IN THE SENATE OF THE UNITED STATES
May 6, 2020
Ms. Baldwin (for herself, Mr. Murphy, Mr. Bennet, Mr. Blumenthal, Mr. Booker, Mr. Casey, Ms. Cortez Masto, Mrs. Feinstein, Mrs. Gillibrand, Ms. Harris, Ms. Hassan, Ms. Hirono, Mr. Kaine, Ms. Klobuchar, Mr. Manchin, Mr. Merkley, Mr. Peters, Ms. Rosen, Mr. Sanders, Mr. Schatz, Mrs. Shaheen, Ms. Smith, Ms. Stabenow, Mr. Van Hollen, Ms. Warren, Mr. Whitehouse, Mr. Heinrich, Mr. Leahy, Mr. Reed, Mr. Brown, Mr. Udall, Mr. Durbin, Mr. Schumer, Mr. Markey, Mr. Menendez, Mr. King, Mr. Tester, Mr. Wyden, Mr. Cardin, Mr. Carper, Mr. Coons, Ms. Duckworth, Mrs. Murray, Mr. Warner, Mr. Jones, and Ms. Cantwell) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs
To provide for the expedited and transparent procurement and distribution of equipment and supplies needed to combat COVID–19.
This Act may be cited as the
Medical Supply Transparency and Delivery Act.
Emergency production of medical equipment and supplies to address COVID–19
Executive Officer for Critical Medical Equipment and Supplies
Not later than 3 days after the date of the enactment of this Act, the Secretary of Defense shall appoint, detail, or temporarily assign a civilian to serve as the Executive Officer for Critical Medical Equipment and Supplies (in this section referred to as the
Executive Officer), who shall—
direct, through the National Response Coordination Center of the Federal Emergency Management Agency, the national production and distribution of critical medical equipment and supplies, including personal protective equipment, in support of the response of the Federal Emergency Management Agency to the Coronavirus Disease 2019 (commonly known as
report directly to the Administrator of the Federal Emergency Management Agency for the duration of the appointment, detail, or temporary assignment.
The Secretary of Defense, in consultation with the Administrator of the Federal Emergency Management Agency, shall select the individual to serve as the Executive Officer from among individuals with sufficient experience in defense and industrial acquisition and production matters, including such matters as described in section 668(a)(1)(B) of title 10, United States Code.
The Executive Officer, acting through the National Response Coordination Center and in direct consultation with the Secretary of Homeland Security, the Secretary of Defense, the Secretary of Health and Human Services, and the Secretary of Commerce, shall use all available Federal acquisition authorities, including the authorities described under sections 101(b), 102, 301, 302, 303, 704, 705, 706, 708(c) and (d), and 710 of the Defense Production Act of 1950 (50 U.S.C. 4511(b), 4512, 4531, 4532, 4533, 4554, 4555, 4556, 4558 (c) and (d), and 4560), to oversee all acquisition and logistics functions related to the response by the National Response Coordination Center to COVID–19.
The Executive Officer, as the officer overseeing the acquisition and logistics functions of the response by the National Response Coordination Center to COVID–19, shall—
receive all requests for equipment and supplies, including personal protective equipment, from States and Indian Tribes;
make recommendations to the President on utilizing the full authorities available under the Defense Production Act of 1950 (50 U.S.C. 4501 et seq.) to increase production capacity as identified under subparagraphs (C) and (H) of subsection (c)(1);
ensure that allocation of critical resources is carried out in a manner consistent with the needs identified in the reports required by subsection (c);
direct, in consultation with the Federal Emergency Management Agency, the Department of Health and Human Services, the Defense Logistics Agency, and other Federal agencies as appropriate, all distribution of critical equipment and supplies to the States and Indian Tribes, through existing commercial distributers where practical;
communicate with State and local governments and Indian Tribes with respect to availability and delivery schedule of equipment and supplies;
contribute to the COVID–19 strategic testing plan required by title I of division B of the Paycheck Protection Program and Health Care Enhancement Act (Public Law 116–139) to ensure the Secretary of Health and Human Services includes in that plan a comprehensive plan to scale production and optimize distribution of COVID–19 tests, including molecular, antigen, and serological tests, in the United States; and
establish, in direct consultation with the Secretary of Health and Human Services, and the heads of any other appropriate Federal agencies, a comprehensive plan to address necessary supply chain issues in order to rapidly scale up production of a SARS–CoV–2 vaccine.
The Executive Officer shall make available, including on a publicly available website, information, updated not less frequently than every 3 days, including—
the reports required by subsection (c);
requests for equipment and supplies from State governments and Indian Tribes;
standards used for data collection;
modeling and any formulas used to determine allocation of equipment and supplies, and any related chain of command making final decisions on allocations;
the amount and destination of equipment and supplies delivered;
an explanation of why any portion of a purchase order placed under subsection (d), whether to replenish the Strategic National Stockpile or otherwise, will not be filled;
the percentage amounts of procured products used to replenish the Strategic National Stockpile, targeted to COVID–19 hotspots, or going into the commercial market;
metrics, formulas, and criteria used to determine hotspots or areas of critical need at the State, county, and Indian Health Service area level;
production and procurement benchmarks, where practicable; and
results of the outreach and stakeholder reviews required by subsection (c).
The Secretary of Defense may detail members of the armed forces on active duty, or additional civilian employees of the Department of Defense, as appropriate, with relevant experience in acquisition matters, to support the Executive Officer.
The office of the Executive Officer shall terminate 30 days after the Executive Officer certifies in writing to Congress that all needs of States and Indian Tribes identified in reports submitted under subsection (c) have been met and all Federal Government stockpiles have been replenished.
Commercial sector participation
The Executive Officer shall collect and compile data from each of the commercial distributors that is able to fulfill purchase orders authorized by this Act through the Federal Emergency Management Agency, the Defense Logistics Agency, the Department of Health and Human Services, the Department of Veterans Affairs, and any other appropriate Federal agencies.
The data to be collected and compiled under paragraph (1) includes—
the name and address of each delivery of supplies and equipment under a purchase order authorized by this Act;
the number of such supplies and equipment delivered; and
the date of each such delivery.
Not later than 7 days after the date of the enactment of this Act, and every 7 days thereafter until the termination date described in subsection (a)(7), the Executive Officer, in coordination with the National Response Coordination Center of the Federal Emergency Management Agency, the Defense Logistics Agency, the Department of Health and Human Services, the Department of Veterans Affairs, and other Federal agencies as appropriate, shall submit to Congress and the President, and publish in a timely manner in the Federal Register a summary of, a report including—
an assessment of the needs of the States and Indian Tribes for equipment and supplies necessary to prevent, identify, mitigate, and recover from cases of COVID–19, including personal protective equipment, ventilators, testing supplies, construction supplies, and emergency food sources, for each month during the 2-year period beginning on the date of the enactment of this Act;
an assessment of the quantities of equipment and supplies in the Strategic National Stockpile as of the date of the report and the projected gap between the quantities of equipment and supplies identified as needed in the assessment under subparagraph (A) and the quantities in the Stockpile;
an identification of the industry sectors and manufacturers most ready to fulfill purchase orders for such equipment and supplies, including manufacturers that may be incentivized, through the exercise of authority under section 303(e) of the Defense Production Act of 1950 (50 U.S.C. 4533(e)), to modify, expand, or improve production processes to manufacture such equipment and supplies;
an estimate of the funding and other measures necessary to rapidly expand manufacturing production capacity for such equipment and supplies, including—
any efforts to expand, retool, or reconfigure production lines;
any efforts to establish new production lines through the purchase and installation of new equipment; or
the issuance of additional contracts, purchase orders, purchase guarantees, or other similar measures;
an identification of government and privately owned stockpiles of equipment and supplies not included in the Strategic National Stockpile that could be repaired or refurbished;
an identification of previously distributed critical supplies that can be redistributed based on current need;
an identification of critical areas of need by county and Indian Health Service area in the United States and the metrics and criteria for their identification as critical;
an inventory of the national production capacity for equipment and supplies identified as needed in the assessment under subparagraph (A); and
an identification of the needs of essential employees and healthcare workers based on regular stakeholder reviews.
Form of reports
Each report required by paragraph (1) shall be submitted in unclassified form but may include a classified annex.
Not later than 1 day after receiving a report required under subsection (c), the President, using authorities provided under the Defense Production Act of 1950 (50 U.S.C. 4501 et seq.), shall—
establish a fair and reasonable price for the sale of equipment and supplies identified in the reports required by subsection (c); and
issue rated priority purchase orders pursuant to Department of Defense Directive 4400.1, part 101, subpart A of title 45, Code of Federal Regulations, or any other applicable acquisition authority, to procure equipment and supplies identified in the reports required by subsection (c).
Disposition of unused equipment and supplies
Any equipment or supplies produced pursuant to paragraph (1) using amounts from the Defense Production Act Fund and in excess of needs identified in reports required by subsection (c) shall be deposited in the Strategic National Stockpile.
Authorization of Congress to impose price controls
Paragraph (1)(A) shall be deemed to be a joint resolution authorizing the imposition of price controls for purposes of section 104(a) of the Defense Production Act of 1950 (50 U.S.C. 4514(a)).
Waiver of certain requirements
The requirements of sections 301(d)(1)(A), 302(d)(1), and subparagraphs (B) and (C) of section 303(a)(6) of the Defense Production Act of 1950 (50 U.S.C. 4531(d)(1)(A), 4532(d)(1), and 4533(a)(6)) are waived for purposes of this section until the termination date described in subsection (a)(6).
Amounts available in the Defense Production Act Fund under section 304 of the Defense Production Act of 1950 (50 U.S.C. 4534) shall be available for purchases made under this section.
In this section:
The term Indian Tribe has the meaning given the term
Indian tribe in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304).
Indian Health Service area
The term Indian Health Service area has the meaning given the term
Service area in section 4 of the Indian Health Care Improvement Act (25 U.S.C. 1603).
The term State means each State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, the Virgin Islands of the United States, and any other territory or possession of the United States.
The term uniformed services has the meaning given that term in section 101 of title 37, United States Code.
Annual Comptroller General report
Not later than 180 days after the date of the enactment of this Act, and annually thereafter, the Comptroller General of the United States shall submit to Congress a report assessing the Strategic National Stockpile, including—
recommendations for preparing for and responding to future pandemics;
recommendations for changes to the Strategic National Stockpile, including to the management of the stockpile;
in the case of the first report required to be submitted under this section—
an assessment with respect to how much personal protective equipment used for the COVID–19 response was sourced within the United States and how much was sourced from the People's Republic of China and other foreign countries; and
recommendations with respect to how to ensure that the United States supply chain for personal protective equipment is better equipped to respond to emergencies, including through the use of funds in the Defense Production Act Fund under section 304 of the Defense Production Act of 1950 (50 U.S.C. 4534) to address shortages in that supply chain; and
in the case of each subsequent report required to be submitted under this section—
an assessment with respect to how much personal protective equipment was imported into the United States in the year preceding submission of the report and, of that equipment, how much would be used to prepare for and respond to a future pandemic; and
a review of the implementation during that year of the recommendations required by paragraph (3)(B).
The Chairperson of the Council of the Inspectors General on Integrity and Efficiency shall designate any Inspector General responsible for conducting oversight of any program or operation performed in support of this Act to oversee the implementation of this Act, to the maximum extent practicable and consistent with the duties, responsibilities, policies, and procedures of that Inspector General.
The designation of an Inspector General under subsection (a) may be terminated only for permanent incapacity, inefficiency, neglect of duty, malfeasance, or conviction of a felony or conduct involving moral turpitude.