Buying on the fly: Drone procurement not just a defence story

Introduction

Public procurement lawyers outside defence have tended to file drones under someone else’s practice area. That is now wrong. Police forces buy uncrewed aircraft to answer 999 calls, the NHS to move pathology samples, and prison services, airports, stadiums and utilities buy counter-drone systems. These are civil buyers spending civil budgets under ordinary procurement rules.

The legal questions are familiar: when may a buyer award directly, how much scrutiny survives a statutory presumption, who may bid, and what happens when the supplier does not deliver? Drones are where those questions are being answered fastest.

The United States: presumption beats competition

In Mistral Inc., B-422905, decided on 13 December 2024, the GAO considered the United States Army’s sole-source award to AeroVironment of an IDIQ for loitering munitions with a $990 million ceiling. Mistral attacked the determination and findings, the absence of even limited competition, the five-year term and the inclusion of testing services.

The protest failed. The award rested on the public interest exception in 10 U.S.C. § 3204(a)(7), applied through temporary NDAA authority running to 30 September 2028. For a covered contract, the GAO held, the agency need not analyse how far competition is restricted, and the statute limits neither size, duration nor contract type.

Not because the Army documented the award well. Congress had decided the policy question, and the reviewing body would not imply limits absent from the text. The same supplier took a $500 million counter-drone award on 2 July 2026.

Who is allowed to sell?

The sharper constraint is who may bid. FAR 52.240-1 bars procurement of unmanned aircraft made or assembled by entities covered by the American Security Drone Act 2023. On counter-drones, the SAFER SKIES Act, enacted on 18 December 2025, produced an interim final rule effective 1 July 2026: state, local, tribal and territorial law enforcement and correctional agencies may use only equipment on a federally maintained Authorized Technologies List, with FBI certification and FCC spectrum authority on top.

That is market access decided upstream of any tender. A lawful competition may still be narrowed to suppliers that have cleared a federal list, and an excluded supplier may have no procurement remedy.

Europe and the United Kingdom

The European Commission’s Action Plan on Drone and Counter-Drone Security, published on 11 February 2026, is built around the European Drone Defence Initiative and Eastern Flank Watch. It is an organising framework, not a procurement code. Poland has gone further: Decision 123/MON allows service-tested, ministerially approved unmanned systems to be bought outside the Public Procurement Law.

The UK has taken the timetable route rather than the exemption route. Since the 2025 Strategic Defence Review, the Ministry of Defence segments acquisition into major platforms contracted within two years, modular upgrades within one year, and rapid commercial exploitation, including off-the-shelf drones and software, within three months. That points to heavy reliance on the competitive flexible procedure, frameworks and dynamic markets.

The civil example is clearer. On 4 February 2026 UK Defence Innovation launched a competition worth up to £1.85 million, funded by the Ministry of Justice and run with HMPPS, the Home Office and police, for technologies to stop drones over prisons. The buyer is the justice department and the subject matter is counter-drone. That is not defence procurement.

Winning the competition is only half of it. Our colleagues Andrew Croft and Kayleigh Rhodes have set out the contract issues for drones: registrations and consents, insurance and exclusions, liability for training and supervision, and data protection roles for recorded material. An authority that runs a fast, lawful competition but signs a thin contract has solved the easier half.

Two failure modes, and one design idea

Australia buys counter-drone capability through rapid acquisition with sovereign industry, awarding Electro Optic Systems the third Mission Syracuse contract on 8 July 2026. Switzerland shows the other side: its ADS 15 programme, contracted with Elbit Systems in 2015 for six aircraft, had delivered three by September 2025, and armasuisse has since abandoned three contracted functions and is discussing compensation. A decade of delay and a reduced specification is a contract management failure, not a tendering failure.

One idea is worth borrowing. Ukraine’s Defence Procurement Agency, tendering in August 2026, capped any single participant at 50 per cent of the volume in a class. The rationale is resilience: one dominant factory is one target. The competition effect is the one UK and EU buyers seek but rarely engineer: more credible suppliers at the end of the contract than at the start.

Drones are not just a defence story. They are the test of how fast public buyers can move, and how far they can narrow the field, without giving up the disciplines that make their decisions defensible.

Please contact Paul Henty if you would like to discuss the procurement, contracting or regulatory issues arising from drone and counter-drone projects.