The commercial preference enshrined in the Federal Acquisition Streamlining Act (FASA) is one of the largest, most underexploited levers for revitalizing American national defense. Used aggressively, FASA would force the Department of War to buy what already exists on the open market before paying incumbents to redevelop it. Largely ignoring the law has produced three decades of cost-plus rot: a small, sclerotic cohort of contractors that often deliver late, deliver expensive, and deliver less than the commercial sector can build at a fraction of the price.
That is why hopes are running high for Section 1822 of the 2026 National Defense Authorization Act, which mandates the Secretary of War to, in essence, personally approve every noncommercial acquisition. In theory, this creates direct accountability to enforce the commercial preference in FASA, completely reforming the landscape of defense acquisitions. But absent a team of clear-eyed, independent outsiders supporting the SecWar in this effort, there is reason to worry.
Personnel is Policy
Consider Executive Order 14271. Signed in April 2025, it ordered every agency to revisit its procurement pipeline and reclassify, where appropriate, contracts that should have been competed as commercial all along. The theory was sound. The execution should have been straightforward. A serious review would surface, at minimum, hundreds of acquisitions where the government has been paying to reinvent the wheel.
A recently FOIA’d Department of War memo, dated August 2025, lays out how that review actually ran. Sixty-one percent of the actions reviewed were tagged as noncommercial. Of those noncommercial submissions sent up for approval, 95% were waved through to proceed. Less than 1% were sent back to look harder for a commercial alternative. About 1% of all covered actions were ultimately reclassified from noncommercial to commercial.
The acquisition machine looked itself in the mirror, was asked whether anything was wrong, and reported that everything was fine. This is the result you get when you ask the patient to write the diagnosis.
Personnel is policy. The lesson here is that “commerciality” is in the eye of the beholder, and the beholders we have in place today literally cannot see it. Career acquisition officials have spent thirty years building careers around bespoke development. They wrote the requirements that excluded commercial vendors. They cleared the exemptions. They mentored the program executives now writing the next round of requirements that will, again, exclude commercial vendors. Asking that workforce to honestly evaluate whether a commercial product can meet a need is not a reform. It is a recusal problem at industrial scale.
The EO failed for the same reason every prior commerciality push has failed: the people running the process are the process. They cannot perceive better ways to meet America’s defense needs because their professional lives have been organized around not perceiving them. Affirming the commercial preference, by statute or executive order, is necessary. It is plainly not sufficient.
And the cost of pretending otherwise is no longer abstract. The munitions inventories we will have to rebuild at the close of the war in Iran, the magazine depth required to deter a Pacific contingency, the drones and counter-drones and electronic-warfare gear we should already be fielding by the tens of thousands: none of this gets bought if the military keeps paying extra to reinvent the wheel every year, rather than simply using products that the commercial sector already developed to the maximum extent practicable.
The Outsiders
We need to replace the machinery. Concretely, the Department of War needs an elite cadre of commercial leaders — operators with real industry experience and no career stake in the legacy program of record — sitting between contracting officers and the Secretary, passing judgment on every request to deviate from the commercial-acquisition default.
There is an obvious place to start, and the authority to start it already exists. The Secretary of War can stand up, on his own initiative, a Federal Advisory Committee under 41 C.F.R. §102-3.50(d) and the Federal Advisory Committee Act, 5 U.S.C. ch. 10. Discretionary advisory committees must serve a particularized public interest. The public interest here is not subtle: Congress has ordered the Department to redouble its commercial-acquisition efforts, and the President has ordered every federal agency to do the same in Executive Orders 14265, 14271, and 14275. There is no plausible reading of the legal landscape in which the Secretary lacks both the authority and the mandate to act.
The mechanics are also straightforward. Federal law already requires the Department to conduct market research for each new acquisition, asking whether commercial products meet the requirement, could be modified to meet it, or could meet it if the requirement itself were reasonably modified. When a contracting officer concludes that no commercial product will do, a program executive submits an exemption request to the Secretary of War. The Secretary, who has a war to manage, cannot personally adjudicate every one of these. So the new NDAA contemplates a designee. And here is where the EO 14271 result repeats itself: the designee, in practice, is a career official drawn from the same workforce that has spent its life eschewing market research. Obvious failure.
A Federal Advisory Committee breaks that loop — call it the Defense Acquisition Review Committee. Composed of twenty to twenty-five private-sector experts — manufacturing leaders and engineers drawn from weapons systems, aerospace, electronics, ICT, energy, ordnance, medical, automotive — appointed as special government employees and serving uncompensated or near-uncompensated, the committee would review every exemption request before it reached the Secretary. Working in panels of five, with full-committee review available on objection, it could process the volume without becoming a bottleneck and handle classified exemptions through cleared subcommittees. The committee’s recommendations would not be binding. They would not need to be. The mere existence of an outside review forces contracting officers to write exemption requests that survive contact with someone who actually knows the commercial market. The Secretary retains final authority. What he gains is a layer of accountability that the existing chain cannot generate from within itself.
Such an exercise may identify cases of particularly egregious behavior: contracting officers who reflexively submit indefensible exemption requests, programs that have been shielded from commercial competition for a decade, commerciality determinations that collapse under five minutes of outside scrutiny. When the committee finds these patterns it should be empowered to recommend consequences directly to the Secretary of War: removals, reassignments, program restructurings, terminations, and contract clawbacks. But putting names and programs on the record, in writing, with industry signatures attached, changes the incentive structure of the workforce overnight. A career official who knows that a panel of outsiders will read his exemption request and may name him in a memo to the Secretary writes a different exemption request. Better yet, he realizes he does not need to write one at all — he can just conduct proper market research and evaluate commercial alternatives.
There is one part of this that is non-delegable. The committee’s value depends entirely on who sits on it. If the Department recruits the same retired flag officers and former program executives who built the existing system, this experiment will fail, and it will fail in exactly the way EO 14271 failed. The Secretary should publicize the seats widely across American commercial industry, accept staff-prepared shortlists of finalists, and personally select every member. Personnel is policy.
Critics will argue that this kind of intervention is too aggressive, that an outside committee will slow procurement further, that industry insiders will bring conflicts of interest. They have it backward. Slow procurement is what we have today. The conflicts of interest already saturate the system, and they belong to incumbents whose expertise is in the legacy program of record, not in the commercial market that has lapped them. The advisory-committee model does not introduce conflicts; it introduces perspectives that, by law and by intent, are supposed to govern how the Department buys and have not, in practice, governed anything for a generation.
Out of Time
The hour is late, and the appetite for half-measures should be exhausted. EO 14271 was a serious attempt to get a serious answer out of the existing acquisition workforce, and that workforce returned a 95% approval rate on its own noncommercial submissions. The lesson is not that the commercial preference is unenforceable. The lesson is that it cannot be enforced by the people who have spent their careers ignoring it.
We need outsiders in the room. We need them now. And we need a Secretary willing to put them there over the objections of a workforce that, given thirty more years and another half-dozen executive orders, will continue to find that everything is fine. Congress may never give advocates of commercial acquisitions an opportunity like this again. Secretary Hegseth should use it.
