Pago Pago, AMERICAN SAMOA — The Attorney General’s office cites corporate privilege and government privilege among the reasons its filed a motion to quash in part a subpoena from the Senate Select Investigative Committee (SSIC) for “all” documents regarding the bidding process and subsequent contract between ASG and TALOFAPass Software, as well as the status on TALOFAPass Data Management.

The motion to quash was filed by Attorney General Fainuulelei Falefatu Ala'ilima-Utu with the Legislature, dated November 21 2022, in response to a SSIC Subpoena Duces Tecum, dated October 4, 2022.

The AG’s motion was obtained by Samoa News.

The motion was filed after the Chief Procurement Officer appeared to testify before the SSIC about the awarding of the $6.35 million TALOFAPass contract.

The 24-page motion explains in general the reason the Government of American Samoa (ASG) through the Office of Procurement issued a Request for Proposals (RFP) from qualified firms to provide programs and services for a “safe travels program” to be developed and launched for travelers entering American Samoa.

It points to the global COVID-19 pandemic in 2020 as the reason for the RFP —  an effort by ASG to reduce the spread of the novel virus.

According to the motion, standard notifications were made and seven bids were received by the ASG-CPO for consideration in accordance with RFP-089-2021 issued on August 2, 2021.

The bidding process continued and ultimately the contract was awarded to Data House on August 19, 2021.

It notes that the SSIC has demanded, via its October 3, 2022, Subpoena Duces Tecum, “ALL” documents regarding this matter.

The documents are to include the Contract of ASG and TALOFAPass Software and the Status on TALOFAPass Data Management.

In its motion, the AG states that the subpoena Duces Tecum is overly broad, and the subpoena fails to specifically describe documents other than the contract of ASG and TALOFAPass.

“Additionally, the Subpoena Duces Tecum was not served with a copy of the rules, which is a violation under a territorial statute requiring legislative committees to adopt rules to govern their procedures and to serve the subpoena with a copy of the rules to the person being served.”

Fainuulelei Falefatu Alailima-Utu pointed out that under A.S.C.A. section 2.1003 and Public documents to be produced were separately filed with the SSIC prior to the Nov. 9, 2022 hearing.

Those documents include the list of bidders the Office of Procurement requests for proposals and other non-privilege communications relating to the contract involving the program or process known as the TALOFAPass.

Fainuulelei says the motion is for all privileged documents protected by corporate privilege and government privilege.

According to the motion “corporate privilege” is a duty that exists to preserve the proprietary information of each bidder, to trade secrets, privileged information and data that will be protected federally.

Acquisition regulations require government officials to all proposals be kept from the unauthorized.

“In general, trade secret protection confers the owner the right to prevent the information, lawfully within their control from being disclosed, acquired, or used by others without their consent in a manner contrary to honest commercial practice under the trade secret Act.

It is a Criminal offense for a federal government or official or employee to disclose a trade secret or Confidential, commercial or financial data to any extent not authorized by law 18 U.S.C.A. 1835 witnesses enjoy a legal privilege to refuse to give testimony sought, or produce documents called for, where such testimony or documentation would disclose trade secrets and where the evidence is irrelevant or otherwise inadmissible.”

The AG cited the case Cocker Wheeler Co. v. Bullock Dec. 1904.

Regarding “government privilege”, the AG pointed out that the government has an obligation to preserve and protect the documentation of internal cost-related data from bidders on government contracts as indicated under Procurement integrity act 48 C.F.R. section 3, 104-1-11 trade secret act 18  1835 and the federal acquisition regulation 376 enacted may 11,2016 codified at 18  U.S.C far 52215-1.

“The policy is in effect to ensure open discussion with bidders and allow efficient government operations, the need to protect proprietary information in future bids.

“The testimony of Tialemasunu Dr. Milaele Etuale, director of the Office of Procurement shall be limited to public information and no testimony will be presented on documents or information that are subject to or protected by corporate and, or government privilege concerning the office of procurement request for proposal for RFP-089-2021.

On the issue of the subpoena duces tecum not being served with a copy of the rules, the AG cited A.S.C.A section 2 1003 and concludes that the SSIC must comply with all the provisions of the Code of Fair Practices enacted by the legislature.

Specifically, the committee must adopt specific rules to govern its procedures including the conduct of hearings, said Fainuulelei.

Pursuant to the well-established corporate and government privileges laws, the Code of Fair Procedures, the American Samoa senate rules and the ASG's obligation to protect proprietary information in the proposal process, Fainuulelei requests that the Motion to quash part and comply in part with SSIC Duces tecum be granted as presented and filed with the SSIC.