Changing a sale Congress has already seen

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1. Changes are caught too

Under the Security Assistance Management Manual (SAMM), no Letter of Offer and Acceptance (LOA) may be offered until every required congressional notification has been made. Any formal review period must also have run, and the rule covers amendments and modifications too (SAMM C5.7.3). A section 36(b)(1) notification is needed when an offer meets a threshold, and the thresholds differ by purchaser (SAMM C5.7.3.1). An amendment or modification also needs one if it would lift the major defense equipment value or the total case value to a threshold for a sale Congress has not been told about. The thresholds and review periods themselves are covered in congressional notification of arms sales.

2. Upgrades to a notified sale

Sales already notified are changed through two further kinds of notice, under section 36(b)(5)(A) or (C), which modify the original (SAMM C5.7.3.2). One is needed when an amendment or modification would raise the sensitivity of the technology, or the capability of the article, equipment or service, above what the earlier notice described. A change in sensitivity usually needs further release reviews and always needs renotification.

The manual treats many changes as upgrades (SAMM C5.7.3.2). Adding new or existing items or services counts, as do increased capability, added major defense equipment, larger quantities of it, and any change that would push past the total value notified. The value of the upgrade decides which notice applies. Below the threshold, a section 36(b)(5)(A) notice is needed, which the statute calls a report (SAMM C5.7.3.2.1). At or above it, a section 36(b)(5)(C) notice is needed (SAMM C5.7.3.2.2).

3. One notice, several cases

Several offers can draw on one notification, as long as together they stay within the major defense equipment quantities and dollar value left on it (SAMM C5.7.3.3). Each offer, amendment and modification may refer to only one section 36(b)(1) notice, plus any section 36(b)(5) changes to that same notice. The Defense Security Cooperation Agency (DSCA) gives every notification a transmittal number showing the fiscal year and its place in sequence (SAMM C5.7.6.4.4). DSCA passes the number and a copy to the implementing agency (IA) when the notice goes to Congress. The number must appear on the offer and on every later amendment and modification.

4. What may be offered, and when

For section 36(b)(1) and 36(b)(5)(C) notices, the final offer cannot go out until the statutory review period has passed (SAMM C5.7.6.4.1). The IA may give the purchaser a draft once DSCA confirms the formal notification has been made. A section 36(b)(5)(A) change has no review period and may be offered as soon as it is formally notified, but items may not be delivered until 45 days after notification. Where the President states in the notice that an emergency requires the sale, the review period is waived and the offer may go out at once (SAMM C5.7.6.4.5).

5. Starting with long lead items

Programs with long lead-time items can begin on an offer that is not notified, as long as that first offer stays below the thresholds (SAMM C5.7.7.1). If the rest of the program reaches a threshold, a notification should go in before the long-lead offer is amended to add it (SAMM C5.7.7.2). The notice must list the long-lead offer as a prior related program. If the notice is disapproved, the amendment is not offered, and the long-lead offer covers only costs already incurred. The manual requires a standard note on the offer for this situation.

6. Who prepares a notification

By executive order, the President has delegated section 36(b) to the Secretary of War, who acts in consultation with the Secretary of State (SAMM C5.7.4). The IA prepares the first package, gives DSCA the supporting information, and starts the case in the case management system before sending it. It also leads and certifies the release reviews that must be finished before notification, and runs the remaining ones before the offer. DSCA checks the package, coordinates it inside the Defense Department and sends it to the State Department. State consults the Defense Department, weighs the sale against the President’s conventional arms transfer policy, coordinates informally with the committees and makes the formal notification.

Some notices need State-prepared documents (SAMM C5.7.5.10). Section 36(h) requires a determination for sales to Middle East countries other than Israel that the sale will not adversely affect Israel’s qualitative military edge (SAMM C5.7.5.10.1). The manual lists the countries it applies to, including Iraq, Jordan, Saudi Arabia and the United Arab Emirates. Sales to Greece and Türkiye need a presidential certification under section 620C of the Foreign Assistance Act that they are consistent with American policy on Cyprus, Greece and Türkiye (SAMM C5.7.5.10.2).

7. Time and priority

Notifications can take a long time, because of informal and statutory review periods and the coordination among the IA, DSCA, other Defense offices, the State Department and the National Security Council (SAMM C5.7.6.1.1). DSCA recommends submitting well ahead of the planned offer date. Delays can still occur where technology releases are incomplete or broad interagency coordination is needed. Where priority is needed, for example to exercise contract options by a set date, the IA justifies it in its cover memorandum (SAMM C5.7.6.1.2). If DSCA agrees, it works with State and Congress to try to speed the review. The formal period can be waived only by an emergency declaration.

Because unfinished release reviews can hold up a notification, the IA should start them as early as is reasonable, to finish before it submits the notification package (SAMM C5.7.6.1). It must confirm the needed approvals are in hand, and that the case package has been updated, before it starts the notification process. After that, DSCA reviews the package and coordinates it within the Defense Department before formally sending it to the State Department (SAMM C5.7.6.2).

Key terms

Section 36(b)(1) notice	The congressional notification required when a sale reaches a threshold.
Section 36(b)(5)(A) report	The notice for an upgrade to a notified sale below the thresholds.
Section 36(b)(5)(C) notice	The notice for an upgrade at or above the thresholds, with a review period.
Transmittal number	The fiscal year and sequence number DSCA gives each notification.
Qualitative military edge determination	The State finding on Israel’s military edge needed for certain Middle East sales.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

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