Coronavirus Database Firm Illegally Withholds From Senate Key Contract Documents

Last month, the Secretary of Health and Human Services (HHS), Alex M. Azar II, ordered hospitals to stop reporting coronavirus patient data to the Centers for Disease Control and Prevention. Instead, a contractor called TeleTracking had been awarded a $10.2 million contract by HHS to take the data. 

Senator Patty Murray and Democratic Leader Chuck Schumer wrote the contractor to obtain information. 

Now, in a letter made public this evening by The New York Times, the HHS contractor stonewalled the Senate. The contractor refused their queries about how it collects and shares data, its communications with administration officials and other information related to the awarding of the contract.

The assertion by the contractor was that it had a nondisclosure agreement it signed with HHS. We should first ask why the contractor information is so important, and then, why the stonewalling is illegal.

The issue matters because public health experts are up in arms, saying the TeleTracking system is burdening hospital, endangering scientific integrity, and produces unreliable data. Only too clearly, the Trump Administrator has picked a contractor who will not help determine – if not outright conceal — the extent of the pandemic. It is hard to imagine CDC itself doing the bidding of the White House in cooking the books, as to the pandemic, but it is unfortunately possible to imagine the “right” HHS contractor, with no particular history of leadership in public health, doing it. 

Although the inquiries have been going on for some time now, consider what the HHS contractor might do right now, as states begin to open up schools. It is literally a life or death matter whether we get credible national data to resolve the key questions of how much contagion accompanies the opening of schools. Good data could save many lives successive states made their decisions. But data fudged by the HHS contractor might obscure the matter.

Now we go back to the contention that the HHS contractor can stonewall the Senators because it has a nondisclosure agreement with HHS. Here I will mention that I wear two caps. I served as General Counsel to the House, and before then, in the Senate Legal Counsel’s office. I had fifteen years of extensive experience with a variety of figures trying to withhold evidence, including contractors. I also have been a government contracting professor and the author of a leading casebook on the subject. 

In all that time, I have performed legal analysis on many withholdings of evidence from Congress, and thousands of pages of contracts. I have never yet seen one page, in all that time and all that experience, that expressly directed a contractor to withhold information from Congress ( We are putting aside the handling of classified intelligence by intelligence agency contractors, and even they report through proper channels to Congressional intelligence committees) 

So legally, we come to a fork in the road. Maybe this was a total set-up to stonewall Congress from the get-go, and there is actually a clause saying to do so. In that case, the short answer is that no agency statute or regulation authorized such a clause. Otherwise, they would have been used often enough to come to Congress’s attention, and the Senators who do strong oversight, like Senator Chuck Grassley, would have gotten rid of them. The virus is new, of course, but contractor waste, fraud and abuse has been with us since the Revolutionary War, and Congress never lets lasting barriers be erected against oversight.

More likely, the contractor has not shown the actual language of the clause to the Senators. It has the excellent reason for not doing so, that the clause has general language that is not expressly focused on Congress, but rather, is general language about not disclosing to “anyone else.” In that case, it is illegal to construe it as aimed at a legal inquiry such as that of Senator Murray (with Democratic Leader Schumer). One might just as well cite such general language as preventing federal or state grand juries from seeing it.

The New York Times also said that a government website initially listed it as a “sole source” contract, but health department officials later said there were six bidders. That is a telling contradiction. Sole source contracts are highly suspect and heavily disfavored by government contract law. In this situation, sole sourcing would be a major indicator that this contractor was picked for some particular “virtue,” like the White House felt that for doing the administration’s dirty work, they were just right. If there six, where are the other five? Why would not HHS explain to the Senate the awarding process, and how competitive it was?