Percipient.ai, Inc. v. United States, Caci, Inc.-Federal

United States Court of Appeals
for the Federal Circuit
______________________
PERCIPIENT.AI, INC.,
Plaintiff-Appellant
v.
UNITED STATES, CACI, INC.-FEDERAL,
Defendants-Appellees
______________________
2023-1970
______________________
Appeal from the United States Court of Federal Claims
in No. 1:23-cv-00028-EGB, Senior Judge Eric G. Bruggink.
______________________
Decided: August 28, 2025
______________________
HAMISH HUME, Boies Schiller Flexner LLP, Washing-
ton, DC, argued for plaintiff-appellant. Also represented
by S AMUEL CHARLES K APLAN, ERIC J. MAURER , G INA ALICIA
ROSSMAN.
G ALINA I. F OMENKOVA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee United States.
Also represented by RETA EMMA BEZAK, EMMA E. BOND,
P ATRICIA M. M CCARTHY , CORINNE A NNE N IOSI, YAAKOV
ROTH .
ANNE P ERRY , Sheppard, Mullin, Richter & Hampton
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PERCIPIENT. AI , INC. v. US 2
LLP, Washington, DC, argued for defendant-appellee
CACI, Inc.-Federal. Also represented by J ONATHAN SCOTT
ARONIE, T OWNSEND B OURNE, ARIEL D EBIN COLLINSWORTH ,
L ILLIA J O D AMALOUJI.
______________________
Before M OORE, Chief Judge, L OURIE, D YK, P ROST , REYNA,
T ARANTO, CHEN, HUGHES , STOLL , CUNNINGHAM , and
S TARK, Circuit Judges.1
Opinion for the court filed by Circuit Judge HUGHES , in
which Circuit Judges D YK, P ROST , REYNA, C HEN,
CUNNINGHAM , and STARK join.
Dissenting Opinion filed by Circuit Judge S TOLL , in which
Chief Judge MOORE and Circuit Judges L OURIE and
T ARANTO join.
HUGHES , Circuit Judge.
This en banc proceeding asks us to resolve the question
of who can be an “interested party” objecting to any alleged
violation of statute or regulation in connection with a pro-
curement or a proposed procurement under 28 U.S.C.
§ 1491(b)(1). Because we hold that an interested party is
an actual or prospective bidder or offeror whose direct eco-
nomic interest would be affected by the award of the con-
tract or by failure to award the contract, regardless of the
type of challenge brought, we affirm the Court of Federal
Claims’ dismissal of Percipient.ai’s protest for lack of
standing.
1 Circuit Judge Newman did not participate.
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PERCIPIENT . AI , INC. v. US 3
I
A
In 2020, the National Geospatial-Intelligence Agency
(NGA) issued the SAFFIRE2 solicitation seeking to im-
prove its collection, interpretation, and storage of visual in-
telligence data. J.A. 57.3 The solicitation sought bids to
build and operate a “[Structured Observation Manage-
ment] Enterprise Repository” (SER) to store, disseminate,
and regulate access to data. J.A. 58. NGA also sought
“Computer Vision” (CV) capabilities; CV is a type of artifi-
cial intelligence technology that trains and uses computers
to derive geospatial intelligence data from imagery.
J.A. 56.
NGA awarded the SAFFIRE contract to CACI,
Inc.-Federal in January 2021. J.A. 70. The contract was a
single-award indefinite delivery/indefinite quantity con-
tract that defined a general procurement goal and contem-
plated the issuance of multiple task orders and the use of
subcontractors to handle specific tasks related to the goal.
J.A. 38. The contract also incorporated the clause found in
the Federal Acquisition Regulation (FAR) at sec-
tion 52.244-6, which required CACI to use commercial or
non-developmental items to the maximum extent practica-
ble in executing its contractual obligations. J.A. 38, 857.
NGA simultaneously issued Task Order 1 under the
2 SAFFIRE stands for the Structured Observation
Management, Automation, Augmentation and Artificial
Intelligence Framework for Integrated Reporting and Ex-
ploitation. J.A. 38.
3 Because this case was dismissed by the trial court
at the motion to dismiss stage, we assume all undisputed
facts in the complaint are true and draw all reasonable in-
ferences in the non-movant, Percipient’s, favor. Acevedo v.
United States, 824 F.3d 1365, 1368 (Fed. Cir. 2016).
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PERCIPIENT. AI , INC. v. US 4
SAFFIRE contract, which directed CACI to develop and de-
liver the CV systems described in the solicitation. J.A. 24.
Percipient offers a commercial CV platform that it con-
tends could have met NGA’s CV requirements. Appellant’s
Opening Br. 7–8; J.A. 59–60. But Percipient did not have
the capabilities to meet the SER component of the solicita-
tion. Appellant’s Opening Br. 7; J.A. 43. Percipient states
that, for this reason, it “could not and did not bid on the
SAFFIRE contract.” Appellant’s Opening Br. 8. Percipient
also does not allege that it attempted to team up with an-
other 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.” Id.
After the contract was awarded to CACI, Percipient
reached out to NGA and asked for an evaluation of Percip-
ient’s commercial CV product for the SAFFIRE contract.
J.A. 71. NGA directed Percipient to contact CACI. J.A. 72.
After Percipient’s initial demonstration of its CV product
and much back and forth between NGA, CACI, and Percip-
ient, CACI did not follow up regarding further evaluation.
See J.A. 130. Percipient then reached out to NGA, and NGA
entered into a bailment agreement with Percipient to eval-
uate Percipient’s product’s capabilities. J.A. 80. Percipient
alleges that NGA only tested Percipient’s product as a ma-
chine learning platform, but not as an analytical tool—
which is what the SAFFIRE contract required. J.A. 85. Per-
cipient concluded that NGA “deliberately failed” to evalu-
ate Percipient’s product to meet the SAFFIRE CV system
requirements. Id.; Appellant’s Opening Br. 12. NGA then
communicated that there would be no further evaluation of
Percipient’s product. J.A. 85.
Percipient contacted NGA and “ask[ed] that NGA com-
ply with its obligations under [10 U.S.C.] § 3453,” J.A. 88,
which is entitled “Preference for commercial products and
commercial services” and requires agency heads to “acquire
commercial services, commercial products, or
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PERCIPIENT . AI , INC. v. US 5
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 alle-
gations.” Appellant’s Opening Br. 13.
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 un-
der § 3453. J.A. 94. Percipient alleged that the trial court
had jurisdiction over this challenge to the ongoing
SAFFIRE procurement under § 1491(b)(1). J.A. 46. The
government and intervenor-defendant CACI moved to dis-
miss Percipient’s complaint on multiple grounds, including
for lack of subject matter jurisdiction and lack of standing.
J.A. 152–73, 175–99. The trial court initially denied the
motion to dismiss, Percipient.ai, Inc. v. United States,
165 Fed. Cl. 331, 340 (2023), but then granted the appel-
lees’ motion for reconsideration and dismissed the case,4
Percipient.ai, Inc. v. United States, No. 23-28C, 2023 WL
3563093, at *3 (Fed. Cl. May 17, 2023). Percipient ap-
pealed.
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 incon-
sistent with the text, history, and purpose of the statute.
Percipient.ai, Inc. v. United States, 104 F.4th 839
4 The trial court granted the motion to dismiss be-
cause it determined that the Federal Acquisition Stream-
lining Act of 1994 (FASA) task order bar, 10 U.S.C.
§ 3406(f)(1), applied to Percipient’s protest and removed
the case from coverage by the Tucker Act. This task order
bar ruling exceeds the scope of the rehearing that was
granted, and we accordingly do not address it in this opin-
ion. See Percipient.ai, Inc. v. United States., 121 F.4th
1311, 1312 (Fed. Cir. 2024).
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PERCIPIENT. AI , INC. v. US 6
(Fed. Cir.), reh’g en banc granted, opinion vacated,
121 F.4th 1311 (Fed. Cir. 2024). The government peti-
tioned for rehearing en banc, and we invited a response to
the petition from Percipient. Percipient.ai, Inc, 121 F.4th
at 1312. 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 al-
leged violation of statute or regulation in connection with
a procurement or a proposed procurement’ under 28 U.S.C.
§ 1491(b)(1)?”5 Id. We received two amicus briefs and heard
oral argument on June 9, 2025. We have jurisdiction under
28 U.S.C. § 1295(a)(3).
B
We begin with a review of the relevant history under-
lying § 1491(b)(1). Our predecessor court, the United
States Court of Claims,6 first recognized a type of bid
5 We noted that we would “not revisit [or] . . . require
additional briefing on the issues of task bar under the Fed-
eral Acquisition Streamlining Act of 1994 (FASA),
10 U.S.C. § 3406(f); subject matter jurisdiction under
28 U.S.C. § 1491(b)(1); and timeliness of claims under Blue
& Gold Fleet, L.P. v. United States, 492 F.3d 1308
(Fed. Cir. 2007).” Percipient.ai, 121 F.4th at 1312.
6 When Congress enacted the Federal Courts Im-
provement Act of 1982, Congress abolished the Court of
Claims and the Court of Customs and Patent Appeals and
replaced them with our court, the United States Court of
Appeals for the Federal Circuit, which inherited the appel-
late jurisdiction of the predecessor courts, and the United
States Claims Court (later renamed the United States
Court of Federal Claims) which inherited the trial jurisdic-
tion of the Court of Claims. Matthew H. Solomson, Court of
Federal Claims: Jurisdiction, Practice, and Procedure
ch. 1, § VII (2022) (ebook). The holdings of the Court of
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PERCIPIENT . AI , INC. v. US 7
protest cause of action in Heyer Products Co. v. United
States, 140 F. Supp. 409 (Ct. Cl. 1956). In that case, the
plaintiff, Heyer, had submitted a bid on a government con-
tract, but the government awarded the contract to a differ-
ent bidder who had submitted a higher bid. Heyer believed
that the government’s failure to award the contract to
Heyer was the result of deliberate retaliation against
Heyer. The government moved to dismiss the petition for
lack of standing. The Court of Claims acknowledged that
the law at the time recognized no cause of action in bid pro-
test cases, stating:
It has been settled beyond controversy that most
statutes governing the awarding of bids by govern-
mental agencies are enacted for the benefit of the
public who are served by these agencies, and not
for the benefit of the bidders, and, therefore, that
bidders have no right to sue on the ground that the
provisions of such an Act have been violated, in
that the contract had not been let to the lowest bid-
der. . . . [I]t is only the public who has a cause for
complaint, and not an unsuccessful bidder.
Id. at 412 (collecting cases). But the court nonetheless rec-
ognized a cause of action arising out of an implied contract
theory, over which it has jurisdiction pursuant to the
Tucker Act. Id. at 412–13; 28 U.S.C. § 1491(a). The court
explained that “[i]t was an implied condition of the request
for offers that each of them would be honestly considered,
and that that offer which in the honest opinion of the con-
tracting officer was most advantageous to the Government
would be accepted.” Heyer, 140 F. Supp. at 412. Because
Claims and the Court of Customs and Patent Appeals are
binding as precedent on this court. S. Corp. v. United
States, 690 F.2d 1368, 1370 (Fed. Cir. 1982).
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PERCIPIENT. AI , INC. v. US 8
the implied contract was broken, Heyer could maintain an
action for damages for its breach. Id. at 413.
The Court of Claims imposed certain restrictions on
this type of cause of action, 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.
Id. at 414. Essentially, a plaintiff had to show that the bids
“were not invited in good faith.” Id.
A cause of action in the district courts was first recog-
nized in Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d
859 (D.C. Cir. 1970). There, the United States Court of Ap-
peals for the District of Columbia Circuit considered, as a
matter of first impression, “[w]hether a frustrated bidder
for a government contract has standing to sue, alleging il-
legality in the manner in which the contract was let.” Id.
at 861. The court examined early landmark federal stand-
ing cases and determined that Congress had legislatively
reversed the Supreme Court’s decision in Perkins v. Lukens
Steel Co., 310 U.S. 113 (1940), “in which the Public Con-
tracts Act was interpreted to be an enactment for the pro-
tection of the government rather than for those contracting
with the government,” with the enactment of the Adminis-
trative Procedure Act. Scanwell, 424 F.2d at 866–67. The
court held that “one who makes a prima facie showing al-
leging [arbitrary or capricious abuses of discretion] on the
part of an agency or contracting officer has standing to sue
under section 10 of the Administrative Procedure Act.” Id.
at 869.
Soon thereafter, the Court of Claims similarly ex-
panded its own interpretation of its bid protest jurisdiction
in Keco Industries, Inc. v. United States, 428 F.2d 1233
(Ct. Cl. 1970). The court stated: “[A]s a result of Scanwell
a party, who can make a prima facie showing of arbitrary
and capricious action on the part of the Government in the
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PERCIPIENT . AI , INC. v. US 9
handling of a bid situation, does have standing to sue.” Id.
at 779. The court also determined that Heyer was not lim-
ited to instances where “there was strong evidence of bad
faith and intentional fraud on the part of the Government;”
instead, it stated a “broad general rule which is that every
bidder has the right to have his bid honestly considered by
the Government, and if this obligation is breached, then
the injured party has the right to come into court to try and
prove his cause of action.” Id. at 779–80.
In 1982, Congress enacted the Federal Courts Improve-
ment Act (FCIA), which amended the Tucker Act and gave
the Court of Federal Claims the statutory authority to de-
cide certain bid protest matters. Pub. L. No. 97-164, § 133,
96 Stat. 25, 40 (1982) (codified before repeal at 28 U.S.C.
§ 1491(a)(3)), repealed by Administrative Dispute Resolu-
tion Act of 1996 (ADRA), Pub. L. No. 104-320, sec. 12,
110 Stat. 3870, 3874–76. Specifically, “[t]o afford complete
relief on any contract claim brought before the contract is
awarded,” the Court of Federal Claims was granted “exclu-
sive jurisdiction to grant declaratory judgments and such
equitable and extraordinary relief as it deems proper, in-
cluding but not limited to injunctive relief.” Id. (emphases
added). But FCIA did not alter jurisdiction in the district
courts to hear post-award challenges. The House Commit-
tee Report stated: “It is not the intent of the Committee to
change existing caselaw as to the ability of parties to pro-
ceed in the district court pursuant to the provisions of the
Administrative Procedure Act in instances of illegal agency
action.” H.R. Rep. No. 97-312, at 43 (1981).
This was the state of bid protest standing before the
enactment of § 1491(b)(1). In the Court of Federal Claims,
“disappointed bidders or their equivalents,” Motorola, Inc.
v. United States, 988 F.2d 113, 115 (Fed. Cir. 1993), in the
“zone of active consideration,” C.A.C.I., Inc.-Fed. v. United
States, 719 F.2d 1567, 1574–75 (Fed. Cir. 1983), had stand-
ing to bring a bid protest in the pre-award context under
an implied-in-contract theory, Am. Fed’n. of Gov’t. Emps.,
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PERCIPIENT. AI , INC. v. US 10
AFL-CIO v. United States, 258 F.3d 1294, 1297–98
(Fed. Cir. 2001) (AFGE). In the federal district courts, “dis-
appointed bidders could . . . challenge contract awards . . .
for alleged violations of procurement laws or regulations,
or for lack of rationality” in the post-award context under
the APA. Impresa Construzioni Geom. Domenico Garufi v.
United States, 238 F.3d 1324, 1331 (Fed. Cir. 2001); see
also, e.g., Diebold v. United States, 947 F.2d 787, 790
(6th Cir. 1991); Ulstein Mar., Ltd. v. United States,
833 F.2d 1052, 1057 (1st Cir. 1987).
The disparate procedural pathways between the Court
of Federal Claims and the district courts created jurisdic-
tional non-uniformity in bid protests. In 1990, Congress di-
rected the Department of Defense to establish an advisory
panel and evaluate the acquisition laws applicable to the
Department of Defense. National Defense Authorization
Act for Fiscal Year 1991, Pub. L. 101-510, Title VIII,
sec. 800, 104 Stat. 1485, 1587 (1990) (codified before repeal
at 10 U.S.C. § 2301), repealed by Federal Acquisition
Streamlining Act of 1994, Pub. L. 103-355, Title I,
§ 1501(a), 108 Stat. 3243, 3296. The resulting panel report
and recommendations stated that “protests in the Court of
Federal Claims have been enmeshed in an endless web of
jurisdictional issues.” Streamlining Defense Acquisition
Laws, Report of the Acquisition Law Advisory Panel to the
United States Congress, at 1-258 (1993) (Panel Report).
The Panel Report highlighted two problems: (1) “whether
the Court of Federal Claims has exclusive jurisdiction over
pre-award bid protests or whether its pre-award jurisdic-
tion is concurrent with the district courts”; and
(2) “whether the Court of Federal Claims has jurisdiction
over the type of agency wrongdoing for which the [Govern-
ment Accountability Office (GAO)] and the [General Ser-
vices Administration Board of Contract Appeals (GSBCA)]
customarily grant relief.” Id. As to the first issue, the Panel
Report noted that there were “unresolved conflicts between
the courts in different parts of the country on whether the
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PERCIPIENT . AI , INC. v. US 11
Court of Federal Claims is the exclusive judicial forum to
consider pre-award bid protests.” Id. As to the second issue,
the GAO and GSBCA were two other venues that could
hear bid protests, and it was unclear whether the Court of
Federal Claims had concurrent jurisdiction to consider the
types of cases heard by these forums too. Id. at 1-259.
The Competition in Contracting Act of 1984 (CICA) au-
thorized an “interested party” to file some bid protests be-
fore the GSBCA (i.e., those under the Brooks Act) that
challenged “any decision by a contracting officer alleged to
violate a statute or regulation” “in connection with any pro-
curement.” Pub. L. No. 98-369, tit. VII, sec. 2713, 98 Stat.
1175, 1182–84 (amending the Brooks Act, Pub. L. No.
89-306, 79 Stat. 1127 (1965)) (codified with other amend-
ments before repeal at 40 U.S.C. § 759(f)(1), definitions of
“protest” and “interested party” codified at § 759(9)(A),
(9)(B)), repealed by National Defense Authorization Act for
Fiscal Year 1996, Pub. L. No. 104-106, sec. 5101, 110 Stat.
186, 680. CICA expressly defined “interested party” as “an
actual or prospective bidder or offeror whose direct eco-
nomic interest would be affected by the award of the con-
tract or by failure to award the contract.” Id. sec. 2713,
98 Stat. at 1183–84.
CICA also provided that an “interested party” could file
protests with the GAO, and the Comptroller General had
authority to decide “[a] protest concerning an alleged viola-
tion of a procurement statute or regulation.” Id. sec. 2741,
98 Stat. at 1199–203 (codified at 31 U.S.C. §§ 3551–56).
Here too, “interested party” was defined as “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.” Id.
The Panel Report noted that it was unclear whether
the Court of Federal Claims had subject matter jurisdiction
to consider the types of agency wrongdoing that the
GSBCA and GAO could grant relief for. See Panel Report
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PERCIPIENT. AI , INC. v. US 12
at 1-259. It also noted that the jurisdiction of the Court of
Federal Claims was “severely limited by the need to find
that the Government breached [an] implied contract.” Id.
Because the implied contract arose only when bids or pro-
posals were submitted, the Panel Report stated that many
protests that were considered by other forums could not be
heard by the Court of Federal Claims. Id. In an effort to
reduce the complexities and delays arising out of having
disparate judicial systems, the Panel Report recommended
that the “[t]he Court of Federal Claims should be the single
judicial forum with jurisdiction to consider all bid protests
that can now be considered by any of the district courts or
by the Court of Federal Claims.” Id. at 1-261 (emphasis
omitted). The Panel Report also recommended that the
Court of Federal Claims’ “jurisdiction should, as much as
possible, parallel that of the GAO and the GSBCA in order
to avoid both the forum shopping and type of confusion that
has occurred in the past.” Id. at 1-265. The Panel Report
specifically recommended that “[t]he statute should be
amended to provide that only interested parties, as defined
by [CICA], can file protests.” Id. at 1-266.
In 1996, Congress, aware of the Panel Report’s recom-
mendations, amended the Tucker Act again with the enact-
ment of ADRA. Pub. L. No. 104-320, sec. 12, 110 Stat.
at 3874; see AFGE, 258 F.3d at 1300. As part of the amend-
ment, Congress enacted § 1491(b), which gave the Court of
Federal Claims a new independent jurisdictional grant
specifically for bid protest claims. ADRA sec. 12(a),
110 Stat. at 3874 (provision titled “Bid Protests”). ADRA
provided the Court of Federal Claims and the district
courts with concurrent jurisdiction over bid protest actions,
id. sec. 12(a), § 1491(b)(1), 110 Stat. at 3874, but included
a sunset provision so that the district courts’ jurisdiction
over bid protests would terminate on January 1, 2001, id.
sec. 12(d), 110 Stat. at 3875. See Impresa Construzioni,
238 F.3d at 1332. It also eliminated the pre- and post-
award dichotomy between the Court of Federal Claims and
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PERCIPIENT . AI , INC. v. US 13
the district courts by extending the Court of Federal
Claims’ jurisdiction “without regard to whether suit is in-
stituted before or after the contract is awarded.” ADRA,
sec. 12(a), § 1491(b)(1), 110 Stat. at 3874.
Much of the language within § 1491(b) tracked the lan-
guage in CICA, specifically allowing an “interested party”
to challenge “a solicitation” or “a proposed award or the
award of” a contract, CICA, sec. 2713, 98 Stat. at 1183–84,
and mirroring the type of review available to the GSBCA
and GAO, id. secs. 2713, 2741(a), 98 Stat. at 1183–84,
1199. Further, at the time of ADRA’s enactment, the
Brooks Act included language giving the GSBCA the au-
thority to review “any decision by a contracting officer that
is alleged to violate a statute, a regulation, or the condi-
tions of a delegation of procurement authority,” which is
similarly reflected in the language of § 1491(b). Federal Ac-
quisition Streamlining Act of 1994, Pub. L. No. 103-355,
sec. 1432, 108 Stat. 3243, 3291 (codified before repeal at
40 U.S.C. § 759), repealed by National Defense Authoriza-
tion Act for Fiscal Year 1996, sec. 5101, 110 Stat. at 680.
Senator Cohen, who offered the amendment, stated
that the goal of the provision was to “expand the bid protest
jurisdiction of the Court of Federal Claims,” with a sunset
provision allowing concurrent jurisdiction for a limited pe-
riod, in order to remedy the “overlapping authority” issue
between the Court of Federal Claims and the district courts
that “led to forum shopping and . . . resulted in unneces-
sary and wasteful litigation over jurisdictional issues.”
142 Cong. Rec. S11848–49 (daily ed. Sept. 30, 1996) (state-
ment of Sen. William Cohen). He also quoted the recom-
mendations from the Panel Report that urged adoption of
one judicial system to consider bid protests. Id. at S11849.
The goal of the amendment was therefore, in essence, to
close a procedural loophole and consolidate both pre- and
post- award bid protests into one forum—the Court of Fed-
eral Claims.
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PERCIPIENT. AI , INC. v. US 14
II
We review the “Court of Federal Claims’ decisions de
novo for errors of law, and for clear error on findings of
fact.” Anaheim Gardens v. United States., 444 F.3d 1309,
1314 (Fed. Cir. 2006). Dismissals, both for lack of subject
matter jurisdiction and for failure to state a claim, are re-
viewed de novo. Taylor v. United States, 959 F.3d 1081,
1086 (Fed. Cir. 2020). We can affirm a dismissal “on any
ground supported by the record.” Wyandot Nation of Kan.
v. United States, 858 F.3d 1392, 1397 (Fed. Cir. 2017).
“Whether a party has standing to sue is [also] a question
that this court reviews de novo.” Prima Tek II, L.L.C. v. A–
Roo Co., 222 F.3d 1372, 1376 (Fed. Cir. 2000).
III
“In construing a statute or regulation, we begin by re-
viewing its language to ascertain its plain meaning.” Am.
Airlines, Inc. v. United States, 551 F.3d 1294, 1299
(Fed. Cir. 2008). Section 1491(b)(1) reads:
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 enter-
tain such an action without regard to whether suit
is instituted before or after the contract is awarded.
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PERCIPIENT . AI , INC. v. US 15
28 U.S.C. § 1491(b)(1) (emphasis added).7
We have long held that the term “interested party” for
bid protests should be limited to actual or prospective bid-
ders or offerors whose direct economic interest would be af-
fected by the award of the contract or by failure to award
the contract. In AFGE, we explained that, in enacting
ADRA, “Congress intended to extend the jurisdiction of the
Court of Federal Claims to include post-award bid protest
cases brought under the APA by disappointed bidders.”
258 F.3d at 1302 (emphasis added). We see no reason to
depart from this settled interpretation.
Even Percipient does not contend that “interested
party” should be reinterpreted for § 1491(b) as a whole, but
only for a part of the provision. Percipient argues that this
statutory provision should be read as containing three
“prongs” which each provide an independent basis for ob-
jection, 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 vio-
lation of statute or regulation in connection with a procure-
ment or a proposed procurement. Appellant’s Opening
Br. 25. Percipient contends that the definition of “inter-
ested party” should change based on the “prong” under
which a party brings a challenge. See id. at 30–31, 34–35.
We disagree that the definition of “interested party”
should change in this way. We see no statutory support for
assigning a different meaning to this single term depend-
ing on how a claimant chooses to style or bring its claim.
7 The sunset provision provided that “[t]he jurisdic-
tion of the district courts of the United States over the ac-
tions described in section 1491(b)(1) of title 28, United
States Code (as amended by subsection (a) of this section)
shall terminate on January 1, 2001 unless extended by
Congress.” ADRA, sec. 12(d), 110 Stat. at 3874–75.
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PERCIPIENT. AI , INC. v. US 16
Section 1491(b) is not written with multiple interested
party provisions; it has one singular interested party. Per-
cipient’s construction would have the same term mean dif-
ferent things in the same sentence. That is not the way
statutory construction is done. Our definition is supported
by the plain text, statutory history, and longstanding in-
terpretation of this term within the judicial system.
A plain reading counsels that a single term carries the
same meaning throughout a single sentence. See Brown v.
Gardner, 513 U.S. 115, 118 (1994) (“[T]here is a presump-
tion that a given term is used to mean the same thing
throughout a statute . . . .”). “[W]here Congress includes
particular language in one section of a statute but omits it
in another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the dis-
parate inclusion or exclusion.” Barry v. McDonough,
101 F.4th 1348, 1356 (Fed. Cir. 2024) (quoting Russello v.
United States, 464 U.S. 16, 23 (1983)). Congress could have
indicated that “interested party” should be read differently
and have different meanings throughout this single statu-
tory sentence. But it did not. Without express guidance
from Congress, it contradicts the plain text of the statute
to alter the meaning of a single antecedent term within a
single sentence in the way Percipient proposes.
Further, despite Percipient’s wish to divide the statute
into three “prongs,” there is no indication that the statute
is separable in this manner—especially since § 1491(b)(1)
is not so divided. Congress used a single, unbroken, and
undivided sentence. Dividing this single sentence and im-
parting different definitions for a single term within each
artificial division contravenes the plain text of the statute.
Additionally, Percipient’s proposed interpretation is not
supported by the statutory history.
IV
“Where Congress employs a term of art obviously
transplanted from another legal source, it brings the old
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PERCIPIENT . AI , INC. v. US 17
soil with it.” George v. McDonough, 596 U.S. 740, 746
(2022) (cleaned up). “Congress was not writing on a blank
slate when it enacted § 1491(b)(1),” Government’s Re-
sponse Br. 25, but against the backdrop of decades of gov-
ernment contract law developed by the Court of Federal
Claims or its predecessor, the district courts, and relevant
government agencies. The term “interested party” carries
the context imparted by the history of bid protest cases and
prior statutes.
In AFGE, we interpreted § 1491(b) and considered
“whether Congress intended to expand the class of parties
who can bring bid protest actions in the Court of Federal
Claims,” 258 F.3d at 1300, and determined that “interested
party” carried forward the definition from CICA and is
therefore limited to “actual or prospective bidders or offe-
rors whose direct economic interest would be affected by
the award of the contract or by failure to award the con-
tract.” Id. at 1302; see id. at 1301–02.
Indeed, the now-repealed Brooks Act, which was in ef-
fect while § 1491(b) was being drafted, gave the GSBCA ju-
risdiction over bid protests related to automated data
processing equipment procurements by “an interested
party in connection with any procurement . . . subject to
this section,” 40 U.S.C. § 759(f)(1) (repealed 1996), and in-
cluded the same definition for “interested party” as in
CICA, compare id. § 759(f)(9)(B) (repealed 1996) (defining
“interested party” as “an actual or prospective bidder or of-
feror whose direct economic interest would be affected by
the award of the contract or by failure to award the con-
tract.”), with CICA, sec. 2741(a), § 3551(2), 98 Stat. at 1199
(same definition for purposes of bid protests before the
GAO). This evinces a consistent usage of the term “inter-
ested party” throughout the statutory scheme as to the
Court of Federal Claims and its predecessor the Court of
Claims and indicates that the context of the term “inter-
ested party” had a specific understood meaning in the pro-
curements sphere at the time that § 1491(b) was drafted.
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PERCIPIENT. AI , INC. v. US 18
The usage of the CICA definition of “interested party” in
the Brooks Act reinforces that Congress understood and in-
tentionally brought that specific definition into the Court
of Federal Claims’ jurisdiction. This is especially so in light
of the Brooks Act’s authorization for the GSBCA to “re-
view . . . any decision by a contracting officer that is alleged
to violate a statute [or] regulation” “in connection with any
procurement that is subject to this section,” 40 U.S.C.
§ 759(f)(1) (repealed 1996), which mirrors the language
Congress used in the third part of § 1491(b)(1). This conti-
nuity shows that Congress had already permitted an “in-
terested party,” in at least one other statutory context, to
challenge the violation of another statute or regulation in
connection with a procurement—a decision they chose to
make again in § 1491(b)(1). Absent any indication of alter-
native Congressional intent, the old term of art still means
something, and this understood meaning should be con-
served and carried forward into ADRA.8 See, e.g., United
States v. Davis, 588 U.S. 445, 458 (2019) (“[W]e normally
presume that the same language in related statutes carries
a consistent meaning.”); Azar v. Allina Health Servs.,
587 U.S. 566, 574 (2019) (“This Court does not lightly
8 Moreover, the dissent suggests that we “ignore”
statutory language in so-called prong 3 by not extending
the definition of “interested party” beyond its historical
meaning. Dissent at 6–7. Not so. As we demonstrate above,
that language (which mirrors Brooks Act language) pro-
vides different grounds to challenge procurement deci-
sions. The dissent would conclude that even though
Congress used the same statutory term, “interested party,”
coupled with almost identical language about statutory
challenges lifted from the Brooks Act, that Congress sub
silentio intended to change the long-standing definition of
that term.
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PERCIPIENT . AI , INC. v. US 19
assume that Congress silently attaches different meanings
to the same term in the same or related statutes.”).
There 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. Instead,
the history, see supra Section I.B, shows that there was ju-
risdictional confusion in where to bring a bid protest be-
cause 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 Fed-
eral Claims.
In fact, the statutory history indicates that Congress
considered and rejected including subcontractors as inter-
ested parties in both CICA and the Brooks Act. With re-
spect to CICA, Congress initially contemplated a broader
definition of who could protest as an interested party, spe-
cifically “a person whose direct economic interest would be
affected as contractor or subcontractor.” H.R. 5184, 98th
Cong. § 204(g)(2) (1984) (emphasis added). But ultimately,
CICA as enacted did not include this language. See
40 U.S.C. § 759(f)(9)(B) (repealed 1996); US W. Commc’ns
Servs., Inc. v. United States, 940 F.2d 622, 628 (Fed. Cir.
1991) (“CICA, as enacted, provided for protest ‘to a solici-
tation by a Federal agency’ and all references that would
have permitted subcontractors to protest were deleted.”).
Similarly, regarding the Brooks Act, it is particularly
compelling that Congress specifically considered more ex-
pansive language that would align with Percipient’s pro-
posed definition and expressly rejected the expansion. In
particular, the House of Representatives proposed amend-
ing the definition of “interested party” to permit protests
by subcontractors because “[t]he Committee [on Govern-
ment Operations] ha[d] become concerned in recent years
that restrictive specifications may sometimes go
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PERCIPIENT. AI , INC. v. US 20
unchallenged, especially in [certain] procurements, when
prospective prime contractors have no incentive to protest.”
H.R. Rep. No. 102-364, at 32 (1991). The proposed language
would have added the following to the definition of “inter-
ested party”: “a prospective subcontractor whose economic
interest would be affected, as determined by the [GSBCA],
by specifications in any solicitation or other request for
bids, proposals, or offers subject to this section that are al-
leged to be restrictive of competition.” Id. at 12; see also id.
at 48 (observing that the proposed amendment would
change the requirement that a party have a “direct eco-
nomic interest” to the requirement that a party have an
“‘economic interest’ that, ‘as determined by the [GSBCA],’
would be affected by (1) any action that could be the subject
of a protest or (2) any relief that the Board could order, in-
cluding, for example, resolicitation, in connection with a
protest”). The House Report expressly noted that, under
this expanded definition, “[a] vendor that is a prospective
subcontractor would be an ‘interested party’ only if protest-
ing restrictive specifications.” Id. But the House Report
also noted “concern[s] about the expansion of the definition
of ‘interested party’ contained in the proposed amendments
to the definitional section of the Brooks Act.” Id. at 80. This
portion of the report recognized that “increasing the num-
ber of possible protestors . . . would further complicate. . .
procurements and . . . increase the opportunity for de-
lay . . . because the legislation would grant a greater num-
ber of firms a legally recognized interest in any given . . .
procurement.” Id. It further noted that this “proposed ex-
pansion of the definition of ‘interested party’ would also be
inconsistent with existing procurement law.” Id. (emphasis
added). And it concluded by stating that “the grant of such
a right is wholly unnecessary, given that current law au-
thorizes the filing of a protest by ‘an actual or prospective
bidder or offeror.’” Id. at 80–81 (quoting 40 U.S.C.
§ 759(f)(9)(B)).
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PERCIPIENT . AI , INC. v. US 21
The statutory history of these other provisions provides
additional context as to Congress’ intentions in enacting
ADRA.9 Congress had already considered, and rejected, the
notion of allowing subcontractors to have standing in bid
protests at the Court of Federal Claims and its predecessor
court. Congress specifically chose to incorporate the term
“interested party,” which had a settled meaning within the
government contracts space. And there is no indication in
the statutory history of ADRA that Congress reversed
course and decided to markedly expand the identities of the
parties who could sue under its provisions. Indeed, it sup-
ports the conclusion that “interested party” carries not only
the same meaning throughout the statutory sentence, but
throughout an entire statutory scheme covering the juris-
diction of the Court of Federal Claims and its predecessor
court.
Finally, Congress specifically chose to use the term “in-
terested party” when defining the category of persons who
have standing, which as demonstrated above, had a well-
known meaning in procurement law. If Congress had in-
tended to expand standing in the procurement context, it
could have invoked the broad language of the APA and ex-
tended standing to “[a] person suffering legal wrong be-
cause of agency action, or adversely affected or aggrieved
by agency action.” 5 U.S.C. § 702. But Congress did not.
9 The dissent attempts to distinguish the extensive
statutory history here regarding “interested party” and re-
peatedly emphasizes that “interested party,” as used in
CICA and the Brooks Act, only applied to contractors or
proposed contracts. Dissent at 5. But that only reinforces
our point. Congress enacted ADRA in the backdrop of a rich
history, including the history of CICA and the Brooks Act,
and repeatedly chose not to expand jurisdiction to subcon-
tractors.
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PERCIPIENT. AI , INC. v. US 22
Instead, Congress explicitly invoked the APA only in defin-
ing ADRA’s standard of review, but not for its party stand-
ing requirements. See AFGE, 258 F.3d at 1302 (quoting
28 U.S.C. § 1491(b)(4)) (“In any action under this subsec-
tion, the courts shall review the agency’s decision pursuant
to the standards set forth in [APA] section 706 . . . .”).
V
The definition set forth by Percipient, which largely
tracks the broader APA standard, is that the term “inter-
ested party” must include any directly injured party who
could have offered its product or service to meet the needs
of the agency but for that agency’s alleged legal violation.
Appellant’s Opening Br. 25–26. That interpretation is
countertextual, unsupported by the statutory history, and
contravenes our long-standing precedent as to the Court of
Federal Claims and its predecessor court.
A
Despite Percipient’s contention that a definition of “in-
terested party” that limits standing to actual or prospective
bidders or offerors “render[s] the third prong superfluous
in violation of basic canons of statutory construction,” Ap-
pellant’s Opening Br. 30, many cases show that the so-
called “third prong” has independent force.
The addition of the third part of the statutory sentence
clarified that bid protest jurisdiction extends beyond chal-
lenges to just the solicitation and the award. See OTI Am.,
Inc. v. United States, 68 Fed. Cl. 108, 113 (2005) (“[T]he
first two categories of this court’s bid-protest jurisdiction, a
pre-award protest or a post-award protest, are well recog-
nized and relatively standard proceedings. The third cate-
gory of this court’s bid-protest jurisdiction is more
amorphous and indefinite . . . .”). This court and the Court
of Federal Claims have noted repeatedly that the third part
permits bid protests to challenges of statutes and regula-
tions that do not fit neatly within the solicitation or award
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PERCIPIENT . AI , INC. v. US 23
boxes of the first two parts. For instance, in RAMCOR Ser-
vices Group, Inc. v. United States, we recognized that the
third part provided jurisdiction to consider challenges to
GAO override decisions, because “[a]s long as a statute has
a connection to a procurement proposal, an alleged viola-
tion suffices to supply jurisdiction” under the third part.
185 F.3d 1286, 1289 (Fed. Cir. 1999) (further discussing
that “[the override statute] fits comfortably in that broad
category.”). In OTI, the Court of Federal Claims stated that
the third part of § 1491(b)(1) “is not limited to override
cases.” 68 Fed. Cl. at 114.
Similarly, we have recognized jurisdiction in protests
involving challenges brought solely under the third part of
the statutory sentence. For example, in Distributed Solu-
tions, Inc. v. United States, we considered whether the con-
tractors involved had standing to challenge the
government’s decision “to for[]go the direct competitive pro-
curement process.” 539 F.3d 1340, 1345 (Fed. Cir. 2008).
The contractors alleged violations of CICA, the Small Busi-
ness Act, 15 U.S.C. § 631(j)(3), and various Federal Acqui-
sition Regulations. Id. Even though there was no
solicitation to challenge, we concluded that “[t]here is no
question that the contractors here are interested parties
and not mere ‘disappointed subcontractors’ without stand-
ing” because the contractors were prospective bidders and
“prepared to submit bids” in response to the anticipated re-
quest for quotation or proposal. Id. at 1344–45.
Indeed, there are many other cases where courts have
applied the CICA definition of interested party standing to
bid protests involving alleged regulatory or statutory vio-
lations. See Acetris Health, LLC v. United States, 949 F.3d
719, 727 (Fed. Cir. 2020) (discussing that “[the contractor]
has standing because the government has taken a defini-
tive position as to the interpretation of the [Trade Agree-
ments Act of 1979] and the [Federal Acquisition
Regulation] that would exclude [the contractor] from future
procurements for other products on which it is a likely
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PERCIPIENT. AI , INC. v. US 24
bidder”); Oak Grove Techs., LLC v. United States, 116 F.4th
1364, 1372–73, 1376 (Fed. Cir. 2024) (involving a challenge
to an agency’s resolution of an alleged Procurement Integ-
rity Act violation or organizational conflict of interest de-
termination); CliniComp Int’l, Inc. v. United States,
904 F.3d 1353, 1357–58 (Fed. Cir. 2018) (involving a pre-
award challenge to a sole-source determination based on
an alleged violation of CICA); Sys. Application & Techs.,
Inc. v. United States, 691 F.3d 1374, 1381–82 (Fed. Cir.
2012) (involving a challenge to the scope of an agency’s cor-
rective action based on “alleged violations of statutes and
regulations governing the procurement process”); Land
Shark Shredding, LLC v. United States, 842 F. App’x 589,
592 (Fed. Cir. 2021) (involving a challenge to the cancella-
tion of a procurement based on an alleged violation of the
Rule of Two under 38 U.S.C. § 8127(d)); Labat–Anderson,
Inc. v. United States, 346 F. Supp. 2d 145, 148, 152–54
(D.D.C. 2004) (involving a challenge to agency decision to
convert services to in-house personnel alleging a violation
of Department of Defense procurement regulations and
discussing that the clause in the third part of § 1491(b)(1)
is broad and sweeping in scope); Advanced Sys. Tech., Inc.
v. Barrito, No. CIV.A. 05-2080ESH, 2005 WL 3211394,
at *6 (D.D.C. Nov. 1, 2005) (involving a challenge to Small
Business Administration code designation that prevented
contractor from bidding for two Army solicitations and
finding that “APA jurisdiction over bid protests no longer
exists and find[ing] that this case falls within the broad pa-
rameters of Court of Federal Claims jurisdiction estab-
lished by the ADRA with respect to procurement
disputes”).
These cases demonstrate that the third part of
§ 1491(b) has independent force under the existing under-
stood definition of who is an “interested party.” Thus, there
is no risk of superfluity in reinforcing that the definition of
“interested party” remains consistent throughout the stat-
utory sentence.
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PERCIPIENT . AI , INC. v. US 25
B
Percipient argues, however, that the amendments to
§ 1491 were designed to give the Court of Federal Claims
the same jurisdiction as the district courts enjoyed under
the Scanwell line of cases, and that those cases recognize
subcontractor jurisdiction.
As discussed earlier, we recognize that there is a
longstanding understanding that Congress legislates
against the backdrop of preexisting law, unless the statute
otherwise dictates. See Nationwide Mut. Ins. Co. v. Darden,
503 U.S. 318, 322–323 (1992). But contrary to Percipient’s
suggestion that the district courts’ former Scanwell juris-
diction under the APA was broad enough to encompass its
claim, see Appellant’s Opening Br. 6–7 (“Nothing suggests
that the [Court of Federal Claims’] jurisdiction would be in
any way narrower than the jurisdiction previously exer-
cised by the district courts under the APA.”), the Scanwell
line of cases does not support reading subcontractor stand-
ing into § 1491(b)(1).10 And to the extent that Scanwell
could be interpreted to carry a broader interpretation, the
extensive history described above is a strong indication
that Congress did not intend to adopt the broader APA
standard for standing.
Scanwell framed the pertinent legal question it ad-
dressed as “[w]hether a frustrated bidder for a government
contract has standing to sue, alleging illegality in the
10 Percipient also makes the argument that “nothing
about [its] challenge would require it to be a subcontrac-
tor.” Appellant’s Opening Br. 42. But Percipient acknowl-
edges that it did not bid on the SAFFIRE contract.
Therefore, even if it is not a “subcontractor,” Percipient is
also not an actual or prospective bidder or offeror and con-
sequently does not have standing.
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PERCIPIENT. AI , INC. v. US 26
manner in which the contract was let.” Scanwell, 424 F.2d
at 861 (emphasis added). There, the Federal Aviation Ad-
ministration invited bids for the installation of instrument
landing systems at airports. Id. at 860. The appellant, who
was a contractor, had the second-lowest bid, and alleged
that the contractor who had the lowest bid, and was subse-
quently awarded the contract, did not meet the require-
ments laid out in the procurement. Id at 860–61. The
district court determined that the appellant had standing
under the APA standard, even though it noted that “[t]he
law of standing is fundamentally artificial to the extent
that one who is in fact harmed by administrative action is
held to lack standing to challenge the legality of the action.”
Id. at 873. Furthermore, Scanwell only recognized that a
frustrated bidder had standing, not that mere disappointed
subcontractors had standing.
And the line of cases in the district courts and regional
circuits relying on Scanwell did not involve, or even dis-
cuss, disappointed subcontractors either. See B.K. Instru-
ment, Inc. v. United States, 715 F.2d 713, 718 (2d Cir. 1983)
(referencing Scanwell’s discussion of the “pertinent legisla-
tive history of the APA which supported a frustrated bid-
der’s standing to seek judicial review”); M. Steinthal & Co.
v. Seamans, 455 F.2d 1289, 1291, 1305 (D.C. Cir. 1971) (re-
versing the district court’s permanent injunction prevent-
ing the agency from awarding a contract to any bidder
other than the appellant contractor, but noting that “[w]e
do not recede from our expression in Scanwell of the bene-
ficial purposes served by frustrated bidders who, as ‘pri-
vate attorney generals,’ can aid in furthering the public
interest in the integrity of the procurement process”);
Mgmt. Sci. Am., Inc. v. Pierce, 598 F. Supp. 223, 228–30
(N.D. Ga. 1984), aff’d sub nom. Mgmt. Sci. v. Pierce,
778 F.2d 792 (11th Cir. 1985) (discussing the line of “frus-
trated bidder” cases and differentiating them from causes
of action involving a government contractor and stating
that “the jurisdiction of the district courts which Congress
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PERCIPIENT . AI , INC. v. US 27
explicitly avoided disturbing in the FCIA extends only to
frustrated bidder cases under Scanwell”); Dial One Frank-
lynn Pest Control Co., Inc. v. U.S. Dep’t. of Navy, No. CIV.
A. 92-3223, 1993 WL 139430 at *4 (E.D. La. Apr. 28, 1993)
(describing this case as a “frustrated bidder” case and not-
ing that the plaintiff attempted to invoke the jurisdiction
“limited to that exercised in the Scanwell line of cases re-
garding ‘frustrated or disappointed bidders’”); Env’t. Tec-
tonics Corp. v. Robinson, 401 F. Supp. 814, 815 (D.D.C.
1975) (describing Scanwell as holding that “a frustrated
bidder had standing to petition and the court to declare a
contract null and void”); Info. Sys. & Networks Corp. v. U.S.
Dep’t of Health & Hum. Servs., 970 F. Supp. 1, 6 (D.D.C.
1997) (differentiating the case at hand, which involved a
plaintiff complaining of wrongful termination of its own
contract, from “disappointed” or “frustrated” bidder actions
involving contractors seeking to void the award of a con-
tract to another).
To the extent that there are isolated cases in which
subcontractors brought challenges to bid protests in dis-
trict court, the courts’ analysis focused on the closeness of
the relationship between the government and the prime
contractor and relied primarily on the consideration that
the prime contractor was essentially an agent of the gov-
ernment, not that a subcontractor lacking privity with the
government independently had standing to sue. See, e.g.,
Lombard Corp. v. Resor, 321 F. Supp. 687, 690 (D.D.C.
1970) (focusing primarily on the fact that Chamberlain, the
prime contractor, was “something more” than an independ-
ent contractor, and evidence suggesting that “Chamberlain
considered itself an agent for at least some purposes while
making the procurement”); Am. Dist. Tel. v. Dep’t of En-
ergy, 555 F. Supp. 1244, 1244 (D.D.C. 1983) (describing de-
fendant Morrison-Knudsen Company as the agent of the
Department of Energy and characterizing plaintiff Ameri-
can District Telegraph as a “disappointed bidder”); see also
Bayou State Sec. Servs., Inc. v. Dravo Util. Constructors,
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PERCIPIENT. AI , INC. v. US 28
Inc., 674 F.2d 325, 328–29 (5th Cir. 1982) (declining to ad-
dress the subcontractor standing issue because the plain-
tiff’s challenge was not meritorious).
There is no definitive authority that subcontractors
could bring actions to challenge procurement decisions ab-
sent an agency-like relationship between the prime con-
tractor and the government or greater government
involvement in the selection of the subcontractor, such that
the subcontractor was essentially acting like a prime. See
Amdahl Corp. v. Baldrige, 617 F. Supp. 501, 505 (D.D.C.
1985) (adopting a test from the Comptroller General’s opin-
ion that subcontractor protests are only permitted in five
situations: “(i) when the contractor acted as a purchasing
agent of the government; (ii) where the government has
caused or controlled the rejection or selection of a potential
subcontractor; (iii) where agency bad faith or fraud in the
approval of a subcontractor is demonstrated; (iv) where a
contract was made ‘for’ the government; or (v) where the
agency is entitled to an advance decision” and determining
that the subcontractor involved did not have standing) (cit-
ing Optimum Sys., Inc., 54 Comp. Gen. 767, 773–74
(Mar. 19, 1975)); Rubber Millers, Inc. v. United States,
596 F. Supp. 210, 213 (D.D.C. 1984) (finding no subcon-
tractor standing because Rubber Millers was a “subcon-
tractor [who] has never submitted a bid to the Navy,” and
all “[t]he statutory provisions cited by the plaintiff are di-
rected exclusively at ‘contractors’ and bidders,” not subcon-
tractors); Contractors Eng’rs, Int’l v. Dep’t of Veterans Affs.,
947 F.2d 1298, 1300–02 (5th Cir. 1991) (determining that
the subcontractor did not have standing under the Amdahl
test); Info. Sys. & Networks Corp, 970 F. Supp. at 8 (finding
no standing for the subcontractor under Ahmdahl, and
stating that “subcontractors are not intended for protection
under CICA”); see also Free Air Corp. v. F.C.C., 130 F.3d
447, 450 (D.C. Cir. 1997) (describing Scanwell and other
cases as holding that “sufficiently viable runners-up in a
procurement process have standing to allege that an
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PERCIPIENT . AI , INC. v. US 29
illegality in the process caused the contract to go to some-
one else”). Subcontractors had no independent standing to
bring bid protests in district court under Scanwell; subcon-
tractor standing was recognized in limited circumstances
where there was an agency-like relationship between the
contractor and the government or more direct government
involvement.
Further, even if Scanwell could be read so broadly, the
relevant statutory history strongly demonstrates that Con-
gress intended interested parties to be defined more nar-
rowly. See supra Section IV. And the history of both CICA
and the Brooks Act also supports that Congress explicitly
considered expanding standing to encompass subcontrac-
tors and expressly declined to do so. Congress was aware of
how to invoke the APA standard, as it did for the standard
of review. But Congress specifically chose the term “inter-
ested party” to define party standing. With that selection
of a well-known term, we should not presume that Con-
gress sub silentio intended to adopt the broader APA stand-
ard just because in § 1491(b) it merged the district court’s
prior Scanwell jurisdiction with that of the Court of Fed-
eral Claims.
C
Even if we were mistaken as to the scope of district
court jurisdiction under the APA as reflected in the Scan-
well line of cases, that would at most suggest that subcon-
tractors could have an APA claim in district court to
enforce § 3453, not an action in the Court of Federal Claims
under § 1491. Percipient argues that such a district court
action would defeat the Congressional purpose to place all
bid protest jurisdiction in the Court of Federal Claims.
While that may be a powerful argument as to why there is
not district court APA jurisdiction as to subcontractors,
such a policy argument does not support expanding the ju-
risdiction of the Court of Federal Claims beyond that pro-
vided by Congress.
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PERCIPIENT. AI , INC. v. US 30
In a related argument, Percipient contends that deny-
ing both district courts and the Court of Federal Claims ju-
risdiction to enforce § 3453 would leave subcontractors no
remedy to enforce § 3453, and that just as prime contrac-
tors have a remedy to enforce that statute, see Palantir
USG, Inc. v. United States, 904 F.3d 980 (Fed. Cir. 2018),
so should subcontractors. This is again not a persuasive ar-
gument for expanding the jurisdiction of the Court of Fed-
eral Claims beyond what Congress has prescribed, and it is
not for us to decide whether district courts have jurisdic-
tion over an APA cause of action by subcontractors to en-
force § 3453. We note only that there are other mechanisms
for enforcing the statute as to subcontractors, such as
through protests by prime contractors or joint bids with
other subcontractors so that one would be the prime con-
tractor, and the language of § 3453 does not compel a con-
struction that subcontractors can enforce the statute.
VI
We conclude that an “interested party” who has stand-
ing to bring a bid protest under § 1491(b) is 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, regardless of the type of challenge
brought. We therefore affirm the Court of Federal Claims’
dismissal of Percipient’s protest for lack of standing.
AFFIRMED
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United States Court of Appeals
for the Federal Circuit
______________________
PERCIPIENT.AI, INC.,
Plaintiff-Appellant
v.
UNITED STATES, CACI, INC.-FEDERAL,
Defendants-Appellees
______________________
2023-1970
______________________
Appeal from the United States Court of Federal Claims
in No. 1:23-cv-00028-EGB, Senior Judge Eric G. Bruggink.
______________________
STOLL , Circuit Judge, with whom MOORE, Chief Judge, and
L OURIE and T ARANTO, Circuit Judges, join, dissenting.
The question before the en banc court is simple: “Who
can be ‘an interested party objecting to . . . any alleged vio-
lation of statute or regulation in connection with a procure-
ment or a proposed procurement’” under the Tucker Act,
28 U.S.C. § 1491(b)(1)? Percipient.ai, Inc. v. United States,
121 F.4th 1311, 1312 (Fed. Cir. 2024) (omission in origi-
nal). The majority holds that an “interested party” is lim-
ited to an actual or prospective bidder regardless of the
subject matter of interest. Instead of considering who can
be an interested party “objecting to . . . any alleged viola-
tion of statute or regulation in connection with a procure-
ment or a proposed procurement,” the majority borrows a
definition of interested party that Congress included in a
different statute, the Competition in Contracting Act
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PERCIPIENT. AI , INC. v. US 2
(“CICA”). But that statute does not even include the sub-
ject matter of interest at issue here. Given this difference
in scope between CICA and the Tucker Act, it is not sur-
prising that Congress did not adopt that definition when
enacting the Tucker Act. Respectfully, ignoring statutory
language and adopting a definition that Congress chose not
to adopt cannot be the proper statutory analysis.
Section 1491(b)(1) provides that the Court of Federal
Claims has jurisdiction over an action by “an interested
party objecting to [(1)] a solicitation by a Federal agency for
bids or proposals for a proposed contract or to [(2)] a pro-
posed award or the award of a contract or [(3)] any alleged
violation of statute or regulation in connection with a pro-
curement or a proposed procurement.” 28 U.S.C.
§ 1491(b)(1). Section 1491(b)(1) thus sets forth three types
of objections by an “interested party” over which the Court
of Federal Claims has bid protest jurisdiction, and it does
not define the phrase “interested party.”
Our 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].” See
Am. Fed’n of Gov’t Emps., AFL-CIO v. United States,
258 F.3d 1294, 1302 (Fed. Cir. 2001) (“AFGE”). The major-
ity admits that it defines “interested party” with no regard
for the statutory language “objecting to . . . any alleged vi-
olation of statute or regulation in connection with a pro-
curement or a proposed procurement.” But this important
contextual language should not be ignored. By not asking
who qualifies as “interested” in “any alleged violation of
statute or regulation in connection with a procurement or
a proposed procurement,” the majority fails to adequately
consider and give meaning to the statutory language Con-
gress purposefully chose.
Surely everyone can agree that context matters when
interpreting statutes, see Tyler v. Cain, 533 U.S. 656, 662
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PERCIPIENT . AI , INC. v. US 3
(2001), especially one containing an undefined phrase like
“interested party.” To determine whether a party is an “in-
terested party,” the court must consider the subject of that
party’s interest.1 See Truck Ins. Exch. v. Kaiser Gypsum
Co., 602 U.S. 268, 277–78 (2024); Alleghany Corp. v. Bres-
wick & Co., 353 U.S. 151, 172–73 (1957). Under prong (1),
an interested party is a party with an interest in a solicita-
tion by a federal agency. Under prong (2), an interested
party is a party with an interest in a proposed or actual
award of a contract. Under prong (3), an interested party
is a party with an interest in any alleged violation of a stat-
ute or regulation in connection with a procurement or a
proposed procurement. Logically, an interested party un-
der one prong of § 1491(b)(1) might not qualify as an inter-
ested party under another prong.
The majority takes issue with this logical conclusion.
Maj. Op. at 15. But even the Government agrees that who
qualifies as an interested party depends on the type of ob-
jection made under § 1491(b)(1). The Government con-
ceded that the group of people who would qualify as an
“interested party” would differ for a challenge brought un-
der prong (1) versus prong (2), for example. Oral Arg.
at 48:19–49:31, https://oralarguments.cafc.uscourts.gov/
default.aspx?fl=23-1970_06092025.mp3 (the Government
agreeing that more people could object to a solicitation than
to an award). Indeed, if the challenged agency action is one
specified in prong (1) (“a solicitation by a Federal agency
for bids or proposals for a proposed contract”) then an “in-
terested party” is a would-be bidder. But if the challenged
agency action is one specified in prong (2) (“a proposed
award or the award of a contract”) then an “interested
party” is an actual bidder. The Government’s concession
directly contradicts the majority’s one-size-fits-all
1 Without consideration of the subject of interest,
how would the court know whether a party is interested?
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PERCIPIENT. AI , INC. v. US 4
definition of “interested party.” Maj. Op. at 2 (defining “in-
terested party” as “an actual or prospective bidder or offe-
ror . . . regardless of the type of challenge brought”
(emphasis added)).
Our court has previously addressed the level of interest
required to be an “interested party,” and there is no dispute
here regarding that requirement. We have held that an
“interested party” must have a “direct economic interest
[that] would be affected by the [challenged § 1491(b)(1) ac-
tion].” See AFGE, 258 F.3d at 1302. As explained in
AFGE, where a party challenges a solicitation or contract
award, an “interested party” is 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.” Id. That definition in that context
makes sense. First, in challenges to a solicitation, proposed
award, or award, only a would-be or actual bidder could
have the requisite direct economic interest. Second, given
that prongs (1) and (2) are transplants from CICA, CICA’s
definition of “interested party” (“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,” 31 U.S.C. § 3551(2)(A)) is applicable for chal-
lenges to those agency actions.
The majority errs in this case, however, by borrowing
CICA’s definition of “interested party” for all three types of
§ 1491(b)(1) challenges, thereby limiting “interested party”
for all circumstances to would-be bidders or would-be con-
tractors. Not only did Congress not adopt that definition
when enacting § 1491(b)(1), but that definition on its face
does not apply to the full scope of challenges authorized by
prong (3).
When Congress enacted the Administrative Disputes
Resolution Act of 1996 (ADRA), CICA did not, and it still
does not, contain an actual-or-prospective-bidder definition
for all agency actions that violate a statute or regulation in
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PERCIPIENT . AI , INC. v. US 5
connection with a procurement or proposed procurement—
the scope of prong (3). CICA’s “interested party” definition
expressly confines its application to—i.e., the definition
states it is “with respect to”—“a contract or a solicitation or
other request for offers,” 31 U.S.C. § 3551(2)(A), and thus
is limited on its face to less than the class of challenges au-
thorized by prong (3). See also 31 U.S.C. § 3551(1), (2)
(1994 ed.) (“with respect to a contract or proposed contract
described in paragraph (1)”).2 So, for the general category
of agency actions that are covered only by prong (3), there
was—and still is—nothing to borrow from CICA. Indeed,
applying CICA’s definition of “interested party” in chal-
lenges that can be made under just prong (3) would be in-
compatible with the evident breadth of the language of
prong (3). This is critically important, as it effectively elim-
inates judicial review of alleged violations of the statutory
provisions invoked by Percipient here, enacted by Congress
just two years before ADRA. The majority’s holding im-
properly reads the language from prongs (1) and (2) into
prong (3). Had Congress intended for only a bidder or pro-
spective 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 con-
nection with a proposed award or award of a contract.” In-
stead, it wrote prong (3) more broadly to include “any
alleged violation of statute or regulation in connection with
2 The majority asserts that the use of CICA’s defini-
tion of “interested party” in the now-repealed Brooks Act
(40 U.S.C. § 759 (repealed 1996)) reinforces that Congress
intentionally brought that definition into ADRA. Maj. Op.
at 17–18. We disagree. The Brooks Act defined “interested
party” only “with respect to a contract or proposed con-
tract.” 40 U.S.C. § 759(f)(9)(A)–(B). Accordingly, as is true
for CICA, the Brooks Act did not define who can be an “in-
terested party” to bring all the claims authorized under
prong (3) of § 1491(b)(1).
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PERCIPIENT. AI , INC. v. US 6
a procurement or a proposed procurement.” 28 U.S.C.
§ 1491(b)(1) (emphasis added).
Under the plain language of § 1491(b)(1), an agency ac-
tion that is not a solicitation for bids or a proposed or actual
contract award may be challenged under prong (3) as a “vi-
olation of statute or regulation in connection with a pro-
curement or a proposed procurement.” Id. Where that is
so, the aforementioned justifications for limiting an “inter-
ested party” to an actual or would-be bidder do not apply.
The language for prong (3) is not tied to a solicitation or
contract, and thus an “interested party” for the third type
of challenge under § 1491(b)(1) should not be limited to
parties who would bid on a solicitation or be awarded the
contract. Accordingly, for prong (3) cases like this one, in-
stead of asking whether a party has a direct economic in-
terest in a solicitation, proposed award, or award, the court
must ask whether a party has a direct economic interest in
the agency’s violation of a statute or regulation in connec-
tion with a procurement or proposed procurement. Con-
sistently defining “interested party” as someone with a
“direct economic interest [that] would be affected by the
[challenged § 1491(b)(1) action],” see AFGE, 258 F.3d
at 1302, gives real and consistent meaning to the entire
statutory phrase in § 1491(b)(1), not just prongs (1)
and (2).3
The majority further errs by prioritizing legislative his-
tory of various statutes and ignoring the language of
3 We agree with the majority that a single term gen-
erally carries the same meaning throughout a single sen-
tence. Maj. Op. at 16. Here, the phrase “interested party”
has one meaning—having a direct economic interest that
would be affected by the challenged § 1491(b)(1) action.
This definition properly recognizes that what constitutes
such a direct interest differs according to what precise
agency action is challenged.
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PERCIPIENT . AI , INC. v. US 7
§ 1491(b)(1). See Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546, 568 (2005) (“[T]he authoritative state-
ment is the statutory text, not the legislative history . . . .”).
Even so, the legislative history of § 1491(b)(1) supports a
broader interpretation of “interested party” here.
Before ADRA, the Court of Federal Claims and federal
district courts shared jurisdiction over bid protests, with
the former having jurisdiction over pre-award protests and
the latter having jurisdiction over post-award protests. “It
[was] the intention of [ADRA’s] Managers to give the Court
of Federal Claims exclusive jurisdiction over the full range
of procurement protest cases previously subject to review
in the federal district courts and the Court of Federal
Claims.” H.R. Conf. Rep. No. 104-841, at 10 (1996). As ex-
plained in Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d
859, 869 (D.C. Cir. 1970), the district courts assessed stat-
utory standing under the Administrative Procedure Act
(APA). The Scanwell court held that “one who makes a
prima facie showing alleging [arbitrary or capricious] ac-
tion on the part of an agency or contracting officer has
standing to sue under [the APA].” Id.
We acknowledge that the vast majority of cases
brought under Scanwell were by disappointed bidders. But
ADRA, which gave the Court of Federal Claims exclusive
jurisdiction over the full range of procurement protest
cases, “cannot reasonably be construed to have wholly abol-
ished APA procurement claims that might otherwise have
been brought under Scanwell.” Validata Chem. Servs.
v. U.S. Dep’t of Energy, 169 F. Supp. 3d 69, 84–85 (D.D.C.
2016) (“It is . . . a mistake to equate the ‘vast majority of
cases brought pursuant to Scanwell,’ with all Scanwell
cases.”). Congress intended for ADRA to “consolidate[] fed-
eral court jurisdiction for procurement protest cases,” not
eliminate part of it. H.R. Conf. Rep. No. 104-841, at 9
(1996). Congress is presumed to be aware of Scanwell and
its progeny when it enacted ADRA, see Merck & Co.
v. Reynolds, 559 U.S. 633, 648 (2010), and Congress chose
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PERCIPIENT. AI , INC. v. US 8
not to adopt the limited definition of “interested party”
from CICA when it enacted § 1491(b)(1), even though it
knew how to do so. See Simmons v. Himmelreich, 578 U.S.
621, 627 (2016) (“[W]e presume Congress says what it
means and means what it says.”).4
It is telling that Congress chose not to include CICA’s
definition for “interested party” in § 1491(b)(1). That
choice reflects the broader scope of § 1491(b)(1) due to its
inclusion of prong (3), and the goal of expanding the Court
of Federal Claims’ jurisdiction to include the district courts’
jurisdiction under the APA.5 That choice permits inter-
preting “interested party” in § 1491(b)(1) the same as in
CICA where the object of interest is the same (awards, pro-
posed awards, and solicitations, as in AFGE). But that
choice leaves interpretation of “interested party” in
prong (3) situations, which are not covered by CICA, to in-
clude parties who have a direct economic interest that
would be affected by the alleged “violation of statute or reg-
ulation in connection with a procurement or a proposed
procurement.” 28 U.S.C. § 1491(b)(1).
Because the parallelism between CICA and ADRA
breaks down where a plaintiff’s protest falls under only
prong (3), CICA’s definition of “interested party” should not
4 Indeed, in 2008 when Congress added § 1491(b)(5),
it defined interested party by expressly referencing
CICA: “an interested party described in section 3551(2)(B)
of title 31 shall be entitled to intervene in [this type of] ac-
tion.” 28 U.S.C. § 1491(b)(5). Had Congress intended to
incorporate CICA’s definition of “interested party” into
ADRA, it would have used similar language to expressly do
so. 5 The inclusion of prong (3) challenges in
§ 1491(b)(1) opens the door to new types of challengers hav-
ing the requisite interest in those challenges. Contra Maj.
Op. at 18–19.
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PERCIPIENT . AI , INC. v. US 9
apply to prong (3) challenges like Percipient’s. The major-
ity errs in holding otherwise.
This is a straight-forward statutory interpretation case
with significant impact on the government contracting
community. We respectfully dissent from the judicial nar-
rowing of Congress’ intent, stated clearly in the statutory
language it chose.
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