In Percipient.ai v. United States, the US Court of Appeals for the Federal Circuit may have triggered a legal “Big Bang” moment in government procurement law. The case centered on whether the Federal Acquisition Streamlining Act’s (FASA) “task order bar” could suppress claims alleging violations of 10 U.S.C. § 3453, which mandates a preference for commercial products. The Panel’s interpretation of the Tucker Act’s definition of “interested party” expanded the universe of standing, allowing prospective subcontractors to exert gravitational influence in legal challenges regardless of their role as indirect offerors. At the risk of offending real physicists, from a legal perspective, the Percipient.ai v. United States decision looks to expand a universe of legal scrutiny. Like the cosmic forces that shape galaxies, the Percipient.ai decision may shape the parameters of government contracting jurisdiction and procedural fairness in the procurement process.

The facts of the case orbit around the National Geospatial-Intelligence Agency (NGA) and its quest to boldly go and enhance its visual intelligence capabilities through the SAPPHIRE IDIQ contract and a task order focusing on advanced computer vision technology was awarded to CACI, Inc. Percipient.ai, offering the commercial platform “Mirage,” alleged that the NGA and CACI neglected to properly assess its commercial product as able to fill that need contrary to the statutory mandate of favoring commercial solutions under 10 U.S.C. § 3453.

Initially, the Court of Federal Claims (COFC) dismissed Percipient’s protest, citing the FASA task order bar that directs task order protests to the US Government Accountability Office. Percipient appealed. Upon review, a panel of the Federal Circuit overturned the decision, finding that the COFC did have jurisdiction. Similar to an orbital mechanic gravitational slingshot maneuver (where a celestial body gains velocity and changes trajectory by using the gravitational force of another object), the panel’s reinterpretation of jurisdictional limits and its definition of “interested party” served as the gravitational assist needed to redirect Percipient’s legal challenge back into orbit and, likely, influencing the future trajectories of government procurement litigation.

In essence, the Federal Circuit’s decision is a master class in celestial navigation and consisted of three minor adjustments:

  1. First Adjustment: Percipient skillfully bypasses the intense gravitational pull of the FASA task order bar by avoiding the critical moments of task order issuance. Think of the FASA task order bar as a powerful gravitational pull, like that of a massive planet, which can trap any spacecraft (legal protest) that ventures too close during critical moments of task order issuance. Percipient’s spacecraft, however, charted a course that carefully avoided this intense gravitational zone. Given that Percipient avoided bolstering its claims to the exact moments of “issuance” or “proposed issuance,” it could slingshot past FASA’s restrictive pull and continue on its intended trajectory without being captured or deflected by this regulatory gravity.
  2. Second Adjustment: By navigating within the expansive gravitational field of the Tucker Act, Percipient avoided colliding with any alleged procurement process violations, from the initial stages of need identification to the final contract closeout. Visualize the Tucker Act as a massive, all-encompassing gravitational field that governs a large space segment. This field stretches across the entire procurement life cycle, from the first flicker of recognizing a need (the initial launch phase) to the completion and closeout of the contract (akin to a spacecraft’s end-of-mission deorbiting). The court concluded that Percipient’s claims orbit comfortably within this broad gravitational influence, traversing the entire span of the procurement process. As Percipient’s solution fits seamlessly into this extensive orbital path, it could challenge actions related to the SAFFIRE procurement’s CV System, nestled neatly within the Tucker Act’s jurisdictional orbit.
  3. Third Adjustment: Percipient established its trajectory as an “interested party” within a unique orbital plane, influenced by the broader gravitational forces of statutory compliance rather than direct contract competition. Usually, when launching a bid protest, standing is established by achieving and maintaining that a contractor has a stable and viable orbit around the core objective—the contract award. It usually requires a tight, well-defined trajectory. Percipient’s journey, however, took a slightly more expansive and less conventional orbit, influenced by broader gravitational forces arising from statutory violations and where its economic interests are impacted by broader statutory issues. The court recognized the gravity of this argument. It allowed Percipient to maintain its course as an “interested party” even though it wasn’t directly competing for the contract.

While nothing is cosmically new about the government’s preference for commercial products, the clarified jurisdiction could establish a stable new revolution (pun intended) that expands how companies providing commercial solutions can initiate legal challenges when the government’s actions deviate from the statutory course laid out in 10 U.S.C. § 3453. Moreover, this redefined jurisdiction encompasses the entire performance phase of a prime contract, extending beyond the initial contract award into the complex trajectories of contract execution. It hints that COFC’s jurisdiction could encompass a broader range of issues traditionally seen as orbiting within the domain of contract administration, even when these issues arise in connection with a task order. It’s akin to setting a precise orbital path around 10 U.S.C. § 3453 that allows commercial solution providers to monitor and respond to deviations in the government’s course during the contract’s performance phase and challenge noncompliance that might otherwise have been left unchecked. It could be a new universe for commercial product providers to the federal government, with the Federal Circuit’s Percipient.ai decision serving as a navigational update for companies offering commercial solutions and wishing to ensure compliance and accountability throughout the complex and dynamic orbits of contract execution.

Photo of Alex Major Alex Major

Mr. Major is a partner and co-leader of the firm’s Government Contracts & Export Controls Practice Group. Mr. Major focuses his practice on federal procurement, cybersecurity liability and risk management, and litigation. A prolific author and thought leader in the area of cybersecurity…

Mr. Major is a partner and co-leader of the firm’s Government Contracts & Export Controls Practice Group. Mr. Major focuses his practice on federal procurement, cybersecurity liability and risk management, and litigation. A prolific author and thought leader in the area of cybersecurity, his professional experience involves a wide variety of litigation and counseling matters dealing with procurement laws and federal regulations and standards . His diverse experience includes complex litigation in federal court under the qui tam provisions of the False Claims Act and bid protest actions. He counsels all sizes of companies on issues relating to compliance with government regulations including, among other things, cybersecurity (NIST, FIPS, FedRAMP, and DFARS) requirements, multiple award schedule compliance, Section 508 issues, country of origin requirements under the Buy American and Trade Agreements Acts, cost accounting, and small business requirements. He also regularly conducts internal investigations to assist companies ensure that they are in full compliance with the law.