Full Federal Circuit to review interested-party standing in Percipient.ai case

The US Court of Appeals for the Federal Circuit has vacated its prior decision in Percipient.ai v. United States and granted en banc review to address a pivotal question of “interested party” standing under federal bid protest law. (An en banc review is by all circuit court judges.) The case centers on whether Percipient.ai–which alleges the National Geospatial-Intelligence Agency (NGA) illegally excluded its commercial Mirage product in NGA’s SAFFIRE procurement–qualifies as an “interested party” eligible to file a protest before the Court of Federal Claims in accordance with 28 USC § 1491(b)(1).

Generally, to have standing to file a bid protest, the plaintiff must be an “interested party,” both (1) having submitted an offer under the subject procurement and (2) demonstrating a direct economic interest in the outcome of the procurement. We have #1 so nonbidders can’t throw spanners in the works, which dovetails with #2’s requirement that the protester have a "substantial chance" of receiving the contract had the error not occurred.

While Percipient.ai did not bid the procurement, it argued NGA bypassed statutory requirements to assess commercial and nondevelopmental products, which would have inevitably turned up Percipient.ai’s commercial product, hence prejudice. The Court of Federal Claims rejected this argument only to be reversed by the appellate court’s panel. Now, everyone in the Federal Circuit is weighing in, but on this question of standing only; the panel’s ruling otherwise stands.