P02 PWS - DRAFT for Sources Sought.docx

PWS EEO Services: EEO Investigations

PWS EEO Services: EEO Investigations

PWS EEO Services: EEO Investigations

PERFORMANCE WORK STATEMENT (PWS)

1.0 INTRODUCTION

The Department of Veterans Affairs (VA) Office of Resolution Management (ORM) has a need for support personnel to provide assistance in ensuring that discrimination complaints are processed fairly, promptly, thoroughly, and in strict compliance with the Equal Employment Opportunity Commission (EEOC) regulations and in accordance with Public Law 105-114 (PL105-114) and Title 29 CFR Part 1614.

1.1 BACKGROUND

ORM promotes a healthy working environment through prevention, resolution, and processing of workplace disputes, including complaints of discrimination. We foster prevention by ensuring that managers and staff are educated on the elements of a healthy working environment. ORM has resolution experts who promote and deliver alternative dispute resolution techniques for all workplace disputes, including alleged equal employment opportunity (EEO) discrimination. In cases where resolution cannot be reached informally, ORM processes complaints of EEO discrimination in a timely and proficient manner.

2.0 SCOPE OF WORK

The Government requires contractor support personnel who shall provide support services to assist the VA ORM to fulfill its mission of ensuring that discrimination complaints are processed fairly, promptly, thoroughly, and in strict compliance with the EEOC regulations.

The contractor shall identify a project manager for each award to ensure that contractor personnel are properly supervised.

The project manager is required be a fully trained EEO Investigator with current credentials as outlined in EEOC Management Directive (MD) 110. The program manager must possess computer equipment that allows the sending and receiving of encrypted emails and use BOX.com for transferring investigative files. The Government personnel will provide access to secured system to transmit files to vendor and investigators.

The Contractor support services shall be conducted in accordance with the PL 105-114, 29 CFR 1614, 29 C.F.R. Part 1614; EEO Management Directive (MD)-110, Federal Acquisition Regulations (FAR), Veterans Affairs Acquisition Regulations (VAAR) and all other Federal acquisition policies or directives.

2.1 TIME PERIODS

All time periods set out in this PWS are stated in calendar days unless otherwise indicated. The first day counted is the day after the event from which the time period begins to run and the last day of the period shall be included unless it falls on a Saturday or Sunday or Federal holiday, in which case the period shall be extended to include the next business day.

2.2 GOVERNMENT TERMS & DEFINITIONS

Additional Issue – An additional claim that is filed with the original formal complaint COR – Contracting Officer’s Representative Contracting Investigator Email- ORMInvestigationContractingTeam@va.gov GFP – Government Furnished Property IDIQ- Indefinite Delivery Indefinite Quantity Letter of Authorization – The letter from the COR that gives the contractor the authority to conduct the EEO Investigation ROI – Report of Investigation TMS- Talent Management System

3.0 CONTRACTOR KEY PERSONNEL

a. The personnel specified below are considered essential to the work being performed under this contract and may, with the consent of the contracting parties, be changed from time to time during the course of the contract by adding or deleting personnel, as appropriate.

b. Before removing or replacing any of the specified individuals, the Contractor shall notify the Contracting Officer, in writing, no less than 14-days before the change becomes effective. The Contractor shall submit sufficient information to support the proposed action and to enable the COR and CO to evaluate the potential impact of the change on this contract. The Contractor shall not remove or replace personnel until the COR, and CO approves the change. The following are designated as Key Personnel under this contract:

3.1 Project Manager

The Contractor shall provide a Project Manager who shall be responsible for all Contractor work performed under this PWS. The Project Manager is designated as Key Personnel by the ORM. The Project Manager shall be a single Point of Contact (POC) for the Contracting Officer (CO) and the COR.

a. The Certification and Accreditation (C&A) requirements do not apply, and a security accreditation package is not required.

3.2 Qualified Personnel

The Contractor shall provide qualified and currently credentialed personnel as outlined in EEOC MD-110, personnel to perform all requirements in this PWS and all task orders issued under this contract.

3.3 Employee Conduct

Contractor employees shall remain objective throughout the EEO process and express no opinion to parties or witnesses as to whether prohibited discrimination has occurred.

3.4 Removing Employees for Misconduct or Security Reasons

The COR, with approval of the CO, has sole discretion to direct the Contractor to remove any Contractor employee from VA facilities or this contract for misconduct or security reasons. Such removal does not relieve the Contractor of the responsibility to provide sufficient qualified personnel for adequate and timely service.

3.5 Conflict of Interest

Conflicts of interest shall disqualify investigators from performing services under this PWS. The Contractor shall not employ any person who is an employee of the United States Government if that employment would, or appear, to cause a conflict of interest. If either the Contractor or VA determines that the Contractor and/or an employee of the Contractor faces a potential, perceived, or actual conflict of interest, the individual that determined the existence of the conflict shall notify the other party (i.e. the Contractor/VA) and the Contractor and/or contractor employee shall cease all work on the assigned task. At CO/COR discretion, the Contractor shall provide an acceptable replacement.

4.0 PERIOD OF PERFORMANCE

The period of performance for ordering under this contract will not exceed five years from the effective date of the agreement.

5.0 PLACE OF PERFORMANCE

The place of performance will be specified within each Order. The Government anticipates the services to be provided will be primarily performed at the contractor’s site. In the instance where the contractor is required to work at the Government site, work shall not take place on Federal holidays unless directed by the COR.

6.0 TYPE OF CONTRACT

This PWS is for a Multiple-Award IDIQ under NAICS code 511611. Orders issued under this agreement will be Firm-Fixed Price (FFP). This will be a 100% Service-Disabled Veteran Owned Small Business (SDVOSB) set-aside solicitation. The Contractor shall provide all equipment and resources necessary to accomplish the requirements described in this PWS.

7.0 SPECIFIC REQUIREMENTS/TASKS

The following requirements apply to all Orders placed against this IDIQ.

7.1 Investigation of Discrimination Complaints

This requirement includes, but is not limited to, interviews of parties and witnesses, requests for evidence and obtaining the necessary evidence and relevant statistical evidence, compilation of investigative files and preparation of the ROI. All harassment/hostile work environment complaints shall be identified as a one claim cost with several incidents and not treated as additional issues. The COR will determine the type of complaint (e.g. individual complaint, consolidated complaint) and number of issues contained in each complaint. Any disagreement between COR and the Contractor regarding the type of complaint and/or number of issues will be resolved through discussion between CO, COR and the Contractor. All investigations shall be conducted in accordance with EEOC Regulations at 29 C.F.R.§1614 et. seq. and MD-110.

7.2 Method of Investigations

Investigations can either be conducted telephonically or through written interrogatory. Regardless of method the following template shall be utilized for testimony (Attachment A).

1. Investigative Plans-within four days of the assignment going into effect an investigation plan will be provided to the Agency for review, prior to the commencement of the investigation. The Agency will review and respond to the contractor within four days of receipt. The (Attachment B) template shall be utilized for the plan.

2. The ROI is due 70 calendar days after the assignment date of the investigation.

3. Exceptions and extensions due to emergent problems shall require coordination and approval by the COR. Extension for the delivery of the ROI must be requested two weeks prior to the due date.

4. The methodology for carrying out the interview is up to the contractor. The contractor can use telephone interviews or written interrogatories. Agency will not pay an associated cost related to court reporting or transcription services.

7.3 Affidavits

Witnesses will be given ten calendar days to provide their statements. The Agency requires signed affidavits under penalty of perjury. Acceptable formats include digital signatures and wet signatures. In the event the signature is not secured, the file should reflect documented attempts to acquire the signed affidavit.

Each affidavit shall:

1. Identify the questions presented to the affiant, followed by the affiant’s response.

2. Be formatted in a question-and-answer style.

The contractor will ensure all information and data is maintained in accordance with the Privacy Act of 1974 (5 U.S.C. § 552a) and VA policies. The contractor will advise contract employees, participants, and recipients of EEO complaint information they are responsible for protecting such information in accordance with Federal law and VA policies.

7.4 Lack of Response.

If a complainant, witness or Responding Management Official (RMO) fails to respond or supply testimony within the timeline established by investigator, the Contractor shall issue a notice of witness non-compliance (Attachment C) and complainant non-compliance (Attachment D) as attached. The investigator shall reissue the affidavit and give seven days to comply. If, after issuing a notice of non-compliance the witness fails to comply, the Contractor shall immediately notify the COR. When notifying COR all attempts and non-compliance documentation should be supplied along with the Word version of the affidavit.

7.5 Report of Investigation (ROI)

Upon completion of the investigation, the ROI, a Word version table of contents and investigative summary shall be submitted through the Agency’s exchange server in the designated folder provided. The ROI should be in accordance with EEOC-MD-110 (Chapter 6) with regard to sufficiency and in the following standard format/Table of Contents in Attachment B, and as further described in 7.6 – ROI Format If the Agency’s exchange server is not operational for more than 48-hours, the contractor should notify the COR and prepare to submit the completed ROI via email to the VA.

7.6 ROI Format

The ROI must adhere to the sample format outlined in Chapter 6 of MD-110. It should be submitted as a fully searchable and legible PDF document. The organization of the file sections must align with the table of contents, and file names should begin with their corresponding section numbers (e.g., "1-1 Formal Complaint" or "7-1 Complainant Testimony").

Each section of the ROI must be submitted as an individual file. Combining all sections into a single document is not permitted.

Specific Requirements:

1. Bates Numbering: The Contractor shall not apply bates numbering to any documents.

2. Hyperlinks and Attachments: The ROI must not include active hyperlinks, embedded or attached documents that have not been downloaded, or any PDF in portfolio mode.

3. Headers and Footers: The Contractor shall not add headers or footers. If present, existing headers and footers should be removed whenever possible.

4. Blank Pages: The ROI must not contain blank pages. If removing blank pages is not feasible (e.g., pages from VA Handbooks with numerous blank pages), they must be labeled as “Blank Page.”

7.7 Sanitization

The ROI shall be redacted in accordance with the guidance outlined in EEOC-MD-110. In addition, any reference to patient or beneficiary of the VA should be completely redacted. In age discrimination complaints, only the year of birth and individual’s age shall be provided (e.g. 1970, age 56). If there is a question as to whether information represents Protected Health Information (PHI)/Personally Identifiable Information (PII) that should be sanitized, the Contractor shall contact the COR for guidance.

1. A non-redacted version of the exhibits should be kept and provided to the Agency when submitting the completed ROI. They should be labeled as they are in the redacted version and in a folder of labeled “Section 7-non-redacted.”

7.8 Extensions to the 180-day Investigative Time Frame

All extensions to the investigative time frame, other than unilateral extensions described in EEOC Regulation 29 C.F.R. § 1614.108(e), must be a written agreement between the complainant and ORM.

7.9 Corrections to the ROI

When the COR determines that corrective investigative action is required after the Contractor submits the investigative file, the Contractor shall respond to the COR’s request for corrective action, within ten business days after notification. In the event the Contractor is unable to complete the corrective action within ten business days, the Contractor shall provide a written explanation and estimated timeline for completing the action.

7.10 Amendments and Settlements/Withdrawals

When it becomes necessary to interrupt the assigned work, ORM will provide the following consideration(s).

1. Amendments - At any time prior to the agency's mailing of the notice required by EEOC at the conclusion of the investigation, EEOC regulations permit a complainant to amend a pending EEO complaint to add claims that are like or related to those claim(s) raised in the pending complaint. The Contractor shall advise the complainant to contact the agency should they desire to amend their complaint; the ROI should include that communication. The Contractor shall notify the COR immediately whenever the complainant indicates a desire to amend a complaint, and shall proceed with the investigation according to the amended complaint only upon approval from the COR.

a. Cases amended with discrete acts prior to the investigation delivered to ORM will be considered as an “Additional Issue” and payment will be made to the contractor accordingly.

b. Case amended with “additional evidence” prior to investigation delivered to ORM will require the contract vendor include the additional evidence into the investigative file.

c. Cases amended after the investigation is delivered to ORM will be investigated by ORM and not supplied to the contractor.

2. Settlement(s)/Withdrawal(s) – at any point during the processing of the case, the complainant may decide to settle or withdraw their case, which will cease the further processing of the case.

a. If withdrawn after the investigation plan has been completed and reviewed; ORM will pay 10% of the contract line-item value.

b. If withdrawn after the completion and signature of an affidavit but prior to other work being completed; ORM will pay 15% of the contract line-item value.

c. If withdrawn after collection of complainants and RMO testimony but prior to the complaint being completed; ORM will pay 50% of the contract line-item value.

d. If withdrawn after the investigation was completed and summary written but not yet copied or delivered to ORM; ORM will pay 80% of the contract line-item value.

7.11 Status Reports

The Project Manager shall provide responses to all status reports through the VA’s exchange server. All reports must be completed in their entirety as directed by the Government.

a. The monthly assignments and Line-Item Numbers (LINs) will be added to the status report by the COR on the Thursday prior to the assignment date.

b. The initial report shall contain the identity of investigator and the date the complainant was first contacted, date the EEO Liaison was contacted and shall be submitted by the 10th day of the month.

c. The 30-day report shall contain case number, complainant’s full name, identity of investigator, identity, and status of all testimony of relevant witness, the status of the document request, and projected submission date.

d. The 45-day report shall contain case number, complainant’s full name, identity of investigator, identity, and status of all testimony of relevant witness, the status of the document request, confirmation of meeting projected submission date, any authorized extension by COR.

7.12 Communication Plan

At the commencement of the investigation, the assigned contract investigator shall contact the local EEO Liaison identified on the assignment letter issued by the VA via email Assignment Letter (Attachment E). The email shall be titled “Official Correspondence.” The investigator shall introduce themselves and identify the Contractor to which they are employed. The signatory block of the assigned investigator shall include a reference to the Prime Contractor. They shall follow up on the status of document request already made by the agency and to obtain contact information for pertinent Agency witnesses. The contract investigator shall provide the local EEO Liaison with the names of RMO and request a local Subject Matter Expert (SME) as needed.

When the local EEO Liaison indicates requested documents have been submitted, follow up shall be made with the ORM Investigations Contracting Team group email. In circumstances where additional documents are determined to be necessary or requested documents are missing from the submission, the local EEO Liaison shall be contacted by the contractor investigator to obtain the documents or an explanation as to their omission. Two attempts shall be made to obtain documents. If the two attempts are unsuccessful, the contractor investigator shall note the omission in the summary and cite exhibit containing the evidence of the attempts.

Email correspondence to all relevant witnesses should be titled “Official Correspondence” and shall not include any reference to the complainant’s name and case number. The contract investigator shall use the complainant’s last name and last six of complaint number as necessary in the body of the email. Emails containing PII shall be sent encrypted. All introductory correspondence shall include an explanation for the correspondence and a copy of the assignment letter. The signatory block of the assigned investigator shall include a reference to the Prime Contractor. All notices should contain a statement that the recipient is responsible for protecting the information pursuant to the Privacy Act of 1974 (5 U.S.C. 552a(b)).

Documents received after investigation is submitted to VA shall be emailed to VA via the contract investigation email. All documents shall be in submitted as identified in section 7.5, 7.6 and 7.7. Two copies should be submitted: a redacted and un-redacted copy.

8.0 DELIVERABLES TABLE

9.0 GOVERNMENT-FURNISHED PROPERTY

There will be no Government-furnished property and/or equipment.

10.0 TRAVEL REQUIREMENTS

N/A, no travel required.

11.0 SKILL OR RELEVANT EXPERIENCE REQUIREMENT

Individuals serving as EEO investigators must satisfy the mandatory training requirements set forth by EEOC (EEOC-MD-110). All new EEO investigators, including contract and collateral duty investigators, must have completed at least 32-hours of investigator training before conducting investigations. Each EEO Investigator is further required to complete eight hours of refresher investigator training every year. This refresher training is intended to keep EEO investigators informed of developments in EEO practice, law, and guidance, as well as to enhance and develop investigatory skills.

12.0 ENCRYPTED E-MAIL COMMUNICATIONS WITH THE VA

Contractors have a responsibility to protect sensitive and confidential information that they possess. When communicating with VA employees via electronic mail, Public Key Infrastructure (PKI) will be used to send all sensitive information, personal health information and personally identifiable information.

13.0 VA INFORMATION AND INFORMATION SYSTEM SECURITY/PRIVACY REQUIREMENTS

13.1 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.

13.2 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. 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.

13.3 VA Information Custodial Language

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

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

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

d. The contractor/subcontractor must receive, gather, store, back up, maintain, use, disclose and dispose of VA information only in compliance with the terms of the contract and applicable Federal and VA information confidentiality and security laws, regulations, and policies. If Federal or VA information confidentiality and security laws, regulations and policies become applicable to the VA information or information systems after execution of the contract, or if National Institute of Standards and Technology (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 FAR Part 12.

g. 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.

h. 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.

i. 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.

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

k. 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.

13.4 Security Incident Investigation

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

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

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

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

13.5 Liquidated Damages for Data Breach

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

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

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

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

(2) Description of the event, including:

(a) date of occurrence;

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

(3) Number of individuals affected or potentially affected;

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

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

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

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

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

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

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

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

d. Based on the determinations of the independent risk analysis; the contractor shall be responsible for paying to the VA liquidated damages in the amount of $37.50 per affected individual to cover the cost of providing credit protection services to affected individuals consisting of the following:

(1) Notification;

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

(3) Data breach analysis;

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

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

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

13.6 Training

a All contractor employees and subcontractor employees requiring access to VA information and VA information systems shall complete the following before being granted access to VA information and its systems:

1. Sign and acknowledge (either manually or electronically) understanding of and responsibilities for compliance with the Contractor Rules of Behavior, Appendix E relating to access to VA information and information systems;

2. Successfully complete the appropriate TMS training courses annually:

a. VA Privacy & Information Security Awareness (TMS Course number 10176)

b. Rules of Behavior (TMS Course number 10203)

c. Records Management for Everyone (WBT) (TMS Course number 4192704)

b. The contractor shall provide to the contracting officer and/or the COR a copy of the training certificates and certification of signing the Contractor Rules of Behavior for each applicable employee within one week of the initiation of the contract and annually thereafter. Proof of training completion must be verified and tracked by the COR.

c. Failure to complete the mandatory annual training and sign the Rules of Behavior annually, within the timeframe required, is grounds for suspension or termination of all physical or electronic access privileges and removal from work on the contract until such time as the training and documents are complete.

d. Please access TMS through the following link: https://www.tms.va.gov/SecureAuth35/, click on the “CREATE NEW NON-EMPLOYEE USER” button. Select “VA Central Office (VACO)” on the Self-Enrollment Screen and follow the prompts to create your TMS profile. Project Manager shall send COR an email when profile is created, so that your account can be validated and assignment of required course(s). Please note, however, that it can take as long as three days to fully validate an account after it has entered all of the required information.

13.7 Contractor Personnel Security

a. All contract employees who require access to the VA site(s) and/or access to VA Local Area Network (LAN) systems shall be the subject of a background investigation and must receive a favorable adjudication from the VA Security and Investigations Center (SIC). These requirements are applicable to all sub-contractor personnel requiring the same National Agency Check with Inquiries (NACI) Background Investigation.

b. The level of background security investigation will be in accordance with VA Directive 0710 dated June 4, 2010, and is available at <http://www.va.gov/vapubs/viewPublication.asp?Pub_ID=487&FType=2>.

13.8 Background Investigation

a. The contract employee level of background investigation required for this effort is: Public Trust / Moderate Risk Contractor.

13.9 Contractor Responsibilities

a. The contractor shall bear the expense of obtaining background investigations. Only the prime contractor is responsible for obtaining background investigations, not the sub-contractor. The cost of the background investigations is as follows: Background Investigations (BI) $3,638; Minimum Background Investigations (MBI) $866; Periodic Reinvestigations (PRI) $1,115; NACI $243; National Agency Check with Law and Credit (NACLC) $266. The VA will pay for investigations processed through the VA SIC and conducted by the Office of Personnel Management (OPM) in advance, however, the contractor shall reimburse the full cost of background investigations to VA within 30-days of receipt of the Bill of Collections from VA. The VA shall send up to three, plus one final delinquent notice to the contractor. If the contractor does not adhere to the Bill of Collections, future invoices may be subject to be offset by VA to recoup background investigation costs.

b. Immediately after contract or task order award, the contractor must submit a completed Attachment G (Contractor Background Investigation Request Worksheet) for all contract employees working the contract, who have access to VA facilities, VA systems, or privacy data, to the COR.

c. The contractor and contractor POC will receive an email notification from SIC identifying the website link that includes detailed instructions regarding completion of the background clearance application process and what level of background was requested. Reminder notifications will be sent if the complete package is not submitted by the due date.

d. The contractor shall prescreen all personnel who require access to VA site(s) and/or access to VA LAN systems to ensure they maintain a U.S. citizenship or Alien Registration that authorizes them to work in the U.S. and are able to read, write, speak, and understand the English language. A compliant ID badge must be worn by Contractors at all times while on VA premises.

e. Contractors who have current favorable background investigation conducted by OPM or Defense Security Service (DSS) may be accepted through reciprocation. However, it does not relieve the contractor from submitting a completed Attachment B Form & Attachment D Immediately after contract or task order award for all contract employees working on the contract to the COR.

f. Contract performance shall not commence before SIC confirmation that it received the investigative documents, that they are complete, and that the security investigation has been released to OPM for scheduling of the background investigation. Once the contractor's background investigation has been released to OPM for scheduling of the background investigation, contract performance may commence. The COR will notify and forward the contractor a copy of the Certificate of Eligibility (4236) to the contractor when the investigation has been favorably completed and adjudicated. The contractor, if notified of an unfavorable adjudication by the Government, shall withdraw the employee from consideration from working under the contract. Failure to comply with the contractor personnel security requirements may result in termination of the contract for default.

g. If the security clearance investigation is not completed prior to the start date of the contract, the contract employee may work on the contract with an initiated status while the security clearance is being processed. However, the contractor will be responsible for the actions of those contract and sub-contract employees they provide to perform work for the VA. In the event damage arises from work performed by contractor personnel, under the auspices of the contract, the contractor will be responsible for resources necessary to remedy the incident.

h. Should the contractor use a vendor other than OPM or DSS to conduct investigations, the investigative company must be certified by OPMlDSS to conduct contractor investigations. The Vendor Cage Code number must be provided to the VA SIC, which will verify the information and conclude whether access to the Government's site(s) and/or VA LAN systems can be.

i. The investigative history for contractor personnel working under this contract must be maintained in the databases of either OPM or the Defense Industrial Security Clearance Organization (DISCO).

j. The vendor will have access to VA sensitive information to fulfill the terms of the contract. That sensitive information will include PHI/PII. As a result, a Business Associate Agreements (BAA) will be required. When the contract has been awarded, please contact the Privacy Office and the team will work with the vendor to execute the appropriate BAA.

13.10 Government Responsibilities

a. After the COR has received Attachment B form(s) from the Contractor, SIC will send an e-mail notification to the contractor and their POC identifying the website link that includes detailed instructions regarding completion of the background clearance application process and what level of background was requested. SIC will also send reminder notifications to the contractor and their POC if the complete package is not submitted by the due date.

b. Upon receipt of required investigative documents, SIC will review the investigative documents for completion and initiate the background investigation by forwarding the investigative documents to OPM to conduct the background investigation. If the investigative documents are not complete, SIC will return the package to the contractor with corrective instructions.

c. The VA will pay for investigations processed through the VA SIC and conducted by OPM in advance, however, the contractor shall reimburse the full cost of background investigations to VA within 30-days of Bill of Collections from the VA. The VA shall send up to three, plus one final delinquent notice to the contractor. If the contractor does not adhere to the Bill of Collections, future invoices may be subject to be offset by the VA to recoup background investigation costs and may be considered grounds for default. The COR will notify and forward the contractor a copy of the Certificate of Eligibility (4236) when the investigation has been favorably completed and adjudicated. The COR will also notify the contractor of an unfavorable adjudication by the Government.

13.11 Records Management Language for Contracts

When Federal agencies acquire goods or services, they need to determine what Federal records management requirements should be included in the contract. Federal contractors often create, send, or receive Federal records. Federal contracts should provide clear legal obligations describing how the contract employees must handle Federal records.

Agency records officers, procurement counsel, and acquisitions officers must discuss how to integrate records management obligations into their existing procurement processes. NARA has developed the following language to be included as an agency-specific term and condition in Federal contracts for a variety of services and products. The majority of contracts should include language on records management obligations, but each contract should be evaluated individually. For example, the data rights paragraph (Paragraph 10 below) may not be appropriate for all contracts. Instead, agencies may be better served by one of the established data-rights clauses in the Federal Acquisition Regulations.

This language should not replace specific records management requirements included within Federal information system contracts.

RECORDS MANAGEMENT OBLIGATIONS

A. Applicability This clause applies to all Contractors whose employees create, work with, or otherwise handle Federal records, as defined in Section B, regardless of the medium in which the record exists.

B. Definitions “Federal record” as defined in 44 U.S.C. § 3301, includes all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government or because of the informational value of data in them.

The term Federal record:

1. includes [Agency] records.

2. does not include personal materials.

3. applies to records created, received, or maintained by Contractors pursuant to their [Agency] contract.

4. may include deliverables and documentation associated with deliverables.

C. Requirements

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

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

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

4. [Agency] and its contractors are responsible for preventing the alienation or unauthorized destruction of records, including all forms of mutilation. Records may not be removed from the legal custody of [Agency] or destroyed except for in accordance with the provisions of the agency records schedules and with the written concurrence of the Head of the Contracting Activity. Willful and unlawful destruction, damage or alienation of Federal records is subject to the fines and penalties imposed by 18 U.S.C. 2701. In the event of any unlawful or accidental removal, defacing, alteration, or destruction of records, Contractor must report to [Agency]. The agency must report promptly to NARA in accordance with 36 CFR 1230.

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

6. The Contractor is required to obtain the Contracting Officer's approval prior to engaging in any contractual relationship (sub-contractor) in support of this contract requiring the disclosure of information, documentary material and/or records generated under, or relating to, contracts. The Contractor (and any sub-contractor) is required to abide by Government and [Agency] guidance for protecting sensitive, proprietary information, classified, and controlled unclassified information.

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

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

9. The Contractor shall not retain, use, sell, or disseminate copies of any deliverable that contains information covered by the Privacy Act of 1974 or that which is generally protected from public disclosure by an exemption to the FOIA.

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

11. Training. All Contractor employees assigned to this contract who create, work with, or otherwise handle records are required to take [Agency]-provided records management training.