S02 - Combined Synopsis 36C24823Q1974.docx

COMBINED SYNOPSIS/SOLICITATION RFQ 36C24823Q1974

Description This is a combined synopsis/solicitation for commercial items prepared in accordance with the format in FAR Subpart 12.6 in conjunction with Part 13, as supplemented with additional information included in this notice. This procurement is being conducted under Subpart 13.5 Simplified Procedures for Certain Commercial items. This announcement constitutes the only solicitation for this action. Quotes are being requested, and a written solicitation will not be issued.

This solicitation is issued as a Request for Quote (RFQ). This solicitation document and incorporated provisions and clauses are those in effect through Federal Acquisition Circular (FAC) 2023-04, effective 6/2/2023.

This solicitation is 100% set-aside to SDVOSB. The North American Industrial Classification System (NAICS) code for this procurement is 541611, Administrative Management and General Management Consulting Services, with a small business size standard of $24.5 million.

The Network Contracting Office 8-RPO East intends to award a fixed priced contract, providing VISN Wide Lockout and Tagout Program for the VA Sunshine Healthcare Network (VISN 8) in accordance with the below Statement of Work (SOW) and attached Price Schedule.

This solicitation will use Comparative Evaluation. The award will be made to the offeror determined to be acceptable, price reasonable, and is determined to provide the best value to the government. All eligible offerors may submit quotes.

Responses shall be on all or none basis, no partial submissions will be accepted. Quote must be valid for 90 days. All offerors must be registered in System for Award Management (SAM) at https://www.sam.gov at time offers are due to be considered for an award of a federal contract. Registration must be complete and not missing elements such as representations and certifications. Also, if you are a Service-Disabled Veteran Owned Business (SDVOSB) or Veteran-Owned Small Business (VOSB) please be sure to be registered in Veteran Small Business Certification (VetCert) at Veteran Small Business Certification (sba.gov)

VENDOR QUESTIONS: All questions regarding this RFQ must be in writing and may be sent by e‐mail to angel.garay@va.gov Questions must be received no later than Wednesday, 9/13/2023 by 3:30 PM Eastern. No further questions will be accepted after that date and time.

ANSWERS TO VENDOR QUESTIONS: Answers to vendor questions will be posted no later than Friday, 9/15/2023 by 3:30 PM Eastern.

*QUOTE SUBMISSION: Offers are due on/or before Thursday 9/21/2023 by 3:30 PM Eastern. All quotes shall be sent by e‐mail “only” to the Contract Specialist Angel Garay at angel.garay@va.gov. The Government will award a Firm Fixed Priced (FFP) contract resulting from this RFQ to the responsible vendor whose quote using comparative analysis using evaluation factors and is the best value to the Government.

*Vendors are required to follow the “Instructions to Quoters” on pages 42 – 45 of this Synopsis/Solicitation RFQ.

Schedule of Services Lockout and Tagout Program These services shall be on site at the C. W. Bill Young VAMC, Bay Pines, FL in accordance with the terms and conditions herein. Contractors shall quote prices for all the Contract Line- Item Numbers.

B.1 PRICE/COST SCHEDULE

ITEM INFORMATION

JB

VISN-Wide Lock-Out/Tag-Out (LOTO) Program:

NAICS: 541611

PSC: H156

POP: 09-29- 2023 through 06-25-2024

64.00

HR

Training – 8-hour block of instruction per VA medical center

NAICS: 541611

PSC: H156

POP: 09-29- 2023 through 06-25-2024

GRAND TOTAL

B.2 DELIVERY SCHEDULE

Statement of Work VISN 8 Lockout-Tagout Program Standardization

1. General: The contracted firm shall provide all tools, supplies, materials, equipment, labor, supervision, transportation, and project management to develop and implement several elements of a comprehensive and standardized Lock-Out/Tag-Out (LOTO) program for the VA Sunshine Healthcare Network (VISN 8) consisting of 8 VA Medical Center campuses noted below. Elements shall include: Identify and inventory all equipment requiring a LOTO procedure; write LOTO procedures to comply with OSHA regulations; provide training to supervisors and employees, provide a electronic management system for management of the program and allows future changes, upgrades, additions, and deletions of equipment.

1. Background: All VA Medical Centers are required to comply with the same standards, directives, and regulations for LOTO, but program standardization within VHA or VISN 8 has never been required. Each Medical Center therefore developed their own individual LOTO program. These programs vary greatly in application and effectiveness which resulted in programmatic gaps and challenges for management and oversight.

1. Objectives: Standardize a single LOTO program for all Medical Centers in the VA Sunshine Healthcare Network.

1. Tasks: For each Medical Center and associated facilities listed under the Order of Completion priority (page 9), the contracted firm shall provide the following:

1. Lockout-Tagout Procedures:

1. Write procedures to comply with 29 CFR 1910.147, 29 CFR 1910.333, 29 CFR 1926.417, NFPA 70E (most recent edition), and manufacturer’s guidance (if available) for each individual item identified in paragraph 4.A above.

1. All procedures shall be written in the same format, font, colors, style, and layout using Microsoft Word.

1. In addition to the minimum requirements for LOTO procedures, the vendor shall include the following:

2. A picture and accurate diagram of the equipment annotating the positions of all the switches, valves, buttons, etc. which were referenced in the text of the procedure.

2. List all the PPE an authorized employee is required to don as part of the test-before-touch step of the lockout procedure, 1910.147(c)(4)(ii)(D).

2. List of required Lockout devices to accomplish the listed LOTO procedures.

2. For equipment receiving steam, ensure the LOTO procedure includes the closure and lockout the first two upstream valves.

2. Include a lockout procedure to shutoff and lockout steam to each building. Include the two-upstream-valve requirement as required in paragraph 4.B.(3) c.

1. One procedure may be written for several items if allowed by the referenced regulations and standard.

1. Link each piece of equipment on the LOTO inventory with the associated LOTO procedure.

1. Mount a durable copy of LOTO procedures on (if feasible) or in the vicinity of each respective piece of equipment. Durable shall mean that copies of mounted procedures shall be capable of withstanding the expected environment without being damaged beyond the point of use for five years.

1. Equipment Assessment and Inventory:

1. Identify all equipment, machines, devices, and utilities which are required to be deenergized and locked-out or tagged-out in accordance with 29 CFR 1910.147, 29 CFR 1910.333 and 29 CFR 1926.417. At minimum, identification shall include information required by the referenced regulations and the following information if available: equipment type, manufacturer, model number, series or modification, serial number, VA EE# (if applicable), and installed location.

1. List all equipment, machines, devices, and utilities identified in the paragraph above in an electronic inventory system which identifies each by EE#, location (building, floor, room), equipment type, make, model, serial number, energy source type(s) and magnitude(s), and stored energy source type and magnitude.

1. Each facility shall provide the most current inventories of equipment requiring LOTO procedures and individual written procedures, where available, 10-days prior to the start of each respective Equipment Assessment and Inventory to assist in this effort. For the purposes of this project, facility LOTO inventories and procedures are not to be considered current, accurate, or compliant nor constitute endorsement of any format, style, structure, or standards. They shall be provided only for reference and to assist the contractor during the assessment.

1. For purposes of bidding this contract, contractor shall reference the list of locations within this SOW and the assumed number of procedures for each site.

1. Contractor shall provide a full list of the inventory of equipment. If the number of procedures bid is less than the equipment on site, contractor shall work with the VA to determine the least critical pieces of equipment. Those pieces of equipment which do not receive written procedures shall be notated on the inventory. All equipment, regardless of whether or not it receives a LO/TO procedure shall be on the inventory.

1. Lockout Devices:

1. Provide a recommended inventory of lock out devices for each site in order for each site to successfully implement all LO/TO procedures.

1. Tagout:

3. Tagout procedures shall be prohibited unless there is no reasonable method to attach Lockout devices on specified pieces of equipment. In such cases, those pieces of equipment shall be highlighted on the inventory.

3. If Tagout procedures are necessary, then the requirements of 29 CFR 1910.147 shall strictly apply.

3. If Tagout procedures are necessary, the same requirements as listed in paragraphs 4.B and 4.C shall be applied to the maximum extent possible. In addition, provide fifty Tagout devices to each Medical Center with Tagout procedures.

3. Tagout devices shall meet same uniformity standards as delineated in paragraph 4.C above.

1. Training:

4. Following the completion of the inventory and procedure writing for each Medical Center, provide training to appropriate supervisors and authorized employees at each Medical Center. The training shall meet the requirements of 1910.147(c)(7) and consist of:

0. LOTO program requirements and procedures delineated in 29 CFR 1910.147, 29 CFR 1910.333, 29 CFR 1926.417, NFPA 70E (most recent edition).

0. Electrical safety procedures and PPE as they pertain to LOTO operations. This shall include appropriate elements of 29 CFR 1910 Subpart I, 29 CFR 1910.339, and the references.

0. Supervisory responsibilities with respect to LOTO program and operations.

0. Employee responsibilities with respect to LOTO program and operations.

0. Description and review of LOTO procedures, devices, and inventory management.

0. Provide a LOTO train-the-trainer session for supervisors and VISN 8 staff during the same day and not to interfere with other training events.

4. Training shall consist of no more than 50 employees at each Medical Center campus. Classroom space will be provided by the Medical Centers and classroom requirements shall be coordinated between the facility’s primary coordinator, the COR and the contracted firm following the award of the contract.

4. All training documents, hand-outs and devices shall be provided by the contracted firm.

4. Training shall consist of one day at each campus for a total of 8 sites.

4. The training schedule shall be coordinated between the facility’s primary coordinator, the COR and the contracted firm following the award of the contract.

1. Deliverable Submissions:

(1) The contracted firm shall provide the samples, approved items, drafts, and final copies related to the operation and management of the program within reasonable timeframes.

(2) All deliverable documents shall be submitted to the VISN COR and respective facility coordinator in draft form for review, comment and editing prior to final approval.

(3) Proposed physical samples of each deliverable item shall be submitted to the VISN COR and respective facility coordinator for inspection, comment, and final approval.

(4) The government shall have 15 business days after receipt to inspect and review each draft document and inspect physical sample.

(5) The facility coordinator and contractor’s employees assigned to the project may communicate directly to request clarifications on the draft documents. Ensure the VISN COR is copied on all correspondences to the maximum practical extent.

(6) The VISN COR shall be contacted to address any unresolved issues between the facility coordinator and contractor’s employees with any draft documents prior to approval.

(7) Communications between the contracted firm’s employees and facility coordinators or VISN COR shall not be construed as a change in the terms of this contract. Only the assigned VA Contracting Officer can authorize changes.

1. Program Management and Sustainability:

1. Provide an electronic LOTO management system which includes the following features at a minimum:

0. Unlimited editing and updating by VA employees.

0. Ability to correlate each piece of equipment on the LOTO equipment inventory with each respective procedure.

0. Provides awareness to each respective supervisor and program manager of upcoming required procedure reviews and maintain records of completed reviews.

0. Tracking, notifications and completion records for LOTO training and annual reviews of all authorized and affected employees.

0. A program auditing capability.

0. Tiered levels of access to the system so that the VISN can oversee all sites while each site can view their own.

1. Unless otherwise approved by the COR or Contracting Officer, all draft and final documents shall be provided in a non-proprietary electronic format to the VISN 8 Capital Assets Manager, COR, and each respective Medical Center representative. Government employees shall have an unrestricted ability to edit documents in PDF format or one or more of the following Microsoft Office programs: Word.

1. Regulations, Standards and References: All final documents, equipment and procedures developed or provided by the contracted firm shall meet the requirements of applicable sections of the following references:

0. 29 CFR 1910.147

0. 29 CFR 1910 Subpart I

0. 29 CFR 1910.333

0. 29 CFR 1910.335

0. 29 CFR 1926.417

0. Relevant sections of 29 CFR 1910 related to the safe handling of hazardous machinery and equipment.

0. NFPA 70

0. NFPA 70E

0. NFPA 99

0. ANSI/ASSE Z244.1

0. ANSI/ASSE Z117.1

0. Respective manufacturers’ directions and instructions

1. General Information

1. Period of Performance: Project to be completed within nine (9) months of agreed upon start date.

1. Hours of Operation: Contractor’s access to the facility shall be coordinated through the local facility Point of Contact. The contractor is responsible for conducting business between the hours of 8:00 am and 4:00 pm Monday thru Friday except Federal holidays or when the Government facility is closed due to local or national emergencies, administrative closings, or similar Government directed facility closings.

1. Recognized Holidays: The contractor shall have access to the facility on weekends or the following federal holidays IF approved and coordinated with the local facility Point of Contact:

Juneteenth

1. Place of Performance: The work to be performed under this contract shall be in all engineering, boiler plant, utility, healthcare areas, administrative areas and meeting rooms located at the facilities listed in (page 9).

1. Security Requirements: The contracted firm’s employees shall report to the Medical Center VA Police Department, provide appropriate identification and documents, and wear the issued badge while on site. They shall be accompanied by an authorized employee while in any VA facility to ensure safety, protection of sensitive data, and provide access into restricted and locked areas. Medical Centers will be responsible for providing the authorized employee with the appropriate access to the facilities and to coordinate the initial arrival of the firm’s employees at the VA Police Department.

1. Physical Security: The contractor shall be responsible for safeguarding all government equipment, information and property provided for contractor use. At the close of each work period, government facilities, equipment, and materials shall be secured.

1. Information Security: At no time will the contracted firm or their employees have access to or connect any devices to the VA information network. Sensitive information shall not be recorded, obtained, or otherwise released by the contracted firm or their employees without express written consent of the Contracting Officer.

1. Data Rights: The Government has unlimited rights to all documents/material produced under this contract. All documents and materials, to include the source codes of any software, produced under this contract shall be Government owned and are the property of the Government with all rights and privileges of ownership/copyright belonging exclusively to the Government. These documents and materials may not be used or sold by the contractor without written permission from the Contracting Officer. All materials supplied to the Government shall be the sole property of the Government and may not be used for any other purpose. This right does not abrogate any other Government rights.

1. Special Qualifications: The contractor shall ensure all employees assigned to this project possess expert knowledge of 29 CFR 1910, 29 CFR 1910.333, 29 CFR 1926.417and NFPA 70E requirements regarding energy control safety.

The contractor shall ensure all employees possess working knowledge of utility systems on large, multi-building campuses and healthcare-related machinery and equipment that may require LOTO.

1. Special Precautions for COVID-19: Members of the contracted survey team shall be required to meet each facility’s precautionary requirements prior to entering. Requirements may include, but are not limited to, COVID testing, quarantine, vaccination, daily screening questionnaires, and wearing of face coverings. As the COVID-19 emergency continues to evolve, requirements for accessing VA healthcare facilities are expected to change. While there is no reasonable method to predict any future changes to these requirements the contractor shall contact each facility prior to arrival to determine the current COVID protocols. If contracted employees are traveling from another State, it is strongly advised to verify the State’s travel requirements regarding COVID precautions such as testing and quarantine.

1. Other Costs: The Proposed Price of this project is to be fully inclusive. Upon award of the contract, change orders and additional costs may only be committed and approved by a VA Contracting Officer. Statements made by any other VA employee shall not be considered change orders or commitments to additional costs by the VA.

1. Quality Control: Establish a quality control plan specifying standard for both performance and quality. The quality control plan shall be provided to the CO and COR. The CO and COR will conduct surveillance of the contractor’s performance to ensure products delivered achieve the standard or mitigation plans are put into place early to avoid corrective measures later in the contract period.

Order of completion priority:

*GSF = Gross Square Feet is defined as the area that includes all enclosed space as measured from the exterior face of the building walls.

Location Addresses:

a. Bay Pines VA Medical Center, 10000 Bay Pines Blvd, Bay Pines, FL 33744

b. Lee County Outpatient Clinic (Bay Pines), 2489 Diplomat Parkway East Cape Coral, FL 33909

c. Miami VA Medical Center, 1201 N.W. 16th St., Miami, FL 33125

d. Malcom Randall VA Medical Center (Gainesville), 1601 SW Archer Road, Gainesville, FL 32608

e. Lake City VA Medical Center, 619 South Marion Ave., Lake City, FL 32025

f. Orlando VA Medical Center (Lake Nona), 13800 Veterans Way, Orlando, FL 32827

g. Orlando VA Medical Center (Lake Baldwin), 5201 Raymond Street, Orlando, FL 32803

h. Orlando VA Lakemont Campus, 2500 S. Lakemont Ave., Orlando, FL 32814

i. James A. Haley Veterans' Hospital, 1300 Bruce B. Downs Blvd., Tampa, FL 33612

j. Brooksville CBOC (Tampa), 14540 Cortez Blvd Ste 108, Brooksville, FL 34613

k. West Palm Beach VA Medical Center, 7305 North Military Trail, West Palm Beach, FL 33410

l. San Juan VA Medical Center, 10 Calle Casia, San Juan, PR 00921-3201

VA INFORMATION AND INFORMATION SYSTEM SECURITY/PRIVACY LANGUAGE

VA INFORMATION CUSTODIAL LANGUAGE:

a. 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.

b. 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.

c. 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.

d. 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.

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 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 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.

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.

SECURITY CONTROLS COMPLIANCE TESTING:

On a periodic basis, VA, including the Office of Inspector General, reserves the right to evaluate any or all of the security controls and privacy practices implemented by the contractor under the clauses contained within the contract. With 10 working-days’ notice, at the request of the government, the contractor must fully cooperate and assist in a government-sponsored security controls assessment at each location wherein VA information is processed or stored, or information systems are developed, operated, maintained, or used on behalf of VA, including those initiated by the Office of Inspector General. The government may conduct a security control assessment on shorter notice (to include unannounced assessments) as determined by VA in the event of a security incident or at any other time.

P. ISO/PO Comments:

The following language from VA Handbook 6500.6 is required in this contract:

· Appendix C: #3a, b, c, d, e, f, j, k, #6a, b, d, #7(all), #9(all)

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 NIST issues or updates applicable FIPS or Special Publications (SP) after execution of this contract, the parties agree to negotiate in good faith to implement the information confidentiality and security laws, regulations and policies in this contract.

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

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

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

k. Notwithstanding the provision above, the contractor/subcontractor shall not release VA records protected by 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.

6. 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 COTR 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.

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.

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 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.

7. 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 $______ 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 3 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.

9. 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 VA Cyber Security Awareness and Rules of Behavior training and annually complete required security training;

(3) Successfully complete the appropriate VA privacy training and annually complete required privacy training; and

(4) Successfully complete any additional cyber security or privacy training, as required for VA personnel with equivalent information system access [to be defined by the VA program official and provided to the contracting officer for inclusion in the solicitation document – e.g., any role-based information security training required in accordance with NIST Special Publication 800-16, Information Technology Security Training Requirements.]

b. The contractor shall provide to the contracting officer and/or the COTR 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.

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.

Contractors must complete training courses “VA Privacy and Information Security Awareness and Rules of Behavior” and “HIPAA and Privacy Training” on an annual basis.

Contractor is not storing data on behalf of VA.

SECTION C - CONTRACT CLAUSES

C.1 52.212-4 CONTRACT TERMS AND CONDITIONS—COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (DEC 2022)

(a) Inspection/Acceptance. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. If repair/replacement or reperformance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights—

(1) Within a reasonable time after the defect was discovered or should have been discovered; and

(2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

(b) Assignment. The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. 3727). However, when a third party makes payment (e.g., use of the Governmentwide commercial purchase card), the Contractor may not assign its rights to receive payment under this contract.

(c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties.

(d) Disputes. This contract is subject to 41 U.S.C. chapter 71, Contract Disputes. Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at Federal Acquisition Regulation (FAR) 52.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

(e) Definitions. The clause at FAR 52.202-1, Definitions, is incorporated herein by reference.

(f) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence.

(g) Invoice.

(1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include—

(i) Name and address of the Contractor;

(ii) Invoice date and number;

(iii) Contract number, line-item number and, if applicable, the order number;

(iv) Description, quantity, unit of measure, unit price and extended price of the items delivered;

(v) Shipping number and date of shipment, including the bill of lading number and weight of shipment if shipped on Government bill of lading;

(vi) Terms of any discount for prompt payment offered;

(vii) Name and address of official to whom payment is to be sent;

(viii) Name, title, and phone number of person to notify in event of defective invoice; and

(ix) Taxpayer Identification Number (TIN). The Contractor shall include its TIN on the invoice only if required elsewhere in this contract.

(x) Electronic funds transfer (EFT) banking information.

(A) The Contractor shall include EFT banking information on the invoice only if required elsewhere in this contract.

(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer—System for Award Management, or 52.232-34, Payment by Electronic Funds Transfer—Other Than System for Award Management), or applicable agency procedures.

(C) EFT banking information is not required if the Government waived the requirement to pay by EFT.

(2) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C. 3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR part 1315.

(h) Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings.

(i) Payment.—

(1) Items accepted. Payment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this contract.

(2) Prompt payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C. 3903) and prompt payment regulations at 5 CFR part 1315.

(3) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 52.212-5(b) for the appropriate EFT clause.

(4) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an electronic funds transfer payment is made.

(5) Overpayments. If the Contractor becomes aware of a duplicate contract financing or invoice payment or that the Government has otherwise overpaid on a contract financing or invoice payment, the Contractor shall—

(i) Remit the overpayment amount to the payment office cited in the contract along with a description of the overpayment including the—

(A) Circumstances of the overpayment (e.g., duplicate payment, erroneous payment, liquidation errors, date(s) of overpayment);

(B) Affected contract number and delivery order number, if applicable;

(C) Affected line item or subline item, if applicable; and

(D) Contractor point of contact.

(ii) Provide a copy of the remittance and supporting documentation to the Contracting Officer.

(6) Interest.

(i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by the Secretary of the Treasury as provided in 41 U.S.C. 7109, which is applicable to the period in which the amount becomes due, as provided in (i)(6)(v) of this clause, and then at the rate applicable for each six-month period as fixed by the Secretary until the amount is paid.

(ii) The Government may issue a demand for payment to the Contractor upon finding a debt is due under the contract.

(iii) Final decisions. The Contracting Officer will issue a final decision as required by 33.211 if—

(A) The Contracting Officer and the Contractor are unable to reach agreement on the existence or amount of a debt within 30 days;

(B) The Contractor fails to liquidate a debt previously demanded by the Contracting Officer within the timeline specified in the demand for payment unless the amounts were not repaid because the Contractor has requested an installment payment agreement; or

(C) The Contractor requests a deferment of collection on a debt previously demanded by the Contracting Officer (see 32.607-2).

(iv) If a demand for payment was previously issued for the debt, the demand for payment included in the final decision shall identify the same due date as the original demand for payment.

(v) Amounts shall be due at the earliest of the following dates:

(A) The date fixed under this contract.

(B) The date of the first written demand for payment, including any demand for payment resulting from a default termination.

(vi) The interest charge shall be computed for the actual number of calendar days involved beginning on the due date and ending on—

(A) The date on which the designated office receives payment from the Contractor;

(B) The date of issuance of a Government check to the Contractor from which an amount otherwise payable has been withheld as a credit against the contract debt; or

(C) The date on which an amount withheld and applied to the contract debt would otherwise have become payable to the Contractor.

(vii) The interest charge made under this clause may be reduced under the procedures prescribed in FAR 32.608-2 in effect on the date of this contract.

(j) Risk of loss. Unless the contract specifically provides otherwise, risk of loss or damage to the supplies provided under this contract shall remain with the Contractor until, and shall pass to the Government upon:

(1) Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or

(2) Delivery of the supplies to the Government at the destination specified in the contract, if transportation is f.o.b. destination.

(k) Taxes. The contract price includes all applicable Federal, State, and local taxes and duties.

(l) Termination for the Government's convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor's records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

(m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

(n) Title. Unless…