Percipient.ai, Inc. v. United States, et al.

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?