Attachment_A_SOO_Outside_Counsel_Advisory_and_Assistance_Support.pdf

Statement of Objectives

National Flood Insurance Program (NFIP)

Outside Counsel Advisory and Assistance Support

1.0 Introduction

1.1 Overview

This Statement of Objectives (SOO) stipulates the requirements for advisory and assistance

(A&AS) support services pertaining to specialized legal counsel required by the Federal

Emergency Management Agency’s (FEMA) Office of Chief Counsel (OCC).

Within the Department of Homeland Security (DHS), Federal Emergency Management Agency

(FEMA), the Federal Insurance and Mitigation Administration (FIMA) operates the National

Flood Insurance Program (NFIP). The OCC is responsible for providing FEMA with legal advice, counsel, risk analysis, and dispute resolution services. Within OCC, the Federal

Insurance and Mitigation Legal Division provides these services to FIMA. This contract will directly support the OCC’s Federal Insurance and Mitigation Legal Division.

The Government intends to award a single time-and-materials type contract for these services.

The Contractor, also referred to as outside legal counsel, shall be required to perform in accordance with the Quality Assurance Surveillance Plan (QASP).

1.2 Background

Through the Biggert-Waters Flood Insurance Reform Act of 2012 and the Homeowner Flood

Insurance Affordability Act of 2014, FEMA received authority to establish a federal-based program to secure reinsurance for the NFIP from the private reinsurance and capital markets to better manage losses incurred from major events. Having completed reinsurance placements for both 2017 and 2018, FEMA is now working to further develop and mature the NFIP Reinsurance

Program, utilizing both the traditional reinsurance market and the capital markets. The NFIP

Reinsurance Program’s first and subsequent purchases of reinsurance from the traditional and capital markets was the first time the Federal government secured reinsurance from private markets through a program of this nature. The Program involves working with complex and specialized areas of reinsurance law, such as traditional reinsurance and insurance-linked securities (ILS). As a result, FIMA requires legal subject-matter-experts to advise and assist on matters related to reinsurance and securities laws and the reinsurance industry, including the private capital markets.

In 2017, FEMA completed a traditional reinsurance placement. In 2018, FEMA completed a traditional reinsurance placement and a mid-year ILS placement. In 2019, FEMA has completed a traditional reinsurance placement.

2.0 Acquisition Strategy

FIMA intends to award one time-and-materials contract for this requirement.

3.0 Scope

Technical direction will be utilized to further clarify certain aspects of the Objectives detailed in

Section 2. This technical direction will be issued in writing by either the Contracting Officer

(CO) or the Contracting Officer’s Representative (COR). Program guidance will delineate specific deliverables and time schedules in accordance with the requirements defined in the

Objectives.

3.1 Description of Services

The contractor shall provide the necessary personnel to deliver the legal counsel services required by this SOO. These contractor personnel shall have expertise in and experience with the reinsurance industry including the private capital markets. OCC requires the contractor to deliver support within four Objectives: 1) work related to reinsurance agreement terms and conditions including matters involving reinsurers, capital bond markets, and insurance-linked securities; 2) drafting memoranda of law on topics related to reinsurance including matters involving reinsurers, capital bond markets, and insurance-linked securities; 3) consulting on legal issues related to the management and operations of a FIMA-operated reinsurance program including matters involving reinsurers, capital bond markets, and insurance-linked securities; and

4) provide advice on potential disputes arising from reinsurance and other related agreements.

The specifics required by each Objectives are explained in the subsections below.

3.1.1 Objective 1: Reinsurance Agreement Terms and Conditions

The outside legal counsel shall be expected to be familiar with the NFIP through experience and background research, for example, on the National Flood Insurance Act of 1968, as amended, NFIP regulations in Title 44 of the Code of Federal Regulations, NFIP process and procedures, the Write Your Own Program, customary insurance practices, and the practices of other governmental entities ceding risk to private markets.

Upon the request of FEMA, the outside legal counsel shall draft reinsurance agreement terms and conditions for NFIP reinsurance agreements as required. Upon the request of FEMA, the outside counsel shall also be required to analyze, review, and provide comments on reinsurance agreements, as required.

Upon the request of FEMA, the outside legal counsel shall participate in meetings with FIMA’s broker, DHS, FIMA, OCC, and reinsurers, as required, for example, to develop or customize the terms and conditions of reinsurance-related agreements.

Upon the request of FEMA, the outside legal counsel shall draft other types of agreements, including, but not limited to, trust agreements, sidecar agreements, catastrophe bond agreements, or other agreements to secure reinsurance including insurance-linked securities from the private reinsurance and capital markets, as required.

3.1.2 Objective 2: Drafting of Legal Memorandum

Upon the request of FEMA, the outside legal counsel shall research and draft memorandum of law on issues related to the FEMA’s securing reinsurance from the private reinsurance and capital markets, including matters involving reinsurers, capital bond markets, and insurance-linked securities on behalf of the NFIP.

3.1.3 Objective 3: Consulting on Reinsurance Program

The outside legal counsel shall consult with OCC to enable it to advise the NFIP as it develops an operations protocol defining and/or refining the NFIP Reinsurance Program’s processes and procedures (i.e., administrative, accounting, legal, etc.), governance (includes roles and responsibilities), reporting, documentation, and audits.

Upon the request of FEMA, the outside legal counsel shall review and provide comments on the

NFIP Reinsurance Program’s operational protocols, including processes and procedures, governance, reporting, documentation, and audits process, as required.

3.1.4 Objective 4: Advice on Potential Disputes

Upon the request of FEMA, the outside legal counsel shall provide advice to OCC on potential disputes arising from reinsurance and other related agreements involving the private reinsurance and capital markets.

3.2 Timeline for Deliverables

FIMA intends to implement the NFIP Reinsurance Program through placements following its

January 1, 2019 reinsurance placement. As a result, FEMA anticipates most of the work under the base period of performance of this contract will occur on a rolling basis with periods of greater activity in the months leading up to the placements in order to assist FIMA with meeting deadlines necessary to accomplish the desired placements as well as to address issues arising from any claim collection.

3.3 Deliverables

Item Due Date

Reinsurance agreement terms and conditions Upon request

Legal Review of Agreements Upon request

Memoranda of law and legal opinions Upon request

Consulting with Reinsurance Program Upon request

Provide advice on potential disputes Upon request

3.4 Billing of Hours

The contractor shall only invoice for hours expended on required deliverables. Before the contractor performs work related to any of the four objectives, they shall receive advance direction from the contract’s authorized personnel. The contractor shall, upon request by the contract’s authorized personnel, submit an estimate of hours prior to work performed on specific assignments. Based on the spacing of deliverables (reference section 3.2), there may be months where the contractor’s services are not required, and as a result, no invoice for that month shall be submitted.

The contractor’s proposed labor rates for each labor category shall be fully burdened. A fully burdened labor rate is inclusive of: wages, overhead, general and administrative expenses, and profit for each category of labor.

Additionally, this contract shall not authorize payment for the following activities:

• Clerical or administrative tasks, such as: time spent photocopying, collating, and faxing;

arranging travel; data entry, document scanning, and document conversion to other electronic formats; scheduling and arranging meetings, etc.;

• Billing-related time (i.e., invoices, accounting, or bookkeeping); and

• Time spent on review or clearing of conflicts or opening a file.

3.5 Handling of Information

Due to the attorney-client relationship all communication is privileged and confidential.

Therefore, FIMA does not require the contractor to take any specialized IT security measures when receiving, transmitting, or communicating, in any form, information related to work under this contract.

4 Qualifications and Key Personnel

This contract will require both key and non-key personnel.

The personnel performing work under this contract shall have completed a four (4)-year under graduate degree from an accredited college or university and have a Juris Doctor from a law school accredited by the American Bar Association (ABA). Additionally, all legal personnel shall be an active member of the bar in any U.S. jurisdiction.

4.1 KEY PERSONNEL

Of-Counsel or Partner

Experience: Licensed attorney must be a partner or off-counsel with a minimum of 20 years of experience as an attorney in a private law firm, in-house corporate counsel, government agency, or other applicable legal experience. Of these years, the attorney must have at least eight (8) years of specialized experience in reinsurance law. Specifically, the attorney must have experience working with a cedent to draft, review, and revise the terms and conditions of a traditional reinsurance agreement. The attorney must also have experience drafting, reviewing, and revising other types of agreements, such as trust agreements, side car agreements, catastrophe bond agreements, and other agreements to secure reinsurance from the capital markets. The attorney must have experience advising a cedent on the establishment of a reinsurance program, including advising on the development of processes and procedures (i.e., administrative, accounting, legal, auditing, reporting, etc.) and governance (i.e., roles and responsibilities).

The attorney should have experience working with a governmental entity cedent, such as a

Federal, State or local government agency insurer or a quasi-governmental insurer. Previous experience working with the Federal government, and specifically with the National Flood

Insurance Program is also highly desirable.

4.2 NON-KEY PERSONNEL

Associate

Experience: Licensed attorney with a minimum of six (6) years of experience with a private law firm, in-house corporate counsel, government agency, or other applicable legal experience. Of these years, the attorney must have at least three (3) years of specialized experience in reinsurance law. Specifically, the attorney must have experience working with a cedent to draft agreements to secure reinsurance from the private and capital markets. The attorney should have experience researching and writing memorandum of law on issues related to reinsurance. The attorney should also have experience related to advising a cedent on the establishment of a reinsurance program, including advising on the development of processes and procedures (i.e., administrative, accounting, legal, auditing, reporting, etc.) and governance (i.e., roles and responsibilities).

Experience working with a governmental entity cedent, such as a Federal, State or local government agency insurer or a quasi-governmental insurer, and experience working with the

Federal government, specifically with the National Flood Insurance Program, are also highly desirable.

5 Place of Performance

Work performed under this contract shall take place primarily at the contractor’s place of business. The majority of communications for work performed under this contract shall take place via electronic and telephonic means – email, conference call, video conference, and computer screen share.

If the contractor has staff located in the DC metro area that allows for convenient and affordable travel to the FIMA headquarters office, then by invitation from an authorized FIMA employee, the contractor may be asked to travel to FIMA’s office in order to complete a task within one of the work areas.

FEMA-FIMA headquarters is located at: 400 C St SW, Washington, DC 20024.

6 Period of Performance

The period of performance of this contract shall include a 12 month base period and four (4) 12 month option periods.

7 Applicable Documentation

The work performed under this contract does not require compliance with any DHS, FEMA, or

FIMA specific regulations, policies, memorandums, or directives.

8 Other Direct Costs

8.1 Material Expenses

Material expenses are not anticipated under this contract. Specifically, the following charges related to overhead costs and internal charges shall not be reimbursed, including but not limited to:

• Office supplies;

• Charges for local and long distance telephone service, teleconference lines, and facsimile;

• Imaging or scanning service costs;

• Document file/storage and retrieval costs;

• Electronic legal research annual or monthly fees (i.e., Lexis, Westlaw, or other cost-based providers);

• Rent for office space, equipment, or software;

• Charges for case management systems;

• Charges for meeting rooms;

• Catering; and

• Postage.

8.2 Travel

Out of area travel is not allowed unless the contractor is given advance authorization and approval by the contract’s designated CO and/or COR. FEMA does not anticipate the need for regular travel in order to perform this work; however, the need for travel may arise so the contractor can attend in-person meetings with FEMA, its reinsurers, brokers, and any other reinsurance and insurance-linked securities-related agents related to the design of a reinsurance agreement and/or other agreements necessary for obtaining reinsurance through private reinsurers and the capital markets. If this situation occurs, FEMA will give the contractor advance notice.

If travel costs are incurred by the contractor, then they shall comply with the Federal Travel

Regulations (FTR) and Federal Acquisition Regulations (FAR) Subpart 31.205-46, Travel costs, when billing for travel expenses.

9 Security Requirements

All work performed under this SOO is unclassified. All personnel require access to information up to the sensitive but unclassified, for official use only (FOUO) levels. Contractor must ensure contractor employees’ receive a favorably adjudicated public trust suitability prior to entry on duty (EOD). All individuals will be U.S. citizens. The contractor shall follow the standards established within DHS and FEMA policy.

FOR OFFICIAL USE ONLY

In accordance with DHS Management Directive 11042.1 contractors, consultants and others to whom access is granted will abide by 11042.1; DHS policy regarding the identification and safeguarding of sensitive but unclassified information originated within DHS. It also applies to other sensitive but unclassified information received by DHS from other government and non-governmental activities. The contractor will:

1. Be aware of and comply with the safeguarding requirements for “For Official Use

Only” (FOUO) information as outlined in this directive.

2. Participate in formal classroom or computer based training sessions presented to communicate the requirements for safeguarding FOUO and other sensitive but unclassified information.

3. Be aware that divulging information without proper authority could result in administrative or disciplinary action.

Contractors and Consultants shall:

Execute a DHS Form 11000-6, Sensitive but Unclassified Information Non Disclosure

Agreement (NDA), as a condition of access to such information. Other individuals not assigned to or contractually obligated to DHS, but to whom access to information will be granted, may be requested to execute an N DA as determined by the applicable program manager. Execution of the N DA shall be effective upon publication of this directive and not applied retroactively.

BACKGROUND INVESTIGATIONS

All contractor personnel who require access to DHS or FEMA information systems, routine access to DHS or FEMA facilities, or access to sensitive information, including but not limited to

Personally Identifiable Information (PII), shall be subject to a full background investigation commensurate with the level of the risk associated with the job function or work being performed. FEMA’s Personnel Security Division (PSD) will determine the risk designation for each contractor position by comparing the functions and duties of the position against those of a same or similar federal position, applying the same standard for evaluating the associated potential for impact on the integrity and efficiency of federal service.

Low Risk without Information System Access

Contractor personnel occupying positions or performing functions with a Low Risk designation and who do not require access to DHS or FEMA information systems may undergo a Tier 1 investigation with a credit check and must receive a favorable adjudication thereof from FEMA

PSD prior to performing work under this contract. (also reference Facility Access).

Low Risk with Information System Access

Contractor personnel occupying positions or performing functions with a Low Risk designation and who require access to DHS or FEMA information systems shall undergo a Tier 2 Suitability

Background Investigation (T2) and must receive a favorable adjudication thereof from FEMA

PSD prior to performing work under this contract.

Moderate Risk

Contractor personnel occupying positions or performing functions with a Moderate Risk designation shall undergo a Tier 2 Suitability Background Investigation (T2) and must receive a favorable adjudication thereof from FEMA PSD prior to performing work under this contract.

High Risk

Contractor personnel occupying positions or performing functions with a High Risk designation shall undergo a Tier 4 Suitability Background Investigation (T4) and must receive a favorable adjudication thereof from FEMA PSD prior to performing work under this contract.

Background Investigation Process

To initiate the request to process contractor personnel, the Contractor shall provide the FEMA

Contracting Officer’s Representative (COR) with all required information and comply with all necessary instructions to complete Section II of the FEMA Form 121-3-1-6, “Contract

Fitness/Security Screening Request.” The FEMA COR shall ensure that all other applicable sections of the FEMA Form 121-3-1-6 are complete prior to submitting the form to FEMA PSD for processing. The Contractor shall also provide the FEMA COR with completed OF 306, “Declaration for Federal Employment,” forms for all contractor personnel.

Contractor personnel who already have a favorably adjudicated background investigation, may be eligible to perform work under this contract without further processing by FEMA PSD if:

• the investigation was completed within the last five years,

• it meets or exceeds the minimum requirement for the position they will occupy or functions they will perform on this contract,

• the contractor personnel have not had a break in employment since the prior favorable adjudication, and,

• FEMA PSD has verified the investigation and confirmed that no new derogatory information has been disclosed which may require a reinvestigation.

FEMA PSD will notify the COR of the names of the contractor personnel eligible to work based on prior, favorable adjudication. The COR will, in turn, notify the Contractor of the names of the favorably adjudicated contractor personnel, at which time the favorably adjudicated contractor personnel will be eligible to begin work under this contract.

For those contractor personnel who do not have an acceptable, prior, favorable adjudication or who otherwise require reinvestigation, FEMA PSD will issue an electronic notification via email directly to the contractor applicant/personnel that contains the following documents, which are incorporated into this contract by reference, along with a link to the Office of Personnel

Management’s (OPM) Electronic Questionnaires for Investigation Processing (e-QIP) system and instructions for submitting the necessary information:

• Standard Form 85P, “Questionnaire for Public Trust Positions”

• Optional Form 306, “Declaration for Federal Employment”

• SF 87, “Fingerprint Card” (2 copies)

• DHS Form 11000-6, “Non-Disclosure Agreement”

• DHS Form 11000-9, “Disclosure and Authorization Pertaining to Consumer Reports

Pursuant to the Fair Credit Reporting Act”

FEMA PSD will only accept complete packages consisting of all of the above document and

Standard Form 85P, which must be completed electronically through the Office of Personnel

Management’s e-QIP system. The Contractor is responsible for ensuring that all contractor personnel timely and properly submit all required background information.

Once contractor personnel have properly submitted the complete package of all required background information, FEMA’s Personnel Security Division, at its sole discretion, may grant contractor personnel temporary eligibility to perform work under this contract prior to completion of the full background investigation if the Personnel Security Division’s initial review of the contractor personnel’s background information reveals no issues of concern. In such cases, FEMA’s Personnel Security Division will provide notice of such temporary eligibility to the COR who will then notify the Prime Contractor, at which time the identified contractor personnel will be temporarily eligible to begin work under this contract. Neither the

Prime Contractor nor the contractor personnel has any right to such a grant of temporary eligibility. The grant of such temporary eligibility shall not be considered as assurance that the contactor personnel will remain eligible to perform work under this contract upon completion of and final adjudication of the full background investigation.

Upon favorable adjudication of the full background investigation, FEMA’s Personnel Security

Division will update the contractor personnel’s security file and take no further action. In any instance where the final adjudication results in an unfavorable determination FEMA’s Personnel

Security Division will notify the contractor personnel directly, in writing, of the decision and will provide the COR with the name(s) of the contractor personnel whose adjudication was unfavorable. The COR will then forward that information to the Contractor. Contractor personnel who receive an unfavorable adjudication shall be ineligible to perform work under this contract. Unfavorable adjudications are final and not subject to review or appeal.

Continued Eligibility and Reinvestigation

Eligibility determinations based on a Low Risk T1, Moderate Risk T2S or High Risk T4 are valid for five years from the date that the investigation was completed and closed. Contractor personnel required to undergo a background investigation to perform work under this contract shall be ineligible to perform work under this contract upon the expiration the background investigation unless and until the contractor personnel have undergone a reinvestigation and

FEMA’s Personnel Security Division has renewed their eligibility to perform work under this contract.

Exclusion by Contracting Officer

The Contracting Officer (CO), independent of FEMA’s Personnel Security Division, may direct the Contractor be excluded from working on this contract. Any contractor found or deemed to be unfit or whose continued employment on the contract is deemed contrary to the public interest or inconsistent with the best interest of the agency may be removed.

FACILITY ACCESS

The Contractor shall comply with FEMA Directive 121-1 “FEMA Personal Identity Verification

Guidance,” FEMA Directive 121-3 “Facility Access,” and FEMA Manual 121-3-1 “FEMA

Credentialing Access Manual,” to arrange for contractor personnel’s access to FEMA facilities, which includes, but is not limited to, arrangements to obtain any necessary identity badges for contractor personnel.

Contractor personnel working within any FEMA facility who do not require access to DHS or

FEMA IT systems and do not qualify for a PIV Card may be issued a Facility Access Card

(FAC). FACs cannot exceed 180 days; all contractors requiring access greater than 180 days will need to qualify for and receive a PIV card before being allowed facility access beyond 180 days.

Contractor personnel shall not receive a FAC until they have submitted a SF 87, “Fingerprint

Card,” and receive approval from FEMA PSD. Contractor personnel using a FAC for access to

FEMA facilities must be escorted in Critical Infrastructure areas (i.e., server rooms, weapons rooms, mechanical rooms, etc.) at all times.

FEMA may deny facility access to any contractor personnel whom FEMA’s Office of the Chief

Security Officer has determined to be a potential security threat.

The Contractor shall notify the FEMA COR of all terminations/resignations within five calendar days of occurrence. The Contractor must account for all forms of Government-provided identification issued to contractor employees under a contract (i.e., the PIV cards or other similar badges) must return such identification to FEMA as soon as any of the following occurs:

• When no longer needed for contract performance.

• Upon completion of a contractor employee’s employment.

• Upon contract completion or termination.

If an identification card or building pass is not available to be returned, the Contractor shall submit a report to the FEMA COR, referencing the pass or card number, name of the individual to whom it was issued, and the last known location and disposition of the pass or card.

The Contractor or contractor personnel’s failure to return all DHS- or FEMA-issued identification cards and building passes upon expiration, upon the contractor personnel’s removal from the contract, or upon demand by DHS or FEMA may subject the contractor personnel and the Contractor to civil and criminal liability.

UNAUTHORIZED DISCLOSURE OF CLASSIFIED OR UNCLASSIFIED

INFORMATION

Contractors and Subcontractors who are working on this contract shall receive Unauthorized

Disclosure of Classified or Unclassified Information training.

Access to the training can be obtained at:

https://securityawareness.usalearning.gov/unauthorizedrefresher/index.htm

Send the certificate of completion to the FEMA Contracting Officer Representative no later than

30 calendar days after awarded contract. New employees entering the contract must receive the briefing within ten (10) business days of joining the contract.

OPSEC TRAINING

https://securityawareness.usalearning.gov/unauthorizedrefresher/index.htm

Contractors and Subcontractors who are working on this contract shall receive the OPSEC

Awareness Brief.

Access to the briefing can be obtained at http://cdsetrain.dtic.mil/opsec

Send the certificate of completion to the FEMA COR no later than 30 calendar days after awarded contract. New employees entering the contract must receive the briefing within ten (10) business days of joining the contract.

INSIDER THREAT TRAINING

Insider Threat training for Contractors can be found at:

http://cdsetrain.dtic.mil/itawareness/index.htm.

Certificate of training is required for all cleared contractor employees who are working with classified or unclassified information. All certificates must be sent to the assigned FEMA

Contracting Officer Representative, before the Contractor or Subcontractor is granted access to classified or unclassified information but no later than 30 calendar days after awarded contract. All cleared contractor personnel are required to recertify Insider Threat training annually thereafter. New employees entering the contract must receive the briefing within ten

(10) business days of joining the contract.

10 DHS Enterprise Architecture Compliance

All solutions and services shall meet DHS Enterprise Architecture policies, standards, and procedures. Specifically, the Contractor shall comply with the following Homeland Security

Enterprise Architecture (HLS EA) requirements:

(a) All developed solutions and requirements shall be compliant with the HLS/FEMA EA.

(b) All IT hardware and/or software shall be compliant with the HLS/FEMA EA Technical

Reference Model (TRM) Standards and Products Profile.

(c) Description information for all data assets, information exchanges and data standards, whether adopted or developed, shall be submitted to the Enterprise Data Management Office

(EDMO) for review, approval and insertion into the DHS Data Reference Model and Enterprise

Architecture Information Repository.

(d) Development of data assets, information exchanges and data standards will comply with the

DHS Data Management Policy MD 103-01[1] and all data-related artifacts will be developed and validated according to DHS data management architectural guidelines.

(e) Applicability of IPv6 to DHS-related components (networks, infrastructure, and applications) specific to individual acquisitions shall be in accordance with the DHS Enterprise Architecture

(per OMB Memorandum M-05-22, August 2, 2005) regardless of whether the acquisition is for modification, upgrade, or replacement. All EA related component acquisitions shall be IPv6 compliant as defined in the USGv6 Profile (NIST Special Publication 500-267) and the corresponding declarations of conformance defined in the USGv6 Test Program.

[1] Department of Homeland Security (DHS) Directives System, Enterprise Data Management Policy, 2008.

https://www.dhs.gov/sites/default/files/publications/mgmt_directive_103_01_enterprise_data_management_policy.p df http://cdsetrain.dtic.mil/opsec http://cdsetrain.dtic.mil/itawareness/index.htm https://www.dhs.gov/sites/default/files/publications/mgmt_directive_103_01_enterprise_data_management_policy.pdf

11 Accessibility Requirements (Section 508)

Section 508 of the Rehabilitation Act, as amended by the Workforce Investment Act of 1998

(P.L. 105-220) requires that when Federal agencies develop, procure, maintain, or use electronic and information technology (EIT), they must ensure that it is accessible to people with disabilities. Federal employees and members of the public who have disabilities must have equal access to and use of information and data that is comparable to that enjoyed by non-disabled

Federal employees and members of the public.

All EIT deliverables within this work statement shall comply with the applicable technical and functional performance criteria of Section 508 unless exempt. Specifically, the following applicable EIT accessibility standards have been identified:

Section 508 Applicable EIT Accessibility Standards 36 CFR 1194.21 Software Applications and Operating Systems, applies to all EIT software applications and operating systems procured or developed under this work statement including but not limited to GOTS and COTS software. In addition, this standard is to be applied to Web-based applications when needed to fulfill the functional performance criteria. This standard also applies to some Web based applications as described within 36 CFR 1194.22.

36 CFR 1194.22 Web-based Intranet and Internet Information and Applications, applies to all

Web-based deliverables, including documentation and reports procured or developed under this work statement. When any Web application uses a dynamic (non-static) interface, embeds custom user control(s), embeds video or multimedia, uses proprietary or technical approaches such as, but not limited to, Flash or Asynchronous Javascript and XML (AJAX) then 1194.21

Software standards also apply to fulfill functional performance criteria.

36 CFR 1194.31 Functional Performance Criteria, applies to all EIT deliverables regardless of delivery method. All EIT deliverable shall use technical standards, regardless of technology, to fulfill the functional performance criteria.

36 CFR 1194.41 Information Documentation and Support, applies to all documents, reports, as well as help and support services. To ensure that documents and reports fulfill the required

1194.31 Functional Performance Criteria, they shall comply with the technical standard associated with Web-based Intranet and Internet Information and Applications at a minimum. In addition, any help or support provided in this work statement that offer telephone support, such as, but not limited to, a help desk shall have the ability to transmit and receive messages using

TTY.

Section 508 Applicable Exceptions Exceptions for this work statement have been determined by DHS and only the exceptions described herein may be applied. Any request for additional exceptions shall be sent to the

COTR and determination will be made in accordance with DHS MD 4010.2. DHS has identified the following exceptions that may apply: 36 CFR 1194.3(b) Incidental to Contract, all EIT that is exclusively owned and used by the contractor to fulfill this work statement does not require compliance with Section 508. This exception does not apply to any EIT deliverable, service or item that will be used by any Federal employee(s) or member(s) of the public. This exception only applies to those contractors assigned to fulfill the obligations of this work statement and for the purposes of this requirement, are not considered members of the public.

Section 508 Compliance Requirements 36 CFR 1194.2(b) (COTS/GOTS products), When procuring a product, each agency shall procure products which comply with the provisions in this part when such products are available in the commercial marketplace or when such products are developed in response to a

Government solicitation. Agencies cannot claim a product as a whole is not commercially available because no product in the marketplace meets all the standards. If products are commercially available that meet some but not all of the standards, the agency must procure the product that best meets the standards. When applying this standard, all procurements of EIT shall have documentation of market research that identify a list of products or services that first meet the agency business needs, and from that list of products or services, an analysis that the selected product met more of the accessibility requirements than the non-selected products as required by

FAR 39.2. Any selection of a product or service that meets less accessibility standards due to a significant difficulty or expense shall only be permitted under an undue burden claim and requires authorization from the DHS Office of Accessible Systems and Technology (OAST) in accordance with DHS MD 4010.2.

12 Cyber Hygiene and Privacy Clauses

SAFEGUARDING OF SENSITIVE INFORMATION (MAR 2015)

(a) Applicability. This clause applies to the Contractor, its subcontractors, and Contractor employees (hereafter referred to collectively as “Contractor”). The Contractor shall insert the substance of this clause in all subcontracts.

(b) Definitions. As used in this clause—

“Personally Identifiable Information (PII)” means information that can be used to distinguish or trace an individual's identity, such as name, social security number, or biometric records, either alone, or when combined with other personal or identifying information that is linked or linkable to a specific individual, such as date and place of birth, or mother’s maiden name. The definition of PII is not anchored to any single category of information or technology. Rather, it requires a case-by-case assessment of the specific risk that an individual can be identified. In performing this assessment, it is important for an agency to recognize that non-personally identifiable information can become personally identifiable information whenever additional information is made publicly available—in any medium and from any source—that, combined with other available information, could be used to identify an individual.

PII is a subset of sensitive information. Examples of PII include, but are not limited to: name, date of birth, mailing address, telephone number, Social Security number (SSN), email address, zip code, account numbers, certificate/license numbers, vehicle identifiers including license plates, uniform resource locators (URLs), static Internet protocol addresses, biometric identifiers such as fingerprint, voiceprint, iris scan, photographic facial images, or any other unique identifying number or characteristic, and any information where it is reasonably foreseeable that the information will be linked with other information to identify the individual.

“Sensitive Information” is defined in HSAR clause 3052.204-71, Contractor Employee Access, as any information, which if lost, misused, disclosed, or, without authorization is accessed, or modified, could adversely affect the national or homeland security interest, the conduct of Federal programs, or the privacy to which individuals are entitled under section 552a of Title 5, United

States Code (the Privacy Act), but which has not been specifically authorized under criteria established by an Executive Order or an Act of Congress to be kept secret in the interest of national defense, homeland security or foreign policy. This definition includes the following categories of information:

(1) Protected Critical Infrastructure Information (PCII) as set out in the Critical Infrastructure

Information Act of 2002 (Title II, Subtitle B, of the Homeland Security Act, Public Law 107-

296, 196 Stat. 2135), as amended, the implementing regulations thereto (Title 6, Code of Federal

Regulations, Part 29) as amended, the applicable PCII Procedures Manual, as amended, and any supplementary guidance officially communicated by an authorized official of the Department of

Homeland Security (including the PCII Program Manager or his/her designee);

Sensitive Security Information (SSI), as defined in Title 49, Code of Federal Regulations, Part

1520, as amended, “Policies and Procedures of Safeguarding and Control of SSI,” as amended, and any supplementary guidance officially communicated by an authorized official of the

Department of Homeland Security (including the Assistant Secretary for the Transportation

Security Administration or his/her designee);

(2) Information designated as “For Official Use Only,” which is unclassified information of a sensitive nature and the unauthorized disclosure of which could adversely impact a person’s privacy or welfare, the conduct of Federal programs, or other programs or operations essential to the national or homeland security interest; and

(3) Any information that is designated “sensitive” or subject to other controls, safeguards or protections in accordance with subsequently adopted homeland security information handling procedures.

“Sensitive Information Incident” is an incident that includes the known, potential, or suspected exposure, loss of control, compromise, unauthorized disclosure, unauthorized acquisition, or unauthorized access or attempted access of any Government system, Contractor system, or sensitive information.

“Sensitive Personally Identifiable Information (SPII)” is a subset of PII, which if lost, compromised or disclosed without authorization, could result in substantial harm, embarrassment, inconvenience, or unfairness to an individual. Some forms of PII are sensitive as stand-alone elements. Examples of such PII include: Social Security numbers (SSN), driver’s license or state identification number, Alien Registration Numbers (A-number), financial account number, and biometric identifiers such as fingerprint, voiceprint, or iris scan. Additional examples include any groupings of information that contain an individual’s name or other unique identifier plus one or more of the following elements:

(1) Truncated SSN (such as last 4 digits)

(2) Date of birth (month, day, and year)

(3) Citizenship or immigration status

(4) Ethnic or religious affiliation

(5) Sexual orientation

(6) Criminal History

(7) Medical Information

(8) System authentication information such as mother’s maiden name, account passwords or personal identification numbers (PIN)

Other PII may be “sensitive” depending on its context, such as a list of employees and their performance ratings or an unlisted home address or phone number. In contrast, a business card or public telephone directory of agency employees contains PII but is not sensitive.

(c) Authorities. The Contractor shall follow all current versions of Government policies and guidance accessible at http://www.dhs.gov/dhs-security-and-training-requirements-contractors, or available upon request from the Contracting Officer, including but not limited to:

(1) DHS Management Directive 11042.1 Safeguarding Sensitive But Unclassified (for

Official Use Only) Information

(2) DHS Sensitive Systems Policy Directive 4300A

(3) DHS 4300A Sensitive Systems Handbook and Attachments

(4) DHS Security Authorization Process Guide

(5) DHS Handbook for Safeguarding Sensitive Personally Identifiable Information

(6) DHS Instruction Handbook 121-01-007 Department of Homeland Security Personnel

Suitability and Security Program

(7) DHS Information Security Performance Plan (current fiscal year)

(8) DHS Privacy Incident Handling Guidance

(9) Federal Information Processing Standard (FIPS) 140-2 Security Requirements for

Cryptographic Modules accessible at http://csrc.nist.gov/groups/STM/cmvp/standards.html

(10) National Institute of Standards and Technology (NIST) Special Publication 800-53

Security and Privacy Controls for Federal Information Systems and Organizations accessible at http://csrc.nist.gov/publications/PubsSPs.html

(11) NIST Special Publication 800-88 Guidelines for Media Sanitization accessible at http://csrc.nist.gov/publications/PubsSPs.html

(d) Handling of Sensitive Information. Contractor compliance with this clause, as well as the policies and procedures described below, is required.

(1) Department of Homeland Security (DHS) policies and procedures on Contractor personnel security requirements are set forth in various Management Directives (MDs), Directives, and Instructions. MD 11042.1, Safeguarding Sensitive But Unclassified (For Official

Use Only) Information describes how Contractors must handle sensitive but unclassified information. DHS uses the term “FOR OFFICIAL USE ONLY” to identify sensitive but unclassified information that is not otherwise categorized by statute or regulation. Examples of sensitive information that are categorized by statute or regulation are PCII, SSI, etc. The DHS

Sensitive Systems Policy Directive 4300A and the DHS 4300A Sensitive Systems Handbook provide the policies and procedures on security for Information Technology (IT) resources. The

DHS Handbook for Safeguarding Sensitive Personally Identifiable Information provides guidelines to help safeguard SPII in both paper and electronic form. DHS Instruction Handbook

121-01-007 Department of Homeland Security Personnel Suitability and Security Program establishes procedures, program responsibilities, minimum standards, and reporting protocols for the DHS Personnel Suitability and Security Program.

(2) The Contractor shall not use or redistribute any sensitive information processed, stored, and/or transmitted by the Contractor except as specified in the contract.

(3) All Contractor employees with access to sensitive information shall execute DHS Form

11000-6, Department of Homeland Security Non-Disclosure Agreement (NDA), as a condition of access to such information. The Contractor shall maintain signed copies of the NDA for all employees as a record of compliance. The Contractor shall provide copies of the signed NDA to the Contracting Officer’s Representative (COR) no later than two (2) days after execution of the form.

(4) The Contractor’s invoicing, billing, and other recordkeeping systems maintained to support financial or other administrative functions shall not maintain SPII. It is acceptable to maintain in these systems the names, titles and contact information for the COR or other

Government personnel associated with the administration of the contract, as needed.

(e) Authority to Operate. The Contractor shall not input, store, process, output, and/or transmit sensitive information within a Contractor IT system without an Authority to Operate

(ATO) signed by the Headquarters or Component CIO, or designee, in consultation with the

Headquarters or Component Privacy Officer. Unless otherwise specified in the ATO letter, the

ATO is valid for three (3) years. The Contractor shall adhere to current Government policies, procedures, and guidance for the Security Authorization (SA) process as defined below.

(1) Complete the Security Authorization process. The SA process shall proceed according to the DHS Sensitive Systems Policy Directive 4300A (Version 11.0, April 30, 2014), or any successor publication, DHS 4300A Sensitive Systems Handbook (Version 9.1, July 24, 2012), or any successor publication, and the Security Authorization Process Guide including templates.

(i) Security Authorization Process Documentation. SA documentation shall be developed using the Government provided Requirements Traceability Matrix and Government security documentation templates. SA documentation consists of the following: Security Plan, Contingency Plan, Contingency Plan Test Results, Configuration Management Plan, Security

Assessment Plan, Security Assessment Report, and Authorization to Operate Letter. Additional documents that may be required include a Plan(s) of Action and Milestones and Interconnection

Security Agreement(s). During the development of SA documentation, the Contractor shall submit a signed SA package, validated by an independent third party, to the COR for acceptance by the Headquarters or Component CIO, or designee, at least thirty (30) days prior to the date of operation of the IT system. The Government is the final authority on the compliance of the SA package and may limit the number of resubmissions of a modified SA package. Once the ATO has been accepted by the Headquarters or Component CIO, or designee, the Contracting Officer shall incorporate the ATO into the contract as a compliance document. The Government’s acceptance of the ATO does not alleviate the Contractor’s responsibility to ensure the IT system controls are implemented and operating effectively.

(ii) Independent Assessment. Contractors shall have an independent third party validate the security and privacy controls in place for the system(s). The independent third party shall review and analyze the SA package, and report on technical, operational, and management level deficiencies as outlined in NIST Special Publication 800-53 Security and Privacy Controls for

Federal Information Systems and Organizations. The Contractor shall address all deficiencies before submitting the SA package to the Government for acceptance.

Support the completion of the Privacy Threshold Analysis (PTA) as needed. As part of the SA process, the Contractor may be required to support the Government in the completion of the PTA.

The requirement to complete a PTA is triggered by the creation, use, modification, upgrade, or disposition of a Contractor IT system that will store, maintain and use PII, and must be renewed at least every three (3) years. Upon review of the PTA, the DHS Privacy Office determines whether a Privacy Impact Assessment (PIA) and/or Privacy Act System of Records Notice

(SORN), or modifications thereto, are required. The Contractor shall provide all support necessary to assist the Department in completing the PIA in a timely manner and shall ensure that project management plans and schedules include time for the completion of the PTA, PIA, and

SORN (to the extent required) as milestones. Support in this context includes responding timely to requests for information from the Government about the use, access, storage, and maintenance of PII on the Contractor’s system, and providing timely review of relevant compliance documents for factual accuracy. Information on the DHS privacy compliance process, including PTAs, PIAs, and SORNs, is accessible at http://www.dhs.gov/privacy-compliance.

(2) Renewal of ATO. Unless otherwise specified in the ATO letter, the ATO shall be renewed every three (3) years. The Contractor is required to update its SA package as part of the

ATO renewal process. The Contractor shall update its SA package by one of the following methods:

(1) Updating the SA documentation in the DHS automated information assurance tool for acceptance by the Headquarters or Component CIO, or designee, at least 90 days before the ATO expiration date for review and verification of security controls; or (2) Submitting an updated SA package directly to the COR for approval by the Headquarters or Component CIO, or designee, at least 90 days before the ATO expiration date for review and verification of security controls. The

90 day review process is independent of the system production date and therefore it is important that the Contractor build the review into project schedules. The reviews may include onsite visits that involve physical or logical inspection of the Contractor environment to ensure controls are in place.

(3) Security Review. The Government may elect to conduct random periodic reviews to ensure that the security requirements contained in this contract are being implemented and enforced. The Contractor shall afford DHS, the Office of the Inspector General, and other

Government organizations access to the Contractor’s facilities, installations, operations, documentation, databases and personnel used in the performance of this contract.