WHAT: In Percipient.ai, Inc. v. United States, the U.S. Court of Appeals for the Federal Circuit held in a 7-4 en banc decision that the definition of "interested party" under the Tucker Act (28 U.S.C. ' 1491(b)(1)) remains "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." The August 28 decision maintains the status quo following the Federal Circuit's vacatur of a 2024 panel decision that included prospective subcontractors alleging post-award violations of the statutory preference for commercial items in the definition of "interested party."
WHAT IT MEANS FOR INDUSTRY: This decision comes after a 2024 three-judge panel decision in this matter that broadened the definition of who can challenge government procurement actions at the U.S. Court of Federal Claims (COFC). The panel's decision, Percipient.ai, Inc. v. United States, 104 F.4th 839 (Fed. Cir. 2024), allowed offerors of commercial products or services to file protests even if they did not bid on the prime vehicle and even if the award relates to a task order under an indefinite delivery/indefinite quantity (IDIQ) contract. Wiley's alert on the panel decision noted that the panel's interpretation could have potentially led to more opportunities for vendors of commercial products or services to have their products evaluated and incorporated into government contracts, or...
