The en banc Federal Circuit recently reversed a panel decision in Percipient.ai, Inc. v. United States, and its possible expansion of the US Court of Federal Claims’ bid protest jurisdiction. The ruling, issued on August 28, 2025, reinforces that there has been no expansion of who qualifies as an “interested party” with standing to bring a bid protest under 28 U.S.C. § 1491(b)(1).
Below, we provide a brief description of the case and its key implications for government contracts.
Case background
The dispute arose from the National Geospatial-Intelligence Agency’s (NGA) SAFFIRE procurement, which sought to procure advanced computer vision capabilities. Percipient.ai (Percipient), a provider of commercial computer vision platforms, did not submit a bid for the initial contract. After the contract was awarded to CACI, Inc.-Federal (CACI), Percipient sought to have its product evaluated for use under the contract. When NGA declined to conduct further evaluation, Percipient filed a protest in the Court of Federal Claims, alleging that the NGA and CACI violated their statutory obligation to consider using readily available commercial and non-developmental software products before having CACI develop a custom-made software solution.
After the Court of Federal Claims dismissed the case for lack of standing, finding that Percipient was not an “interested party,” a Federal Circuit panel reversed. The case was subsequently accepted for rehearing en banc.
Central question
The central legal question before the en banc Federal Circuit was whether a party that did not submit a bid or proposal could qualify as an “interested party” under 28 U.S.C. § 1491(b)(1), particularly when the protest alleges a violation of statute or regulation “in connection with a procurement or a proposed procurement.”
En banc proceedings
In reversing the panel decision, the en banc Federal Circuit held that only “an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract” qualifies as an “interested party,” regardless of the type of procurement challenge.
The court rejected arguments to broaden the definition to include subcontractors or other parties, emphasizing that the term “interested party” is a term of art with a consistent meaning in procurement law. The court explained: “We see no statutory support for assigning a different meaning to this single term depending on how a claimant chooses to style or bring its claim.”
The court also noted that Congress had considered and rejected expanding standing to subcontractors in related statutes, and that the statutory history “shows that there was jurisdictional confusion in where to bring a bid protest because of the different procedural pathways and pre- and post-award separation between the Court of Federal Claims and the district courts. There was a clear interest in consolidating procedural pathways—namely, to allow for post-award bid protest challenges in the Court of Federal Claims.”
Key takeaways
The court’s decision restores the pre-Percipient understanding that subcontractors and other non-bidders generally lack standing to bring bid protests. Therefore, to challenge a procurement action in the Court of Federal Claims, a party must be an actual or prospective bidder or offeror with a direct economic interest in the outcome of the action.
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