Defense Production Act Has Been Used Routinely, but Not With Coronavirus

The Department of Health and Human Services did not immediately respond to a request for comment.

The law permits federal agencies to skip an often bureaucratic procurement process that can take months and force companies to come to the table to sign a contract. Given the speed of the crisis, Joshua Gotbaum, a former assistant secretary of defense for economic security, said the government did not have the luxury of normal bidding and contracting.

“Under the process of business as usual, they’re not even going to award contracts until this month or April, then there will be a protest,” he said. “Under the Defense Production Act, they could have sat down with people in February” and finalized a contract.

Previous administrations have also been hesitant to invoke the law for nonmilitary matters.

If the federal government used the law to make itself the priority, other clients that had worked through the company’s procurement process could have their orders delayed, though under the law, the vendor is protected from lawsuits.

“My general experience is when you’re in the midst of a national crisis, contractors generally speaking want to help,” said Ernest B. Abbott, who was the general counsel of FEMA during the Clinton administration. “They want to participate. They want to be able to keep their people employed to build what’s needed for the nation.”

But Mr. Hall, who in the months after Mr. Trump took office assisted Customs and Border Protection in using the law to secure body armor from Armor Express, a Michigan-based company, said such caution had allowed understanding of the law’s powers to atrophy.

“You have people on the civil side saying, ‘What is this thing? I might get in trouble using it,’” Mr. Hall said.

While FEMA and Health and Human Services have discussed the law in training situations, Mr. Hall said he often had to press his superiors to prepare for its use in the event of a national emergency, such as a pandemic.

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