issues, and within 72 hours for other non-critical issues, unless major code modification and regression testing is required, or hardware replacement is required. The Contractor shall contact the local service ticket originator and the Contracting Officer Representative (COR)/Program Manager (PM) within one business day of the service ticket origination.

6.1.2 Users and Administrators support in resolving problems encountered using the ProTrack traffic software System. The Contractor shall provide a solution to the problem within 24 hours for critical and configuration and management issues, and within 72 hours for other non-critical issues, unless major code modification and regression testing is required for the request. If resolution of issues cannot be resolved remotely within the five business days, the Contractor may be required to provide on-site engineer support.

6.1.3 Installation and deployment of all ProTrack manufacturer patches, fixes, and workarounds. Prior to any maintenance actions, the Contractor shall identify and coordinate with the COR and hosting environment POC for approval to implement any maintenance actions to ensure any updates, patches and fixes will not impact the operations of the hosting environment.

6.1.4 The Contractor shall coordinate with the COR to schedule maintenance activities. Maintenance activities shall occur during off business hours (after 7PM and before 7AM weekdays) or weekends. The Contractor shall document all maintenance actions in the ticket closeout Report.

6.1 Deliverable:

A. Service ticket close out report Table 1, Mandatory Deliverable Table

Due Date

7. Evaluated Optional Tasks and Deliverables: NA

8. Quality Control:

8.1 Performance Monitoring: Contractor’s performance will be monitored with specific performance standards used for monitoring and measuring the Contractor’s performance (see Table 1 below). The PM/COR will perform observations inspection of the services covered under the contract.

The PM/COR will certify receipt of services and/or goods and recommends acceptance of the services/deliverables. This process will be used for approval of payment for the Contractor’s invoices and will serve as the mechanism to document that the overall performance of the Contractor has been acceptable for the period covered by the invoice.

Table 1. Performance Requirements Summary (PRS) The deliverables are shown below. The Performance Standard is defined as Work being completed within established timeframes.

9. Government-Furnished Equipment (GFE)/Government Furnished Information (GFI):

The Government will provide a GFE laptop if deemed needed by the contractor to successfully execute the requirements of the contract. will be determined on a case by case bases.

10. Performance Details:

10.1 Period of Performance: The period of performance shall be one year from date of contract award. The government also requires four additional one-year option periods for continued service support.

10.2. Place of Performance: Work shall be performed at the ILEAD facility at 1 Jefferson Barracks Drive Building 56, St. Louis, MO. 63125.

10.3 Observance of Government Holidays. There are 10 Federal holidays set by law (USC Title 5 Section 6103). Under current definitions, four are set by date:

If any of the above falls on a Saturday, then Friday shall be observed as a holiday. Similarly, if one falls on a Sunday, then Monday shall be observed as a holiday. The other six holidays are set by a day of the week and month:

10.4. Type of Contract: The Government anticipates award of a Firm Fixed-Price contract.

10.5. Travel: Travel and per diem are cost reimbursable items, and they shall be reimbursed in accordance with VA/Federal Travel Regulations (FTR). Each Contractor invoice must include copies of all receipts that support the travel costs claimed in the invoice. The Contractor is only entitled to actual cost spent while on travel that falls within the perimeters as set forth within the FTR, to include food. Travel must be pre-approved by the Contracting Officer (CO). Travel must be priced separately in the price schedule. Local travel within a 50-mile radius from the Contractor’s facility is considered the cost of doing business and will not be reimbursed. This includes travel, subsistence, and associated labor charges for travel time. Travel performed for personal convenience and daily travel to and from work at the Contractor’s facility will not be reimbursed. Travel, subsistence, and associated labor charges for travel time for travel beyond a 50-mile radius of the Contractor’s facility are authorized on a case-by-case basis and must be pre-approved by the CO.

The Government does not anticipate travel under this SOW.

10.6 Contractor Reporting Requirements: N/A

10.7 Contract Post-Award Meeting: The Contractor shall not commence performance on the tasks in this SOW until the CO has conducted a post-award meeting or has advised the Contractor that the post-award meeting has been waived.

11. Formal Acceptance or Rejection of Deliverables: The Government will review each deliverable within 10 business days and provide comments. The Contractor shall have 10 business days to incorporate the Government’s comments and make appropriate revisions.

12. Changes to the SOW Any changes to this SOW shall be authorized and approved only through written correspondence from the CO. A copy of each change will be kept in a contract folder, along with all other products of the contract. Costs incurred by the Contractor through the actions of parties other than the CO shall be borne by the Contractor.

13. Confidentiality and Non-Disclosure: It is agreed that:

a. The preliminary and final deliverables, as well as all associated working papers and other material deemed relevant by VA that have been generated by the Contractor in the performance of this contract, are the exclusive property of the U.S. Government and shall be submitted upon request to the CO at the conclusion of the contract.

b. The CO will be the sole authorized official to release, verbally or in writing, any data, draft deliverables, final deliverables, or any other written or printed materials pertaining to this contract. No information shall be released by the Contractor. Any request for information relating to this contract presented to the Contractor shall be submitted to the CO for response.

c. Press releases, marketing material, or any other printed or electronic documentation related to this contract shall not be publicized without the written approval of the CO.

d. Non-Disclosure and Conflict of Interest: The Contractor and Contractor’s staff may have access to Government-sensitive information and shall be required to sign non-disclosure and conflict of interest statements.

14. Security Requirements:

14.1. GENERAL

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

14.2. 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. VA 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 United States (US) 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-US 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 US may be an evaluation factor.

e. 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.

14.3. NARA RECORDS MANAGEMENT

1. Contractor shall comply with all applicable records management laws and regulations, as well as National Archives and Records Administration (NARA) records policies, including but not limited to the Federal Records Act (44 U.S.C. chs. 21, 29, 31, 33), NARA regulations at 36 CFR Chapter XII Subchapter B, and those policies associated with the safeguarding of records covered by the Privacy Act of 1974 (5 U.S.C. 552a). These policies include the preservation of all records, regardless of form or characteristics, mode of transmission, or state of completion.

2. In accordance with 36 CFR 1222.32, all data created for Government use and delivered to, or falling under the legal control of, the Government are Federal records subject to the provisions of 44 U.S.C. chapters 21, 29, 31, and 33, the Freedom of Information Act (FOIA) (5 U.S.C. 552), as amended, and the Privacy Act of 1974 (5 U.S.C. 552a), as amended and must be managed and scheduled for disposition only as permitted by statute or regulation.

3. In accordance with 36 CFR 1222.32, Contractor shall maintain all records created for Government use or created in the course of performing the contract and/or delivered to, or under the legal control of the Government and must be managed in accordance with Federal law. Electronic records and associated metadata must be accompanied by sufficient technical documentation to permit understanding and use of the records and data.

4. VHA Institute for Learning, Education and Development (ILEAD) and its contractors are responsible for preventing the alienation or unauthorized destruction of records, including all forms of mutilation. Records may not be removed from the legal custody of VHA ILEAD or destroyed except for in accordance with the provisions of the agency records schedules and with the written concurrence of the Head of the Contracting Activity. Willful and unlawful destruction, damage or alienation of Federal records is subject to the fines and penalties imposed by 18 U.S.C. 2701.

In the event of any unlawful or accidental removal, defacing, alteration, or destruction of records, Contractor must report to VHA ILEAD. The agency must report promptly to NARA in accordance with 36 CFR 1230.

5. The Contractor shall immediately notify the appropriate Contracting Officer upon discovery of any inadvertent or unauthorized disclosures of information, data, documentary materials, records, or equipment. Disclosure of non-public information is limited to authorized personnel with a need-to-know as described in the [contract vehicle]. The Contractor shall ensure that the appropriate personnel, administrative, technical, and physical safeguards are established to ensure the security and confidentiality of this information, data, documentary material, records and/or equipment is properly protected. The Contractor shall not remove material from Government facilities or systems, or facilities or systems operated or maintained on the Government’s behalf, without the express written permission of the Head of the Contracting Activity. When information, data, documentary material, records and/or equipment is no longer required, it shall be returned to VHA ILEAD control, or the Contractor must hold it until otherwise directed. Items returned to the Government shall be hand carried, mailed, emailed, or securely electronically transmitted to the Contracting Officer or address prescribed in the [contract vehicle]. Destruction of records is EXPRESSLY PROHIBITED unless in accordance with Paragraph (4).

6. The 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, contracts. The Contractor (and any sub-contractor) is required to abide by Government and VHA ILEAD guidance for protecting sensitive, proprietary information, classified, and controlled unclassified information.

7. The Contractor shall only use Government IT equipment for purposes specifically tied to or authorized by the contract and in accordance with VHA ILEAD policy.

8. The Contractor shall not create or maintain any records containing any non-public VHA ILEAD information that are not specifically tied to or authorized by the contract.

9. The 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 from public disclosure by an exemption to the Freedom of Information Act.

10. The VHA ILEAD owns the rights to all data and records produced as part of this contract. All deliverables under the contract are the property of the U.S. Government for which VHA ILEAD shall have unlimited rights to use, dispose of, or disclose such data contained therein as it determines to be in the public interest. Any Contractor rights in the data or deliverables must be identified as required by FAR 52.227-11 through FAR 52.227-20.

11. Training. All Contractor employees assigned to this contract who create, work with, or otherwise handle records are required to take VHA-provided records management training, Talent Management System (TMS) Item #4192704, Records Management for Everyone. The Contractor is responsible for confirming training has been completed according to agency policies, including initial training and any annual or refresher training.

[Note: To the extent an agency requires contractors to complete records management training, the agency must provide the training to the contractor.] D. Flowdown of requirements to Subcontractors

1. The Contractor shall incorporate the substance of this clause, its terms and requirements including this paragraph, in all subcontracts under this [contract vehicle], and require written subcontractor acknowledgment of same.

2. Violation by a subcontractor of any provision set forth in this clause will be attributed to the Contractor.

14.4. VA INFORMATION CUSTODIAL LANGUAGE

a. Information made available to the Contractor or Subcontractor by VA for, or 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 Contractor’s/Subcontractor’s information systems or media storage systems in order to ensure that 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 that 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 CO within 30 calendar 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 Federal Information Processing Standard (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, then 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 for cause under Federal Acquisition Regulation (FAR) Part 12.

g. If a Veterans Health Administration (VHA) contract is terminated for cause, the associated Business Associate Agreement (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’s/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 CO 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 CO for response.

l. For service that involves the storage, generating, transmitting, or exchanging of VA sensitive information but does not require Certification and Accreditation (C&A) or memoranda of understanding and interconnection agreements (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 PM/COR.

14.5. 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 Federal Information Security Management Act (FISMA), Health Insurance Portability and Accountability Act (HIPAA), NIST, and related VA security and privacy control requirements for Federal information systems. This includes standards for the protection of electronic Personal Health Information (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 (refer to 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 PM/COR, and approved by the VA Privacy Service in accordance with Directive 6507, VA Privacy Impact Assessment.

b. The Contractor/Subcontractor shall certify to the PM/COR that applications are fully functional and operate correctly as intended on systems using the VA Federal Desktop Core Configuration (FDCC), and the common security configuration guidelines provided by NIST or the VA. This includes Microsoft Internet Explorer 7 configured to operate on Microsoft 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 Federal Desktop Core Configuration (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 do the following:

(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 the following:

(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 on individuals of a SOR that is subject to the Privacy Act; and

(3) Incorporate this Privacy Act clause, including this subparagraph (3), into all subcontracts awarded under this contract that require the design, development, or operation of such 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 that contains the person’s name, identifying number, symbol, or any other identifying particular assigned to the individual, such as a fingerprint, 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 Contractor/Subcontractor 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 Contractor anywhere in the Systems, including Operating Systems and firmware. The Contractor/Subcontractor shall ensure that Security Fixes shall not negatively impact the Systems.

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

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

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

14.6. 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 PM/COR and approved by VA Privacy Service prior to operational approval. All external Internet connections to VA’s network involving VA information must be reviewed and approved by VA prior to implementation.

b. Adequate security controls for collecting, processing, transmitting, and storing 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 (i.e., 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, as well as third party or business partner networks, require MOU-ISA, which details 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 of the PIA. Any deficiencies noted during this assessment must be provided to the VA CO and the Information Security Officer (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 (OIG). 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, and 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 copies and electronic copies of the assessment must be provided to the PM/COR. The Government reserves the right to conduct such an assessment using Government personnel or another Contractor/Subcontractor. The Contractor/Subcontractor must take appropriate and timely action (this can be specified in the contract) to correct or mitigate any weaknesses discovered during such testing, generally at no additional cost.

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

g. All electronic storage media used on non-VA-leased or non-VA-owned IT equipment that is used to store, process, or access VA information must be handled in adherence with VA Handbook 6500.1, Electronic Media Sanitization, upon the following: (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 Contractor at the end of lease, for a trade-in or other purposes. The options are:

(1) Contractor/Subcontractor 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 Contractor 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 having a negative impact upon 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, i.e. 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.

14.7. SECURITY INCIDENT INVESTIGATION

a. The term “security incident” means an event that has, or could have, resulted in unauthorized access, loss, or damage to VA assets, sensitive information, or an action that breaches VA security procedures. The Contractor/Subcontractor shall immediately notify the PM/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, 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.

14.8. 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 OIG an independent risk analysis of the data breach to determine the level of risk associated with the data breach for the potential misuse of any sensitive personal information involved in the data breach. The term 'data breach' means the loss, theft, or other unauthorized access, or any access other than that incidental to the scope of employment, to data containing sensitive personal information, in electronic or printed form, that results in the potential compromise of the confidentiality or integrity of the data. Contractor shall fully cooperate with the entity performing the risk analysis. Failure to cooperate may be deemed a material breach and grounds for contract termination.

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

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

(2) Description of the event, including

(a) Date of occurrence;

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

(3) Number of individuals affected or potentially affected;

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

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

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

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

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

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

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

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

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

(1) Notification;

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

(3) Data breach analysis;

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

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

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

14.9. SECURITY CONTROLS COMPLIANCE TESTING

On a periodic basis, VA, including the OIG,…