Justice Management Division...Serving Justice - Securing Results

SECTION H OF THE CONTRACT, SPECIAL CONTRACT CLAUSES

H.18 Personnel Security Clearance Requirements

(a) General

1. The Government anticipates that the work to be performed under this contract will involve access to sensitive but unclassified materials (otherwise known as "Limited Official Use") and non-sensitive materials. Sensitive materials may include, but are not limited to: data found within Grand Jury information, informant and witness information, investigative material, tax information, computer systems and information, Privacy Act protected information, and Department of Justice proprietary information. Duplication or disclosure of the data and other information to which the Contractor may have access as a result of this contract is prohibited by Public Law and, in the case of Grand Jury information and tax information, subject to criminal penalties. If a change in classification occurs and the contractor personnel will require access to classified information originated by or in the custody of the Department of Justice, than such access shall be processed through the National Industrial Security Program.
   
   
2. In general, services performed by Contractor personnel may fall within three (3) "risk" categories as described below:
   
   
1. High Risk: Are those sensitive positions that have the potential for exceptionally serious impact involving duties especially critical to the DOJ or a program mission with broad scope of policy or program authority, such as:
   
   
• Attorneys;
  
  
• Law enforcement;
  
  
• Policy development or implementation;
  
  
• Higher level management assignment;
  
  
• Independent spokespersons or nonmanagement positions with authority for independent action;
  
  
• Significant fiduciary and procurement authority and responsibilities; or
  
  
• ADP-computer positions responsible for the planning, direction, and implementation of a computer security program; the direction, planning, and design of a computer system, including the hardware and software; or, accessing a system during the operation or maintenance in such a way, with relatively High Risk to cause grave damage or realizing significant personal gain. (Refer to Appendix III, OMB Circular A-130, Management of Federal Information Resources,@ for those computer positions that are High Risk.)
  
  
2. Moderate Risk: Are those sensitive positions that have the potential for moderate to serious impact involving duties very important to the DOJ or program mission with significant program responsibilities and delivery of customer services to the public, such as:
   
   
• Assistance to policy development and implementation;
  
  
• Mid-level management assignments;
  
  
• Nonmanagement positions with authority for independent or semi-independent action;
  
  
• Delivery of service positions that demand public confidence or trust;
  
  
• o ADP-computer positions of a lesser degree of risk than that required for High Risk positions (Refer to Appendix III, MB Circular A-130, "Management of Federal Information Resources," for those computer positions that are other than High Risk.);
  
  
• Freedom of Information Act/Privacy duties; or
  
  
• Positions that require access to Grand Jury information.
  
  
3. Low Risk (Nonsensitive): Are those non-sensitive positions that do not fall into any of the above categories and include those positions with potential for impact involving duties of limited relation to the DOJ's mission.

(b) Types and Number of Background Investigations

1. Work performed under this contract will fall within one or more of the risk categories defined in paragraph (a)(2) above. As a result, the Contractor's personnel must undergo a background investigation. The type of background investigation required will be commensurate with the risk factor associated with the duties of each position. Prior to award of the contract, the Contracting Officer's Technical Representative (COTR), in consultation with the cognizant Security Programs Manager (SPM), will determine the exact number and types of background investigations required for all Contractor positions. For planning purposes, the Government estimates that the following number and types of background investigations will be needed:
   
   

   Risk Category	Number of Investigations Needed
   High Risk	Program Manager, Regional Directors, Agency Managers, and Project Directors
   Moderate Risk	Operations Supervisor, Supervisory Paralegal, Supervisory Records Examiner/Analyst, Supervisory Financial Analyst
   Low Risk	All Other Labor Categories

   
   
   
2. The Contractor will not be permitted to commence performance under the contract or individual task orders until a sufficient number of its personnel, as determined by the COTR and SPM, have received requisite background investigations or approved pre-appointment background investigation waivers.
   
   
3. During the life of the contractor individual task orders, the Contractor shall ensure that no Contractor or Subcontractor employee commences performance hereunder prior to receipt of a written authorization from the Contracting Officer or COTR.

(c) Pre-Appointment Background Investigations and Waivers

1. High Risk Positions:
   
   
1. The background investigation shall be an LBI (Limited Background Investigation). The LBI consists of a personal subject interview, NAC, credit history check, written inquiries and record searches covering 5 years, and personal interviews covering specific areas during the most recent 3 years.
   
   
2. Pre-appointment waivers may be granted following a successful National Crime Information Center (NCIC) check, vouchering of previous 2 employers, and a favorable review of forms submitted.
   
   
2. Moderate Risk Positions
   
   
1. The background investigation shall be a NACI (National Agency Check and Inquiries).
   
   
2. The NACI consists of a NAC, written inquiries, and record searches covering specific areas of a subject's background during the past five (5) years.
   
   
3. Pre-appointment waivers may be granted following a favorable NCIC check and a favorable review of forms submitted.
   
   
3. Low Risk Positions
   
   
1. The background investigation shall be a Federal Bureau of Investigation Name and Fingerprint check.
   
   
2. Pre-appointment waivers may be granted following a favorable NCIC check.

(d) Required Security Forms

The following forms must be completed and submitted by the Contractor for each Contractor background investigation:

1. FD-258 (Applicant Fingerprint Card) - (two sets per applicant)
   
   
2. SF-85 (Questionnaire for Non-Sensitive Positions) OR SF-85 P (Questionnaire for Public Trust Positions)

(e) Procedures for Pre-Screening Applicants and Investigation

1. The Contractor shall be responsible for performing the following pre-screening and investigation duties for all persons proposed for work under this contract:
   
   
1. Furnish to each proposed Contractor employee the forms described in paragraph D above and ensure that adequate instructions for completing the forms are provided to each applicant.
   
   
2. Ensure that applicants obtain two (2) complete sets of their fingerprints on the prescribed Form FD-258 from an organization qualified to take fingerprints and approved by the COTR and SPM.
   
   
3. Collect completed forms from each applicant and review all forms for completeness and correctness. Return any incomplete or incorrect form(s) to applicant(s) to be corrected and re-submitted.
   
   
4. Submit completed forms to the COTR by no later than ten (10) calendar days after receipt of the blank forms.
   
   
5. As directed by the COTR, the Contractor may be required to initiate pre-appointment waivers for certain positions. This may entail performing one or more of the following: credit history checks, and vouchering previous employers.
   
   
2. The Government will be responsible for performing the following pre-screening and investigation duties for all persons proposed for work under this contract:
   
   
1. The SPM should consider the unique security concerns present when hiring contract employees who are not citizens of the U.S. or, who have not resided in the U.S. for at least three of the last five years immediately prior to employment on a Department contract. For investigative purposes, an extended residency outside the U.S. immediately prior to employment on a Department contract may prevent a sufficient background investigation from being conducted. Consequently, without a background investigation, the contract employee cannot be granted unescorted access to Department facilities. Accordingly, when it is determined that a sufficient background investigation cannot be conducted, the procedures listed below should be followed:
   
   
1. (i) the contract employee's physical access should be restricted to the designated work area only;
   
   
2. (ii) the contract employee must be physically escorted if the contractor employee requires physical access to other Department facilities; and
   
   
3. (iii) the component should obtain written authorization from the Deputy Assistant Attorney General, Information Resources Management, Justice Management Division, before the contractor employee is given access to Department-wide ADP or other computer systems.
   
   
2. The COTR, in consultation with the SPM, will determine the appropriate risk level for each Contractor employee position.
   
   
3. The COTR will provide the Contractor an adequate supply of forms and instructions for completing the forms within fourteen (14) calendar days after contract award).
   
   
4. The COTR will receive from the Contractor all completed security forms. The COTR will coordinate with his/her SPM and ensure that these forms are forwarded to the appropriate investigating agency in accordance with appropriate internal procedures. The investigating agency will conduct the requisite investigations.
   
   
5. The COTR, in coordination with the SPM, will determine whether pre-appointment background investigation waivers will be needed, and if so, which positions will require such waivers. The COTR will notify the Contractor which pre-appointment waivers to initiate.
   
   
6. The investigating agency will furnish the COTR or SPM, as appropriate, the results of each proposed Contractor employee's investigation through issuance of a Certificate of Investigation (COI). Upon receipt of the COI and any other pertinent documents from the investigating agency, the COTR or SPM, as appropriate, will determine whether or not each proposed Contractor employee should be granted employment security approval. This decision process is called "adjudication" and will be performed in accordance with current DOJ adjudicative guidelines. The COTR or SPM, as appropriate, will notify, if required, the investigating agency of the adjudicative determination of each investigation. If OPM is the investigating agency, this will be accomplished by the COTR or SPM, as appropriate, completing and submitting to OPM an INV Form 79A, "Report of Agency Adjudicative Action." The COTR must be provided a copy of each COI and INV Form 79A as they become available. Inasmuch as the Department Security Officer (DSO) monitors and has oversight responsibility for the Department's Contractor Personnel Security Program, the COTR and/or the SPM should consult the DSO when confronted with questionable adjudicative determinations.
   
   
7. The COTR will notify the Contractor of the results of background investigations as they are completed and adjudicated. The COTR will notify the Contractor of any applicants who are found ineligible for employment security approval so that the Contractor can immediately recruit and initiate paperwork to clear replacement applicants.
   
   
8. The COTR will notify the Contracting Officer when a sufficient number of Contractor employees have received employment security approvals or pre-appointment waivers approvals. Upon receipt of this information and any other information which may be required elsewhere in the contract, the Contracting Officer will issue individual task orders to the Contractor which permit the commencement of work under the contract.
   
   
9. The COTR will maintain an up-to-date file of COI's and other background investigation-related documentation for all Contractor employees throughout the life of the contract.

(f) Re-Investigation of Contractor Employees

1. Security investigations are very costly to the Government. The Contractor shall make every effort to preclude incurrence of costs by the Government for security investigations for replacement of employees, and in so doing, shall assure that otherwise satisfactory and physically able employees assigned hereunder remain in contract performance for at least 365 calendar days. The Contractor shall take all necessary steps to assure that Contractor or Subcontractor personnel who are selected for assignment to this contract are professionally qualified and personally reliable, of reputable background and sound character, and meet all other requirements stipulated herein.
   
   
2. The fact that the Government performs security investigations shall not in any manner relieve the Contractor of its responsibility to assure that all personnel furnished are reliable and of reputable background and sound character. Should a security investigation conducted by the Government render ineligible a Contractor furnished employee, the Contracting Officer will investigate the cause and determine whether the Contractor has abdicated its responsibilities to make every effort to select reliable employees of reputable background and sound character. Should there be need to replace a Contractor or subcontractor employee due to nonperformance, the Contracting Officer will determine whether the Contractor has abdicated its responsibilities to make every effort to select trained and experienced employees.
   
   
3. Should the Contracting Officer determine that the Contractor has failed to comply with the terms of paragraph (f)(1) above, the Contractor may be held monetarily responsible, as a minimum, for all reasonable and necessary costs incurred by the Government to (a) provide coverage (performance) through assignment of individuals employed by the Government or third parties in those cases where absence of Contractor personnel would cause either a security threat or DOJ program disruption and (b) conduct security investigations in excess of those which would otherwise be required.
   
   
4. Nothing in this Clause shall require the Contractor to bear costs involved in the conduct of security investigations for replacement of an employee who becomes deceased or severely ill for a long period of time.
   
   
5. Acceptance by the Government of consideration to which the Government may be entitled pursuant to paragraph (f)(2) above shall not be construed to establish a course of conduct which will serve to limit the rights and remedies otherwise available to the Government. Under no circumstances shall the Contractor fail to comply with the terms and conditions set forth herein without assuming liability for such failure as may be established pursuant to this Clause. The rights and remedies conferred upon the Government by this Clause are in addition to all and other rights and remedies specified elsewhere in this contract or established by law.