Attachment 1 - Performance Work Statement - Part A.docx

PERFORMANCE WORK STATEMENT FOR DEPARTMENT OF VETERANS AFFAIRS, OFFICE OF ASSET ENTERPRISE MANAGEMENT PROJECT SUPPORT FOR THE ENHANCED-USE LEASE AGREEMENTS, WEST LOS ANGELES VA MEDICAL CENTER INDEFINITE DELIVERY/INDEFINITE QUANTITY (IDIQ)

GENERAL INFORMATION

1. Title of Project: Department of Veterans Affairs, Office of Asset Enterprise Management Project Support for Enhanced Use Lease Agreements, West Los Angeles VA Medical Center (WLA) Indefinite Delivery/Indefinite Quantity (IDIQ) (West LA IDIQ).

2. Scope of Work: The contractor shall provide all resources necessary to accomplish the deliverables described in this Performance Work Statement (PWS). The purpose of this PWS is to select a contractor to provide day-to-day multi-functional project support for EUL projects during the development and execution phases by performing such tasks as technical and strategic support, financial and legal support, various administrative support functions and construction oversight. guidance for implementation of the EUL Program at West Los Angeles VA Medical Center in Los Angeles, California. Among the key areas are:

a) Provide specialized services in the following areas at any time during the EUL project development and execution phases:

· Project management planning and scheduling

· Identify key issues, risks, and potential constraints

· Track project due diligence activities

· Property studies

· Development Plan

· Tenant Selection Plan

· Operations & Maintenance Plan

· Financing documents review

· Design exhibits review

· Construction oversight

· Review lease and exhibits

· Legal documents review

b) For each project, the contractor shall provide EUL transaction support to include:

· Provide ongoing assistance to VA in reviewing and subsequent revisions to the development plan, tenant selection plan, and operations & maintenance plan among other EUL exhibits provided by the developer

· Document and track changes / issues during the drafting process

· Review and provide comments on financial documents up through financial closing

· Review legal transactions and documents for sufficiency including tracking issues and changes during lease revision process

· Review and comment on facility design and / or construction documents from bot a technical and programmatic standpoint

c) Provide communication support in the areas of:

· Conduct Contracting Officer / COR kickoff meetings

· Participation in public hearings

· Maintain a schedule of relevant meetings

· Coordinate and participate in project status Meetings

· Provide project work plans

· Track and share project specific matters with the Project Manager

· Coordination and Participation in internal/external stakeholder meetings

· Draft meeting minutes

· Draft briefing documents and correspondence

d) Provide support with EUL design and construction oversight and management to include, but not limited to the following:

· Track and report project construction progress

· Inform VA of any risks or issues for EUL construction projects along with recommended mitigation strategies

· Facilitate communications between project stakeholders on project construction matters

· Review inspection documents and permits

· Develop recommendations and strategies which include R.O.M. (rough order of magnitude) cost estimate (opinion of probable cost)

e) Provide specialized services and support in the following areas at any time during Developer functions:

· Provide ongoing assistance to VA in reviewing and subsequent revisions to overall transaction structure

· Review and provide comments on business terms associated with Developer EUL and any related legal transaction documents

· Assist VA in working with the Developer and funders to develop and implement the Developer EUL

· Assist VA with parcelization, common area identification, phasing, infrastructure and roads, and parking plan reviews and assessments

· Participate in project calls with the developer and support the Project Manager with follow up action items and tracking

· Maintain up-to-date timeline for Developer activities

· Assist VA in working with the Developer and funders to develop and implement the Master Association concept

f) Provide ongoing assistance with the development and oversight of VA EUL projects on the West Los Angeles Campus

3. Background: The Enhanced-Use Lease Authority, Title 38 United States Code Sections 8161-8169, allows the U.S. Department of Veterans Affairs (VA) to use available land, buildings, and other resources through an out-lease to a third party. Current EUL authority limits EUL development to Supportive Housing for Veterans and/or their families who are homeless or at risk of homelessness. Examples of supportive housing may include transitional housing, single-room occupancy, permanent housing, congregate living housing, independent living housing, assisted living housing, Memory Care, and other modalities of housing. Co-locating housing for homeless and at-risk Veterans on VA campuses reduces Veteran emergency room visits, duration of hospital stays and similar types of acute medical care. This represents cost avoidance to VA in terms of bed days of care and similar health care services. The values of these savings are reported to Congress annually via VA’s EUL Consideration Report. Enhanced-Use Leases are long-term leases (up to 75 years) of VA owned facilities (land, buildings, and other resources) to the public or private sector.

4. Period of Performance: This IDIQ shall be in effect for five (5) years. The work on each task order placed under this IDIQ is anticipated to begin within thirty calendar days of award. However, each individual task order shall state the specific performance period. Work at the Government site shall not take place on Federal holidays or weekends unless directed by the Contracting Officer (CO).

5. Type of Contract: This is anticipated to be a single award IDIQ contract. Firm Fixed price task orders will be generated with a detailed PWS and issued by a Contracting Officer. The maximum (ceiling) amount is estimated at $6,000,000.00 over a five-year performance period. The contract has a onetime minimum of $2,500.00. The contractor must demonstrate it possesses both general and specialized capability, knowledge, and skills. The individual order limit is $1,500,000.00.

6. Place of Performance: The primary place of performance will be at the contractor’s facilities; however, some task orders may require work to be performed at a Government facility (in such case, the place of performance will be specific in the PWS of the task order). Any work at the Government site shall not take place on Federal holidays or weekends unless directed by the Contracting Officer (CO).

7. IDIQ Title: Department of Veterans Affairs, Office of Asset Enterprise Management Project Support for Enhanced Use Lease Agreements, West Los Angeles VA Medical Center (WLA) Indefinite Delivery/Indefinite Quantity (IDIQ) (West LA IDIQ).

CONTRACT AWARD MEETING

The contractor shall not commence performance on the tasks in this PWS until the CO has conducted a kick-off meeting or has advised the contractor that a kick-off meeting is waived.

GENERAL REQUIREMENTS

The following general requirements apply to all task orders issued under this IDIQ:

1. The contractor shall identify its proposed technical approach in writing. The contractor’s task order quote shall include its proposed labor categories, rates, and number of hours by task, together with associated delivery dates and sub-milestone dates (if any) and proposed key personnel résumés if not on file. Résumés are not required for clerical personnel.

2. All written deliverables shall be phrased in layperson language. Statistical and other technical terminology shall not be used without providing a glossary of terms.

3. Unless otherwise specified in an individual task order, the following schedule requirements apply: Where a written milestone deliverable is required in draft form, the VA will complete its review of the draft deliverable within 12 calendar days from date of receipt. The contractor shall have 12 calendar days to deliver the final deliverable from date of receipt of the Government’s comments.

4. The contractor shall provide, via email, minutes of all Government-contractor meetings. The contractor shall provide these minutes within one calendar day after completion of the meeting unless otherwise specified in an individual task order.

5. Except for proprietary information in company quotes identified and marked in accordance with FAR 52.215-1(e), the contractor shall not deliver to the OAEM any proprietary products or information of any type in completing the requirements of each task order PWS. The contractor’s internal development tools (that is, those development tools not developed for OAEM work and not required by OAEM to install, use, or revise the deliverables) are exempted from this requirement. If the contractor believes an exception to this requirement is necessary for the effective or efficient execution of a task order, the contractor shall request a specific exception, in writing, to the CO, and shall not use the proprietary tools or information in OAEM work until approval is received from the CO.

6. Complaints or violation validated by the COR or VA staff will be reported in writing to the CO for action. If the contractor fails to correct validated complaints raised by the COR and or CO, it will be considered a failure in performance.

7. The CO may require the contractor to meet with the CO, contract administrator, and other Government personnel at least quarterly, and as often as deemed necessary. The contractor may request a meeting with the CO when deemed necessary.

SPECIFIC MANDATORY TASKS AND ASSOCIATED DELIVERABLES

Description of Tasks and Associated Deliverables:

1. For each task order awarded under this IDIQ, the contractor shall provide the specific deliverables (and ensure 508 compliance, as requested by the COR) described in the task order PWS, within the performance period stated in Section 4 above. Specific sub-tasks and associated deliverables will be identified in each task order placed under the IDIQ. The deliverables described below are typical requirements; however, each task order may have requirements in addition to or instead of those listed below.

2. The contractor shall be responsible for assessing VA’s current Enhanced Use Leases and providing review, monitoring, and ensuring compliance of transactions. The contractor will help VA to operate efficiently and to effectively manage all Enhanced Use Leases. Specifically, this shall include but not limited to the following tasks:

a) Task One: Project Management Plan and Briefing

The contractor shall provide a PMP and briefing for the project team, which presents the contractor's plan for completing the task order. The Contractor’s plan shall be responsive to the PWS and describe, in further detail, the approach to be used for each aspect of the task order as defined in the technical proposal. At a minimum, the PMP shall include the risk, quality, and technical management approach, work breakdown structure (WBS), detailed schedule, cost requirements, and proposed personnel. The contractor shall keep the PMP up to date throughout the period of performance.

Sample Deliverable:

PMP that includes a draft and final PMP and Briefing.

b) Task Two: Communications

The Contractor shall work with OAEM leadership, GLAHS and contractors to ensure clear, consistent messaging on EUL-related issues. For each project, the contractor shall participate in project status meetings, project kick-off meetings with VA officials and participate in internal/external stakeholder meetings with local power, water and gas companies and other entities, as requested by the COR. The contractor shall provide meeting minutes for all attended engagements and prepare project work plans.

The Contractor shall participate in all in-person/virtual external stakeholder meetings in the Los Angeles area related to housing on campus, including but not limited to public town halls, public hearings, and meetings with Veterans Advocacy, the Federal Advisory Committee (FAC), the Los Angeles Region Community Veteran Engagement Board (LAR-CVEB), Veterans and Community Oversight and Engagement Board (VCOEB).

Sample Deliverables:

· Conduct Contracting Officer/COR kick-off meetings with VA officials via conference call or in person.

· Coordinate bi-weekly conference calls with project action item checklist.

· Provide monthly project work plans.

· The contractor shall maintain a schedule of all relevant meetings, the purposes of those meetings and key messages.

· The contractor shall support OAEM in these meetings, address EUL related issues, and relay any important information to OAEM leadership as required.

· Participate in external stakeholder meetings.

· Provide monthly stakeholder meeting report to OAEM leadership.

c) Task Three: Technical and Strategic Expertise, Support, and Assistance - EUL Integration on WLA Campus.

The Contractor shall provide subject matter technical expertise, support, and assistance to OAEM staff with West LA EUL project tasks. Subject matter expertise shall include but not be limited to affordable housing development and finance, financial analysis, budgetary scoring, master planning, property management, and other similar areas. Contractor should assume two specialized requests per month as requested by the COR and agreed upon by the Contractor in advance of task initiation.

Contractor support under this task shall consist of:

1. EUL Project Integration: The Contractor shall provide EUL project coordination and support to OAEM for integration of all EUL projects on the WLA campus into the overall master planning effort. This support will include interfacing with OAEM, GLAHS, VA’s Office of Facilities Management (CFM), VISN 22, and contractors working on the West LA Master Plan.

2. Integrated Project Team (IPT) and Subgroup Meeting Participation:

The Contractor shall participate in all IPT and associated Subgroup meetings, providing meeting notes on action items or issues.

3. Support for Campus Master Planning Activities Related to EUL Projects and SCIP Projects: The Contractor shall provide support to OAEM related to campus master planning activities impacting EUL and other capital investment projects. These activities include, but are not limited to:

· Coordination and participation in meetings and conference calls.

· Confirming that all approaches to campus development fall within existing VA legal authorities.

· Compliance with OMB and CBO budgetary scoring requirements.

· Preservation of VA’s ability to maintain responsibility for inherently governmental functions.

· Coordination with OAEM staff on related budget and VA Strategic Capital Investment Plan (SCIP) activities and questions pertaining to the WLA campus and EUL projects

· Assistance to OAEM with FOIA and/or OIG inquiries related to EUL and other capital investment projects and GAO audits of the EUL program under West LA Leasing Act 2016.

Sample Deliverables:

· As agreed to by COR and Contractor in advance of task initiation, contractor should assume two specialized requests per month.

· Provide bi-weekly reports to the Project Manager for all EUL related activities occurring at West LA.

· Provide bi-weekly West LA EUL comprehensive project status reports to OAEM leadership.

· Attendance of up to 100 IPT meetings per year and associated subgroup meetings.

· Coordinate and participate in up to 24 meetings and conference calls per year

· Draft up to 12 presentations per year – 2 drafts of each, and 1 final of each

· Draft responses to various oversight organizations.

d) Task Four: Real Property Studies for EULs

For each EUL project the contractor shall work with OAEM and developers to identify the preliminary boundary of each parcel. Once each preliminary boundary has been identified, the Contractor shall obtain an ALTA survey for each confirmed parcel.

Sample Deliverables:

The contractor shall provide the following for up to eleven (11) parcels during the performance period of the contract:

· Revised Real property ALTA Surveys

· Phase I Environmental Site Assessments in accordance with the current version of ASTM E1527.

· Fair Market Property Appraisal/Valuations

· Legal Descriptions

· Title Search

e) Task Five: EUL Related Technical Support for Project Structuring

For each project, the contractor shall provide the Project Manager with technical support by providing edits and comments on business terms of draft and final Developer lease and lease exhibits to include Master Association, development plan, site and design plan, and financing documents.

Sample Deliverables:

· Assist VA in reviewing lease, lease exhibits, supporting documents and subsequent revisions to the development plan, tenant selection plan, and operations & maintenance plan and other EUL exhibits provided by respective developer. This includes documenting and tracking changes/issues during the drafting process.

· Assist VA in working with the Developer and funders to develop and implement the Developer Lease and lease exhibits.

· Assist VA with parcelization, common area identification, phasing, infrastructure and roads, and parking plan reviews and assessments.

· Review and provide comments on business terms associated with Developer Lease, lease exhibits, and any related legal and financial transaction documents through financial closing. (Note: Legal support to be covered by a separate Task).

· Review legal transaction and documents – track issues and changes during the lease revision process, review for legal sufficiency, etc.

· Review facility design and/or construction documents (from both technical and programmatic standpoints).

· Participate in bi-weekly calls with Developer and support PM with action item checklist to keep effort on track.

f) Task Six: Legal Support

The Contractor shall provide legal support services to assist VA in developing and executing all EULs, as well as related real estate matters on the West LA campus.

Sample Deliverable:

· Review and provide comments on draft and final lease documents.

· Participate in conference calls.

· Provide email Correspondence.

g) Task Seven: Onsite Design/Construction Oversight

The contractor shall provide design/construction management support to OAEM with monitoring and reporting associated with tracking construction progress for specified projects based on Developer EUL Phasing Plan (subject to change). The contractor shall assist VA in responding to any special inquiries from internal or external stakeholders concerning construction on these projects and inform VA of any concerns, challenges, and/or risks associated with construction work, along with proposed mitigation strategies.

Sample Deliverables:

· Participating in a multi-disciplinary team responsible for data management, analysis, and support on complex project issues and problems.

· Applying project and construction management knowledge to meet field needs while managing issues on several projects simultaneously.

· Track’s construction/project related documentation.

· Participation in design/construction meetings.

· Supporting VA staff in monitoring project progress and identifying potential problems.

· Developing recommendations and strategies which include R.O.M. (rough order of magnitude) cost estimate (opinion of probable cost) to address issues, applying knowledge of current design and construction methodologies, and making recommendations for adjustments of future agreements.

· Compiling reports and verifying computations to ensure accuracy and providing expertise on the development of metrics and solutions to mitigate risks associated with major construction projects.

· Reviewing necessary utility permits that are required from respective municipality and/or state entities.

· Drafting and distributing project updates and facilitating team communication.

· Conducting periodic compliance reviews and quality assurance on project data to keep requirements within the parameters established by the project scope, budget, and schedule.

· Liaising with project stakeholders about project requirements, timelines, and administrative reporting.

· Draft and submit bi-weekly construction reports to include narrative and metrics-based data including:

· Percentage of construction completed +/-, work completed

· Ongoing updates to risk matrix (potential known challenges/risks)

· A two week/three-week look ahead summary of activities (allows for VA to be fully engaged in substantive details).

· Provide recommendations to VA regarding the utility planning and construction and implications/risks/risk mitigation of utility shut-off and turn-on planning.

· Review and summary status of construction documents such as:

· Lien Releases (Ensure all liens are released from sub-contractors and general contractor for utility work)

· Performance Bond Status (Ensure the scope of work includes an executed Performance Bond with United States of America as Co-Beneficiary for 100% of the utility work)

· Change Orders (Summarize and update any change order work from the subcontractors/general contractor)

· Insurance certificates (Ensure general contractor’s general liability insurance is current and maintained in compliance with Lease requirements)

· Utility License/Easement Packages

· Inspection Reports

· Resolution report for punch list items

· Final commissioning report or acceptance testing report

· Sustainability Certification

· Final end of construction report coordination (including utility work) for each project

· Final as-built coordination (collect final as-builts once work is substantially completed and utilities are in operation) for each project

h) Task Eight: Due Diligence Tracking Support

The contractor shall work with OAEM staff to review and track incoming due diligence activity requests from EUL developers. The contractor shall review and clarify information contained in all requests and update the due diligence tracker on a weekly basis. The contractor shall prepare Management Plans for any major due diligence tasks/activities (e.g., pot holing for trunk line) and work with OAEM to obtain GLA approval as required.

Sample Deliverable:

Draft and submit due diligence tracker updates, and due diligence email correspondence for due diligence activities as requested by COR.

PERFORMANCE STANDARDS AND METHODS AS SPECIFIED IN EACH TASK.

The Quality Assurance Plan outlines performance standards and methods specific to each task. Past performance will be documented based on the below criteria.

2. Status meetings are scheduled on time, with appropriate staff attending and issues addressed to VA’s satisfaction.

1. Review of Monthly Status Reports and Status Meetings.

100% inspection

100% inspection

2. Corrections and re-submittals to VA within five calendar days of rejected deliverables.

3. Low turnover of key personnel; contractor develops and maintains a staffing plan that adequately supports the requirements of the task orders 98% of the time.

4. Open communication between VA and stakeholders

5. Ability to meet the within scope changing demands of the EUL projects on the WLA Campus as they evolve.

1. Review of Final Deliverables, Status Reports, and Status Meetings.

2. Review and Approval of Key Personnel Changes

3. VA Satisfaction.

EVALUATED OPTIONAL TASKS AND ASSOCIATED DELIVERABLES.

Evaluated optional tasks and associated deliverables, if required, will be specified in each task order.

SCHEDULE OF DELIVERABLES

See Attachment A, Schedule of Deliverables.

1. Unless otherwise specified in the task order, the number of draft copies and the number of final copies shall be the same.

2. If for any reason the scheduled time for a deliverable cannot be met, the contractor is required to explain why (include the original deliverable due date) in writing to the CO, including a firm commitment of when the work shall be completed. This notice to the CO shall cite the reasons for the delay, and the impact on the overall project. The CO will then review the facts and issue a response in accordance with applicable regulations.

CHANGES TO PERFORMANCE WORK STATEMENT

Any changes to this PWS shall be authorized and approved only through written correspondence from the CO. Costs incurred by the contractor through the actions of parties other than the CO shall be borne by the contractor.

TRAVEL

The contractor may be required to travel to Washington, D.C., or to other VA locations. Travel and per diem shall be reimbursed, if applicable, in accordance with the Federal Travel Regulations. Each contractor invoice must include copies of all receipts that support the travel costs claimed in the invoice. No General and Administrative (G&A) fees or costs, and no other fees or costs shall be added to travel expenses. Local travel within a 50-mile radius from the contractor's facility is considered the cost of doing business and will not be reimbursed. This includes travel, subsistence, and associated labor charges for travel time. Travel performed for personal convenience and daily travel to and from work at the contractor's facility will not be reimbursed. Travel, subsistence, and associated labor charges for travel time for travel beyond a 50-mile radius of the contractor's facility are authorized on a case-by-case basis and must be pre-approved by the CO at least 30 calendar days in advance for the requested travel.

GOVERNMENT FURNISHED PROPERTY AND INFORMATION

Government Furnished Property and Information, if required, will be specified in each task order. Except for those items or services specifically stated to be Government furnished, the contractor shall furnish everything required to perform task orders.

CONTRACTOR EXPERIENCE REQUIREMENTS—KEY PERSONNEL

1. These skilled experienced professional and/or technical personnel are essential for successful contractor accomplishment of the work to be performed under this contract and subsequent task orders and options. The contractor shall include in the technical proposal for each task order the résumés on all proposed professional and/or technical personnel who will perform the tasks in the task order. Résumés are not required for clerical personnel. The personnel whose résumés are submitted are defined as key personnel. The contractor agrees that the key personnel listed below shall not be removed, diverted, or replaced from work without approval of the CO and COR.

2. Any personnel the contractor offers as substitutes shall have the ability and qualifications equal to or better than the key personnel that are being replaced. Requests to substitute personnel shall be approved by the COR and the CO. All requests for approval of substitutions in personnel shall be submitted to the COR and the CO at least 30 calendar days prior to making any change in key personnel. The request shall be written and provide a detailed explanation of the circumstances necessitating the proposed substitution. The contractor shall submit a complete résumé for the proposed substitute, any changes to the rate specified in the order (as applicable) and any other information requested by the CO needed to approve or disapprove the proposed substitution. The CO will evaluate such requests and promptly notify the contractor of approval or disapproval thereof in writing.

Note:

a) Personnel assigned by the contractor to perform work on this contract shall be acceptable to VA in terms of personal and professional conduct and technical knowledge. The CO may notify the contractor and request that a person be immediately removed from assignment on this contract should any contractor personnel be determined to be unacceptable in terms of technical competency or personal conduct during duty hours. The contractor shall immediately remove and replace the unacceptable on-site personnel at no additional costs to the Government. Replacement personnel qualifications shall be equal to or greater than those of the personnel being replaced. Employment and staffing difficulties shall not be justification for failure to meet established schedules.

b) Contractor personnel shall be fluent and communicate in the English language, both written and oral communication.

c) The contractor shall notify the CO whenever an employee of the United States Government is utilized by the contractor in the performance of the contract. The notification shall include sufficient information for the Contracting Officer to review the matter in accordance with FAR Part 3 and Subpart 9.5.

d) The contractor shall verify employee eligibility through the E-Verify system.

VHA SUPPLEMENTAL CONTRACT REQUIREMENTS FOR ENSURING ADEQUATE COVID-19 SAFETY PROTOCOLS FOR FEDERAL CONTRACTORS

1. Contractor employees who work in or travel to VHA locations must comply with the following:

1. Documentation requirements:

0. If fully vaccinated, shall show proof of vaccination

0. NOTE: Acceptable proof of vaccination includes a signed record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on September 3, 2020), or a copy of medical records documenting the vaccination

0. If unvaccinated and granted a medical or religious exception, shall show negative COVID-19 test results dated within three calendar days prior to desired entry date. Test must be approved by the Food and Drug Administration (FDA) for emergency use or full approval. This includes tests available by a doctor’s order or an FDA approved over-the-counter test.

0. Documentation cited in this section shall be digitally or physically maintained on each contractor employee while in a VA facility and is subject to inspection prior to entry to VA facilities and after entry for spot inspections by Contracting Officer Representatives (CORs) or other hospital personnel.

0. Documentation will not be collected by the VA; contractors shall, at all times, adhere to and ensure compliance with federal laws designed to protect contractor employee health information and personally identifiable information.

2. Contractor employees are subject to daily screening for COVID-19 and may be denied entry to VA facilities if they fail to pass screening protocols. As part of the screening process contractors may be asked screening questions found on the following website: COVID-19 Screening Tool. Regularly check the website for updates.

1. Contractor employees who work away from VA locations, but who will have direct patient contact with VA patients shall self-screen utilizing the COVID-19 Screening Tool, in advance each day that they will have direct patient contact and in accordance with their person or persons who coordinate COVID-19 workplace safety efforts at covered contractor workplaces. Contractors shall, at all times, adhere to and ensure compliance with federal laws designed to protect contractor employee health information and personally identifiable information.

3. Contractor must immediately notify their COR or Contracting Officer if contract performance is jeopardized due to contractor employees being denied entry into VA Facilities.”

4. For indefinite delivery contracts: Contractor agrees to comply with FAR 52.232-99 and VHA Supplemental Contract Requirements for any task or delivery orders issued prior to this modification when performance has already commenced.

SECURITY REQUIREMENTS

VA INFORMATION AND INFORMATION SYSTEM SECURITY/PRIVACY

1. GENERAL

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

2. ACCESS TO VA INFORMATION AND VA INFORMATION SYSTEMS

(a) A contractor/subcontractor shall request logical (technical) or physical access to VA information and VA information systems for their employees, subcontractors, and affiliates only to the extent necessary to perform the services specified in the contract, agreement, or task order.

(b) All contractors, subcontractors, and third-party servicers and associates working with VA information are subject to the same investigative requirements as those of VA appointees or employees who have access to the same types of information. The level and process of background security investigations for contractors must be in accordance with VA Directive and Handbook 0710, Personnel Suitability and Security Program. The Office for Operations, Security, and Preparedness is responsible for these policies and procedures.

(c) Contract personnel who require access to national security programs must have a valid security clearance. National Industrial Security Program (NISP) was established by Executive Order 12829 to ensure that cleared U.S. defense industry contract personnel safeguard the classified information in their possession while performing work on contracts, programs, bids, or research and development efforts. The Department of Veterans Affairs does not have a Memorandum of Agreement with Defense Security Service (DSS). Verification of a Security Clearance must be processed through the Special Security Officer located in the Planning and National Security Service within the Office of Operations, Security, and Preparedness.

(d) Custom software development and outsourced operations must be located in the U.S. to the maximum extent practical. If such services are proposed to be performed abroad and are not disallowed by other VA policy or mandates, the contractor/subcontractor must state where all non-U.S. services are provided and detail a security plan, deemed to be acceptable by VA, specifically to address mitigation of the resulting problems of communication, control, data protection, and so forth. Location within the U.S. may be an evaluation factor.

(e) The contractor or subcontractor must notify the Contracting Officer immediately when an employee working on a VA system or with access to VA information is reassigned or leaves the contractor or subcontractor’s employ. The Contracting Officer must also be notified immediately by the contractor or subcontractor prior to an unfriendly termination.

3. VA INFORMATION CUSTODIAL LANGUAGE

(a) Information made available to the contractor or subcontractor by VA for the performance or administration of this contract or information developed by the contractor/subcontractor in performance or administration of the contract shall be used only for those purposes and shall not be used in any other way without the prior written agreement of the VA. This clause expressly limits the contractor/subcontractor’s rights to use data as described in FAR 52.227-14(d)(1), Rights in Data – General.

(b) VA information should not be co-mingled, if possible, with any other data on the contractors/subcontractor’s information systems or media storage systems in order to ensure VA requirements related to data protection and media sanitization can be met. If co-mingling must be allowed to meet the requirements of the business need, the contractor must ensure that VA’s information is returned to the VA or destroyed in accordance with VA’s sanitization requirements. VA reserves the right to conduct

(c) On-site inspections of contractor and subcontractor IT resources to ensure data security controls, separation of data and job duties, and destruction/media sanitization procedures are in compliance with VA directive requirements. Prior to termination or completion of this contract, contractor/subcontractor must not destroy information received from VA, or gathered/created by the contractor in the course of performing this contract without prior written approval by the VA. Any data destruction done on behalf of VA by a contractor/subcontractor must be done in accordance with National Archives and Records Administration (NARA) requirements as outlined in VA Directive 6300, Records and Information Management and its Handbook 6300.1 Records Management Procedures, applicable VA Records Control Schedules, and VA Handbook 6500.1, Electronic Media Sanitization. Self-certification by the contractor that the data destruction requirements above have been met must be sent to the VA Contracting Officer within 30 days of termination of the contract.

(d) The contractor/subcontractor must receive, gather, store, back up, maintain, use, disclose and dispose of VA information only in compliance with the terms of the contract and applicable Federal and VA information confidentiality and security laws, regulations and policies. If Federal or VA information confidentiality and security laws, regulations and policies become applicable to the VA information or information systems after execution of the contract, or if NIST issues or updates applicable FIPS or Special Publications (SP) after execution of this contract, the parties agree to negotiate in good faith to implement the information confidentiality and security laws, regulations and policies in this contract.

(e) The contractor/subcontractor shall not make copies of VA information except as authorized and necessary to perform the terms of the agreement or to preserve electronic information stored on contractor/subcontractor electronic storage media for restoration in case any electronic equipment or data used by the contractor/subcontractor needs to be restored to an operating state. If copies are made for restoration purposes, after the restoration is complete, the copies must be appropriately destroyed.

(f) If VA determines that the contractor has violated any of the information confidentiality, privacy, and security provisions of the contract, it shall be sufficient grounds for VA to withhold payment to the contractor or third party or terminate the contract for default or terminate for cause under Federal Acquisition Regulation (FAR) Part 12.

(g) If a VHA contract is terminated for cause, the associated BAA must also be terminated and appropriate actions taken in accordance with VHA Handbook 1600.01, Business Associate Agreements. Absent an agreement to use or disclose protected health information, there is no business associate relationship.

(h) The contractor/subcontractor must store, transport, or transmit VA sensitive information in an encrypted form, using VA-approved encryption tools that are, at a minimum, FIPS 140-2 validated.

(i) The contractor/subcontractor’s firewall and Web services security controls, if applicable, shall meet or exceed VA’s minimum requirements. VA Configuration Guidelines are available upon request.

(j) Except for uses and disclosures of VA information authorized by this contract for performance of the contract, the contractor/subcontractor may use and disclose VA information only in two other situations: (i) in response to a qualifying order of a court of competent jurisdiction, or (ii) with VA’s prior written approval. The contractor/subcontractor must refer all requests for, demands for production of, or inquiries about, VA information and information systems to the VA contracting officer for response.

(k) Notwithstanding the provision above, the contractor/subcontractor shall not release VA records protected by 38 U.S.C. § 5705, confidentiality of medical quality assurance records and/or 38 U.S.C. § 7332, confidentiality of certain health records pertaining to drug addiction, sickle cell anemia, alcoholism or alcohol abuse, or infection with human immunodeficiency virus. If the contractor/subcontractor is in receipt of a court order or other requests for the above-mentioned information, that contractor/subcontractor shall immediately refer such court orders or other requests to the VA contracting officer for response.

(l) For service that involves the storage, generating, transmitting, or exchanging of VA sensitive information but does not require C&A or an MOU-ISA for system interconnection, the contractor/subcontractor must complete a Contractor Security Control Assessment (CSCA) on a yearly basis and provide it to the COR.

4. INFORMATION SYSTEM DESIGN AND DEVELOPMENT

(a) Information systems that are designed or developed for or on behalf of VA at non-VA facilities shall comply with all VA directives developed in accordance with FISMA, HIPAA, NIST, and related VA security and privacy control requirements for Federal information systems. This includes standards for the protection of electronic PHI, outlined in 45 C.F.R. Part 164, Subpart C, information, and system security categorization level designations in accordance with FIPS 199 and FIPS 200 with implementation of all baseline security controls commensurate with the FIPS 199 system security categorization (reference Appendix D of VA Handbook 6500, VA Information Security Program). During the development cycle a Privacy Impact Assessment (PIA) must be completed, provided to the COR, and approved by the VA Privacy Service in accordance with Directive 6507, VA Privacy Impact Assessment.

(b) The contractor/subcontractor shall certify to the COR that applications are fully functional and operate correctly as intended on systems using the VA Federal Desktop Core Configuration (FDCC), and the common security configuration guidelines provided by NIST or the VA. This includes Internet Explorer 7 configured to operate on Windows XP and Vista (in Protected Mode on Vista) and future versions, as required.

(c) The standard installation, operation, maintenance, updating, and patching of software shall not alter the configuration settings from the VA approved and FDCC configuration. Information technology staff must also use the Windows Installer Service for installation to the default “program files” directory and silently install and uninstall.

(d) Applications designed for normal end users shall run in the standard user context without elevated system administration privileges.

(e) The security controls must be designed, developed, approved by VA, and implemented in accordance with the provisions of VA security system development life cycle as outlined in NIST Special Publication 800- 37, Guide for Applying the Risk Management Framework to Federal Information Systems, VA Handbook 6500, Information Security Program and VA Handbook 6500.5, Incorporating Security and Privacy in System Development Lifecycle.

(f) The contractor/subcontractor is required to design, develop, or operate a System of Records (SOR) Notice on individuals to accomplish an agency function subject to the Privacy Act of 1974, (as amended), Public Law 93-579, December 31, 1974 (5 U.S.C. § 552a) and applicable agency regulations. Violation of the Privacy Act may involve the imposition of criminal and civil penalties.

(g) The contractor/subcontractor agrees to:

1. Comply with the Privacy Act of 1974 (the Act) and the agency rules and regulations issued under the Act in the design, development, or operation of any system of records on individuals to accomplish an agency function when the contract specifically identifies:

a) The Systems of Records (SOR); and

b) The design, development, or operation work that the contractor/ subcontractor is to perform;

i. Include the Privacy Act notification contained in this contract in every solicitation and resulting subcontract and in every subcontract awarded without a solicitation, when the work statement in the proposed subcontract requires the redesign, development, or operation of a SOR on individuals that is subject to the Privacy Act; and

ii. Include this Privacy Act clause, including this subparagraph (3), in all subcontracts awarded under this contract which requires the design, development, or operation of such a SOR.

(h) In the event of violations of the Act, a civil action may be brought against the agency involved when the violation concerns the design, development, or operation of a SOR on individuals to accomplish an agency function, and criminal penalties may be imposed upon the officers or employees of the agency when the violation concerns the operation of a SOR on individuals to accomplish an agency function. For purposes of the Act, when the contract is for the operation of a SOR on individuals to accomplish an agency function, the contractor/subcontractor is considered to be an employee of the agency.

(1) “Operation of a System of Records” means performance of any of the activities associated with maintaining the SOR, including the collection, use, maintenance, and dissemination of records.

(2) “Record” means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, education, financial transactions, medical history, and criminal or employment history and contains the person’s name, or identifying number, symbol, or any other identifying particular assigned to the individual, such as a fingerprint or voiceprint, or a photograph.

(3) “System of Records” means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.

(i) The vendor shall ensure the security of all procured or developed systems and technologies, including their subcomponents (hereinafter referred to as “Systems”), throughout the life of this contract and any extension, warranty, or maintenance periods. This includes, but is not limited to workarounds, patches, hotfixes, upgrades, and any physical components (hereafter referred to as Security Fixes) which may be necessary to fix all security vulnerabilities published or known to the vendor anywhere in the Systems, including Operating Systems and firmware. The vendor shall ensure that Security Fixes shall not negatively impact the Systems.

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

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

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

5. INFORMATION SYSTEM HOSTING, OPERATION, MAINTENANCE, OR USE

(a) For information systems that are hosted, operated, maintained, or used on behalf of VA at non-VA facilities, contractors/subcontractors are fully responsible and accountable for ensuring compliance with all HIPAA, Privacy Act, FISMA, NIST, FIPS, and VA security and privacy directives and handbooks. This includes conducting compliant risk assessments, routine vulnerability scanning, system patching and change management procedures, and the completion of an acceptable contingency plan for each system. The contractor’s security control procedures must be equivalent, to those procedures used to secure VA systems. A Privacy Impact Assessment (PIA) must also be provided to the COR and approved by VA Privacy Service prior to operational approval. All external Internet connections to VA’s network involving VA information must be reviewed and approved by VA prior to implementation.

(b) Adequate security controls for collecting, processing, transmitting, and storing of Personally Identifiable Information (PII), as determined by the VA Privacy Service, must be in place, tested, and approved by VA prior to hosting, operation, maintenance, or use of the information system, or systems by or on behalf of VA. These security controls are to be assessed and stated within the PIA and if these controls are determined not to be in place, or inadequate, a Plan of Action and Milestones (POA&M) must be submitted and approved prior to the collection of PII.

(c) Outsourcing (contractor facility, contractor equipment or contractor staff) of systems or network operations, telecommunications services, or other managed services requires certification and accreditation (authorization) (C&A) of the contractor’s systems in accordance with VA Handbook 6500.3, Certification and Accreditation and/or the VA OCS Certification Program Office. Government- owned (Government facility or Government equipment) contractor-operated systems, third party or business partner networks require memoranda of understanding and interconnection agreements (MOU-ISA) which detail what data types are shared, who has access, and the appropriate level of security controls for all systems connected to VA networks.

(d) The contractor/subcontractor’s system must adhere to all FISMA, FIPS, and NIST standards related to the annual FISMA security controls assessment and review and update the PIA. Any deficiencies noted during this assessment must be provided to the VA contracting officer and the ISO for entry into VA’s POA&M management process.