Medical Supply Transparency and Delivery Act

II 116TH CONGRESS 2D SESSION S. 3627 To provide for the expedited and transparent procurement and distribution of equipment and supplies needed to combat COVID–19. 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. SCHU- MER, 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 A BILL To provide for the expedited and transparent procurement and distribution of equipment and supplies needed to combat COVID–19. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Medical Supply Trans- 4 parency and Delivery Act’’. 5 VerDate Sep 11 2014 00:37 May 08, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3627.IS S3627 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 3627 IS SEC. 2. EMERGENCY PRODUCTION OF MEDICAL EQUIP- 1 MENT AND SUPPLIES TO ADDRESS COVID–19. 2 (a) EXECUTIVE OFFICER FOR CRITICAL MEDICAL 3 EQUIPMENT AND SUPPLIES.— 4 (1) APPOINTMENT.—Not later than 3 days 5 after the date of the enactment of this Act, the Sec- 6 retary of Defense shall appoint, detail, or tempo- 7 rarily assign a civilian to serve as the Executive Of- 8 ficer for Critical Medical Equipment and Supplies 9 (in this section referred to as the ‘‘Executive Offi- 10 cer’’), who shall— 11 (A) direct, through the National Response 12 Coordination Center of the Federal Emergency 13 Management Agency, the national production 14 and distribution of critical medical equipment 15 and supplies, including personal protective 16 equipment, in support of the response of the 17 Federal Emergency Management Agency to the 18 Coronavirus Disease 2019 (commonly known as 19 ‘‘COVID–19’’); and 20 (B) report directly to the Administrator of 21 the Federal Emergency Management Agency 22 for the duration of the appointment, detail, or 23 temporary assignment. 24 (2) QUALIFICATIONS.—The Secretary of De- 25 fense, in consultation with the Administrator of the 26 VerDate Sep 11 2014 00:37 May 08, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3627.IS S3627 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 3627 IS Federal Emergency Management Agency, shall se- 1 lect the individual to serve as the Executive Officer 2 from among individuals with sufficient experience in 3 defense and industrial acquisition and production 4 matters, including such matters as described in sec- 5 tion 668(a)(1)(B) of title 10, United States Code. 6 (3) AUTHORITIES.—The Executive Officer, act- 7 ing through the National Response Coordination 8 Center and in direct consultation with the Secretary 9 of Homeland Security, the Secretary of Defense, the 10 Secretary of Health and Human Services, and the 11 Secretary of Commerce, shall use all available Fed- 12 eral acquisition authorities, including the authorities 13 described under sections 101(b), 102, 301, 302, 303, 14 704, 705, 706, 708(c) and (d), and 710 of the De- 15 fense Production Act of 1950 (50 U.S.C. 4511(b), 16 4512, 4531, 4532, 4533, 4554, 4555, 4556, 4558 17 (c) and (d), and 4560), to oversee all acquisition and 18 logistics functions related to the response by the Na- 19 tional Response Coordination Center to COVID–19. 20 (4) RESPONSIBILITIES.—The Executive Officer, 21 as the officer overseeing the acquisition and logistics 22 functions of the response by the National Response 23 Coordination Center to COVID–19, shall— 24 VerDate Sep 11 2014 00:37 May 08, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3627.IS S3627 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 3627 IS (A) receive all requests for equipment and 1 supplies, including personal protective equip- 2 ment, from States and Indian Tribes; 3 (B) make recommendations to the Presi- 4 dent on utilizing the full authorities available 5 under the Defense Production Act of 1950 (50 6 U.S.C. 4501 et seq.) to increase production ca- 7 pacity as identified under subparagraphs (C) 8 and (H) of subsection (c)(1); 9 (C) ensure that allocation of critical re- 10 sources is carried out in a manner consistent 11 with the needs identified in the reports required 12 by subsection (c); 13 (D) direct, in consultation with the Federal 14 Emergency Management Agency, the Depart- 15 ment of Health and Human Services, the De- 16 fense Logistics Agency, and other Federal agen- 17 cies as appropriate, all distribution of critical 18 equipment and supplies to the States and In- 19 dian Tribes, through existing commercial 20 distributers where practical; 21 (E) communicate with State and local gov- 22 ernments and Indian Tribes with respect to 23 availability and delivery schedule of equipment 24 and supplies; 25 VerDate Sep 11 2014 00:37 May 08, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3627.IS S3627 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 3627 IS (F) contribute to the COVID–19 strategic 1 testing plan required by title I of division B of 2 the Paycheck Protection Program and Health 3 Care Enhancement Act (Public Law 116–139) 4 to ensure the Secretary of Health and Human 5 Services includes in that plan a comprehensive 6 plan to scale production and optimize distribu- 7 tion of COVID–19 tests, including molecular, 8 antigen, and serological tests, in the United 9 States; and 10 (G) establish, in direct consultation with 11 the Secretary of Health and Human Services, 12 and the heads of any other appropriate Federal 13 agencies, a comprehensive plan to address nec- 14 essary supply chain issues in order to rapidly 15 scale up production of a SARS–CoV–2 vaccine. 16 (5) TRANSPARENCY.—The Executive Officer 17 shall make available, including on a publicly avail- 18 able website, information, updated not less fre- 19 quently than every 3 days, including— 20 (A) the reports required by subsection (c); 21 (B) requests for equipment and supplies 22 from State governments and Indian Tribes; 23 (C) standards used for data collection; 24 VerDate Sep 11 2014 00:37 May 08, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3627.IS S3627 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 3627 IS (D) modeling and any formulas used to de- 1 termine allocation of equipment and supplies, 2 and any related chain of command making final 3 decisions on allocations; 4 (E) the amount and destination of equip- 5 ment and supplies delivered; 6 (F) an explanation of why any portion of 7 a purchase order placed under subsection (d), 8 whether to replenish the Strategic National 9 Stockpile or otherwise, will not be filled; 10 (G) the percentage amounts of procured 11 products used to replenish the Strategic Na- 12 tional Stockpile, targeted to COVID–19 13 hotspots, or going into the commercial market; 14 (H) metrics, formulas, and criteria used to 15 determine hotspots or areas of critical need at 16 the State, county, and Indian Health Service 17 area level; 18 (I) production and procurement bench- 19 marks, where practicable; and 20 (J) results of the outreach and stakeholder 21 reviews required by subsection (c). 22 (6) ADDITIONAL PERSONNEL.—The Secretary 23 of Defense may detail members of the armed forces 24 on active duty, or additional civilian employees of 25 VerDate Sep 11 2014 00:37 May 08, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3627.IS S3627 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 3627 IS the Department of Defense, as appropriate, with rel- 1 evant experience in acquisition matters, to support 2 the Executive Officer. 3 (7) TERMINATION.—The office of the Executive 4 Officer shall terminate 30 days after the Executive 5 Officer certifies in writing to Congress that all needs 6 of States and Indian Tribes identified in reports 7 submitted under subsection (c) have been met and 8 all Federal Government stockpiles have been replen- 9 ished. 10 (b) COMMERCIAL SECTOR PARTICIPATION.— 11 (1) IN GENERAL.—The Executive Officer shall 12 collect and compile data from each of the commer- 13 cial distributors that is able to fulfill purchase orders 14 authorized by this Act through the Federal Emer- 15 gency Management Agency, the Defense Logistics 16 Agency, the Department of Health and Human 17 Services, the Department of Veterans Affairs, and 18 any other appropriate Federal agencies. 19 (2) DATA INCLUDED.—The data to be collected 20 and compiled under paragraph (1) includes— 21 (A) the name and address of each delivery 22 of supplies and equipment under a purchase 23 order authorized by this Act; 24 VerDate Sep 11 2014 00:37 May 08, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3627.IS S3627 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 3627 IS (B) the number of such supplies and 1 equipment delivered; and 2 (C) the date of each such delivery. 3 (c) REPORTS REQUIRED.— 4 (1) IN GENERAL.—Not later than 7 days after 5 the date of the enactment of this Act, and every 7 6 days thereafter until the termination date described 7 in subsection (a)(7), the Executive Officer, in coordi- 8 nation with the National Response Coordination 9 Center of the Federal Emergency Management 10 Agency, the Defense Logistics Agency, the Depart- 11 ment of Health and Human Services, the Depart- 12 ment of Veterans Affairs, and other Federal agen- 13 cies as appropriate, shall submit to Congress and the 14 President, and publish in a timely manner in the 15 Federal Register a summary of, a report including— 16 (A) an assessment of the needs of the 17 States and Indian Tribes for equipment and 18 supplies necessary to prevent, identify, mitigate, 19 and recover from cases of COVID–19, including 20 personal protective equipment, ventilators, test- 21 ing supplies, construction supplies, and emer- 22 gency food sources, for each month during the 23 2-year period beginning on the date of the en- 24 actment of this Act; 25 VerDate Sep 11 2014 00:37 May 08, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3627.IS S3627 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 3627 IS (B) an assessment of the quantities of 1 equipment and supplies in the Strategic Na- 2 tional Stockpile as of the date of the report and 3 the projected gap between the quantities of 4 equipment and supplies identified as needed in 5 the assessment under subparagraph (A) and the 6 quantities in the Stockpile; 7 (C) an identification of the industry sec- 8 tors and manufacturers most ready to fulfill 9 purchase orders for such equipment and sup- 10 plies, including manufacturers that may be 11 incentivized, through the exercise of authority 12 under section 303(e) of the Defense Production 13 Act of 1950 (50 U.S.C. 4533(e)), to modify, ex- 14 pand, or improve production processes to manu- 15 facture such equipment and supplies; 16 (D) an estimate of the funding and other 17 measures necessary to rapidly expand manufac- 18 turing production capacity for such equipment 19 and supplies, including— 20 (i) any efforts to expand, retool, or re- 21 configure production lines; 22 (ii) any efforts to establish new pro- 23 duction lines through the purchase and in- 24 stallation of new equipment; or 25 VerDate Sep 11 2014 00:37 May 08, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3627.IS S3627 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 3627 IS (iii) the issuance of additional con- 1 tracts, purchase orders, purchase guaran- 2 tees, or other similar measures; 3 (E) an identification of government and 4 privately owned stockpiles of equipment and 5 supplies not included in the Strategic National 6 Stockpile that could be repaired or refurbished; 7 (F) an identification of previously distrib- 8 uted critical supplies that can be redistributed 9 based on current need; 10 (G) an identification of critical areas of 11 need by county and Indian Health Service area 12 in the United States and the metrics and cri- 13 teria for their identification as critical; 14 (H) an inventory of the national produc- 15 tion capacity for equipment and supplies identi- 16 fied as needed in the assessment under sub- 17 paragraph (A); and 18 (I) an identification of the needs of essen- 19 tial employees and healthcare workers based on 20 regular stakeholder reviews. 21 (2) FORM OF REPORTS.—Each report required 22 by paragraph (1) shall be submitted in unclassified 23 form but may include a classified annex. 24 (d) PURCHASE ORDERS.— 25 VerDate Sep 11 2014 00:37 May 08, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3627.IS S3627 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 3627 IS (1) IN GENERAL.—Not later than 1 day after 1 receiving a report required under subsection (c), the 2 President, using authorities provided under the De- 3 fense Production Act of 1950 (50 U.S.C. 4501 et 4 seq.), shall— 5 (A) establish a fair and reasonable price 6 for the sale of equipment and supplies identified 7 in the reports required by subsection (c); and 8 (B) issue rated priority purchase orders 9 pursuant to Department of Defense Directive 10 4400.1, part 101, subpart A of title 45, Code 11 of Federal Regulations, or any other applicable 12 acquisition authority, to procure equipment and 13 supplies identified in the reports required by 14 subsection (c). 15 (2) DISPOSITION OF UNUSED EQUIPMENT AND 16 SUPPLIES.—Any equipment or supplies produced 17 pursuant to paragraph (1) using amounts from the 18 Defense Production Act Fund and in excess of needs 19 identified in reports required by subsection (c) shall 20 be deposited in the Strategic National Stockpile. 21 (3) AUTHORIZATION OF CONGRESS TO IMPOSE 22 PRICE CONTROLS.—Paragraph (1)(A) shall be 23 deemed to be a joint resolution authorizing the im- 24 position of price controls for purposes of section 25 VerDate Sep 11 2014 00:37 May 08, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3627.IS S3627 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 3627 IS 104(a) of the Defense Production Act of 1950 (50 1 U.S.C. 4514(a)). 2 (e) WAIVER OF CERTAIN REQUIREMENTS.—The re- 3 quirements of sections 301(d)(1)(A), 302(d)(1), and sub- 4 paragraphs (B) and (C) of section 303(a)(6) of the De- 5 fense Production Act of 1950 (5 [Text truncated for display. Full text available on Congress.gov.]