Late last month, the Federal Circuit issued its en banc opinion in Percipient.AI, INC. v. United States. In this case, Percipient.ai appealed a judgment of the Court of Federal Claims, which dismissed its bid protest for lack of standing. In an opinion authored by Judge Hughes and joined by Judges Dyk, Prost, Reyna, Chen, Cunningham, and Stark, the Federal Circuit affirmed the lower court’s judgment. Notably, Judge Stoll filed a dissenting opinion that was joined by Chief Judge Moore and Judges Lourie and Taranto. This is our opinion summary.
Judge Hughes’s Majority Opinion
Judge Hughes began by highlighting the factual and procedural background of the case:
“In 2020, the National Geospatial-Intelligence Agency (NGA) issued the SAFFIRE solicitation seeking to improve its collection, interpretation, and storage of visual intelligence data. . . The solicitation sought bids to build and operate a ‘[Structured Observation Management] Enterprise Repository’ (SER) to store, disseminate, and regulate access to data. . . NGA also sought ‘Computer Vision’ (CV) capabilities; CV is a type of artificial intelligence technology that trains and uses computers to derive geospatial intelligence data from imagery.
NGA awarded the SAFFIRE contract to CACI, Inc.-Federal in January 2021. . . The contract was a single-award indefinite delivery/indefinite quantity contract that defined a general procurement goal and contemplated the issuance of multiple task orders and the use of subcontractors to handle specific tasks related to the goal. . . The contract also incorporated the clause found in the Federal Acquisition Regulation (FAR) at section 52.244-6, which required CACI to use commercial or non-developmental items to the maximum extent practicable in executing its contractual obligations. . . NGA simultaneously issued Task Order 1 under the SAFFIRE contract, which directed CACI to develop and deliver the CV systems described in the solicitation.
Percipient offers a commercial CV platform that it contends could have met NGA’s CV requirements. . . But Percipient did not have the capabilities to meet the SER component of the solicitation. Percipient states that, for this reason, it ‘could not and did not bid on the SAFFIRE contract.’. . . Percipient also does not allege that it attempted to team up with another company to submit an offer. Percipient states that it instead ‘awaited the market research where it could demonstrate its ability to meet NGA’s CV needs.‘
After the contract was awarded to CACI, Percipient reached out to NGA and asked for an evaluation of Percipient’s commercial CV product for the SAFFIRE contract. . . NGA directed Percipient to contact CACI. . . After Percipient’s initial demonstration of its CV product and much back and forth between NGA, CACI, and Percipient, CACI did not follow up regarding further evaluation. . . Percipient then reached out to NGA, and NGA entered into a bailment agreement with Percipient to evaluate Percipient’s product’s capabilities. Percipient alleges that NGA only tested Percipient’s product as a machine learning platform, but not as an analytical tool—which is what the SAFFIRE contract required. . . Percipient concluded that NGA ‘deliberately failed’ to evaluate Percipient’s product to meet the SAFFIRE CV system requirements. . . NGA then communicated that there would be no further evaluation of Percipient’s product.
Percipient contacted NGA and ‘ask[ed] that NGA comply with its obligations under [10 U.S.C.] § 3453,’ which is entitled ‘Preference for commercial products and commercial services’ and requires agency heads to ‘acquire commercial services, commercial products, or nondevelopmental items other than commercial products to meet the needs of the agency’ ‘to the maximum extent practicable,’ 10 U.S.C. § 3453(b)(1). Percipient states that NGA’s response ‘ignored the substance of Percipient’s allegations.‘
In January 2023, Percipient filed its bid protest in the Court of Federal Claims contending, as relevant to this en banc proceeding, that NGA had violated its obligations under § 3453. . . Percipient alleged that the trial court had jurisdiction over this challenge to the ongoing SAFFIRE procurement under [28 U.S.C.] § 1491(b)(1). . . The government and intervenor-defendant CACI moved to dismiss Percipient’s complaint on multiple grounds, including for lack of subject matter jurisdiction and lack of standing. . . The trial court initially denied the motion to dismiss. . . but then granted the appellees’ motion for reconsideration and dismissed the case.
A panel of this court reversed and remanded to the trial court with a dissent by Judge Clevenger arguing that the panel’s holding as to 28 U.S.C. § 1491(b)(1) was inconsistent with the text, history, and purpose of the statute. . . The government petitioned for rehearing en banc, and we invited a response to the petition from Percipient. . . We granted the government’s petition and ordered briefing and argument on the following standing issue: ‘Who can be ‘an interested party objecting to . . . any alleged violation of statute or regulation in connection with a procurement or a proposed procurement’ under 28 U.S.C. § 1491(b)(1)?’. . . We received two amicus briefs and heard oral argument on June 9, 2025.“
Judge Hughes began his analysis “with a review of the relevant history underlying § 1491(b)(1).” He explained how in a previous case “[t]he Court of Claims acknowledged that the law at the time recognized no cause of action in bid protest cases” but “nonetheless recognized a cause of action arising out of an implied contract theory, over which it has jurisdiction pursuant to the Tucker Act.” He then went on to discuss restrictions on bid protest claims, such as “limiting recovery to instances in which there was clear and convincing proof that there had been a fraudulent inducement for bids and that the government intended to disregard all the bids except from the parties to which it had intended to give the contract.” The plaintiff “essentially. . . had to show that the bids were not invited in good faith.’” Judge Hughes highlighted how the Court of Claims later “expanded its own interpretation of its bid protest jurisdiction.” He explained how the Court of Claims stated a “broad general rule which is that every bidder has the right to have his bid honestly considered by the Government.”
Judge Hughes also outlined the history of the Federal Courts Improvement Act, “which amended the Tucker Act and gave the Court of Federal Claims the statutory authority to decide certain bid protest matters.” He explained, though, that FCIA “did not alter jurisdiction in the district courts to hear post-award challenges.” As a result, he noted, “[t]he disparate procedural pathways between the Court of Federal Claims and the district courts created jurisdictional non-uniformity in bid protests.”
Judge Hughes explained how Congress later “amended the Tucker Act . . . with the enactment” of the Administrative Dispute Resolution Act of 1996, the Act at issue in this case. This Act, he said, “gave the Court of Federal Claims a new independent jurisdictional grant specifically for bid protest claims” and “provided the Court of Federal Claims and the district courts with concurrent jurisdiction over bid protest actions” until the district court’s jurisdiction ended in 2001.
Judge Hughes then went on to compare the language of § 1491(b) of the Tucker Act with the language in the Competition in Contracting Act of 1984. He explained how CICA “allow[ed] an ‘interested party’ to challenge ‘a solicitation,’ or ‘a proposed award or the award of’ a contract.”
Turning back to § 1491(b), Judge Hughes quoted the provision at issue, emphasizing the relevant part of its text the court would construe:
Both the Unite[d] States Court of Federal Claims and the district courts of the United States shall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a pro-posed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement. Both the United States Court of Federal Claims and the district courts of the United States shall have jurisdiction to entertain such an action without regard to whether suit is instituted before or after the contract is awarded.
Following this review of the history underlying § 1491(b)(1), Judge Hughes explained that the court has “long held that the term ‘interested party’ for bid protests should be limited to actual or prospective bidders or offerors whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” Moreover, he said, the court saw “no reason to depart from this settled interpretation.”
Judge Hughes disagreed with the argument that the provision “should be read as containing three ‘prongs’ which each provide an independent basis for objection, namely: (i) a solicitation by a federal agency for bids or proposals for a proposed contract, (ii) a proposed award or the award of a contract, and (iii) any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” He explained that “Section 1491(b) is not written with multiple interested party provisions” but instead “has one singular interested party.” He went on to say that “[d]ividing this single sentence and imparting different definitions for a single term within each artificial division contravenes the plain text of the statute.”
Judge Hughes next addressed the fact that “[t]he term ‘interested party’ carries the context imparted by the history of bid protest cases and prior statutes.” He noted that in a previous case the court determined that “interested party” would have the same meaning as in CICA, limited to “actual or prospective bidders or offerors whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” He concluded that, “absent any indication of alternative Congressional intent, the old term of art still means something and. . . should be conserved and carried forward into ADRA.” Judge Hughes concluded that “[t]here is no indication that Congress, in enacting ADRA, intended to expand the types of parties who could bring a bid protest in the Court of Federal Claims.”
Judge Hughes went on to disagree with the contention that “a definition of interested party that limits standing to actual or prospective bidders or offerors renders the third prong superfluous in violation of basic canons of statutory construction.” Instead, he concluded, the “third prong” still has “independent force” even if the definition of interested party “remains consistent throughout the statutory scheme.”
Finally, Judge Hughes addressed the argument that “the amendments to § 1491 were designed to give the Court of Federal Claims the same jurisdiction as the district courts,” and that certain cases “recognize subcontractor jurisdiction.” Judge Hughes disagreed. He concluded the line of cases “does not support reading subcontractor standing into § 1491(b)(1).” He said the case law only recognized the standing of a “frustrated bidder” and not the “mere disappointed subcontractors.” He said subcontractor standing was recognized only in “limited circumstances where there was an agency-like relationship between the contractor and the government.”
Even if the court were mistaken as to the “scope of the district court jurisdiction,” Judge Hughes continued, that would “at most suggest” that the subcontractors had a claim under the Administrative Procedure Act in the district court, rather than an action to enforce § 1491 in the Court of Federal Claims.
In sum, the court affirmed the dismissal of Percipient’s protest for lack of standing. In the process, the en banc court held that an “interested party” with standing under § 1491(b) “is an actual or prospective bidder or offeror whose direct economic interests would be affected by the award of the contract or failure to award the contract, regardless of the type of action brought.”
Judge Stoll’s Dissenting Opinion
Judge Stoll wrote a dissenting opinion that was joined by Chief Judge Moore and Judges Lourie and Taranto.
Judge Stoll argued the majority incorrectly borrowed its definition of “interested party” from the Competition in Contracting Act. She said that statute “does not even include the subject matter of interest at issue here.”
According to Judge Stoll, because § 1491(b) does not define “interested party” but rather just the three types of objections of an interested party that brings a bid protest into the jurisdiction of the Court of Federal Claims, “precedent supports interpreting ‘interested party’ the same for all three types of objections; an ‘interested party’ is one with a ‘direct economic interest [that] would be affected by the [challenged § 1491(b)(1) action].’” “To determine whether a party is an ‘interested party,’” she explained, “the court must consider the subject of that party’s interest.” As a result, she said, “an interested party under one prong of §1491(b) might not qualify as an interested party under another prong.”
As an example, Judge Stoll explained that, “if the challenged action is under prong one. . . the interested party is a would-be bidder.” However, if the challenged action falls under prong two, she continued, the interested party is an “actual bidder.” She pointed out how this result is in direct contradiction to the majority’s “one-size-fits-all definition.” According to Judge Stoll, moreover, “had Congress intended for only a bidder or prospective bidder to be an interested party under prong (3), Congress could have written prong (3) to say something like ‘any alleged violation of statute or regulation in connection with a proposed award or award of a contract.”
Judge Stoll argued that defining “interested party” as “someone with a ‘direct economic interest [that] would be affected by the [challenged §1491(b)(1) action]’ gives real and consistent meaning to the entire statutory phrase . . . not just prongs (1) and (2).”
Judge Stoll suggested the majority erred by “prioritizing legislative history of various statutes and ignoring the language of §1491(b)(1).” Even so, she continued, “the legislative history of § 1491(b)(1) supports a broader interpretation of ‘interested party’ here.”