60RRBH21R0011 Attachment J.30 CMS Sec and Priv Language for Info Tech Procurements.docx

Centers for Medicare & Medicaid Services Information Security and Privacy Group

CMS Security and Privacy Language for Information and Information Technology Procurements

Final

Version 1.1

RFP 60RRBH21R0011 Attachment J.30

Centers for Medicare & Medicaid Services

RFP 60RRBH21R0011 Attachment J.30

Procurements Involving Government Information Processed on GOCO or COCO Systems

October 1, 2020 CMS Security and Privacy Language for Information and Information Technology Procurements Version 1.3 October 1, 2020

Summary of Changes The table below capture changes when updating the document. All columns are mandatory.

Table of Contents

1. Introduction The Department of Health and Human Services (HHS) is responsible for implementing and administering an information security program to protect its information resources in compliance with applicable public laws, federal regulations, and Executive Orders. This includes the Federal Information Security Modernization Act (FISMA) of 2014[footnoteRef:2]and Office of Management and Budget (OMB) Circular A-130, Managing Information as a Strategic Resource.[footnoteRef:3] To meet these requirements, the Department has issued the HHS Information Security and Privacy Policy (IS2P),[footnoteRef:4] which contains the policies to secure information and information systems throughout the Department. [2: Public law 113-283, Title 44, United States Code, Federal information Security Modernization Act of 2014 (FISMA) may be found at https://www.congress.gov/113/plaws/publ283/PLAW-113publ283.pdf (44 U.S.C. 101) ] [3: OMB A-130,Managing Information as a Strategic Resource, July 28, 2016 may be found at https://obamawhitehouse.archives.gov/omb//] [4: The HHS IS2P is retrievable from https://intranet.hhs.gov/it/cybersecurity/policies/index.html]

While the IS2P is the overarching policy governing information technology security and privacy at HHS, it does not provide explicit guidance for the Contracting Officer (CO), Contracting Officer Representative (COR), requiring activity representative,[footnoteRef:5] and other staff involved in the procurement of information and information technology (IT) products and services. Therefore, the HHS Security and Privacy Language for Information and Information Technology Procurements document has been developed to guide federal employees and/or contractors (and/or subcontractors) who need to address requirements for procurements that involve information and IT products and services and standardize the security and privacy contract language across the Department. This includes services which are either fully or partially provided; including other agency hosted, outsourced, and cloud computing solutions. [5: Requiring activity is often referenced in the FAR and refers to the entity acquiring goods and/or services. See the Federal Acquisition Regulation (FAR), retrievable from: http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title48/48tab_02.tpl. ]

The Centers for Medicare & Medicaid Services (CMS) has adopted and updated the HHS Security and Privacy Language for Information and Information Technology Procurements v2, dated June 26, 2017 to reflect CMS specific polices, standards and procedures.

This document supersedes the following document:

The CMS Information Security Contract Clause / Provision, Dated April, 2013

This is a living document and will be updated as federal laws, regulations, and other guidance change.

Purpose The HHS Security and Privacy Language for Information and Information Technology Procurements standard, which aligns with the Federal Acquisition Regulation (FAR),[footnoteRef:6] the HHS Acquisition Regulation (HHSAR),[footnoteRef:7] and other federal and HHS policies, is designed to assist COs, CORs, Program Managers (PMs), and other stakeholders in selecting the appropriate security and privacy language to include in acquisition documents (solicitations, contracts, etc.) for information and IT products and services procurements during pre-award and post-award of a contract. This document provides current information security and privacy requirements to ensure federally mandated security and privacy controls and standards are met within the Department. CMS has customized this document to include CMS specific information that is compliant with and as restrictive as the baseline contract language provided by the Department. [6: Ibid.] [7: HHS Acquisition Regulation (HHSAR), retrievable from: https://www.hhs.gov/grants/contracts/contract-policies-regulations/hhsar/index.html ]

Additional references are included in Appendix E for ease of use.

Background Effective November 30, 2005, the Civilian Agency Acquisition Council and the Defense Acquisition Regulation Council agreed to amend the FAR to incorporate the FISMA security requirements for all federal agencies. In accordance with updated guidance related to fiscal year (FY) reporting under FISMA 2014[footnoteRef:8], and FAR subpart 7.1, Acquisition Plan, agency heads must ensure all agency personnel involved with IT procurements understand how to meet FISMA guidance and standards set forth in OMB Circular A-130 and the National Institute of Standards and Technology (NIST) guidelines.[footnoteRef:9] In addition, the Federal Information Technology Acquisition Reform Act (FITARA)[footnoteRef:10], enacted in 2014, mandates that government agencies’ chief information officers (CIOs) have a significant role in IT procurement decisions and oversight. All CMS stakeholders must comply with and support the policy and procedures in this handbook to ensure compliance with federal requirements for implementation of information security and privacy controls. [8: OMB M-17-26, Reducing Burden for Federal Agencies by Rescinding and Modifying OMB Memoranda, June 15, 2017 may be found at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-26.pdf] [9: NIST guidelines may be found at http://csrc.nist.gov/publications/] [10: FITARA may be found at https://www.congress.gov/bill/113th-congress/house-bill/1232.]

Scope As prescribed by the HHS Deputy Secretary’s “FY15 Cybersecurity Information Technology (IT) Priorities,” Action 2, this document contains standardized security and privacy language to be used in solicitations and contracts when acquiring information and information technology.[footnoteRef:11] This document supplements Federal and HHS acquisition Regulations (See Appendix E - References). Only the Office of the Assistant Secretary for Financial Resources (ASFR)/Office of Grants and Acquisition Policy and Accountability (OGAPA) Division of Acquisition (DA), in conjunction with Office of the Chief Information Officer (OCIO), may issue HHS acquisition policy. [11: DepSec FY15 Priorities may be found at http://intranet.hhs.gov/it/cybersecurity/policies/index.html]

In addition, designated health care components (for simplicity hereinafter referred to as covered components) within HHS that are subject to the regulations promulgated under the Health Insurance Portability and Accountability Act (HIPAA)[footnoteRef:12] and the Health Information Technology for Economic and Clinical Health (HITECH) Act[footnoteRef:13] must ensure that their contracts with entities that qualify as their business associates include all required business associate provisions per 45 Code of Federal Regulations (CFR) 164.504(e) and breach reporting policies and procedures for suspected or confirmed breaches of protected health information. Such contracts shall impose a duty to cooperate with the covered component and/or the Department’s breach investigation and response, and shall require all subcontractors to be contractually bound to the same privacy, security and breach-related terms and conditions as a condition of receiving [government/federal] data. Four divisions within HHS have been designated as a health care components under HIPAA by the HHS Secretary: 1) CMS, insofar as it operates the fee-for-service Medicare program; 2) the Program Support Center (PSC’s) Division of Commissioned Personnel, insofar as it operates a health plan for Commissioned Corps officers; 3) the World Trade Center (WTC) Health Program and 4) the Indian Health Service (IHS), insofar as it operates a health plan and a program providing health care that uses electronic transactions. More information about requirements for business associates and sample contract language can be found on the Office for Civil Rights (OCR) website.[footnoteRef:14] [12: HIPAA may be located at https://www.hhs.gov/hipaa/for-professionals/index.html.] [13: HITECH Act may be located at https://www.gpo.gov/fdsys/pkg/FR-2013-01-25/pdf/2013-01073.pdf.] [14: OCR website may be located at http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/businessassociates.html.]

The requiring activity representative and contracting office, in coordination with the CMS Information System Security Officer (ISSO), Senior Official for Privacy (SOP), System Owner and/or the Chief Information Security Officer (CISO), are responsible for ensuring the acquisition documentation includes the appropriate information security and privacy requirements and sufficient details to enable Contractors and service providers to fully understand the information security and privacy regulations, mandates, and requirements to which they will be subject under the contract or task order that may be awarded to them. The goal is to better prepare contractors and service providers to be compliant with HHS and federal security and privacy requirements, avoiding unnecessary future contract modifications. The directions in the beginning of each section explicitly detail the applicable language to specific acquisition types. The acquisition types include:

· Procurements requiring information security and/or physical access;

· Procurements involving personally identifiable information (PII) or records of individuals;

· Procurements involving government-owned/contractor-operated (GOCO), or contractor-owned/contractor-operated (COCO) systems;

· Procurements involving cloud services;

· Other procurement types:

· Hardware

· Non-commercial and open source software

· Information technology application design, development or support, and

· Physical access only to government-controlled facilities.

Applicability The security and privacy requirements set forth herein apply to all new and existing information and IT solicitations and contracts, irrespective of dollar amount. To determine the applicable language for each solicitation and contract, the requiring activity representative must confer with their Information System Security Officer (ISSO), Chief Information Security Officer (CISO) and Privacy Officer/Senior Official for Privacy (SOP) to complete the “Information Security & Privacy Certification Checklist” in Appendix A. All procurements for IT and information services must include this security and privacy review.

In addition, see the CMS Decision Tree Tool for guidance in determining applicable security and privacy language.

The standard security and privacy language stated herein may apply to procurements that are subject to HIPAA and HITECH.[footnoteRef:15] [15: Additional information about HIPAA acquisition requirements may be found on the OCR website at http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/businessassociates.html.]

The standard security and privacy language stated herein is not intended for agreements that are not subject to the FAR, such as grants and cooperative agreements.[footnoteRef:16] Drafters of those types of agreements may need to consult the applicable agency personnel to ensure their agreements, and grantees, are compliant with all applicable federal security and privacy requirements. [16: Additional information on grants and cooperative agreements may be found on the HHS Contract and Grants Support website at: https://intranet.hhs.gov/abouthhs/contracts-grants-support/index.html.]

The standard security and privacy language stated herein applies to FISMA systems and does not apply to national security systems. Additional information may be found on the HHS Classified National Security Information Policy.[footnoteRef:17] [17: The HHS Classified National Security Information Policy may be found at: https://intranet.hhs.gov/security/ossi/documents/cnsi.pdf.]

This Handbook aligns with the NIST SP 800-53 Security and Privacy Controls for Federal Information Systems and Organizations catalogue of controls, the CMS IS2P2, and the CMS ARS. Each procedure relates to a specific NIST security control and additional sections have been included in this document to increase clarity in control origin crosswalk and to satisfy specific audit requirements issued by various sources (e.g., OMB, OIG, HHS, etc.).

1. Procurements Requiring Information Security and/or Physical Access Security

DIRECTIONS

The language set forth in the subsections of Section 2 applies to ALL solicitations and contracts for procurements requiring information security and/or physical access security. A procurement requires security if, as a result of the procurement, any contractor (and/or any subcontractor) employee:

· will develop; have the ability to access, use, or host; and/or maintain government information[footnoteRef:18] and/or government information system(s), including instances of remote access to or physical removal of such information beyond agency premises or control; or [18: Information created, collected, processed, disseminated, or disposed of by or for the Federal Government. Also referred to as “government information” per the OMB A-130 at https://obamawhitehouse.archives.gov/omb// ]

· will have regular or prolonged physical access to a “federally-controlled facility,” as defined in FAR Subpart 2.1.[footnoteRef:19] [19: FAR Subpart 2.1 may be found at https://www.acquisition.gov/?q=/browse/far/2]

Physical and Logical Access refers to when contractor personnel (and/or any subcontractor) are expected to have (1) routine physical access to a CMS-controlled facility; (2) logical access to a CMS -controlled information system; (3) access to government information, whether in a CMS -controlled information system or in hard copy; or (4) any combination of circumstances (1) through (3) as per the HHSAR Subpart 304.13 – Personal Identity Verification[footnoteRef:20] and OMB M-05-24, Implementation of Homeland Security Presidential Directive (HSPD) 12 – Policy for a Common Identification Standard for Federal Employees and Contractors.[footnoteRef:21] [20: HHSAR Subpart 304.13 may be found at http://www.hhs.gov/grants/contracts/contract-policies-regulations/hhsar/subpart304-13/index.html] [21: OMB M-05-24 Implementation of Homeland Security Presidential Directive (HSPD) 12 – Policy for a Common Identification Standard for Federal Employees and Contractors, August 5, 2005 may be found at https://obamawhitehouse.archives.gov/omb//]

As part of the acquisition planning process, the appropriate Program Officials shall determine whether, based on the nature of the requirement, contractor personnel may require access to CMS -controlled facilities and/or information systems, including sensitive data/information, in order to perform the Contract/Statement of Work (SOW)/ Performance Work Statement (PWS). If contractor access is required, the requiring activity representative must assess, based on information available at that point in the process, the type, frequency, and duration of such access. Following that determination, the requiring activity representative shall consult with CMS and/or local building officials/staff, and officials/staff involved with personnel security, including the designated personnel security representative, to determine applicable security requirements and, as necessary, adjust project requirements to minimize security and access issues. The requiring activity representative shall comply with HSPD-12, FAR Subpart 4.13,[footnoteRef:22] and the applicable standard language below in making these judgments and determinations. [22: FAR Subpart 4.13 may be found at https://www.acquisition.gov/?q=/browse/far/4]

The following definitions and clauses are relevant to this section:

1. FAR clause 52.239-1, Privacy or Security Safeguards (Section 2.A.2.b.)

2. HHSAR Clause 352.224-71** (Section 2.A.2.e.)

3. FAR 7.105(b)(5) (Section 2.A.7.)

4. FAR 11.002(g) (Section 2.A.7.)

5. FAR 52.239-1(c) (Section 2.D.3.b.)

6. FAR Subpart 4.13 (Section 2.F)

7. FAR Subpart 52.204-9 (Section 2.F)

** This clause should be tailored to either 1) list types of information that require confidentiality protection or 2) say “None” if the contract involves no information types that require confidentiality protection. If there are information types requiring confidentiality protections, the reasons for those restrictions must also be included.

Exceptions. Section 2 language below does not apply to procurements for only hardware and software licenses. These requirements are addressed in Section 6 of this document.

The requiring activity representative must confer with its CMS’ CISO or designee to complete the checklist in Appendix A (Part A and Part B) to determine CMS -specific requirements, and identify any additional security language applicable to the solicitation/contract.

Review Sections 3, 4, and 5 to determine which additional language is applicable to your solicitation/contract.

NOTE: The numbering scheme used in this document applies to THIS DOCUMENT ONLY, and those preparing solicitation and award documents should adjust the numbering accordingly.

Instructions appearing in italics in a text box are for the requiring activity and any other personnel preparing procurements documentation and should be removed by the document preparer.

Note: The language below shall be included in the Statement of Work (SOW), Statement of Objectives (SOO), Performance Work Statement (PWS), or other purchase description. This language does not alleviate the requirement to properly incorporate applicable FAR and HHSAR clauses into the applicable contract clauses section of the solicitation and resultant contract.

START COPYING LANGUAGE BELOW

1. Baseline Security Requirements

1) Applicability. The requirements herein apply whether the entire contract or order (hereafter “contract”), or portion thereof, includes either or both of the following:

a. Access (Physical or Logical) to Government Information: A Contractor (and/or any subcontractor) employee will have or will be given the ability to have, routine physical (entry) or logical (electronic) access to government information.

b. Operate a Federal System Containing Information: A Contractor (and/or any subcontractor) will operate a federal system and information technology containing data that supports the HHS/CMS mission. In addition to the Federal Acquisition Regulation (FAR) Subpart 2.1 definition of “information technology” (IT), the term as used in this section includes computers, ancillary equipment (including imaging peripherals, input, output, and storage devices necessary for security and surveillance), peripheral equipment designed to be controlled by the central processing unit of a computer, software, firmware and similar procedures, services (including support services), and related resources.

2) Safeguarding Information and Information Systems. In accordance with Federal Information Processing Standards Publication (FIPS) 199, Standards for Security Categorization of Federal Information and Information Systems, the Contractor (and/or any subcontractor) shall:

a. Protect government information and information systems in order to ensure:

· Confidentiality, which means preserving authorized restrictions on access and disclosure, based on the security terms found in this contract, including means for protecting personal privacy and proprietary information;

· Integrity, which means guarding against improper information modification or destruction, and ensuring information non-repudiation and authenticity; and

· Availability, which means ensuring timely and reliable access to and use of information.

b. Provide security for any Contractor systems, and information contained therein, connected to an HHS/CMS network or operated by the Contractor on behalf of HHS/CMS regardless of location. In addition, if new or unanticipated threats or hazards are discovered by either the agency or Contractor, or if existing safeguards have ceased to function, the discoverer shall immediately, within one (1) hour or less, bring the situation to the attention of the other party.

c. Adopt and implement the policies, procedures, controls, and standards required by the HHS Information Security Program and CMS Information Security and Privacy Group to ensure the confidentiality, integrity, and availability of government information and government information systems for which the Contractor is responsible under this contract or to which the Contractor may otherwise have access under this contract.

d. Obtain the HHS/CMS Information Security and Privacy Group security requirements, outlined in the HHS Information Security and Privacy Policy (IS2P) and the CMS Information Systems Security and Privacy Policy (IS2P2) by contacting the CO/COR or emailing CISO@cms.hhs.gov.

e. Comply with the Privacy Act requirements and applicable FAR clauses.

3) Information Security Categorization. In accordance with FIPS 199 and National Institute of Standards and Technology (NIST) Special Publication (SP) 800-60, Volume II: Appendices to Guide for Mapping Types of Information and Information Systems to Security Categories, Appendix C, and based on information provided by the ISSO, or other security representative, the risk level for each Security Objective and the Overall Risk Level, which is the highest watermark of the three factors (Confidentiality, Integrity, and Availability) of the information or information system are the following:

Based on information provided by the ISSO, Privacy Office, system/data owner, or other security or privacy representative, it has been determined that this solicitation/contract involves:

[ ] No PII [ ] Yes PII

Complete this section using the information obtained from the Security and Privacy Checklist in Appendix A, parts A and B.

Personally Identifiable Information (PII). Per the Office of Management and Budget (OMB) Circular A-130, “PII is information that can be used to distinguish or trace an individual's identity, either alone or when combined with other information that is linked or linkable to a specific individual.” Examples of PII include, but are not limited to, Social Security number, date and place of birth, mother‘s maiden name, and biometric records.

PII Confidentiality Impact Level has been determined to be: [ ] Low [ ] Moderate [ ] High

4) Controlled Unclassified Information (CUI). CUI is defined as “information that laws, regulations, or government-wide policies require to have safeguarding or dissemination controls, excluding classified information.” The Contractor (and/or any subcontractor) must comply with Executive Order 13556, Controlled Unclassified Information, (implemented at 3 CFR, part 2002) when handling CUI. The term “handling” refers to “…any use of CUI, including but not limited to marking, safeguarding, transporting, disseminating, re-using, and disposing of the information.” 81 Fed. Reg. 63323[footnoteRef:23]. All sensitive information[footnoteRef:24] that has been identified as CUI by a regulation or statute, handled by this solicitation/contract, shall be: [23: 32 C.F.R. 2002.4(aa) As implemented] [24: “Sensitive information” is information, the loss, misuse, or unauthorized access to or modification of, that could adversely affect the national interest or the conduct of federal programs, or the privacy to which individuals are entitled under 5 U.S.C. Section 552a (the Privacy Act), but that has not been specifically authorized under criteria established by an Executive Order or an Act of Congress to be kept classified in the interest of national defense or foreign policy. See NIST Special Publication 800-53 Rev 4, “Security and Privacy Controls for Federal Information Systems and Organizations”.]

a. marked appropriately;

b. disclosed to authorized personnel on a need-to-know basis;

c. protected in accordance with NIST SP 800-53, Security and Privacy Controls for Federal Information Systems and Organizations, under the applicable baseline, if handled by a Contractor system operated on behalf of the agency; or NIST SP 800-171 Rev 1, Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations if handled by internal Contractor system; and

d. returned to HHS/CMS control, destroyed when no longer needed, or held until otherwise directed. Destruction of information and/or data shall be accomplished in accordance with NIST SP 800-88 Rev 1, Guidelines for Media Sanitization.

5) Confidentiality and Nondisclosure of Information. Any information provided to the Contractor (and/or any subcontractor) by HHS/CMS or collected by the Contractor on behalf of HHS/CMS shall be used only for the purpose of carrying out the provisions of this contract and shall not be disclosed or made known in any manner to any persons except as may be necessary in the performance of the contract. The Contractor assumes responsibility for protection of the confidentiality of government records and shall ensure that all work performed by its employees and subcontractors shall be under the supervision of the Contractor. Each Contractor employee or any of its subcontractors to whom any HHS/CMS records may be made available or disclosed shall be notified in writing by the Contractor that information disclosed to such employee or subcontractor can be used only for that purpose and to the extent authorized herein.

The confidentiality, integrity, and availability of such information shall be protected in accordance with HHS and CMS policies. Unauthorized disclosure of information will be subject to the HHS/CMS sanction policies and/or governed by the following laws and regulations:

a. 18 U.S.C. 641 (Criminal Code: Public Money, Property or Records);

b. 18 U.S.C. 1905 (Criminal Code: Disclosure of Confidential Information); and

c. 44 U.S.C. Chapter 35, Subchapter I (Paperwork Reduction Act).

6) Internet Protocol Version 6 (IPv6). All procurements using Internet Protocol shall comply with OMB Memorandum M-05-22, Transition Planning for Internet Protocol Version 6 (IPv6).

7) Government Websites. All new and existing public-facing Government websites must be securely configured with Hypertext Transfer Protocol Secure (HTTPS) using the most recent version of Transport Layer Security (TLS). In addition, HTTPS shall enable HTTP Strict Transport Security (HSTS) to instruct compliant browsers to assume HTTPS at all times to reduce the number of insecure redirects and protect against attacks that attempt to downgrade connections to plain HTTP. For internal-facing websites, the HTTPS is not required, but it is highly recommended.

8) Contract Documentation. The Contractor shall use provided templates, policies, and other agency documents which are located at https://www.cms.gov/Research-Statistics-Data-and-Systems/CMS-Information-Technology/TLC/index and https://www.cms.gov/Research-Statistics-Data-and-Systems/CMS-Information-Technology/InformationSecurity/Information-Security-Library.html to comply with contract deliverables as appropriate.

See Appendix D for baseline deliverables.

9) Standard for Encryption. The Contractor (and/or any subcontractor) shall:

a. Comply with the HHS Standard for Encryption of Computing Devices and Information to prevent unauthorized access to government information.

b. Encrypt all sensitive information

c. Information (e.g., PII, protected health information [PHI], proprietary information) in transit (e.g., via email and network connections) and at rest (e.g., on servers, storage devices, mobile devices, and backup media) with FIPS 140-2 validated encryption solutions.

d. Secure all devices (i.e.: desktops, laptops, mobile devices, etc.) that store and process government information and ensure devices meet HHS and CMS -specific encryption standard requirements.

e. Maintain a complete and current inventory of all laptop computers, desktop computers, and other mobile devices and portable media that store or process sensitive government information (including PII).

f. Verify that the encryption solutions in use have been validated under the Cryptographic Module Validation Program to confirm compliance with FIPS 140-2. The Contractor shall provide a written copy of the validation documentation to the COR at a date to be determined by CMS, prior to ATO.

g. Use the Key Management system on the HHS personal identification verification (PIV) card or establish and use a key recovery mechanism to ensure the ability for authorized personnel to encrypt/decrypt information and recover encryption keys. Encryption keys shall be provided to the COR upon request and at the conclusion of the contract.

10) Contractor Non-Disclosure Agreement (NDA). Each Contractor (and/or any subcontractor) employee having access to non-public government information under this contract shall complete the CMS non-disclosure agreement, as applicable. A copy of each signed and witnessed NDA shall be submitted to the Contracting Officer (CO) and/or CO Representative (COR) prior to performing any work under this acquisition.

See Appendix C for the HHS Contractor Non-Disclosure Agreement.

11) Privacy Threshold Analysis (PTA)/Privacy Impact Assessment (PIA) – The Contractor shall assist the CMS Senior Official for Privacy (SOP) or designee with conducting a PTA for the information system and/or information handled under this contract to determine whether or not a full PIA needs to be completed.

a. If the results of the PTA show that a full PIA is needed, the Contractor shall assist the CMS SOP or designee with completing a PIA for the system or information at a date to be determined by CMS, occurring after completion of the PTA and in accordance with HHS policy, CMS policy and OMB M-03-22, Guidance for Implementing the Privacy Provisions of the E-Government Act of 2002.

b. The Contractor shall assist the CMS SOP or designee in reviewing the PIA at least every three years throughout the system development lifecycle (SDLC)/information lifecycle, or when determined by the agency that a review is required based on a major change to the system, or when new types of PII are collected that introduce new or increased privacy risks, whichever comes first.

1. Training

1) Mandatory Training for All Contractor Staff. All Contractor (and/or any subcontractor) employees assigned to work on this contract shall complete the applicable HHS/CMS Contractor Information Security Awareness, Privacy, and Records Management training (provided upon contract award) before performing any work under this contract. Thereafter, the employees shall complete CMS Information Security Awareness, Privacy, and Records Management training at least annually, during the life of this contract. All provided training shall be compliant with CMS and HHS training policies.

2) Role-Based Training. All Contractor (and/or any subcontractor) employees with significant security responsibilities (as determined by the program manager) must complete role-based training annually commensurate with their role and responsibilities in accordance with HHS/CMS policy and the HHS Role-Based Training (RBT) of Personnel with Significant Security Responsibilities Memorandum.

3) Training Records. The Contractor (and/or any subcontractor) shall maintain training records for all its employees working under this contract in accordance with HHS/CMS policy. A copy of the training records shall be provided to the CO and/or COR within 30 days after contract award and annually thereafter or upon request.

1. Rules of Behavior

1) The Contractor (and/or any subcontractor) shall ensure that all employees performing on the contract comply with the HHS Information Technology General Rules of Behavior, and any CMS system-specific Rules of Behavior.

2) All Contractor employees performing on the contract must read and adhere to the Rules of Behavior before accessing Department data or other information, systems, and/or networks that store/process government information, initially at the beginning of the contract and at least annually thereafter, which may be done as part of annual CMS Information Security Awareness Training. If the training is provided by the Contractor, the signed ROB must be provided as a separate deliverable to the CO and/or COR per defined timelines above.

1. Incident Response The Contractor (and/or any subcontractor) shall respond to all alerts/Indicators of Compromise (IOCs) provided by the HHS Computer Security Incident Response Center (CSIRC)/CMS IRT & IMT teams within 24 hours, whether the response is positive or negative.

FISMA defines an incident as “an occurrence that (1) actually or imminently jeopardizes, without lawful authority, the integrity, confidentiality, or availability of information or an information system; or (2) constitutes a violation or imminent threat of violation of law, security policies, security procedures, or acceptable use policies.” The HHS Policy for IT Security and Privacy Incident Reporting and Response further defines incidents as events involving cybersecurity and privacy threats, such as viruses, malicious user activity, loss of, unauthorized disclosure or destruction of data, and so on.

A privacy breach is a type of incident and is defined by Federal Information Security Modernization Act (FISMA) as the loss of control, compromise, unauthorized disclosure, unauthorized acquisition, or any similar occurrence where (1) a person other than an authorized user accesses or potentially accesses personally identifiable information or (2) an authorized user accesses or potentially accesses personally identifiable information for an other than authorized purpose. The HHS Policy for IT Security and Privacy Incident Reporting and Response further defines a breach as “a suspected or confirmed incident involving PII.”

In the event of a suspected or confirmed incident or breach, the Contractor (and/or any subcontractor) shall:

1) Protect all sensitive information, including any PII created, stored, or transmitted in the performance of this contract so as to avoid a secondary sensitive information incident with FIPS 140-2 validated encryption.

2) NOT notify affected individuals unless so instructed by the Contracting Officer or designated representative. If so instructed by the Contracting Officer or representative, the Contractor shall send CMS-approved notifications to affected individuals in accordance with the CMS Breach Analysis Team (BAT) instruction.

3) Report all suspected and confirmed information security and privacy incidents and breaches to the CMS Incident Response Team (IRT) via the CMS Help Desk ((410) 786-2580), CMS IT Service Desk (cms_it_service_desk@cms.hhs.gov), COR, CO, CMS SOP (or his or her designee), and other stakeholders, including incidents involving PII, in any medium or form, including paper, oral, or electronic, as soon as possible and without unreasonable delay, no later than one (1) hour, and consistent with the applicable CMS and HHS policy and procedures, NIST standards and guidelines, as well as US-CERT notification guidelines. The types of information required in an incident report must include at a minimum: company and point of contact information, contract information, impact classifications/threat vector, and the type of information compromised. In addition, the Contractor shall:

a. cooperate and exchange any information, as determined by CMS, necessary to effectively manage or mitigate a suspected or confirmed breach;

b. not include any sensitive information in the subject or body of any reporting e-mail; and

c. encrypt sensitive information in attachments to email, media, etc.

4) Comply with OMB M-17-12, Preparing for and Responding to a Breach of Personally Identifiable Information and HHS/CMS incident response policies when handling PII breaches.

5) Provide full access and cooperate on all activities as determined by the government to ensure an effective incident response, including providing all requested images, log files, and event information to facilitate rapid resolution of sensitive information incidents. This may involve disconnecting the system processing, storing, or transmitting the sensitive information from the Internet or other networks or applying additional security controls. This may also involve physical access to Contractor facilities during a breach/incident investigation.

1. Position Sensitivity Designations All Contractor (and/or any subcontractor) employees must obtain a background investigation commensurate with their position sensitivity designation that complies with Parts 1400 and 731 of Title 5, Code of Federal Regulations (CFR). The following position sensitivity designation levels apply to this solicitation/contract:

The requiring activity representative, in conjunction with Personnel Security, shall use the OPM Position Sensitivity Designation automated tool (https://www.opm.gov/investigations/) to determine the sensitivity designation for background investigations. After making those determinations, include all applicable position sensitivity designations.

1. Homeland Security Presidential Directive (HSPD)-12 The Contractor (and/or any subcontractor) and its employees shall comply with Homeland Security Presidential Directive (HSPD)-12, Policy for a Common Identification Standard for Federal Employees and Contractors; OMB M-05-24; FIPS 201, Personal Identity Verification (PIV) of Federal Employees and Contractors; HHS HSPD-12 policy; and Executive Order 13467, Part 1 §1.2.

For additional information, see HSPD-12 policy at: https://www.dhs.gov/homeland-security-presidential-directive-12)

Roster. The Contractor (and/or any subcontractor) shall submit a roster by name, position, e-mail address, phone number and responsibility, of all staff working under this acquisition where the Contractor will develop, have the ability to access, host, and/or maintain a government information system(s). The roster shall be submitted to the COR and/or CO within a timeframe to be determined by CMS. Any revisions to the roster as a result of staffing changes shall be submitted within a timeframe to be determined by CMS after the change. The COR will notify the Contractor of the appropriate level of investigation required for each staff member.

If the employee is filling a new position, the Contractor shall provide a position description and the Government will determine the appropriate suitability level.

1. Contract Initiation and Expiration

1) General Security Requirements. The Contractor (and/or any subcontractor) shall comply with information security and privacy requirements, Enterprise Performance Life Cycle (EPLC) processes, and HHS Enterprise Architecture requirements to ensure information is appropriately protected from initiation to expiration of the contract. All information systems development or enhancement tasks supported by the Contractor shall follow the CMS-SDLC, in accordance with the HHS Contract Closeout Guide (2012).

2) System Documentation. Contractors (and/or any subcontractors) must follow and adhere to NIST SP 800-64, Security Considerations in the System Development Life Cycle, at a minimum, for system development and provide system documentation at designated intervals (specifically, at the expiration of the contract) within the EPLC and CMS-SDLC that require artifact review and approval.

3) Sanitization of Government Files and Information. As part of contract closeout and at expiration of the contract, the Contractor (and/or any subcontractor) shall provide all required documentation, in accordance with the CMS-SDLC, as amended, to the CO and/or COR to certify that, at the Government’s direction, all electronic and paper records are appropriately disposed of and all devices and media are sanitized in accordance with NIST SP 800-88, Guidelines for Media Sanitization.

4) Notification. The Contractor (and/or any subcontractor) shall notify the CO and/or COR and system ISSO [as soon as possible or as determined by CMS] before an employee stops working under this contract.

5) Contractor Responsibilities Upon Physical Completion of the Contract. The Contractor (and/or any subcontractors) shall return all government information and IT resources (e.g., government furnished equipment (GFE), government information in non-government-owned systems, media, and backup systems) acquired during the term of this contract to the CO and/or COR. Additionally, the Contractor shall provide a certification that all government information has been properly sanitized and purged from Contractor-owned systems, including backup systems and media used during contract performance, in accordance with HHS and/or CMS policies.

6) The Contractor (and/or any subcontractor) shall perform and document the actions identified by the COR when an employee terminates work under this contract within 30 calendar days of the employee’s exit from the contract. All documentation shall be made available to the CO and/or COR upon request.

1. Records Management and Retention The Contractor (and/or any subcontractor) shall maintain all information in accordance with Executive Order 13556 -- Controlled Unclassified Information, National Archives and Records Administration (NARA) records retention policies and schedules and HHS/CMS policies and shall not dispose of any records unless authorized by HHS/CMS.

In the event that the Contractor (and/or any subcontractor) accidentally disposes of or destroys a record without proper authorization, it shall be documented and reported as an incident in accordance with HHS/CMS policies.

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2.

Requirements for Procurements Involving Privacy Act Records

DIRECTIONS

In addition to the standard baseline language in Section 2, the requiring activity representatives shall include the clauses and language set forth below in all solicitations and contracts involving records that are or will be subject to the Privacy Act of 1974 (5 U.S.C. 552a). Records are subject to the Privacy Act if they constitute a “system of records,” which is defined in the Privacy Act as records about individuals maintained in a system from which they are retrieved by name or other personal identifier.

Please be cognizant that not all information systems that contain personally identifiable information (PII) qualify as Privacy Act systems of records. The HHS/CMS Senior Official for Privacy (SOP) who completes Appendix A must consult with the System/Data Owner and the CMS Privacy Act Contact, or the Departmental Privacy Act Officer within OS/ASPA, to determine if the procurement will involve records subject to the Privacy Act and, if so, to identify any existing government-wide, Department-wide, or CMS -specific Systems of Records Notices (SORNs) that cover the records, or to confirm if a new or revised SORN is needed. Existing SORNs are located by conducting an Internet search using “HHS SORNs” as the search term.

Be aware that subsection (i) of the Privacy Act prescribes criminal penalties for certain violations of the Privacy Act, including, for example, willfully operating a new system of records or making a significant change to an existing system of records before publishing a new or revised SORN describing the system or system change as required by subsection (e)(4) of the Act. Subsection (m) of the Privacy Act provides that the criminal liability provisions of subsection (i) apply to contractors, and to any employee of such contractors, when an agency provides by a contract for the operation by or on behalf of the agency of a system of records to accomplish an agency function. Subsection (m) requires that such contracts contain provisions that “cause” the requirements of the Privacy Act to apply to the affected systems of records.

The following definitions and clauses are relevant to this section:

1. FAR Subpart 24.101- Definitions. Consult the definitions of “agency,” “individual,” “maintain,” “operation of a system of records,” “record,” and “system of records on individuals” to determine if the Privacy Act applies. If the Privacy Act applies, the following three clauses must be incorporated.

2. FAR Clause 52.224-1 Privacy Act Notification.

3. FAR Clause 52.224-2 Privacy Act.

4. HHSAR Clause 352.224-70 Privacy Act. NOTE: This clause requires inclusion of Language specifying the applicable system(s) of records or proposed system(s) of records, the design, development, or operation work the Contractor is to perform, and the records disposition instructions to be followed by the Contractor upon completion of contract performance.

If the Privacy Act applies, the Contracting Officer (CO)/CO Representative shall ensure that the language below is included in the Statement of Work (SOW), Statement of Objectives (SOO), Performance Work Statement (PWS), or other purchase description. This language does not alleviate the requirement to properly incorporate the three FAR and HHSAR clauses identified in the box above into the applicable contract clauses section of the solicitation and resultant contract.

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A. Privacy Act It has been determined that this contract is subject to the Privacy Act of 1974, because this contract provides for the design, development, or operation of a system of records on individuals.

The System of Records Notice (SORN) that is applicable to this contract is: [CMS insert SORN number if one exists. If there is no SORN, indicate that a SORN will be developed].

The design, development, or operation work the Contractor is to perform is: [CMS insert description of design, development, and/or operation work; see definitions in the FAR at 24.101 - Definitions].

The disposition to be made of the Privacy Act records upon completion of contract performance is: [CMS insert records disposition instructions the Contractor and any subcontractor must follow upon completion of contract performance].

3. Procurements Involving Government Information Processed on GOCO or COCO Systems

DIRECTIONS

The Federal Information Security Modernization Act (FISMA of 2014, (44 U.S.C. 101),[footnoteRef:25] Office of Management and Budget (OMB Circular A-130, Managing Information as a Strategic Resource,[footnoteRef:26] and Federal Procurements Regulation (FAR) 39.101[footnoteRef:27] mandate that contractor systems, including Government-Owned/Contractor-Operated (GOCO) or Contractor-Owned/Contractor-Operated (COCO) be at least as secure as Government systems operated by the Government. [25: FISMA 2014.] [26: OMB Circular A-130] [27: FAR Part 39 (https://www.acquisition.gov/?q=/browse/far/39)]

Therefore, in addition to the standard language in Section 2 and Section 3 (if applicable) above, the requiring activity representative will include the security language stated below in this Section 4 in all solicitations/contracts involving GOCO/COCO as required by FAR Part 12 – Acquisition of Commercial Items, FAR Part 39 – Acquisition of Information Technology, including Subparts 39.1 and 39.2 and FAR Part 52 – Solicitation Provisions and Contract Clauses, including Subparts 52.239-1 and 52.204-21.

In addition to definitions and clauses specified in Section 2 and applicable definitions and clauses in Section 3, the following definitions and clauses are relevant to this section:

1. FAR Part 52 including clauses 52.239-1 and 52.204-21 (Section 4.A.)

2. FAR Subpart 39.101(c) (Section 4.5)(b.)

NOTE: The selection of standard language below may be dependent on the contract level of effort. The requiring activity representative must collaborate with the Contracting Officer, System Owner, Senior Official for Privacy, ISSO, and/or CMS CISO, when preparing solicitations/contracts involving government information processed on GOCO or COCO systems to determine all applicable security and privacy language and if any additional security and privacy requirements apply to the solicitation/contract. For example, the Contractor may already have an existing ATO that can be leveraged or require a new ATO. In addition, the security control assessment may be conducted by the Government, Contractor, or independent third party depending on the level of risk and type of assessment required.