How could the details of a contract with the federal government, subject to congressional oversight, be hidden from scrutiny behind a non-disclosure agreement?
You’re not the only one wondering. The New York Times on Friday revealed a letter in which the firm collecting hospitals’ COVID-19 data, TeleTracking, told two U.S. senators that its contract with the Trump administration was covered by an NDA. Government contracting experts were stumped.
“The idea that the whole contract is under an NDA, and that they can’t, somehow, cooperate with Congress providing its constitutionally-authorized oversight duties — to me, that’s crazy,” said Jessica Tillipman, an assistant dean at George Washington University Law School who focuses on government procurement.
Tillipman told TPM she spoke to a colleague about TeleTracking’s claim, “and we both just had this reaction, like, ‘Huh?’”
“I’m just not aware of this being a normal protocol,” she said. “It’s not a normal practice. So I have no idea how this would’ve worked, because it’s not typical.”
The Trump administration last month ordered hospitals to stop reporting their COVID-19 data to the Centers for Disease Control and Prevention, and to instead begin sending numbers to TeleTracking on just a few days’ notice. TPM reported on the chaos that ensued from the rapid switch, which also caught the attention of congressional investigators.
In a letter dated Aug. 3 to Senate Minority Leader Chuck Schumer (D-NY) and Patty Murray (D-WA), the ranking member of the Senate Health Committee, a lawyer for the health care data firm said that TeleTracking sought to fully cooperate in response to questions the pair had sent in July about the contract.
“However,” the attorney wrote, “we are obligated to advise you that the Contract is subject to a broad Non-Disclosure Agreement (NDA) that restricts TeleTracking’s release of non-public information, including, but not limited to, confidential privileged and procurement-sensitive information.”
“Notwithstanding these contractual restrictions, we are pleased to cooperate and provide other information,” wrote the attorney, A. Scott Bolden.
That floored some experts who said they hadn’t heard of an NDA getting in the way of congressional oversight. The law professor Charles Tiefer, for example, served as acting general counsel of the House of Representatives in the ‘90s and was later a member of the Commission on Wartime Contracting in Iraq and Afghanistan.
“I have performed legal analysis on many withholdings of evidence from Congress, and thousands of pages of contracts,” he wrote in Forbes. “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.”
The senators who requested information from TeleTracking were not pleased.
“Instead of helping answer why the Trump Administration required hospitals to switch the way they report critical data to a new system, in the middle of a pandemic, with 48-hours notice — this response raises new questions,” Murray said in a statement to TPM.
“The Department’s decision to include a nondisclosure agreement in this contract is yet another unusual development that demands an explanation,” she added. “I’m going to keep pressing for more information about this.”
Schumer, in a separate statement, said the administration’s decision “to hire a private vendor and then cloak that vendor in a non-disclosure agreement raises numerous questions about their motivations and risks the ability of our public health experts to understand and effectively fight this virus.”
The decision to switch to TeleTracking as the government’s preferred data destination for hospitals — and to ice out the CDC, which was not aware of the decision until it was made — has led to concern and frustration in public health circles.
Karen Hoffmann, the former president of the Association for Professionals in Infection Control and Epidemiology, called the TeleTracking system a “black box” because of the uncertainty surrounding the data. And TPM and other outlets have identified discrepancies between state and federal hospital capacity numbers that remained uncorrected for weeks.
But TeleTracking’s claim of an NDA covering contradicting details adds new transparency questions to the mix. For now, those questions are going unanswered — neither TeleTracking nor HHS responded to TPM’s request for comment.