Pre-Award Bid Protests: Practical Tips for Government Contractors
One of the most powerful but often misunderstood tools available to government contractors is the pre-award protest. Unlike post-award protests, which generally challenge the outcome of a procurement, pre-award protests generally focus on the terms of the solicitation itself and/or the ground rules of the competition. When used strategically, a pre-award protest can help level the playing field and ensure that an agency’s solicitation is fair, lawful, rational, and does not unduly restrict competition.
Below, we explore what pre-award bid protests are, when to file them, and practical tips for contractors considering this important legal remedy.
What Is a Pre-Award Bid Protest?
A pre-award protest is a legal challenge filed before the government makes a contract award. These protests typically contest:
Restrictive, defective or ambiguous solicitation terms
Improper evaluation criteria
Unreasonable past performance requirements
Organizational conflicts of interest (OCI)
Failure to include mandatory clauses or procedures
Pre-award protests are most often filed with the Government Accountability Office (GAO), the U.S. Court of Federal Claims, or the procuring agency itself.
Timing Is Critical
The deadline to file a pre-award protest is usually before the closing date for receipt of proposals. At the GAO, protests based on patent improprieties in a solicitation must be filed prior to bid opening or the closing time for receipt of proposals. Waiting until after proposals are due may result in the protest being dismissed as untimely—even if the protest has merit.
Why File a Pre-Award Protest?
There are several strategic benefits to filing early:
Avoid Downstream Issues: A successful pre-award protest can force the agency to amend the solicitation, eliminating evaluation or eligibility flaws that might otherwise unfairly disadvantage a contractor.
Preserve Competition: Pre-award protests can push back on unduly narrow requirements that limit competition, potentially opening the door for more vendors.
Shape the Playing Field: Contractors may use pre-award protests to challenge problematic terms that favor incumbents or violate procurement law or regulation.
Practical Tips for Government Contractors
Review the Solicitation Early and Carefully: Assign internal or external counsel to examine every provision of the solicitation, especially evaluation criteria, past performance thresholds, and any special certifications.
Act Quickly: If an issue is identified, consult with counsel on strategy, consider engaging informally with the agency, and consider filing a protest before the proposal deadline. Remember, time is of the essence.
Document Concerns: Maintain clear records of communications with the agency and document any ambiguities or potential improprieties in the solicitation.
Engage Experienced Counsel: Pre-award protests involve nuanced legal and strategic decisions. An experienced government contracts attorney can assess the risks and benefits and draft a compelling protest.
Be Strategic, Not Combative: Pre-award protests are not personal—they are about ensuring a fair and lawful procurement. Maintain professionalism and clarity in all communications with the agency and in the protest itself.
Final Thoughts
Pre-award bid protests are a vital but underutilized tool in the government contractor’s arsenal—and, generally speaking, they are more likely to result in relief for the contractor than post-award protests. By identifying and addressing flaws in a solicitation before proposals are submitted, contractors can help ensure a fair procurement process and safeguard their competitive position. With proper legal guidance and strategic foresight, a pre-award protest can often prevent bigger problems down the line.
Navigating Uncertainty: How Recent IEEPA Tariff Rulings Impact the Maritime Industry
On May 28, 2025, the United States Court of International Trade (“CIT”) issued a landmark decision in V.O.S. Selections, Inc. v. United States,[1] holding that tariffs imposed by the President under the International Emergency Economic Powers Act (“IEEPA”) exceeded the statutory authority granted by Congress. The CIT vacated the challenged tariff orders and permanently enjoined their enforcement nationwide. However, less than 24 hours later, the U.S. Court of Appeals for the Federal Circuit temporarily stayed the CIT’s order, preserving the tariffs while the government’s appeal is pending. A separate decision from the D.C. District Court also found the President’s IEEPA tariffs to be beyond the scope of the statute, though it imposed a more limited injunction.[2]
The CIT’s decision is significant for the maritime industry, as it directly challenges the President’s ability to impose broad, unbounded tariffs on imports under IEEPA. The CIT emphasized that IEEPA does not grant the President unlimited authority to regulate importation through tariffs, and that any such delegation of power must be clearly limited and guided by statutory principles. The CIT found that the tariffs in question—ranging from a 10 percent rate on all imports to higher, country-specific duties—were not sufficiently tied to the “unusual and extraordinary threat” required by IEEPA and lacked meaningful limitations in scope or duration.
Immediate Impact on the Maritime Industry
Although the CIT’s decision would have set aside all tariffs imposed under the challenged executive orders, the Federal Circuit’s stay means that these tariffs remain in effect for now. This ongoing legal uncertainty has several immediate implications for the maritime industry:
Continued Tariff Collection. Maritime carriers, freight forwarders, and port operators must continue to process shipments subject to the existing tariffs, as the stay preserves the status quo pending further judicial review.
Operational Uncertainty. The potential for a sudden removal or reinstatement of tariffs creates significant unpredictability for shipping schedules, contract negotiations, and supply chain planning. Maritime stakeholders should be prepared for rapid changes in tariff policy as the litigation progresses.
Customs and Compliance Considerations. Importers and logistics providers must remain vigilant in tracking the status of the litigation and any changes to tariff enforcement. Accurate documentation and compliance with current tariff requirements remain essential to avoid penalties or delays.
Long-Term Implications for Maritime Trade
The CIT’s decision, if upheld, would have far-reaching consequences for the maritime industry:
Potential Elimination of Additional Duties. If the tariffs are vacated, importers would no longer be subject to the additional duties imposed under the challenged executive orders. This could lead to increased cargo volumes and reduced costs for shippers and their customers.
Judicial Scrutiny of Emergency Tariffs. The decision signals that future attempts to use IEEPA to impose broad tariffs—especially as leverage in trade negotiations or to address general trade deficits—will face significant judicial scrutiny. This may provide greater predictability and stability for maritime trade policy going forward.
Distinction from Section 232 Tariffs. It is important to note that the CIT’s decision does not affect tariffs imposed under other authorities, such as Section 232 duties on steel, aluminum, and automobiles. These measures remain in place and continue to impact certain segments of the maritime industry.
Next Steps and Recommendations
Given the dynamic nature of the current legal landscape, maritime stakeholders should vigilantly monitor ongoing litigation developments and be ready to adapt their operations in response to changes in tariff policies. It is advisable to consult with legal counsel regarding the status of duties paid under the relevant tariffs and potential refund procedures if these tariffs are ultimately overturned. Maintaining robust compliance programs is essential to ensure adherence to all applicable customs and tariff requirements during this period of uncertainty.
Recent court rulings emphasize the importance of statutory limits on presidential authority to impose tariffs, highlighting the need for maritime industry stakeholders to stay informed and agile as the situation evolves.
[1] cit.uscourts.gov/sites/cit/files/25-66.pdf
[2] courthousenews.com/wp-content/uploads/2025/05/contreras-blocks-certain-trump-tariffs.pdf
Regulatory Developments: Maritime Emissions
Maritime environmental regulations have become increasingly prominent internationally as concerns over climate change and air pollution intensify. The shipping industry is under mounting pressure from governments, environmental organizations, and the public to reduce its environmental footprint. This pressure is compounded by the complexity of navigating a rapidly evolving regulatory landscape, making compliance a critical and challenging priority for maritime stakeholders. International cooperation has been essential in shaping these regulations, as countries and organizations work together to establish unified standards and enforcement mechanisms.
Specifically, the International Maritime Organization (“IMO”) has introduced several amendments to MARPOL Annex VI (emissions) that are entering into force within the next few months and are expected to significantly influence vessel operations and compliance strategies worldwide. These regulatory developments are expected to have far-reaching effects on global shipping practices, driving innovation and operational changes across the industry. Below is a selection of recent and upcoming maritime emissions-related regulatory developments, which demonstrate the global impact and growing importance of these regulations.
The Mediterranean Sea Emissions Control Area
The Mediterranean Sea became an Emissions Control Area (“ECA”) on May 1, 2025, under MEPC.261(79), which reduced the maximum sulfur content allowed in marine fuel from 0.5 percent to 0.1 percent. The Mediterranean Sea is the fifth designated ECA, joining the Baltic Sea, North Sea, North American Area, and U.S. Caribbean Sea Area.
Looking further ahead, on March 1, 2026, under MEPC.392(82), the Norwegian Sea and Canadian Arctic will be designed as ECAs with respect to nitrogen oxides, and on March 1, 2027, one year after the amendments enter into force, with respect to sulfur oxides and particulate matter.
Other Amendments to MARPOL Annex VI
On August 1, 2025, additional amendments to Annex VI under IMO Resolution MEPC.385(81) regarding fuel sampling, bunker delivery notes (“BDN”), major engine conversions, and fuel consumption data sharing enter into force.
Fuel Oil Sampling and Bunker Delivery Notes
The fuel oil sampling and BDN requirements are of particular importance to shipboard personnel and bunker suppliers. These amendments clarify the definitions of fuel oil (any fuel delivered to and intended for use on board a ship) and gas fuel (a fuel oil with a vapor pressure exceeding 0.28 MPa absolute at a temperature of 37.8°C). They also provide exemptions for in-use onboard sampling points for low-flashpoint fuel[1] and gas fuel (Regulation 14.12), and require the BDNs for gas and low-flashpoint fuels to meet the informational criteria listed in Appendix V to Annex VI (Regulation 18).
As of August 1, 2025, a BDN for low-flashpoint fuel and gas fuel will be required to state:
Name and IMO Number of receiving ship;
Port where fuel is received;
Date of commencement of delivery;
Name, address, and telephone number of fuel supplier;
Product name(s);
Quantity in metric tons;
Density determined by a method appropriate for the fuel, including the temperature;
Declaration signed by the supplier that the fuel meets the fuel quality requirements of MARPOL Annex VI Regulation 18; and
The sulfur content of the fuel specifically for use on board as tested by an appropriate method, or a statement that, when tested by an appropriate method, the sulfur content is less than 0.001 percent m/m.
The new requirement for low-flashpoint and gas fuels could lead to potential non-compliance if not carefully followed. It is therefore essential to ensure BDNs include all the required information.
Pursuant to MEPC.1/Circ.795/Rev.8, electronic BDNs are acceptable and should be protected from edits, modifications, or revisions and can be authenticated by a verification method such as a tracking number, watermark, date and time stamp, QR code, GPS coordinates, or other means. A BDN must be retained onboard for at least three years from the date of delivery and made readily available for inspection as required.
BDNs are also critical for emissions reporting, particularly to the IMO Ship Fuel Oil Consumption Database (Regulation 27), as explained further below. Reporting incorrect or inaccurate fuel types and their corresponding Emission Factor can affect a vessel’s overall Carbon Intensity Indicator calculation. Therefore, shipboard officers and bunker suppliers must ensure accuracy and completeness at the time of each delivery.
Collection and Reporting of Ship Fuel Oil Consumption Data
As required by MARPOL Annex VI, Regulation 27, all ships of 5,000 gross tonnage and above have been required to collect fuel oil consumption data since 2018 and to report this data to the IMO starting in 2019. The collection criterion are listed in Appendix IX of MARPOL Annex VI. Notably, MEPC.385(81) also adopted amendments to Appendix IX, “Information to be submitted to the IMO Ship Fuel Oil Consumption Database.” These amendments require vessels, starting on August 1, 2025, to report information beyond the existing requirements, including fuel oil consumption per consumer type (main engines, auxiliary engines, oil-fired boilers, and others), both generally and while not underway. Vessels must also report the total amount of onshore power supplied (in kWh), and, on a voluntary basis, the laden distance traveled. Therefore, shipowners and operators should ensure compliance with the added data collection information.
Conclusion
The evolving landscape of maritime emissions regulations underscores the increasing global commitment to reducing the environmental impact of shipping. With the introduction of new ECAs, such as the Mediterranean Sea, and forthcoming designations in the Norwegian Sea and Canadian Arctic, the industry faces new requirements for fuel quality, emissions reporting, and operational transparency. Amendments to MARPOL Annex VI, including expanded bunker delivery note requirements and enhanced fuel consumption data collection, reflect the IMO’s drive for greater accountability and innovation within the sector. As these regulations come into force, shipowners, operators, and bunker suppliers must prioritize compliance and adapt to the complexities of the new standards. Proactive engagement with these regulatory changes will not only mitigate the risk of non-compliance but also position maritime stakeholders at the forefront of sustainable shipping practices, supporting both environmental stewardship and long-term industry resilience.
[1] Low-flashpoint fuel means gaseous or liquid fuel oil having a flashpoint lower than otherwise permitted under Paragraph 2.1.1 of Regulation 4 of Chapter II-2 of the International Convention for the Safety of Life at Sea (“SOLAS”), 1974, as amended.
Bid Protests in New Mexico
In New Mexico, vendors who compete for public contracts have legal recourse if they believe that a government solicitation or contract award was improper. The New Mexico Procurement Code provides a formal bid protest process that allows “aggrieved” bidders or offerors to challenge procurement decisions made by state agencies or local public bodies. This post provides an overview of that process, including important deadlines, procedures, and potential remedies.
Who Can File a Bid Protest?
Any bidder or offeror who is aggrieved in connection with a solicitation or contract award may file a protest. An “aggrieved” party is typically one who claims that the procurement process was flawed in a way that affected their ability to win the contract — for example, through unfair evaluation criteria, improper award decisions, or procedural violations.
How and When to File
Under Section 13-1-172 NMSA 1978, a protest must:
Be submitted in writing;
Be delivered to the state purchasing agent or the appropriate central purchasing office; and
Be filed within fifteen (15) calendar days after the protester first knew (or should have known) the facts giving rise to the protest.
This strict deadline means that prospective protesters must act quickly once they are aware of the issue — such as learning of an award decision or a potentially problematic solicitation term.
Automatic Stay of Procurement
When a timely protest is filed, the procurement process is generally halted. Specifically, the state purchasing agent or central purchasing office is prohibited from proceeding further unless they determine that continuing with the award is necessary to protect substantial interests of the agency or local public body. This safeguard ensures that procurement decisions are not finalized before potential violations are reviewed.
Authority to Resolve the Protest
The state purchasing agent, central purchasing office, or their designee has the authority to take any action reasonably necessary to resolve the protest. However, their authority does not include the power to award money damages or attorneys’ fees.
Resolution must follow applicable regulations promulgated by the relevant oversight body —whether it be the state’s General Services Department, a local government entity, or another authorized central purchasing office.
Determination and Notification
Once the protest has been reviewed, the deciding authority must issue a written determination that:
States the reasons for the action taken, and
Informs the protestant of their right to judicial review under Section 13-1-183 NMSA 1978.
This determination must be promptly issued and immediately mailed to the protester and all other bidders or offerors involved in the procurement, as required under Section 13-1-175 NMSA 1978.
Judicial Review
If a protester is dissatisfied with the decision, they may seek judicial review under Section 39-3-1.1 NMSA 1978, which governs how administrative decisions are challenged in court. This typically involves filing a petition in the appropriate state district court.
While the Procurement Code allows for judicial review, it does not authorize courts to award monetary damages as a remedy for bid protests. Relief is generally limited to declaratory or injunctive actions — such as setting aside an award or requiring a new solicitation.
Conclusion
New Mexico’s bid protest framework under the Procurement Code is designed to ensure transparency, accountability, and fairness in public procurements. By allowing aggrieved bidders to challenge potentially improper decisions, the system fosters competition and helps safeguard taxpayer dollars. However, contractors must act swiftly and follow procedural requirements closely to preserve their protest rights.
Government contractors in New Mexico should familiarize themselves with these rules and consult counsel promptly if they believe grounds exist for a protest. Early engagement can make the difference between a successful challenge and a missed opportunity.
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Navigating Maritime Evidence: The Power and Practice of Using Demonstrative Aids in Litigation
Navigating the complexities of maritime litigation presents unique challenges distinct from other areas of law. The cases are often steeped in technical detail, involving complex vessel operations, intricate navigation principles, and highly specialized equipment. For judges and juries—many of whom may have little or no maritime experience—grasping the nuances of such cases can be a daunting task. This is where demonstrative aids help to transform dense, technical evidence into clear, compelling presentations that illuminate the facts and arguments at the heart of a dispute. Drawing on recent developments in the Federal Rules of Evidence and illustrative case law, demonstrative aids can be the difference between confusion and clarity, disengagement and persuasion, and, ultimately, between losing and winning a case.
Legal Framework: Federal Rules of Evidence and Demonstrative Aids
The use of demonstrative aids is governed by the Federal Rules of Evidence (“FRE”), local court rules, and case law. Two rules are particularly central: FRE 107 and FRE 1006.
FRE 107: Illustrative Aids
Enacted on December 1, 2024, FRE 107 clarifies the distinction between demonstrative aids (also called illustrative aids) and demonstrative evidence. Demonstrative aids are not evidence; they are presentations designed to help the trier of fact understand the evidence or argument.
FRE 107 establishes a balancing test: a demonstrative aid may be used if its utility in assisting comprehension is not substantially outweighed by the danger of unfair prejudice, confusion, misleading the jury, undue delay, or wasting time. The rule also provides guidance on discovery, notice, instruction, and preservation of demonstrative aids, and restricts their use during jury deliberations unless all parties consent or the court orders otherwise.
FRE 1006: Summaries to Prove Materials
FRE 1006, recently amended, governs the use of summaries, charts, or calculations to prove the content of voluminous admissible writings, recordings, or photographs that cannot be conveniently examined in court. Such summaries are admissible as evidence, provided the underlying materials are admissible and available to the other parties. Importantly, if a summary functions only as an illustrative aid, it falls under FRE 107, not FRE 1006.
Other Relevant Rules
FRE 401 & 402: Define and govern the admissibility of relevant evidence.
FRE 403: Allows exclusion of relevant evidence if its probative value is substantially outweighed by risks such as unfair prejudice or confusion.
FRE 611: Grants courts control over the mode and order of presenting evidence.
FRE 901 & 902: Address authentication and identification of evidence.
Case Study: SCF Waxler Marine L.L.C. v. Aris T M/V
The successful use of an accident reconstruction video in litigation, incorporating automatic identification system (“AIS”) footage into the video, is exemplified in SCF Waxler Marine L.L.C. v. Aris T M/V, 24 F.4th 458 (5th Cir. 2022).
On the evening of January 31, 2016, the Aris T was upbound on the Mississippi River at the same time towboats Elizabeth and Loretta, each pushing loaded red-flagged (petroleum) barges, were downbound. An allision occurred in the Hahnville Bar, a bend between mile markers 124.5 and 126 in the Mississippi River where a number of moorings are located. Aris T was passing Loretta and Elizabeth at the same time Loretta was overtaking Elizabeth. Given their relative positions, there simply was not enough room for the three vessels to be adjacent to each other simultaneously. Id. at 466. To avoid colliding with Loretta’s loaded petroleum barges, Aris T veered to starboard and allided with docks owned by Valero and Shell, causing a massive amount of damage.
A video reconstruction of the allision was used as part of Valero’s case-in-chief. The video reconstruction of the allision showed the path of the vessels and included relevant audio recordings from Aris T’s vessel data recorder (“VDR”), which recorded all transmissions sent or received by Aris T’s VHF radio and all voices recorded on the four microphones located on Aris T’s bridge. At the inception of trial, the court admitted the video reconstruction into evidence and no party contested its accuracy. Id. at 466, n. 2. In effect, the court accepted the video, not just as an illustrative aid, but as an admissible summary of the evidence. The video dominated the ensuing two weeks of trial.
On appeal, the Fifth Circuit affirmed the district court’s causation findings as not clearly erroneous. In doing so, the Fifth Circuit outlined that the district court did not err in discounting eye-witness testimony about the timing of the failure of certain equipment and instead crediting other expert testimony and evidence (e.g., radar and video footage) that the equipment failed earlier and contributed to the allision. Id. at 474.
The accident reconstruction video played a pivotal role in shaping the Fifth Circuit’s decision in SCF Waxler Marine L.L.C. v. Aris T M/V. By combining AIS data with audio from the Aris T’s VDR, the video provided a comprehensive and accurate depiction of the events leading to the allision. Its unchallenged reliability allowed the court to weigh it heavily over contested eyewitness testimony, reinforcing the district court’s findings. This case underscores the value of demonstrative evidence in litigation, as accident reconstruction videos can distill complex scenarios into clear and compelling evidence, enabling courts to make well-informed decisions.
Conclusion: The Strategic Value of Demonstrative Aids
In the high-stakes, technically complex world of maritime litigation, demonstrative aids are invaluable. They educate, engage, and persuade, transforming intricate evidence into compelling narratives that resonate with judges and juries. The legal framework—anchored by FRE 107 and FRE 1006—provides clear guidelines for their use, while case law demonstrates their potential to shape outcomes.
The power of demonstrative aids derives from careful planning, creativity, and strict adherence to evidentiary standards. In the end, the strategic use of demonstrative aids can be the key to navigating the complexities of maritime litigation, turning the tide in favor of clarity, comprehension, and justice.
FMC Announces Investigation Into Flags of Convenience and Unfavorable Conditions Created by Flagging Practices
The U.S. Federal Maritime Commission (“FMC”) announced on May 21, 2025 that it is initiating a non-adjudicatory investigation into whether the: 1) vessel flagging laws, regulations, and/or practices of certain foreign governments, including the so-called flags of convenience (“FOC” or “open registries”), or 2) competitive methods employed by owners, operators, agents, or masters of foreign-flag vessels, are creating unfavorable shipping conditions in the foreign trade of the United States (the “Notice”).
The investigation includes a 90-day public comment period, which ends on August 20, 2025.
FMC’s “Section 19” Trade Authority
Section 19 of the Merchant Marine Act of 1920, 46 U.S.C. § 42101 et seq., authorizes the FMC to evaluate conditions that affect U.S. shipping in foreign trade and to issue regulations or take action to address such conditions. Potential remedies include port fees up to one million U.S. dollars, limits on voyages to and from U.S. ports or the amount or type of cargo carried, and other trade restrictions.
The FMC exercised this authority frequently in the 1980s and 90s (before the sell-off of the major U.S. liner operators to foreign buyers) to force market-opening concessions and eliminate discriminatory fees and trade barriers that impeded U.S. shipping companies’ competitiveness in overseas. However, these powers have been left nearly dormant for the past two decades.
The current investigation does not target particular flag States or propose any remedial measures; rather, it is a non-adjudicatory investigation pursuant to 46 C.F.R. Part 502, Subpart R, which allows the FMC to request information, conduct hearings, issue subpoenas, conduct depositions, and issue reports, at its discretion.
Summary of Investigation
This investigation breaks new ground for the FMC, which traditionally has not had any role concerning vessel registries, marine safety, or the International Maritime Organization (“IMO”) conventions, which set the global framework for vessel regulation. In the Notice, the FMC expressed concern about the conditions created by the wide and uneven range of foreign vessel flagging laws, regulations, and practices. While the Notice indicated that many nations take “great care in creating standards for vessels flagged by their registries,” it also observed that other countries have engaged in a global “race to the bottom” by lowering standards and easing compliance requirements to gain a potential competitive edge.
The Notice asserted that FOCs “operate under lax regulatory oversight, leading to lower safety, environmental, and labor standards . . . and FOC vessels exploit lower operational costs through reduced taxes, cheaper labor, and irregular maintenance or safety measures.” But the FMC failed to recognize the quality chasm between industry-leading, U.S.-managed international open registries, such as the Marshall Islands and Liberia, versus thinly staffed or sham registries serving non-compliant shadow fleet ships.
The FMC’s Notice discussed other unfavorable flagging practices, including “flag-hopping” or using false flags to avoid regulatory oversight; using fraudulent ship registrations without the knowledge or approval of the relevant maritime administration; and operating in the “shadow fleet,” i.e., outside the regular or official frameworks and often engaging in illegal or illicit activities such as smuggling, sanctions evasion, or the transportation of prohibited goods. The Notice recognized IMO’s policy recommendations and resolutions addressing such practices, but asserted that the IMO’s effort has not led to meaningful change or deterrence.
The FMC did not single-out any particular open registry, but it referenced certain recent incidents and inaccurately linked them to certain open registries as a basis for its action (e.g., the Singapore-flag DALI’s allision with the Francis Scott Key Bridge, the Malta-flag APL QINGDAO’s narrowly-avoided allision with the Verrazzano Bridge, and the MS MELENIA, currently under the Djibouti flag, where crew were left stranded when the tanker was abandoned for the third time). The Notice offered these incidents as examples, yet failed to provide any analysis linking the performance of the flag State to the events at issue. In fact, the references to the DALI and APL QINGDAO were particularly questionable, as Malta and Singapore are among the top-performing registries according to the U.S. Coast Guard’s 2024 Annual Port State Control report.
According to the Notice, the FMC launched this investigation for the purpose of identifying “best practices” that contribute to responsible and safe vessel operations and to identify practices that allow or contribute to unsafe conditions that endanger or imperil the reliability and efficiency of ocean shipping.
It appears likely that the current investigation is driven, at least in part, by a growing FMC dialogue with U.S. trade sanctions enforcers in the U.S. Departments of Treasury and State regarding the rapid growth of the “dark fleet” or “shadow fleet,” and the role of flag States in allowing vessels to evade or flout U.S. trade sanctions. FMC Chairman Lou Sola raised this issue in an April 2025 speech, in which he announced: “I have tasked our staff with identifying options on how to address the role flags of convenience play in enabling avoidance of sanctions. Registries hosting outlaw vessels used by reprehensible regimes to facilitate their evasion of international regulations would certainly qualify as conduct warranting the Commission’s attention and action.”
The FMC therefore may be assessing how its unilateral powers (which often are used in tandem with diplomatic approaches by the U.S. Department of State and other agencies) might be used to increase the pressure on the most problematic flag States to adhere to international standards or withdraw from market.
Public Comments Due August 20, 2025
Comments may be submitted by all members of the public (including ship owners, operators, and managers; flag States; shippers; carriers; governments; and non-governmental organizations), but the Notice said the FMC is particularly interested in receiving input from individuals and organizations with expertise or experience in vessel operations, international trade, international law, and national security, including international standards-setting organizations (e.g., the IMO and International Transport Workers’ Federation), countries with large ship registries, and those with evidence of the burdens and risk created by irresponsible flagging practices. Specifically, the FMC is seeking comments on the following topics:
Specific examples of responsible flagging laws, regulations, practices, and proposals, including how they contribute or would contribute to the efficiency and reliability of the ocean shipping supply chain;
Specific examples of unfavorable flagging laws, regulations, and practices that endanger the efficiency and reliability of the ocean shipping supply chain;
Practices by owners or operators of vessels that undermine the efficiency and reliability of international ocean shipping;
The benefits to international ocean shipping of responsible vessel registration and flagging practices; and
The burdens on foreign nations and vessel operators or owners of irresponsible flagging practices.
Key Takeaways
At this time, the investigation is only informational—FMC has not proposed or threatened any penalties or restrictions. However, the FMC has the power to impose vessel fees similar to what the U.S. Trade Representative has done recently in connection with its Section 301 investigation of China’s targeting of the maritime, logistics, and shipbuilding sectors. See our previous alert. Thus, the information submitted during the investigation comment period likely will help shape the FMC’s next steps.
Interested parties should strongly consider submitting comments on the topics noted above, which are further described with added examples in the Notice.
Navigating Safely: Tips for Commercial and Recreational Vessels Operating near Military Craft
Every day, commercial, recreational, and military vessels encounter one another on the seas with different prerogatives—moving product as safely and efficiently as possible, enjoying a day on the water, or completing a mission, whatever that might be. This article will provide context to commercial, merchant, and recreational craft regarding the types of military craft and operations they may encounter in order to make better-informed maneuvering decisions.
Surface Vessels
Anticipated Locations: U.S. Navy surface vessels sail around the globe—however, the highest density areas are: Everett, Washington; San Diego, California; Pearl Harbor, Hawaii; Mayport, Florida; Norfolk, Virginia; Rota, Spain; Yokosuka, Japan; Sasebo, Japan; and Manama, Bahrain.
Bridge Manning: Military vessels in the U.S. Navy Surface Fleet are not manned in the same way merchant vessels are. It is common during normal operations for there to be upwards of seven watchstanders on the bridge at any given time or upwards of ten during special operations (Sea & Anchor Detail, Underway Replenishment, etc.). During normal operations, it is common to have an Officer of the Deck, Junior Officer of the Deck, Conning Officer, Helm, Boatswain’s Mate of the Watch, and two lookouts. Expect delays in responding to radio calls as each Captain has different reporting requirements that may require the Officer of the Deck to contact them before responding.
When Vessels Meet: Military vessels will generally have a greater factor of safety regarding the closest point of approach than their civilian counterparts. Commercial vessels should anticipate earlier and more frequent radio calls than may be expected in the vicinity of commercial or recreational traffic. Unlike commercial traffic, military vessels are often not traveling at the same consistent course and speed. If such vessels are operating on a mission or conducting a training exercise, you may see what appears to be significant course and speed changes in short iteration.
Operating Aircraft: Commercial vessels should be aware that some military vessels will frequently be conducting air operations. As mandated by the COLREGs, military vessels will display Restricted in Ability to Maneuver when conducting air operations. When conducting training, it is common for military vessels to maintain the same course and speed for long stretches so helicopters can practice “touch downs.” Aircraft carriers may maneuver in a racetrack-type approach, launching and landing fixed-wing aircraft and then resetting before beginning again. Under certain circumstances, smaller vessels (cruisers/destroyers) might trail behind a carrier during air operations serving as the horizon reference unit.
Live Fire Exercises: When military vessels are conducting live fire exercises (missile shoots, five-inch gun, small arms, etc.), they will always make multiple warning calls over VHF Channel 16. Military vessels may request commercial or recreational operators in their vicinity to declare their maneuvering intentions. It is common to see military vessels transit at slow speed down a designated “firing line” before speeding up to reset and begin firing again.
Underway Replenishment (“UNREP”): A common method for resupply of military vessels is underway replenishment (for both fuel and stores). The vessel and the supply ship generally choose a course and speed to maintain for up to a few hours. Commercial and recreational vessels operating in the vicinity of an UNREP should anticipate an early radio call as maneuvering and speed changes are restricted during UNREP and can only be done in small iterations (one degree course change, one RPM speed change, etc.) There may also be air operations simultaneous with an UNREP.
USCG-Specific
U.S. Coast Guard surface vessel operations are similar to those of U.S. Navy surface vessels, but their multi-mission capabilities introduce additional considerations for commercial or recreational vessels operating nearby.
Coast Guard vessels are designed to transition seamlessly between various mission sets. For instance, a Sentinel-class cutter in certain Areas of Responsibility might start the day with recreational vessel safety boardings, shift to a search and rescue mission in the afternoon, and conclude with immigration enforcement operations in the evening. These diverse operations often require the rapid launching and recovery of small boats, sometimes with little notice. Therefore, commercial and recreational vessels should be prepared for Coast Guard vessels to change course and speed suddenly and should maintain a wide berth around such operations.
Additionally, the Coast Guard’s law enforcement activities can result in unique lighting configurations. While Coast Guard vessels are generally required to display navigation lights between sunset and sunrise or during periods of restricted visibility, there are exceptions. When conducting specific law enforcement or public safety operations, Coast Guard vessels may operate without certain navigation lights. Commercial vessels or recreational vessels that encounter a Coast Guard vessel without normal navigational lights between sunset and sunrise should keep a wide berth and avoid hailing them on the radio about their lighting configuration, as this could compromise their operations.
Subsurface Vessels
U.S. submarines operate globally but, except for entering and leaving port and in certain limited circumstances, they do so while submerged.
Operating Areas: Submarines are most often found operating on the surface in the vicinity of U.S. Navy homeports in Groton, Connecticut; Norfolk, Virginia; Kings Bay, Georgia; Bangor, Washington; San Diego, California; Pearl Harbor, Hawaii; and Apra Harbor, Guam.
The United States operates three types of submarines, all nuclear powered: attack submarines, ballistic missile submarines, and cruise missile submarines. Although each type of submarine carries different weapons and has different missions, for the purposes of understanding their actions on the surface, they operate identically.
While submarines can operate in shallow water, submerging in less than 100 fathoms (600 feet) presents challenges, such as the difficulty in avoiding vessel traffic that may not be aware of the submarine’s presence, or the possibility of bottom contact. As a result, when proceeding to sea on routine operations, a submarine will usually delay submerging until it reaches an area where the water depth is at least 100 fathoms.
Bridge Manning: When on the surface, submarines are usually conned from the bridge at the top of the “sail” (also called the “fin” or “fairing” by the Royal Navy but no longer called the “conning tower” as it was during World War II). The bridge will be manned by an Officer of the Deck and a lookout, and during some maneuvers the Captain will also be present on the bridge. The Officer of the Deck or the Captain gives orders from the bridge cockpit to the Helmsman below in the control room using a public address type of announcing system or a sound-powered telephone. In addition to the Helmsman, the control room will be manned by a radar operator and fire control watchstander who tracks other vessels, a Quartermaster who keeps track of the ship’s position, and a Chief of the Watch who operates the ship’s mechanical systems. A ship’s officer will be assigned as the Contact Coordinator in charge of the Control Room to maintain a lookout using a periscope, and to assist the Officer of the Deck on the bridge in deciding on collision avoidance maneuvers.
During heavy weather, such as when waves break over the top of the sail, the bridge watch is sometimes moved below deck and the Officer of the Deck conns the ship from the Control Room, similar to when the submarine is submerged. When this occurs, however, the lookout’s view is limited to what can be seen through the periscopes.
When Vessels Meet: A U.S. submarine, when operating on the surface in narrow channels or areas with limited depth, is treated as a “vessel constrained by her draft.” This means it is severely restricted in its ability to deviate from its course due to the available channel width and water depth as compared to its draft. It will display a black cylinder day shape and also may display three all-round red lights in a vertical line in addition to the lights required for a power-driven vessel. It also may display, as a distinctive means of identification, an intermittent flashing amber “Sub ID beacon.”
A surfaced submarine can be tracked using commercial radar systems, even those not specifically designed for military applications. The submarine’s hull, periscopes, and antennas will reflect radar signals, making it possible to detect the submarine. Visual identification, however, especially at a distance, can be challenging. Although surfaced submarines have unique structures like a sail, radar masts, and antennas unlike those typically found on surface ships that can help differentiate them from other vessels, because of its low freeboard, surfaced submarines are often mistakenly identified as small vessels like fishing trawlers when first visually sighted.
U.S. submarines, like other U.S. warships, are equipped with Automatic Identification System (“AIS”), but are not required under U.S. law to use it. All U.S. Navy ships, however, are now instructed to activate AIS in designated areas, with the specific implementation subject to command discretion based on operational needs and security considerations.
U.S. submarines will use bridge-to-bridge communication and will comply with the Bridge-to-Bridge Radiotelephone Act. In sharing information about its course, speed, and intended collision avoidance maneuvers with nearby vessels, a U.S. submarine may in some circumstances, for security purposes, only identify itself as a “U.S. Navy warship,” or “U.S. Navy unit.”
Weapons Firing Exercises: The United States has established submarine operating areas for torpedo and missile practice firing exercises, the boundary limits and designations of which are shown on charts in magenta or purple lines. Vessels should proceed with caution in designated areas. There is a real danger that a well-intentioned ship or boat, unaware of these operations, might turn in the submarine’s direction to investigate a submarine periscope. During torpedo practice firing, all vessels are cautioned to keep well clear of naval target vessels flying a large red flag.
Regulated Navigation Areas, Safety Zones, Security Zones, and Military Craft
Under U.S. law, 33 U.S.C. §91, the Secretary of Homeland Security is empowered to control the anchorage and movement of any vessel in the navigable waters of the United States to ensure the safety or security of any United States naval vessel in those waters.
Federal regulations governing Regulated Navigation Areas, Safety Zones, and Security Zones outlined in 33 CFR Part 165 establish different types of limited or controlled access areas to protect U.S. Coast Guard vessels and U.S. Navy and Coast Guard facilities.
U.S. naval vessels are protected by a system of rules and regulations, primarily through the Naval Vessel Protection Zone (“NVPZ”) and the implementation of Homeland Security regulations. This includes establishing restricted zones around naval vessels, requiring commercial and recreational vessels to slow down and maintain minimum speed, and ensuring commercial and recreational vessels do not enter the NVPZ within certain distances without authorization to protect naval vessels from potential threats and maintain the security of U.S. waters.
The NVPZ regulations prohibit any commercial or recreational vessels from coming within 100 yards of the NVPZ and require that any such vessels slow to minimum speed within 500 yards of any large U.S. naval vessel (over 100 feet in length). Commercial or recreational vessels that need to pass within 100 yards of a large U.S. naval vessel within an NVPZ to operate safely in a navigable channel must contact the Coast Guard, the senior naval officer present in command, or the official patrol on VHF Channel 16. Violating the NVPZ Regulations is a felony offense, punishable by up to six years in prison and/or a $250,000 fine.
Coast Guard vessels are protected by “Security Zones” established by the U.S. Coast Guard Captain of the Port (“COTP”). For example, in the Long Island Sound COTP Zone, a Security Zone has been established for a 100-yard radius of any anchored U.S. Coast Guard vessel. Security Zones also have been established in the vicinity of the U.S. Coast Guard Academy and the Naval Submarine Base at Groton, Connecticut. A “Restricted Area” also has been established in the vicinity of the Groton Submarine Base that requires all vessels to leave the Restricted Area when notified by submarine base personnel that such use will interfere with submarine maneuvering, operations, or security.
U.S. Coast Guard-established Security Zones are closed to all vessel traffic, except as may be permitted by the COTP or a designated representative. Commercial or recreational vessel operators given permission to enter or operate in the Security Zones must comply with all directions given to them by the COTP or the designated representative. Commercial or recreational vessel operators desiring to enter or operate within the Security Zones must request permission to do so by contacting the COTP by telephone or via VHF Channel 16.
Both the U.S. Navy and the U.S. Coast Guard are authorized to use deadly force to protect themselves within the NVPZ, Security Zones, and in other security situations.
Conclusion
We hope this article can be used as a circulated fleet message for any commercial traffic operating in the vicinity of military vessels to provide further context about standard military operations in the United States.
OFCCP Extends Enforcement Moratorium for VAHBP Providers Until 2027
In a move the Agency reported is designed to maintain healthcare access for active and retired service members and their families, the Office of Federal Contract Compliance Programs (OFCCP) has announced a two-year extension to the enforcement moratorium for Veterans Affairs Health Benefits Program (VAHBP) providers. This extension, effective June 11, 2025, will now run through May 7, 2027.
The extended moratorium continues to suspend the enforcement of VAHBP providers’ requirement to take affirmative steps to ensure equal opportunity without regard to disability or protected veteran status, obligations typically required of federal contractors and subcontractors. Additionally, VAHBP providers will not be subject to neutral scheduling for compliance evaluations during this period – though all evaluations are currently being held in abeyance.
Presently, the OFCCP retains authority to investigate discrimination complaints filed under Section 503 of the Rehabilitation Act (Section 503) and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). However, given the current administration’s focus on deregulation and the recent proposed budget that would effectively eliminate the OFCCP, this moratorium extension likely reflects the need to address the previous May 2025 expiration date, rather than an indication that the agency is ramping up its activities.
This extension represents the latest in a series of actions dating back to 2014, when the OFCCP first limited its enforcement activities for TRICARE subcontractors in an effort to balance regulatory requirements and veterans’ access to healthcare, allowing for more time to consider stakeholder feedback. The moratorium was later expanded to include VAHBP providers. Effective August 31 2020, OFCCP’s final rule established that it does not have authority over TRICARE providers. The current moratorium extension provides additional time for the OFCCP to develop sub-regulatory guidance specifically addressing VAHBP providers.
While the extension offers some regulatory relief, VAHBP providers must remain aware that the moratorium does not exempt them from nondiscrimination obligations.
6 Tips for Government Contractors to Avoid, Neutralize, and Mitigate Organizational Conflicts of Interest
Organizational conflicts of interest (OCIs) continue to be a critical compliance risk in the federal contracting landscape. The Federal Acquisition Regulation (FAR) mandates that contracting officers “avoid, neutralize, or mitigate” OCIs to ensure that government decisions are made objectively and without improper influence. For contractors — especially those engaged in professional services, systems engineering, or technical support — the presence (or even the appearance) of an OCI can lead to lost contract awards, contract terminations, or bid protest challenges. Below are six key tips to help contractors proactively address OCI risks throughout the procurement lifecycle.
1. Understand the Three Core Types of OCIs
Before you can avoid or mitigate an OCI, you need to know what you’re dealing with. The FAR and related case law recognize three primary categories of OCIs:
Biased Ground Rules – Occurs when a contractor helps draft or otherwise shape the requirements for a solicitation, potentially skewing the competition
Impaired Objectivity – Arises when a contractor’s judgment in evaluating products or services could be compromised due to other business interests
Unequal Access to Information – Happens when a contractor gains non-public, competitively useful information through prior or existing work, giving it an unfair advantage
Being able to spot which type may be implicated is essential for crafting an effective compliance strategy.
2. Conduct an Internal OCI Assessment Early
OCI issues often surface during proposal development or after award — both high-risk times for your business. Thus, contractors should instead conduct a pre-proposal OCI screening for each opportunity, reviewing:
Prior or current contracts that may overlap in scope or subject matter
Involvement in drafting the solicitation or advising the agency
Subcontractor or teaming partner relationships that may raise OCI concerns
This due diligence should be documented and updated regularly, especially if organizational changes occur.
3. Develop and Maintain an OCI Compliance Plan
An effective OCI mitigation or avoidance strategy often hinges on a written, proactive plan. Key components should include:
Firewalls – Clearly separate personnel and systems to prevent the flow of non-public or sensitive information
Screening Procedures – Pre-assignment reviews to ensure staff are not conflicted
Non-Disclosure Agreements (NDAs) – Ensure employees, subcontractors, and teaming partners sign NDAs specific to each project
Training – Regular OCI training for staff involved in proposal development, contract performance, and business development
The existence of a documented and credible plan can also be persuasive in responding to agency inquiries or protest allegations.
4. Engage with the Contracting Officer Early
If there’s any ambiguity about a potential OCI, it’s usually best to disclose the issue to the agency up front. FAR Subpart 9.5 requires that contracting officers identify and resolve OCIs. Voluntary disclosure shows good faith and allows you to shape the narrative and propose your own mitigation approach, rather than waiting for the agency or a protester to define the issue for you.
5. Tailor Mitigation Strategies to the Specific Conflict
Not all OCIs are created equal — and not all can be mitigated. But where mitigation is appropriate, it is important to be specific. Generic assertions of “firewalls” or “screening” will not suffice. Instead, provide information such as:
Named individuals responsible for OCI compliance
Details of data segregation procedures
Timing and documentation of mitigation efforts
Evidence that mitigation measures are in place and effective
Tailored mitigation is often the difference between staying in the competition and being eliminated.
6. Stay Vigilant Post-Award
OCI compliance doesn’t end when the contract is awarded. Performance-related conflicts may arise if your company acquires a new business, hires former government officials, or is awarded additional work. Regular internal reviews, coupled with clear communication with the contracting officer, are essential to staying on the right side of FAR 9.5.
Conclusion
OCIs are a complex and evolving area of government contracts law — but they’re not insurmountable. With proactive planning, robust internal controls, and open communication with the government, contractors can avoid or mitigate even complex OCI scenarios. Failing to do so, however, can result in costly bid protests, reputational damage, and lost opportunities.
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Texas on My Mind: New Bills from the 2025 Legislative Session Affecting Contractors in the Lone Star State
With the recent conclusion of the biannual sprint that is the Texas Legislative session, Gov. Greg Abbott has started signing bills, including two that affect the construction industry: one in the area of construction defect claims on public buildings/public works projects and the second regarding the ability for parties to assign construction trust fund claims.
Accrual Date for Construction Defect Claims on Public Buildings/Public Works
HB 1922 was signed by Abbott on June 20, 2025, amending Texas Government Code Chapter 2272, which covers claims by governmental entities against contractors, subcontractors, suppliers, or design professionals for construction defects on public buildings or public works projects.
Under Chapter 2272, before a governmental entity can bring a construction defect claim, they must provide each party the governmental entity has a contract with for the design or construction of the affected building/public work with a written report by certified mail, return receipt requested, that (1) identifies the specific construction defect on which the claim is based; (2) describes the present physical conditions of the affected structure; and (3) describes any modification, maintenance, or repairs to the affected structure made by the governmental entity or others since the affected structure was initially occupied or used. A contractor who receives such a report then has five days to provide a copy of the report to each subcontractor retained on the construction of the affected structure whose work is subject to the claim.
HB 1922, which takes effect on September 1, 2025, amends Chapter 2272 to establish that a governmental entity’s construction defect claim under Chapter 2272 accrues on the date the governmental entity’s required report is postmarked by the U.S. Postal Service. HB 1922 goes on to state that for all other purposes, including the date of an occurrence under an applicable insurance policy and the date a cause of action accrues for purposes of determining whether the action is barred by a statute of limitations or repose, the date of the accrual of those causes of action is unaffected by HB 1922.
Practically, HB 1922’s intent is clarification of the accrual date for claims between governmental entities and contractors to avoid confusion, inconsistency, and disputes regarding when the government’s construction defect claim accrued. However, HB 1922’s adoption should not affect parties’ practice regarding notice to insurers, whether a claim by a governmental entity is barred by the statute of repose, or the applicable accrual date for claims arising out of the governmental entity’s defect claim between contractors, subcontractors, and suppliers (defense/indemnity/contribution, etc.).
Assignment of Trust Fund Claims
Texas Property Code Chapter 162, otherwise known as the Texas Construction Trust Fund Act, gives downstream parties, such as subcontractors and suppliers, the ability to assert claims against an upstream party, such as a general contractor, who receives payment from an owner on a construction project, and then wrongfully retains, uses, or disburses those funds without fully paying its obligations to the downstream subcontractor or supplier.
SB 841, which also takes effect on September 1, 2025, was drafted to address scenarios where general contractors received payment from an owner, passed that payment along to a first-tier subcontractor, and then that first-tier subcontractor failed to pay second-tier subcontractors or suppliers. Prior to SB 841, a general contractor in that situation could not pursue the wrongfully withheld trust funds under the Texas Construction Trust Fund Act, as that act only granted a cause of action to parties that did not receive payment.
With the adoption of SB 841, the Texas Construction Trust Fund Act has been amended to allow a second-tier subcontractor with a trust fund claim against a first-tier subcontractor to assign that claim to a general contractor or other party on the construction project.
SB 841 specifies that for the assignment to be enforceable it must:
Be made in writing not earlier than the date the assignee (general contractor in our scenario) has paid the beneficiary (second-tier subcontractor in our scenario) in good and sufficient funds for the assignment;
Not be made as part of the beneficiary’s (second-tier subcontractor) construction contract;
Make sure the assignee (general contractor in our scenario) is a beneficiary, trustee, or property owner under the construction contract with which the trust funds are paid (i.e., the assignee cannot be a stranger/outsider to the construction project); and
Provide written notice of the assignment to the property owner and the contractor on the project no later than the seventh day after the assignment is made.
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Trump’s Drone Duet: Executive Orders Cracking Down on Threats While Boosting U.S. Drone Leadership
On June 6, 2025, President Donald Trump signed two executive orders aimed at significantly reshaping the future of drone policy in the United States. One focuses on protecting national airspace from malicious drone threats, while the other seeks to supercharge the U.S. drone industry at home and abroad.
Together, these orders paint a clear picture of a dual strategy: tighten security while boosting innovation. Here’s a breakdown, without the legal jargon, of what these two executive orders mean and why they matter.
Restoring American Airspace Sovereignty: Cracking Down on Dangerous Drone Use
This executive order is all about defending U.S. airspace from threats posed by drones—especially when used by hostile actors.
The order warns that while drones can offer many benefits, bad actors have increasingly weaponized them, raising serious national security and public safety concerns. From hovering over stadiums and critical infrastructure to spying on sensitive government sites, drones have become a tool for potential harm.
The key actions in the executive order:
New Task Force: A special interagency task force will review the United States’ current drone policies and tech capabilities and propose solutions to improve drone defense.
Federal Aviation Administration (FAA) Rulemaking: The FAA will write new rules to restrict drone flights over “fixed site facilities”— think power plants, military bases, or large venues.
Better Geofencing Tools: FAA notices and airspace restrictions will be made available in a more open, digital-friendly format so drone systems can automatically avoid no-fly zones.
Law Enforcement Mandate: The Attorney General must step up enforcement of laws against reckless or criminal drone use.
Expanded Detection Powers: Agencies are directed to use all tools available to detect, track, and identify drones and their signals.
Counter-Drone Coordination: The Attorney General and Homeland Security Secretary will explore embedding drone defense into Joint Terrorism Task Forces, especially around mass gathering events like sports games, concerts, or political rallies.
This is a crackdown on dangerous or unlawful drone activity. It could lead to more enforcement, stricter no-fly zones, and tighter coordination across federal and local agencies to stop drone threats before they escalate.
Unleashing Drone Dominance: Promoting U.S. Drone Innovation and Exports
The second order flips the script. While the first one cracks down, this one opens up new doors for U.S.-made drone technology to thrive.
President Trump argues that drones are not just flying gadgets, they’re a key part of the future economy. They can improve productivity, create high-skilled jobs, and modernize transportation and logistics. To stay competitive globally, the United States must scale production, expand exports, and support homegrown innovation.
The key actions in the executive order:
Beyond Visual Line of Sight (BVLOS) Rules: The FAA will issue new regulations to allow drones to fly beyond the pilot’s line of sight, critical for delivery services, search and rescue, and more.
AI-Powered Waiver Reviews: The government will start using artificial intelligence tools to speed up the approval of drone waiver applications, cutting red tape.
Easing International Flight Restrictions: U.S.-based drone flights that begin and end domestically (or from U.S.-owned platforms) will no longer face manned aircraft-style rules under international law.
National Integration Roadmap: A new plan will guide how drones are fully integrated into U.S. airspace—from small consumer drones to delivery fleets.
Test Range Expansion: FAA test sites will be used more aggressively to develop and scale up next-gen drone tech.
Electric Vertical Take-Off and Landing (eVTOL) Pilot Program: The government will launch a program to accelerate the rollout of eVTOL aircraft (think flying taxis).
Supply Chain Protections: A “Covered Foreign Entity List” will identify risky suppliers, and new measures will be taken to protect the U.S. drone supply chain from foreign control or espionage.
Export Boost: Export control rules will be revised to make it easier to sell U.S.-made drones abroad, as long as they’re not going to adversaries.
Military Access to Drones: The Department of Defense will take steps to improve service members’ access to drones, possibly for training or battlefield use.
This order lays the groundwork for a full-scale push to grow the domestic drone economy, loosening rules, accelerating innovation, and taking aim at global drone markets.
Taken together, these two executive orders represent a new drone doctrine: protect U.S. skies and dominate the drone market.
For drone operators and manufacturers, the message is mixed but clear: follow the rules, especially around security, and the government will support your growth.
For regulators and law enforcement, the orders add urgency to modernizing systems, cracking down on threats, and speeding up approvals.
For the drone industry, it could mean faster innovation, broader markets, and a bigger push to bring manufacturing back home.
Whether you’re flying drones, building them, regulating them, or just watching from the ground, 2025 may be a defining year for how the United States handles the skies.
This post was co-authored by Government Enforcement + White-Collar Defense partner David E. Carney.
Bid Protests in Hawaii
The state of Hawaii provides a detailed statutory framework for protesting state procurements to ensure fairness, accountability, and transparency in the government contracting process. This article outlines the essential protest procedures under Hawaii Revised Statutes (HRS) Chapter 103D, including initial protest requirements, administrative hearings, and judicial review.
1. Who May Protest and When?
Under HRS § 103D-701, any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or award of a contract may file a protest. However, the protest must adhere to strict timelines:
General Deadline: Within five working days of when the aggrieved party knew or should have known of the facts.
Award/Proposed Award Protests: Must be submitted within five working days of the award posting (if no request for debriefing was made).
Solicitation Content Protests: Must be filed before the offer due date.
Protests must be in writing and submitted to the chief procurement officer (CPO) or the designated official named in the solicitation.
Protesters are entitled to a stay of the procurement pre-award or a stay of performance post-award.
2. Resolution by the Procurement Officer
Before any formal administrative hearing, the CPO or designee has the authority to resolve protests under HRS § 103D-701(b). If mutual resolution fails, the CPO must issue a written decision that:
States the reasons for the decision;
Notifies the protester of the right to pursue an administrative hearing under HRS § 103D-709.
For construction or airport contracts, this decision must be issued within 75 calendar days, with a possible 45-day extension for good cause.
Pending the CPO’s decision, no further action may be taken on the contract unless the CPO issues a written determination that proceeding is necessary to protect substantial state interests.
3. Relief Available
If a protest is sustained, and the protester should have received the award, the protester is entitled to reasonable actual costs, including bid preparation costs—but not attorneys’ fees.
4. Actions if a Procurement Is Found Unlawful
Before Award:
If prior to award it is determined that a solicitation or proposed award of a contract is in violation of the law, then the solicitation or proposed award must be cancelled or revised to comply with the law.
After Award:
If after an award it is determined that a solicitation or award of a contract is in violation of law, and if the contractor acted in good faith, the contract may be:
Ratified, affirmed, or modified, or
Terminated with compensation for work performed (excluding attorneys’ fees).
If the contractor acted fraudulently or in bad faith:
The contract may be voided, or
Ratified/modified with damages reserved to the state.
5. Administrative Review: Hearings Officers (HRS § 103D-709)
If the protest is denied, the aggrieved party may seek de novo administrative review from hearings officers appointed by the Department of Commerce and Consumer Affairs (DCCA):
Hearings must begin within 21 days of request receipt.
A written decision is required within 45 days.
Only parties to the protest may initiate this review.
The standard of proof is preponderance of the evidence.
Jurisdictional Thresholds:
For contracts under $1 million, the issue under protest must exceed $10,000.
For contracts $1 million or more, the issue under protest must equal at least 10% of the estimated value.
Fees & Bonds:
A protest bond of 1% of the estimated contract value is required.
A non-refundable filing fee is also due:
$200 for contracts ≥ $500,000 but < $1 million. $1,000 for contracts ≥ $1 million. Failure to pay results in dismissal. A frivolous or bad-faith protest may lead to forfeiture of the bond to the general fund. 6. Judicial Review (HRS § 103D-710) Only parties aggrieved by the administrative decision may seek judicial review in the circuit court. Key rules include: Must be filed promptly; the court generally loses jurisdiction if not resolved within 30 days. The review is on the record only, with exceptions for newly discovered, material evidence. The court may affirm, reverse, remand, or modify the decision if there is a legal or procedural defect, or if the decision is arbitrary or clearly erroneous. Conclusion Hawaii’s protest procedures are highly structured, requiring strict adherence to filing deadlines, jurisdictional thresholds, and procedural requirements. Contractors and offerors pursuing or defending against a protest should engage with counsel familiar with the nuances of HRS Chapter 103D and related administrative rules. Understanding this framework ensures that your rights as a bidder or offeror are preserved and effectively asserted throughout the procurement process.