PWS Surgical Communicator DRAFT.pdf

PERFORMANCE WORK STATEMENT DRAFT

Surgical Communicator

1. SCOPE OF WORK

1.1. The contractor shall design, develop, and deploy a secure, scalable digital platform that provides real-time updates and engagement capabilities throughout the surgical journey. The contractor will work hand in hand with the VA SME to co-design the solution, incorporating direct feedback loops into each phase of development to ensure the platform reflects operational realities, fits seamlessly into existing operational processes and enhances rather than disrupts existing workflows. The platform shall be designed to integrate with VistA, VA enterprise services, DSS Livedata and future Oracle Health workflows, enabling automation, improving accuracy, and reducing manual effort over time. The developed solution will be owned and hosted by the VA with ongoing customer service, support and debugging during development and deployment provided by the vendor.

1.2. Core capabilities of the platform:

1.2.1. Real-Time Surgical Status Tracking A visually clean, mobile friendly, milestone-based interface that tracks and displays the key stages of the surgical process, including Pre-Operative, In the Operating Room, Anesthesia induced, Procedure Start, Procedure Complete, Closing, and Move to Recovery. Updates are provided in a clear, intuitive format that is easy for patients and families to understand.

1.2.2. Family & Caregiver Engagement Veterans can designate any number of family members or caregivers to receive surgical status updates. Each participant receives secure, permission-based access using a secure access code, sms link or QR code to view status updates in real time.

1.2.3. Flexible Enrollment Workflows:

1.2.3.1. Patients can self-enroll family members through a simple mobile friendly workflow during the pre-surgical process

1.2.3.2. VA staff can enroll family members during check-in, intake, or pre-operative workflows.

1.2.4. Notification & Access Layer Secure links and optional notifications (e.g., SMS or email) ensure that families are informed of key milestones without requiring continuous manual outreach.

1.3. The contractor shall use the Pilot-to-Enterprise delivery model, a phased approach (4 phases):

1.3.1. Phase I. Design & Discovery

1.3.1.1. Map current workflows and identify integration points

1.3.1.2. Design a human-centered user experience tailored to Veterans and families

1.3.1.3. Engage the VA SME in working sessions to shape workflows, validate user experience designs, and ensure alignment with clinical and operational needs

1.3.2. Phase II. Build & Integration

1.3.2.1. Develop Minimum Viable Product (MVP) capabilities using secure, scalable architecture

1.3.2.2. Align with VistA and VA enterprise services where applicable

1.3.2.3. Ensure compliance with VA security and accessibility standards

1.3.2.4. Iterate with continuous VA SME feedback, incorporating real-time insights into development sprints to refine functionality and usability

1.3.3. Phase III. Pilot Deployment

1.3.3.1. Launch the solution at VA Central California Health Care

1.3.3.2. Provide training, onboarding, and white-glove support

1.3.3.3. Monitor usage, feedback, and performance

1.3.3.4. Partner closely with the VA SME during pilot execution to capture feedback, identify improvements, and guide iteration toward enterprise readiness

1.3.4. Phase IV. Evaluation & Scale (LONG TERM VISION)

1.3.4.1. Measure outcomes and refine the solution

1.3.4.2. Expand to additional sites and capabilities

1.3.4.3. Transition to enterprise-scale deployment support.

1.4. Scalability

1.4.1. The contractor shall provide a tracker that is designed as a foundational capability that evolves into a comprehensive surgical journey platform. This phased, MVP-first approach ensures that the platform delivers immediate value while continuously expanding in capability and impact.

1.5. Near-Term Enhancements

1.5.1. Pre-surgery engagement, including reminders, preparation instructions, and checklists

1.5.2. Post-surgery follow-up communications, including recovery guidance and care instructions

1.6. Long-Term Vision

1.6.1. End-to-end orchestration of the surgical journey from scheduling through recovery

1.6.2. AI-generated updates and summaries to provide meaningful, human-readable insights for families

1.6.3. Analytics dashboards for VA leadership to monitor operational efficiency, patient satisfaction, and throughput

2. CONTRACT TYPE

2.1. Firm Fixed Price

3. PERIOD OF PERFORMANCE

3.1. The period of performance for this project will be four months, commencing from the date of award. The project is expected to be awarded by September 1, 2026.

Accordingly, the anticipated period of performance will be from September 1, 2026, through January 31, 2027. All work under this contract must be completed within this 4 month window.

4. PLACE OF PERFORMANCE

4.1. The tasks under this PWS shall be performed remotely at the Contractor’s facility.

Collaboration with the SME shall take place virtually.

5. TRAVEL

5.1. The Government anticipates no travel under this effort. All Contractor work shall be accomplished virtually.

6. TASK STATEMENT

6.1. Tasks performed shall be of a non-personal nature. VA organizations shall not provide supervision of contractor personnel. Contractor personnel shall at no time allow an employer-employee relationship to develop with VA organizations or their staff. VA organizations will refrain from any activities that create the appearance of such a relationship.

6.2. Contractors shall not perform inherently governmental functions including decision-making, supervision of Government employees, supervision of other contractors on other contracts, and activities that create the appearance of performing such functions.

7. REPORTING REQUIREMENTS

7.1. The Contractor shall provide the Contracting Officer’s Representative (COR) with Progress Reports in electronic form. These reports shall be submitted at least monthly, by the 10th of each month, or as otherwise requested by the Contracting Officer or COR. The progress reports must reflect data as of the last day of the preceding month.

7.2. Each Monthly Progress Report shall include a summary of all work completed during the reporting period, as well as work planned for the following period. Additionally, the report should identify any issues encountered, describe the actions taken to resolve them, and, if any issues remain unresolved, provide a plan and estimated timeframe for resolution. To ensure transparency and prevent the escalation of outstanding issues, the Contractor is expected to maintain open communication with the VA throughout the duration of the contract.

8. Deliverables:

8.1. Development of “OR Journey Tracker”

8.2. Monthly Progress Reports to the lead clinician and COR

8.3. Scale cohort as outlined below

8.4. Delivery Schedule

Task Deliverable Delivery Schedule

(1) Completion of Phase I – Design & Discovery 09/30/2026

(2) Monthly Progress Report 10/10/2026

(3) Completion of Phase II – Build & Integration 10/31/2026

(4) Monthly Progress Report 11/10/2026

(5) Completion of Phase III – Pilot Development 11/30/2026

(6) Monthly Progress Report 12/10/2026

(7) Completion of Phase IV – Evaluating & Scale (Long Term Vision) 12/31/2026

(8) Monthly Progress Report (Final Report) 1/10/2027

9. KEY PERSONNEL

9.1. Skilled experienced professional and/or technical personnel are essential for successful Contractor accomplishment of the work to be performed under this effort. These are defined as individuals crucial to the successful performance of the orders issued and the programs being supported by those orders and are those persons identified as key personnel in accordance with solicitation requirements. The Contractor agrees that the key personnel shall not be removed, diverted, or replaced from work without prior notification from the CO. Contractor staff shall be fully qualified and have the level of experience necessary to accomplish the requirements of this PWS, as well as those requirements outlined in Section 7.0. The following labor categories are required.

Labor Category Description Experience

Managing Partner Skilled healthcare clinician and Aspen Labs managing partner with experience in leading impactful healthcare innovation teams and establishing healthcare innovation centers

Advanced

Project Manager Manage project, communicate between Aspen Labs and VHA, provide timely deliverables, provide monthly reports to COR, and ensure timely completion of the contract

Advanced

9.2. Any personnel changes proposed by the Contractor as substitutes for replacements for key positions must possess qualifications, including education and experience, that are equal to or greater than those of the personnel being replaced. Requests to substitute key personnel shall be submitted to the Contracting Officer (CO) for review and approval. To the maximum extent practicable, all notifications of substitutions in key personnel must be provided to the CO in writing at least fifteen (15) calendar days prior to the proposed change. The notification shall include a detailed explanation of the circumstances necessitating the substitution, a complete biography or resume of the proposed substitute, and any additional information requested by the CO. The CO will review such requests and provide written notice of approval or disapproval to the Contractor in a timely manner.

10. OTHER DIRECT COSTS

10.1. Upon termination of this agreement, the VHA will retain full proprietary ownership of the Interactive OR Journey Tracker application, including all associated rights, without incurring additional fees or licensing obligations.

11. GOVERNMENT- FURNISHED EQUIPMENT/MATERIALS/FACILITIES/INFORMATION

11.1. The Government shall not provide any physical workspace for the performance of these services; however, government credentials and Personal identification verification (PIV) cards will be provided for access to the required process database if required.

11.2. The contractor shall adhere to all VA security requirements for any government furnished equipment (GFE) and all contractor personnel that will receive and utilize GFE shall sign a VA property loan form and all associated documentation prior to receiving the equipment. All VA policies related to networked computer use will apply. PIV cards shall be required for all personnel with VA network access/accounts. Contractor personnel shall complete VA’s Privacy and Information Security Awareness and Rules of Behavior training before networked computer access will be granted. There will be no sharing of sensitive information, patient identifying information (PII), or patient health information (PHI) (see Security Clauses, Attachments 1 and 2).

11.3. Prior to the use of any GFE, the Contractor shall complete all mandatory training courses in the VA Talent Management System (TMS) and will be tracked therein. TMS may be accessed at https://www.tms.va.gov. If an individual does not have a TMS profile, go to https://www.tms.va.gov and click on the “Create New Non-Employee User” link on the TMS to gain access. Training must be completed annually.

11.4. The GFE must comply with VA rules and requirements regarding patches and updates and must be returned to the VA termination of this agreement.

12. QUALITY ASSURANCE SURVEILLANCE PLAN

12.1. Performance Standards define required performance for specific tasks. The Government performs surveillance to determine if the contractor exceeds, meets, or does not meet these standards. The Government may utilize the Performance Based Service Assessment Survey, provided as Attachment E, or other methods to compare contractor performance to the Acceptable Levels of Performance (ALPs).

12.2. Methods Of Surveillance

12.2.1. Various methods exist to monitor performance. The COR shall use any or several of the surveillance methods listed below in the administration of this QASP.

12.2.1.1. 100% Inspection (evaluates all outcomes) - Each month, the COR or designee shall review all the contractor’s performance/generated documentation and document results accordingly.

12.2.1.2. Random Sample - The COR shall review a random sampling of the contractor’s performance/generated documentation and document your results accordingly.

12.3. Frequency of Measurement

12.3.1. During task order performance, the COR or designee will periodically analyze whether the negotiated frequency of surveillance is appropriate for the work being performed.

12.4. Acceptable Performance Levels (APLS)

Requirement Performance Standard

Surveillance Method

Outcome

PROJECT

MANAGEMENT,

MILESTONES,

AND SCHEDULE

a. Notifies customer of potential problems 90% of the time.

100% Inspection of agreed upon milestones per the approved PMP

Notification occurs within two business days of potential issue when known in advance or within 24 hours of urgent problems, where less than two business days exist

b. Submits Deliverables in accordance with the deliverable schedule within (+/-) five business days with no more than five incidents of performance slippage

100% Inspection of deliverables

No more than five incidents of performance schedule slippage

WRITTEN

COMMUNICATION

Uses correct English grammar, punctuation, and spelling 95% of the time; communicates information in a succinct and organized manner, produces written information that is appropriate for the intended audience

Random Sampling Written communication is consistently error-free and clear and concise so that the message is easily understood by others

CUSTOMER

SUPPORT

Courteous and professional interactions to receive and fill task order deliverables and in providing

Customer Feedback and Complaints based

Customer problems are resolved within the same business day; no more than 5 incidents spent by https://www.tms.va.gov/SecureAuth35/ https://www.tms.va.gov/SecureAuth35/ order status. Customer (VA) support satisfaction, having no more than 5 incidents of dissatisfaction.

on interactions with the contractor

Government personnel in providing corrective feedback on unacceptable customer service/professionalism

13. DOCUMENTING PERFORMANCE

13.1. Acceptable Performance

13.1.1. The Government shall document acceptable performance in accordance with the chart above. Any report may become a part of the supporting documentation for any contractual action.

13.2. Unacceptable Performance

13.2.1. When unacceptable performance occurs, the COR shall inform the CO. This will always be in writing although when circumstances necessitate immediate verbal communication, that communication will be followed in writing. The COR shall document the discussion and place it in the COR file.

13.2.2. When the CO determines formal written communication is required, the COR shall prepare a Contract Discrepancy Report (CDR) and present it to the contractor's program manager.

13.2.3. The contractor shall acknowledge receipt of the CDR in writing to the CO. The CDR will state how long after receipt the contractor has to take corrective action.

The CDR will also specify if the contractor is required to prepare a corrective action plan to document how the contractor shall correct the unacceptable performance and avoid a recurrence. The CO shall review the contractor's corrective action plan to determine acceptability.

13.2.4. Any CDRs may become a part of the supporting documentation for any contractual action deemed necessary by the CO.

14. SECURITY AND PRIVACY REQUIREMENTS

14.1. Position/Task Risk Designation Level(S)

Position Sensitivity

Background Investigation (in accordance with Department of Veterans Affairs 0710 Handbook, “Personnel Suitability and Security Program,” Appendix A)

Low / Tier 1 Tier 1 / National Agency Check with Written Inquiries (NACI) A Tier 1/NACI is conducted by OPM and covers a 5-year period. It consists of a review of records contained in the OPM Security Investigations Index (SII) and the DOD Defense Central Investigations Index (DCII), Federal Bureau of Investigation (FBI) name check, FBI fingerprint check, and written inquiries to previous employers and references listed on the application for employment. In VA it is used for Non-sensitive or Low Risk positions.

Moderate / Tier 2 Tier 2 / Moderate Background Investigation (MBI) A Tier 2/MBI is conducted by OPM and covers a 5-year period. It consists of a review of National Agency Check (NAC) records [OPM Security Investigations Index (SII), DOD Defense Central Investigations Index (DCII), FBI name check, and a FBI fingerprint check], a credit report covering a period of 5 years, written inquiries to previous employers and references listed on the application for employment; an interview with the subject, law enforcement check; and a verification of the educational degree.

High / Tier 4 Tier 4 / Background Investigation (BI) A Tier 4/BI is conducted by OPM and covers a 10-year period. It consists of a review of National Agency Check (NAC) records [OPM Security Investigations Index (SII), DOD Defense Central Investigations Index (DCII), FBI name check, and a FBI fingerprint check report], a credit report covering a period of 10 years, written inquiries to previous employers and references listed on the application for employment; an interview with the subject, spouse, neighbors, supervisor, co-workers; court records, law enforcement check, and a verification of the educational degree.

15. The position sensitivity and the level of background investigation commensurate with the required level of access for the following tasks within the Performance Work Statement are:

Position Sensitivity and Background Investigation Requirements by Task

Task Number Tier1 / Low / NACI Tier 2 / Moderate / MBI Tier 4 / High / BI

INSERT TASK #

16. The Tasks identified above, and the resulting Position Sensitivity and Background Investigation requirements identify, in effect, the Background Investigation requirements for Contractor individuals, based upon the tasks the particular Contractor individual will be working. The submitted Contractor Staff Roster must indicate the required Background Investigation Level for each Contractor individual based upon the tasks the Contractor individual will be working, in accordance with their submitted proposal.

17. CONTRACTOR PERSONNEL SECURITY REQUIREMENTS

17.1. Contractor Responsibilities:

17.2. The Contractor shall prescreen all personnel requiring access to VA computer systems to ensure they maintain the appropriate Background Investigation, and are able to read, write, speak, and understand the English language.

17.3. The Contractor shall bear the expense of obtaining background investigations. Within 3 business days after award, the Contractor shall provide a roster of Contractor and Subcontractor employees to the COR to begin their background investigations in accordance with the ProPath template. The Contractor Staff Roster shall contain the Contractor’s Full Name, Date of Birth, Place of Birth, individual background investigation level requirement (based upon Section 7.0 Tasks), etc. The Contractor shall submit full Social Security Numbers either within the Contractor Staff Roster or under separate cover to the COR. The Contractor Staff Roster shall be updated and provided to VA within 1 day of any changes in employee status, training certification completion status, Background Investigation level status, additions/removal of employees, etc. throughout the Period of Performance. The Contractor Staff Roster shall remain a historical document indicating all past information and the Contractor shall indicate in the Comment field, employees no longer supporting this contract. The preferred method to send the Contractor Staff Roster or Social Security Number is by encrypted e-mail. If unable to send encrypted e-mail, other methods which comply with FIPS 140-2 are to encrypt the file, use a secure fax, or use a traceable mail service.

17.4. The Contractor should coordinate the location of the nearest VA fingerprinting office through the COR. Only electronic fingerprints are authorized.

17.5. The Contractor shall ensure the following required forms are submitted to the COR within 5 days after contract award:

17.5.1. For a Tier 1/Low Risk designation:

17.5.1.1. OF-306

17.5.1.2. DVA Memorandum – Electronic Fingerprints

17.5.2. For Tier 2/Moderate or Tier 4/High Risk designation:

17.5.2.1. OF-306

17.5.2.2. VA Form 0710

17.5.2.3. DVA Memorandum – Electronic Fingerprints

17.6. The Contractor personnel shall submit all required information related to their background investigations (completion of the investigation documents (SF85, SF85P, or SF 86) utilizing the Office of Personnel Management’s (OPM) Electronic Questionnaire for Investigations Processing (e-QIP) after receiving an email notification from the Security and Investigation Center (SIC).

17.7. The Contractor employee shall certify and release the e-QIP document, print and sign the signature pages, and send them encrypted to the COR for electronic submission to the SIC. These documents shall be submitted to the COR within 3 business days of receipt of the e-QIP notification email. (Note: OPM is moving towards a “click to sign” process. If click to sign is used, the Contractor employee should notify the COR within 3 business days that documents were signed via eQIP).

17.8. The Contractor shall be responsible for the actions of all personnel provided to work for VA under this contract. In the event that damages arise from work performed by Contractor provided personnel, under the auspices of this contract, the Contractor shall be responsible for all resources necessary to remedy the incident.

17.9. A Contractor may be granted unescorted access to VA facilities and/or access to VA Information Technology resources (network and/or protected data) with a favorably adjudicated Special Agreement Check (SAC) or “Closed, No Issues” (SAC) fingerprint results, training delineated in VA Handbook 6500.6 (Appendix C, Section 9), and the signed “Contractor Rules of Behavior.” However, the Contractor will be responsible for the actions of the Contractor personnel they provide to perform work for VA. The investigative history for Contractor personnel working under this contract must be maintained in the database of the Office of Personnel Management (OPM).

17.10. The Contractor, when notified of an unfavorably adjudicated background investigation on a Contractor employee as determined by the Government, shall withdraw the employee from consideration in working under the contract.

17.11. Failure to comply with the Contractor personnel security investigative requirements may result in loss of physical and/or logical access to VA facilities and systems by Contractor and Subcontractor employees and/or termination of the contract for default.

17.12. Identity Credential Holders must follow all HSPD-12 policies and procedures as well as use and protect their assigned identity credentials in accordance with VA policies and procedures, displaying PIV credentials at all times, and returning the identity credentials upon termination of this agreement.

17.13. Contractor employees shall complete a VA Systems Access Agreement if they are provided access privileges as an authorized user of the computer system of VA.

18. Physical Security and Safety Requirements

18.1. The Contractor and their personnel shall follow all VA policies, standard operating procedures, applicable laws, and regulations while on VA property. Violations of VA regulations and policies may result in citation and disciplinary measures for persons violating the law.

18.2. The Contractor and their personnel shall wear visible identification at all times while they are on VA property.

18.3. VA does not provide parking spaces at the work site; It is the responsibility of the Contractor to park in the appropriate designated parking areas. VA will not invalidate or make reimbursement for parking violations of the Contractor under any conditions.

18.4. Smoking is prohibited on VA property, including inside/outside of any building other than the designated smoking areas.

18.5. Possession of weapons is prohibited.

18.6. The Contractor shall obtain all necessary licenses and/or permits required to perform the work, with the exception of software licenses that need to be procured from a Contractor or vendor in accordance with the requirements document. The Contractor shall take all reasonable precautions necessary to protect persons and property from injury or damage during the performance of this contract

19. Confidentiality and Non-Disclosure

19.1. The Contractor shall follow all VA rules and regulations regarding information security to prevent disclosure of sensitive information to unauthorized individuals or organizations.

19.2. The VA Central Office (VACO) will be the sole authorized official to release in writing, any data, draft deliverables, final deliverables, or any other written or printed materials pertaining to this contract. The Contractor shall release no information. Any request for information relating to this contract presented to the Contractor shall be submitted to the VACO for response.

19.3. Contractor personnel recognize that in the performance of this effort, Contractor personnel may receive or have access to sensitive information, including information provided on a proprietary basis by carriers, equipment manufacturers, VHA intellectual property, industry collaborators, and other private or public entities. Contractor personnel agree to safeguard such information and use the information exclusively in the performance of this contract. Contractor shall follow all VA rules and regulations regarding information security to prevent disclosure of sensitive information to unauthorized individuals or organizations as enumerated in this section and elsewhere in this Contract and its subparts and appendices.

19.4. Contractor shall limit access to the minimum number of personnel necessary for contract performance for all information considered sensitive or proprietary in nature. If the Contractor is uncertain of the sensitivity of any information obtained during the performance this contract, the Contractor has a responsibility to ask the VACO.

19.5. Contractor shall train all their employees involved in the performance of this contract on their roles and responsibilities for proper handling and nondisclosure of sensitive VA or proprietary information. Contractor personnel shall not engage in any other action, venture or employment wherein sensitive information shall be used for the profit of any party other than those furnishing the information. The sensitive information transferred, generated, transmitted, or stored herein is for VA benefit and ownership alone.

19.6. Contractor shall maintain physical security at all facilities housing the activities performed under this contract, including any Contractor facilities according to VA-approved guidelines and directives. The Contractor shall ensure that security procedures are defined and enforced to ensure all personnel who are provided access to patient data must comply with published procedures to protect the privacy and confidentiality of such information as required by VA.

19.7. Contractor must adhere to the following:

19.8. The use of “thumb drives” or any other medium for transport of information is expressly prohibited.

19.9. Controlled access to system and security software and documentation.

19.10. Recording, monitoring, and control of passwords and privileges.

19.11. All terminated personnel are denied physical and electronic access to all data, program listings, data processing equipment and systems.

19.12. VA, as well as any Contractor (or Subcontractor) systems used to support development, provide the capability to cancel immediately all access privileges and authorizations upon employee termination.

19.13. Contractor Project Manager (PM) and VA PM are informed within twenty-four (24) hours of any employee termination.

19.14. Acquisition sensitive information shall be marked "Acquisition Sensitive" and shall be handled as “For Official Use Only (FOUO)".

19.15. Contractor does not require access to classified data.

19.16. Regulatory standard of conduct governs all personnel directly and indirectly involved in procurements. All personnel engaged in procurement and related activities shall conduct business in a manner above reproach and, except as authorized by statute or regulation, with complete impartiality and with preferential treatment for none. The general rule is to strictly avoid any conflict of interest or even the appearance of a conflict of interest in VA/Contractor relationships.

19.17. VA Form 0752, Confidentiality of Sensitive Information Non-Disclosure Agreement, shall be completed by all Contractor employees that receive Government furnished laptops, and shall be provided to the CO before any work is performed. In the case that Contractor personnel are replaced in the future, their replacements shall complete VA Form 0752 prior to beginning work.

20. APPLICABLE VA INFORMATION AND INFORMATION SYSTEM SECURITY/PRIVACY

LANGUAGE (per VA HANDBOOK 6500.6, APPENDIX C, MARCH 12, 2010)

20.1. General

20.1.1. 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.

20.2. Access To VA Information and VA Information Systems

20.2.1. 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.

20.2.2. 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.

20.2.3. 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.

20.2.4. 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 (e.g.

Business Associate Agreement, Section 3G), 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.

20.2.5. The Contractor or Subcontractor must notify the CO immediately when an employee working on a VA system or with access to VA information is reassigned or leaves the Contractor or Subcontractor’s employ. The CO must also be notified immediately by the Contractor or Subcontractor prior to an unfriendly termination.

20.3. VA Information Custodial Language

20.3.1. 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 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).

20.3.2. 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 information is returned to VA or destroyed in accordance with VA’s sanitization requirements. VA reserves the right to conduct onsite 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.

20.3.3. 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 VA. Any data destruction done on behalf of VA by a Contractor/Subcontractor must be done in accordance with National Archives and Records Administration (NARA) requirements as outlined in VA Directive 6300, Records and Information Management and its Handbook 6300.1 Records Management Procedures, applicable VA Records Control Schedules, and VA Handbook 6500.1, Electronic Media Sanitization. Self-certification by the Contractor that the data destruction requirements above have been met must be sent to the VA CO within 30 days of termination of the contract.

20.3.4. 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 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.

20.3.5. 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.

20.3.6. 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.

20.3.7. 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.

20.3.8. The Contractor/Subcontractor’s firewall and Web services security controls, if applicable, shall meet or exceed VA minimum requirements. VA Configuration Guidelines are available upon request.

20.3.9. 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 prior written approval. The Contractor/Subcontractor must refer all requests for, demands for production of, or inquiries about, VA information and information systems to the VA CO for response.

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

20.3.11. For service that involves the storage, generating, transmitting, or exchanging of VA sensitive information but does not require C&A or a Memorandum of Understanding-Interconnection Service Agreement (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.

20.4. Security Incident Investigation

20.4.1. 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 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.

20.4.2. 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.

20.4.3. 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.

20.4.4. 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 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 violations 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.

20.5. Liquidated Damages for Data Breach

20.5.1. 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.

However, it is the policy of VA to forgo collection of liquidated damages in the event the contractor provides payment of actual damages in an amount determined to be adequate by the agency.

20.5.2. 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.

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

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

20.5.3.2. Description of the event, including:

20.5.3.2.1. date of occurrence.

20.5.3.2.2. data elements involved, including any PII, such as full name, social security number, date of birth, home address, account number, disability code.

20.5.3.3. Number of individuals affected or potentially affected.

20.5.3.4. Names of individuals or groups affected or potentially affected.

20.5.3.5. 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.

20.5.3.6. Amount of time the data has been out of VA control.

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

20.5.3.8. Known misuses of data containing sensitive personal information, if any.

20.5.3.9. Assessment of the potential harm to the affected individuals.

20.5.3.10. Data breach analysis as outlined in 6500.2 Handbook, Management of Security and Privacy Incidents, as appropriate; and

20.5.3.11. 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.

20.5.4. Based on the determinations of the independent risk analysis, the Contractor shall be responsible for paying to 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:

20.5.5. Notification.

20.5.6. One year of credit monitoring consisting of automatic daily monitoring of at least 3 relevant credit bureau reports.

20.5.7. Data breach analysis.

20.5.8. Fraud resolution services, including writing dispute letters, initiating fraud alerts and credit freezes, to assist affected individuals to bring matters to resolution.

20.5.9. One year of identity theft insurance with $20,000.00 coverage at $0 deductible;

and

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

21. TRAINING

21.1. 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:

21.2. Successfully complete the VA Privacy and Information Security Awareness and Rules of Behavior course (TMS #10176) and complete this required privacy and security training annually; Sign and acknowledge (electronically through TMS #10176) understanding of and responsibilities for compliance with the Contractor Rules of Behavior, VA Handbook 6500.6 Appendix D relating to access to VA information and information systems.

21.2.1. Successfully complete any additional cyber security or privacy training, as required for VA personnel with equivalent information system access.

21.3. The Contractor shall provide to the CO and/or the COR a copy of the training certificates and certification of signing the Contractor Rules of Behavior for each applicable employee within 1 week of the initiation of the contract and annually thereafter, as required.

21.4. Failure to complete the mandatory annual training and electronically 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.