Court of Federal Claims Holds Non-Bidder Has Standing to Protest Two Years After Contract Award

Last week, on March 9, 2023, in Percipient.ai, Inc. v. United States, the Court of Federal Claims held that Percipient.ai, Inc. (“Percipient”) had standing to protest a National Geospatial-Intelligence Agency (“NGA”) procurement called “SAFFIRE” intended to improve the agency’s production, storage, and integration of geospatial intelligence data.  Percipient’s complaint, filed in January of this year, argued that SAFFIRE violates the statutory mandate at 10 U.S.C. § 3453 to procure commercial items “to the maximum extent practicable.”  The Court’s conclusion that Percipient had standing to protest is notable because (1) NGA issued the SAFFIRE solicitation in January 2020 (over three years ago); (2) NGA awarded the SAFFIRE contract to CACI, Inc.—Federal (“CACI”) in January 2021 (over two years ago); and (3) Percipient never submitted a proposal in response to the solicitation. 

The Government and CACI moved to dismiss Percipient’s complaint, arguing, among other things, that Percipient lacked standing to protest because it had not submitted a proposal and therefore was not an “interested party,” and because the protest—filed two years after contract award—was in fact a challenge to NGA’s administration of the SAFFIRE contract.  The Government and CACI also argued that the protest was untimely under the Federal Circuit’s decision in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007), which generally requires that protests challenging the terms of a solicitation be filed before the proposal due date.

In response, Percipient acknowledged that it had not submitted a proposal in response to the SAFFIRE solicitation, and in fact could not have done so, because it did not meet the solicitation’s minimum requirements.  Nonetheless, Percipient explained that its standing arose from the fact that the SAFFIRE solicitation required the awardee, post-award, to make a series of “make or buy” decisions with respect to certain computer software—software Percipient already provided commercially—and potentially conduct future procurements.  Percipient argued its challenge was to NGA’s alleged failure to conduct adequate market research as to the commercial availability of that software (or require CACI to do the same) prior to allowing CACI to develop its own solution—a direct violation of § 3453, made “in connection with” the SAFFIRE procurement, which continued beyond NGA’s 2021 award of the contract to CACI.  In sum, Percipient argued that but for NGA’s violation of § 3453, there would have been additional procurements to meet ongoing SAFFIRE requirements upon which Percipient could have bid.  Against that framework, Percipient argued that its protest was not challenging NGA’s administration of CACI’s contract—an argument that, according to Percipient, if accepted, would give agencies carte blanche to ignore the requirements of § 3453—and was not barred by Blue & Gold, because it was not challenging the terms of the SAFFIRE solicitation. 

In a short order serving as a precursor to a forthcoming opinion, the Court denied the Government’s and CACI’s motions to dismiss.  The Court’s Order did not engage with the bulk of Percipient’s arguments, but concluded Percipient had standing because it had alleged a non-frivolous allegation of a violation of § 3453 by NGA “in connection with” the SAFFIRE procurement that precluded Percipient from being a prospective bidder in future agency procurements.  The Court also held, without further explanation, that “on the present state of facts,” Percipient’s protest was not barred by Blue & Gold.

Key Takeaway

The Percipient decision serves as a helpful reminder that the Court’s Tucker Act bid protest jurisdiction does not necessarily end upon contract award, especially where the procurement implicates other statutory regimes that impose additional requirements on the Government.  For that reason, potential protesters should engage with protest counsel upon identification of agency errors made “in connection with a procurement”—possibly even years after the contract award—to evaluate potential protest grounds and the jurisdictional hooks to get such claims before the Court.