WASHINGTON — Experts, medical workers and elected officials are reviving their call for the Trump administration to ramp up its use of the Defense Production Act to secure critical medical supplies.
In March, as the coronavirus pandemic took hold in the United States and pressure from cities and states grew, President Donald Trump used the act to press General Motors to begin production of ventilators. But four months later, frustrated by what they describe as a lack of federal leadership in the face of continued shortages, critics say the Trump administration is not wielding the act to the extent that it can and should.
“What the federal government — the president or secretaries possessing delegated authority — have not done yet is use the DPA to create a permanent, sustainable, redundant, domestic supply chain for all things pandemic: testing, swabs, N95 masks, etc.,” said Jamie Baker, a former legal adviser to the National Security Council and a professor of national security law at Syracuse University.
“I’m frustrated that there appears to be no national strategy,” said Larry Hall, who retired in August as the director of the Defense Production Act program at the Federal Emergency Management Agency. “Why isn’t this administration using the act to prevent shortages?”
The White House did not respond to a request for comment, but at a White House coronavirus task force briefing last week, Vice President Mike Pence said that the administration continued to work to provide states with critical supplies. The federal government’s “ability to respond to this pandemic is substantially better than two and three months ago,” he said.
The Defense Production Act grants the federal government a range of authorities such as issuing loans to expand a vendor’s capacity, controlling the distribution of a company’s products and — most commonly — compelling companies to prioritize the government’s orders over those of other clients, meaning the federal government essentially skips to the front of the line.
Since taking office, Trump has routinely used the Korean War-era law to procure defense equipment, but he resisted doing so in the early days of the pandemic. States and medical providers are still competing with one another to procure vital supplies that are unevenly distributed, just as they did months ago.
“The reluctance to use this tool has simply led to chaos,” said Andrew Hunter, director of the Defense-Industrial Initiatives Group at the Center for Strategic and International Studies.
Deborah Burger, a president of National Nurses United, says many nurses are forced to reuse N95 masks even though they should be discarded between patients. Some nurses are also concerned that because of wear and tear, decontaminated masks will not properly filter out the virus. The Centers for Disease Control and Prevention does not approve of decontaminating masks for reuse, but exceptions have been made for “times of shortage.”
“In all indications, the capacity of PPE is lower than the demand,” said Prakash Mirchandani, director of the Center for Supply Chain Management at the University of Pittsburgh, referring to personal protective equipment. “The total requirement of N95 masks, just for physicians and nurses, is about 4 to 5 billion units a year.”
The federal government does not release reports outlining each specific order placed under the Defense Production Act. But based on contracts that have been announced, interviews with experts who are tracking the distribution of medical supplies and interviews with advocates for medical workers’ needs, there is little evidence that the administration has made widespread use of the act to control the supply chain to combat the coronavirus.
“There have been myths that, at one point, all of a sudden, there was enough of a stockpile of protective equipment,” said Burger, who is a nurse at a hospital in Sonoma County, California. “But the honest truth is that if you talk to any nurse in the country, they have never had enough equipment.”
A spokeswoman for the Defense Department said it had awarded seven contracts for medical supplies under the Defense Production Act since the coronavirus pandemic began. But as cases surge across the country, the rate of infections has outpaced the production of protective gear, especially for N95 masks.
Under five of those contracts, the Defense Department paid three companies over $200 million to expand and retool factories to produce N95 masks in greater quantities — a process that takes months. The companies will not reach maximum production until late summer or fall.
A spokeswoman for 3M, a manufacturer of N95 masks that has received at least four contracts from the federal government under the act, said it had delivered 200 million N95 masks to U.S. hospitals, FEMA and the federal stockpile since the pandemic began.
But FEMA estimates that even in October, when it predicts that the United States will produce 180 million N95 masks a month, domestic production will not meet demand. Still, the last time the Defense Department issued a contract under the Defense Production Act to produce additional masks was in late May.
For one of the Defense Department’s two other contracts for medical supplies under the act, deliveries of protective gear began the same week the agreement was announced in May. More than 10 million masks and gowns were included in kits of protective gear for workers at over 15,000 nursing homes. But FEMA estimated in May that the United States needed more than 150 million gowns.
The other contract, announced in April, doubled production of the only domestic manufacturer of swabs for coronavirus tests to 40 million per month. But now, more than three months later, officials in some cities are forced to limit testing because of swab shortages.
In addition to the Defense Department’s contracts, FEMA said it had issued one contract under the act to 3M for the production of N95 masks. The Department of Health and Human Services has announced contracts with at least seven companies to produce ventilators; it did not respond to a request for more information.
In March, Neil Bradley, executive vice president and chief policy officer at the U.S. Chamber of Commerce, said the Defense Production Act was not “a magic wand.”
Testifying before the House Homeland Security Committee on Wednesday, Peter T. Gaynor, the FEMA administrator, defended the administration’s approach to using the law.
“We used it when we needed it,” Gaynor said. “It’s just not as easy as flipping the switch.”
But Hall said that had not been his experience.
“I have used this like a switch,” he said. “The military uses this like a switch. I can’t understand why it can’t be switched on to meet these vital shortages.”
Mirchandani said that relying on the law to increase manufacturing of ventilators helped significantly. There does not seem to be a shortage after at least seven contracts to send almost 30,000 ventilators to the federal government’s stockpile by June 1. But there is far less demand for ventilators than for protective gear.
“There has to be support from some external source, probably from the federal government, to increase capacity quickly,” Mirchandani said. “And distribution also has to be done in a coordinated fashion.”
Jessica R. Maxwell, a spokeswoman for the Defense Department, said that all current contracts under the act were on track to meet production goals, but she did not say how the department would work to fill the gap in demand.
In testimony before Congress this month, Gov. J.B. Pritzker of Illinois blamed the federal government for forcing states into “a bidding war for lifesaving supplies.”
“The Defense Production Act was not broadly invoked early enough,” he said.
Baker, the national security law professor, said he worried that the federal government’s struggle to supply swabs and protective gear might portend difficulties in widely distributing a vaccine.
“Whatever vaccine is produced, it’s going to involve a vial and a needle,” he said. “If we cannot figure out how to produce enough swabs or tests, will we figure out how to produce enough vaccine or treatments?”