Emergency MEM Temporary Pathologist
Version 0005 Dated 8 1 2014
Page 25 of 25
The purpose of this Sources Sought Notice is to search for service disabled veteran owned small business concerns capable to provide services necessary to perform onsite Pathology Support Services for the Department of Veteran Affairs Medical Center Memphis, TN.
This Sources Sought Notice is for market research purposes only and shall not be considered an Invitation for Bids, Request for Quotations, or a Request for Proposal. Do not submit a proposal or quote. This market research is issued for information and planning purposes only and does not constitute a solicitation nor does it restrict the Government as to the ultimate acquisition approach. In accordance with FAR 15.201 , responses to this notice are not offers and cannot be accepted by the Government to form a binding contract. Additionally, there is no obligation on the part of the Government to acquire any products or services described in this sources sought. You will not be entitled to payment for direct or indirect costs that you incur in responding to this Sources Sought Notice. Any contract that might be awarded based on information received or derived from this market research will be the outcome of a competitive process. Interested parties are responsible for adequately marking proprietary, restricted or competition sensitive information contained in their response. The Government does not intend to pay for the information submitted in response to this Sources Sought Notice.
Any interested Service Disabled Veteran Owned Small Business concern must submit a capability statement addressing its ability to meet the requirements above to Seth King, Contracting Officer, at seth.king@va.gov no later than 21 June 2017. Questions regarding this Sources Sought Notice WILL NOT be answered.
Point of Contact:
Seth King
Contracting Officer
seth.king@va.gov
THE DRAFT PERFORMANCE WORK STATEMENT (PWS) FOLLOWS:
PERFORMANCE WORK STATEMENT
1. SERVICES TO BE PROVIDED:
The contractor shall provide to the Department of Veterans Affairs, Memphis, TN three (3) FTEE Board Certified Anatomic and Clinical Pathologists. The contractor shall provide services on an as needed basis. Upon request for the Pathologist services, the contractor will also be provided with the term of services required. The Department of Veterans Affairs Medical Center Chief of Laboratory & Pathology Medicine Service or designee will have final technical and administrative direction over all services provided.
Description of duties:
The Anatomic and Clinical Pathologist (AP/CP) preferably with subspecialty training in other areas of Pathology (e.g., Dermatopathology, Hematopathology, etc.) should provide neoplastic and non-neoplastic pathology and cytopathology diagnoses at the VA Medical Center Memphis in order to meet the clinical needs of our Veterans. The AP/CP Pathologist is expected to provide coverage for the following services in Anatomic Pathology (70% FTE): Surgical Pathology (providing coverage for at least 80% of the cases within the corresponding subspecialty field), oversight of Grossing Room, and Autopsy Services. Also, the AP/CP Pathologist will provide coverage for Clinical Pathology/Laboratory Medicine (30%FTE). For this reason, additional training or experience in these areas of Clinical Pathology/Laboratory Medicine (e.g., Blood Bank, Hematology, Immunology, etc.) is preferred. The AP/CP Pathologist is expected to provide the following services in Clinical Pathology/Laboratory Medicine: Blood Bank/Transfusion Medicine consultation, Hematology consultation (including complete cytology evaluation of body fluids and peripheral blood slide reviews). Also, the AP/CP Pathologist will assist the Laboratory Directors and Service Chief in coordinating the Service s Compliance and Quality Management activities.
2. APPROVAL OF CONTRACTOR PERSONNEL:
The Department of Veterans Affairs reserves the right to refuse employment under this contract or require dismissal from contract work of any contractor employee or subcontractor employee because of unsatisfactory performance or for any other reasonable reason considered by the Chief, Pathology and Laboratory Medicine Service, the Chief, of Staff, and the Contracting Officer to be objectionable, upon written notification of unsatisfactory performance to the Contractor.
3. TOURS OF DUTY:
a. Tours of Duty for appropriate coverage will be mutually agreed upon by the Contractor and the VA
b. Overtime will not be paid for lunch breaks not taken. Overtime will be paid only in emergency situations with proper approval from program coordinator/ designee.
c. Tours will be a max of 8 hours tours (8:00am-4:30pm). No double tours or sequential tours will be permitted.
4. STAFFING LEVEL:
Two (2) FTEE Anatomic and Clinical Pathologist will work Monday Friday 0800AM-4:30PM
5. DUTIES
The Anatomic and Clinical Pathologist (AP/CP) preferably with subspecialty training in other areas of Pathology (e.g., Dermatopathology, Hematopathology, etc.) should provide neoplastic and non-neoplastic pathology and cytopathology diagnoses at the VA Medical Center Memphis in order to meet the clinical needs of our Veterans. The AP/CP Pathologist is expected to provide coverage for the following services in Anatomic Pathology (70% FTE): Surgical Pathology (providing coverage for at least 80% of the cases within the corresponding subspecialty field), oversight of Grossing Room, and Autopsy Services. Also, the AP/CP Pathologist will provide coverage for Clinical Pathology/Laboratory Medicine (30%FTE). For this reason, additional training or experience in these areas of Clinical Pathology/Laboratory Medicine (e.g., Blood Bank, Hematology, Immunology, etc.) is preferred. The AP/CP Pathologist is expected to provide the following services in Clinical Pathology/Laboratory Medicine: Blood Bank/Transfusion Medicine consultation, Hematology consultation (including complete cytology evaluation of body fluids and peripheral blood slide reviews). Also, the AP/CP Pathologist will assist the Laboratory Directors and Service Chief in coordinating the Service s Compliance and Quality Management activities
6. ORIENTATION:
Orientation will consist of 4 -8 hours of training including unit specific orientation.
Included in the orientation will be:
Blood borne Pathogen and Infection Control Policy - Standard Precautions
Safety Procedures and use of Personal Protective Equipment
Patient Rights and Patient Abuse
Standards of Ethical Conduct
Documentation Standards for the Clinical Record
Smoking Regulations
Patient, Visitor and Employee Safety
Pathology & Lab Employees Response in Emergency Situations
Rules of Behavior; Customer Service
Each Contractor employee will be expected to review the documents and sign the agreement indicating such a review has occurred. During the 4-8 hour mandatory orientation at the VA, each Contractor employee will be given the opportunity to discuss previously reviewed policies/documents specific to the facility.
Upon completion of training, each Contractor employee will complete an orientation assessment measuring the knowledge retained following the training.
Each physician contractor will be required to successfully complete the Credentialing and Privileging (VetPro) process for medical staff.
Each physician contractor will be placed on a Focused Professional Practice evaluation (FPPE) for a minimum of six (6) months.
7. DOCUMENTATION REQUIREMENTS:
All these should be submitted with offer
Current resume with detail of length and type of experience
Copy of current TB testing and results within the past 12 months and then annually
Completed Fingerprint Information Form (will be provided by VA) and will be submitted on the medical staff who will be performing on the contract once the contract is awarded.
Record of current Hepatitis B vaccination or declination form
b. Documents required before start of contract work are: (forms will be provided by VA)
Fingerprints information sheet will be submitted on all contractors to COR
The following can be accomplished at Orientation
Compliance and Business Integrity Training
VA Privacy and Information Security Awareness and Rules of Behavior
VHA Privacy and HIPAA Focused Training
Copy of completion certificate must be provided to the COR upon completion of training and annually thereafter.
8. SPECIAL CONTRACT REQUIREMENT:
Under the authority of Public Law 104-262 and 38 USC 8153, the Contractor agrees to provide Health Care Resources, in accordance with the terms and conditions stated herein, at the Memphis VAMC, at the services and prices specified in the Schedule of Supplies/Services and Price/Costs.
9. SERVICES:
a. The services specified in Supplies/Services, Specifications/Work statement, and Special Contract Requirements may be changed by written modification to this contract. The VA contracting officer will prepare the modification.
b. Other necessary personnel for the operation of the services contracted for at the VA will be provided by VA at levels mutually agreed upon which are compatible with the safety of the patient and personnel and with quality medical care programming.
c. The services to be performed by the contractor will be performed in accordance with VA policies and procedures and the regulations of the medical staff by-laws of the facility.
d. The services to be performed by the contractor will be under the direction of Chief, Pathology & Laboratory Medicine or designee, Department of Veterans Affairs Medical Center, 1030 Jefferson Avenue, Memphis, TN 38104.
10. KEY PERSONNEL AND TEMPORARY EMERGENCY SUBSTITUTIONS:
a. The Contractor shall assign to this contract the following key personnel:
(3) FTEE Board Certified Anatomic and Clinical Pathologists having appropriate experience.
b. The Contractor shall make NO substitutions of key personnel unless the substitution is necessitated by illness, death, or termination of employment. Substitution personnel shall be provided within three (3) working days of notification to the VA that a substitution is necessary.
c. The Contractor shall provide a detailed explanation of the circumstances necessitating the proposed substitutions, complete resumes and all other documents required for original personnel for the proposed substitutes, and any additional information requested by the Contracting Officer. Proposed substitutes shall have comparable qualifications to those of the persons being replaced. The contract shall be modified to reflect any approved changes of key personnel. For temporary substitutions where the key person will not be reporting to work for 3 consecutive work days or more, the Contractor shall provide a qualified replacement for the key person. This substitute shall have comparable qualifications to the key person. Any period exceeding two (2) weeks shall require the procedure as stated above.
d. Because continuity of care is an essential part of Medical Care Services, the Contractor is to have a contingency plan in place to be utilized if personnel leave Contractor s employment or are unable to continue performance in accordance with the terms and conditions of the resulting contract.
e. The Government reserves the right to refuse acceptance of Contractor if personal or professional conduct jeopardizes patient care or interferes with the regular and ordinary operation of the facility. Pathologists who have current, full and unrestricted licenses in one or more states but who have, or ever had, a license restricted, suspended, revoked, voluntarily revoked, voluntarily surrendered pending action or denied upon application shall not be considered for the purposes of this contract. Breaches of conduct include intoxication or debilitation resulting from drug use, theft, patient abuse, dereliction or negligence in performing directed tasks, or other conduct resulting in formal complaints by patients or other staff members to designated Government representatives. Standards for conduct shall mirror those prescribed by current federal personnel regulations. The Contractor and Contracting Officer s Representative shall deal with issues raised concerning contract personnel s conduct. The final arbiter on questions of acceptability is the Contracting Officer.
11. BADGES
Contractor personnel are required to wear ID badges above the waist during the entire time he/she is at the Memphis VAMC. The ID badge MUST have an identification picture and shall be issued by the Memphis VAMC. ID badges MUST be surrendered at the end of the contract during the out processing procedure. If badge is lost, replacement cost is $5.00 paid by Contractor/Contractor staff.
12. KEYS:
Contractor may be required to have keys issued to them during the time he/she is at Memphis VAMC. Keys may be issued as needed and MUST be surrendered at the end of each shift to the supervisor of the area assigned.
13. NO SMOKING POLICY:
Except in designated areas, smoking is strictly prohibited inside and on the patios and balconies of all Memphis VAMC buildings.
14. QUALIFICATIONS:
Contractor shall insure that all candidates currently possess the appropriate certification as a Board Certified Anatomic and Clinical Pathologist with additional subspecialty training preferred. Contractor will be provided copies of current requirements and updates as they are published.
Application package will be provided by the candidate. This includes: Curriculum vitae, current references, signed release of information from candidate, and statement that candidate does not have any physical or mental health condition that would adversely affect his/her ability to carry out assigned duties, and additional credentialing and privileging forms.
15. TERM OF CONTRACT:
This contract is effective from the date award through September 30, 2017. The contract is subject to the availability of VA funds. The contracting officer reserves the right to exercise one (1) six (6) month option. No services shall be performed by the contractor after September 30, 2017 until the contracting officer authorizes such services in writing.
16. WORK HOURS:
a. The services covered by this contract shall be furnished by the contractor as defined herein. Tours of Duty for appropriate coverage will be mutually agreed upon by the Contractor and the VA.
The following terms have the following meanings:
(1) Federal Holidays: The ten (10) holidays observed by the federal government are: May be required to work some holidays
New Year s Day
Martin Luther King s Birthday
Washington s Birthday
Memorial Day
Independence Day
Labor Day
Columbus Day
Veterans Day
Thanksgiving Day
Christmas Day
(2) Or any other day specifically declared by the President of the United States to be a national holiday.
(3) When one of the holidays falls on Sunday, the following Monday shall be observed as a Federal Holiday. When a holiday falls on a Saturday, the preceding Friday shall be observed as a Federal Holiday.
17. PERSONNEL POLICY:
a. The contractor shall be responsible for protecting the personnel furnishing services under this contract. To carry out this responsibility, the contractor shall provide the following for these personnel:
Worker s compensation
Professional liability insurance
Health examinations
Income tax withholding, and
Social security payments
b. The parties agree that such personnel shall not be considered VA employees for any purpose and shall be considered employees of the contractor.
c. Personnel will report to the Pathology & Lab Medicine Service Room CW-140 for initial assignment.
d. Taking of Photographs/Videos are Prohibited while on VA premises.
e. Wearing of approved ID Badge at all times facing forward and above waist.
18. INFECTION CONTROL REQUIREMENTS
Health Tests - Contractor personnel shall provide, upon VAMC request to review, proof of the following tests within five (5) days prior to first duty shift. Tests shall be current within the past year.
(a) Tuberculosis Testing - All contractor personnel shall provide proof of a negative reaction to Purified Protein Derivative (PPD) testing. A negative chest radiographic report for active tuberculosis shall be provided in cases of positive PPD results. The PPD test shall be repeated annually.
(b) Rubella Tests - All contractor personnel shall provide proof of immunization for measles, mumps, rubella or a rubella titer of 1.8 or greater. If the titer is less than 1.8, a rubella immunization must be administered with follow-up documentation to the COR.
(c) OSHA Regulation concerning Occupational Exposure to Blood borne Pathogens - The contractor shall provide a generic self-study training module to its personnel; provide Hepatitis B vaccination series at no cost to its personnel who elect to receive it; maintain and distribute an exposure determination and control plan to its personnel; maintain required records; and ensure that proper follow-up evaluation is provided following an exposure incident.
(d) VA will notify the contractor of any significant communicable disease exposures as appropriate. The contractor s occupational health provider shall adhere to current CDC/HICPAC Guideline for Infection Control in health care personnel (AJIC 1998; 26:289-354) for disease control. The contracting agency shall provide follow up documentation of employee s clearance to return to the workplace prior to their return.
19.MONITORING AND RECORDKEEPING:
a. The program assistant to the Chief, Pathology & Laboratory Medicine Service or designee is assigned the responsibility of monitoring this contract to assure the VA is paying only for hours worked and services performed.
b. Timesheets (sign in/sign out) will be prepared for the contractor s employees to verify that services required under this contract have been received by the VA Medical Center. These records will be compared to the contractor s monthly invoice for accuracy by identifying the employee by name and the number of hours worked. Invoices will be certified for payment only after records have been verified.
Procedures for System Access. Access requirements to VA information systems by Contractors and Contractor personnel shall meet or exceed those requirements established for personnel as described in VHA Directives. A written and signed request for user access by VHA Management, or designee(s), constitutes management approval (sponsorship) to initiate a request for access to any sensitive automated information system. Access shall be granted to non-VA users only if the purpose for access meets criteria of the Privacy Act and VA Confidentiality regulations and transfer.
Contractor's personnel will be required to complete VA Privacy and Information Security Awareness and Rules of Behavior training and Contractor Rules of Behavior training before starting work under this contract.
In the performance of official duties, the Contractor's personnel has regular access to printed and electronic files containing sensitive information, which must be protected under the provisions of the Privacy Act of 1974, and other applicable laws and regulations. The employee is responsible for (1) protecting that information from unauthorized release or from loss, alternation or unauthorized deletion, and (2) following applicable regulations and instructions regarding access to computerized files, release of access codes, etc. as set out in a computer access agreement which the employee signs.
Inappropriate usage of VA computer systems (as defined in the Contractor Rules of Behavior) will constitute grounds for (at the least) terminating access for that person and (at the most) termination of the entire contract.
B No VA data shall be removed, copied or faxed outside of the VAMC Memphis environment.
CONFIDENTIALITY: The Contractor understands and agrees that the information in the medical records of all patients is confidential. Strict confidentiality is to be maintained, Rules of Confidentiality expected to be conformed with are delineated in 38 U.S.c. 3301, 38 U.S.c. 4132 5 U.S.c. 552 (a) et. seq. The Contractor and its personnel shall be held liable in the event of breech of confidentiality. Any person, who knowingly or willingly discloses confidential information from the authorizing VA Medical Centers, may be subject to fines.
20. QUALITY IMPROVEMENT:
The Government may evaluate the quality of professional and administrative services provided, but retains no control over the medical, professional aspects of services rendered (e.g., professional judgments, diagnosis for specific medical treatment), in accordance with Federal Acquisition Regulation (FAR) 37.401(b). See Attachment A
21. JOINT COMMISSION COMPLIANCE:
a. The Contractor shall perform required services in accordance with the standards of the Joint Commission. The Contractor shall adhere to Veterans Health Administration (VHA) regulations and the policies, procedures, and regulations of the Medical Staff bylaws of the Memphis VAMC.
b. The Contractor, upon request, shall provide quality data and information related to services provided and participate in the Medical Center's Performance Improvement programs when requested to do so. The Contractor shall also provide documentation of the competency of staff that will be providing the contracted services.
22. PAYMENT:
a. Payment to the Contractor shall be made Monthly in arrears, upon receipt of a properly prepared invoice. Payment for any leave, including sick leave, holiday, or vacation time, PTO time, shall be the responsibility of the Contractor.
b. Invoices shall include the contract number, purchase order number, date of work, hour worked, contract employee s name, description of work, hours total, rate, and total billed
price, refer to other invoice processes as addressed in the contract.
c. Billings rendered by the Contractor to the VAMC for services furnished a VAMC beneficiary under the terms of this contract shall be billings in full. Neither the beneficiary, his insurer, nor any third party shall be billed.
d. Payment Address:
Department of Veterans Affairs
Finance Service Center
PO Box 149972
Austin, TX 78714-8971
e. Contractor employee(s) must be present at the Memphis VAMC and must be actually performing the services specified in the contract in order to receive reimbursement.
23. TYPE OF CONTRACT:
This is a Firm-Fixed Price contract.
24. EVIDENCE OF INSURANCE COVERAGE:
The Contractor shall furnish to the Contracting Officer with their quote a Certificate of Insurance which shall contain an endorsement to the effect that cancellation of, or any material change in the policies which adversely affect the interests of the Government in such insurance shall not be effective unless a 30-day written notice of cancellation or change is furnished to the Contracting Officer.
25. CONTRACTING OFFICER'S REPRESENTATIVE (COR):
The Contracting Officer's Representative (COR) for this contract shall be:
Pathology & Laboratory Medicine Service
Department of Veterans Affairs Medical Center
1030 Jefferson Ave.
Memphis, TN 38104
Phone: 901) 523-8990, Ext 7390
Email: Clarence.Hale@va.gov
26. CONFIDENTIALITY OF PATIENT RECORDS:
The Contractor is a VA contractor and will assist in the provision of health care to patients seeking such care from or through VA. As such, the Contractor is considered as being part of the Department health care activity. Contractor is considered to be a VA contractor for purposes of the Privacy Act, Title 5 U.S.C. 552a. Further, for the purpose of VA records access and patient confidentiality, Contractor is considered to be a VA contractor for the following provisions: Title 38 U.S.C. 5701, 5705, and 7362. Therefore, Contractor may have access, as would other appropriate components of VA, to patient medical records including patient treatment records pertaining to drug and alcohol abuse, HIV, and sickle cell anemia, to the extent necessary to perform its contractual responsibilities. However, like other components of the Department, and not withstanding any other provisions of the contract, the Contractor is restricted from making disclosures of VA records, or information contained in such records, to which it may have access, except to the extent that explicit disclosure authority from VA has been received. The Contractor is subject to the same penalties and liabilities for unauthorized disclosures of such records as VA.
The records referred to above shall be and remain the property of VA and shall not be removed or transferred from VA except in accordance with U.S.C.551a (Privacy Act), 38 U.S.C. 5701 (Confidentiality of claimants records), 5 U.S.C. 552 (FOIA), 38 U.S.C. 5705 (Confidentiality of Medical Quality Assurance Records) 38 U.S.C. 7332 (Confidentiality of certain medical records) and federal laws, rules and regulations. Subject to applicable federal confidentiality or privacy laws, the Contractor, or their designated representatives, and designated representatives of federal regulatory agencies having jurisdiction over Contractor, may have access to VA s records, at VA s place of business on request during normal business hours, to inspect and review and make copies of such records.
27. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA):
Contractors and any subcontractors must adhere to the provisions of Public Law 104-191, Health Insurance Portability and Accountability Act (HIPAA) of 1996. This includes both the Privacy and Security Rules published by the Department of Health and Human Services (HHS). As required by HIPAA, HHS has promulgated rules governing the use and disclosure of protected health information by covered entities. The covered entity component of the Department of Veterans Affairs is the Veterans Health Administration Business Associate Agreement (BAA) with the VHA. Business associates must follow VHA privacy policies and practices. All contractor and business associates must receive privacy training annually. For contractors and business associates who do not have access to VHA computer systems, this requirement is met by completing VHA National Privacy Policy training, other VHA approved privacy training or contractor furnished training that meets the requirements of the HHS Standards for Privacy of Individually Identifiable Health Information as determined by VHA. For contractors and business associates who are granted access to the VHA computer systems, this requirement is met by completing VHA National Privacy Policy training or other VHA approved privacy training. Proof of training is required.
In accordance with 45 CFR 164.502(e), the Privacy Rule includes exceptions to the Business Associate standard. This contract and its requirements meet the following exception and do not require a Business Associate agreement in order for Covered Entity to disclose Protected Health Information to: a health care provider for treatment. Based on this exception, a Business Associate agreement is not required for this contract.
28. CONTRACTOR PERSONNEL SECURITY REQUIREMENTS: All contractor employees who require access to the Department of Veterans Affairs computer systems shall be the subject of a background investigation and must receive a favorable adjudication from the VA Office of Security and Law Enforcement prior to contract performance.
This requirement is applicable to all subcontractor personnel requiring the same access.
If the investigation is not completed prior to the start date of the contract, the contractor will be responsible for the actions of those individuals they provide to perform work for VA.
1. Position Sensitivity: The position sensitivity has been designated as Low Risk.
2. Background Investigation: The level of background investigation commensurate with the required level of access is National Agency Check with Written Inquiries.
3. Contractor Responsibilities:
a. The contractor shall bear the expense of obtaining background investigations. If the investigation is conducted by the Office of Personnel Management (OPM), the contractor shall reimburse VA within 30 days.
b. The contractor shall prescreen all personnel requiring access to the computer systems to ensure they maintain a U.S. citizenship and are able to read, write, speak and understand the English language.
c. The contractor shall submit or have their employees submit the following required forms to the VA Office of Security and Law Enforcement within 30 days of receipt:
(i) Standard Form 85P, Questionnaire for Public Trust Positions
(ii) Standard Form 85P-S, Supplemental Questionnaire for Selected Positions
(iii) FD 258, U.S. Department of Justice Fingerprint Applicant Chart
(iv) VA Form 0710, Authority for Release of Information Form
(v) Optional Form 306, Declaration for Federal Employment
(vi) Optional Form 612, Optional Application for Federal Employment.
d. The contractor, when notified of an unfavorable determination by the Government, shall withdraw the employee from consideration from working under the contract.
e. Failure to comply with the contractor personnel security requirements may result in termination of the contract for default.
4. Government Responsibilities:
a. The VA Office of Security and Law Enforcement will provide the necessary forms to the contractor or to the contractor s employees after receiving a list of names and addresses.
b. Upon receipt, the VA Office of Security and Law Enforcement will review the completed forms for accuracy and forward the forms to OPM to conduct the background investigation.
c. The VA facility will pay for investigations conducted by the Office of Personnel Management (OPM) in advance. In these instances, the contractor will reimburse the VA facility within 30 days.
Appendix B
VA ACQUISITION REGULATION SOLICITATION PROVISION AND CONTRACT CLAUSE
NOTE: This clause will undergo official rule making by the Office of Acquisitions and Logistics. The below language will be submitted for public review through the Federal Register. The final wording of the clause may be changed from what is outlined below based on public review and comment. Once approved, the final language in the clause can be obtained from the Office of Acquisitions and Logistics Programs and Policy.
1. SUBPART 839.2 INFORMATION AND INFORMATION TECHNOLOGY SECURITY REQUIREMENTS
839.201 Contract clause for Information and Information Technology Security:
a. Due to the threat of data breach, compromise or loss of information that resides on either VA-owned or contractor-owned systems, and to comply with Federal laws and regulations, VA has developed an Information and Information Technology Security clause to be used when VA sensitive information is accessed, used, stored, generated, transmitted, or exchanged by and between VA and a contractor, subcontractor or a third party in any format (e.g., paper, microfiche, electronic or magnetic portable media).
b. In solicitations and contracts where VA Sensitive Information or Information Technology will be accessed or utilized, the CO shall insert the clause found at 852.273-75, Security Requirements for Unclassified Information Technology Resources.
2. 852.273-75 - SECURITY REQUIREMENTS FOR UNCLASSIFIED INFORMATION TECHNOLOGY RESOURCES (INTERIM- OCTOBER 2008)
As prescribed in 839.201, insert the following clause:
The contractor, their personnel, and their subcontractors shall be subject to the Federal laws, regulations, standards, and VA Directives and Handbooks regarding information and information system security as delineated in this contract.
Appendix C
VA INFORMATION AND INFORMATION SYSTEM SECURITY/PRIVACY LANGUAGE FOR INCLUSION INTO CONTRACTS, AS APPROPRIATE
1. GENERAL
Contractors, contractor personnel, subcontractors, and subcontractor personnel shall be subject to the same Federal laws, regulations, standards, and VA Directives and Handbooks as VA and VA personnel regarding information and information system security.
2. ACCESS TO VA INFORMATION AND VA INFORMATION SYSTEMS
a. A contractor/subcontrator shall request logical (technical) or physical access to VA information and VA information systems for their employees, subcontractors, and affiliates only to the extent necessary to perform the services specified in the contract, agreement, or task order.
b. All contractors, subcontractors, and third-party servicers and associates working with VA information are subject to the same investigative requirements as those of VA appointees or employees who have access to the same types of information. The level and process of background security investigations for contractors must be in accordance with VA Directive and Handbook 0710, Personnel Suitability and Security Program. The Office for Operations,
Security, and Preparedness is responsible for these policies and procedures.
c. Contract personnel who require access to national security programs must have a valid security clearance. National Industrial Security Program (NISP) was established by Executive Order 12829 to ensure that cleared U.S. defense industry contract personnel safeguard the classified information in their possession while performing work on contracts, programs, bids, or research and development efforts. The Department of Veterans Affairs does not have a
Memorandum of Agreement with Defense Security Service (DSS). Verification of a Security Clearance must be processed through the Special Security Officer located in the Planning and National Security Service within the Office of Operations, Security, and Preparedness.
d. Custom software development and outsourced operations must be located in the U.S. to the maximum extent practical. If such services are proposed to be performed abroad and are not disallowed by other VA policy or mandates, the contractor/subcontractor must state where all non-U.S. services are provided and detail a security plan, deemed to be acceptable by VA, specifically to address mitigation of the resulting problems of communication, control, data protection, and so forth. Location within the U.S. may be an evaluation factor.
e. The contractor or subcontractor must notify the Contracting Officer immediately when an employee working on a VA system or with access to VA information is reassigned or leaves the contractor or subcontractor s employ. The Contracting Officer must also be notified immediately by the contractor or subcontractor prior to an unfriendly termination.
3. VA INFORMATION CUSTODIAL LANGUAGE
a. Information made available to the contractor or subcontractor by VA for the performance or administration of this contract or information developed by the contractor/subcontractor in performance or administration of the contract shall be used only for those purposes and shall not be used in any other way without the prior written agreement of the VA. This clause expressly limits the contractor/subcontractor's rights to use data as described in 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 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.
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.
g. If a VHA contract is terminated for cause, the associated BAA must also be terminated and appropriate actions taken in accordance with VHA Handbook 1600.01, Business Associate Agreements. Absent an agreement to use or disclose protected health information, there is no business associate relationship.
h. The contractor/subcontractor must store, transport, or transmit VA sensitive information in an encrypted form, using VA-approved encryption tools that are, at a minimum, FIPS 140-2 validated.
i. The contractor/subcontractor s firewall and Web services security controls, if applicable, shall meet or exceed VA s minimum requirements. VA Configuration Guidelines are available upon request.
j. Except for uses and disclosures of VA information authorized by this contract for performance of the contract, the contractor/subcontractor may use and disclose VA information only in two other situations: (i) in response to a qualifying order of a court of competent jurisdiction, or (ii) with VA s prior written approval. The contractor/ subcontractor must refer all requests for, demands for production of, or inquiries about, VA information and information systems to the VA contracting officer for response.
k. Notwithstanding the provision above, the contractor/subcontractor shall not release VA records protected by 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.
l. For service that involves the storage, generating, transmitting, or exchanging of VA sensitive information but does not require C&A or an MOU-ISA for system interconnection, the contractor/subcontractor must complete a Contractor Security Control Assessment (CSCA) on a yearly basis and provide it to the COR.
4. INFORMATION SYSTEM DESIGN AND DEVELOPMENT
a. Information systems that are designed or developed for or on behalf of VA at non-VA facilities shall comply with all VA directives developed in accordance with FISMA, HIPAA, NIST, and related VA security and privacy control requirements for Federal information systems. This includes standards for the protection of electronic PHI, outlined in 45 C.F.R. Part 164, Subpart C, information and system security categorization level designations in accordance with FIPS 199 and FIPS 200 with implementation of all baseline security controls commensurate with the FIPS 199 system security categorization (reference Appendix D of VA Handbook 6500, VA Information Security Program). During the development cycle a Privacy Impact Assessment (PIA) must be completed, provided to the COR, and approved by the VA Privacy Service in accordance with Directive 6507, VA Privacy Impact Assessment.
b. The contractor/subcontractor shall certify to the COTR that applications are fully functional and operate correctly as intended on systems using the VA Federal Desktop Core Configuration (FDCC), and the common security configuration guidelines provided by NIST or the VA. This includes Internet Explorer 7 configured to operate on Windows XP and Vista (in Protected Mode on Vista) and future versions, as required.
c. The standard installation, operation, maintenance, updating, and patching of software shall not alter the configuration settings from the VA approved and FDCC configuration. Information technology staff must also use the Windows Installer Service for installation to the default program files directory and silently install and uninstall.
d. Applications designed for normal end users shall run in the standard user context without elevated system administration privileges.
e. The security controls must be designed, developed, approved by VA, and implemented in accordance with the provisions of VA security system development life cycle as outlined in NIST Special Publication 800-37, Guide for Applying the Risk Management Framework to Federal Information Systems, VA Handbook 6500, Information Security Program and VA Handbook 6500.5, Incorporating Security and Privacy in System Development Lifecycle.
f. The contractor/subcontractor is required to design, develop, or operate a System of Records Notice (SOR) on individuals to accomplish an agency function subject to the Privacy Act of 1974, (as amended), Public Law 93-579, December 31, 1974 (5 U.S.C. 552a) and applicable agency regulations. Violation of the Privacy Act may involve the imposition of criminal and civil penalties.
g. The contractor/subcontractor agrees to:
(1) Comply with the Privacy Act of 1974 (the Act) and the agency rules and regulations issued under the Act in the design, development, or operation of any system of records on individuals to accomplish an agency function when the contract specifically identifies:
(a) The Systems of Records (SOR); and
(b) The design, development, or operation work that the contractor/subcontractor is to perform;
(2) Include the Privacy Act notification contained in this contract in every solicitation and resulting subcontract and in every subcontract awarded without a solicitation, when the work statement in the proposed subcontract requires the redesign, development, or operation of a SOR on individuals that is subject to the Privacy Act; and
(3) Include this Privacy Act clause, including this subparagraph (3), in all subcontracts awarded under this contract which requires the design, development, or operation of such a SOR.
h. In the event of violations of the Act, a civil action may be brought against the agency involved when the violation concerns the design, development, or operation of a SOR on individuals to accomplish an agency function, and criminal penalties may be imposed upon the officers or employees of the agency when the violation concerns the operation of a SOR on individuals to accomplish an agency function. For purposes of the Act, when the contract is for the operation of a SOR on individuals to accomplish an agency function, the contractor/subcontractor is considered to be an employee of the agency.
(1) Operation of a System of Records means performance of any of the activities associated with maintaining the SOR, including the collection, use, maintenance, and dissemination of records.
(2) Record means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, education, financial transactions, medical history, and criminal or employment history and contains the person s name, or identifying number, symbol, or any other identifying particular assigned to the individual, such as a fingerprint or voiceprint, or a photograph.
(3) System of Records means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.
i. The vendor shall ensure the security of all procured or developed systems and
technologies, including their subcomponents (hereinafter referred to as Systems ), throughout the life of this contract and any extension, warranty, or maintenance periods. This includes, but is not limited to workarounds, patches, hotfixes, upgrades, and any physical components (hereafter referred to as Security Fixes) which may be necessary to fix all security vulnerabilities published or known to the vendor anywhere in the Systems, including Operating Systems and firmware. The vendor shall ensure that Security Fixes shall not negatively impact the Systems.
j. The vendor shall notify VA within 24 hours of the discovery or disclosure of successful exploits of the vulnerability which can compromise the security of the Systems (including the confidentiality or integrity of its data and operations, or the availability of the system). Such issues shall be remediated as quickly as is practical, but in no event longer than ____ days.
k. When the Security Fixes involve installing third party patches (such as Microsoft OS patches or Adobe Acrobat), the vendor will provide written notice to the VA that the patch has been validated as not affecting the Systems within 10 working days. When the vendor is responsible for operations or maintenance of the Systems, they shall apply the Security Fixes within ____ days.
l. All other vulnerabilities shall be remediated as specified in this paragraph in a timely manner based on risk, but within 60 days of discovery or disclosure. Exceptions to this paragraph (e.g. for the convenience of VA) shall only be granted with approval of the contracting officer and the VA Assistant Secretary for Office of Information and Technology.
5. INFORMATION SYSTEM HOSTING, OPERATION, MAINTENANCE, OR USE
a. For information systems that are hosted, operated, maintained, or used on behalf of VA at non-VA facilities, contractors/subcontractors are fully responsible and accountable for ensuring compliance with all HIPAA, Privacy Act, FISMA, NIST, FIPS, and VA security and privacy directives and handbooks. This includes conducting compliant risk assessments, routine vulnerability scanning, system patching and change management procedures, and the completion of an acceptable contingency plan for each system. The contractor s security control procedures must be equivalent, to those procedures used to secure VA systems. A Privacy Impact Assessment (PIA) must also be provided to the COTR and approved by VA Privacy Service prior to operational approval. All external Internet connections to VA s network involving VA information must be reviewed and approved by VA prior to implementation.
b. Adequate security controls for collecting, processing, transmitting, and storing of Personally Identifiable Information (PII), as determined by the VA Privacy Service, must be in place, tested, and approved by VA prior to hosting, operation, maintenance, or use of the information system, or systems by or on behalf of VA. These security controls are to be assessed and stated within the PIA and if these controls are determined not to be in place, or inadequate, a Plan of Action and Milestones (POA&M) must be submitted and approved prior to the collection of PII.
c. Outsourcing (contractor facility, contractor equipment or contractor staff) of systems or network operations, telecommunications services, or other managed services requires certification and accreditation (authorization) (C&A) of the contractor s systems in accordance with VA Handbook 6500.3, Certification and Accreditation and/or the VA OCS Certification Program Office. Government-owned (government facility or government equipment) contractor-operated systems, third party or business partner networks require memorandums
of understanding and interconnection agreements (MOU-ISA) which detail what data types are shared, who has access, and the appropriate level of security controls for all systems connected to VA networks.
d. The contractor/subcontractor s system must adhere to all FISMA, FIPS, and NIST standards related to the annual FISMA security controls assessment and review and update the PIA. Any deficiencies noted during this assessment must be provided to the VA contracting officer and the ISO for entry into VA s POA&M management process. The contractor/subcontractor must use VA s POA&M process to document planned remedial actions to address any deficiencies in information security policies, procedures, and practices, and the completion of those activities. Security deficiencies must be corrected within the timeframes approved by the government. Contractor/subcontractor procedures are subject to periodic, unannounced assessments by VA officials, including the VA Office of Inspector General. The physical security aspects associated with contractor/subcontractor activities must also be subject to such assessments. If major changes to the system occur that may affect the privacy or security of the data or the system, the C&A of the system may need to be reviewed, retested and re-authorized per VA Handbook 6500.3. This may require reviewing and updating all of the documentation (PIA, System Security Plan, Contingency Plan). The Certification Program Office can provide guidance on whether a new C&A would be necessary.
e. The contractor/subcontractor must conduct an annual self-assessment on all systems and outsourced services as required. Both hard copy and electronic copies of the assessment must be provided to the COTR. The government reserves the right to conduct such an assessment using government personnel or another contractor/subcontractor. The contractor/subcontractor must take appropriate and timely action (this can be specified in the contract) to correct or mitigate any weaknesses discovered during such testing, generally at no additional cost.
f. VA prohibits the installation and use of personally-owned or contractor/subcontractor owned equipment or software on VA s network. If non-VA owned equipment must be used to fulfill the requirements of a contract, it must be stated in the service agreement, SOW or contract. All of the security controls required for government furnished equipment (GFE) must be utilized in approved other equipment (OE) and must be funded by the owner of the equipment. All remote systems must be equipped with, and use, a VA-approved antivirus (AV) software and a personal (host-based or enclave based) firewall that is configured with a VA approved configuration. Software must be kept current, including all critical updates and patches. Owners of approved OE are responsible for providing and maintaining the anti-viral software and the firewall on the non-VA owned OE.
g. All electronic storage media used on non-VA leased or non-VA owned IT equipment that is used to store, process, or access VA information must be handled in adherence with VA Handbook 6500.1, Electronic Media Sanitization upon: (i) completion or termination of the contract or (ii) disposal or return of the IT equipment by the contractor/subcontractor or any person acting on behalf of the contractor/subcontractor, whichever is earlier. Media (hard drives, optical disks, CDs, back-up tapes, etc.) used by the contractors/subcontractors that
contain VA information must be returned to the VA for sanitization or destruction or the contractor/subcontractor must self-certify that the media has been disposed of per 6500.1 requirements. This must be completed within 30 days of termination of the contract.
h. Bio-Medical devices and other equipment or systems containing media (hard drives, optical disks, etc.) with VA sensitive information must not be returned to the vendor at the end of lease, for trade-in, or other purposes. The options are:
(1) Vendor must accept the system without the drive;
(2) VA s initial medical device purchase includes a spare drive which must be installed in place of the original drive at time of turn- in; or
(3) VA must reimburse the company for media at a reasonable open market replacement cost at time of purchase.
(4) Due to the highly specialized and sometimes proprietary hardware and software associated with medical equipment/systems, if it is not possible for the VA to retain the hard drive, then;
(a) The equipment vendor must have an existing BAA if the device being traded in has sensitive information stored on it and hard drive(s) from the system are being returned physically intact; and
(b) Any fixed hard drive on the device must be non-destructively sanitized to the greatest extent possible without negatively impacting system operation. Selective clearing down to patient data folder level is recommended using VA approved and validated overwriting
technologies/methods/tools. Applicable media sanitization specifications need to be preapproved and described in the purchase order or contract.
(c) A statement needs to be signed by the Director (System Owner) that states that the drive could not be removed and that (a) and (b) controls above are in place and completed. The ISO needs to maintain the documentation.
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 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.
7. LIQUIDATED DAMAGES FOR DATA BREACH
a. Consistent with the requirements of 38 U.S.C. B'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
(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.
8. 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 a 10 working-day 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.
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.
Seth King
Contracting Officer
615-225-3403
seth.king@va.gov
Seth King, Contracting Officer
