Government Contracts EO Delegates Additional Defense Production Act Authorities
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Monday, April 27, 2020

EO Delegates Additional Defense Production Act Authorities

By Government Contracts Editorial Staff

Executive Order 13911, Delegating Additional Authority Under the Defense Production Act With Respect to Health and Medical Resources To Respond to the Spread of COVID-19, dated April 1, 2020, follows E.O. 13909, which found that the health and medical resources needed to respond to the spread of SARS-CoV-2, including personal protective equipment and ventilators, met the criteria specified in section 101(b) of the Defense Production Act (50 USC 4511(b)). E.O. 13909 also delegated section 101 prioritization and allocation authority to the Secretary of Health and Human Services with respect to health and medical resources needed to respond to the spread of COVID-19. The Act authorizes the President to require businesses to prioritize and accept contracts for materials and services as necessary to promote the national defense, and to offer incentives within the domestic market to enhance the production and supply of critical materials and technologies when necessary for national defense. In addition, the Act grants the President the ability to allocate or control the general distribution of materials, services, and facilities. E.O. 13910 subsequently delegated to the HHS Secretary the President’s authority under section 102 of the Act (50 USC 4512) to prevent hoarding of health and medical resources needed to respond to the spread of COVID-19, such as personal protective equipment and sanitizing and disinfecting products.

Policy to Expand Production. E.O. 13911 seeks to ensure that healthcare systems can surge capacity and capability to respond to the spread of COVID-19 and announces a policy to expand domestic production of health and medical resources needed to respond to the spread of the virus, including personal protective equipment and ventilators. Accordingly, the order delegates to the HHS Secretary and the Secretary of Homeland Security various authorities under titles III and VII of the Act. The order grants the HHS and HS Secretaries the authority to guarantee loans by private institutions, make loans, provide for purchases and commitments to purchase, and take additional actions to create, maintain, protect, expand, and restore domestic industrial base capabilities to produce necessary health and medical resources. Further, to enable greater cooperation among private businesses to expand production and distributing of health and medical resources, the order delegates authority to provide for making voluntary agreements and plans of action by the private sector. Finally, the order delegates to the HS Secretary the President’s authority under sections 101 and 102 of the Act with respect to health and medical resources needed to respond to the spread of COVID-19 within the U.S.

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