Author: Blank Rome LLP

Preliminary Takeaways as DoD Seeks to Redesign the Defense Acquisition System for Wartime Speed

Oliver E. Jury ●

During a speech before key players in the defense industrial base on Friday, November 7, Secretary Hegseth announced plans for a sweeping transformation of the Defense Acquisition System, redesignating it as the Warfighting Acquisition System (“WAS”) and elevating speed-to-field as the organizing principle. The reforms would concentrate authority, expand competition and modularity, adopt commercial-first pathways, modernize contracting and training, and streamline oversight—all aimed at accelerating capability delivery and scaling industrial capacity for surge. While much will depend on how these announced changes are implemented, in this post we highlight key aspects of the changes and identify potential impacts to monitor. Secretary Hegseth’s full recorded remarks are available on C-SPAN’s website.

Redesignation and Organizing Principle

Acquisition is to be treated as a warfighting function, with every process required to justify its value to timely capability delivery. The WAS will reframe success around time-to-capability rather than exhaustive specification compliance.

Potential impact: Companies should expect solicitations and evaluations to prioritize schedule credibility and operational outcomes, reshaping win strategies toward demonstrable speed and adaptability.

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BIS Rescinds 2024 Firearms Export Controls, Reduces Regulatory Burdens on U.S. Firearms Industry

Anthony Rapa and Patrick F. Collins ●

The U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) issued a final rule on September 30, 2025, rescinding the 2024 interim final rule (“Firearms IFR”) under the Export Administration Regulations (“EAR”) that had imposed new export license requirements and restrictions on firearms, ammunition, and related items. The new rule restores export controls for these items to their pre-May 2024 status, with the exception of maintaining certain new Export Control Classification Numbers (“ECCNs”). The action is intended to reduce regulatory burdens on U.S. firearms exporters while maintaining appropriate controls to protect national security and foreign policy interests.

Background

BIS issued the Firearms IFR on April 30, 2024, tightening controls on commercial firearms, ammunition, and related items under the EAR. It created four new ECCNs for semi-automatic rifles, pistols, shotguns, and certain parts (0A506-0A509) on the Commerce Control List (“CCL”). It also applied broad crime-control licensing worldwide, shortened license validity to one year, curtailed certain license exceptions, and adopted presumptions of denial for non-government end users in 36 high-risk destinations.

The Firearms IFR followed a 2023 licensing pause and policy review that identified significant diversion and misuse of U.S.-origin guns abroad. BIS used the Firearms IFR to act swiftly while soliciting public comment on further refinements.

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E‑Verify, FAR 52.222‑54, and Renewed FCA Risk: What Contractors Need to Know

Jennifer A. Short, and Oliver E. Jury ●

Jennifer A. Short headshot image

The current administration’s focus on immigration played out in a recent False Claims Act (“FCA”) matter in which a federal contractor was alleged to have billed for unauthorized workers in violation of FAR 52.222‑54 (Employment Eligibility Verification, “E-Verify”).

On September 18, 2025, the Department of Justice (“DOJ”) announced that Bayonne Drydock and Repair Corporation (“Bayonne”) agreed to pay $4,043,810.56 to resolve allegations that unauthorized workers worked on Bayonne’s Navy contracts over multiple years.

According to DOJ’s press release, in 2016, the Department of Homeland Security (“DHS”) sent a “Notice of Suspect Documents” to a subcontractor controlled by Bayonne’s Risk Manager, questioning the work authorization of certain subcontractor employees. While the Risk Manager terminated the unauthorized employees, she re-hired some of them through another subcontractor that she controlled. Bayonne’s settlement agreement with DOJ asserts that between 2016 and 2020, Bayonne billed the government for the work of approximately 52 unauthorized employees working for entities owned or controlled by Bayonne’s Risk Manager. The settlement agreement also confirmed that the Risk Manager pled guilty to criminal charges stemming from her role with Bayonne and its subcontractors.

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U.S. Department of State Eases Military Drone Export Review Policy

Anthony Rapa and Patrick F. Collins ●

The U.S. Department of State (“State”) announced an update to its miliary drone export review policy on September 15, 2025, pursuant to which advanced unmanned aerial systems (“UAS”) will be subject to an export control policy similar to that of crewed aircraft, rather than more restrictive review applicable to missiles. Key takeaways include:

1. Policy Shift: Drones Reviewed Like Fighter Jets, Not Missiles

State announced that pursuant to the policy change, it will consider requests to export UAS similarly to how it reviews requests to export crewed fighter aircraft, rather than as missile systems. This marks a departure from the longstanding application of the Missile Technology Control Regime (“MTCR”) to exports of certain UAS, which imposed a strong presumption against the transfer of large, weaponizable drones due to their range and payload capabilities and provided for rigorous review of other UAS transfers.

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Where Grant Litigation Stands After the Supreme Court’s Jurisdictional Ruling in NIH

Dominique L. Casimir●

The Supreme Court issued a fractured, 4-1-4 ruling on its emergency docket in National Institutes of Health v. American Public Health Association, No. 25A103, 606 U.S. ____ (2025) (per curiam) (“NIH”) on August 21, 2025.

The Court’s ruling left behind a complex legal landscape, because four justices wrote that a district court has jurisdiction to hear both a challenge to agency guidance alleged to be arbitrary and capricious, and challenges to grant terminations based on that guidance. Four other justices wrote that the entire case (i.e., both the challenge to the agency guidance and the challenge to grant terminations based on that guidance) belongs in the Court of Federal Claims. In the end, the outcome was controlled by a single justice (Justice Barrett), who decided the jurisdictional issue in a manner inconsistent with the views of eight justices. In her controlling concurrence, Justice Barrett ruled that a district court has jurisdiction to hear a challenge to agency guidance, but lacks jurisdiction to hear challenges to grant terminations based on that guidance because grant termination challenges are subject to the Tucker Act and therefore belong in the Court of Federal Claims.

Two lower opinions handed down since NIH show lower courts falling in line with Justice Barrett’s ruling in NIH:

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This Is Not a Drill: Department of Defense Issues Long-Awaited Final CMMC DFARS Rule

Michael Joseph Montalbano ●

After years of drafts and interim measures, the Department of Defense (“DOD”) has issued the final Defense Federal Acquisition Regulation Supplement (“DFARS”) rule implementing the Cybersecurity Maturity Model Certification (“CMMC”) program. This long-awaited development cements CMMC as a contractual requirement and clarifies key aspects of the rule’s certification, compliance, and oversight requirements.

How Will CMMC Work?

Under the final rule, every solicitation where a contractor may store, process, or transmit Federal Contract Information (“FCI”) or controlled unclassified information (“CUI”) will be assigned a CMMC level. Solicitations involving just FCI will have a CMMC Level 1 requirement. Solicitations involving non-Defense CUI will have a CUI Level 2 Self-Attestation requirement. Solicitations involving Defense CUI will have a CUI Level 2 third-party certification (i.e., C3PAO) requirement. Solicitations involving particularly sensitive DOD programs will have a Level 3 requirement. Level 3 requires an assessment by the Defense Industrial Base Cybersecurity Assessment Center (“DIBCAC”).

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The Bottom Line: Cost and Pricing Updates | Sum Certain

Stephanie M. Harden and Shane M. Hannon ●

Appeal of Samho Enterprise, ASBCA No. 63587 (Aug. 13, 2025)

The Bottom Line: The Contract Disputes Act (“CDA”) requires that if a contractor submits a claim for payment to the Government, the claim must include a “sum certain”—with the emphasis on “certain.” Here, the contractor submitted a claim for damages after the Government declined to exercise the contract’s first option year. The contractor submitted a claim for “no less than” $326,276. The claim’s qualifying language—“no less than”—meant the claim did not state a sum certain. The Armed Services Board of Contract Appeals (the “Board”) therefore dismissed the contractor’s appeal.

Key points of interest:

  • A sum certain is a mandatory element of a CDA claim. If a contractor’s claim fails to state a sum certain, the contracting officer may deny the claim on that basis, and the Board may dismiss any subsequent appeals for failing to state a claim.
  • Using qualifying language to describe the requested amount does not constitute a sum certain. If a claim characterizes its requested amount with qualifying language, like “approximately,” “to be determined,” or “in excess of,” the claim does not state a sum certain under the CDA.
  • Pursuant to the Federal Circuit’s 2023 decision in ECC International Constructors, the “sum certain” requirement is not a jurisdictional requirement. Accordingly, the Board dismissed the appeal without prejudice.
  • The contractor’s appeal also asked the Board to order the agency to exercise the contract’s option year. The Board reiterated it does not have jurisdiction over requests for specific performance.

Contractors submitting claims for monetary relief must include a “sum certain,” not a “sum approximate.” Failure to state a sum certain is fatal to a claim.

Supreme Court Weighs in for a Second Time on Jurisdiction over Grant Termination Cases

Dominique L. Casimir and Sara N. Gerber ●

The Supreme Court recently ruled for the second time that federal district courts likely lack jurisdiction under the Administrative Procedure Act (“APA”) to hear challenges to terminations of federal grants. The first such ruling came in April of this year, when the Court granted an emergency stay in California v. Department of Education. On August 21, 2025, the Supreme Court issued another emergency stay, in NIH v. American Public Health Association, reaffirming the view that challenges to grant terminations are, in substance, breach of contract actions for money damages that belong in the Court of Federal Claims under the Tucker Act.

Since California, several lower courts have nevertheless asserted jurisdiction over grantee lawsuits seeking reinstatement of terminated grants, often distinguishing California on procedural or factual grounds. We have previously written about some of those cases (including Massachusetts v. Kennedy, which was later consolidated with NIH). Although the Supreme Court’s decision in NIH is an interim order, the jurisdictional question may now be functionally settled, particularly given Justice Gorsuch’s admonishment to lower courts that even if they “sometimes disagree with this Court’s decisions…they are never free to defy them. When this court issues a decision, it constitutes a precedent that commands respect in lower courts.” Following NIH, we expect terminated grantees will largely be forced into the Court of Federal Claims, which generally does not have authority under the Tucker Act to grant the equitable relief—reinstatement of grants—that many of them are seeking.

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Federal Circuit Clarifies “Interested Party” Status in Percipient.ai v. United States

Robyn N. Burrows and Michael Joseph Montalbano ●

When a Federal Circuit panel held that subcontractors had standing to challenge procurement violations, Judge Clevenger warned of a flood. Under the panel’s holding, thousands of subcontractors could inundate the Court of Federal Claims with allegations that agencies had violated applicable procurement laws. Progress on major programs could slow as the Government dealt with a wave of new protest litigants.

On August 28, 2025, the full Federal Circuit reversed course. The Court reaffirmed the long-standing definition of “interested party,” holding that only actual or prospective bidders or offerors with a direct economic interest in the outcome of the procurement may protest.

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Trump Administration Increases Oversight of Federal Grants

Dominique L. Casimir and Shane M. Hannon ●

President Trump issued an Executive Order (“EO”) on August 7 that overhauls the federal grantmaking process. Titled “Improving Oversight of Federal Grantmaking,” the EO identifies deficiencies in the federal government’s current approach to issuing discretionary grants. The EO criticizes some existing federal grants as an “offensive waste of tax dollars” and promoting “anti-American ideologies,” and contends grants have been issued to “organizations that actively work against American interests abroad.” It also identifies defects in the grant approval process, noting that drafting grant applications is “notoriously complex” and therefore too costly for smaller institutions. The EO seeks to align federal grants with the Administration’s policy preferences and give the Administration greater control to select grant recipients. Here are the relevant highlights and takeaways:

The EO expands the federal government’s ability to terminate grants.

A core feature of the EO is requiring all discretionary grants, current and future, to include termination for convenience clauses. Discretionary grants are those where an agency exercises its own judgment to select both the funding amount and the grantee, such as by basing award on the merits of grant applications via a competitive process. Historically, discretionary grants have not included termination for convenience clauses. For example, the Uniform Guidance, 2 C.F.R. § 200, does not include a provision that permits the federal government to terminate a discretionary grant at its leisure. This is in contrast to typical federal contracts, which invariably include termination for convenience provisions, such as FAR 52.249-2.

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