Alert: Percipient.ai Files Supreme Court Petition in Bid Protest Involving Commercial Products and Interested Party Status

[My #govcon alerts provide a quick take on recent news in the government contracting space.]

There is an interesting development for anyone following the Percipient.ai bid protest saga that was before the U.S. Court of Appeals for the Federal Circuit over the summer (discussed, in part, here).

Following the Federal Circuit's en banc decision (7-4) in late August, which affirmed the U.S. Court of Federal Claims’ dismissal of Percipient.ai’s bid protest for lack of standing, the software firm took its challenge to the Supreme Court. In its petition seeking the high court's review of the Federal Circuit's en banc decision, the firm argues that the appellate court was "dead wrong" in finding that the company was not an interested party with standing to challenge statutory violations involving commercial products.

Notably, given the subject matter at issue (commercial products), I anticipate that we will see several amicus briefs urging the Supreme Court to grant certiorari. Indeed, the significance of this bid protest is perhaps highlighted by the fact that Paul Clement, a former Solicitor General and top appellate lawyer, also is on the brief.

Here is the question presented:

"Congress has provided the Court of Federal Claims with exclusive jurisdiction to hear claims brought by “an interested party objecting to” 1) “a solicitation by a Federal agency for bids or proposals for a proposed contract or”; 2) “to a proposed award or the award of a contract or”; 3) “any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). 

"In the decision below, a 7-4 majority of the en banc Federal Circuit limited the universe of “interested parties” who could vindicate the statutes and regulations referenced in the third prong to the participants in the solicitation and award processes who qualify as “interested parties” to challenge solicitations and contract awards under the first two prongs. As the dissenting judges pointed out, that reading ignores the plain text of § 1491(b)(1) and vitiates statutory provisions that apply only after the prime-contract award and are specifically designed to ensure that parties who do not bid on a prime contract, but have a superior commercial product that satisfies a portion of the prime contract, are evaluated and employed. 10 U.S.C. § 3453(b)(2) & (c)(5). Because the Federal Circuit acted en banc, its misguided rule will prevail unless this Court intervenes.

"Did the en banc Federal Circuit err in holding that a person must meet the requirements for challenging a solicitation or contract award under the first two prongs of 28 U.S.C. § 1491(b)(1) to qualify as an “interested party” who can challenge violations under the broader third prong?"

. . .

#govcon